/ Articles / Motion to dismiss Liebscher misdemeanor cites lack of probable cause

Motion to dismiss Liebscher misdemeanor cites lack of probable cause

December 27, 2019 by Jamie Taylor

An attorney for the 54-year-old brother of the man accused in the hit and run death of a 23-year-old St. Germain motorcyclist Aug. 28 recently filed a motion to dismiss the misdemeanor charge that he mislead investigators, citing a lack of probable cause.

Attorney Ben Lucareli argues in the motion filed Dec. 11 the state has not offered in either the charging document or the discovery turned over so far by the district attorney Mike Schiek probable cause that Brian Liebscher obstructed an officer, a class A misdemeanor.

Liebscher is accused of not truthfully reporting to Oneida County detectives investigating the death of Sean Holtslander that his brother Jeffrey had contacted him right after the fatal accident and that he then drove his brother to Three Lakes.

Jeffrey Liebscher was charged Aug. 30 with hit-and-run causing death and homicide by negligent operation of a vehicle related to the accident on State Highway 17. He was released on a $1,500 cash bond by judge Michael Bloom before he recused himself.

Brian Liebscher was charged Sept. 3, and is free on a $500 signature bond.

Both cases are being heard by judge Patrick O’Melia.

In the motion, Lucareli argues the case Schiek has brought does not meet the standards set forth in Wisconsin case law.

“Under Wisconsin state law, a complaint must, in and of itself, set forth the grounds for probable cause in order to be valid and to confer personal jurisdiction upon the circuit court. ‘Within the four corners of the document must appear facts that would lead a reasonable man to conclude that probably a crime had been committed and that the defendant named in the complaint was probably the culpable party,’” the motion said, citing State V. White and State v. Haugen.

Lucareli goes on to say the complaint charging Liebscher failed to satisfy the Six W’s the Wisconsin Supreme Court laid out in State ex. Rel. Evanow v. Seraphim.

“(W)hich consist of the following: what is the charge? Who is being charged? When and where did the alleged offense take place? Why is this person being charged? And, who says so? Regarding the sixth and final query, ‘(w)here a complaint is filed on the basis of information and belief, this requires setting forth of enough underlying facts to permit the reasonable inference that the sources of information are probably truthful,’” Lucareli states in his motion.

The attorney said the complaint fails to correctly communicate why Liebscher is being charged. 

“Count 1 of the Complaint states that the Defendant ‘did knowingly obstruct an officer ...’ That allegation is based on, allegedly, ‘false information originally provided (by the Defendant) to deputies on the morning of August 29, 2019 ...,” the motion continues. “There is no evidence or proof offered in the Complaint to show that the Defendant knowingly provided any false information to deputies on the date in question. As such, the Complaint does not contain the requisite probable cause to show that the Defendant knowingly obstructed an officer.”

The allegedly false information that Liebscher allegedly provided to deputies on Aug. 29, was information “regarding the possibility of Jeffrey being inside Jeffrey’s residence ...” near where the accident occurred when detectives began investigating early Aug. 23.

“The Complaint does not contain any information showing that the Defendant knew where, precisely, Jeffrey was located on the morning of August 29, 2019, when the Defendant brought deputies to Jeffrey’s residence,” the motion said.

Lucareli goes on to argue the complaint also fails to me federal case law as laid out in Franks v. Delaware and State v. Mann, “the State has omitted relevant facts from the Complaint that, if included, would have negated probable cause.”

“The State provided additional discovery to the Defendant on November 1, 2019. Contained in that additional discovery is a timeline of events, written by Oneida County Detective Sergeant Chad Wanta, on October 2, 2019,” the motion says. “In relevant part, the timeline states that at 11:15-11:30 p.m. on August 28, 2019, the Defendant picked up Jeffrey near the area of 4032 County Hwy. D, and subsequently dropped Jeffery off at a residence in Three Lakes, located at Detective Sergeant Chad Wanta, on October 2, 2019. In relevant part, the timeline states that at 11:15-11:30pm on August 28, 2019, the Defendant picked up Jeffrey near the area of 4032 County Hwy. D, and subsequently dropped Jeffery off at a residence in Three Lakes, located at 7841 Lodge Circle, at 12:10 a.m. on August 29, 2019.”

Using cell phone records provided in discovery, Lucareli argues that Liebscher tried to make contact with his brother via text to tell him detectives wanted to question him. However, Jeffrey Liebscher’s phone was in airplane mode and didn’t get turned back on until 5:47 a.m. The motion states Jeffrey Liebscher then called 911 at 5:49 a.m. to report where he was in Three Lakes.

Schiek has not filed a response to Lucareli’s motion as this edition goes to press.

A motion hearing is scheduled for Jan. 28, 2020.

Jamie Taylor may be reached via email at [email protected]

 

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