By LeAnn R. Ralph
MENOMONIE — Following the continuation of a motion hearing, a circuit court judge still has not decided whether Gary Wayerski, the former chief of police in Wheeler, should receive a new trial.
Wayerski, who was convicted in 2012 on 16 felony counts of sex crimes against teenaged boys, appeared in Dunn County Circuit Court March 6 with his attorney, Edward J. Hunt, for the continuation of a December 29 motion hearing to request a new trial.
The Honorable Maureen Boyle, a judge in Barron County, is presiding over Wayerski’s motion hearing and continued the December hearing to March 6.
In his arguments for a motion to grant a new trial, Hunt is alleging that Lester Liptak, the public defender assigned to represent Wayerski, provided inadequate counsel.
During the six-hour hearing in December, 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 who would have testified in favor of his client.
The Honorable William C. Stewart, Jr., presided over Wayerski’s trial and retired in December of 2013.
Ben Webster, the special prosecutor from Eau Claire County who prosecuted the Wayerski case, called Scott Kuehn, an Eau Claire County Sheriff’s Department detective, to the witness stand at the March 6 hearing.
Webster asked Kuehn about one of the witnesses at Wayerski’s trial, John Clark, an inmate in the Chippewa County jail.
Wayerski was held in the Chippewa County jail prior to the 2012 trial to ensure his safety, since he had served as a police officer in Dunn County.
Clark testified at trial that Wayerski had confessed to him about the crimes against the teenaged boys.
Wayerski was arrested in July of 2011, and Kuehn testified that Clark had asked to meet with him in September of 2011.
Kuehn testified that when he spoke to Clark in September of 2011 and in April of 2012, he did not know why Clark was in the Chippewa County jail.
Kuehn also said did not know what Clark had been charged with at the time of Wayerski’s trial
A criminal complaint was filed against Clark in Chippewa County in September of 2012 on one count of causing a child 13 to 18 years of age to view sexual activity and two counts of sex with a child aged 16 or older — essentially the same charges that had been brought against Wayerski.
Hunt alleges that Webster, as the prosecutor, knew about the charges against Clark but did not give that information to Wayerski’s defense attorney, Liptak.
If Liptak had known about the charges against Clark, he could have cross-examined Clark about the pending charges against him and could have raised questions about his credibility as a witness and whether he had been promised anything by prosecutors in return for his testimony, Hunt said.
Clark had a “holier than thou” attitude and said he was “horrified” by the charges against Wayerski because they were sex crimes against children, he said.
Clark is a hypocrite and made “sexual moral virtue an issue,” Hunt said.
By his testimony, Clark “opened the door” to challenging his credibility, he said.
What it comes down to, said Judge Boyle, is whether Webster’s failure to give the National Crime Information Center (NCIC) report on Clark’s pending charges and prior convictions to Liptak was a “harmless error” or “does it make a difference; is it a game changer?”
Kuehn testified that he had not made any promises to Clark and did not offer him anything in return for his cooperation to testify against Wayerski.
During Kuehn’s interviews, Clark provided information about the two teenaged boys — such as knowing Wayerski through church and that their parents had asked Wayerski to keep an eye on them — that caused Kuehn to believe Clark had obtained intimate knowledge through discussions with Wayerski, Kuehn said.
Webster told the court that he’d had a copy of the Clark complaint prior to the Wayerski trial but that the Clark case was not related to the Wayerski case by victims or witnesses or probable cause.
Webster also told the court that he had not offered Clark anything in return for his testimony.
Webster told the court that the NCIC report on Clark is no longer in Wayerski’s case file.
When files in his office are closed, the criminal histories are removed, Webster said.
The issue is what was in the NCIC report about pending charges against Clark, Judge Boyle said.
It was established during the March 6 hearing that the information was not given to Liptak, and the question is whether it would have made a difference in Wayerski’s trial, she said.
Information that was in control of the prosecution, that if it was supposed to be turned over to the defense and was not, what effect would that have had? she asked.
Is it a harmless error — or is it so crucial that Wayerski should receive a new trial? Judge Boyle said.
Judge Boyle asked Kuehn if he had run an NCIC report on Clark, but Kuehn said he did not.
The NCIC report on Clark that Webster had in his possession prior to and at the time of the Wayerski trial would be relevant evidence, Judge Boyle said.
Webster said another NCIC report could be requested for a similar timeframe as the original report but agreed that it might not be an exact copy of the report he had at the time of Wayerski’s trial.
Webster said he would check with the sheriff’s departments involved in the case to see if anyone has a copy of the NCIC report.
Webster said he had looked through Clark’s criminal record with Liptak but that they had not engaged in a conversation about pending charges against Clark.
Clark was aware of his own illegal activities, and speaking with Kuehn a month after engaging in criminal activity that was similar to what Wayerski had been charged with “speaks to his motivation and why he was reaching out to Kuehn,” Hunt said.
Judge Boyle will continue the hearing on May 4 in Barron County Circuit Court and said she would allow additional oral arguments and would issue an oral decision.
Wayerski worked part-time as a police officer in Colfax for nine months in 2009 and later worked part-time as a police officer in Boyceville. He 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 certification.
The Village of Wheeler had been without a police officer for several years because of budget constraints.
The Wheeler Police Commission terminated Wayerski’s employment in October of 2011.
Wayerski was sentenced to 14 years in prison and 16 years of probation in January of 2013.