DC judge dismisses case against Colfax man and DA immediately refiles
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By LeAnn R. Ralph
MENOMONIE — A Dunn County judge has dismissed a case involving a 19-year-old Colfax man accused of the sexual assault of a child, and during the same court hearing, the district attorney refiled the case.
Brady J. Agema, along with his attorney, Harry Hertel, appeared before Judge James Peterson in Dunn County Circuit Court August 11.
Agema is charged with three felony counts of the first-degree sexual assault of a child under the age of 13, two felony counts of the possession of child pornography, and one misdemeanor count of resisting or obstructing an officer.
The guardian of the alleged victim has requested that Agema submit to testing for sexually transmitted diseases, including human immunodeficiency virus (HIV).
Dunn County Assistant District Attorney Amber Hahn had filed a request for a court order requiring Agema to be tested for sexually transmitted diseases.
Hertel, Agema’s attorney, is arguing that Agema cannot be required to be tested for sexually transmitted diseases according to the timelines included in state statute that allow a defendant to be ordered to submit to testing.
No case law
Assistant DA Hahn said she had reviewed Hertel’s arguments filed with the court but had not responded because she was not able to find any case law that addressed the precise issue.
Instead, Hahn said, she had filed with the court information on laws and statutes that might be helpful in assisting Judge Peterson in assessing all of the facets “of a novel issue.”
When a case is filed under Chapter 950 in state statutes (rights of victims and witnesses of a crime), forms are sent to an alleged adult victim, or to the guardian of an alleged juvenile victim, asking whether the alleged victim or the guardian of an alleged victim wants to request testing for communicable diseases, Hahn said.
Depending upon the specific case, the time between the initial hearing and preliminary hearing does not always make it possible to get the paperwork back by the time of the preliminary hearing, she said.
Under state statute 968.38, the district attorney can ask for a court order requiring a defendant to submit to testing at or after the initial appearance and prior to the preliminary hearing.
State statute also allows the district attorney to request testing, if the defendant waives the preliminary hearing, at any time after the court binds the defendant over for trail and before a verdict is rendered.
The main argument of the defendant is a technical or legal argument that the court cannot order testing, that in the long time that can occur between a preliminary hearing and a finding of guilt, there is no ability of the alleged victim or the guardian of an alleged victim to request testing unless the preliminary hearing is waived, Hahn said.
“That can’t possibly be the right interpretation of the law,” she said.
Dismissed
Under the circumstances, Hahn said one option would be to dismiss the case and refile the case during the current hearing, which would set new timelines under state law, and that when she refiled the complaint, she would also file a motion for the testing of sexually transmitted diseases.
Hertel said he understood Hahn’s position and that he would intend to subpoena a witness for the preliminary hearing if the case were refiled.
The witness would not be an alleged victim, he said.
A preliminary hearing in the first case was held June 3 but an arraignment hearing had not yet been held as of August 11.
During a preliminary hearing, witnesses can be asked to testify, and the judge uses the testimony and the criminal complaint to determine whether there is probable cause to believe a crime has been committed, and if the judge has determined probable cause, the defendant is “bound over for trial.”
An arraignment hearing is scheduled after the preliminary hearing.
During an arraignment hearing, the defendant is asked whether he or she pleads “guilty” or “not guilty” to the charges.
Since no arraignment hearing had yet been held, “it would make sense” to dismiss the case, refile the criminal complaint and to consider the current hearing to be the initial hearing in the refiled case, Hahn said.
Refiled
Judge Peterson said he would allow the case to be dismissed without prejudice (which means that it can be filed again) and noted that Assistant DA Hahn had immediately refiled the case, using the same criminal complaint that had been used in the first case.
Hertel told the court that Agema was waiving his right to ask for a speedy preliminary hearing within 20 days and also asked for proof that the alleged victim’s guardian had asked for testing for sexually transmitted diseases.
A preliminary hearing has been scheduled in Dunn County Circuit Court on September 9 at 11:15 a.m.
Agema has been ordered to have no contact with anyone under the age of 18, except for his own children, and to have no contact with the alleged victim.
Assistant DA Hahn said that there were two victims who were 12 years old and 15 years old at the time of the alleged sexual assaults.
The same bond of $5,000 cash will apply in the newly-filed case, Judge Peterson said.
Bail was set for Agema at $10,000 cash on May 10, but Judge Peterson amended the cash bail to $5,000 at Agema’s initial appearance in the first case May 11.
Agema posted the $5,000 cash bail on May 13.