Siveny - Opposition Motion to Dismiss



STATE OF WISCONSIN, Plaintiff, vs. DIANNA M. SIVENY, Case No. 2013CF000104


This is not the State’s first motion to dismiss. The defense has objected and had to file numerous motions with this court over discovery violations, speedy trial demands and violations, and problems with witnesses and evidence. Defendant has either been held in pre-trial confinement, or released on bond with GPS, daily check ins, and significant travel restrictions. She has had this case looming for years, and been told by the lead detective that he is going to incarcerate her one year at a time if he has to. This is also not the first time the substantial battery charge has been filed and dismissed. Only after obtaining a bail jumping conviction for mother-daughter contact did the state dismiss the last round of charges. The State then refiled the current charges and kept Siveny in pre-trial confinement for 14 months before this court was forced to let her go for the State’s Speedy Trial and Brady violations.

The court should also be reminded that on Wednesday, August 13, 2014, pursuant to this court’s order, the Defense provided to the State with defense investigator’s reports summarizing contacts with three different witnesses who confirm that Kandi Siveny was in fact in Minnesota at the time of the alleged homicide (by corroborating cell phone records the State subpoenaed



years ago). The next day, the State moved to dismiss or adjourn on the grounds that Rosie Campbell was refusing to testify. Now the defense has learned from transcripts in Rosie Campbell’s case that on January 15, 2015, Campbell’s attorney Brandt Swardenski stated to the court “As we submitted prior to having the plea hearing back in October, the State and defense have worked out a resolution where in essence it’s going to be much of a joint recommendation.” (italics added). Whatever the plea agreement was between the State and Rosie Campbell has still yet to be disclosed to the defense in this case, which discovery violation appears par for the course. Campbell’s availability is no longer an issue. Instead, in the Kandi Siveny matter, additional documentary evidence showing Campbell’s lack of credibility and ever changing stories caused a motion to disallow her testimony altogether, which motion was scheduled to be heard until at the eleventh hour the state dismissed that case. There is a very strong inference that the real reason for the request for adjournment is that the State knows this case is improperly charged. The State had many opportunities to dismiss when the defense pointed out all of these problems before substantial prejudice and speedy trial issues created this present quandary. The State’s decision was to proceed to the brink of disaster. Now the State says it has made a no prosecution decision, but won’t commit to a dismissal with prejudice. There is an inference that the state may want to regroup, further investigate and perhaps try to intimidate defense alibi witnesses as it did in the past, alluding to them that they might be charged as co-conspirators if they admitted being on the phone with Kandi Siveny at the time of the shooting (without telling them her phone was in Minnesota). When current counsel came on board, 8 months into the prosecution, he asked the District Attorney if she had watched Campbell’s recorded statement – “not yet.” The State had

authorized the filing of charges and kept the prosecution going for all that time apparently trusting the Sheriff’s investigators at their word, and we now know what a mistake that was. The State chose to bring these charges without reviewing its evidence. The State chose to pursue this prosecution without a initial plea deal with Rosie Campbell. The state has never had any evidence to prove that Siveny was in any was responsible for this homicide, and now knows that Kandi Siveny, the person the state claims was the shooter, wasn’t even in Wisconsin at the time of the shooting. The state’s officers had previously threatened this defendant telling her they will keep her incarcerated one year at a time, a prophecy that for the most part has been realized to date. The state has violated Brady. The State has been found to have violated Siveny’s constitutional speedy trial rights. Officers destroyed evidence and failed to report on contact with witnesses and CI payments. The state issued and served illegal subpoenas on out of state witnesses. The state even tried to subpoenaing a defense expert to an unrelated hearing to improperly obtain discovery for a motion it had neither scheduled nor even filed. The state has kept incarcerated what any reasonable person would conclude are innocent people. The state has, and if the specter of these charges continues to hang, caused the destruction of the Sivenys’ lives. The worst part is that due to the failures of this investigation to consider actual leads, investigate alibis, and follow evidence rather than hunches, the victim’s family will likely never know who killed Lara Plamman. The state should not be allowed to avoid the consequences of its actions by now dismissing the trial and avoiding all of the adverse rulings of Brady and Speedy Trial violations, other acts, improper character evidence, and a court educated on this case, only to be allowed to

refile it again and again. Dismissal without prejudice will continue to cause substantial harm to the defendant, who will continue to look over her shoulder for dishonest investigators her entire life.



The Sixth Amendment to the United States Constitution provides: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence." The historical importance of this provision to battle against the government, with virtually unlimited power and resources, dragging the individual defendant through the criminal process, cannot be overstated. And yet here we are, in the year 2014, facing a situation in which, having already been found to have violated this defendant’s right to a speedy trial by failing to disclose exculpatory and other evidence, for a period of months and after having this case in its sight since 2007, the government is again requesting to postpone the trial, over defendants clear assertion of her speedy trial right, and for no reason other than its own conduct. “A defendant has no duty to bring himself to trial;[fn26] the State has that duty as well as the duty of insuring that the trial is consistent with due process.[fn27] Moreover, for the reasons earlier expressed, society has a particular interest in bringing swift prosecutions, and society's representatives are the ones who should protect that interest.” BARKER v. WINGO, 407 U.S. 514, 527, 92 S.Ct. 2182 (1972). “A balancing test necessarily compels courts to approach speedy trial cases on an ad hoc basis. We can do little more than identify some of the factors which courts should assess in determining whether a particular defendant has been deprived of

his right. Though some might express them in different ways, we identify four such factors: Length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant.” Id. at 530 (bold added). “We regard none of the four factors identified above as either a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial. Rather, they are related factors and must be considered together with such other circumstances as may be relevant. In sum, these factors have no talismanic qualities; courts must still engage in a difficult and sensitive balancing process.[fn36] But, because we are dealing with a fundamental right of the accused, this process must be carried out with full recognition that the accused's interest in a speedy trial is specifically affirmed in the Constitution.” Id. at 533. A length of delay of more than one year between charging and trial is considered presumptively prejudicial. See Doggett v. United States 505 U.S. 647, 652 n. 1; State v. Borhegyi, 222 Wis. 2d 506, 510, 588 N.W.2d 89 (Ct.App. 1998). Here, The trial has been continued three times, twice after the defendant already asserted her speedy trial right and it was held by the court that right was violated because the state also violated Brady and failed to timely produce evidence. The defendant believes that once this court has already found a speedy trial violation, any further delay caused by the state is tantamount to automatic continued violation. The argument here is that any delay and refiling would instantly violate the defendant’s speedy trial right. The reason for the delay in this case is all on the state. This defendant has loudly and clearly asserted her right in court an in writing in February of 2014, and in numerous subsequent writings/hearings. “A fourth factor is prejudice to the defendant. Prejudice, of course, should be assessed in the light of the interests of defendants which the speedy trial right was designed to protect. This Court has identified three such interests: (i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired.[fn33]

Of these, the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system. If witnesses die or disappear during a delay, the prejudice is obvious. There is also prejudice if defense witnesses are unable to recall accurately events of the distant past. Loss of memory, however, is not always reflected in the record because what has been forgotten can rarely be shown.” Barker at 532. The defendant has been severely prejudiced by the state’s conduct. Evidence has been lost. Witnesses were intentionally never asked about conversations with Kandi Siveny at the time of the homicide when her phone was in Minnesota, leaving the defense to now piece this together. Memories of the officers have been lost as to what exactly occurred between themselves and key witnesses. Defendant has continued to suffer the indignities of this case as was described above. And while defendant is on release with conditions, her prior confinement should not be discounted. Nor should the burden of those conditions, which set curfew, daily reporting, and substantial regional limitations on her freedom to travel. “The only remedy for a violation of the right to a speedy trial is dismissal of the charges.” STATE v. URDAHL, 2005 WI App 191, ¶ 11, 286 Wis.2d 476, 704 N.W.2d 324. The state is not going to be proceeding to trial within the speedy trial demand. The state has already been found to have violated defendant’s speedy trial rights. The court is not obligated to consent to a dismissal without prejudice under these circumstances. STATE v. KENYON 85 Wis.2d 36, 270 N.W.2d 160 (1978); STATE v. CONGER 2010 WI 56, 325 Wis.2d 664, 747 N.W.2d 341, 797 N.W.2d 341. If the State won’t move with prejudice, at this stage, the court can either deny the dismissal and hold the state to a trial (forcing the state to dismiss with prejudice), or dismiss with

prejudice for a speedy trial violation. The state cannot avoid the speedy trial demand by dismissing without prejudice, let alone avoid all of the adverse rulings from this court. The State cannot be allowed to continue with this game of dismissal and refiling, adjournments, failures to disclose, and failure to be prepared to try this case. They have had the chance the law allows, and chose to keep the charges pending for so long that the prejudice to the defendant is now overwhelming. These charges must be dismissed with prejudice.

Daniel Kaminsky, 1063944 Attorney at Law W3952 Artesian Rd., Ste. A Fond du Lac, 54937 (920) 322-1375 DEFENDNAT’S OPPOSITION TO MOTION TO DISMISS Page 7