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Man acquitted after cop cites lapsed memory

PORT WASHINGTON, Wis. (AP) — A Mequon man has been acquitted of drunken driving because the officer who arrested him more than eight years ago acknowledged he no longer remembers key details of the case.

While police witnesses frequently refresh their memories by referring to their reports, Ozaukee County Judge Neal Nettesheim concluded that Thiensville police Officer Chad Wucherer testified by giving a recitation of his report, the Milwaukee Journal Sentinel reported. Allowing the officer’s testimony would have prevented the defense from confronting a witness because a report can’t be cross-examined, Nettesheim said.

Wucherer arrested Richard M. Fischer in 2005. Fischer was convicted but had the conviction overturned on appeal. He was tried again but the second trial ended in a mistrial, resulting in a third trial that got underway last month.

During the latest trial, Wucherer testified about details of the traffic stop he conducted eight years earlier.

Nettesheim asked the officer whether he could have testified from memory without using notes. Wucherer acknowledged that his actual recollection was “very limited” and that he couldn’t have testified without the report.

The judge thanked him for his honesty and concluded that allowing his testimony would be unfair. So he granted the defense’s motion for acquittal.

The prosecutor, Adam Gerol, objected to the defense’s motion to strike the officer’s testimony. He argued it would set a challenging precedent in prosecuting other old cases.

“If this record standing alone says (Wucherer’s memory) can’t be adequately refreshed, then very few cases that are this old or older could ever be,” Gerol said, according to a transcript of the trial.

But James Shellow, one of Fischer’s attorneys, said he was pleased with the result and the way it was reached. He also said that in practicing law for more than 50 years of practice, he’d never heard of an officer testifying that he had virtually no recollection of an arrest.

Fischer, now 70, was originally convicted of the charge in his first trial, but the conviction was eventually tossed in 2010 when a federal magistrate agreed that Fischer’s rights were violated when he couldn’t present an expert at his trial.

He was tried again last year, but the judge declared a mistrial after Wucherer mistakenly mentioned that the charge was a second offense. That led to his third trial Aug. 21.

Information from: Milwaukee Journal Sentinel, http://www.jsonline.com

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