DC judge refuses to delay Fodness trial

Jury selection Aug. 24 in Rusk County; trial begins Aug. 27

MENOMONIE — A Dunn County judge has refused to delay the trial scheduled for former Colfax resident Michael Fodness that is set to begin August 27 in Rusk County.

The Honorable Judge William C. Stewart, Jr., denied a motion filed by Fodness’s attorney, Shirlene Perrin, to continue the trial to a different date during a hearing in Dunn County Circuit Court August 15.

Fodness, 44, is charged with 14 counts of sexual assault of a child under the age of 16, child enticement, sexual intercourse with a child, misdemeanor bail jumping, intimidation of a witness, and repeated sexual assault of a child.

According to the sixth amended criminal complaint filed with the court, Fodness’s address is listed as Bella Vista, Arizona.

Perrin, a public defender, told the court she wanted to delay the Fodness trial because she has been experiencing difficulty in finding another investigator for the case.

The former investigator, who was willing to work for the $20 per hour that the public defender’s office is willing to pay, has retired, she said.

The former investigator said he would be willing to continue with the Fodness case, but Perrin said she discovered that he is having medical problems, has not completed work that he said he would complete, and is refusing to attend the trial.

Other investigators Perrin has contacted said they will work for $50 per hour but not the $20 per hour the public defender’s office will pay.

“I feel like we’re stuck between a rock and a hard place,” Perrin said.

Perrin asked the court for money to help compensate an investigator.

Judge Stewart said he did not have a budget to pay investigators. If the court were to ask for an appropriation from the Dunn County Board, the process would take a minimum of 60 days, he said.

Dunn County Assistant District Attorney Andrew Maki said that the case had generated about a thousand pages of evidence that included statements from witnesses.

Selective prosecution

Perrin also had filed a motion with the court to dismiss the case because of “selective prosecution.”

One of the alleged victims made complaints about a stepfather, sex parties and prostitution, and made admissions of sexual activity with other adults, but none of the other people were charged, Perrin said.

Investigators also said they had been “after” Fodness for ten years or 20 years and made a specific attempt to gather information on Fodness but paid no attention to the other crimes, she said.

Maki noted that the district attorney’s office was unable to prove the other allegations.

Many factors go into deciding whether to prosecute a case, including whether enough information can be gathered to prove the case to a jury, he said.

In the Fodness case, “there were numerous allegations from numerous women that the defendant had sex with them when they were underage,” Maki said.

Judge Stewart denied Perrin’s motion, stating that prosecutors act within their discretion to prosecute certain cases and that Fodness was not a member of a “protected class.”

Once an individual is a target of a criminal investigation, no rule exists requiring prosecutors to follow all tangential leads, Judge Stewart said.

Pedophile

Perrin also filed a motion concerning the use of the word “pedophile” during the trial and was concerned about the terms “child molester” and “child pornography” as well.

The word “enticement” was of concern, too, Perrin said, because she did not believe that people who would be selected for the jury would know what the word means and discussed using “cause” or “make.”

The term “pedophile” is defined as an adult who has a sexual desire for children who have not yet reached puberty.

In a clinical sense, “pedophile” does not refer to the Fodness case, she said.

Judge Stewart said the defense and the prosecution should be careful about questioning and cross-examination, but if an expert witness uses the term “pedophile,” it would be fair game to ask the basis of the opinion.

As for child pornography and child molester, pornography does not apply to this case, and molestation does not have a clinical definition, Judge Stewart said.

As for enticement, the word “cause” is appropriate because it relates to “getting someone to do something,” he said.

On the other hand, using the word “make” implies using physical force, Judge Stewart said.

Intimidation

In addition, Perrin asked that the counts related to bail jumping and intimidating a witness be removed from the current case.

The sexual assault of the alleged victim should be put into a separate file, Perrin said.

The young woman in question accused Fodness of having sex with her, and after Fodness was arrested, he asked another young woman to contact the first young woman to threaten her, Maki said.

The two counts are not “other acts” evidence but are direct evidence that support the charges, Judge Stewart said, once again noting “prosecutorial discretion.”

Trial

Perrin said the trial should be delayed because of the problems with finding another investigator and the amount of evidence to review.

Fodness has been in custody for almost two years; the case has a substantial number of alleged victims, who also have a right for the case to be concluded, Judge Stewart said.

This case needs to be tried … there needs to be a resolution,” Judge Stewart said.

If the trial were delayed until October or November, Judge Stewart said he could not guarantee he would be able to find another county and another courtroom in which to try the case or whether he could find time on his own calendar.

“Both sides have had ample time (to prepare),” Judge Stewart said.

Rescheduling the trial would ensure a fair trial for the defendant, Perrin said.

Judge Stewart said that Perrin, as a public defender, is giving Fodness adequate representation.

“I do believe you are prepared,” he said, noting that both sides would probably say they could use more time.

“If I delay (the trial) for six months, I would hear the same arguments,” Judge Stewart said.

Jury selection in the case is scheduled for August 24 in Rusk County.

The Fodness trial is scheduled for August 27 through August 31.

Perrin had previously asked for a change of venue, and Judge Stewart had granted the change, not because of pre-trial publicity, but because of the number of potential victims and witnesses in Dunn County.

At one point in the case, the Fodness trial had been scheduled for last February.

Fodness remains in custody on a $100,000 cash bond.

Perrin is the fourth attorney assigned to the case..