Eric Litke

USA TODAY NETWORK-Wisconsin

Former police officer [REDACTED] was charged in Brown County with [REDACTED], but after [REDACTED] he [REDACTED].

That’s about the extent of the public information on former Ashwaubenon cop Thomas Benike, who was charged in 2012 with handcuffing his wife during a marital dispute. The incident yielded a felony charge and was enough to get Benike fired, but Judge Thomas Walsh still ordered the court record sealed after Benike completed a deferred conviction agreement.

To any neighbor or employer searching Benike's name today in online court records, the crime doesn't exist.

RELATED:Sealed cases alleged sexual assaults, $1.2M theft

The case was one of more than 200 felony cases sealed in online court records from 2005 through the end of 2014, according to a USA TODAY NETWORK-Wisconsin analysis. Judges commonly seal financial records, medical records and other sensitive information within court files, but the sealed cases move beyond that to stripping names out of court records or cutting off all public access.

MORE COVERAGE:USA TODAY NETWORK-Wisconsin's award-winning WisonsINjustice series

The cases hidden from public view raise questions of openness, fairness and accountability, experts say.

The practice persists despite numerous judges and prosecutors who say judges don’t have the authority to seal cases as broadly as some do — and even though public outcry has quashed repeated legislative attempts to similarly limit online court records.

“This is a constant impulse to say that people are too stupid and too mean to be trusted and to know that (anyone) has been implicated in the court system for any reason unless we determine they’re guilty,” said Bill Lueders, president of the Wisconsin Freedom of Information Council, an open-government advocacy group. “They want to turn court records strictly into a repository of people that are guilty. … It’s supposed to give a true picture of what happened in the system.”

The decision whether to seal cases comes down to individual judges’ interpretation of case law, since no state statute or court rule specifically authorizes judges to seal entire cases.

“The problem is that people are not treated consistently across the state on it,” former Wisconsin Supreme Court Justice Janine Geske said. “One judge is going to say, ‘I’ve got no authority to do this’ — and they’re probably right — and another judge is saying, ‘In the interest of justice, I’m going to go ahead and do this.’ ”

INTERACTIVE MAP: See which judges and counties most frequently sealed court records over the last decade

Statewide, the sealed cases include people charged with sexual assault of a child, possession of child pornography, theft and reckless endangerment. Many of those charges were dismissed, but the group also includes defendants who were convicted or acknowledged committing the crime with which they were charged.

The defendant’s privacy is not the only issue at stake, said Outagamie County Judge Michael Gage.

“Even where someone is vindicated after being charged," he said, "there is a strong public interest in the information being available to assess if and how (law enforcement) were doing their jobs right.”

Online seals create double standard

Wisconsin judges have in many cases disconnected the physical and online court files — putting different information online than what is available in the courthouse — even though that isn’t consistent with court system policy or what is asserted to be in online court records.

Many sealed cases are fully hidden both online and in the courthouse (as was the case with Benike), but some judges seal the online record while leaving the physical file accessible. Other judges redact only the defendant’s name from the online record, in which case the physical file typically remains open.

But Wisconsin’s online court system, commonly referred to as CCAP, describes itself as a “mirror” of the physical file, aside from sensitive elements required to be kept confidential.

That aligns with a 2006 memo from then-Director of State Courts John Voelker that said “the paper record will be sealed correspondingly” to what is ordered for the online record. That policy remains in place, said Tom Sheehan, the state’s court spokesman.

Many in the legal community say the selective sealing is a problem.

“I think that there’s a systemic integrity that needs to be considered as a paramount concern,” Waushara County Judge Guy Dutcher said. “What is an open record in the courthouse, in the court system, should be presented in the same manner on the computer.”

Winnebago County District Attorney Christian Gossett said he always objects to defense motions to seal files online.

“We’ve told people information is going to be out on CCAP,” Gossett said. “If a whole file is going to be sealed, then OK, seal it, but I’m not a big fan of not putting it on CCAP.”

The inconsistency even leaves court staffers confused.

Court clerks in Outagamie and Lincoln counties initially denied access to physical court records listed as sealed online, but records were later released after they were asked to investigate whether it was sealed only online. A clerk in La Crosse County said files with names sealed on CCAP could be viewed in person, but she didn’t think she could provide copies via email.

The 208 felony cases sealed from 2005-14 include 146 sealed in their entirety online and 62 for which only the name was sealed online. Most of the fully sealed cases investigated by USA TODAY NETWORK-Wisconsin also had the physical file sealed, while most with names redacted were available for inspection at the courthouse, based on requests to examine a sampling of both groups.

“There shouldn’t be a distinction. If it’s public in the courthouse, it should be public on CCAP,” Geske said. “You’re having two standards for a court document, so people that are local or can physically get to the courthouse can get access to whatever it is, but the people who are looking electronically can’t do it. … That’s probably not a good public policy.”

One judge has sealed 38 cases

Sealing is a rarity for most judges, as the 208 sealed cases are only 0.06 percent of the felony cases filed from 2005-14.

The exception is La Crosse County Judge Ramona Gonzalez, who sealed 38 felony cases from 2005-14. No other state judge sealed more than five in that span.

Gonzalez did not respond to repeated requests to explain her frequent sealing of cases.

Todd Schroeder, president of the La Crosse Area Association of Criminal Defense Attorneys, said sealing cases has become the county’s answer to the limited nature of state expungement law. State statute allows expungement only for convictions, and then only for certain crimes committed by young offenders or victims of human trafficking (though many efforts have been made to expand that over the years, and the Director of State Courts office has drafted another).

“(Sealing) is a remedy to the fact that in this state it’s almost impossible to expunge a file,” Schroeder said. “It’s really something that’s done in the interest of justice and I guess of protecting the prejudice that follows somebody when they have such a presence on CCAP.”

Gonzalez typically seals cases only online, most frequently in the wake of deferred conviction agreements. Those involve a deal to dismiss a felony charge if the defendant commits no further crimes for a set period — typically one to two years. Deferred agreements were part of 21 of the 38 cases Gonzalez ordered sealed.

Gonzalez appears to be the only Wisconsin judge to routinely seal such cases. The 62 sealed cases in which case details remain online without a name include only four other defendants statewide who had their cases sealed after a deferred conviction agreement.

Gonzalez also sealed four cases where the defendant was convicted of a misdemeanor, including that of Robert M. Neary, 31, of La Crosse. He was convicted of two misdemeanor drug counts after being arrested in 2006 with marijuana, LSD and prescription pills. Neary violated his probation and was sent back to jail in December 2007 for four months, but by April 2008 he had already written to Gonzalez about the “positive improvements” in his life and how the visibility of his drug case was “hindering me from obtaining employment.” Gonzalez sealed his name in the online file.

The judge also sealed three charges against Antonio Vernon, 30, of Oshkosh, for violating the sex offender registry even though Vernon remains a registered sex offender visible in the sex offender database. He had also claimed problems getting a job.

La Crosse County District Attorney Tim Gruenke said he has objected to attempts to seal cases when it comes up before Gonzalez or any other judge.

“I’ve said I don’t think that it’s allowable, because I don’t find any authority in state law,” he said.

Reasons for sealing inconsistent

Wisconsin judges vary greatly on what justifies sealing a case, but some common threads emerge from cases that remain partially open to public scrutiny.

“I hope that (sealing cases) is done sparingly first of all — because people have a right to know what happens in their court system — but also it’s important that judges do not have wildly divergent processes,” said Lueders, from the Freedom of Information Council. “It shouldn’t matter which judge you’ve got in terms of how they handle public access to information.”

But that seems to be exactly the case.

Some judges believe sealing should be done only to right errors or obvious wrongs. The most common example is in cases of mistaken identity, but interviews and records requests also revealed cases sealed because the defendant was moved to juvenile court or because the case had been wrongly filed as a felony when it was a misdemeanor.

Judges who use sealing more liberally are often responding to reports of discrimination, as was the case for Justin L. Mielke, 34, in Winnebago County. He filed a motion seeking to seal his online and physical files after being found not guilty of sexually assaulting an 8-year-old girl in 2009. Judge Barbara Keys agreed to seal the online case file.

“The court finds that there is a real danger employers are using information found in the system in this case as a basis to deny the defendant employment, despite prohibitions found in the Wisconsin Statutes against employment discrimination based on mere arrests,” Key wrote in a 2010 order.

Sheboygan County Judge Angela Sutkiewicz also sealed a sexual assault case in July 2015 after it was dismissed, granting a defense motion that asserted removal from CCAP “will prevent the devastating and unfair discrimination.”

But if judges really had the authority to seal any case that was causing discrimination, Gage noted there would be no logical endpoint.

“The problem with that is it really would result in pervasive sealing of records,” the Outagamie County judge said. “We’d like to think that society as a whole would recognize that people can rehabilitate themselves and go on to live productive lives.”

CCAP itself, addressing whether private information can be removed from the website in a Frequently Asked Questions section, describes a more limited approach than some judges appear to use.

“You probably can’t get rid of this information. Wisconsin has a strong open records law that requires most court records to be open,” the FAQ reads. “According to Wisconsin court cases, even if the information may be harmful to an individual’s reputation or privacy, that is not necessarily enough to allow a judge to seal a court record.”

The 62 felony cases in which only the name was sealed show a variety of circumstances in which judges deemed sealing appropriate.

All charges were dismissed or the defendant was found not guilty in 29 of those cases — nearly half. Almost all the others involved defendants who tacitly or explicitly acknowledged committing the alleged crime, as they were convicted of misdemeanors (nine cases), had offenses dismissed but read in for consideration in another sentencing (10) or reached a deferred conviction agreement (24).

Law offers little guidance

Kewaunee County Judge Dennis Mleziva — whose five sealed felony cases from 2005-14 were second only to Gonzalez — was one of several people in the court system to say judges have an “inherent” power to seal cases.

Mleziva drew the language from a 1983 Wisconsin Supreme Court case, Bilder v. Delavan Township, that says judges have “power to limit public access to judicial records when the administration of justice requires it." But the same decision states the high court justices “need not and do not decide whether a circuit court may ever use its inherent power to seal court documents permanently.”

Neither that case nor any other establishes a list of criteria for sealing cases.

“There is no simple checklist of factors for a court to consider,” Mleziva said, noting discrimination or apparent rehabilitation are among his considerations. “As in many situations in the law, the court must ultimately exercise its discretion and balance valid competing interests under the law.”

The cases sealed by Mleziva include two against Michael J. Krueger, 27, of Green Bay, who was convicted in separate incidents of holding a knife to his sister and having sex with a 15-year-old girlfriend when he was 17. He requested the files be expunged, but since the cases didn’t fit that criteria, Mleziva offered to seal the files on CCAP, records show.

A Wisconsin Supreme Court rule taking effect in July establishes a more consistent procedure for sealing cases but does not clarify criteria for sealing them. It refers judges to “applicable constitutional, statutory and common law.”

“There’s not a lot of guidance that judges have,” Brown County Judge Marc Hammer said. “The goal would be to seal only that portion of the file that you have to seal, because there’s such a strong presumption to keep that file open and available to the public under state law.”

Several judges said they must perform a balancing test when weighing whether to seal a case, similar to what officials use under the open records law to determine whether to release a record. Case law describes that test as determining whether the public interest in sealing a record outweighs the public’s right to have access to the documents.

Walsh, the Brown County judge who sealed the Benike case, said the public interest in criminal charges against a cop was mitigated because Benike “wasn’t an officer at the time the case was concluded.” By that point, the Ashwaubenon Police and Fire Commission had fired Benike.

“If you’re saying this seems like an effort to cover up for someone who’s on law enforcement staff here, that wouldn’t be the case,” Walsh said. “I conducted a balancing analysis and one of the balances of course being when there’s a joint recommendation” from the prosecution and defense to seal the case.

But before being reminded of the Benike case, Walsh had taken a firm stance against the idea of tucking any case away from the public.

“I have not taken a position that I can just simply order an entire file sealed, and I really don’t think there’s authority to do it,” he said. “It is difficult to wrestle with that sometimes, but I believe the public has a right to know.”

Eric Litke is an investigative reporter for USA TODAY NETWORK-Wisconsin. Reach him at 920-453-5119, elitke@gannett.com or on Twitter @ericlitke.

Sunshine Week

This story was written to coincide with Sunshine Week, an annual nationwide initiative to promote a dialogue about the importance of open government and freedom of information. Learn more at www.sunshineweek.org.

How we did it

USA TODAY NETWORK-Wisconsin identified sealed felony cases as part of our WisconsINjustice series, investigating the state court system.

Our investigative team extracted every felony case from online court records (commonly known as CCAP) from 2005-14 to examine sentencing, and in the process came across cases that had been sealed entirely or had the defendant’s name sealed.

We then looked what the online seals meant by requesting criminal complaints and orders to seal for a sampling of cases from various counties. We discovered the 146 cases sealed in their entirety online were usually sealed at the courthouse as well, but the courthouse files were typically accessible in the 62 cases in which only the name was sealed online.

In three counties, clerks initially denied access to the files but later provided records after we insisted they research the nature of the seal to ensure the case wasn’t still available offline.

We identified the defendant’s name, the nature of the charges and the reason for sealing in many cases by examining media reports from before a case was sealed, requesting copies from the physical files and reaching out to judges, attorneys and some of the defendants themselves.

The tally of 208 sealed felony cases does not include 20 cases that were listed in CCAP as sealed due to mistaken identity, meaning charges were filed against the wrong person. Those are a special case among sealed records since there is a standard procedure by which people can get the cases removed.

The mistaken identity cases are also the only type of sealed cases that include an online explanation. Our research revealed at least a few of the 208 cases were also sealed due to mistaken identity, but they were kept in the tally since they did not include a public explanation for the seal.