Appeals Court chides Kenosha DA, excludes a dozen witnesses

Twelve of 13 witnesses the prosecution wanted to call in a shaken baby trial will be excluded because the Kenosha County District Attorney's office ignored a defense request and two court orders to provide witness lists as part of the discovery process, the Court of Appeals ruled in an opinion released Wednesday.

"We decline the State’s request to adopt an exception for the discovery violation made by the district attorney so that the significant consequences of the court’s order will not be borne by the 'blameless public,' Appeals Court Judge Paul F. Reilly wrote in the decision. "It is difficult to imagine a circumstance in which the public would be to blame for the derelict performance of a prosecutor, and we cannot reconcile the State’s position with a criminal justice system that affords fairness to both the State and defendant." 

Only a single expert witness will be allowed to testify in the trial of Caroline Prieto, who in 2012 was charged with one count of recklessly causing great bodily harm to a child after eight-month-old C.B. was diagnosed with a serious brain injury after Prieto took care of her.

After she was charged, Prieto's attorney made a discovery demand that included a request for a list of witnesses the prosecution planned to call. The DA's office ignored the request, wrote Reilly.  In December, 2013 and in August 2014, circuit court judges ordered the DA's office to provide the witness list. The office ignored both orders.

In January, Kenosha County Circuit Judge Chad G. Kerkman granted Prieto's request to exclude any witness who had not yet been identified by the prosecution. At that point, the DA's office had turned over the name of only one witness. A few days later, 14 days before trial, the DA's office filed a witness list and asked the judge to reconsider his decision. Kerkman declined to reverse himself and the state appealed.

State law provides for witnesses to be excluded if the state does not have a good reason for failing to provide a witness list, Reilly said, writing for the District 2 Court of Appeals panel. Reilly was elected to his post in 2010.

"The district attorney’s office never argued that it had good cause for its disobedience of its statutory obligation and its duty to abide by court orders, and the State concedes that the district attorney’s office did not have good cause for its failure to provide a witness list pursuant to the court’s orders," Reilly wrote.

Reilly, whose opinion was joined by Appeals Court Judges Mark D. Gundrum and Brian K. Hagedorn, recognized that the decision may make it difficult to take the Prieto case to trial.
  
"We share the circuit court’s regret that the actions of the district attorney may prevent the merits of this case from being fully tried," Reilly wrote. "We remind the State that the magnitude of the sanction imposed...is measured by the degree of the district attorney’s violation (of state law)....It is the district attorney who ultimately determines what sanction is available against his or her office. The district attorney’s office ignored (the statute) and the court’s orders at its peril."

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