Source: Lake Geneva Regional News

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Abuse case heads back to county
Court of Appeals rules preliminary hearing legal in O'Brien case

by Rob Ireland

July 25, 2013

Kathleen O'Brien
Martin O'Brien
A Bloomfield couple accused of abusing their adopted children have failed to have the state Court of Appeals overturn several decisions made by a local judge.

Kathleen M. O'Brien, 50, has been charged with four felony and seven misdemeanor charges of child abuse. Martin P. O'Brien, 50, has been charged with seven felony and five misdemeanor charges of child abuse.

The O'Brien case has received international media attention. The couple is accused of abusing their six adopted children, four of whom are from the former Soviet Union. The O'Briens pleaded not guilty Sept. 19, 2012.

According to the criminal complaint, Kathleen allegedly used pepper spray on one of the adopted children and stabbed another in the hand with a knife. Martin is accussed of hitting one of the children in the face, choking a child and striking one of the children in the genitals with his knee. The pair, according to the criminal complaint, also allegedly forced the children to stand on a porch naked and locked them in a room for days.

The criminal proceedings in Walworth County against the O'Briens have been on hold while the Court of Appeals reviewed the case. As of press time, a new hearing date hasn't been scheduled.

Court of appeals decision

The O'Briens objected to the use of hearsay evidence during their preliminary hearing. During a preliminary hearing, a judge must determine whether there is enough probable cause for the case to proceed. The judge also rules in the light most favorable to the state.

During the O'Briens' preliminary hearing, only one witness, Bloomfield Investigator Lori Domino, testified.

Domino had watched interviews the children had with a forensic interviewer at the Walworth County Child Advocacy Center

"The officer had no personal knowledge of any of the alleged offenses, and simply testified about hearsay statements in the complaint," the appeal filed by the O'Briens' attorneys stated. "The investigator admitted that the complaint contained significant factual gaps and the incidents described were only summaries, not verbatim accounts."

The defense attorneys representing the O'Briens are Pamela Moorshead of Glendale and Kathleen Stilling of Brookfield. The Court of Appeals disagreed with the defense attorneys.

"We note that the United States Supreme Court long ago upheld the issuance of a grand jury indictment when all of the evidence before the grand jury was hearsay," the appeal states. "As the court there observed, 'a rule permitting defendants to challenge indictments on the grounds that they are not supported by adequate or competent evidence' would transform the grand jury proceeding into 'a kind of preliminary trial to determine the competency and adequacy of the evidence.'"

Before the preliminary hearing, the O'Briens' moved to preclude hearsay evidence during the hearing, which Judge John Race denied.

The state also moved to quash a subpoena that was issued to one of the victims in the case.

Race ruled in favor of the state.

During the preliminary hearing, the O'Briens' attempted to call one of the victims, who is now an adult but was a child during the alleged abuse.

However, during the hearing, Assistant District Attorney Diane Donohoo argued that he shouldn't have to testify because the previous witness, Domino, already had established probable cause.