STATE OF WISCONSIN CiRCUIT COURT WALWORTH COLINTYHONORABLE ruDGE REDDY

STATE OF WISCONSIN,Plaintifl

_vs-

RAFAEL OLIVAREZ,Defendant.

Case Number 14CF195

DEFENDANT'S MOTION TO DISMISS AND RELEASE FROM JAIL IMMEDIATELY

Please take notice that at the earliest possible time this matter may be set, the defendant,Mr. Rafael Olivarez, through counsel, will move the court to dismiss this case and release himfrom Walworth County Jail forthwith.

The defendant, Mr. Rafael Olivarez, appearing specially by Attorney Travis Schwantes

and Attorney Julia May, of the State Public Defender's Office, and reserving the right tochallenge the court's jurisdiction, moves the court for an order dismissing this action and

releasing Mr. Olivarez from custody immediately"The defendant brings this motion pursuant to Wisconsin Statutes 97 L.3I(2) and (5) on the

ground that the court lacks jurisdiction over the defendant because the complaint containsstatements that are either deliberately false or that were made in reckless disregard for the truth,thereby denying the defendant due process and equal protection of the law in violation of therights guaranteea by the 5t', 6tn, 8th, and 14ft Amendments to the United States Constitution;article I, sections 1,3,6,7,8, and 11 of the Wisconsin Constitution; and Franks v. Delaware,438U.S. 154 (1978), and State v. Mann, 123 Wis. 2d375,367 N.W.2d209 (1985).

In further support, the defendant moves for dismissal on two independent grounds:

1. The criminal complaint lacks probable cause within its four corners because a false

statement is essential to the finding of probable cause and, if excised from the complaint,there is no probable cause.

a. The State of Wisconsin issued a one-count criminal complaint May 7 ,2014charging Mr. Olivarez with first degree intentional homicide, pursuant to

Wisconsin Statute 9a0.01(1)(a), allegediy occurring in the early moming of May4,2014.

b. Paragraph five, sentence four of the criminal complaint states: "fDelavan PoliceOfficer Richard] Kendall reports that [Brenda] Garcia said that she then saw the

Defendant grab akitchen knife and stab flvan] Guerrero." [emphasis supplied]c. Detective Michael J. Lambert, of the Walworth County Sheriff s Office, met with

Brenda Garcia May 4,2014 at approximately 9:40 a.m. Brenda Garcia speaks

Spanish. Officer Gerardo Baca, of Delavan Police Department, translated fromSpanish to English for Detective Lambert.

d. Detective Lambert wrote on page five of his seven-page report in the second fulIparagraph: "I asked also about lvanfGuerrero]'s injury and what she had seen.

She again stated she did not see the actual stabbing and did not see blood onIvan fGuerrero] until he was downstairs." [emphasis supplied]

e. Detective Lambert's report of his interview with Brenda Garcia was generated onMay 5, 2014.

f. The highlighted statement in the criminal complaint and the highlighted statementin Detective Lambert's reports are diametrically opposed. There is no way thatboth statements can be true. That is, it is not possible for Brenda Garcia to "see"the stabbing and to "not see the actual stabbing."

g. Without the false statement that Brenda Garcia "sa\ /" Mr. Olivarez stab Mr.Guertero, the criminal complaint lacks probable cause that Mr. Olivarezcommitted the offense alleged. Therefore, the complaint must be dismissed.

2" Because the complaint lacks probable cause and because it was essential to the bindoverdecision at the preliminary hearing, this matter must be dismissed due to lack of probablecause established at the preliminary hearing.

a. Court Commissioner Daniel Johnson presided over a preliminary hearing May 14,2014. The hearing electronically recorded. The defense has ordered a transcriptof the hearing, but has not yet received the transcript.

b. At the hearing Delavan Police Officer James Berlin testified that he responded toa call May 4th where he first observed Mr. Olivarez "waving him down" anddirecting him to where Ivan Guerrero was laying in the grass bleeding.

c. Next Delavan Detective David Smith testified that he attended the autopsy of IvanGuerrero and that the cause of death was blood loss.

d. No witnesses testified at the hearing other than Officer Berlin and DetectiveSmith. Neither witness testified about the events leading to Ivan Guerrero'sdeath.

e. The court allowed into evidence exhibit one, the criminal complaint in this file,over the defendant's objection.

f. The court found that the state's witnesses alone do not present probable cause,however, with the admission of the criminal complaint into evidence and, inparticular, the sentence regarding Brenda Garcia seeing the actual allegedstabbing, the court found probabie cause. Please refer to the transcript, whenprepared for the specific language of the court's findings.

g. Without the false statement that Brenda Garcia "saw" Mr. Olivarez stabbed Mr.Guerrero, the criminal complaint lacks probable cause that Mr. Olivarezcommitted the offense alleged which, in turn, means the bindover decision isdefective, lacking probable cause, and must result in dismissal.

For the above reasons, justice requires that this matter be dismissed and Mr. Olivarez bereleased from custody immediately"

Dated at Elkhorn, Wisconsin, June 5, 2014.

Attorney Travis Schwantes, #1 03 1258Counsel for Rafael Olivarez

Respectfully su

Julia May,Counsel for Rafael

Law Office of the State Public Defender209 O'Connor DrElkhorn, Wisconsin 53 121

STATE OF WISCONSIN CiRCUIT COI,RT WALWORTH COTINTY

STATE OF WISCONSIN,

-VS-

RAIAEL OLIVAREZ,

Plaintiff

Defendant

AFFIDAVIT II.{ SUPPORT OFDEFENDANT'S MOTION TODISMISSCase No. 13CM403

STATE OF WiSCONSIN

WALWORTH COTINTY

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Attorney Travis Schwantes being sworn, says:

1' I am an attorney for Rafael Olivarez, the defendant, in this case. I was appointed to represent Mr.Olivarez, along with Attorney Julia May, on May 5,2014.I appeared with N{r" Olivarez in court the day the criminal complaint was filed in this case, May7 ,2014. I requested a preliminary hearing within ten days. I read the criminal complaint andnoticed that the only information about what Mr. Olivarez allegedly did to cause Ivan Guerrero,sdeath is in paragraph five, sentence four of the criminal compliint which says: "[Delavan policeOfficer Richardl Kendall reports that fBrenda] Garcia said that she then saw the Defendant grab akitchen knife and stab [Ivan] Guerrero." [emphasis supplied]I appeared with Mr. olivarez at the May 14,2014 preliminary hearing before courtCommissioner Daniel Johnson. The hearing electronically recorded. The defense has ordered atranscript of the hearing, but has not yet received the transcript. My recollection of thepreliminary hearing is based on my notes and my review of the online record of the case.At the hearing Delavan Police Officer James Berlin testified that he responded to a call where hefirst observed Mr. Olivarez"wavinghim down" and directing him to Ivan Guerrero who waslaying in the grass bleeding.Then Delavan Detective David Smith testified that he attended the autopsy of Ivan Guerrero andthat the cause of death was blood loss.No witnesses testified at the hearing other than Officer Berlin and Detective Smith. Neitherwitness testified about the events leading to Ivan Guerrero's death.The court allowed into evidence exhibit one, the criminal complaint in this file, over thedefendant' s obj ection.The court found that the state's witnesses alone do not present probable cause, however, with theadmission of the criminal complaint into evidence and, in particular, the sentence regardingBrenda Garcia seeing the actual stabbing, the court found probable cause. Please refer to thetranscript, when prepared, for the specific language of the court's findings.After the preliminary hearing, my office ordered the state's file for copying pursuant to theDistrict Attorney's "open file" policy. The same day I filed the Defendant's Discovery Demandasking for, among other things, a complete set of the investigatory reports prepared in this case.The next day, on May 15, 2014,my office received a set of reports prepared by the WalworthCounty Sheriffs Office, including a seven-page report by Detective Michael L. Lambert datedMay 5, 2014. Detective Lambert's assignment on May 5, 2014 was to interview the wife of IvanGuerrero, Brenda Garcia. Brenda Garcia speaks Spanish. Detective Lambert received Spanish-to-English interpreting assistance from Delavan Police officer Gerardo Baca.

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11. Detective Lambert asked Brenda Garcia to tell him about the events of Saturday, May 3,2014

going into the early-morning hours of Sunday, May 4,2014 when the police were eventuallycalled to her home.ln discussing an alleged fight between Mr, Olivarez and Mr. Guerrero in the early-morning hours

of May 4e, Brenda Garcia told Detective Lambert that as Ivan Guerrero went downstairs, he toldMr. Olivarez, "You're fighting like a fag."Based on review of the state's reports and on information and belief, going "downstairs" in

Brenda Garcia's home, leads to the outside.

On page five, in the second full-paragraph of his report, Detective Lambert writes, he "asked also

about Ivan's injury and what she had seen. She again stated she did not see the actual stabbing

and did not see blood on Ivan until he was downstairs."Upon reviewing the state's reports and on information and belief there are many more alleged

facts and circumstances involved in this case than were provided in the criminal complaint and at

the preliminary hearing. There is no doubt that the state has no obligation to present all that they

know at this point. However, the state is required to file a criminal complaint that alleges

probable cause for the offense charged in order for a preliminary hearing to be set and, at the

preliminary hearing, the state is required to establish probable cause that Mr. Olivarez committed

a felony in order for an arraignment to be set.

Absent the false statement in the complaint that Brenda Garcia saw IvIr. Olivarez stab Ivan

Guerrero, there is no probable cause contained in the criminal complaint. Absent the false

statement in the complaint that Brenda Garcia saw lvlr. Olivarez stab Ivan Guerrero, there was no

probable cause established at the preliminary hearing May 14ft that Mr. Olivarez committed a

felony. Therefore, due to a defective criminal complaint and a flawed preliminary hearing, this

matter must be dismissed and Mr. Oiivarez must be released from custody.

-<-:-? .,^ lf i1 -7<*t > rU-"--V-=Attorney Travis Schwantes, State Bar #1031258

Notary Public, State of WisconsinMy commission

n -J*f ar tln-- a tn I

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Sisned and sworn to before me

oi 6ts/ i,t.. (date)