Attorneys for Chad Magolski, the man charged with the murder of James Park, have requested a review of the DNA evidence presented at the preliminary hearing.
A motion hearing is scheduled Monday, Aug. 29, before Judge Philip Kirk.
Magolski was charged with first-degree intentional homicide on May 24. He is accused of stabbing the 77-year-old Park multiple times with a knife in December 2007.
Magolski lived in the second-story apartment above Park at the time of Park’s murder.
At a June 30 preliminary hearing, Assistant Attorney General David Wambach entered a report regarding DNA evidence found at the murder scene. The evidence was taken from a bar of soap found in Park’s apartment and presented in a March 3, 2008, report by James Andreas, a State Crime Lab analyst.
Magolski’s attorneys, Troy Nielsen and Emily Nolan-Plutchak, argue that the prosecution omitted critical facts regarding the DNA evidence.
In their motion for an evidentiary hearing, they say it appears that Andreas changed his opinion of the DNA evidence based upon a subsequent change in DNA testing protocols.
Nielsen and Nolan-Plutchak indicate that Andreas may have prepared a second report regarding the DNA evidence.
“The state did not offer any evidence on this apparent change in Mr. Andreas’ opinion,” according to the defense counsel’s motion. “The assistant attorney general argued that the facts contained in Mr. Andreas’ original report supported a finding of probable cause. He did this knowing a subsequent report exists that contains a significantly different opinion.”
As evidence, the defense points to statements in the criminal complaint: “A mixture of DNA contributors/profiles was identified by the crime lab on that bar of soap. Possible contributors to the DNA profiles found in this mixture from the soap were James Park and Chad Magolski. Under current protocols Park is still determined to be a possible contributor to the DNA on the soap, but it cannot be determined that Magolski is a contributor to the DNA mixture. At the same time, under the current protocols, Magolski is not excluded as a contributor to the DNA mixture on the bar of soap.”
The defense argues that there is a significant difference between Magolski being included as a possible contributor to the DNA found on the soap and Magolski not being excluded as a possible contributor.
“If the state had provided an accurate account of Mr. Andreas’ opinion, the court would be unable to find probable cause that Mr. Magolski committed a felony,” the attorneys said.
The defense is seeking what is known as a Franks/Mann evidentiary hearing.
In 1978, the U.S. Supreme Court ruled in Frank vs. Delaware that a hearing was mandated if there was enough evidence that a sworn statement on an affidavit for a search warrant was false. If an affidavit’s false statement is set aside, and its remaining content is insufficient to establish probable cause, the search warrant is invalid and the fruits of the search must be excluded as evidence.
The Wisconsin Supreme Court extended the principles of the Frank decision to include criminal complaints, insofar as false statements or the omission of critical facts would affect the determination of probable cause.
To fall under the principles of Franks/Mann, there must be evidence that the prosecution either knowingly presented false information or disregarded the truth.
Nielsen and Nolan-Plutchak are asking the court to expand Franks/Mann principles further to include a review of evidence presented at a preliminary hearing.
The prosecution is arguing that Franks/Mann principles are not applicable to evidence presented at a preliminary hearing.
“There are fundamental differences in burden of proof between a warrant or criminal complaint and a preliminary examination that belie the justification for special evidentiary review,” according to Wambach in his reply.
Wambach argues that a preliminary hearing is an adversarial proceeding where both the prosecution and defense may present evidence and question witnesses. In an adversarial proceeding, the defense has the opportunity to contradict evidence presented by the prosecution.
He also notes that another difference is that the source of information for a warrant or a criminal complaint is an affiant who swears to its veracity, the witnesses who are called to testify are the primary source of information at a preliminary hearing.
In warrants or criminal complaints, Wambach says that additional review may be necessary because there are no other remedies or methods of testing the information that is presented to the court.
“The same is not true of a preliminary hearing where the defendant can object to the introduction of testimony or evidence of the state as well as cross examine the state’s witnesses and introduce evidence or call witnesses,” Wambach said.
However, Wambach also notes that there are limits to what the defense counsel is allowed to question at a preliminary hearing.
“A defendant does not have the right to cross examine a witness for the purpose of exploring their trustworthiness or present evidence solely to refute state’s evidence,” Wambach argued in his brief.
Extending the principles of Franks/Mann to include preliminary hearings “entirely goes against the purpose and scope of the preliminary examination,” Wambach said.
He also took issue with that introducing the State Crime Lab’s DNA report rose to the level of deliberate falsehood or reckless disregard for the truth.
“Classifying an individual as a ‘possible contributor’ is not an unconditional charge. It is a qualified statement, and is inclusive of the possibility that the individual is not a contributor to the DNA mixture. It is merely ‘possible’ that the individual is included,” Wambach wrote.
“Likewise, a finding that ‘it cannot be determined that Magolski is a contributor’ does not foreclose the fact that Magolski may in fact be a contributor,” he added.
Wambach also argues that the prosecution relied on more than the DNA report to establish probable cause. He pointed to the witnesses who testified during the preliminary hearing to Magolski’s possible motives and behavior.