October 1, 2018 at 5:02 p.m.
Key hearing Wednesday for stepmom in toddler death case
Jury selection set for Oct. 19
Key hearing Wednesday for stepmom in toddler death case
By Jamie Taylor and Heather Schaefer-
Judge Patrick O'Melia has a number of rulings to make before Ellen Tran faces a jury, including how much information the jurors will hear about her earlier interaction with her stepson and whether she can argue that her former husband might be responsible for the boy's death.
Tran, 29, is charged with first-degree reckless homicide in the death of Avery J. Edwards.
According to court records, Edwards became unresponsive April 14, 2017 while visiting his father, Dr. Trung T. Tran, and stepmother in Newbold. He died several hours later at an area hospital. Shortly thereafter, Ellen Tran was charged with second degree reckless homicide. The charge was amended to first degree reckless homicide after Fond du Lac County medical examiner Doug Kelley detailed the boy's injuries during a preliminary hearing. Kelley testified Edwards died from blunt force trauma to the head and listed several other areas of the child's body where he found either bruises or contusions. He also testified the injuries did not match Ellen's statement that the boy had become unresponsive after falling in the shower.
Dr. Tran is also facing charges in connection with Avery's death.
He was charged Sept. 20 with failure to act to prevent reckless causing of great bodily harm to a child and child neglect resulting in death. The first count was dismissed following a motion hearing in late November, however the second charge went forward following a preliminary hearing Jan. 26.
On Feb. 21, Oneida County district attorney Mike Schiek filed a new information charging Tran with failure to act to prevent bodily harm (as opposed to great bodily harm) to a child, a class H felony, and child neglect resulting in death, a class D felony.
In August, Judge Michael Bloom denied a defense motion to dismiss the new "bodily harm" charge.
Dr. Tran is due back in court for a pre-trial conference Nov. 13, after his now ex-wife's trial is over. The couple divorced in June, according to court records.
Ellen Tran was last in court in August for a hearing on a motion filed by Schiek to admit several strings of text messages between Ellen and Dr. Tran, Dr. Tran and Ellen's parents and Ellen and Edwards' mother, Lori.
Also discussed during the August hearing was a motion filed by defense attorney Jonas Bednarek requesting permission to disclose evidence to the jury that a specific third party, in this case Dr. Tran, committed the crime for which Ellen Tran is charged.
The "third party responsibility" defense, also know as a "Denny" motion, also accuses the state of "investigative bias" which the defense says caused law enforcement officers to focus disproportionately on Ellen Tran from the start, to the exclusion of Trung Tran.
O'Melia did not immediately rule on the motion to give Schiek an opportunity to respond in writing.
In his response, filed Friday, Schiek argued that O'Melia must first rule on the admissibility of the evidence the defense has offered in support of the motion. That evidence consists of a 167-page affidavit of Sarah Schuchardt, co-counsel for the defense, which includes various detective reports, transcripts of interviews with various women who have been romantically involved with Dr. Tran in the past, and other material.
"The Defense is requesting this Court to allow a third party responsibility as a defense. The State is unable to take a position until the Court rules on the admissibility of evidence suggested by the Defense," Schiek wrote. "The State believes the Court should rule on evidentiary issues first, and then if any evidence is admissible, determine if third party responsibility can be argued at trial. It seems inconsistent to rule on a 'Denny Motion' and not allow the defense to admit any evidence suggested."
The final pretrial conference is set for 1 p.m. Wednesday.
Ellen Tran faces up to 60 years in prison if convicted of the reckless homicide charge.
Dr. Tran faces a maximum sentence of 31 years in prison if convicted of the charges in his case.
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