A faulty criminal complaint led Judge Philip Kirk to dismiss all charges against James H. Bartz, 52, Clintonville.
On March 8, Bartz was charged with stalking, intimidation of a victim, intimidation of a witness, two counts of disorderly conduct and four counts of misdemeanor bail jumping.
A couple who are Bartz’s neighbors told police he had been verbally abusive and threatened to kill them.
Assistant District Attorney Brenda Freeman, who had not been in the office for more than a month, was the original prosecutor in this case.
On June 14, Bartz’s attorney, Stephen Sawyer, filed a motion to dismiss all 12 counts in the criminal complaint because it lacked essential facts to show specific offenses had been committed and failed to correctly state the law.
The count of stalking “alleges that on or about May 26, 2014, through June 27, 2015, that the defendant intentionally engaged in a course of conduct directed at William H. Janke,” Sawyer notes in the motion to dismiss. “The probable cause section of the complaint details a single incident on June 26, 2015, at 8:10 p.m., and a vague statement that ‘this has been going on at least three times a week for the past couple of weeks.’”
Sawyer notes the past couple of weeks would go back no further than the beginning of June 2015 and not back to May 26, 2014.
State law defines stalking as a series of acts carried out over a period of time that show a “continuity of purpose.”
Acts of stalking include appearing at the victim’s home or workplace, contacting the victim’s neighbors, contacting the victim by telephone, taking photos of a victim.
“As the criminal complaint alleges a single act that can be categorized as ‘confronting,’ it fails to specify a series of two or more acts carried out over time that show continuity of purpose,” the motion says. “When two next-door neighbors do not get along, and there is general grumbling going on without crossing the property lines, a single act of confrontation does not turn that general grumbling into a felony crime.”
Felony intimidation requires that the defendant uses the threat of force in an attempt to dissuade a witness from giving testimony at a trial or speaking with authorities.
“However, there are no facts alleged in the probable cause section of the criminal complaint that show any indication of an attempt to dissuade or prevent either of these witnesses from testifying,” the motion says.
The motion to dismiss also notes the complaint violates double jeopardy because it charges Bartz with both intimidation of a victim and intimidation of a witness, even though the victim and the witness are the same person and the charge is based on the same incident.
“There is no indication that the legislalture intended that a person who intimidates a victim of a crime who will be called as a witness in prosecuting that crime would be subjected to two separate penalties for the same act of intimidation,” the motion says.
Sawyer also sought dismissal of the two misdemeanor counts of disorderly conduct because the criminal complaint misquoted the law.
The criminal complaint alleges that Bartz “did engage in force, violent, injury, damage or otherwise disorderly conduct.”
The motion to dismiss argues that the words “force,” “injury” and “damage” do not appear in the statute’s definition of disorderly conduct.
Since the criminal complaint incorrectly states the law, Sawyer argues the two counts of disorderly conduct should be dismissed.
On June 16, all charges were dismissed without prejudice, which means another criminal complaint may be filed against Bartz in the future.
Also on June 16, Bartz was convicted of a disorderly conduct ordinance violation for a May 26, 2014, incident involving the same alleged victim. Misdemeanor charges of battery and bail jumping were dismissed but read into the court record. Bartz was assessed $204 in court costs.
The first time Assistant District Attorney Veronica Isherwood handled the felony case against Bartz was at the hearing on the motion to dismiss.
She told the Waupaca County Post she had to concede the motion to dismiss because of the flaws in the criminal complaint.
“Unfortunately the criminal complaint in that matter was severely lacking. It simply did not have probable cause to support the charges filed,” Isherwood said. “The dismissal was entirely based upon the faulty complaint and had nothing to do with the underlying facts.”
Isherwood said she did not know whether Freeman would refile a corrected complaint.