Retrial fraught with legal twists
Possible conflicts, dead witnesses, lawyer error
Michael Winston says he wasn’t involved in a robbery, kidnapping and attempted homicide in 2012. But a jury found him guilty and he was sentenced to 23 years in prison. Now he may get a second chance after twists and turns in a case that illustrates the challenges prosecutors face when trying to win convictions in violent crimes.
Winston, 36, argued — first on his own and later with the help of an appointed attorney — that his 2013 trial wasn’t fair because his then-attorney failed to call his alibi witness, his girlfriend Natasha Rodefer.
Last fall, a judge agreed that error prejudiced Winston’s case to a degree that, had Rodefer testified, the out-
come might have been different.
Only the victim — a marijuana dealer named Tory Mason — ever said Winston was among the men who jumped him, shot him and took him away in a car before police arrived. And, as the judge noted, Mason had nine criminal convictions at the time of his testimony against Winston.
Milwaukee County Circuit Judge Christopher Dee vacated Winston’s conviction and ordered a new trial.
But here’s the rub: Rodefer died two months earlier, on Sept. 11, 2017.
Another rub: Mason, 45, has disappeared. A warrant was issued for his arrest in early June on domestic abuse charges but as of Friday, he had not been found. Without him, prosecutors likely can’t proceed to trial against Winston.
There’s also the question of a speedy trial. Winston’s appointed attorney, Michael Plaisted, first moved to have the case dismissed because the trial set for Monday would be more than six years after Winston was first charged.
Prosecutors argue the clock didn’t start until Winston made a formal demand for a speedy trial in April, or, at the earliest, when Dee granted him a new trial in November.
Dee denied the defense motion to dismiss but did grant one to allow Rodefer’s testimony via a private investigator who made a detailed report of an interview with Rodefer in 2013.
Winston’s original trial attorney, Diane Caspari, was suspended from practice for six months in 2016, in part for her initial handling of Winston’s post-conviction motions, but not for her decision to proceed at trial without Rodefer’s testimony.
In finding that amounted to ineffective assistance of counsel, Dee wrote that Caspari “should have used every legal and ethical means necessary” to get Rodefer in front of the jury, or at the minimum, made a record of her conversations with Winston about the pros and cons of proceeding to trial without her.
Alibi witness leaves town
On the first day of trial, after a jury had been sworn and testimony had begun, Caspari told the court that early that morning Rodefer had contacted her to say she wouldn’t be at the trial because she was leaving town.
Dee wrote that Caspari could have asked to adjourn the trial and the judge to order that Rodefer be picked up and returned to court. Caspari said Winston wasn’t interested in those options, but Dee said that was far from clear in transcripts from the trial or Caspari’s later testimony during the post-conviction proceedings.
Thomas Sidney Jr., 32, was also convicted at the same trial of the same offenses and also sentenced to 23 years in prison. Another defendant, Steven Thomas, was found not guilty of all charges.
Terrance Rowe pleaded guilty to being part of the robbery conspiracy and testified for the state, but said Winston was not present. Bobby Irby Jr. testified at post-conviction hearings that Rowe also told him soon after the incident that Winston wasn’t there.
Winston had spent about six years in prison before he was released on $3,500 bail with conditions in April, in the wake of the new trial order. But late last month, he was arrested again on a bail jumping charge, after he was seen in a Facebook post standing with his brothers at a relative’s funeral. One of his bail conditions was to have no contact with them, as each was also connected to the original 2012 crime.
The case contains another wrinkle. The prosecutor who handled all of Winston’s post-conviction motions was Irene Parthum. Her daughter, Grace Gall, a third-year law student at Marquette University and legal intern at the DA’s office, has made appearances for the state at Winston’s more recent hearings and reported to police that she had found the photo of Winston with his brothers on Facebook.
In the last bit of coincidence, Winston had been held in the same pod at the Milwaukee County Jail as Terrill Thomas when Thomas died of dehydration in 2016, leading to an inquest, a lawsuit and criminal charges against jail staff and the company that provides medical services at the jail.
Winston was in the Milwaukee County Jail for hearings on his post-conviction motions from the 2012 case. Despite being on suicide watch, Winston tried to hang himself with objects that should not have been in his cell.
Acting as his own attorney, Winston sued the county for negligence in the matter, saying that jail staff’s deliberate indifference to his safety violated his rights under the Eighth Amendment. A federal judge dismissed the suit.