WisBar News: New Trial Ordered for School Bus Driver Convicted of Sexual Assault :

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    New Trial Ordered for School Bus Driver Convicted of Sexual Assault 

    Joe Forward
    Legal Writer

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    A bus driver accused of sexually assaulting a student will get a new trial because the circuit court excluded evidence that showed the student had a motive to fabricate her story.

    Feb. 28, 2013 – A school bus driver accused and convicted of sexually assaulting a Whitefish Bay High School student will get a new trial, a state appeals court has ruled.

    Bus driver Gene Echols was 23 years old when a 15-year-old student accused him of sexually assaulting her on the bus. The student was the first passenger on the bus, so no other students were present on the morning of the alleged incident.

    But Echols says the student fabricated the story to garner sympathy, because she was facing potential expulsion. The student had a lengthy disciplinary record. Echols was going to report her for throwing and threatening to throw snowballs at him.

    Echols sought to introduce the student’s disciplinary record at trial. The Milwaukee County Circuit Court refused to admit the records, concluding they were inadmissible “other acts” evidence that would unfairly prejudice the student. The court also ruled that the disciplinary records were unlawfully obtained by defense counsel.

    In addition, the trial court allowed testimony from Echols’ supervisor, who said Echols would sometimes lie to her if he was late for work. The supervisor said she could tell he was lying because he would stutter and avoid eye contact in those instances.

    The prosecution used the testimony to paint Echols as dishonest. The court allowed the testimony, after the defense objected, ruling that Echols “opened the door” to this character testimony by eliciting evidence of his good character from the supervisor.

    The defense provided testimony that Echols has stuttered since childhood, suggesting this speech impediment was not triggered by the nervousness associated with lying.

    After weighing the evidence, the jury found Echols guilty of second-degree sexual assault and sexual assault of a child by someone who works with children.

    In State v. Echols, 2012AP422-CR (Feb. 20, 2013), the District I Wisconsin Court of Appeals reversed and remanded the case with orders for a new trial.

    The three-judge appeals panel said the disciplinary records, including a “behavioral contract” that proved the student would be expelled if involved in another school-related altercation, should have been admitted.

    The panel noted that “other acts” evidence may be admitted if offered for an acceptable purpose, the evidence is relevant, and the probative value of the evidence substantially outweighs the danger of unfair prejudice, among other factors.

    “[W]e conclude that evidence was offered for an acceptable purpose: showing that the student had a motive to fabricate the assault,” Judge Patricia Curley explained.

    The evidence was also relevant, the panel explained, because it would show the student knew she would be expelled if the bus driver reported that she threw a snowball that hit him in the face, and threatened to do it again.

    “Thus, the prohibited evidence was central to Echols’ theory of the case and the real controversy was not tried,” wrote Judge Curley, also noting that admitting this evidence would shed light on the student’s credibility and would not unfairly prejudice the student.

    The court ruled that the records were properly obtained under the state’s pupil records statute, Wis. Stat. section 118.125(2)(f), even though defense counsel obtained them from the school directly and did not request them through subpoena.

    Finally, the panel ruled that testimony from Echols’ supervisor – that he stuttered only when lying – should have been excluded and the error constituted reversible error.

    “[T]he safety director’s testimony in the case before us is an improper opinion that Echols lies when he stutters,” explained Judge Curley.

    Whether Echols stuttered when he lied, the panel explained, “had nothing to do with whether he assaulted the student” but heavily prejudiced Echols’ credibility.