The July 10 Daubert hearing in which a witness for the state’s case against Pedro Noriega-Avila was to be present was hastily rescheduled after Shawano-Menominee County District Attorney Greg Parker reported that witness couldn’t fit the court hearing into her busy schedule.
With the trial a week away, the hearing was rescheduled for 2 p.m. July 15 in Branch II of the Shawano County Courthouse. However, it will depend on the witness being available to testify, and with Noriega-Avila due to stand trial on child sexual assault and incest charges two days later, there can be no further delays. It will also be dependent on whether a Spanish-speaking interpreter is available that day, something that is not always easy for the courts to schedule.
Parker said he was unable to “secure that witness” for July 10, but he spoke with defense counsel on the issue and was recommending the hearing be rescheduled. He claimed that the witness works for the Child Advocacy Center and did not expect the hearing to take more than an hour.
“Her calendar was completely full,” Parker said.
During a search for available times, 2 p.m. was the only open spot on Shawano-Menominee Circuit Court Judge William Kussel’s calendar, and even at that, there was only 45 minutes available.
Defense attorney James Schoenecker questioned Parker’s effort to get the witness to court.
“For the record, I just wanted to see if the state did actually send subpoenas for this witness,” Schoenike said.
Parker said he did not send out a subpoena to compel the witness to attend the hearing.
“I communicated with her but did not put out a subpoena for that purpose,” he said.
Schoenecker replied that, instead of trying to schedule another hearing to determine the value of the witness’s testimony to his client’s case, the witness should be excluded entirely.
Kussel expressed frustration and pointed out that he was due to leave for drug court training after the end of the hearing and would not be back in the court until July 15. He pointed out the difficulty of getting a court interpreter scheduled, as the ones who do work in Wisconsin have to bounce from court to court, sometimes via Zoom but many times having to attend court hearings in person.
“One of the problems that I have is not only finding dates on the calendar,” Kussel said. “Recently, a report from the state shows that, in Shawano County, we judges have the highest caseload in the state. Getting an interpreter here on short notice can be very, very difficult.”
Parker noted that, if necessary, the state’s case could go forward without the witness.
“If we can’t get her, it’s not a lynchpin,” Parker said. “We have everything else in place.”
Kussel ruled the state’s witness would be excluded if an interpreter could not be found for July 15.
The Daubert hearing was set one week before a three-day trial scheduled to begin for Noriega-Avila on July 17.
This is the second time a jury trial has been scheduled in Noriega-Avila’s case. He was originally scheduled to stand trial in August 2023 on one count of sexual assault of a child under age 13, two counts of sexual assault of a child and two counts of incest with a child by stepparent. The trial was halted after his attorney at the time, Sara Stertz, stepped down due to being in the late stages of pregnancy and disagreement with her client on defense strategies.
Since then, Noriega-Avila had been without representation. Court records show Schoenecker was appointed Jan. 4 to represent the defendant, followed by attorney Joe Furnstahl’s appointment on Feb. 1.
The criminal complaint states that Noriega-Avila allegedly went into the victim’s room between September 2009 and June 2010 and assaulted her. It goes on to say that additional incidents occurred in 2014 and 2015. Noriega-Avila married the victim’s mother on July 9, 2010.
Noriega-Avila initially appeared before Kussel on June 10, 2016, and subsequently posted a $5,000 cash bond. Noriega-Avila was then ordered to appear on June 20, 2016, but he did not show up. A warrant was issued for his arrest.
Noriega-Avila was missing from the court for almost five years until his arrest in Arizona in 2021. Law enforcement responded to a U.S. Border Patrol station on March 13, 2021, regarding the warrant issued by the Shawano-Menominee County Circuit Court for Noriega-Avila, and the defendant was already in custody when officers arrived.
In April 2021, extradition documents were issued by the county for Noriega-Avila, who was brought back to Shawano County in July 2021.
Noriega-Avila faces a maximum of 40 years in prison and a $100,000 fine for each of the incest counts and the latter two sexual assault counts. For the child sexual assault in 2010, he faces up to 60 years in prison.
Noriega-Avila remains in the Shawano County Jail on a $500,000 cash bond. He has been incarcerated for almost three years, mainly because of the difficulty in finding an attorney the first time around. It took until late 2022 before Stertz was found to handle the case.
lpulaski@newmedia-wi.com
State witness not available for Noriega-Avila hearing
