March 27, 2019 at 4:48 p.m.
Defense seeks to point finger at third party in 1982 bludgeoning case
Defense seeks to point finger at third party in 1982 bludgeoning case
By Heather Schaefer and Jamie Taylor-
Peter J. Prusinski filed the motion to present evidence of third-party guilt in advance of a final pretrial hearing in Oneida County Circuit Court April 1. His client, Robin "Bob" Mendez, is scheduled to stand trial April 8 before Marathon County circuit judge Jill Falstad.
Mendez was charged with first-degree murder just over a year ago, after the Oneida County sheriff's department re-investigated his wife's death.
The state has theorized Mendez attacked his 33-year-old wife from behind as she performed closing tasks as part of her job at the former Park City Credit Union in Minocqua, but his attorney is seeking permission to present evidence suggesting that two other men actually committed the crime.
According to the criminal complaint and previous court testimony, the credit union manager found Barbara's body on the floor of the credit union at approximately 7:30 p.m. April 28, 1982, after Robin Mendez asked her to check on his wife because she was late for a church function.
The state has alleged Mendez killed his wife because he feared she had learned that he was involved in a sexual relationship with a minor female and divorce was not acceptable in his religion. (Mendez was later convicted of sexual assault involving the minor).
However, in his motion, Prusinski argues the defense should be allowed to present evidence the murder was committed in the course of a robbery.
"A defendant has a constitutional right to a fair trial and to present a complete defense," he wrote. "However, certain evidence, such as third-party guilt evidence, must pass 'well-established' evidentiary rules for its admission at trial. In Wisconsin, the Denny standard governs the admission of third-party guilt evidence. The court in State v. Denny created the following test: 'as long as motive and opportunity have been shown and as long as there is also some evidence to directly connect a third person to the crime charged which is not remote in time, place or circumstances, the evidence should be admissible.' This test is called the 'legitimate tendency' test because 'there must be a 'legitimate tendency' that the third person could have committed the crime."
In later decisions, the court summarized the legitimacy test as follows:
• First, did the alleged third-party perpetrator have a plausible reason to commit the crime? This is the motive prong.
• Second, could the alleged third-party perpetrator have committed the crime, directly or indirectly? In other words, does the evidence create a practical possibility that the third party committed the crime? This is the opportunity prong.
• Third, is there evidence that the alleged third-party perpetrator actually committed the crime, directly or indirectly? This is the direct connection prong.
"Logically, direct connection evidence should firm up the defendant's theory of the crime and take it beyond mere speculation," the brief explains. "It is the defendant's responsibility to show a legitimate tendency that the alleged third-party perpetrator committed the crime."
As the court has yet to rule on whether evidence of this theory is admissible, the River News has decided not to name the two men the defense listed as its suspects. However, for purposes of clarity, the defense alleges the main actor was a known drug dealer (who is now deceased) while the other individual acted as a getaway driver. Law enforcement investigated the defense's primary suspect (the deceased individual) as part of the original inquiry into the Mendez murder, the motion notes.
In the motion, the defense contends its suspect was unemployed and in financial distress at the time of the murder. The motion further alleges that the individual in question can be placed at the credit union the day of the murder because witnesses reported seeing him cashing a check there and asking Barbara Mendez how he could become a member.
In addition, a membership card with his name on it dated April 28, 1982 was located in the credit union during the investigation.
"The signed membership card directly connects (the defense suspect) to the crime scene," Prusinski wrote. "(A witness) overheard the conversation where (the suspect) was given the membership card to fill out. (The suspect) put that paperwork in his wallet. (The suspect) said he would come back that day with the $5.00 to become a member. Law enforcement found a typed index account card for the suspect on April 28, 1982, on file. They also discovered the signed and completed membership card on file. Yet, (the suspect) denied coming back to the credit union on April 28, 1982, before 5:15 p.m."
The defense further contends that the individual in question was capable of committing a robbery, as he had a previous conviction for armed robbery in another state.
Prusinski also argues the individual knew how to kill because he served in Vietnam.
"This evidence shows how (the individual) could stomach bludgeoning the victim to death, or how 'something happened,' and he snapped," he wrote. "The Vietnam War conjures images of fierce fighting in dark jungles, grappling in hand-to-hand combat, dodging booby-traps, and finding others bleeding out and dying before one's eyes. That experience traumatizes and can fundamentally change a person. It ruins. The evidence that (the individual) came back 'messed up' from Vietnam suggests it worked evil rather than good in (him)."
As for the second man, the defense argues he admitted to being the getaway driver while testifying in a 1984 John Doe hearing in the case. (The motion indicates he later recanted the confession).
According to the complaint, the late forensic pathologist Dr. Robert W. Huntington III determined Mendez died as a result of "multiple blunt injuries, abrasions and lacerations to the head, with extensive skull fractures."
Huntington theorized that the injuries were caused by a blunt instrument with a long striking surface "and there's a strong suggestion of an angle in an instrument," the complaint states.
Prosecutors plan to call an independent forensic consultant, former Georgia Bureau of Investigation agent Chris Robinson, to testify that the injuries were caused by a pry bar or a Wonder Bar, tools that are routinely used in the furniture upholstery business. At the time of the murder, Robin Mendez's family operated an upholstery shop and he would have had easy access to such a tool, it was noted in the criminal complaint.
The case is set for a 12-day trial to run from April 8-30.
Because the charge is based on the homicide statutes in place in 1982, Mendez faces life in prison if convicted.
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