Wis. court: Judge wrongly tossed sex assault case (UPDATE)

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By TODD RICHMOND
Associated Press

MADISON, Wis. (AP) – A judge wrongly dismissed a sexual assault case marred by sloppy police work, a Wisconsin appeals court ruled Thursday.

Waupaca County Circuit Judge Philip M. Kirk threw out the case against Thomas McEssey of Madison last year after a sheriff’s deputy deleted a recording of a telephone discussion between McEssey and his alleged victim and then discovered a partial recording of the conversation in his garage before the trial. But the 4th District Court of Appeals ruled McEssey failed to show his statements would have cleared him or that police acted in bad faith.

The ruling means McEssey, 25, again faces one count of third-degree sexual assault, one count of second-degree sexual assault of an unconscious victim and one misdemeanor count of disorderly conduct. He could get up to 50 years in prison and $125,000 in fines if he’s convicted on the assault charges.

His attorney, listed in online court records as Chad Lanning, didn’t immediately return telephone messages. Steven Means, executive assistant at the state Justice Department, which handles felony appeals, issued a statement saying the agency was pleased.

Prosecutors charged McEssey in 2008 after his adult cousin told police McEssey sexually assaulted him while he was sleeping in a cabin following a graduation party. McEssey told police during an interview he thought his cousin was a different man he’d had sex with in the past, according to court records.

Waupaca County Sheriff’s Deputy Michael Richter testified at a hearing he had the alleged victim call McEssey from the sheriff’s office and he recorded the conversation.

He testified he remembered McEssey at first denying the assault, then making remarks to the effect of “Yes, I did that,” that he mistook his cousin for someone else and was sorry, although he didn’t say specifically what he was sorry about. The deputy deleted the recording, though, as he was trying to download it onto a compact disc.

About a week before McEssey’s trial was set to start, prosecutors revealed Richter had found a disc containing the victim’s side of the conversation in his garage.

McEssey asked the judge to dismiss the case, contending police were acting in bad faith. Kirk ruled last October that Richter’s behavior wasn’t intentional but he still threw the charges out, saying McEssey couldn’t get a fair trial because of the “ridiculous failure” to preserve the evidence.

The appeals court found, however, that McEssey’s remarks were ambiguous and he didn’t show how they would have played a significant role in establishing his innocence. The judge said the police weren’t out to hide any evidence and McEssey failed to show any reason to disturb that finding, the court added.

“While McEssey … is highly critical of various aspects of police conduct in this case, including late rediscovery of the audio-video recording, he does not develop an argument that his due process rights were violated in any manner,” the court said.