Tom Buske claims he needs $600,000 to defend himself against criminal charges that his trucking businesses stole millions from household product maker S.C. Johnson, and as the owners of S.C. Johnson see it he intends to spend their money on his defense.
On constitutional grounds Buske has asked Associate Judge Thomas Chapman to release that amount from escrow in his Madison County divorce proceeding.
S.C. Johnson's local lawyer, Thomas Keefe Jr., pleaded at a July 17 hearing that Buske shouldn't tap the escrow until he proves he has no money.
Keefe said that at one time it was represented that the escrow would pay a judgment S.C. Johnson won from Buske in civil court in Wisconsin.
Keefe said, "Since that time it has become the well from which everyone seems to draw when they are thirsty."
Buske's criminal lawyer, Michael Fitzgerald of Chicago, argued that if he disclosed his assets prosecutors could use the information against him at trial.
Buske faces federal criminal charges in Wisconsin.
Last year Wisconsin jurors awarded more than $200 million in damages to S.C. Johnson on a claim that Buske cheated the company.
Eight days after the verdict Buske's wife, Sara Buske, filed a divorce petition in Madison County.
S.C. Johnson intervened and challenged the proceedings as a sham to remove Tom Buske's assets beyond the company's reach.
Chapman's hearing introduced him to a novel case that previously belonged to Associate Judge Duane Bailey.
Chief Judge Ann Callis reassigned Bailey from family court to juvenile court on July 1, after Fifth District appeals judges reversed his first big ruling on the divorce.
In front of Chapman six lawyers appeared for Tom Buske, three for S.C. Johnson, three for Sara Buske, and one for the minor children of the Buskes.
Fitzgerald said, "The federal court in Milwaukee issued an order based on the federal constitution that Mr. Buske can use these escrowed funds to retain me to defend him."
"No state can countermand an order issued by a federal court implementing the Constitution of the United States," he said.
He said the order reflected the belief of the prosecutor and the judge that the Sixth Amendment right to retain counsel of choice supersedes other interests.
Chapman said, "That argument, though, presupposes that not allowing him access to the money jeopardizes his Sixth Amendment rights."
"Maybe he has got a whole bunch of other cash that he could lay his hands on," Chapman said. "I don't know.
"How do I discern whether you are right in arguing that if he doesn't get this money he doesn't have the right to counsel?"
Fitzgerald said, "I am not going to let Mr. Buske be in a position where he is forced to waive his Fifth Amendment rights to vitiate his Sixth Amendment rights."
"S.C. Johnson has been trying to get him to do this for four years," Fitzgerald said.
Chapman asked, "What was six hundred, just the round figure you came up with on either the best day or the worst day?"
Fitzgerald said, "Worst case scenario for two federal indictments in two jurisdictions with two trials."
Keefe said, "Did they answer where the other money is?"
He said the order didn't say that Chapman must release $600,000.
He said it merely stated that the escrow is not subject to forfeiture.
"He has had plenty of money to spend during the pendency of this divorce," Keefe said.
For Sara Buske, Tom Feldman said, "Mr. Buske doesn't have any that I am aware of, any other sources of income to come up with anywhere near that kind of money."
Chapman asked Fitzgerald if he would ever allow them to see his financials.
"I can't take that chance, judge," Fitzgerald said.
"They would be in Racine County circuit court the next day with a motion to Judge Marik asking him to compel Mr. Buske's deposition because he waived his Fifth Amendment rights."
He said it would be directly admissible in his criminal prosecution.
Keefe said Buske gets $20,000 a month salary and substantial income in excess of that.
Fitzgerald said, "Mr. Buske, without being found in contempt of court, does not have access to funds."
Chapman asked Tom's divorce lawyer, Vickie Cochran, why the federal court didn't say they were entitled to $600,000.
Cochran said, "My sense is that the federal court doesn't want to order this court to release the money."
Fitzgerald said, "The prosecutor said the fee request is reasonable."
Chapman said, "It does seem a little arbitrary. You guys sat around the office one day and came up with six hundred."
Fitzgerald said, "No we did not sit around the office and come up with six hundred."
Chapman said, "Doesn't it kind of have that flavor to it?"
Fitzgerald said, "I can see why it would to you. I have been doing this for 25 years."
Keefe said, "Who represents poor people when they get charged with really serious crimes?"
"Is Mr. Buske a poor guy?" Keefe asked.
He said the Seventh Circuit held that parties may spend their resources as they please to retain counsel.
"They underline the word, their," he said.
Keefe quoted: "Just as a bank robber cannot use the loot to wage the best defense money can buy, so a swindler in securities markets cannot use the victims' assets to hire counsel who will help him retain the gleanings of crime."
"If everybody thinks this guy doesn't have any dough, he sure has got a lot of lawyers surrounding him every time we come to court," Keefe said.
Chapman asked Fitzgerald, "Can you say that everything that he has got to pay you is either frozen or subject to levy or otherwise has got a rock on it from some court?"
Fitzgerald said, "I am not aware of any ability that Mr. Buske has to retain me with assets that belong to him under the terms of my retainer agreement that I have quoted without violating the court order."
"I wouldn't be here doing this and going through all this if I thought Mr. Buske had the ability to do this," Fitzgerald said.
"If the government believed that he had other assets available to him to satisfy his right to counsel of choice, I don't think the government would have agreed to this."
Keefe said, "Never answered your question."
"You asked him whether or not he could make representation to you in open court that there are no other funds available," Keefe said.
"Mr. Fitzgerald very artfully said that, I am not aware of whether or not Mr. Buske has any assets."
Chapman asked if a representation as to the availability of other assets constituted a Fifth Amendment question.
Fitzgerald said any disclosure would create an argument that he waived the Fifth Amendment.
Chapman asked if S.C. Johnson could waive the argument, and Fitzgerald said they would need to do it under oath in front of the federal judge.
Chapman asked Keefe if he would be willing to do it.
Keefe said, "I don't know. I'm a hired gun. I don't talk to S. C. Johnson."
Chapman asked S.C. Johnson lawyer Michael Foster what he thought.
Foster said he would want to confer with his client.
Fitzgerald said he would have to confer with Buske and the prosecutor.
Chapman said, "Anything else today? Thank you."