KENOSHA COUNTY, Wis. — In the criminal justice system, wouldn’t it be nice for a defendant if he could choose who prosecutes him? In Wisconsin, that’s not how it works. The district attorney elected by the voters in the county where the alleged crime occurred is the one who prosecutes the case. That is the default rule. Under Wis. Stat. § 978.045, a judge may appoint a special prosecutor only in rare and exceptional circumstances. The statute uses “may,” not “shall,” and courts have repeatedly held that speculation or political dynamics are not enough to disqualify an elected district attorney.

That reality hit Trenton B. Kmiec today when Judge Heather Iverson denied his motion to remove Kenosha County District Attorney Xavier Solis from prosecuting his 62-count felony case.

Kenosha County Eye arrived late to the hearing today and caught just the tail end of Assistant State Public Defender Benjamin Schwarz’s argument, but heard all of Solis’s response and the judge’s full ruling from the bench. What was heard made one thing clear: Kmiec was not going to get a new prosecutor.

Schwarz’s Aug. 13 motion argued that Solis should be disqualified because Kenosha County Eye supported Solis during his campaign and has reported negatively on multiple members of the Kmiec family over the years. The motion suggested that the combination of campaign support and extensive coverage created an appearance of impropriety.

Kenosha County Eye has no stake or personal interest in the outcome of the case other than covering it.

Solis addressed the issue directly in court. He told Judge Iverson he does not have a personal relationship with Ted Kmiec. He stated he is not friends with Ted, unlike former District Attorney Michael Graveley, who previously acknowledged social interactions with him. Solis said his only relationship with Ted Kmiec is professional — prosecutor and defense attorney.

Ted Kmiec, a former Kenosha County court commissioner, former politician, and current attorney, was present in court and appeared visibly upset as the judge delivered her ruling. His mistress overdosed and died in his bed in a case that resulted in two arrests and extensive coverage. Several years later, a SWAT raid was conducted at the Salem Lakes home he shares with his son. During that raid, drugs and child pornography were recovered from the residence. Court records show that Ted Kmiec told investigators that the drugs were located in areas accessible only to him. Despite that admission, no charges were filed against him in connection with the raid.

Judge Iverson was methodical in denying the motion.

“The statute uses ‘may,’ not ‘shall,’” she said, explaining that appointment of a special prosecutor is discretionary, not automatic.

She further stated, “Appearance alone is not sufficient to warrant disqualification.”

Addressing the media argument directly, Iverson said media coverage — even if extensive or critical — does not equate to prosecutorial bias. Editorial advocacy is separate from prosecutorial decision-making, she said, and there was no evidence that Solis’s charging decisions were influenced by coverage.

Iverson emphasized that removing an elected district attorney is an extraordinary step and that the defense had not demonstrated an actual conflict of interest or improper exercise of discretion.

Two Kenosha defense attorneys told Kenosha County Eye they do not fault Schwarz for advocating aggressively for his client. However, both said they believe Judge Iverson made the correct call. They noted that had the motion been granted on these facts, it could have created a precedent that would make future cases uncomfortable for both sides — allowing campaign support or media coverage alone to trigger disqualification battles in routine prosecutions.

Judges, they said, generally uphold the will of the voters. Unless there is a direct financial stake, a personal entanglement, or some extraordinary conflict, the elected district attorney in the jurisdiction where the crime is alleged prosecutes the case.

There is also a strategic undertone. In prior matters, Kmiec has received what critics have described as white-glove treatment when cases were sent to Racine County. Removing Solis could have opened the door to another outside prosecutor.

That door is now closed.

The charges against Trenton B. Kmiec are extensive and severe. According to the criminal complaint, he faces dozens of felony counts including repeated physical abuse of a child, strangulation and suffocation, false imprisonment, multiple felony bail jumping allegations, manufacturing and delivering cocaine to a minor, child enticement, sexual exploitation of a child, production of child pornography, possession of child pornography, and other related offenses. Several of the most serious charges carry decades of potential imprisonment if convicted.

The 62-count case will now move forward in Kenosha County — prosecuted by the district attorney elected by its voters.