A Duluth man convicted of firebombing of the home of Douglas County District Attorney Dan Blank will not get a new trial.
Douglas County Circuit Court Judge George Glonek denied a motion Nov. 30 for a new trial.
Harlan M. Schwartz, 33, asked for a new trial based on the ineffectiveness his attorney.
The new motion, filed in September, stated that Schwartz's attorney, Earl P. Gray, failed to conduct a reasonable investigation and did not put witnesses on the stand to testify to Schwartz's good character -- in particular, to testify that Schwartz would not have firebombed the district attorney's home for money.
Blank's home was firebombed in the early morning hours in Feb. 2, 2000. Blank, his wife and daughter were awakened by a noise around 4:35 a.m. and found their living room on fire. They escaped without injury.
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At the time, the prosecutor was preparing for a murder trial involving a known gang member, Alejandro Rivera. Blank had prosecuted the cases of two other members of the Imperial Gangsters, charged in the shooting death of Carl Peterson, the father of one of the members. The letters "I G" had been spray painted on Blank's garage at the time of the firebombing.
Rivera orchestrated the firebombing, allegedly offering to pay Schwartz and another man $250,000 to burn Blank's home.
Neither Schwartz nor the co-defendant, William Teas, denied involvement in the arson of Blank's home during the trial. Instead, Schwartz indicated he took part in the scheme because Teas and incarcerated gang leader Alejandro Rivera threatened to kill his family if he didn't.
A jury found Schwartz guilty of two counts of being party to the crime of arson and one charge of being party to the crime of possessing a firebomb on Sept. 15, 2000, for firebombing Blank's home. He was sentenced by Judge Joseph A. McDonald, now deceased, to 50 years imprisonment -- 35 years initial confinement and 15 years extended supervision -- on the arson charge. He was also given a consecutive five-year prison sentence -- two years initial confinement and three years extended supervision on the firebomb charge.
Schwartz received a concurrent sentence of 20 years in prison for burning Blank's garage in a separate incident.
Glonek wrote in his decision that the testimony would not have been admissable. In fact, the judge stated, the testimony could have been prejudicial. He also noted that basing a defense on coercion does not cover a case where the defendant could have notified the police of the threats or fled from the threatened harm.
The motion also stated that Gray did not interview Rivera or call him to be a witness at the time of trial. Now that he has been sentenced to life in prison, it indicated, Rivera could be interviewed.
"The fact that Mr. Rivera may no longer assert his Fifth Amendment right (as he intended to do if called as a witness at trial) does not constitute newly discovered evidence necessitating a new trial ..." Glonek wrote in the memorandum. "Furthermore, there is no information in the record as to why Defendant has waited nearly two years to make this request."
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Glonek did agree to amend the court papers to accurately reflect the sentence and number of days served at the time the ruling was given.
This is not Schwartz's first attempt to get a new trial.
In 2000, Schwartz made a similar request on the grounds of prosecutorial misconduct and challenged the sentence based on an allegedly biased presentence investigation. He accused Doug Haag, a state assistant attorney general prosecuting the case, of prosecutorial misconduct during his closing and rebuttal arguments in the September trial. Gray made the motion that accused Haag of basing his arguments on comments intended to "inflame and strike fear in jurors" rather than on evidence.
That motion was denied by McDonald and the state Court of Appeals. The Wisconsin Supreme Court denied review of the case in 2002.
