By LeAnn R. Ralph
LADYSMITH — A Dunn County judge has declared a mistrial in the case against former Colfax resident Michael Fodness after the jury saw a videotape in which the interviewer said Fodness has already been convicted of other crimes.
The declaration of a mistrial came after only the first day of a seven-day trial scheduled in Rusk County Circuit Court that began February 4 before the Honorable Judge William Stewart from Dunn County.
Fodness, 45, is charged in Dunn County with multiple counts that include second-degree sexual assault of a child, child enticement, intimidating a witness and repeated sexual assault of the same child.
Fodness also is charged with several misdemeanor counts of bail jumping.
A mistrial was declared the morning of February 5.
The day before, a videotape of an interview at the Dunn County Sheriff’s Department in April of 2010 with one of the alleged victims had been shown to the 14-member jury of 12 jurors and two alternates.
The videotape was described as an informational interview with the alleged victim, who was 16 at the time but is now 19 years old, and was conducted by Rod Dicus of the Dunn County Sheriff’s Department.
The alleged victim testified in court prior to the videotape and appeared to have trouble remembering certain details from incidents that had allegedly occurred four years ago.
At one point during the 45-minute taped interview, Dicus told the girl that Fodness had been convicted of other crimes in Wisconsin, Minnesota and Arkansas.
The interview was taped after Fodness had allegedly sent text messages to the girl following a “no contact” provision when Fodness was released on a bail amount of $1,000 cash.
Fodness allegedly told the girl to threaten another alleged victim.
Dicus telling the girl that Fodness had been convicted of other crimes was “prejudicial information” that the jury should not have heard, said Shirlene Perrin, Fodness’s attorney.
Perrin told the court she was filing a motion for a mistrial because the “false statements of the investigator” and the “opinions of the investigator” would influence the jury and that the court “was allowing information that was prejudicial.”
Perrin’s motion was filed late February 4 after the jury had left the courtroom.
Dunn County Assistant District Attorney Andrew Maki, the prosecutor in the case, suggested that Judge Stewart could instruct the jury to disregard the statements they had heard about Fodness’s prior criminal record.
Judge Stewart noted that he had asked Perrin if she’d had time to review the transcript of the interview and that Perrin had said all of the taped interviews should be played and not just one tape.
The judge said he had expressed concern whether portions of the tape would need to be redacted (edited out) before the jury could listen to the tape but that neither Perrin nor Maki had said the tape required redaction first.
Ringing a bell
On the morning of February 5, Judge Stewart said that he had thought long and hard about the situation and Perrin’s motion for a mistrial.
In considering the granting of a mistrial, Judge Stewart outlined three issues: whether there are alternatives to a mistrial that are reasonable; what effect the information in the taped interview would have on the jury; and whether Fodness could get a fair trial after the jury had listened to the tape.
Explaining to the jury that they should disregard the entire interview would not be effective, Judge Stewart said.
Telling the jury that “falsehoods are okay” also would not be effective, he said.
Trying to justify the conduct of the interviewer would create confusion for the jury, Judge Stewart said, noting that the real issue was whether Fodness could get a fair trial under the circumstances.
The biggest question facing the court is “can this bell be unrung?” Judge Stewart said.
The judge’s conclusion: “No, it cannot be unrung.”
Therefore, since the damage could not be undone, it was necessary to grant the motion for a mistrial, Judge Stewart said.
“I appreciate that everyone put a lot of time and energy into preparing for this trial,” he said.
According to online court records, Fodness has been convicted of several other felonies and misdemeanors in Dunn County and convicted of a misdemeanor in Chippewa County.
Judge Stewart granted a change of venue for the trial because he was concerned that the number of potential victims and the number of relatives of the potential victims could make it difficult to find an impartial jury in Dunn County.
Following his declaration of a mistrial, Judge Stewart left the courtroom to communicate with the jury and to release them from duty.
Fodness remains in custody on a $100,000 cash bond.
A hearing for Michael Fodness is scheduled in Dunn County Circuit Court on February 18 to see about scheduling another trial date.
When asked to make a statement about the mistrial, Maki, who appeared visibly shaken and upset, said he preferred not to make any comments.
Fodness’s attorney was quietly triumphant.
“The judge made the right decision under the circumstances,” Perrin said.
During her testimony on February 4, the 19-year-old woman said she had met Michael Fodness in 2009 when she was 15 years old.
The young woman said that Fodness had supplied her with marijuana, alcohol and gifts, such as cell phones.
When asked if she knew Fodness’s age, the young woman said she knew how old he was.
In 2009 when the young woman was 15, Fodness would have been 41 years old.
When asked how many times she’d had sexual intercourse with Fodness, the young woman replied, “too many times,” and when asked if it was more than 50, she replied, “probably — yes.”
When asked if she had loved Fodness, the young woman said she did not know.
When asked if she considered Fodness to be a boyfriend, she replied, “sometimes.”
When asked if she remembered what Fodness’s cell phone number was four years ago, the young woman recited it without hesitation.
The young woman also testified that she would frequently stay with her best friend and that she would sneak out of the house in the middle of the night to go see Fodness.
During the taped interview at the Dunn County Sheriff’s Department in April of 2010, the young woman said she considered Fodness her “best friend,” that she wanted to live with him when she turned 18 and that she wanted to marry him but denied that Fodness had engaged in sexual contact with her.
“It’s not his fault. It’s all my fault,” she told the interviewer.
The only reason that Fodness sent text messages to her saying “I love you” was to “get me off his case,” she said.
The young woman repeatedly told the interviewer that she did not want Fodness to get into any trouble because he was her “best friend.”