By LeAnn R. Ralph
MENOMONIE — Instead of arguing that John Bruce should not be tried a second time for the repeated sexual assault of a child that allegedly occurred 15 years ago, Bruce’s attorney has switched tactics and is asking that certain evidence be excluded from a trial.
Bruce, 41, appeared in Dunn County Circuit Court September 6 along with his attorney, Kerry Kelm.
A one-day jury trial on May 2 for a single felony count of the repeated sexual assault of a child ended when Judge William Stewart declared a mistrial.
Bruce is accused of sexually assaulting a girl born in 1993 from January of 1995 to October of 1998 and that the assaults occurred in Boyceville and in Wheeler when the defendant lived with the child’s mother.
Kelm filed a motion with the court August 15 to argue that underwear evidence should be excluded from a trial because the evidence had been destroyed.
Since the underwear has been destroyed, using testimony about the garment in a second trial would violate Bruce’s constitutional right to confront his accuser and witnesses, Kelm said.
If no underwear can be presented at trial, that eliminates the opportunity for cross examination, she said.
“It is a straight-forward constitutional issue,” Kelm said.
During the years since the underwear was identified as evidence, laws have changed about how long evidence must be kept, she noted.
William Schembera, who appeared with Bruce during a court hearing in July in lieu of Kelm, told the court that attorneys representing Bruce intended to file a motion to prevent the second trial.
People who served on the jury in May indicated that the jury would have voted 11 to one that Bruce was not guilty, Schembera said.
Schembera said jurors would be called to testify about how they had intended to vote.
During the July hearing, Judge Stewart said he was not sure if a poll of how jurors said they might have voted would be admissible in court.
At the September 6 hearing, Dunn County Assistant District Attorney Andrew Maki pointed out that the court had been told a motion would be filed arguing that a second trial should not be scheduled.
But now, Maki said, the argument has changed to eliminating certain evidence during a trial.
Maki said he had only received Kelm’s motion on August 27 and that he wanted to file a written response with the court.
Judge Stewart said he wants the matter resolved but that he also wants to “get it right.”
To give Maki time to file a written response, Judge Stewart said the response would be due at the close of business on Thursday, September 12.
Judge Stewart said he intends to issue a written decision on the matter by the next day.
The order Judge Stewart issues is expected to include information about scheduling for a pre-trial and a two-day trial.
During a hearing held in April, Maki asked that evidence of a prior conviction of the first-degree sexual assault of a child in St. Croix County be admissible in the current Dunn County case, and Judge Stewart ruled that evidence of a prior conviction would be admissible.
The judgment of conviction will not identify the victim, however, and if any identifying information exists in evidence presented that identifies the prior victim, the information should be removed, Judge Stewart said at the April hearing.
Bruce remains free on a $5,000 signature bond.
According to the complaint, the alleged victim came forward with accusations of sexual assault three years ago when she was 17 years old.
Bruce was between the ages of 23 and 28 when the alleged assaults occurred.
Repeated sexual assault of a child is a Class B felony that carries a penalty of up to 40 years in prison.