http://www.sheboyganpress.com/article/20091204/SHE0101/912040448/1062/SHE01/Judge-to-rule-today-on-mistrial-motion-in-Mary-Benz-infant-abuse-case

The defense is seeking a mistrial in the Mary Benz infant abuse case after Benz's attorney stumbled upon evidence he said was valuable to his client's case and not previously disclosed by the prosecution.

Defense attorney Richard Hahn made the motion Thursday after spotting a social worker's case file while he was in District Attorney Joe DeCecco's office editing an audio recording earlier in the day. In a notation made June 28, 2007 ­ two days after a 10-month-old girl was found to have significant vaginal injuries ­ the doctor who examined her said the parents could not be ruled out as suspects and the injuries could have occurred earlier than he said when he testified.

The note was made before the pediatrician, Dr. Thomas Valvano, interviewed the parents and differs from his final findings, but Hahn said he should have been made aware of the report so he could question Valvano about the statements. Valvano testified Wednesday and has since returned to Oregon, where he now lives.

"All of this from an investigative standpoint is a complete and absolute surprise," said Hahn, adding that he said he should have received the file during discovery. "That raises three issues that I would have utilized with great prominence in my cross examination of Dr. Valvano."

Judge Terence Bourke will rule on the motion for the mistrial this morning.

This was the fourth straight day Hahn sought to have the case thrown out before it reached the jury, but the first time DeCecco asked for time to prepare a response before Bourke ruled.

Court records show Hahn filed his demand for discovery in June 2008. Discovery is when attorneys for both sides must share the evidence they have gathered.

Hahn said he spotted the file sitting in a box on DeCecco's floor while the two editing an audio recording of an interview with Benz that was played for the jury Thursday. That editing delayed the start of the trial from 8:30 a.m. to 1:30 p.m.

The file in question was created by the Sheboygan County Division of Social Services, which conducted an investigation in cooperation with but separate from the Sheboygan County Sheriff's Department after the girl's injury was discovered. The injury, an inch-long vaginal tear, was discovered the same day the child was cared for at Our Lady of the Lakes Child Care Center in Random Lake, where Benz was director.
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Benz, 51, is charged with felony child abuse and three counts of misdemeanor resisting or obstructing an officer. Her trial began Monday after 2½ years of delays from a 10-month investigation, numerous pretrial motions and two adjourned trial dates.

The case file has not yet been mentioned in the presence of the jury, as Hahn presented his motion after the jury was sent home for the day Thursday. After the motion, social worker Laura Lemon was called to testify as an unscheduled witness about the contents of the case file.

Lemon said such files are typically given to the District Attorney's Office upon request, but she did not know if it was requested in this case or when. The file includes a record of people contacted during Lemon's investigation, a final report and documentation gathered throughout the investigation.

The case was closed Aug. 14, 2007, because no perpetrator had been identified, Lemon said.

The key section cited by Hahn was a note from a Social Services employee who fielded the call from Valvano and reported that he wanted the agency to know the parents could not yet be ruled out and the incident could have happened June 25. Valvano said at that point the day care appeared the "most suspicious" in terms of where the injury likely happened.

Valvano testified Wednesday that the injuries occurred 12 to 24 hours prior to his examining the child at 2 a.m. June 28.

Another case note said Valvano told Social Services in a June 28 meeting at Children's Hospital in Milwaukee that the girl's injury could have been caused by a finger, and there is no indication a sharp object was used or what exactly caused the injury.

The interview was conducted by Detective Mark Mancl of the Sheboygan County Sheriff's Department on July 26, 2007, after serving a search warrant at Benz's home.
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Mancl focused several of his questions on Benz's alleged actions after a June 29, 2007, interview. After Benz told Mancl then that she changed only two of the girl's diapers on the day in question, two day care employees testified that she called and asked them to say they changed two other diapers when they hadn't.

In the recording played Thursday, Benz said she didn't recall discussing the case with anyone other than Ed Ritger, an attorney affiliated with the day care, didn't recall telling one girl she had been framed ­ as the girl testified she did ­ and didn't recall leaving a voicemail saying she messed up and needed help. That voicemail was played in court Tuesday.

Benz did, however, say for the first time that she changed all of the victim's diapers on the day in question. She would not say why she said otherwise in the two prior interviews, June 27 and 29.

Benz also wouldn't say why she claimed June 29 that a volunteer had been caring for the infants during the victim's first 90 minutes at the day care when on June 27 she didn't list that worker as one of the people present. Benz then said she didn't recall if the woman was there or had worked with the infants.

The woman, Rita Schmid, has testified she arrived at 6:30 a.m. ­ around the time the victim did ­ but left when Benz said she wasn't needed. She also said Benz called her after the June 29 interview and asked her to say she worked until 8 a.m. and saw the victim in good spirits.

Asked directly, Benz repeated previous denials in saying she has no knowledge of the girl's injuries and didn't cause them.

"There was nothing wrong. I had no concerns when (the victim) left at 4 o'clock," Benz says in the interview before deflecting responsibility. "This is the first time dad picks (her) up, and now we have a problem."

The defense witnesses Thursday included a psychologist who evaluated Benz and agreed with her prior diagnoses of being manic-depressive and bi-polar and suffering from depression and anxiety. Dr. Gene Braaksma said Benz was taking anti-depressants and mood stabilizers in June 2007.

Braaksma, who spent about seven hours testing Benz and looking through her mental health history, said she is "limited in her capability" to deal with stress. In response to a question by DeCecco referencing Benz allegedly asking the workers to lie and forging a document, Braaksma said he would expect a person with Benz's diagnoses to "crumble" rather than take logical action to cover a crime.

Benz, 51, is charged with felony child abuse and three counts of misdemeanor resisting or obstructing an officer. Her trial began Monday after 2½ years of delays from a 10-month investigation, numerous pretrial motions and two adjourned trial dates.

The case file has not yet been mentioned in the presence of the jury, as Hahn presented his motion after the jury was sent home for the day Thursday. After the motion, social worker Laura Lemon was called to testify as an unscheduled witness about the contents of the case file.

Lemon said such files are typically given to the District Attorney's Office upon request, but she did not know if it was requested in this case or when. The file includes a record of people contacted during Lemon's investigation, a final report and documentation gathered throughout the investigation.

The case was closed Aug. 14, 2007, because no perpetrator had been identified, Lemon said.

The key section cited by Hahn was a note from a Social Services employee who fielded the call from Valvano and reported that he wanted the agency to know the parents could not yet be ruled out and the incident could have happened June 25. Valvano said at that point the day care appeared the "most suspicious" in terms of where the injury likely happened.

Valvano testified Wednesday that the injuries occurred 12 to 24 hours prior to his examining the child at 2 a.m. June 28.

Another case note said Valvano told Social Services in a June 28 meeting at Children's Hospital in Milwaukee that the girl's injury could have been caused by a finger, and there is no indication a sharp object was used or what exactly caused the injury.

The interview was conducted by Detective Mark Mancl of the Sheboygan County Sheriff's Department on July 26, 2007, after serving a search