Plude retrial off for this year
due to conflict over 'snitch'

By Kurt Krueger
News-Review Editor

The second murder trial of Douglas Plude was postponed last Friday when public defenders withdrew from the case over a conflict of interest involving a potential state witness.

Attorneys Patrick “Buck” Schilling and Courtney Jolin of the Public Defenders Office in Rhinelander made the motion, which was approved by Vilas County Circuit Judge Neal A. Nielsen III.

The development came three days after a major motions hearing where it was first revealed that convicted sex offender Dallas Paznonski could provide what his attorney called “linchpin” testimony — presumably about something said while he and Plude served briefly in the same correctional facility.

Schilling told the court because the same investigator from his office worked both the Plude and Paznonski cases, he has access to confidential information that could prevent him from “zealously representing” Plude.

Plude, 42, was convicted in 2002 of killing his wife by poisoning her with drugs and then pushing her face into the toilet to drown her. He was sentenced to life in prison and immediately began serving that sentence.

Plude won a new trial last year when the state Supreme Court ruled that false representations made by state expert witness constituted new evidence. The court said if the jury knew Saami Shaibani misrepresented his credentials it could have provided a reasonable doubt for his acquittal.

Nielsen directed attorneys from both sides last Tuesday to negotiate the Paznonski testimony to avoid the conflict of interest, but the efforts failed.

The judge said from the bench that he was disappointed that more than a year of work was lost — not only the work of attorneys, but of the clerk of courts office and the court in preparing to select jurors in Taylor County and house them here.

Nielsen said the postponement means a delay of eight to 12 months, to either spring or fall of 2010, because it is not practical to handle a big case here during the busy summer months.

Schilling said Monday that they will have to hire private attorneys to avoid the conflict of interest.

“If we are forced to hire a public attorney, they would have to come from far, far away,” he said.

Asked what kind of a delay the withdrawal might mean, Schilling said the case has been going on for 10 years and there are volumes of records and evidence that the new attorney must get acquainted with.

“It could happen in spring. It all depends on the attorney’s schedule,” he said.

Schilling said he was disappointed that Paznonski came forward so late in the process, seeing that Doug Plude won the new trial in June 2008.

“There’s no way anyone could have seen this coming,” he said.

District Attorney Al Moustakis said the two-week trial would have happened as scheduled, starting Oct. 26, had the defense been able to get around the conflict.

“It is what it is. It has to do with a witness who came forward,” said Moustakis.

The 11th-hour information from Paznonski, formerly of Conover, came to light when Mrs. Paznonski contacted the district attorney saying her son, who is serving a 36-year prison sentence, had information about the case directly from an alleged conversation with Doug Plude in prison.

“I told her to seek public defender representation for her son, but he was not eligible for post-conviction representation since all appeals had been exhausted,” Moustakis told the court. “Attorney Steve Lucareli agreed to represent Paznonski pro bono.”

Schilling indicated the public defender investigator used in the first Plude trial was also their investigator in the Paznonski case.

“It sounds like the district attorney will make a deal to get him to testify and that creates a conflict of interest,” Schilling said. “There is confidential information in the hands of the defense attorneys that has been revealed to us and it places us between a rock and a hard place.

Responding to a question from the judge, Moustakis said Paznonski is in prison for 36 years and the state would have to verify any information he provides.

Moustakis, who was told by Lucareli that the information has the potential to be a linchpin in the state’s case, said Lucareli has given him a list of conditions.

“We’ve not interviewed him, so I still don’t know what information he may provide. The defense has been notified prior to Sept. 1 he is on our witness list. Negotiations with the state for his testimony have not yet happened,” Moustakis said.

On the alleged conflict of interest, Nielsen indicated the rule says, “You can’t use information to the disadvantage of a former client,” but could not see any disadvantage to Paznonski since he’s been convicted, sentenced and all appeals have expired.

“It’s premature to suggest you have this problem,” Nielsen told Schilling last Tuesday. “Simply having the information isn’t a problem. Your cross-examination will point out he’s expecting something for his testimony, that he’s been convicted and is in prison.

“You’re asking me to cut this off one more time and lose another year, find other counsel, and I don’t know if I have the right to question you in chambers or simply throw away one and one-half years of work,” Nielsen said.

Schilling was adamant about his position as a lawyer and as a public defender.

“It is not proper for me to reveal confidential information at all,” he stated. “It’s not proper for the court to tie our hands on this.”

Nielsen made his ruling to keep pushing forward to trial, and gave Moustakis until Oct. 7 to get the information on Paznonski’s testimony to the defense. But the issue came to a screeching halt with the motion to withdraw Friday.



Defense motions

Though it’s all a moot point now, the court handled several motions last Tuesday on issues that will be part of the Douglas Plude trial whenever it occurs.

Nielsen had denied a request to limit or prohibit testimony from Dr. Christopher Damm, the state’s new expert on whether Genell Plude could have been found dead with her head in the toilet bowl, as claimed by Douglas Plude.

The defense argued the state missed the deadline for discovery. Nielsen noted that the court ordered all discovery by Sept. 1 so there wouldn’t be these issues. He gave the state an Oct. 5 deadline to provide a written summary of Damm’s test results.

The court had approved the telephone testimony of a defense expert witness, Dr. Terence Campbell, who is expected to testify that trauma affected Plude’s memory the day he found his wife’s body.

Schilling wanted to enter testimony of a college acquaintance of Genell Plude regarding a suicide note to show what was going on in Genell’s mind at the time of her death, but Nielsen denied the motion.

“This is a suicide letter by Genell written a month before her death,” Schilling claimed.

Moustakis objected, saying it did not constitute “other acts.”

“This is a report of all speculative beliefs of this person in school and a speculative opinion by an investigator,” he argued. “It’s only her belief she prevented something and that’s not other acts. There’s no collaboration, and she’s not a suicide expert.”

At issue is whether the letter was written by Genell to Kris Kelly, a college friend, or if Genell wrote it to herself as if it came from Kelly. The letter was admitted at the first trial. However, Nielsen stated he was not bound by the evidentiary decisions of the first trial.

“The purpose of the letter would be to show suicidal tendencies,” Nielsen said. “Was it authored by Kris? No. To a Kris? Maybe. Authored by Genell as Kris to her? Who knows? The testimony of Kris Kelly should be excluded; it’s too far from the case,” Nielsen said.

--(Correspondent Ken Anderson contributed to this story)