Judge will allow Fodness attorney to quit if new attorney available

By LeAnn R. Ralph

MENOMONIE — A Dunn County judge says he will allow the attorney for Michael Fodness to withdraw from the case if the public defender’s office agrees to assign another lawyer to represent Fodness.

Shirlene Perrin, the fourth attorney to represent Fodness in a case of alleged multiple sex crimes against young girls, filed a motion to withdraw April 16.

Perrin did not show up for a court hearing April 19 and was unable to be reached by telephone.

The Honorable William Stewart Jr. rescheduled the review hearing for April 25.

Perrin said at the April 25 hearing that she was asking to withdraw from the case because her daughter has a medical condition that has become substantially worse over the past six months.

Perrin told the court that her daughter is enrolled to participate in a three-week treatment program at Mayo Clinic in Rochester and that she will be required to be there with her daughter the entire three weeks.

The problem, Perrin said, is that she does not know when she will be notified that there will be an opening for her daughter.

A trial for the 45-year-old Fodness is scheduled in Rusk County May 13 through May 21.

Dunn County Assistant District Attorney Andrew Maki said he had no objection to Perrin withdrawing from the case.

Judge Stewart wondered if the alleged victims had had been notified and if they had voiced any objections.

Maki said he had not contacted any of the alleged victims but that several of them had contacted the district attorney’s office and that they were “not happy” about another delay in the case.

A trial for Fodness was originally scheduled in February of 2012. The trial was postponed until August of 2012 but was again cancelled when Fodness was stricken with appendicitis and was re-scheduled in February.

On the second day of a trial in Rusk County in February, Judge Stewart declared a mistrial.

Judge Stewart said that since Fodness had not asked Perrin to withdraw, he was allowed to make a statement to the court.

“I feel it will be in the interests of my cause to allow Miss Perrin to attend to her family issues … A commitment to family outweighs a commitment to the court or to me,” Fodness said.

“It will place me at a disadvantage, but it’s only fair that we allow her to attend to her familial duties and press on,” he said.

Ethics

Perrin told the court that she had contacted the state ethics board about her desire to withdraw, that she had talked about it with her daughter’s doctors, and that it was a “thoughtful decision.”

One rule of ethics is competency, Perrin said.

In this case, it is a matter of a “mandatory withdrawal” because she would be unable to be present to represent Fodness to the standard that is required, she said.

Concerns

Judge Stewart said that he had a number of concerns about Perrin’s motion to withdraw and described the Fodness case as “older than old.”

Fodness has asked for a speedy trial and that is why the trial was scheduled for May, he said.

If the motion to withdraw is granted, Fodness would be denied his constitutional right to a speedy trial, Judge Stewart said.

Fodness told the court that if the motion to deny was granted, he was prepared to withdraw his request for a speedy trial until a new attorney had been appointed to the case.

Fodness has been in custody in Dunn County on a $100,000 cash bond since October of 2010.

Availability

The issue of appointing a new attorney brought Judge Stewart to another concern.

The problem would be the availability of another attorney, he said.

The public defender’s office allows defendants to have four attorneys, and Perrin is Fodness’s fourth attorney, Judge Stewart said.

Fodness could waive his right to a speedy trial, but the public defender’s office may not assign another attorney to the case, and Fodness would be without an attorney, he said.

Time and information

Another concern for Judge Stewart is the amount of time that Perrin has spent preparing for the Fodness case.

Judge Stewart noted that he has five files (some of them accordion files) worth of information on the case and that Perrin has more information than that.

Perrin’s files include a year’s worth of work by a private investigator who now says that he is no longer willing to work on the case, Judge Stewart said.

Since the private investigator is no longer willing assist Perrin, the volume of information that was generated may be lost, he said.

Some of the information could be shared with a new attorney, but most likely, a new private investigator would have to start another investigation, Judge Stewart said.

“We’re not talking about a new attorney being ready to go to trial in three months,” Judge Stewart said, adding that it would probably take a new attorney three months just to review all of the information in the case so far, such as transcripts from court hearings and motions that have been filed.

Judge Stewart said he was sympathetic to Perrin but that her daughter’s medical condition “cannot be the court’s only consideration.”

In May of 2011, Fodness asked for a change of venue in the case, and the court district’s chief judge and the district court administration selected Rusk County as the location, Judge Stewart noted.

Conflict of interest

Fodness has only asked for one attorney to be removed from the case, Perrin said.

The next two attorneys withdrew because they had conflicts of interest and were representing some of the alleged victims in other cases, she said.

Perrin said she had spoken with the public defender’s office and that she has conferred with an attorney named Melissa Peterson for two years.

Peterson has said she would consider taking the case although she would not be prepared to go to trial in May, Perrin said.

Perrin said she thought it was likely the public defender’s office would not count attorneys who needed to withdraw from the Fodness case because of conflicts of interest.

So far this year, her daughter has missed 66 days of school because of an “autonomic dysfunction” that has become “progressively worse,” Perrin said.

The doctors have tried out-patient treatment, but it has not worked, and the next step is to try a three-week program of treatment that requires her to stay with her daughter, Perrin said.

Perrin said she has no family in the area to help her with her daughter, and that on occasion, neighbors have agreed to watch her daughter when Perrin has been required to be away from home.

Public defender

Judge Stewart said he would consider granting Perrin’s motion if he received assurance from the public defender’s office that another attorney would be appointed to the Fodness case.

Judge Stewart said it would be likely that a new attorney would need nine or ten months to prepare for trying the case.

“I want confirmation that the public defender’s office will appoint counsel. If they do, I will grant the motion reluctantly,” he said.

The ethics of Perrin’s competency to proceed under the circumstances also is a consideration for granting the motion, Judge Stewart said.

Judge Stewart said he wanted the case to be “done” but that he wanted it “to be done right” and wanted to make sure that Fodness’s rights to a fair trial are protected.

The judge said he would hold off making a formal decision to grant Perrin’s motion to withdraw until he had received correspondence from the public defender’s office.

After the court has received assurances that another attorney will be assigned to the case, Judge Stewart said he would set another hearing as soon as possible with the new attorney to get the trial back on the court calendar again.

Judge Stewart said he was taking Fodness’s statements about allowing Perrin to withdraw as a withdrawal of his request for a speedy trial.

After a new attorney has been assigned to the case, Fodness could again request a speedy trial.