The recent attacks by Dan Bice, the news media and political opponents against Fond du Lac County DA Eric Toney over the Ruben Houston case are misleading, false in part, poorly reported, leave out key details, and amount to a political hit job. Here’s why.

As the race for Attorney General heats up, the news media have botched their “gotcha-style” reporting into the three-year-old case of a man named Ruben Houston, shamelessly using the tragic death of a Fox Valley firefighter for political purposes. It’s a concerted effort, led by the Milwaukee Journal Sentinel’s columnist Dan Bice, to smear Fond du Lac County DA Eric Toney, the only candidate with prosecution experience in the Republican primary.

Dan Bice’s typically over-the-top headline screams, “AG candidate Eric Toney’s office accused of botching case in which a 9-time felon killed a firefighter while out on $500 bail.” However, and this is KEY, Toney’s prosecutor never asked for $500 bail. In fact, he OPPOSED a request from the defense attorney to modify Houston’s bail. The judge, Gary Sharpe, then gave Houston $500 bail – an amount that no one had asked for. Bice also downplays the fact that Houston was released…to Marathon County, which then released him on a signature bond, but that fact is getting minimal scrutiny.

And that’s just for starters.

First, a quick summary of the case background, and then we will expose how the media have failed to fairly report the full context. [On Monday, we will report on the media’s glaring double standard because they have refused to similarly scrutinize Democratic AG Josh Kaul in a comparable case.]

In 2019, the suspect engaged in a shootout with Appleton police as paramedics arrived to a medical call for him. Houston shot and killed Appleton firefighter Mitchell Lundgaard (an obviously horrific event) and then was also killed in the shootout. At the time of the shooting, Appleton police identified him as Ruben Houston III. There was a minimal history for Ruben Houston III or Ruben Houston in the state’s widely used online court database, CCAP, which prosecutors in two counties relied on to check his record before bail hearings. Here’s how his record appeared on CCAP under the Ruben Houston spelling, a report documented in the Marathon County prosecutor’s file (only the CM case is a criminal case):

At issue is the bond hearing in Fond du Lac County on May 4, 2019. The Journal Sentinel and others reported that Toney’s office missed the fact that Houston had “changed his name” and had a lengthy felony record in state and federal courts under the name Ruben Huston (they did not give similar scrutiny to Marathon County’s DA).

The implication is that, because name changes usually require a person to go before a judge, Toney’s prosecutor should have figured this out. They’re using that $500 bail to bludgeon Toney in the media, even though his prosecutor objected to the defense motion to modify bail.

Dan Bice even compared the Houston case to the $1,000 bail given in Milwaukee County to Waukesha parade attacker Darrell Brooks. That’s a false comparison because DA John Chisholm’s assistant prosecutor ASKED for the $1,000 bail.

To be sure, the Houston case raises some important questions about the easy access prosecutors in Wisconsin have to name changes and full criminal histories of defendants, and how complete CCAP, the state’s public court database, which is used by everyone from landlords to average Joes, really is.

What the case underscores when you take the time to understand the full context is that there were systemic issues – such as gaps in CCAP – that helped lead to Houston being on the streets. Some of those questions trace back to the state Department of Justice, which is run by Democratic Attorney General Josh Kaul, because the DOJ’s auditing pressure contributed to law enforcement not sharing Houston’s full criminal history, including past names, with prosecutors, a point Dan Bice ignores.

In addition, we’ve discovered through an interview with Houston’s family that he never went before a judge to change his name at all. The different spelling arose from a discovered birth certificate. Thus, the name change situation is derived from an extremely rare set of circumstances.

“Often times we have incomplete criminal histories from other states or the histories are almost impossible to decipher,” Marathon County District Attorney Theresa Wetzsteon told Wisconsin Right Now. “Useable, comprehensive and accurate comprehensive criminal histories should be the expectation for our criminal justice system, but that is not the reality.”

The media are ignoring those questions.

Dan Bice’s headline originally read that Toney himself was accused of “botching” the case, even though he never personally appeared in court on it. An assistant did. Of course, it’s true that elected DAs are responsible for everything their assistants do. The Journal Sentinel later changed the headline. But that’s just the beginning of the problems in the story.

Other media, such as WISN-TV, amplified the misleading Dan Bice report.

Ryan Waldschmidt, the Fond du Lac County sheriff, believes that another angle left out of the coverage is the responsibility that Houston himself held for what happened that day.

“Glaringly missing from the story is that let’s not forget the fact that this was a career criminal in two court systems, who rearms himself with a weapon he’s not supposed to legally possess, resupplies himself with heroin, then overdoses, gets rescued and saved like we do for so many people and then shoots and kills his rescuers and saviors,” Waldschmidt said.

Dan Bice’s headline says Toney’s office is being accused of “botching” the case. But who’s actually doing the accusing now? The case is three-years-old, and much of this was reported at the time.

It’s two people, according to the story: Dan Bice, who is well-known for misleading reporting often fed to him by competing operatives, and a spokesman for Adam Jarchow, the former legislator running against Toney for attorney general. That’s it.

Jarchow, who once created and then deleted a website showing Toney as a marionette, piled on, trashing Toney as failing “miserably” and stating that Toney “allowed a career criminal out on low bail just weeks before the man went on to kill an Appleton firefighter.”

Jarchow, who has no prosecution experience, has been reeling from a series of stories examining his own legislative record, including being the only Republican to vote against making it a felony to batter a prosecutor or police officer’s family member. He also banded together with an anti-police Democrat in the Legislature to limit mandatory minimums for repeat violent felony firearm offenders and was ranked the 2nd worst legislator one recent year by a large, bipartisan police association in Wisconsin. The Journal Sentinel has ignored those stories.

Here are the key points:

The Name Change That Wasn’t

It turns out that Houston did not legally change his name in 2011, as the Milwaukee Journal Sentinel falsely reported.

Dan Bice wrote, “The 47-year-old Wausau resident slipped through the cracks because police and prosecutors did not catch that he had legally changed his name from Ruben Huston III to Ruben Houston III in 2011, records show. All of his prior convictions came under his previous name.”

We contacted Huston’s family to unravel the curiosity of a name change that never ended up on the online court website, CCAP, which Toney’s prosecutor used to run his record.

Normally, name changes go before a court and a record is generated.  Dan Bice falsely wrote, “The court case in which he was permitted to change his name is not available through online or Milwaukee County Courthouse records. It appears the name change would have occurred while he was in bankruptcy with his wife.”

It turns out that Houston never changed his name at all, and he never went before a judge – Houston was always his name, perhaps the result of a misspelling by a hospital decades ago.

We spoke with Houston’s wife Tamatha Houston. Years ago, after the shooting, she told the Appleton media that she believed police had done their jobs in the case.

Tamatha Houston, who was initially unfamiliar with the recent flurry of news coverage, says that Ruben went by the spelling Ruben Huston his entire life, and he thought that was his name. When they went to get married in 2011, she said that they needed to produce birth certificates and discovered that Ruben’s Cook County, Illinois, birth certificate listed his last name as Houston, even though he’d been going by Huston all his life, and Huston was the name used by his brother (which online records confirm). He then got married using the name on the birth certificate, Houston, and changed his driver’s license to it.

“We went by what was in the birth certificate because we assumed that was his real name,” Tamatha said. She is not 100 percent sure why the birth certificate used the Houston spelling, saying, “We never looked into it,” noting, “for all those years he went by Huston.”

She said that Ruben’s father uses the name Ruben Husten, which no one can quite explain.

Their daughter Starquis Lewis also confirmed the story. “It was always Huston. That’s always how he spelled it,” she said, referring to the time frame before the birth certificate came to light. “He didn’t know the correct spelling of his name.”

In short, there was no name change. His name was Houston all along. He just didn’t know that until 2011.

We verified with state vital records that Ruben Houston married Tamatha in May 2011.

In short, it’s an extremely aberrant set of circumstances. The court case Dan Bice essentially trashes Toney’s prosecutor for missing never existed.

Although Toney told the media that it appeared Houston may have changed his name before a judge, because that would be the normal way this happens, a prosecutor can hardly call up a deceased defendant’s family to unravel the facts. However, a reporter like Dan Bice could have but chose not to. We figured it out. Why didn’t Bice?

Toney’s Prosecutor Never Asked for $500 Bail & Objected to the Defense Motion

Despite the breathless tone of the news coverage, in reality, Toney’s prosecutor OBJECTED to the defense attorney’s motion to reduce Houston’s bail from $5,000.

There was a single motion made in the case, by the defense attorney, who wanted Houston released on a signature bond, a review of records shows.

The prosecutor, an assistant Fond du Lac District Attorney named Timothy Filipa, who appeared in court on the case, asked for some cash bail. He did not ask for $500 or any reduction; he opposed the defense request. The judge, Gary Sharpe, then released Houston on $500 bail – an amount no one asked for – but has almost entirely escaped scrutiny.

“Granted, he doesn’t have much of a prior record or missed court appearances other than the Marathon County case, which was mentioned,” Filipa said. “But the charge alleged is a, I believe, Class E felony. So I think with the severity of the charges, the lack of local ties, that some cash on hand is appropriate.” The first part of the sentence is the central claim against Filipa and Toney – that Filipa did not cite all the state and federal cases under the Huston name. However, the media have not held Kaul’s office to the same standard, as we will document in another story Monday.

Josh Kaul Hired the Same Prosecutor AFTER the Houston Case

Guess where Filipa now works? He was hired AFTER the Houston prosecution by Democratic Attorney General Josh Kaul, Toney’s eventual opponent in the Attorney General’s race, if he gets through the primary.

Kaul hired Filipa in May 2020, about one year after the bail hearing in the Houston case.

Seems relevant; if Filipa so terribly “botched” such an important case, why did Kaul decide to hire him?

Marathon County Released Houston Last But Is Getting No Scrutiny

Dan Bice makes only passing reference to Marathon County; officials there didn’t make his screaming headline. In fact, after Houston was released on bail in Fond du Lac County, he was not released onto the streets, Wisconsin Right Now has learned. He was released into the custody of Marathon County, where he was wanted on a warrant for another pending criminal case, for misdemeanor disorderly conduct. A Marathon County court official then released Houston on May 7 on a SIGNATURE BOND, three days after the Fond du Lac County bail hearing, and that placed Houston on the streets. The shootout that took the life of the firefighter occurred on May 15, 2019.

Yet Marathon County gets only passing mention by the media.

Court records show that the Marathon County arrest for disorderly conduct came after Houston caused a major scene at a hospital. He was taken to a mental hospital, but a request for commitment was denied (those are reviewed by the corporation counsel’s office.)

The Wausau police reports into the Jan. 24, 2019, incident give Houston’s name as Ruben Houston III.

The reports show that police went to a report of a suicidal male at a hospital. Houston was combative and disruptive and caused a repeated disturbance. He was initially placed in the jail but he removed his clothes and urinated all over the floor so a decision was made to commit him.

Houston was not booked into the jail “in order to expedite the process of getting medical clearance,” the reports say. Houston was sent to Winnebago Mental Health Institute. A law enforcement officer filed a statement of emergency detention, which requires a probable cause hearing within 72 hours.

We’ve learned the commitment was not pursued (the corporation counsel handles those), and Houston was simply released. He did not show up for court. A warrant was issued. When he was later picked up in Fond du Lac County on the counterfeit drug charge, it was discovered, and he was sent back to Marathon, where he was released on a signature bond and then committed the shootout a few days later.

We asked the Marathon County DA Theresa Wetzsteon about the case. This is what she explained, in depth:

“I do not have a copy of the initial appearance transcript, but it appears that our prosecutor, ADA Sidney Brubacher, recommended a $500 signature bond. The recommendation was made based upon the nature of the incident, the charges he was facing and the background information that we had at the time. This case was based upon a law enforcement response to a local hospital for a mental health crisis. Law enforcement responded and although a charge of disorderly conduct was referred, law enforcement sought to address concerns regarding Mr. Houston’s mental health through a Statement of Emergency Detention and a transport to the Winnebago Mental Health Institute. The basis for the Statement was that the law enforcement officer had concerns based upon the witnessed behavior of Mr. Houston at the local hospital that there was a substantial probability of physical harm to himself or others.”

She continued: “Specifically, statements relating to an unspecified suicide plan. The Marathon County District Attorney’s Office does not handle mental health commitments. ADA Ray Pelrine reviewed the case and inquired whether a mental health commitment was pursued and the notes in the file indicate that he was informed that a mental health commitment was not pursued. Certainly, based upon the particular circumstances at the time, the involved prosecutor and officer had a proper basis to believe that Mr. Houston’s needs could be most effectively met through mental health professional intervention and thereby reduce the risk to the public. Mental health professionals received Mr. Houston at Winnebago Mental Health Institute and a mental health commitment was not pursued according to the information in our file.”

We asked about the name change.

“As for Mr. Houston’s name, the spelling that law enforcement had of Mr. Houston’s name was Ruben Houston. On March 15, 2019, the Marathon County District Attorney’s Office Investigator ran Mr. Houston through Triple I and CHRI. Those records indicated alias name of Rubin Huston and Ruben Huston III and a Wisconsin criminal history only. Given the Wisconsin criminal history only, our staff then relies on CCAP for the details of that history. When running CCAP, Mr. Houston’s alias names were not connected and therefore the record that returned only included the prior 2017 Marathon County Case. Given the circumstances of this particular incident as a mental health crisis and the charges he was facing- 2 counts of disorderly conduct, a Class B misdemeanor, the bond he received from the Judge is not unusual. The criminal history information would not change the facts and charges that were presented to the court regarding this particular incident. Ironically, I am also responding to a simultaneous media inquiry which deals with the propriety of holding offenders in custody on misdemeanor charges when the pretrial incarceration may exceed the maximum penalty.”

In short, there’s a lot of context. And Marathon County’s prosecutor used CCAP too.

We learned that Houston had a 2017 case in Marathon County that was dismissed in January 2019. We asked why. “Based upon my review of the notes from the file, the main witness to the incident was unable to be located and was in warrant status,” she said.

We asked, “Do you have any further comment on the Houston controversy, name changes, and so on, and what the system could do differently to prevent this from happening again?”

She responded:

“It is my understanding that we are not allowed to electronically save records provided by NCIC and we cannot provide that record in its original format to defense counsel or the court. Therefore, we must take the information off of the NCIC record and compile a summary that is in a format that can be saved and shared. This is very resource intensive. Therefore, when based upon the record we are informed that the Defendant only has a Wisconsin criminal history, we rely on CCAP to provide us the details in an easy to access and print format.

In this case, the CCAP criminal history of Mr. Houston’s alias names were not connected to the spelling we had in the law enforcement referral. Often times we have incomplete criminal histories from other states or the histories are almost impossible to decipher. Useable, comprehensive and accurate comprehensive criminal histories should be the expectation for our criminal justice system, but that is not the reality.”

Policy Changes Outside Toney’s Agency & DOJ Audits Played a Role

The media’s reporting also ignores a series of policy questions and nuances that contributed to the prosecutor not learning that Houston had a criminal history.

Some of that traces back to Kaul’s own office, the state Department of Justice, although he wasn’t AG when they started.

According to the Fond du Lac County Sheriff, his deputy DID know Houston’s full criminal history and that he had used different names because he ran a full CIB criminal history report through the state Department of Justice (the agency Kaul now leads). He also ran his driver’s license record, which showed driver’s licenses over time in the different names.

However, and this is critical, the deputy did NOT attach those reports to the records he sent to Filipa. Why? Because of auditing pressure the DOJ started putting on law enforcement agencies about 10 years ago, the sheriff said.

DOJ was concerned that CIB criminal histories were being disseminated too widely throughout the state, so they demanded more documentation on what is called “secondary dissemination” – including to prosecutors. As a result, the Sheriff’s Department (led by a different sheriff) stopped attaching the reports to the records they sent the DA.

Furthermore, the sheriff raised the question of why CCAP, which is run by the Wisconsin Court System, does not better interface with driver’s records and CIB criminal histories, to connect aliases and name changes in the widely used court website. It’s not only prosecutors who get an incomplete picture if CCAP is presenting one; it’s landlords, significant others, defense attorneys, the public at large…

We asked Jean Bousquet, Chief Information Officer, for CCAP, about this question.

“We do have an interface in place with DOJ/CIB. The circuit courts send court dispositions to CIB as long as we have an arrest tracking number or a booking agency ORI # and arrest date. At time of disposition we send the full party record (name, address, dob) on the case with the charging, disposition and sentence information. We do not send any subsequent case updates unless there is a disposition change,” she said.

“Name changes in the circuit courts are filed as civil cases and these are not currently shared with the District Attorneys or the DOJ’s criminal history repository. Since CCAP Case Management is a case based system (not party based), name changes are not routinely updated in other cases statewide or even if that county if they are not active. Accordingly, if DAs were to use CCAP to look up past criminal history, they would still have to know the person’s original name to ensure they are identifying all cases.”

Kaul has shown no interest in these questions, which, as the state’s top law enforcement official in charge of CIB, he could work to fix.

Toney’s office did have an office policy at the time that mandated that prosecutors run NCIC or CIB histories in cases of repeat offenders, as Houston was. Toney gave Bice the policies, but they did not make it into his story.

The Sheriff Believes Most Prosecutors Wouldn’t Have Charged the Case at All But Praises Toney for Taking a Tough Case Forward

Fond du Lac County Sheriff Waldschmidt, whose office investigated the Houston case and referred the reports to Toney’s prosecutor, praised the DA, saying that Toney is extremely accessible to beat officers on the street.

He also believes that many DAs probably would not have charged Houston at all because the drug test came back inconclusive, but Toney worked with the deputy to get Houston off the streets by prosecuting him for counterfeit narcotics because Houston indicated he believed the substance was heroin.

Thus, under a weaker prosecutor, the case might not have made it to a courtroom at all.

“CCAP, to this day, when you enter his name Houston, you don’t get that whole record under Huston,” the sheriff noted. “The records aren’t tied together.”

He explained that the deputy did refer the case as a repeater. He had run Houston’s CIB record (criminal history under the state Department of Justice) and his driver’s history and both flagged the different names. But he didn’t attach them to the records he sent the DA nor summarize them.

He said that Houston was fingerprinted and the prints were sent to DOJ, but it’s not a two-way street- they are collected there but aren’t compared to other fingerprints on file. Although there is a machine that can be used to do print comparisons (and might have turned up Houston’s old bookings as Huston in Milwaukee), it’s only used by the Sheriff’s Department in cases where identity is in question and other such things.

“There was no question over who it was. He had his drivers license, the deputy identified him, the driving record returned in Houston,” the sheriff said. “The fingerprints were sent, and nothing was ever returned on that.”

The sheriff said that Ruben Huston became Ruben Houston on his driver’s license on Aug. 24, 2011, and added the III on May 20, 2013.

Both the CIB report and DL report show all three name variations, he said. “For whatever reason, none of this history is tied in CCAP,” he said. The assistant DA, he said, used CCAP.

“Back in the day, when I was a street cop, say 20 years ago, you would print it and it would go up to the DA’s office with the report, they would get a copy of DL and criminal history,” he said. But about 10 years ago, that changed. CIB auditors got tougher on what are called “secondary disseminations,” requiring documentation of who got the reports, so the Sheriff’s Department changed its policy.

“The officer runs the criminal history and refers reports but they are not secondarily disseminating it because we can’t guarantee where it goes to, which prosecutor, which support staff.” That means that the sheriff’s department doesn’t give the criminal history and DL reports to the DA. DAs generally rely on law enforcement agencies for the investigatory work; Toney’s office did not have an investigator of its own due to its size.

Of Filipa, the sheriff said, “I can’t blame him for going on CCAP; that’s normally a very up-to-date current good resource as well as available to everybody.”

Of Toney, he said, “He has relationships built with law enforcement throughout the county. Street-level police officers and deputies have his phone number; he says, Call me if you have questions. That’s exactly what happened here. Not every DA operates like that. Toney does in-service for our officers, trains the police officers and deputies. It could have gone the other way (and not been charged at all) if Toney was not so accessible.” He said that Toney “went above and beyond” to make sure the case was prosecuted.

There Are Significant Differences Between the Houston & Darrell Brooks Cases That the Media Are Ignoring; Furthermore, Prosecutors Don’t Set Bail

The media are desperately trying to draw parallels to the scrutiny of Milwaukee County District Attorney John Chisholm for his prosecutor’s $1,000 bail request in the Darrell Brooks case. Brooks is the Waukesha parade attack suspect.

But there are key differences. As noted, Toney’s office never asked for $500 bail in the Houston case and objected to the defense motion. Chisholm’s prosecutor asked for the granted $1,000 bail amount.

Lost in all of this: Prosecutors don’t set bail; they make recommendations to judges or court commissioners, who set bail.

We tried to make this point during the Chisholm bail controversy, writing a story that “named names” and included the court commissioners and judge who ultimate made decisions that allowed Brooks to remain on the streets.

Who is Gary Sharpe, the judge who set Houston’s bail at $500? He was a lawyer in private practice before being elected judge in Fond du Lac County. In 2020, he announced that he was stepping down.