Paragraph 27 reads: “The defense witnesses Thursday
included a psychologist who evaluated Benz and agreed with her prior diagnoses
of being manic-depressive and bi-polar and suffering from depression and
anxiety. Dr. Gene Braaksma said Benz was taking anti-depressants
and mood stabilizers in June 2007.”
Judge to rule today on mistrial motion in Mary Benz infant abuse
case
By Eric Litke • Sheboygan Press
staff • December 4, 2009
The defense is seeking a mistrial in the Mary
Benz infant abuse case after Benz’s attorney stumbled upon evidence he said was
valuable to his client’s case and not previously disclosed by the
prosecution.
Defense attorney Richard Hahn made the motion Thursday after
spotting a social worker’s case file while he was in District Attorney Joe
DeCecco’s office editing an audio recording earlier in the day. In a notation
made June 28, 2007 two days after a 10-month-old girl was found to have
significant vaginal injuries the doctor who examined her said the parents
could not be ruled out as suspects and the injuries could have occurred earlier
than he said when he testified.
The note was made before the
pediatrician, Dr. Thomas Valvano, interviewed the parents and differs from his
final findings, but Hahn said he should have been made aware of the report so he
could question Valvano about the statements. Valvano testified Wednesday and has
since returned to Oregon, where he now lives.
“All of this from an
investigative standpoint is a complete and absolute surprise,” said Hahn, adding
that he said he should have received the file during discovery. “That raises
three issues that I would have utilized with great prominence in my cross
examination of Dr. Valvano.”
Judge Terence Bourke will rule on the motion
for the mistrial this morning.
This was the fourth straight day Hahn
sought to have the case thrown out before it reached the jury, but the first
time DeCecco asked for time to prepare a response before Bourke
ruled.
Court records show Hahn filed his demand for discovery in June
2008. Discovery is when attorneys for both sides must share the evidence they
have gathered.
Hahn said he spotted the file sitting in a box on
DeCecco’s floor while the two editing an audio recording of an interview with
Benz that was played for the jury Thursday. That editing delayed the start of
the trial from 8:30 a.m. to 1:30 p.m.
The file in question was created by
the Sheboygan County Division of Social Services, which conducted an
investigation in cooperation with but separate from the Sheboygan County
Sheriff’s Department after the girl’s injury was discovered. The injury, an
inch-long vaginal tear, was discovered the same day the child was cared for at
Our Lady of the Lakes Child Care Center in Random Lake, where Benz was
director.
(2 of 3)
Benz, 51, is charged with felony child abuse and
three counts of misdemeanor resisting or obstructing an officer. Her trial began
Monday after 2½ years of delays from a 10-month investigation, numerous pretrial
motions and two adjourned trial dates.
The case file has not yet been
mentioned in the presence of the jury, as Hahn presented his motion after the
jury was sent home for the day Thursday. After the motion, social worker Laura
Lemon was called to testify as an unscheduled witness about the contents of the
case file.
Lemon said such files are typically given to the District
Attorney’s Office upon request, but she did not know if it was requested in this
case or when. The file includes a record of people contacted during Lemon’s
investigation, a final report and documentation gathered throughout the
investigation.
The case was closed Aug. 14, 2007, because no perpetrator
had been identified, Lemon said.
The key section cited by Hahn was a note
from a Social Services employee who fielded the call from Valvano and reported
that he wanted the agency to know the parents could not yet be ruled out and the
incident could have happened June 25. Valvano said at that point the day care
appeared the “most suspicious” in terms of where the injury likely
happened.
Valvano testified Wednesday that the injuries occurred 12 to 24
hours prior to his examining the child at 2 a.m. June 28.
Another case
note said Valvano told Social Services in a June 28 meeting at Children’s
Hospital in Milwaukee that the girl’s injury could have been caused by a finger,
and there is no indication a sharp object was used or what exactly caused the
injury.
Benz in third interview: ‘I don’t recall’
The
shortened day of testimony preceding Hahn’s motion included a third recorded
interview with Benz in which she changed key details from prior interviews and
repeatedly said “I don’t recall” when confronted about
inconsistencies.
The interview was conducted by Detective Mark Mancl of
the Sheboygan County Sheriff’s Department on July 26, 2007, after serving a
search warrant at Benz’s home.
(3 of 3)
Mancl focused several of his
questions on Benz’s alleged actions after a June 29, 2007, interview. After Benz
told Mancl then that she changed only two of the girl’s diapers on the day in
question, two day care employees testified that she called and asked them to say
they changed two other diapers when they hadn’t.
In the recording played
Thursday, Benz said she didn’t recall discussing the case with anyone other than
Ed Ritger, an attorney affiliated with the day care, didn’t recall telling one
girl she had been framed as the girl testified she did and didn’t
recall leaving a voicemail saying she messed up and needed help. That voicemail
was played in court Tuesday.
Benz did, however, say for the first time
that she changed all of the victim’s diapers on the day in question. She would
not say why she said otherwise in the two prior interviews, June 27 and
29.
Benz also wouldn’t say why she claimed June 29 that a volunteer had
been caring for the infants during the victim’s first 90 minutes at the day care
when on June 27 she didn’t list that worker as one of the people present. Benz
then said she didn’t recall if the woman was there or had worked with the
infants.
The woman, Rita Schmid, has testified she arrived at 6:30 a.m.
around the time the victim did but left when Benz said she wasn’t
needed. She also said Benz called her after the June 29 interview and asked her
to say she worked until 8 a.m. and saw the victim in good spirits.
Asked
directly, Benz repeated previous denials in saying she has no knowledge of the
girl’s injuries and didn’t cause them.
“There was nothing wrong. I had no
concerns when (the victim) left at 4 o’clock,” Benz says in the interview before
deflecting responsibility. “This is the first time dad picks (her) up, and now
we have a problem.”
More defense witnesses testify
The five-hour delay
further disrupted scheduling for the trial, which was to end today. The
prosecution still has not formally rested its case, as Mancl has been on and off
the stand three times to allow witnesses for the defense to testify as
originally scheduled.
The defense witnesses Thursday included a
psychologist who evaluated Benz and agreed with her prior diagnoses of being
manic-depressive and bi-polar and suffering from depression and anxiety. Dr.
Gene Braaksma said Benz was taking anti-depressants and mood stabilizers in June
2007.
Braaksma, who spent about seven hours testing Benz and looking
through her mental health history, said she is “limited in her capability” to
deal with stress. In response to a question by DeCecco referencing Benz
allegedly asking the workers to lie and forging a document, Braaksma said he
would expect a person with Benz’s diagnoses to “crumble” rather than take
logical action to cover a crime.
Benz, 51, is charged with felony
child abuse and three counts of misdemeanor resisting or obstructing an officer.
Her trial began Monday after 2½ years of delays from a 10-month investigation,
numerous pretrial motions and two adjourned trial dates.
The case file
has not yet been mentioned in the presence of the jury, as Hahn presented his
motion after the jury was sent home for the day Thursday. After the motion,
social worker Laura Lemon was called to testify as an unscheduled witness about
the contents of the case file.
Lemon said such files are typically given
to the District Attorney’s Office upon request, but she did not know if it was
requested in this case or when. The file includes a record of people contacted
during Lemon’s investigation, a final report and documentation gathered
throughout the investigation.
The case was closed Aug. 14, 2007, because
no perpetrator had been identified, Lemon said.
The key section cited by
Hahn was a note from a Social Services employee who fielded the call from
Valvano and reported that he wanted the agency to know the parents could not yet
be ruled out and the incident could have happened June 25. Valvano said at that
point the day care appeared the “most suspicious” in terms of where the injury
likely happened.
Valvano testified Wednesday that the injuries occurred
12 to 24 hours prior to his examining the child at 2 a.m. June
28.
Another case note said Valvano told Social Services in a June 28
meeting at Children’s Hospital in Milwaukee that the girl’s injury could have
been caused by a finger, and there is no indication a sharp object was used or
what exactly caused the injury.
Benz in third interview: ‘I don’t recall’
The
shortened day of testimony preceding Hahn’s motion included a third recorded
interview with Benz in which she changed key details from prior interviews and
repeatedly said “I don’t recall” when confronted about
inconsistencies.
The interview was conducted by Detective Mark Mancl of
the Sheboygan County Sheriff’s Department on July 26, 2007, after serving a
search
Reach Eric Litke at (920) 453-5119 and
