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Supreme Court upholds hearsay evidence



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Kathleen O'Brien
O_Brien_Martin
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Martin O'Brien
August 05, 2014 | 03:04 PM
MADISON — The state Supreme Court recently upheld a decision by former Judge John Race that allowed hearsay evidence into a preliminary hearing.

Race’s ruling was challenged by Martin and Kathleen O’Brien. The O’Briens are accused of multiple acts of child abuse against their six adopted children, four of whom are from the former Soviet Union.

They each have pleaded not guilty to multiple felony and misdemeanor charges.

During the O’Brien’s preliminary hearing, which was held in July 2012, Bloomfield Police Investigator Lori Domino testified to statements she heard the O’Brien’s children’s make to a forensic interviewer about the alleged abuse.

The O’Briens subpoenaed one of their adopted children, who was in the Walworth County Judicial Center, but Race didn’t require him to testify.

With exceptions, hearsay — repeating statements made by someone else — is prohibited. However, the state Legislature amended state statutes in 2011 to allow hearsay during preliminary hearings.

In appeal motions, the O’Briens argued that the law was unconstitutional because it “violates their constitutional rights. Specifically, they argue that the rights to confrontation, compulsory process, effective assistance of counsel and due process,” according to the ruling filed by the court.

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In 2013, a state appeals court upheld Race’s ruling and the Wisconsin Supreme Court upheld the ruling again in July.

“Following precedent, we conclude that there is no constitutional right to confrontation at a preliminary hearing,” according to the ruling.

During a preliminary hearing, the state must prove that there is probable cause that the defendant committed a felony. The judge must rule in the light most favorable to the state.

During this hearing, the state will hear some testimony, but state statutes specifically state that the hearing isn’t a “mini-trial.”

Instead, according to the ruling by the court, preliminary hearings “serve as a check on prosecutorial discretion.”

The hearing is also an earlier step in the judicial process. If a defendant is in custody, the preliminary hearing must be held within 10 days of his initial appearance. A defendant can waive that right.

Since the state legislature changed the statutes to allow hearsay evidence, prosecutors in Walworth County have routinely relied on a single witness during preliminary hearings, typically a law enforcement officer.

The prosecutor will typically enter into evidence the criminal complaint, which the officer will testify about.

State Supreme Court Chief Justice Shirley Abrahamson issued a dissenting opinion on the issue.

“If preliminary examinations are to serve as effective roadblocks to frivolous and fraudulent prosecutions, and if they are truly to be a ‘critical stage’ of trial, the preliminary examination cannot be reduced to a farce, in which a defendant has no ability to challenge or rebut the narrative advanced by the State’s proffered double and triple hearsay testimony.”

Charges against the O’Briens were initially filed in May 2012.

An Appeals Court agreed to review the case in October 2012. A motion hearing was scheduled in Walworth County Circuit Court in November 2012, but that hearing was postponed during the appeal process.

A new court date hasn’t been set in Walworth County for the O’Briens. At this time, the county’s clerk of court office hasn’t had its files returned by the state Supreme Court.

The allegations

The criminal complaint against the O’Briens alleges that Kathleen O’Brien stabbed one of her adopted children in the hand with a pocket knife and used pepper spray on another.

The criminal complaint issued by the Walworth County District Attorney’s office also documents alleged incidents where the O’Briens forced the children to sit naked outside, left them in locked rooms for days and required the kids to kneel on rocks for hours.

The alleged victims are now between the ages of 12 and 19. They were adopted by the O’Briens around 2004.

Kathleen has been charged with four counts of felony child abuse and if convicted faces up to 24 years imprisonment and $40,000 in fines.

Martin has been charged with seven counts of child abuse and if convicted faces up to 42 years imprisonment and $70,000 in fines.

Martin also faces five misdemeanor counts of disorderly conduct and Kathleen faces seven counts of disorderly conduct. Disorderly conduct is punishable by up to 90 days imprisonment and $1,000 in fines.

Other allegations include that all of the adopted children were allegedly locked in a bedroom for four to five days.

During that time, the children were allowed out of the room three times a day to use the bathroom, and a bucket was placed in the locked room for them to use if they had to go to the bathroom additional times. Kathleen’s journal indicated she locked the children in the bedroom on July 12, 2008; Oct. 6, 2008; and on April 12, 2010.

The children were also allegedly forced to kneel on sharp rocks in a dog pen, which at times had dog feces in it, for up to six or seven hours at a time.

One of the children reported that their punishment time increased if they went into a shady area of the dog pen instead of directly in the sun.

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