Guest blog post by criminal defense attorney Michael D. Cicchini
In the Idaho quadruple homicide case, defendant Bryan Kohberger is accused of murdering University of Idaho students Ethan Chapin, Xana Kernodle, Kaylee Goncalves, and Madison Mogen. The defense waived the right to a timely preliminary hearing (14 days in Idaho) and set the hearing in June so it has enough time to go through all of the evidence. The judge cleared five days on the calendar for the hearing itself. This indicates that the defense gets the discovery materials (e.g., police reports, witness statements, etc.) before the prelim and the state has to call actual witnesses at the evidentiary hearing in order to establish probable cause.
By comparison, in Wisconsin, the courts at all levels of the system have managed to super-legislate from the bench; they have somehow turned an evidentiary hearing, which was designed to prevent improvident prosecutions, into a prosecutorial weapon for charging anything and everything without probable cause and, certainly, without the presentation of any evidence.
What do I mean? Well, if pre-hearing discovery and actual witnesses are the hallmark of Idaho’s preliminary hearing, then these are the hallmarks of Wisconsin’s preliminary hearing:
1. No pre-hearing discovery whatsoever. (See pp. 499-504.) The defense is kept in the dark and isn’t even entitled to police reports before the hearing. And at the hearing itself, prosecutors have even dreamed-up a new objection whenever the defense asks a question of a witness that might produce some interesting information. They pipe up, with a sense of urgency in their voice, “Objection, discovery!” As I’ve pointed out to numerous court commissioners, “discovery” is not a proper objection. No matter, the objection is nearly always sustained and the line of questioning is stopped dead in its tracks. Ignorance, apparently, is the goal.
2. Witnesses without any knowledge of the case whatsoever. (See pp. 493-499.) In Wisconsin, prosecutors don’t have to call actual witnesses. Instead, they call a “reader”—a law enforcement agent assigned to the courtroom for the day who had nothing whatsoever to do with the investigation of the case. This reader reads and tries to memorize the criminal complaint—a document drafted by the prosecutor’s office—and then answers questions about it on the witness stand. In other words, the state’s “evidence” at the prelim consists of a cop (with no personal knowledge of the case) saying that a prosecutor (who drafted the complaint) said that an investigating officer said that an informant or other witness said that the defendant said or did something. Probable cause established! Hearing over. Thanks for playing. I kid you not, dear reader.
3. Defense witnesses need not apply! (See pp. 504-506.) In order to prevent the defense from learning anything about the case, courts may also prohibit the defense from calling its own witnesses with personal knowledge of what allegedly happened. And commissioners and judges deny defendants this right despite the clear, plain statute allowing—guess what?—the defense to call witnesses! How can this happen? Again, super-legislation from the bench at all levels of the court system starting with the court commissioner, then the trial court judge, then the appellate court, then the state’s high court. Read the three pages in the above link to learn the logical and legal errors the courts commit when denying defendants their statutory right to present evidence at the hearing.
4. The preliminary hearing is a prosecutorial weapon to add charges. (See pp. 506-511.) In Wisconsin, the preliminary hearing now benefits the prosecutor, not the defense. Although the hearing is meant to provide felony defendants with additional protections compared with defendants charged with mere misdemeanors, prosecutors use the courts’ super-legislation to add charges without any probable cause in the hearing testimony or even the complaint! Once again, this deplorable, pro-state, intellectually hollow tactic not only violates the purpose of the hearing, but also directly contradicts the statute which requires dismissal of all counts for which there was no probable cause! Read the above pages to learn the intricate details. Fair warning: it’s like watching the metaphorical sausage being made.
Although they’re violating law, logic, reason, and commonsense—and effectively eliminating an important part of criminal procedure in the process—you have to give these government agents points for sneaky efficiency. I’m quoting myself here, but, “in today’s assembly-line approach to criminal law, prosecutors and judges have developed many ways to bypass this procedural safeguard [the preliminary hearing] and keep the criminal justice machinery humming along.” It’s a volume business!
[This post has been cross-posted on The Legal Watchdog blog.]