Probation violation case raises bigger legal questions

A fairly routine probation violation hearing in Carlton County Court last week threatened to become a case of potentially far greater significance when counselors from a Fond du Lac drug and alcohol treatment center didn't respond to a county sub...

A fairly routine probation violation hearing in Carlton County Court last week threatened to become a case of potentially far greater significance when counselors from a Fond du Lac drug and alcohol treatment center didn't respond to a county subpoena. Legal issues raised during and after the hearing included both patient confidentiality and - to a lesser degree - tribal sovereignty. In the end, however, the cooperative relationship between Carlton County and the Fond du Lac Reservation survived.

Assistant County Attorney Mike Boese told Judge Dale Wolf Tuesday morning that staff from the Tag Wii treatment program had been instructed by legal staff for the Fond du Lac Band to ignore a subpoena from the county. The subpoena asked counselors to testify that defendant Derrick Defoe had violated the terms of his probation agreement with the county, which included a chemical use assessment and the completion of treatment for drug and alcohol abuse, as well as regular monthly meetings with his probation officer, Steve Johnson. (A more recent DWI charge against Defoe is also working its way through the court system.)

Boese mentioned tribal sovereignty as a possible reason the counselors were instructed not to respond to the subpoena, adding that he believed the Fond du Lac legal staff should have come to court and legally contested the subpoena.

After testimony from both Johnson and Defoe himself, it appeared that Defoe had been in contact with Johnson five out of the last six months, although not always on the scheduled date. As for the success or failure of the treatment, Johnson could only repeat what he'd heard from the Tag Wii counselors.

When defense attorney Thomas Skare objected on grounds of hearsay and that Johnson was not a treatment counselor and therefore not qualified to comment on the probability that Defoe would successfully complete treatment, Judge Wolf pointed out that the absence of the Tag Wii testimony negatively impacted both sides of the case.


"I would like to know what progress [Defoe] made in the program, if there was a reason he didn't attend," Wolf said, referring to an earlier statement from Johnson that Defoe had missed approximately a month of counseling. "If they won't come to court, your client is also deprived of that testimony."

When contacted by the Pine Journal several days after the hearing, Fond du Lac Band tribal attorney Dennis Peterson said his primary motive in advising Tag Wii counselors not to appear in court was the issue of patient confidentiality as well as the short notice given because the subpoena was issued the day before the hearing. Peterson said he believed the subpoena potentially violated federal laws regarding patient confidentiality, which prohibit disclosure of treatment details without a court order (which is not the same thing as a subpoena, he explained).

Boese and County Attorney Thom Pertler both argued that because the treatment was part of a probation agreement, the defendant waived his right to patient confidentiality as a part of that agreement.

Judge Wolf pointed out that the big picture is really about the folks on probation.

"This is not about an adversarial relationship between the county and the Tag Wii program," Wolf said as the hearing drew to a close. "[The greater concern] should be for the people getting the help they need to be rehabilitated for chemical dependency."

A week after the hearing, in phone interviews with the Pine Journal, both Pertler and Peterson said they'd reached an understanding that the county attorney's office would try to use testimony from probation officers rather than treatment counselors whenever possible. The reasoning behind that was primarily to keep them on the job, rather than sitting in a courtroom. If a defense attorney objects, then it's likely the client would wait in jail until the counselors are free to appear, Pertler said.

"We've had a good positive relationship with the county attorney's office, the courts and Judge Wolf," Peterson said. "We don't want to play up our differences. We have too many common objectives."

Crisis averted.


As for the end result of the actual case, Wolf found Defoe had violated his probation, therefore the probation agreement was null and void. Because of other jail time accumulated since his sentencing in September, however, Defoe only had 18 days (with good behavior) of his original sentence left to serve after his court appearance. All other probation terms, including the treatment program, were dropped.

"The real tragedy here is that when you walk out of jail, you won't be any less chemically dependent than you are now," Wolf told Defoe in the end. "It's up to you. Your whole family needs you to be better. Your life won't be any better until your use of chemicals gets better."

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