A Dane County jury deliberated for 90 minutes Wednesday before finding a state law enforcement agent not guilty of recklessly firing his gun at a suspect during an arrest operation two years ago on Madison’s Far East Side.
The verdict acquitted state Division of Criminal Investigation Special Agent Mark Wagner, 51, of Milwaukee, of second-degree reckless endangerment, a charge he faced for firing two shots at Quadren Wilson, 40, who had been boxed in between two DCI trucks as agents moved in to arrest him in February 2022 as part of a long-standing drug probe.
There were restrained smiles in the packed courtroom immediately after the verdict, and Wagner showed little immediate emotion. But as Wagner left the courtroom with his attorneys, Michael Steinle and Daniel Sanders, applause and cheers broke out in the corridor outside the courtroom, where supporters — including a phalanx of DCI agents — lined both sides and applauded and cheered as Wagner and his lawyers passed through them.
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They did not stop to speak to reporters.
Wilson, who is currently in the Dane County Jail on new drug-related charges, listened to the verdict on the phone. Members of his family who had attended most, if not all, of the trial were not present when the verdict was reached.
District Attorney Ismael Ozanne commented briefly after the verdict was read.
“The jury did their job,” he said. “They heard all the evidence. We knew this would be a difficult decision. This is what we have.”
Agents from DCI, along with members of other law enforcement agencies, converged on a vehicle Wilson was driving near the intersection of American Parkway and Eastpark Drive on Feb. 3, 2022, pinning the vehicle between two trucks in a turn lane.
Wilson tried to break free from the maneuver, called a “subject in custody” maneuver, sending up plumes of smoke from his tires, according to testimony at the trial.
Wagner, with a ballistics shield, led two other agents toward the vehicle, and Wagner shouted commands to Wilson to show his hands.
Wagner testified Tuesday that Wilson, in the driver’s seat, “squared” his shoulders toward Wagner, which Wagner believed was an indication Wilson had a gun. Wagner fired his 9mm handgun, which prompted fellow agent Nathan Peskie to fire his AR-15 rifle into Wilson’s car.
Wagner also said he thought he was struck by gunfire that knocked him backward.
Wilson was struck in the back by bullet fragments from Peskie’s rifle. Wagner’s shots did not hit Wilson. Peskie was not charged with a crime and testified Monday under an immunity agreement.
Jury instructions
At the end of the trial, jurors were to consider whether Wagner endangered the safety of others by criminally reckless conduct that risked injuring others. That risk had to be unreasonable and substantial, according to jury instructions, and Wagner had to be aware that what he did created an unreasonable and substantial risk of death or great bodily harm.
Jurors were also allowed to consider that, as a police officer, Wagner had the privilege to use deadly force if, while making an arrest, he believed the use of force was necessary and his belief was reasonable. Jurors could also consider whether Wagner acted in self-defense, and whether he believed he needed to use force to defend himself or others, and whether the belief was reasonable even if mistaken.
During closing arguments, Assistant District Attorney Matthew Moeser said Wagner acted unreasonably because he never saw Wilson with a gun.
“How did Mr. Wagner endanger Mr. Wilson’s safety? He fired a handgun at close range at Quadren Wilson twice despite the fact that Mr. Wagner never saw a gun or an object that looked like a gun,” Moeser said. He said Wilson “was finally complying and putting his hands up.”
Ozanne argued that although Wilson had been gunning the vehicle’s engine, sending it careening back and forth between DCI vehicles that were pinning it in place, there was testimony from a federal Drug Enforcement Agency agent in the lead vehicle that the shooting started only after there was a pause in the acceleration.
“There was a pause before shots rang out,” Ozanne said, and then the agent took cover in a vehicle.
“We can’t discount the fact that we have a witness, a credible witness, a law enforcement witness, who indicates there is a pause,” Ozanne said. “The screeching of the tires, there is a pause, before gunshots ring out.”
Closing arguments
Steinle, though, spent much of his closing argument attacking Wilson, telling the jury that Wilson’s testimony, that he was trying to comply with Wagner’s orders, was not to be believed. He highlighted Wilson’s criminal history, his lack of a work record or a driver’s license, and his history as a drug dealer.
“How many times in those 26 (convictions) did he look up at the judge and say, ‘I’m going to do better, I’m going to get a job to support my children? I’m not going to do this anymore,’” Steinle said. “He’s a con artist, ladies and gentlemen, he doesn’t like authority, he doesn’t like the black robe up there telling him, ‘When you get out of prison I want you to get a job where you get a paycheck and support those children.’ What did he do? He thumbed his nose.”
Steinle added later, “He’s just a bold-faced liar. You can’t believe him.”
He said the prosecution’s case against Wagner was all about the fact that Wilson did not have a gun, but that wasn’t enough to convict Wagner.
“I don’t care if there’s a gun,” he said, “it’s the belief that there’s a gun. How can Peskie say, ‘I saw the muzzle of a gun’ when there is no gun and he’s justified, and then Mark Wagner says ‘I believed he was coming up with a gun’ but he’s not justified? Peskie says he saw the muzzle of a gun, but that’s not true but that’s what he believed. So we’re giving him a pass but Mark has to suffer. That doesn’t make sense, ladies and gentlemen.”
The investigation, Steinle said, included an unenlightening re-creation of conditions on that day that would let investigators see what Wagner could see when he looked through Wilson’s heavily tinted windows. He also called an attempt to trace bullet trajectories a “clown show.”
But the case was not about Wilson but was about what Wagner did, prosecutors said. Ozanne told jurors that they didn’t have to like Wilson, “but the law must protect Mr. Wilson, because if the law doesn’t protect Mr. Wilson the law doesn’t protect any of us.”
Moeser said police officers are, and should be, protected by law for situations in which they have to use force that risks death or great bodily harm to avoid death or injury to others.
“But just like any privilege, it’s limited. It’s limited only to circumstances in which that’s reasonable and necessary,” he said. “They’re protected if their beliefs are mistaken, as long as they’re reasonable.”
Civil action still possible
Wilson’s attorney, Stephen Eisenberg, said he was not surprised by the verdict. But he said he will continue to look into a possible civil lawsuit, now that he is able to seek police reports and other materials that he couldn’t get before. Under Wisconsin’s open records law, records from pending criminal cases can be withheld. He said much of what he heard at Wagner’s trial he was hearing for the first time.
“I think that the entire decision making process by DCI to arrest Quadren in the manner in which they did with 30 police officers and tactical armor was a precursor to the entire disturbing police action,” Eisenberg said. The way they “played cowboy,” he said, and arrested someone who was wearing a GPS monitor, so they knew where he was at all times, “was absolutely horrendous and laid the foundation for what happened.”
“Quadren is not Pablo Escobar and he’s not Scarface,” Eisenberg said. “It was so unnecessary. DCI should at least be thankful they didn’t kill Quadren, though I think they don’t care that much.”