October 16, 2015 at 4:05 p.m.
Mistrial declared in child sex abuse case
Jury unable to reach verdict on either charge
Mistrial declared in child sex abuse case
The 12-member jury deliberated for nearly five hours before telling the judge they were hopelessly deadlocked.
The jury's inability to reach a unanimous decision on Joseph A. Kaiser's guilt or innocence on the two counts of first-degree child sexual assault (sexual contact with person under age of 13) prompted Branch II Judge Michael Bloom to declare a mistrial in the case at 11 p.m. The jury was sent to the jury room to deliberate at 5:50 p.m., after closing arguments from assistant district attorney Jodi Bednar-Clemens and Kaiser's attorney Brian Bennett.
The trial starts
The trial began Monday with jury selection. The process stretched out about 2 1/2 hours before 14 people were selected to hear the case.
All 14 were to hear the case, however not all would participate in deliberations. Two "alternates" were to be dismissed after all the evidence was in. Extra jurors are frequently empaneled in criminal cases so there are enough jurors available to deliberate should someone have to be removed after the trial commences.
In this trial, just after the first lunch break, one panel member advised the judge he knew one of the potential witnesses, but didn't realize it until after he was selected. After consulting with attorneys on both sides of the case, Bloom opted to dismiss that juror and proceed with just one alternate.
Opening statement
During her opening statement, Bednar-Clemens told the jury that the trial was really "two trials in one over three days" since the two charges involve two different alleged victims in two separate incidents.
The case was complicated because the fathers of the two alleged victims are cousins and most of the witnesses called were also related to the victims.
"It's not complicated at all," Bennett told the jury in his opening remarks. He alleged that the family of the first alleged victim had an axe to grind against Kaiser and the second allegation, which arose almost a month after the first but allegedly took place months before the first, was an attempt by the family to get Kaiser away from the mother of the second alleged victim.
Prosecution's case
The two alleged victims, who are now 11 and 12, testified as to the two alleged incidents. Over the first two days of the trial, Bednar-Clemens also played video recordings of the interviews of the two alleged victims, who were nine and 10 at the time that Kaiser allegedly touched them. Both were interviewed separately by Rhinelander Police Detective Sergeant Josh Chiamulera and a social worker from the Department of Social Services. A recorded two-hour interrogation of Kaiser, where he allegedly confessed to the first incident, was also played for the jury.
Bednar-Clemens also called the extended family of the first alleged victim and an expert witness, a licensed clinical social worker, before the prosecution rested its case just before 9 a.m. on Wednesday.
Defense's case
Bennett called his own expert witness, a clinical psychologist who examined Kaiser.
He then called the grandmother and mother of the second alleged victim. Both women denied that the second alleged victim's behavior changed after the alleged incident.
Kaiser then took the stand on his behalf, testifying that he felt coerced into making the confession to police and that the two alleged incidents never happened.
The defense rested at about 2:20 p.m. after Bennett called Alan Gillis, a private investigator hired by the defense to look into the allegations.
Closing Arguments
At 4:13 p.m., Bloom gave the panel formal instructions, which including the elements the state had to prove as to each charge - that Kaiser had touched each girl's "private parts" and that he did so for sexual gratification or to sexually humiliate the alleged victims.
The judge also explained criminal intent, advised the jurors that they had to reach unanimous decisions on each charge and gave instructions on how to evaluate evidence and witness testimony.
Then Bednar-Clemens and Bennett each gave their closing arguments to the jury.
In her closing, Bednar-Clemens repeatedly pointed to the inconsistencies in Kaiser's statements to two different investigators and to the psychologist who evaluated him.
"What motives do (the victims) have to lie," she said, adding that their stories remained the same throughout the process and even on the witness stand.
"We, as adults, would have a hard time doing it (testifying about what happened)," she said. "Imagine how hard it was for those two girls to get up in front of a room full of strangers and tell very personal things."
She asked that the jury find Kaiser guilty on both counts.
"And I ask you to be proud of that verdict because it is the right thing to do," she said in closing.
Bennett argued the state failed to prove its case.
"We have a version of events, we disagree with their (prosecution's) version of events," he said.
Later in his closing, Bennett urged the jury to consider the consequences of a guilty verdict.
"I hope that before you destroy a man's life, that you have more information," he said.
He also took issue with the behavior of the investigators who interviewed Kaiser.
"They did not have truth, they were not on a search for truth," Bennett said. "They were on a search for the justification for the charges."
After a few final instructions and the random selection of the alternate to be dismissed, the jury retired to the jury room to begin deliberations.
Tense wait begins
Bennett and Kaiser retired to his office while the extended family of the first alleged victim, who had been in attendance all three days of the trial, took up vigil in the conference room just outside the Branch II courtroom. Kaiser's mother and two other supporters took over another room down the hallway. Pizzas were delivered to the members of the jury, who had been in court since their lunch break ended just after 1 p.m., and food materialized for both families as Bednar-Clemens and two detectives hunkered down in the courtroom to await a decision.
Bednar-Clemens told the family of the first alleged victim that she would take full responsibility if Kaiser was acquitted by the jury of the charges.
"But I hope they don't, for the girls' sake," she said to them at one point. "I can't lose this one."
First question
At 7:10 p.m., there was a knock on the jury room door and the jury foreperson sent out a two-part written question for Bloom and the two lawyers.
The jury wanted to know what constitutes intent and how the state proves intent.
After all parties reconvened in the courtroom, Bloom read the note.
He then proposed sending the jury a printed copy of subparagraph four of Wisconsin Statute 939.23 on criminal intent which says "'with intent to' or 'with intent that' means that the actor either has a purpose to do the thing or cause the result specified, or is aware that his or her conduct is practically certain to cause that result" as answer to the first question.
He proposed referring the jurors to the jury instructions section on how intent is proven as the answer to the second.
Both sides agreed and Bloom sent a printed version of both items to the jury room at 7:35 p.m.
Second question
A second knock on the door at 8:42 p.m. brought a second note and a return to the courtroom.
"What if we cannot come to a unanimous decision?" the note read.
After quickly conferring with Bennett and Bednar-Clemens, Bloom read the following to the jury:
"The 12 of you are as competent to decide the disputed issues of fact in this case as any other group of 12 citizens. You are not going to be made to agree, nor are you going to be kept here until you do agree. However, it is your duty to make an honest and sincere attempt to arrive at a unanimous verdict. Jurors should be open-minded, they should listen to the arguments of other jurors, talk matters over freely and fairly and make an honest effort to come to a conclusion on all of the issues presented to them. For the time being, I'm going to request that you return to the jury room and continue deliberations and attempt to come to a unanimous verdict. You will not be compelled to stay here all night, but at this point, I am going to request that you keep what I said in mind and continue to deliberate, and attempt to come to a unanimous verdict."
The jury was then sent back to the jury room at 9 p.m. to continue deliberation.
At 10:10 p.m. one of the bailiff's asked Bloom how long the jury woud be allowed to continue to deliberate.
He responded he would keep the jury in the jury room "if they are continuing to deliberate and not asking for relief."
At 10:25 p.m., the jury sent out another note. Once Bennett and Kaiser were back in the courtroom, Bloom showed the note to both attorneys.
"We are still at an impasse on both counts, what should we do?" it read. "Deadlocked on both counts."
When asked for her take on the situation, Bednar-Clemens said she was concerned that jurors did not understand that they did not have to find Kaiser guilty or innocent of both counts and asked whether the court would be willing to clarify that the jury could find Kaiser guilty of one count and not guilty of the other, if that was their consensus.
"I don't think it is that clear. You have jurors who are tired, who have been at it for three days before the instructions were even read to them, and it is on the bottom of page three and top of page four," Bednar-Clemens said.
For his part, Bennett quickly interjected that if any part of the instructions were to be read to the jury he would want all of the instructions repeated.
"I do not pretend to know what is going on in there, so I am not going to presume to make any guesses," he said. "They say they are deadlocked on both counts and we don't know why they are deadlocked on both counts."
He added that any attempt to ask jurors what had caused the deadlock, or impose what the judge or lawyers believe to be a solution, may "add to the confusion and may very well interfere with what they're doing."
Bloom cited a Wisconsin Court of Appeals decision in State v Duframe that states "a trial judge's decision to declare a mistrial is a difficult one. In the hung jury situation, efforts to break the deadlock inherently involve a degree of pressure that may, precisely because of its success, taint the fairness of the resulting verdict. The judge accordingly must tread a thin line between discharging the jury too quickly and not discharging it quickly enough."
Bloom then called the jury back into the courtroom and asked the jurors if they needed more information.
Three people replied yes, but when he polled each of them and asked if sending them home for the night to rest and return in the morning would make any difference, three told Bloom it would not make a difference.
Bloom then said he had no other choice but to declare a mistrial as the jury was hopelessly deadlocked.
As he made the ruling, the family members of the first alleged victim sat quietly, with the father hanging his head. Of his supporters, only Kaiser's mother stayed through the five hours of deliberations, and she, too, was silent.
She quickly left the courtroom with her son and Bennett.
After the jury was dismissed, Bloom set a status conference for Oct. 26 at 3:30 p.m.
After the proceedings were dismissed just after 11 p.m., Bednar-Clemens said the district attorney's office has the option to retry the case. She did not know when a decision would be made but said it would be before the Oct. 26 hearing date.
Jamie Taylor may be reached at jtaylor@ lakelandtimes.com.
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