Special prosecutor appointed in Clark highway worker death case
Defense counsel for the Neillsville man accused of driving while intoxicated and killing a Clark County highway worker on Aug. 8 has successfully sought recusal of the Clark County district attorney’s office from the case. Eau Claire attorney Harry Hertel argued in a brief filed in Clark County Circuit Court last week that actions taken so far in the case by the district attorney’s office suggest his client, Cory Neumueller, may not have been fairly prosecuted because a relative of one of the victims works in the district attorney’s office.
Neumueller, 28, was driving a pickup truck shortly after 1 a.m. on Aug. 8 when it struck a tree lying across County Road G south of Willard, as well as two county highway workers who were attempting to clear it from the traffic lanes. Fifty-seven year-old Russell Opelt was killed by the impact and 60-year-old David Murphy suffered a severe leg injury that later required amputation. According to the criminal complaint filed against Neumueller on Aug. 17, he helped Murphy call 911 but then left the accident scene to walk to a nearby house to make a phone call. He drank approximately seven glasses of water and a Gatorade at the home, but did not tell the residents that anyone had been injured. The homeowner first saw the injured workers when he walked back to the scene with Neumueller.
Neumueller was given a field sobriety test, and a breathalyzer indicated his blood alcohol content was .114 percent, compared to the state’s legal limit of intoxication of .08 percent. A blood draw was later taken to measure Neumueller’s alcohol content, but results of that are not yet known.
Neumueller was arrested that night and later charged with homicide by intoxicated operation of a vehicle, hit-and-run involving death, hit-and-run involving injury, and injury by intoxicated use of a vehicle.
In the days following Neumueller’s arrest is when Hertel contends the Clark County district attorney’s office began to show that a conflict of interest exists in its handling of the case.
Hertel said in the first few days after the crash, the district attorney’s office did not seek to schedule an initial appearance before a judge, but instead sought a probable cause determination “without utilizing the form where bond could be established,” Hertel wrote in a brief in support of his motion for recusal. He said no notice was given to Neumueller to appear before a judge, and no bond was set.
After Hertel was retained to represent Neumueller on Aug. 10, he said he went to the courthouse in Neillsville to speak with Assistant District Attorney Ellen Anderson. Hertel said he waited outside the office for 45 minutes but Anderson “refused to meet with” him. Hertel said a law enforcement officer and the county’s attorney went into the office to obtain a copy of the probable cause statement, but was told Anderson was “too busy” to provide it. After meeting with Neumueller, Hertel said he found his client had been given no opportunity to request bail. Hertel said he attempted to both call and e-mail Anderson, but received no response. On Aug. 12, he demanded a habeus corpus hearing. That had to be held by a judge in Chippewa County, as Clark County Judge Lyndsey Brunette is on maternity leave.
After a writ of habeus corpus was served on the Clark County sheriff’s and district attorney’s offices, a remote hearing was held before a Chippewa County judge. Anderson requested bail be set at $100,000 cash, but the judge set it at only $5,000 as Neumueller was “an unlikely risk to fail to appear for Court,” Hertel said.
An initial appearance was then set for Aug. 17, with a preliminary hearing scheduled for Sept. 3. At the initial appearance, Anderson requested reconsideration of bail at $100,000. Hertel contends Anderson is allowed to do that, but should file a petition for reconsideration first. That was not done, he said, nor was Neumueller advised that such action would be forthcoming. The sides presented their cases at the hearing, with bond finally set at $25,000 cash. That amount was posted on Aug. 18 and Neumueller was released from custody with certain restrictions.
Hertel notes in his brief that a relative of Russell Opelt works in the district attorney’s office. That factor, he said creates “the potential for the appearance of impropriety.”
“The very concept that a family member of a victim in this case would be present every day when the District Attorney or an Assistant District Attorney come to work creates at minimum the appearance of impropriety in decisions regarding the alleged perpetrator, namely the defendant, and further creates the concern that any decisions which are made regarding going to trial versus plea agreements, seeking bond repeatedly to increase it, or other important aspects of this case may very well be colored by that relationship,” Hertel wrote.
Noting that the DA’s office “refused to provide a court appearance for the defendant for a week and 2 days after he was detained,” Hertel said he “has never had a situation in which a defendant is arrested on a serious charge, and not brought before a Judge over such a lengthy time period.” He also said a DA’s office has an obligation to “engage in fair conduct” with attorneys, but in this case “totally ignored the defendant’s attorney when telephone messages were left, when a personal visit was spurned, when a request for the holding of a bail hearing or a discussion of reasonable bail were all ignored, and at no time a meaningful reason was given as to why that response did not take place.”
Hertel said Neumueller would have been held another four days without bail, for a total of 10 after his arrest, had he not intervened.
“The motivation for the State to have acted in what appears to be an unusual if not egregious manner, certainly raises a genuine question as to whether or not there is a specific difference about this defendant as opposed to others,” Hertel wrote.
In asking for appointment of a special prosecutor in the case, Hertel wrote that having a victim’s relative present in the DA’s office creates “an inherent conflict of interest for anyone who wishes to be a District Attorney but cares about their offi ce employees. It helps explain why there was no bail hearing set, why the State hurried a review of bond without filing a petition, why the demand for $100,000 has been deemed unreasonable by two different judges hearing the facts of the case and the nature of the defendant, under circumstances where the defense is concerned that Ms. Anderson will continue to seek to take whatever steps it is to lock up the defendant before he is convicted.”
Hertel also noted that Brunette has already self-removed herself from hearing the case because of her awareness of the victim’s family and of family members being employees of the DA’s office.
“Judge Brunette made the right decision,” Hertel said. “The District Attorney’s Office should make the right decision, and if it refuses to seek a special prosecutor this Court should impose that upon them.”
On Aug. 20, Special Prosecutor Tara Marie Jenswold of the state Attorney General’s office was assigned to prosecute the case. On Monday, Neumueller’s preliminary hearing date was moved ahead on the court calendar to Aug. 27.
