Court Refuses to Strike the State's Two Child Witnesses in Dikeman Trial | Pt 18

Added: 2026-05-09

[00:02:19]Um, I think everybody's here. Um, this is 23 CF475, State versus Josie Dman appearances.

[00:02:30]>> Matthew Torbinson and Emily RDE appear for the state. Investigative Sergeant Richson will be in the courtroom shortly. It's just outside.

[00:02:36]>> Okay. I'm sorry. I didn't realize who was sitting there.

[00:02:40]Go ahead.

[00:02:40]>> Morning, your honor. Miss Deman appears in person with her attorneys Chris and David BS. Also present is parallegal Emily Sanchez.

[00:02:47]>> Do you want me to wait a minute?

[00:02:49]>> I don't think we need to.

[00:02:50]>> Okay. Um, so a couple things this morning before we begin. Um, first one was the issue sort of like very late. Um, this issue of allegation of coaching. Um, the court went ahead and listened to exhibit 253, the three clips that were there. Um, I will say we've taken I I listened to it a number of times. Um, I didn't catch the no, which is what I believe the defense is referring to right before the answer by the by um by Major. Um, and um, and there's two clips of that.

[00:03:37]There's the first and I think the third clip does that. Um, well, I'll just say as we went back and listened to the DAR to see because we have very sensitive microphones, we can't hear that first no. So, we're not sure where that no is coming from to be honest. Uh, it could be anywhere. Um, but what's also clear, and I'm just going to do this to save some time. I didn't hear it. I don't think anybody heard a no being said. And if it was said, I doubt the child heard it. Um during that whole testimony factually is that Major put his head down. He was not looking at Mr. Zacher. He was just sort of in his um own world. I don't think that's that's my impression of what happened. I keep pretty del, you know, clear notes about what happens. I Is that is that a correct interpretation what was going on at that time? I'll ask you, Mr. Zachary, since you're making the allegation.

[00:04:42]>> Well, Judge, I um I was not the one to find these clips. This is just what was sent to us. We haven't gone through the entire um entire recording of the the day of testimony. Um what I'll say is that at times Major would look at me. Um I agree with the court. Most of the time his head was kind of down and playing with his fidgets. Um, I heard the nose on both of the clips. And I I guess the point with the uh the profanity that that he used is that these microphones are sensitive enough. They project audio into the courtroom. I didn't hear him call me that, but he very clearly called me that. So, I don't think we can say whether or not he heard what would have been whispered um in those clips. I think the clips speak for themselves on that issue. Um, just ask the court to make them part of the record.

[00:05:28]I I'm just going to say that that profanity was probably muttered under his breath and we could barely hear him anyway. So, I'm not sure anybody could hear it. I'm not even sure it's him per se, but it sounds like it's him. I don't know if the state has any opinion about any of this.

[00:05:46]>> What I would say related to the profanity is I received an email from a concern actually to my Milwaukee office this morning. Um, and that email attributed the profanity to else other than Major and actually asked that I go back and watch the video of the person that the camera was on at the time that the children were testifying. I have not had an opportunity to do that opportunity to do that. So, I'm not going to make an allegation about who that particular person may have been that was swearing at the time. Um, but that's what a concerned citizen reached out to me about and even provided her name and telephone number for me to reach out and contact her. Um, quite frankly, that's a lot of time and energy to put into something that I think is really not relevant to this trial. Um, any at this stage of the game. The thing that I would say related to the nose, um, what defense council is alleging is extraordinarily serious. And all I would say is I wish they would have come with more evidence, especially as defense council and knowing how important it is to have evidence to level a claim against someone. These claims are quite specious and there's really no evidence.

[00:06:50]There are a lot of eyes on me in this courtroom. There are a lot of eyes on the child. There are a lot of li eyes on this whole process and to insinuate in any way, shape or form that in front of a jury, I am coaching a child witness to give certain answers. And I think the other thing that's really important to recognize is answer that he gave the most is I don't remember. If I were coaching him, do I do does anyone in this room really think that I want a child saying over and over and over and over and over and over and over again, I don't remember. Um I the allegation is furious at best.

[00:07:21]>> I I don't think there's any any factual basis to believe that he was that Major was being coached during the actual testimony. There's nothing there. I mean, whatever even these comments, it's hard to tell where they're coming from.

[00:07:39]You know, it used to be and I I'm not going to say I mean, we've had in the past where there was microphones in the media room. somebody could be saying something. That's I don't believe that's true here, but um um I'm not sure where it got picked up. It literally sounds like mutters. They all just sound like muttering responses. So, let's move on from that. Going on to the other allegation that's sort of more dealing with Brantley's uh testimony yesterday.

[00:08:09]Um the assertion was beforehand that there were statements from Brantley uh to the prosecution that should have been turned over beforehand.

[00:08:22]Um I'm just going to frame it. You guys can correct me if I'm wrong. Is that um obviously this happened I believe before the actual cross-examination happened.

[00:08:34]And then and then what happened is during the cross- examination, Mr. Zacher asked, "Did you talk to Mr. Tobersonson?" Used the term Matt, his first name, and said, "Did you talk to Matt?" "Yeah." "And did you tell him this stuff?" And he said, "Yeah." Um, so the question was, is he telling the truth? Is he lying about it? or is he doesn't understand what the real question is and I you know somewhere I that's where we're at. Um is that a fair explanation that is >> it is I have some comment on that your honor.

[00:09:16]>> All right. So since this is your assertion go ahead Mr. Zacher. Go ahead.

[00:09:22]So judge, everybody in this courtroom agrees that the state has an affirmative obligation to disclose inconsistent statements, exculpatory remarks, which are, you know, significant changes in the story, significant changes in the facts, oral statements of the defendant that it intends to offer, and statements of witnesses that it intends to call.

[00:09:42]That's covered under both Brady and 97123 parent one. Um, it is something that happens all the time in my experience. I'll say that one of the most honest people I've ever dealt with in this job, Dick Lewis, um, ADA in Neilsville for years and years, um, used to come to me all the time after witness prep and say, you know, Chris, you should know that they told me something different and I'll back you up if if they, um, lie about that under under oath. It was no big deal. It was just part of the obligation. Um, I don't think there's anything wrong at all with interviewing a witness. I don't think there's anything at all with preparing a witness to testify. That's standard.

[00:10:21]It's expected. Like I I take no problems with the state doing that. Where our problem is is that we have evidence that Brantley testified under oath. he gave to the state during preparation, including significant new details that changed both the facts and the tenor of his um his testimony um significantly from his recorded interviews about the hot sauce, about the pizza, about um this choking incident that he claims about the supposed attack in the bedroom on February 10th that weren't anywhere in his prior statements. These are clearly inconsistent. They're clearly statements of a witness on the state's list. Um, they're clearly contain oral statements of Miss Dykeman that she's entitled to disclosure of when they were elicited. Um, and they they clearly weren't disclosed to us. I I think if the states if the state is going to make the claim that they didn't ask a child witness that, you know, what he was going to say or what his responses are going to be, I find that difficult to believe. Um, I I do that with with most of my witnesses, judge. Um, and there's nothing wrong about that. I also find it difficult to believe that the state would know to ask about such specific topics with these child witnesses if if they hadn't been discussed in advance.

[00:11:43]So, I I don't think that they were pulled together out of thin air just given the clear record in this case. If that's the case, it's a clear discovery violation. Um, 100%. Um, and if the same thing is true with Brantley, then very likely the same thing happened with Major because it was the same sequence of very specific questions about new facts that Major had never discussed in any of his forensic interviews that the state was directing him on. And you know, one way or another, Miss Deman is entitled to relief. Um, if this was a discovery violation, the presumptive remedy in 97123 parent 7M is exclusion of those witnesses. That is what I move the court to do. Um to instruct the jury to disregard entirely the statements of both Brantley and Major given the discovery violation there. I would note that the state did not go back in and try to rehabilitate Brantley and his testimony um about uh disclosing this to the state earlier on. Um they had the opportunity to do that and they chose not to. That is the state of the testimony right now on Yeah. On the other hand, um if the state didn't know or if the court finds that the state didn't have these disclosures in the course of preparing their witnesses, um what I'm asking the court for is an instruction um on both Brantley and Major specific to the two of them, the false ununo instruction, um instructing the jury that um if they find that either of them perjured themselves that they should disregard that testimony in their entirety. Um but I I think the clear remedy here is that this is a discovery violation exclusion is the presumptive statutory remedy. Um and that's the only in that's the only remedy that will um put Miss Dykeman back in the position that she should have been in absent the failure to disclose.

[00:13:38]So um that's our position here. I I one way or another Miss Dyman is entitled to a remedy. Um and and we believe it should be we we we believe it should be the remedy of exclusion.

[00:13:50]>> The state's position.

[00:13:53]>> Your honor, again, this is an extraordinary serious accusation to make with little to no evidence to support it. I told the court yesterday what my practices in preparing witnesses. I'm going to make more of a record regarding that today. I am a trained forensic interviewer. I'm trained in the stepwise protocol. I'm also trained in the Wisconsin forensic interview guidelines.

[00:14:11]I know how to interview children. And when I asked the questions of both these children, I used very open-ended questions. When I brought up food yesterday with Brantley, I said, "Was there anything that happened with food in the house?" I didn't know what his answer was. I've never talked to Brantley about food before, and if the court wants, I can leave the room and ask Miss RDE how I prepared Brantley by telling him the topics I would talk about with him on the stand. Food was not one of the topics I even brought up to him. I didn't know what his answers would be in front of the jury. When he answered those questions, I explored them further. When I asked about pizza, he said that he didn't get to eat pizza at all. He didn't say anything about crust. That's a very different answer than what Major provided one day before.

[00:14:53]So, I used open-ended questions, brought up a topic, elicited information from them in front of the jury. The other reason why I don't do a detailed prep with a child and ask them all those questions is the very reason that attorney Zacher mentioned is that it creates the opportunity for an inconsistent statement or what the jury would perceive is an inconsistent statement because I ask a question different than someone else asked the question and that generates potentially exculpatory information which is exactly why when I have a forensic interview of a child I do not go into detail or ask any specific questions regarding the underlying alg allegations of the offense. I tell the child what we're going to talk about in court. I do not ask questions of the child. I ask them if they have any questions of me about going over that information in court.

[00:15:40]And the answers I get is no. They didn't have any questions. They knew what we were coming here to do. I show them the courtroom. I explain the courtroom to them and how it functions so that they're comfortable in the courtroom.

[00:15:50]All of that is done with grown-ups present so that the grown-ups also are made comfortable with how we're explaining the process to a child and how we're going to handle a child witness in the courtroom. But I never went into any of these specifics with either of the children in prep. Um can you explain why during your you did not redirect on this issue once Brantley said that obviously Brantley is asserting oh no I told him this >> because yeah go ahead your >> honor because Brantley also said I was present outside when um he said sorry to his dad and I was downstairs. My interpretation is that Brantley was exhausted on the stand, that he was tired, that he didn't want to testify any further, and that we weren't going to get any additional information out of Brantley. When he said when he made that representation, I think my response in the record was, "Really, I was there?"

[00:16:43]or something to that effect when he said that because I was actually downstairs and I was getting text messages or more more accurately, Miss Rude was getting text messages about what was happening upstairs and then we were directing them to be separate from one another. You're talking about the the issue about the hug.

[00:16:59]>> Yes.

[00:17:00]>> You weren't there during that >> just because it you're sort of mixing two different things. One is Brantley saying in response to Mr. Zachary's questions, yeah, I told him this. Let let me ask you this question. Um clearly there is a contradictive testimony that happened from Brantley yesterday. That's clear. I I think minimally the false cenounu jury instruction should be given to be honest because I I think when you have these conflicting I mean not not only rally there's all over the place the general false um uh jury instruction should be given. The question is I I mean I think what Mr. Zacher is suggesting is that um that they be more specifically directed towards the testimony of Brantley and Major here because they are so vastly different from the original statements.

[00:18:06]Okay, I see you're already shaking head.

[00:18:08]They are different. They are different from original statements which are significant enough that one starts to believe that they saw things which they said at the beginning they didn't see or never talked about in a forensic complete forensic interview which is even more careful than being up there in the stand although I respect your qualities of as a as a as a prosecutor but the reality is is that forensic interviews are the place where all those things are supposed to be explored and they her. Um, multiple questions.

[00:18:41]Anything else? Anything else? Anything else?

[00:18:43]>> Judge, I would The way I would push back regarding Brantley is food was never discussed with Brantley in either forensic interview. The topic of food and eating in my >> But it's not even food. It's I I mean I sure the food that's not even the most significant disclosure. The most is significant disclosure during the testimony is probably the direct vision or view of of Alex being kicked by mom or being hit by mom.

[00:19:13]Um which you know there was general statements but there was no specific response like as much as there was yesterday. the and I I I going to that point I I I I talked about this yesterday afternoon. We had a discussion about whether or not we had even play the second forensic interview because he talks about the kick or the push down the stairs being the night before. And if the court recalls my questions of Miss Swedberg the morning the morning just yesterday morning, it was all about timing of child interviews and how a child that young may mix some events. That was my belief at the time yesterday morning was that that he was mixing those events. I had no idea. And actually, investigator Ammonson passed me a note and said, "I think there's a second fall down the stairs when he was watching the second forensic interview."

[00:20:04]All of that evidence goes to show that we believed that he was talking about something completely different than when he got on the stand and actually said, "No, it happened the day before and this event took place." That all goes to show, your honor, that I was just as surprised as everybody else when he provided that additional information.

[00:20:23]>> And and I'm and I'm I'm really not making an argument that you necessarily knew what he was going to say. What I'm what I'm really saying is though is now we have very conflictual very very conflictual statements that you know a whole new another event is basically being described.

[00:20:41]Unless I missed this somewhere else. I don't believe I ever saw a second fall down the stairs until yesterday.

[00:20:48]>> It's in his second interview. So, he does say it happened and he says it happens the day before. I think all of us just believed that he was conflating and mixing up events and then he said yesterday on the stand, "No, it was a separate incident." Yeah, >> I think he clarified on the stand. Quite honestly, I don't think he was I don't think there's new information. I don't want to get into the, you know, the jury has to make decisions on credibility, but I think the jury instruction is appropriate. I whether I make it more specific or general, that's something that's we can decide at a later date. We don't have to do that right now. I just so it's clear. I if if it's not clear to the defense, I I don't I think juveniles and children, especially this age, testifying is fraught with danger. And that's exactly what happened here is one of the problems of of how we develop trials is that it takes in this case it took years to get to trial. And it also means that juveniles memories changed and and many things other things can happen influence as the defense is arguing as you know one of the many things we know that people start to create memories over time. So the reality is is that's one of the problems we have. I don't necessarily believe and I I I take Mr. Torbinson's word um as being valid. I don't think he talked about the substance. I think they asked questions and things came up and they were as surprised as the fence was on the responses. Um so I don't think there was um anything necessarily indicating that they were that there were some new statements prior to the actual trial.

[00:22:24]And I I I think that's correct. But I do think it is correct to say that there should be some response to the fact that there's such diversion statements and that can be done through the jury instructions.

[00:22:37]>> Judge, I would ask it to be a very generalized statement and >> we'll get there. Yeah, we'll get there.

[00:22:42]I I it all depends a little bit. I since I'm this is the remedy I'm I'm I'm suggesting I'm allow the parties to develop it and we'll figure out where.

[00:22:52]But one last thing to put on the record, judge, is that um there was at least one uncorrected lie um from Brantley yesterday where he testified that Mr. Torbinson was present for this um interaction with his father and clearly from Mr. Torbinson's statement. Um he was not. Um I I think I think it's pretty clear that that was untrue and I think it's pretty clear that this was perjured. So I I I do believe that the false in uno is appropriate for Brantley specifically for that reason >> and and let's talk about that when we get a little closer to it. I don't want to do it in the middle of the trial. I want to do it at the the end about how to weigh false isn't is a question about how one weighs certain testimony and evidence given before you. Um >> um can I just elaborate on that last point real quick?

[00:23:41]>> Sure.

[00:23:41]>> Okay. Just for the record, when Brantley went out and hugged his dad, we were exiting the courtroom. So that process had started and and in Brantley's mind, I may have been out there. He may have seen me exit shortly thereafter. I then went downstairs when he was having the discussion. I seriously doubt that his eyes were still on me or paying attention to me when he's having that interaction with people in the hallway.

[00:24:03]So that's that's what I would I don't think that that equates to per testimony. I think that that was his perception of what was happening.

[00:24:10]So it's a question whether it's really that material.

[00:24:13]>> It isn't.

[00:24:13]>> Um the the other issue um the other so the other issue I wanted to deal with there's two actually other ones. One is um can I just ask when is the stipulation on the other acts going to be brought in? Is that tomorrow?

[00:24:29]>> My hope would be to have it done at the end of our case. Um the the only caveat to that is if we have any breaks in time that need to be filled, we may ask that to be done then unless it's not ready.

[00:24:41]>> All right. Uh that was I was that was more of a curious question. And then the other question is um you know I I've gone back and look at um a closer look at Anderson. Um, uh, the state asserted that the remedy that's within Anderson is a jury instruction of some sort.

[00:25:06]I'm curious what paragraph that's in because it's not that clear. You know, Justice Dot writes, you know, thoroughly, but also Kavski does, Justice Kovsky does, or Chief Justice Kovsky does, um, and others right at the time. Um I I don't think there's a clear remedy. I I I think Ander I think Johnson did I say Anderson? It's answer I always get those two names confused. It's Johnson St. Johnson which is uh 407 west second 195. Um and I'll just assert this. I sit on the criminal benchbook and we were struggling about what to put in. This is why I knew this was an issue about uh about Johnson is it's an interesting remedy to say well the remedy is really a jury instruction of some sort because uh we are in a different posture than Johnson completely. I mean Johnson was a not mid-trial was not it was a discovery request um it was a sexual assault it was a wasn't a child. There's so many issues that are different from Johnson, but also Johnson doesn't give you uh a lot of guidance what to do since they got rid of shift written green and and so I um what I'm asking is the reason I'm pointing this out is because if you believe that's the answer, that's the remedy.

[00:26:34]I'd like something showing me that and some some idea why you believe that.

[00:26:40]>> I'll take another look at Johnson um during a break or this evening, your honor. The other arguments I would have relative to that are first the defense wanted to get into prior violence on the part of Major that's represented in those records. They did not file a denny regarding Major and Major's violent behavior. They're not asserting that Major is a potential abuser in this particular case. So I'm not sure there's any relevancy to Major engaging in prior acts of violence. And they didn't file a other acts motion relative to that either, which is this. That's what that would be. Secondarily, they said that the records would be relevant for specific instances of untruthful conduct. Specific instances of untruthful conduct are governed by Wisconsin statute 906.08.

[00:27:26]You can only go into specific instances of untruthful conduct after a witness has testified that the witness on the stand has a character for truthfulness.

[00:27:35]Then the specific instances of untruthful conduct can come in to impeach that. And you cannot use exculpatory records um or collateral records. So you can ask the question of the witness about a specific instance, but you cannot show the witness collateral outside records to further impeach that witness. So a no witness testified to major being having a character for truthfulness that would open the door to any specific instance of untruthfulness under 908. It doesn't come in under that. and B, they didn't file a Denny and they didn't file another acts relative to prior violence or propensity for violence or anything of that nature regarding Major. So, it's completely irrelevant before we even get to Johnson.

[00:28:14]>> Judge, I think the rationale for why Major is being taken to counseling is appropriate rebuttal and impeachment evidence in Miss Begman's case. I would intend to go into that. Um I would note that under 90608 um if um general character evidence for truthfulness is given and then it is then challenged um we can use extrinsic evidence to support that opinion.

[00:28:36]>> All right. Um I want the part I just wanted to bring it to the party's attention. I want to get something back about this so I can um figure out if I even you you might be correct. may not even be relevant. But on the other hand, it seems like truthfulness is being raised at this point in time by merely his testimony.

[00:28:58]And >> but 90608 is very clear that someone has to testify to truthfulness or untruthfulness before you get into specific instances under 908 sub 2. It's very clear on the process. They can't raise the issue of truthfulness and then bring in specific instances to get into it on their own. I will go back and look but I think at the end of of maybe the directed question was says were you being truthful today and the answer is wait yes so if you're asking that question you are you are asserting that the individual witness is being truthful and so I think that has a that the defense has a right to counter that if they believe they are not being truthful or has a character of non untruthfulness so let's uh we'll let's take a look we'll go from there I just wanted to bring it to everybody's attention But that that's that's going to have to be broad.

[00:29:47]>> Anything else we need to talk about this morning from the state's perspective?

[00:29:51]>> I could find something. I'm just kidding.

[00:29:55]>> Mr. Zacher, >> Judge, uh um I I just like the court to make a clear ruling on the record that it's denying our motion under 97123 parent 7M for exclusion due to a discovery violation.

[00:30:06]>> Yeah, I I am making a ruling that there I do not believe there's a discovery violation here and um I am not going to exclude the testimony at this in time given the facts that are presented to me. I do not have any facts to really support the belief that there was a disclosure and that that there was disclosure period let alone it not being turned over but that there was a disclosure. All right. Is that clear enough?

[00:30:33]>> Yeah. Just clarifying the record.

[00:30:35]>> Okay. Thank you. All right. With that we can bring the jury. Are they all right?

[00:30:39]>> All right. Let's bring them in.