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Negligence By District Attorney's Office May Cause Dismissal Of Shaken Baby Case

Wisconsin child abuse case involving Caroline D. Prieto may be dismissed due to negligence by district attorney's office.

The District II Court of Appeals Tuesday upheld Circuit Judge Chad Kerkman’s decision to exclude all but one witness the district attorney had intended to testify at Caroline D. Prieto’s child abuse trial.

Kerkman originally ruled against the prosecution because the district attorney’s office ignored orders to disclose its witness list for 2½ years, revealing them just 14 days before trial.

The attorney general’s office admitted in an appeals brief that there would not be enough evidence to bring the case to trial with just one admitted expert witness.

“This sanction amounts to a dismissal with prejudice. ... The court will have to dismiss based on insufficient evidence,” Assistant Attorney General Marguerite Moeller wrote.

District Attorney Bob Zapf agreed, saying the case was “not looking too good for (the prosecution) right now … as the court could make us try it without only our expert witness.”

Anne Schwartz, a spokeswoman for the attorney general’s office, said the decision is being reviewed.

Prieto, 43, was charged in May 2012 with child abuse after allegedly shaking 8-month-old Caleb Berry while she was caring for him, causing massive head trauma and leaving the now 3-year-old boy unable to walk or speak.

Prieto’s attorney promptly requested a list of all witnesses the state intended to call at trial, which the district attorney’s office ignored.

On Dec. 4, 2013, Circuit Court Judge Anthony Milisauskas gave the district attorney 60 days to provide the witness list and scheduled trial for June 23, 2014.

The district attorney ignored the court’s order, and in August 2014, the court gave the district attorney 20 days to furnish the names and rescheduled the trial for Feb. 9, 2015.

On Jan. 23, 2015, the district attorney filed the witness list.

However, Kerkman granted Prieto’s motion to exclude any state witnesses not already named as the district attorney’s office offered no “good cause” for failing to disclose them during the past two years.

That left the district attorney with one expert witness known to the defense, and the trial was stayed pending an appeal of Kerkman’s ruling.

On appeal, the state acknowledged that the district attorney’s office lacked good cause for not providing the list but argued that naming the witnesses two weeks before trial was “within a reasonable time.”

The state also contended that Kerkman abused his discretion in sanctioning the prosecution, saying defense attorneys did not show how withholding the list prejudiced them.

The district attorney did not willfully ignore the court order, the state argued, saying the requests fell through the cracks when Assistant District Attorney Emily Trigg went on maternity leave.

When she returned, the list was filed.

While the district attorney’s office was negligent, it was not willful or deliberate in excluding the list, the state argued.

While the court’s orders should have been followed, Zapf said the case was complicated by it being rotated between Milisauskas and Kerkman and Trigg’s leave.

“Sometimes prosecutors get lulled to sleep by the volume of cases. That’s not an excuse, and prosecutors across the state will take notice that there can be extreme measures taken when they don’t follow orders,” Zapf said.

In a brief, Prieto’s appeals attorney, Eric Schulenburg, wrote that district attorneys are short staffed and have heavy workloads but a defendant’s “life and liberty are at stake” at trial and they have a constitutional right to the information prosecutors possess.

The District III Court agreed, finding that the district attorney ignored two court orders to furnish its witness list.

If the district attorney did not agree with the court orders it should have shown why they were unreasonable, according to the opinion.

Instead, the district attorney ignored the court orders at his peril, according to the opinion

“We share the circuit court’s regret that the actions of the district attorney may prevent the merits of this case from being fully tried,” Judge Paul Reilly wrote in the eight-page opinion.

Originally posted by Kevin Murphy on

Negligence By District Attorney's Office - Attorney Negligence Representation - Ball & Bonholtzer Trial Attorney - Los Angeles


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