The Nollenberg Case Comes Back

I earlier commented on a case involved a man charged with Homicide by Intoxicated Use of Vehicle and Homicide by Use of Vehicle with Prohibited Alcohol Content.

Michael S. Nollenberg was found guilty by an Outagamie County (WI) jury of the second charge on 14 December, 2007. In April, 2008 he was sentenced to four years in prison.

A hearing was held on 01 October, 2009 to address several issues from the original trial. The appellate Attorney Robert Henak raised issues of ineffectiveness of counsel, juror problems, and misleading testimony by a Wisconsin State Trooper.

Nollenberg’s trial attorney, Mary Lou Robinson testified that her defense was ineffective. She stated that because of exhaustion that she did not raise objections when needed.

One of the jurors stated that she feared a not guilty verdict because of possible repercussions from a person she knew who was very upset about the accident, and she feared harassment. This juror also knew the victim’s mother and realized at trial that some of her friends attending the trial were also relatives of the victim.

A second juror visited the accident scene during trial, contrary to instructions. Henak stated that this errant juror introduced information to the jury that was not in evidence.

Despite the Despite the obvious jury problem, Outagamie County Circuit Judge Mitch Metropulos denied a new trial, claiming he saw no evidence of juror bias affecting the outcome. That’s hard to swallow since the verdict was not quick and when one juror states that they were afraid to vote for acquittal, the process is corrupted.

To add to the mix was that some jurors felt the their weekend freedom was more important than working on a verdict.

Judge Metropulos also ruled at the October hearing that Robinson’s performance was not deficient.

The case went to the District III Appeals Court which reversed the conviction and remanded for a new trial in the interest of justice.

The Appeals Court did not address the juror problem. But, the basis for the reversal is the testimony of Wisconsin State Trooper Timothy Austin (ACTAR #1315).

Austin was the person who designed a slideshow for the Steven Avery trial. While the supposed intent was to provide a real world replication of the Avery Salvage Yard, Austin admitted that he depicted obstructions such as trees with only a line.

Austin is also a co‑founder of Great Lakes Crash Analysis, LLC. I’m not sure if the involvement of a trooper with crash analysis company is a conflict of interest, but the potential is present.

In the Nollenberg trial, Austin fudged his testimony. He testified that the low beams of Nollenberg’s vehicle should have reached 230 feet. He stated that headlights only reached 104 feet. But, Wisconsin requires the reach of headlights at low beam to reach 100 feet*; four feet less that Trooper Austin measured.

Austin claimed a federal specification to support his testimony that the Nollenberg headlights were deficient. But, I don’t know whether he quoted the source. I could not find any specific number in CFR 571.108. I did find states that referenced the 100 foot minimum for low beams. I trust that state troopers do not issue citations based upon the number that Trooper Austin used.

Judge Metropulos ruled that the discrepancy did confuse the jury. Apparently in the judge’s mind 230 feet and 100 feet are sufficiently similar.

In the Randall Ashauer case, another Wisconsin State trooper was fudging. In that trial Wisconsin State Trooper Jason Schwarz admitted that he used one tire track to accuse Ashauer of swerving off the roadway to cause severe injury to a young woman. The problem was that none of the tire tracks at the scene matched the tires on the Ashauer vehicle. So, how could Trooper Schwarz concluded that Ashauer left the roadway? Schwarz provided a false reconstruction for the sole purpose of incriminating the driver.

The fact that this another case of the State using false evidence is very disturbing. The feeling seems to be that citizens lose their rights to a fair trial at the whims of prosecutors.

And, false testimony by Wisconsin State Troopers is alarming. Either the troopers feel pressured to produce documents and testimony to support the State without regard to fact or the training of our troopers is deficient, and they do not feel obligated to be truthful.

This is clearly a management problem. The Wisconsin Attorney General and local prosecutors need to emphasize the need for truthfulness even if it means weakening a case.

Police unit managers need to emphasize the need for competent and truthful in investigations. We need police to do their job and draw conclusions based upon honest thinking and evaluation. It investigations are compromised by false claims and evidence, then it is the managers who are at fault. It is better to address the problem now than to wait for a scandal.

On 19 November, 2009 Nollenberg’s attorney, Mary Lou Robinson, obtained his release from his four‑year prison sentence for a $3000.00 bond. This is pending a new trial. Nollenberg had been in prison since April, 2008.

* Compounding the error was the prosecutor claiming that the 230 feet meant that this meant twice the area of illumination compared to the Nollenberg headlight. If there were no limits on the diameter of the beam, the coverage would be greater than four times and that is only at the further limit. Closer to the vehicle means a smaller cone and a smaller area ratio

There are other factors such as headlamp design that limit the coverage and circular beam is truncated by contact with the pavement.

This is a good project for students to make actual measurements of headlamp design versus illumination area at various distances.