ANALYSIS: Prosecutorial misconduct trips up Kenosha County shaken baby case

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When a Kenosha County Assistant District Attorney turned a witness list in a “shaken baby” case over to the defense 13 days before going to trial, attorneys for the defendant cried foul.

The state had already missed two court scheduling-order deadlines, and the original request for witnesses had been made almost three years earlier. Now, defense counsel was seeing the formal witness list just a few weeks before opening arguments.

In a recent case — State of Wisconsin v. Caroline D. Prieto, 2015 279 CR — the District 2 Appeals Court found that defense counsel had good reason to object, and could find no justification for the state’s taking nearly three years to provide a witness list.

After the local assistant district attorney, Emily Trigg, had repeatedly ignored court scheduling orders calling on her to turn over the witness list and addresses, the appellate court ruled it was within the court’s discretion under Wis. Stat. 971.23(1)(d)(2013-14) to exclude 12 of her 13 witnesses.

The decision came almost three years after the defendant in the case, Caroline D. Prieto, had been charged with causing great bodily harm to her 8-month-old child: “Caleb B”.

The “shaken baby” syndrome case against Prieto alleged that she had recklessly caused “Caleb B” to suffer a seizure and other injuries while in her care. Medical staff indicated that Caleb B. had suffered a brain injury of the sort often seen in cases of abusive head trauma and that the small child had become unresponsive to treatment as a result.

Not long after Prieto had been charged, her attorney demanded certain information from the state, in part asking the Kenosha County state’s attorney’s office to provide a list of its intended trial witnesses and contact addresses. Two intermediate court scheduling orders had attempted in vain to require the state to turn over the list.

With just three weeks left to trial, the defense filed a motion to exclude the state’s witnesses. Still, no witness list came from the state.

The next day, the state submitted a list of 13 witnesses to the court, including one previously disclosed doctor, and asked the court to reconsider its order excluding all witnesses.

The court denied the state’s motion, but Kenosha County Judge Chad Kerkman agreed to delay the start of trial to allow the appellate court to review his decision.

On appeal, the state admitted the district attorney’s office had dropped the ball and failed to turn over the witness list. Trigg had taken maternity leave from Oct. 27, 2014 to Jan. 12, 2015, according to the state, and nobody in her office had stepped up to prepare the necessary witness list.

Yet, even with that oversight, the state argued that Judge Kerkman had abused the discretion afforded him by Wis. Stat. 971.23(7m). Although the statute contains the word “shall,” nothing actually required the court to exclude witnesses. Instead, it left open other discretionary options, including advising the jury of the state’s oversight and giving the defense more time to prepare.

Instead, the state contended that the court’s decision to exclude witnesses failed to consider whether the 13-day period of disclosure was reasonable, and if the defense had shown any prejudice to its case by the delay. All the witnesses excluded by the court were either disclosed during discovery or already on the defense’s witness list.

The appellate court was not swayed by the state’s arguments, saying that the state had repeatedly ignored the court’s several scheduling orders “at its peril.”

The appellate court found that the entire question of whether 13 days was a “reasonable period of time” was missing the point and was not dealing with the time period that was actually of importance. When the state twice failed to provide the witness list within or soon after the scheduling-order deadlines, it was then that a “reasonable” basis for delay should have been shown. And the state provided nothing.

Carefully reviewing Judge Kerkman’s original decision to exclude evidence and denial of the motion to reconsider, the appellate court found that the lower court had later given the state every chance to prove there was “good cause shown” for the delay. Yet the required justification was never supplied.

Wis. Stat. 971.23(7m) clearly provided the circuit court with several options. By choosing to exclude the witnesses, Judge Kerkman had not acted beyond the scope allowed him by his judicial discretion, according to the appellate court.

The appellate court also responded unfavorably to the state’s suggestion that excluding the witness testimony would really just be punishing a “blameless public” for the misconduct of the prosecutor’s offices. The argument was an attempt to extend a civil-law decision, referencing the case of Industrial Roofing Services, Inc. v. Marquardt, 2007 WJ 19, 299, to criminal law.

“It is difficult to imagine a circumstance in which the public would be to blame for the derelict duty of a prosecutor,” the court concluded, affirming the circuit court’s decision to exclude the witnesses.