CRAWFORD COUNTY - Despite a spirited-effort by defense attorney Stephen Eisenberg during a two-hour preliminary hearing, defendant Lee Kennedy was bound over for trial on the charge of attempted first-degree murder in the shooting of Jason Melvin.
On Thursday, Jan. 9, after hearing arguments from both the defense lawyers and the prosecutors, Crawford County Circuit Judge Lynn Marie Rider decided there was enough evidence for a reasonable person to conclude the defendant, Lee J. Kennedy, might have committed the alleged crime.
Eisenberg began his defense of Kennedy by presenting a motion to dismiss the criminal complaint, known a four-corners motion. The attorney reviewed what was necessary for the criminal complaint to prove. The attorney said the law required the state to prove to reasonable person that a crime had probably been committed and that the defendant was probably culpable. Eisenberg then set out to prove information in the complaint was inadequate and it should be thrown out.
The defense attorney questioned if the complaint supplied enough information to legally tie the firearm to Kennedy allegedly used to shoot Melvin.
Additionally, Eisenberg pointed to the fact the criminal complaint could not answer the question of why Kennedy would shoot Melvin. It also did not answer the question of who said this happened.
In concluding his motion to have the complaint dismissed, Eisenberg said the state’s criminal complaint was “based on a guess, conjecture and a hunch.” He called it “a rush to judgment.”
“Nine out of ten times I don’t file a motion to dismiss the criminal complaint, but here it is so slanted to the prosecution,” Eisenberg said in his conclusion.
The prosecution was presented by Assistant Attorney Generals for Wisconsin Department of Justice who were requested to take the case because Crawford County District Attorney Tim Baxte retired form the position effective January 3, 2020 and Governor Evers has yet to name a replacement.
Wisconsin Department of Justice Assistant Attorney General Devra Ayala rose to speak against the defense motion to dismiss the criminal complaint. Seated at the prosecutor’s table with her was DOJ Assistant Attorney General Adrienne Blais. Ayala noted that she and the DOJ lawyers were brand new to the case originally brought by DA Tim Baxter.
However, Ayala took time to briefly review the facts in the criminal complaint for the court. She said she thought the information in the complaint was sufficient enough to go forward with the preliminary hearing.
The prosecutor pointed out the complaint contained information from the officers who initially contacted the defendant and the victim at the scene. The identification of defendant was made by Jennifer Glass, who in the company of Jason Melvin, met the defendant at the bar in Eastman.
Ayala said that despite difficulties at the bar that were resolved, Glass and Melvin offered to drive Lee Kennedy back to his RV because of his severe state of intoxication. It was Glass who informed the investigating officers of Kennedy’s severely intoxicated state.
Ayala then reviewed some facts previously not made publicly including that of the three shots allegedly fired during the incident, only two bullets had been recovered one from the victim, Melvin, and the other from the truck by the State Crime Lab, which examined it. The other has not been recovered
Ayala also said evidence regarding the gun, the gun found on the porch of the cabin, the gun case found inside the RV and the shell casings was enough to link it to Kennedy.
The attorney told the court the state could amend the complaint going forward to include more information about the gun, gun case and cartridges as it developed. Ayala also told the court that for any person who shot into the truck three times it was legitimate to infer they were trying to injure the occupants.
After hearing the attorneys, Judge Rider ruled Eisenberg’s motion to dismiss the criminal complaint had failed.
Rider reviewed what was necessary for the complaint, and found most elements were there. While the motive was less than totally clear, there was enough in the complaint to charge Kennedy with a crime.
With the judge’s ruling not to allow the motion to dismiss the complaint, the preliminary hearing proceeded.
The first witness was Deputy Cody Mullikin a nine-year veteran of the Crawford County Sheriff’s Department, who along with Deputy Marcus Ploessl, were the first deputies to arrive at the scene after being dispatched. The deputies stopped at a nearby residence of Richard J. Larsen, but were unable to get answer.
From there, Mullikin described how they approached the scene and saw the black pickup roll away from the RV and the cabin, crossing Martin Lane and rolling into an open field. He went on to describe the hysterical passenger Jen Glass who exited the truck, but initially refused to come toward the squad insisting they come to the truck to assist the badly wounded driver who she thought was dying.
Step-by-step Mullikin recounted the events of recovering first Glass and then eventually Melvin.
During questioning Eisenberg asked Mullikin why they had to find the property owner at the nearby residence, and took time approaching the truck and RV and cabin. Mullikin explained to the attorney that he and Deputy Ploessl were trying to assess the situation and where the source of danger might be before they moved forward.
Later in his testimony, Mullikin described speaking with two people that had been in the cabin adjoining the RV at the time the shots were fired. One of them, Dale, had woken up at the sound of the shots, and the other Ben indicated to Mullikin that he had not been woken.
Mullikin noted that in the conversation with Dale that he said he saw the handgun on the cabin porch when he opened the door after being awakened by the shots.
Both Dale and Ben told the deputy the gun had not been on the porch when they retired for the evening
In cross examination, Eisenberg worked with Deputy Mullikin to establish a timeline that started at 1:30 a.m. when the call was first dispatched through the event of the early morning including the recovery of both Glass and Melvin and the securing of the area by about 2:30 a.m., and on to the 5:30 a.m. arrest of Kennedy.
During his cross examination, it was established that Melvin’s pickup struck a fence post gate as it rolled down the driveway and crossed Martin Lane and into the adjoining field.
Eisenberg asked what Lee Kennedy was doing when Glass and Melvin left him. Mullikin said that Glass had not informed him of that.
Mullikin told the attorney about information he directly collected, and at times told him about what he knew about information collected by others.
Mullikin helped collect evidence at the scene and provided testimony to get search warrants, but did not participate in the actual search of the buildings.
Under questioning from Eisenberg, Mullikin testified there were four vehicles at scene the black Ford pickup with Florida plates owned by Kennedy, the pickup owned by Jason Melvin and two vehicles owned by the cabin residents, Ben and Dale.
Eisenberg then asked about the presence of a silver-white pickup truck referenced by Dale. Mullikin didn't know of the presence of such a truck
Finally, Eisenberg established the events around the arrest of Kennedy which Mullikin agreed went without incident with a SWAT Team present.
Eisenberg asked if Kennedy was unarmed at the time of his arrest. Mullikin told the attorney that Kennedy was in possession a pocket knife, but under further questioning agreed he was not holding it or using it in a threatening manner
Crawford County Lieutenant Investigator Ryan Fraddette was the last witness at the preliminary hearing.
After reviewing and confirming some of the information in the criminal complaint. Fradette said that he had heard the defendant lived in Illinois. The investigator confirmed that Kennedy did not live on the property in Eastman. He also confirmed that Kennedy owned the black pickup, and that Kennedy, or Kennedy and his wife Rebecca, were the owners of the recreational vehicle parked next to the cabin on the property.
When Eisenberg asked Fradette what he knew about the presence of another silver or white pickup on the property the night of the shooting, Fradette indicated he knew nothing of it.
“The first I heard of it is when you bought it up today,” the investigator said.
Following summation by Ayala and Eisenberg, Judge Rider ruled that the preliminary hearing had produced enough evidence to bind over the defendant for trial.
In a separate motion to the court, Eisenberg sought to have his cash bond reduced from $50,000 to $10,000. The attorney noted that Kennedy had only one felony on his record and that it was expunged 20 years ago. Eisenberg also stated the defendant resides in Illinois and has a business and is “not going anywhere.”
Attorney Ayala argued that the bond amount was appropriate given the 60-year possible sentence if the defendant was found guilty of the charge. The attorney also noted that she had heard the defendant may be planning a trip out of the country. She also referenced what the victim, Jason Melvin, was experiencing as the result of his injuries.
Eisenberg acknowledged the terrible nature of what Mr. Melvin was going through, but pointed out that the bond issue was not a debate about what Mr. Melvin was going through or not going through. He also took Ayala to task for introducing a rumor of allegations his client was thinking about leaving the country
Judge Rider indicated that to her mind nothing had changed since the bond was set and $50,000 was not too high.
“The bond is appropriate to the nature of the event,” Rider said.Lee Kennedy’s arraignment was set for Monday, Feb. 10 at 3 p.m.in Crawford County Circuit Court.