A state appellate court has overturned a decision by Waupaca County Circuit Court Judge Phillip Kirk.
In a decision released Thursday, Sept. 20, 4th District Court of Appeals ruled that Kirk wrongly dismissed a sexual assault case against Thomas McEssey of Madison.
Kirk dismissed the case in October 2011, saying then that he lacked confidence there could be a fair trial, “because of the failure, ridiculous failure, to preserve this evidence.”
At issue was a lost audio recording of a telephone call between McEssey and the alleged victim and the subsequent discovery, days before the scheduled trial, of a video recording of the same conversation.
On Nov. 19. 2008, then 20-year-old McEssey was charged with second-degree sexual assault of an unconscious victim, third-degree sexual assault and disorderly conduct.
According to the criminal complaint, McEssey had been at a graduation party at a cabin on Jan. 12, 2008. A man who was age 24 at the time told police that he woke up between 12:30 a.m. and 1 a.m. and discovered McEssey kneeling next to the bed and sexually assaulting him.
In subsequent interviews with investigators from the Waupaca County Sheriff’s Department, McEssey reportedly said he did not remember exactly what had happened that night because he had been drinking. He also reportedly said he believed it may have been a different man in the bed at the time of the incident.
In April 2008, Deputy Michael Richter arranged for the victim to call McEssey and discuss the incident. Richter recorded both sides of the conversation on a hand-held digital recording device.
McEssey’s statements during the phone call were consistent with his statements to police, according to court records. He said he did not remember what happened and that he had confused the victim with somebody else.
When McEssey’s defense counsel, Chad Lanning, filed a motion for discovery in January 2009, the recording was not included in the packet of evidence provided by law enforcement a month later.
At a status conference on May 20, 2009, Assistant District Attorney James Fassbender informed Lanning that the prosecution was seeking a copy of the recording of the telephone call between McEssey and the victim.
A week later, the district attorney’s office learned that the call had been lost.
At an evidentiary hearing on July 24, 2009, Richter testified regarding the lost recording.
Richter said he had arranged for the victim to come to the sheriff’s department and call McEssey. The call was made from an interview room where there is a video camera. However, the video equipment could only record one side of the conversation, so Richter used a hand-held digital recorder to record both men. It was the first time Richter had used the device.
After the conversation, Richter listened to the recording and it seemed OK. However, when he tried to download the recording to a disc, the recording was lost and could not be recovered.
Lanning filed a motion to dismiss the charges against McEssey because the police lost a potentially exculpatory piece of evidence.
However, a decision was delayed because the district attorney’s office sent the recorder to the State Crime lab in the hope that its digital files could be recovered.
It was not until December 2009 that the court was informed that the State Crime Lab had failed in its efforts to recover the recording.
In May 2010, Kirk denied Lanning’s motion to dismiss and a jury trial was scheduled to start on Oct. 21, 2010.
Video found in deputy’s garage
On Oct. 13, 2010, Richter found a disc with a video recording of the April 2008 phone conversation in his garage.
The trial date was subsequently cancelled and Lanning filed a new motion to dismiss the charges against McEssey.
At a court hearing in December 2010, Richter testified that he had not remembered having the video recording of the conversation.
Detective Sgt. James Gorman testified that he had turned on the video equipment, as is his custom during interviews, and given a disc recording to Richter.
“Following the April 2008 recorded call, the police had in their possession both the audio-video recording of one side of the conversation, as well as the audio-only recording made by the deputy with his hand-held digital recorder, recording both sides of the same conversation,” the appellate court decision said in how investigators handled the evidence. “However, the police lost the audio-only recording, and produced to the defense the audio-video recording capturing only the victim’s side of the conversation long after it was due to be disclosed.”
At a hearing in October 2011, Kirk granted Lanning’s second motion to dismiss the case.
“There’s never been any intentional effort … to cause this evidentiary fiasco,” Kirk said, noting that the problem was due to “unintentional negligence.”
However, he said he lacked confidence that there could be a fair trial.
The state appeals court ruled against Kirk’s decision because it found that McEssey’s rights to due process were not violated.
Under the Constitution’s guarantee of due process, police are required to preserve and disclose any evidence that may be relevant to a defendant’s guilt or innocence.
The law recognizes a difference between “bad faith” attempts to conceal evidence and unintentional negligence. The law also sees two types of exculpatory evidence: apparent and potential.
Apparently exculpatory evidence is readily recognizable as such by police and prosecutors. Failure to preserve and disclose apparently exculpatory evidence may result in a dismissal of charges.
Potentially exculpatory evidence might be useful to the defense. Failure to preserve and disclose potentially exculpatory evidence is not grounds for dismissal.
“The circuit court consistently found, during the course of both evidentiary hearings, that failure by the police to preserve the audio recording was an inadvertent act, and concluded there was no bad faith,” the appellate ruling said.
The appellate court also found that testimony regarding McEssey’s statements presented at the hearings indicated that what he said over the phone was consistent with what he told police, that his statements were equivocal.
The appeals court reversed Kirk’s dismissal and remanded the case back to the circuit court for further proceedings.