Motion hearing held in police officer shooting

Prosecutors, psychologist challenge whether the doctor’s testimony would be relevant
By: 
Warren Bluhm
News Editor

As the trial of an Oconto Falls woman for shooting and wounding a police officer approaches, the first of two scheduled motion hearings Jan. 25 featured a showdown between the defense attorney and a psychologist he wants to call as a witness.

Alisha Kocken, 31, has already pleaded no contest to attempted first-degree intentional homicide, resisting a police officer with the consequence of great bodily harm, battery or threat to a law officer and disarming a police officer. A jury trial is scheduled April 1-5 on the second half of Kocken’s plea — not guilty by reason of mental disease or defect.

During a struggle outside Kocken’s apartment Aug. 6, 2021, Kocken grabbed Officer Nicole Blaskowski’s gun and shot her in the head and chest. The officer was wearing a bulletproof vest, and the first shot grazed her forehead. A third shot missed.

Prosecutors had challenged defense attorney John Miller Carroll’s plan to call psychologist Dr. Kevin Miller to testify about a brief examination he gave Kocken later in the month of August 2021 at Winnebago Mental Health Institute, where she was being treated after deputies expressed concern about some of her behavior in the Oconto County Jail.

The pre-trial hearing is known as a Daubert hearing, in which one or the other questions whether a potential expert witness’ testimony is relevant to the case. Miller had resisted Carroll’s efforts to bring him in as a witness and seemed to agree with prosecutors during his testimony at the hearing, which he presented over the Zoom teleconferencing software.

Prosecutor Mark Williams argued that Miller’s examination was conducted under the rules of Wisconsin State Statutes Chapter 51, specifically to determine whether Kocken could be considered dangerous to herself or others, while the trial is to determine whether she was legally responsible for her actions when she shot Blaskowski, under the rules of Chapter 971.15 and 971.16.

Williams — and Oconto County Circuit Court Judge Michael Judge — objected when, during his questioning of Miller, Carroll described the prosecutors’ motion as questioning the psychologist’s reputation and methodology.

“The basis for the Daubert hearing is that certainly this is an eminently qualified psychologist, but the methodology that he used in conducting this examination was not a methodology that is relevant for a 971.15 or 971.16 opinion,” Williams said. “His opinion is for a Chapter 51 diagnosis, and certainly that is not relevant in a 971.16 and a 971.15 examination. He did not examine this defendant under an NGI (not guilty because insane) standard.”

Miller agreed with the prosecution argument, and repeatedly told Carroll that he has no specific memory of meeting with Kocken.

“That year according to my records, beginning May 1 until the end of the year, I conducted approximately 178 exams,” he said. “I do not have independent recollection of this case, this report, what I reviewed, etc.”

Reviewing his report from that session, Miller confirmed that he checked boxes on a form indicating Kocken is mentally ill and on the schizophrenia scale. The report indicates he saw her for five to 10 minutes, tried to explain her rights, and the session ended when she said “I’m done talking with you” and left.

Miller said he agreed with Williams’ assertion that it would not be proper for him to testify in an NGI trial based on the August 2021 exam.

“Once I give a patient informed consent regarding the nature and purpose of the evaluation, I can’t then bait and switch or change horses in the middle of the stream. Otherwise I have committed an ethical violation,” Miller said. “I apparently produced a report that I have no independent recollection of, and since I did not inform her of the nature of the evaluation to include a 971 case; therefore, I have no opinion on this case.”

Carroll argued that he does not want Miller to testify as an expert witness but to acknowledge that psychologists treated Kocken for mental illness while she was in custody. A second psychologist is due to testify at a followup motion hearing Feb. 22.

“I’d like to brief the issue and order a transcript of this hearing,” Carroll said. “It’s that important to us that we get this right.”

“To be quite frank, I’m ready to rule from the bench but … I’ll give attorney Carroll till Feb. 2 to file his brief,” Judge said.

Williams said prosecutors have already filed briefs on the issue and have nothing further. Judge said he will file a written decision prior to the next hearing.

wbluhm@newmedia-wi.com