By LeAnn R. Ralph
MENOMONIE — Gary Wayerski, the former chief of police in Wheeler convicted by a jury on 16 felony counts of sex crimes against teenaged boys, is asking for a new trial.
Wayerski, along with his attorney, Edward J. Hunt, appeared in Dunn County Circuit Court for a motion hearing December 29 to request that a new trial be scheduled.
In his questioning of Lester Liptak, the attorney assigned to Wayerski as a public defender and who represented Wayerski during the trial and through the sentencing hearing, Hunt alleged that Liptak had provided inadequate counsel for Wayerski.
Hunt said Liptak missed a number of opportunities to request a mistrial, that he failed to request certain potential jurors be dismissed, that he failed to object to the charge of sexual assault of a child “by a person who works or volunteers with children,” and that he failed to challenge certain witnesses for the defense and failed to call other witnesses that would have testified in favor of his client.
The Honorable Maureen Boyle presided over the motion hearing that started at 8:30 a.m., went until after 3 p.m. and was continued to March 6.
Liptak was on the witness stand for most of the day, answering questions posed by Hunt and by Ben Webster, the special prosecutor from Eau Claire County who prosecuted the Wayerski case.
Wayerski was convicted following a five-day jury trial in Dunn County in October of 2012.
The Honorable William C. Stewart, Jr., presided over Wayerski’s trial.
Judge Stewart retired in December of 2013.
In January of 2013, Wayerski was sentenced to 14 years in prison and 16 years of extended supervision for the first two felonies of child enticement, along with either a one-year or a three-year sentence on the additional 14 felonies to be served at the same time as the prison sentence on the first count.
Wayerski also was sentenced to one year, two years or three years of extended supervision on the additional 14 counts to be served at the same time as the extended supervision for the first count.
During the trial in 2012, Wayerski testified on his own behalf and said that none of what the two teenaged victims described had ever happened and that he had been “set up” because he was getting too close to arresting people responsible for selling drugs in Wheeler.
During the motion hearing for a new trial, Hunt told the court that he had been unable to get another witness out of prison and transported to Dunn County to testify on behalf of Wayerski’s request for a new trial.
The prison at Stanley requires 48 hours of notice for transporting prisoners, and Hunt said he had been unable to fax the request until 4:30 p.m. on the Friday before the Monday morning hearing.
Since one of the witnesses was unable to be in court, Hunt requested an additional day to continue the hearing.
During the motion hearing, Hunt said that Liptak had failed to challenge one of the jurors, a jail nurse in Chippewa County who was familiar with Wayerski.
Wayerski was held in the Chippewa County jail rather than the Dunn County jail.
In addition, Hunt said that Liptak had failed to ask witnesses for their opinions on whether the two teen-aged victims had been telling the truth and that some of the witnesses had heard the teenagers recant their stories and said it did not happen.
Hunt said that the jury had heard a reference to Wayerski’s suicide attempt and that Liptak should have asked for a mistrial.
Liptak said that Wayerski’s suicide attempt could indicate either guilt or innocence, because after the allegations were made, Wayerski would have known that his career in law enforcement was over.
Toward the end of the trial in October of 2012, a witness for the prosecution was called who was incarcerated at the Chippewa County jail at the same time as Wayerski.
The inmate claimed that Wayerski had confessed to him, Hunt said, but when Wayerski took the witness stand to testify on his own behalf, Liptak had not asked Wayerski if he had confessed to the other inmate.
Hunt said, too, that Liptak had failed to use the pending charges against the witness to attack his credibility.
The inmate was accused of multiple crimes, including soliciting a child for prostitution and having sexual intercourse with a child, Hunt said.
Liptak could have used the opportunity to cross examine the witness and bring his credibility into question but did not, Hunt said.
Liptak testified that he had been told the jail inmate was not receiving any special consideration in his own case for testifying against Wayerski, that his testimony was spontaneous and that he came forward because he was being a good citizen.
“I will not speculate,” Liptak said, adding that he had reason to believe the jail inmate was receiving special consideration for his testimony but had no evidence to support his opinion.
At one point in the hearing, Liptak testified that he has been an attorney for 30 years, and that he stopped counting the number of trials he has been involved with when he reached 160 or 170.
As for pornographic pictures used as evidence during the trial, none of them were specifically related to the case, and none of the photos depicted either of the teenaged accusers, Hunt said.
Numerous pornographic photographs had been found on Wayerski’s computer, although Wayerski said that a Stout student living with him had downloaded the pictures.
The photographs depicted a variety of young men.
Liptak said he had vigorously and continuously objected to the photographs being shown as evidence.
Showing all of the pictures certainly would not have harmed the prosecutor’s case, Liptak said, adding that while he did not think Webster had done anything unethical, the prosecutor had wanted 250,000 pictures shown to the jury.
In the end, only a few of the photographs had been shown to the jury, Liptak noted.
The jurors did not have a prolonged review of the photos, Webster said.
Even though the jurors only looked at the photographs briefly, the pictures did have a long-lasting effect, Liptak said.
Wayerski, who worked part-time as police officer in Colfax for nine months in 2009 and later worked part-time as a police officer in Boyceville, was arrested July 18, 2011, in a cemetery in St. Croix County where he had intended to kill himself.
Wayerski had initially approached the Village of Wheeler in 2009 about serving as a police officer and said he needed to work a few hours a week to maintain his police certification.
The Wheeler Village Board hired him for four hours per week, although Wayerski volunteered more hours of his time.
The Village of Wheeler had been without a police officer for several years because of budget constraints and relied on the Dunn County Sheriff’s Department to respond when needed.
In December of 2010, the Wheeler Village Board increased Wayerski’s employment to 20 hours per week.
A group of Wheeler residents had attended a village board meeting in support of Wayerski a few months earlier to ask if it would be possible to increase Wayerski’s hours because a recent series of burglaries had left them feeling uneasy.
Wayerski seemed to have a good rapport with village residents of all ages, they said.
The Wheeler Police Commission terminated Wayerski’s employment with the village in October of 2011.
The motion hearing for a new trial in the Wayerski case will continue in Dunn County Circuit Court on March 6 at 1 p.m.