Editor’s note: Just a note before we get started, this episode contains some descriptions of violence and strong language.
PHOEBE PETROVIC: So to loop back to Mark Price, how did you first learn about him and get involved in his case?
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SHEILA BERRY: Well, you know, I was very active in helping get him convicted.
This is Sheila Berry.
SHEILA BERRY: Last name is Berry, like the fruit.
Back in the ’80s and ’90s, Berry was the director of victim assistance in Outagamie and later Winnebago counties.
SHEILA BERRY: I originated use, the use of victim impact statements in Wisconsin. I am old.
Survivors and loved ones give victim impact statements at sentencing to describe the toll of a crime.
In 1991, Berry worked on a case against a man named Mark Price. He was sentenced to life in prison for murder.
SHEILA BERRY: I thought he really did it.
But some years later, Price told Berry his side of the story. And she started to have doubts.
SHEILA BERRY: He’s one of the most painfully honest people I’ve ever encountered. Kind of crude around the edges, but he doesn’t make stuff up. And when he tells a story, he tells it the same way every time because he tells the truth.
By this time, Berry had lost her job after accusing Joe Paulus of misconduct. He’s the former Winnebago County district attorney that we met in the last episode.
SHEILA BERRY: Nobody believed me. For years, everyone thought he was wonderful.
Berry left Wisconsin. She became a true crime author. And she started a nonprofit called Truth in Justice —
SHEILA BERRY: Concerned with the wrongful conviction of innocent people and the factors that contribute to it.
And one day, Sheila Berry received a letter from Mark Price.
SHEILA BERRY: Going on page after page about how his rights had been violated, and I wrote back and I said, ‘I don’t want to hear about your rights being violated. I just want to know what really happened.’
Price said Joe Paulus had falsely prosecuted him for murder.
SHEILA BERRY: And I’d had enough experiences by then with Joe Paulus to recognize what he had pulled off. Oh my God, what have I done?
From Wisconsin Watch and Wisconsin Public Radio, I’m Phoebe Petrovic, and this is Open and Shut.
MIKE BALSKUS: It seemed like a pretty much, open shut case.
KATE O’BRIEN: I mean, this was open and shut.
JERRY BURKE: Nobody would have had to lie. It was an open and shut case.
PHOEBE PETROVIC: Can I just have you introduce yourself? ‘Cause I haven’t had you do that.
MIKE BALSKUS: Sure, my name is Mike Balskus.
You might remember that name from the last episode. Balskus is a former prosecutor. These days he’s mostly retired, but does a bit of defense work. And his most important job is playing Santa for his grandchildren. When he grows his beard out, he’s the spitting image.
But Balskus was a prosecutor for a long time.
MIKE BALSKUS: Uh, 38 years. 38 plus.
In 2003, Balskus joined the Winnebago County DA’s office.
Just months earlier, Joe Paulus had lost his re-election bid. By then, the FBI was investigating Paulus for taking bribes, and Balskus started to look into other cases that Paulus had prosecuted.
MIKE BALSKUS: If a guy’s taking bribes, you gotta wonder about what’s he going to do to get convictions?
So Balskus started talking to Fox Valley defense attorneys.
MIKE BALSKUS: And asking them, ‘Okay if there’s any cases that you know of that are strange, let us know,’ and we started compiling a list.
And eventually, he heard about a big one.
MARK PRICE: Well is this — which case are we going with? The drug case or the murder case?
That’s Mark Price.
When Balskus started looking into Price’s convictions, he found problems in one of them — the drug case. But to really understand what happened, we first have to tell you about the murder.
It was one of Wisconsin’s first no-body homicide convictions. One of those cases Balskus says Joe Paulus loved because they made grabby headlines.
When I first heard the term “no-body homicide,” I figured police couldn’t find the body.
But that’s not actually what happened.
The murder occurred in December of 1989.
MIKE BALSKUS: Individuals shot a person uh because of a drug debt, put him under the ice. Later, under one of the bridges, uh this is a couple months later, a body shows up.
But no one flagged it as a homicide.
MIKE BALSKUS: They think it’s somebody who had jumped into the Fox River, um, a couple weeks before.
A local funeral home received the body. And this is where things really went wrong. I talked to the coroner, and he told me, he meant to request an autopsy. But due to the quote “scrambles throughout the days,” the body was cremated before that could happen. The coroner told me this was a horrible mistake, and it cost him his job.
MIKE BALSKUS: Well, in the bars there was talk about, ‘Hey, here’s this guy, you know, he got killed because of a drug debt.’ So now, you’ve got a murder case without a body.
The man who was murdered was Michael Fitzgibbon.
MIKE BALSKUS: There were three individuals involved in the homicide. There’s Crawford. There was Price, and there was Pease.
Todd Crawford, Mark Price and Richard Pease.
Price admits he was involved. The night of Fitzgibbon’s murder, Price said he was at a friend’s apartment, when they got into a “scuffle.”
MARK PRICE: And then I had pulled the gun out that I had on me, and I shot it into the wall about two, two and a half feet off to the left of him. Wasn’t at his head, wasn’t above his head, wasn’t even near him.
Price claims they went back to hanging out and getting high. Later that night, the four men — Crawford, Price, Pease and Fitzgibbon — left the apartment.
They ended up at Lake Butte des Morts and drove out on the ice.
MARK PRICE: And I thought, because it’s like 1 o’clock in the morning, that we’re gonna, um, you know, go out there to get high or whatever.
Price says the other men got out of the car, and he stayed behind to drink his beer. When he got out to join them —
MARK PRICE: When I just seen the — heard the shots. Richie shot twice. And then, he cut a hole in the ice, and I helped them put the body in it.
Crawford told police that Price and Pease forced him to participate. He cooperated with district attorney Joe Paulus’ investigation. Price did not.
MARK PRICE: And Paulus, we’re in this little room, and he’s sitting across from me and my attorney sitting next to me and I’m explaining stuff to them. I said, ‘You know, I’m willing to plead out that I did help hide the body and stuff like that. I’m willing to plead out to this stuff, and you know, but I didn’t, I didn’t do this.’ And he goes, ‘Oh, I know you didn’t do it, but if you don’t want to play ball with us, I’m going to put you away right along with Richie.’
Richie – is Richard Pease. He’s the guy who Price says first pulled the trigger. Pease was convicted and sentenced to prison for life.
In Price’s trial, the jury heard a very different story than the one Price told me.
MARK PRICE: Basically, I tortured the guy. I beat him up. I punched him in the face over 200 times. I tied him in a chair. I shot a gun right above his head. I, I threatened, you know, you name it. I did all kinds of stuff.
Price was sentenced to life in prison. Crawford was never prosecuted for the murder.
And that brings us to the case where Mike Balskus found “problems.” The drug case.
MIKE BALSKUS: Well what happened is that Mark Price, he would make veiled threats at Joe Paulus.
Price would send Paulus “mail.”
MIKE BALSKUS: Sends him ‘asshole of the year’ award to Joe Paulus from prison. Uh, Joe basically returns by saying things like, ‘Oh, I hope you’re enjoying yourself.’ Things of that nature.
But some of it was darker.
MIKE BALSKUS: Mark Price would send letters saying, ‘I’m going to kill you when I get out. I’m going to have sex with you. I’m going to do this. I’m going to —’ You know, just rantings and ravings.
Looking back, Balskus believes it all began with an election.
MIKE BALSKUS: You have this election coming up.
It’s August of 1994. Joe Paulus is running for reelection as DA of Winnebago County.
MIKE BALSKUS: He’s got to get some publicity.
Vince Biskupic is Paulus’ deputy. And he’s running for DA in neighboring Outagamie County.
MIKE BALSKUS: They’re going to make sure that this looks really good for Joe and Joe’s on the news saying, ‘Well, you know, that’s just part of the job. You know, I get threatened all the time’ and blah, blah, blah, blah, and everything else.
And so they file a criminal complaint with the court alleging that Mark Price was plotting to hire a hitman to kill Joe Paulus.
As Paulus’ deputy, Biskupic handled the case.
MIKE BALSKUS: The victim is his boss. Is there a conflict of interest? Yes. Is there an appearance of impropriety? Oh yeah.
Biskupic alleged that Price was selling marijuana in prison to pay for a hitman to murder Paulus. And as evidence of the crime, he relied on a witness — a jailhouse informant.
We’re gonna get back to that witness in a bit. But first, let’s be super clear about something. Price was selling pot.
MARK PRICE: You know, I understand that it, it sounds bad. You know, I’m in prison, I’m selling drugs, and they twist it and oh, now I’m selling drugs to raise money to kill him.
Price knows it sounds really bad.
MARK PRICE: I hate the guy, you know, for what he did to me. And I told everybody I’d like to kill him. There’s a difference between making a statement and having an actual plan.
Biskupic levied three felony charges against Price.
Remember in episode 1? When we talked about how the vast majority of cases are resolved by pleas? That’s what happened here, too. Price was worried that he couldn’t prove the jailhouse informant was lying, and he was worried about getting a longer sentence if he went to trial.
So his attorney worked out a deal. Biskupic dropped one of the charges and reduced another in exchange for a no contest plea.
These charges added 14 years to Price’s sentence. That might seem negligible to you. He was technically serving a life term. But for Price, it pushed back the date at which he’d be eligible for parole.
We’ll be right back after a quick break.
To understand the problems in Mark Price’s drug case, we’ve gotta take a little detour. To talk about criminal procedure.
ION MEYN: You hear the word ‘procedure,’ and most people just want to run away, and I get that.
That’s University of Wisconsin assistant law professor Ion Meyn.
Meyn’s research has largely focused on “discovery.”
Discovery is one of the most important aspects of criminal procedure. It governs the exchange of information between the prosecution and the defense.
If you’re facing criminal charges, you don’t actually have the power to demand all the information about your case. There are rules about what a prosecutor has to turn over and what a prosecutor can hold back.
But it wasn’t always this way.
Before the 1940s, there weren’t a lot of guidelines for the types of information attorneys needed to exchange. So they’d often have to contend with surprise witnesses or documents.
ION MEYN: For a long time, in both the criminal and civil system, we have been going to trial blind.
But on the eve of World War II, there was a push to modernize the system. And the U.S. Supreme Court decided to tackle civil rules first. So they appointed a committee.
ION MEYN: And they really thought deeply about it: like, what is a fair process?
The reformers created a new federal standard. And it was a big change.
ION MEYN: Let’s exchange all this information. Interrogate information. Excavate all relevant facts and documents and talk to everyone who has information about this dispute before trial.
Meyn says that a lot of policymakers and scholars liked the new civil rules. And when the committee — which didn’t include a single criminal defense attorney — convened to tackle criminal procedure, reformers just suggested they use the rules already written for civil court.
And that’s what they did — in their first draft.
ION MEYN: So for a moment in time, a different world was proposed. Both parties, including the defendant, would have the power to demand information relevant to that person’s case before trial.
But that first draft didn’t last long. And Meyn thinks he knows why:
ION MEYN: It has escaped notice that this reform occurred during Jim Crow.
Meyn believes the roots of American prosecutors’ power to control discovery trace back to white supremacy.
ION MEYN: There are comments that were published by the committee, from federal judges, from bar associations, talking about how almost all defendants were Black — that it would be absolutely inappropriate to give Black defendants a voice.
Meyn says, defendants in civil court — which was a mostly white world — got to demand information from their accusers. Defendants in criminal cases — who were disproportionately Black — did not.
The new federal criminal rules put one person in charge of the flow of information: the prosecutor.
ION MEYN: If you only have the person who has a vested interest in winning and convicting the case, and you leave the discretion to that individual to credit the evidence, you’re going to get a very, very poor assessment of what this case is about.
But in 1963, the rules changed. It started with a guy named John Brady.
Brady and a co-defendant had been convicted of first-degree murder. Both men were sentenced to death.
After his trial, Brady discovered that his co-defendant had confessed to being the sole murderer. The prosecutors knew that — and had withheld it. The Supreme Court decided this concealment violated Brady’s rights to due process.
Here’s American University law professor Angela Jordan Davis.
ANGELA DAVIS: So in Brady versus Maryland, the United States Supreme Court held that prosecutors have a constitutional duty to turn over all exculpatory information to the defense.
‘Exculpatory,’ that is:
ANGELA DAVIS: Any information that would tend to show that the defendant is not guilty.
This Supreme Court case established what’s known as the “Brady rule.” It requires prosecutors to turn over exculpatory information to the defense.
But, it has some problems.
Prosecutors only have to turn over exculpatory evidence that is also “material” — which means, it would likely change the outcome of the trial.
And also —
ANGELA DAVIS: The timing is the key. ‘In a timely fashion’ is what the Supreme Court says. Well, what does that mean? The prosecutor thinks a timely fashion is like right before the jury’s sworn. I, as a defense attorney, I think timely means as soon as you get it.
Some states specify exactly when prosecutors have to turn over Brady evidence. But not Wisconsin.
And remember, the vast majority of cases never make it to trial.
ANGELA DAVIS: And so you have a lot of people pleading guilty when potentially, and in fact, we know, there’s oftentimes exculpatory information that is discovered later after the person’s convicted and serving time, and often times, many, many years later.
On the surface, Brady seems like a step forward for due process. But Brady requires the prosecutor to act ethically, rather than granting the defendant power to access information. One law professor I talked to said it creates a right without a remedy.
Of course, a defense attorney can try to investigate. But having the time and or money to conduct an investigation — that’s a luxury. And it’s one that many public defenders don’t have.
This is the system under which mass incarceration has boomed. And Black and brown people get disproportionately caught up in. But this system — which Meyn says was shaped by white supremacy — remains in place today. And harms every person who is a criminal defendant. Even white men like Mark Price.
So those “problems” Mike Balskus found in Mark Price’s case? They had to do with discovery.
MIKE BALSKUS: There’s this, if you want to call it, manufacturing evidence by omission.
Balskus found tape recordings that had never been shared with the defense.
ARCHIVAL – DARIN BEVERLY: What’s up man? Alright alright, that’s where y’all been, huh?
This is Darin Beverly. He was serving time for armed robbery. And according to the criminal complaint, he contacted authorities and told them about Price’s alleged plot.
MIKE BALSKUS: What happened was this Beverly came and said, ‘Hey, I’ll talk to Mark Price. I’ll get him to admit that he’s going to hire a hit man.’ So they wire Beverly up.
Turns out, you don’t get the best sound quality when recording inside a prison metal shop.
MIKE BALSKUS: First of all, they talked about one of them getting a colonoscopy.
ARCHIVAL – DARIN BEVERLY: They gotta check me for, uh, colon cancer. Not colon cancer, but a colon enlargement.
ARCHIVAL – MARK PRICE: Yeah. Did they do that?
MIKE BALSKUS: They spent most of the time talking about that, which it’s like, okay, this is pretty exciting stuff.
ARCHIVAL – DARIN BEVERLY: About two years ago.
ARCHIVAL – MARK PRICE: That’s the best thing to do though, man, ‘cause that’s the leading cause…
MIKE BALSKUS: But then he says, ‘Hey, I’ve got a friend who will do a hit for you.’
ARCHIVAL – DARIN BEVERLY: This is why, that’s why I say, get the motherfucker at least to take care of this one off the top, man, because if the motherfucker keep doing that…
MIKE BALSKUS: Mark Price’s response is ‘Nah, that’s okay. I know that there’s another guy out there. And I think that guy’s going to do something when he gets out, and he’s about to get out, so I’m not going to do anything.’ Whoa! That was kept from the defense.
BYRON LICHSTEIN: They completely fail to confirm that this plot even exists.
This is Byron Lichstein. He was an attorney with the Wisconsin Innocence Project, and they took on Price’s defense.
BYRON LICHSTEIN: It’s a case that was sort of almost made up from the beginning.
And in case all that colonoscopy talk wasn’t enough Balskus found a second set of cassette tapes.
ARCHIVAL: [line rings]
ARCHIVAL – TERRY MANGUM: Hello?
ARCHIVAL – OFFICER WOODS: Hey, is this Terry?
ARCHIVAL – TERRY MANGUM: Yeah.
“Terry” is Terry Mangum, a woman Mark Price had known for several years, who occasionally helped him move drugs.
The sheriff’s department had set up a sting and caught Mangum selling pot to an undercover officer. But she wasn’t arrested. At least not yet.
BYRON LICHSTEIN: They had this undercover police officer talk to Mangum repeatedly on these recordings.
ARCHIVAL – OFFICER WOODS: There’s something else that came up. I went back down to, uh, down to talk to some friends and they said that somebody, your friends are looking for a, uh, very special kind of person. And I think I have somebody in mind. ARCHIVAL – TERRY MANGUM: Huh?
“A very special kind of person. And I think I have somebody in mind.”
BYRON LICHSTEIN: The, the officer kept trying to entice Mangum into confirming that ‘Yeah, there was this plot and Price is trying to set up this hitman.’
ARCHIVAL – TERRY MANGUM: Yeah, I mentioned that to him, and he had no idea what I was talking about.
ARCHIVAL – OFFICER WOODS: He had no idea what you were talking about?
ARCHIVAL – TERRY MANGUM: Umm-hmm. He thought that was pretty weird and all this and that, and then all that got me second guessing you…
BYRON LICHSTEIN: She repeatedly says Price didn’t know anything about it.
A couple months after the recordings were made, Terry Mangum was arrested for selling marijuana. But Biskupic let her go after she gave a statement implicating Price.
When I started looking into cases Vince Biskupic prosecuted, I noticed a pattern he seems to have followed in some of his high profile convictions. And failing to disclose discovery to the defense is part of that pattern.
And I’m not the first person to have noticed it.
Years ago, when my boss Dee Hall wrote a story about Mark Price’s case for the Wisconsin State Journal, a prominent criminal defense attorney told her – quote: “I’m familiar with Vince’s proclivities for withholding evidence — that’s fairly well-known up there… Paulus and Biskupic had the reputations as win-at-all-costs, the-ends-justify-the-means prosecutors.” End quote.
In 2006, the Wisconsin Innocence Project filed a motion to withdraw Price’s plea.
And the special prosecutor assigned to the case sided with Price, suggesting that Biskupic had committed a Brady violation by not telling the defense about those tapes.
Not only that, but Biskupic had offered Terry Mangum — the woman who helped Price move drugs — a plea bargain. As proposed, she would plead no contest to a marijuana delivery charge and continue to cooperate against Price. Biskupic shared that offer with Price. But what he didn’t share, was that he ultimately never charged Mangum at all. The special prosecutor said that giving Mangum so much consideration was exculpatory and could’ve undermined her credibility.
And there’s something else that Biskupic failed to disclose to Price’s attorney.
It’s about Darin Beverly — the jailhouse informant who recorded all that colonoscopy talk in the prison metal shop.
Testimony from jailhouse informants — sometimes called snitches — can be necessary. But it’s notoriously unreliable.
BYRON LICHSTEIN: And it’s obvious why that is. There’s, there’s people who are involved in the criminal justice system who want to get less time in their own cases.
And that’s what Beverly wanted.
BYRON LICHSTEIN: From the very beginning when he was in contact with investigators, he asked for a sentence reduction in his own case.
Beverly’s request was documented.
BYRON LICHSTEIN: Problem is that the prosecutor who prosecuted Mr. Price elicited testimony from Beverly under oath saying just the opposite.
In a secret John Doe hearing, Beverly lied and said he didn’t ask for or get promised any favors. But court documents show he had. And, by the way, after Beverly testified, Biskupic helped Beverly get five years off his sentence.
During a hearing, the special prosecutor argued Price should be allowed to withdraw his plea to avoid a quote “manifest injustice.”
And the judge agreed.
He vacated Price’s conviction for making threats against Paulus. But the judge kept the drug charge, which carried 9 years on top of the 33 years Price was already serving before he’d be eligible for parole.
Nine years was the maximum for the drug charge. And the original judge told Price he deserved this maximum sentence because he believed Price was selling the drugs to finance a murder.
MARK PRICE: You know, people act like it’s nothing. It’s, it’s almost a decade, you know, it’s nine years.
But even though the special prosecutor agreed that Vince Biskupic had withheld crucial evidence that pointed to Price’s innocence, as far as I can tell, he was never disciplined.
Not long ago, I got an unexpected call.
MARK PRICE: Hello.
PHOEBE PETROVIC: Hey Mark, how’s it going?
MARK PRICE: Oh, not bad. Actually, actually pretty good.
For the past few years, Price has been asking the court to make his drug sentence run concurrent with his murder sentence. Finally, at a hearing in late January 2022, a judge went a step further and knocked it down to one year concurrent. Which means he’ll be eligible for parole even sooner.
I was in court for the hearing. Price appeared by video because the omicron variant was surging. A television on the wall showed him in prison. He had a white goatee and wireframe glasses.
After she gave her ruling, the judge read some boilerplate about how if Price wasn’t happy with it, he could appeal. And Price interrupted her, to say, “I’m fine with the decision!”
Price called me after the hearing while I was on the road.
MARK PRICE: Oh, well, I’m very happy. It’s just getting a judge like her, you know, somebody who actually knows what the heck took place — and is willing to do the right thing. Can’t really beat that.
But one person, who was important to Mark Price’s story, wasn’t there to see it.
Over the last 25 years, Sheila Berry had been Price’s strongest, most consistent advocate. And also, his friend. She really grew to care about him. And even started imagining the day he’d be released from prison.
SHEILA BERRY: I was briefly home a couple of weeks ago.
Back home in Wisconsin — after decades of living away.
SHEILA BERRY: Yeah, it changed so much. And uh, and he’s — he’s one of the people I thought, ‘Geez, he won’t be able to find his way around either.’ I mentioned it to him, how dramatically it had changed.
PHOEBE PETROVIC: How did he react to that?
SHEILA BERRY: Oh, he’d be happy to just take a look at it anyway (laughs), I’m sure.
That was one of the last times I talked to Sheila Berry. She died in August 2021 after a long illness. I broke the news to Price soon after she died.
MARK PRICE: I was wondering. I haven’t heard from her since last Wednesday. So I didn’t know what had happened. And then I, I had just tried calling her this morning and, uh, charges were refused. Well, that’s never happened. She’s definitely going to be missed. She is one of my most staunchest advocates and we became pretty good friends. And I couldn’t really ask for anybody better.
Next time, a case Vince Biskupic prosecuted in Outagamie County. It’s the hardest story we’ve talked about so far — one that really made me think about fairness in the criminal legal system — and who deserves it.
JONATHAN LIEBZEIT: I was swinging the bat, again, and kind of hit him in the side of the head.
SARAH LIEBZEIT: And I knew that there was never any intention to kill Alex. They went to beat them up over silliness.
JONATHAN LIEBZEIT: Does that matter if people are good or bad, whether or not the United States government trampled people’s rights?
To hear the related podcast, go to Open and Shut (wpr.org/openandshut) or wherever you get your podcasts. The nonprofit Wisconsin Watch collaborates with WPR and other news media and the University of Wisconsin-Madison School of Journalism and Mass Communication. All works created, published, posted or disseminated by Wisconsin Watch do not necessarily reflect the views or opinions of UW-Madison or any of its affiliates. This story is a collaboration between Wisconsin Watch and WPR as part of the NEW News Lab, a consortium of six news outlets covering northeastern Wisconsin.
