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  • WisBar News
    March 10, 2014

    Plea Withdrawal in Child Abuse Case Would Substantially Prejudice the Prosecution

    March 10, 2014 – A mother accused of brutally beating her 14-year-old daughter cannot withdraw her no contest pleas, the state supreme court has ruled, because allowing a trial at this stage would substantially prejudice the state’s case against the mother.

    In 2008, Madison police responded to reports of suspected child abuse and found the child-victim badly beaten. The victim’s mother, Minerva Lopez, admitted instances of severe child abuse. A few weeks after police rescued the victim, she described the types of abuse she had endured in videotaped interviews, her body still recovering.

    Police found her bloodied with a broken knee cap and bruises and lacerations on her head and body. She said her mother had beaten her with a metal baseball bat, burned her with boiling water, and used other weapons to punish her daughter repeatedly.

    At the outset of the case, the state notified the court and the defendant that it intended to admit the videotaped interviews into evidence under Wis. Stat. 908.08, which allows the state to bring such evidence if the victim is under the age of 16 at the time of trial.

    Before trial, Lopez entered no contest pleas on six of 22 child abuse counts. The victim’s father, also accused of child abuse, went to trial separately and was convicted.

    The state used the video recordings in the case against the child’s father. He was sentenced to 20 years in prison with 37 years of extended supervision.

    In May 2010, more than a year after she was charged, Lopez was awaiting sentencing when she moved to withdraw her pleas. She said she did not voluntarily or knowingly enter the pleas because of language barriers. Her English is limited, she said.

    The circuit court denied the motion. Specifically, the circuit court ruled that Lopez showed a fair and just reason to allow withdrawal based on language barriers, but allowing withdrawal would substantially prejudice the state’s case against her.

    The state’s case would be prejudiced, the court noted, because the state would not be able to use the videotaped interviews of the victim, who had since turned age 16. Instead, the state would be forced to rely on her in-person testimony alone.

    “I think this is an absolutely clear and easy call on my part to find that if the State was not allowed to use the Safe Harbor tapes it would result in substantial prejudice to the state,” concluded Dane County Circuit Court Judge Nicholas McNamara.

    Judge McNamara noted the passage of time since the recordings were taped, the fact that therapy had hopefully allowed the victim to forget some of what she had experienced, and the taped interviews provided compelling evidence close-in-time.

    The circuit court sentenced Lopez to 20 years in prison with 10 years of extended supervision. On the plea withdrawal issue, the court of appeals reversed, concluding the state’s case would not be prejudiced even though it could not use the taped interviews.

    The appeals court noted that video could still be used to show victim’s physical condition, but her age precluded use of video testimony. The victim could still testify in court, and suggesting her memory had faded was speculative, the appeals court noted.

    Majority Reverses Appeals Court

    A supreme court majority (5-2), in State v. Lopez, 2014 WI 11 (March 7, 2014) ruled the circuit court had it right and reversed the court of appeals. The majority concluded that the state’s case would be substantially prejudiced if the pleas were withdrawn.

    “The circuit court did not erroneously exercise its discretion when it concluded that the State would be substantially prejudiced if Lopez were allowed to withdraw her pleas,” wrote Justice Annette Ziegler, noting that the videotapes could not be used at trial.

    The majority ruled that the circuit court judge applied the appropriate test to determine if prejudice would result. For instance, the judge properly considered how the passage of time may impact the victim’s memory and a jury’s perception of her, now healthy.

    Concurrence and Dissents

    Justice David Prosser joined the majority opinion by wrote a concurring opinion “to suggest that the fair and just reason rule should be reexamined and revised so that a defendant is required to meet a higher burden before plea withdrawal. …”

    Under the fair and just reason rule, the defendant must show a fair and just reason to justify the plea withdrawal. The state did not argue that Lopez lacked a fair and just reason to withdraw the pleas. The state focused on the prejudice argument.

    But Justice Prosser argued that the rule, adopted in 1967, “warrants reconsideration because it lacks a sound policy basis and minimizes important protections for defendants in the criminal justice system.” Justice Michael Gableman agreed.

    Chief Justice Shirley Abrahamson and Justice Ann Walsh Bradley each wrote dissenting opinions and joined the dissenting opinion of the other.

    Justice Bradley concluded that “neither the record nor the law supports a conclusion of substantial prejudice here,” noting that the circuit court judge speculated as to the victim’s memory loss and ignored other strong evidence against Lopez.

    The chief justice challenged Prosser’s concurrence, arguing that “[i]mportant policy rationales underlie the continued application of the ‘fair and just reason standard. …” 

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