Case 2022CF000317 Document 70 Filed 04-03-2023 Page 1 of 5 For Official Use

FILED
04-03-2023
STATE OF WISCONSIN CIRCUIT COURT BROWN
COUNTY Clerk of Circuit Court
Brown County, WI
STATE OF WISCONSIN,
Plaintiff, 2022CF000317

v. Case No. 2022CF317

Jeremiah Lee Robinson,
Defendant.
DEFENDANT’S NOTICE OF MOTION AND MOTION TO DISMISS WITH
PREJUDICE DUE TO DESTRUCTION OF POTENTIALLY EXCULPATORY
EVIDENCE

The Defendant, through his Attorney Michael J. Balskus, moves the court for an order
dismissing the Criminal Information with prejudice because, as detailed more fully below, the
State has at the very least destroyed potentially exculpatory evidence, violating Mr. Robinson’s
right to due process of law.

Mr. Robinson brings this motion pursuant to his rights guaranteed by the 5th, 6th and 14th
Amendments to the United States Constitution; Article I, sections 1, 7, and 8 of the Wisconsin
Constitution; Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988); and
State v. Luedtke, 2015 WI 42, 362 Wis.2d 1, 863 N.W.2d 592, State v. Huggett, 2010 WI App
69, 324 Wis. 2d 786, 783 N.W.2d 675, State v. Greenwold (Greenwold II), 189 Wis. 2d 59, 68,
525 N.W.2d 294 (Ct. App. 1994), and State v. Greenwold (Greenwold I), 181 Wis. 2d 881, 885–
86, 512 N.W.2d 237 (Ct. App. 1994).

AS GROUNDS for this motion the defense first notes all the following:
1. “A defendant’s due process rights are violated if the police: (1) failed to preserve
evidence that is apparently exculpatory; or (2) acted in bad faith by failing to preserve
evidence which is potentially exculpatory.” Luedtke, 362 Wis.2d 1, ¶ 40; (citing
Greenwold II, 189 Wis. 2d at 67–68 (citing Arizona v. Youngblood, 488 U.S. 51, 57–58
(1988))); see also Greenwold I, 181 Wis. 2d at 885–86.

2. Evidence is deemed apparently exculpatory when “the evidence destroyed ‘possess[ed]

an exculpatory value that was apparent to those who had custody of the evidence ...
before the evidence was destroyed,’ and the evidence is ‘of such a nature that the
defendant [is] unable to obtain comparable evidence by other reasonably available
means.’” State v. Munford, 2010 WI App 168, ¶ 21, 330 Wis. 2d 575, 584–85, 794
N.W.2d 264.

3. “Evidence lacks apparent exculpatory value when ... analysis of that evidence would have
offered ‘simply an avenue of investigation that might have led in any number of
directions.’” Hubanks v. Franks, 392 F.3d 926, 931 (7th Cir. 2004) (citing Arizona v.
Youngblood, 488 U.S. 51, 57 n.* (1988)).

4. Bad faith is shown if “(1) the officers were aware of the potentially exculpatory value or
usefulness of the evidence they failed to preserve; and (2) the officers acted with official
animus or made a conscious effort to suppress exculpatory evidence.” Luedtke, 362 Wis.
2d 1, ¶55 (citing Greenwold II, 189 Wis. 2d at 69).
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5. That said, where the lost or destroyed evidence is not merely potentially exculpatory, but
actually or apparently exculpatory, no showing of bad faith is required to prove a due
process violation. State v. Huggett, 2010 WI App 69, ¶11, 324 Wis. 2d 786, 783 N.W.2d
675.

6. Brady v. Maryland, 373 U.S. 83 (1963) requires the State to provide favorable evidence
to the accused. The information goes directly towards the Defendant’s guilt and
innocence. It also goes to the credibility of the witnesses and the sufficiency of the
investigation. The Wisconsin Supreme Court has ruled that evidence that goes to
credibility of a witness is exculpatory and must be provided under the Discovery Statute
and is a Brady violation. State v. Harris, 2004 WI 64, 680 N.W. 2nd 737.

IN FURTHER SUPPORT, Mr. Robinson alleges the following:

7. On February 18, 2022, Mr. Robinson was taken into custody Officer Elbe of the Green
Bay Police Department. He was placed in Officer Elbe’s squad car. Officer Elbe has a
Body Worn Camera (BWC). The camera was recording from the time that Officer Elbe
responded to the call and ended when he brought Mr. Robinson to the Green Bay Police
Department. While in the squad car, Officer Elbe engages in a conversation with another
individual. Officer Elbe mutes the recording so that the conversation between Officer
Elbe and the other individual cannot be heard. Mr. Robinson has indicated that he
believes that while in the squad car he requested to speak with his father. The muted
recording could prove what was said by all the parties including potentially exculpatory
evidence. Officer Elbe intentionally turning on the mute to deprive the Defendant of
potentially exculpatory evidence.

8. Axon Body 3 X6031670N, listed as Axon_Body_3_Video_2022-02-

18_1345_x6031670N.mp4, appears to be a recording by Sgt. Robby Hock of the Green
Bay Police Department. The video is taken at the Walgreens parking lot which is the
scene of the shooting. Sgt. Hock mutes his BWC when he approaches Det. Luberda near
the entrance of Walgreens. There appears to be a conversation between Sgt. Hock, Det.
Luberda and a third officer. The officers appear to be discussing the crime scene and
pointing out evidence. Sgt. Hock previously made comments about how some of the
evidence may have been affected by the weather conditions. We cannot determine
whether this was communicated to Det. Luberda. Sgt. Hock also enters the Walgreens
and goes to the area where several officers are viewing the store surveillance video of the
shooting. The officers appear to be talking about the video and the incident.

9. The muting of BWCs by Officers prevents the Defendant from questioning the Officers
about their investigations. It goes to the credibility of the witnesses who are testifying
against the Defendant. The muting is contrary to the expressed reason of transparency
and “seeing the truth in the moment.” Officers talking about the video as they see it on
the store video system would be admissible especially when it comes to the credibility of
the investigation. Why would the Officers mute the recording unless they have something
to hide or protect. Muting the recordings destroys evidence. The muting is intentional
behavior. The actions go against the Policies and Procedures of the Green Bay Police
Department, and it violates the due process rights of the Defendant.

Based on the fact that the police intentionally muted their BWCs which deprived the Defendant
 Case 2022CF000317
of exculpatory or potentiallyDocument 70 evidence,
exculpatory Filed 04-03-2023 Page
the Defendant moves 3 of
the 5 to dismiss the
Court
charges in this matter.

Dated: April 3, 2023

Respectfully Submitted,

Electronically signed by Michael J. Balskus

Michael J. Balskus
MJB LAW OFFICE, L.L.C.
2432 Amos Mary Ct.
De Pere, WI. 54115
920) 309-7692
Attorney # 1002140

Copy to DA by filing
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