An Oconto County judge Sept. 20 denied a defense motion to dismiss charges against an Oconto man accused of child sex assault, but the judge did confirm dismissal of three charges that he had dismissed before an April 2022 trial ended in a mistrial.
David SanRoman, 48, Oconto, is scheduled to stand trial Oct. 30-31 on charges of first-degree sexual assault of a child under age 13, in connection with an incident that allegedly occurred Jan. 31, 2018, and first-degree sexual assault of a child under age 12, for an incident that allegedly occurred Feb. 1, 2018. He is charged as a consistent repeater, which carries a life sentence if he is convicted.
Judge Michael Judge said the other three related charges were not specific enough as to when the alleged assaults happened.
“There were no set dates. It was over a period of years or ‘sometime before a certain month of a certain year,’” Judge said. “And I think that was not fair to the defendant and to the defense to try to tie that down. How does Mr. SanRoman address where he was, where the alleged victim was, what time of year – was it winter, fall? I mean there was nothing. It was just “sometime between the years of 2016 and 2017. That is too vague for this court, quite frankly, and I haven’t changed my mind.”
Defense attorney Michael Scholke argued that the case should be dismissed for lack of a speedy trial. SanRoman has been in custody since February 2020, and by the time the trial begins he will have been held for 1,518 days.
District Attorney Hannah Schuchart argued that SanRoman had the power to ask for the mistrial or take his chances with the jury.
“It would have been SanRoman’s call to ask for a mistrial,” she said. “He had all of the control to make that request. The state shouldn’t be punished for his decision.”
The mistrial hinged on whether the state had provided documents in its discovery package, one of which it later determined that the defense did have the document but misfiled it.
One of SanRoman’s former attorneys, Brad Hansen, testified for the defense that during the April 2022 trial, he realized that a child support worker had begun to testify about a report he had not received, and when he was given a copy of the report he saw a reference to a report about a medical examination that he believe had also not been shared by the prosecution.
The two discovery issues led to declaration of a mistrial. Hansen admitted he later found the medical exam report in his files. It had been accidentally misplaced among the files for a previous iteration of the case.
“I have no concept of how it got to that location,” Hansen said. “I cannot criticize anyone in my office, because I’m the attorney of record and it’s my responsibility.”
In denying the speedy trial motion, Judge said Oconto County held no trials at all for 14 months during the lockdowns the state imposed because of the COVID-19 pandemic.
“I have done everything I can to speed this case along,” Judge said. “I find no fault with the state of Wisconsin or the court in that regard.”
As for the mistrial, the judge said the child support worker had only testified as to her credentials before Hansen raised the objection was raised about the report.
“The court agreed with the counsel — the state and the defense — that I would instruct the jury to disregard the testimony,” Judge said. “I never got that chance.”
Hansen then asked about the second report regarding the medical exam.
“I think attorney Hansen’s specific words were, number one, ‘The information in that report may be,’ the magic word is, ‘exculpatory for my client,’” Judge said. “And number two, ‘Judge, I should’ve a chance to get my own medical expert to review that report to see if it’s something that I should be aware of for the defense of my client.’ When I heard that, I knew I was stuck in trying to continue with this trial.”
The mistrial probably did not have to occur because Hansen realized later he had misfiled the second report, Judge said, but it was the proper call at the time based on available information.
“I find no fault here, because I realize how complex and voluminous files can be, not only for the court but for the attorneys,” he said. “It is what it is, but I found that at the time the request by attorney Hansen to request a mistrial was based on reasonable grounds.”
The Oct. 30-31 retrial is set to proceed, with a pre-trial conference and motion hearing planned at 2:30 p.m. Oct. 28.
wbluhm@newmedia-wi.com
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