- Associated Press - Wednesday, April 9, 2014

MADISON, Wis. (AP) - A state appeals court on Wednesday ordered new trials for two men convicted in a Kenosha homicide, ruling they never should have been tried together.

Prosecutors alleged Teddy Bieker and John Navigato confronted Robyn Leydel at his home over marijuana in 2009. They maintain Navigato and Leydel got into a fight and Bieker shot Leydel with a .22-caliber rifle. A jury convicted Bieker and Navigato of being party to first-degree intentional homicide, burglary and armed robbery following a joint trial in 2011. Both men were sentenced to life in prison.

Bieker testified during the trial that he didn’t remember pulling the trigger. He argued on appeal that the men never should have been forced into a joint proceeding. Prosecutors relied heavily on statements Navigato made to police implicating Bieker but he couldn’t cross-examine Navigato about them because Navigato chose not to testify, Bieker contended.

The 2nd District Court of Appeals reversed both men’s convictions in a pair of rulings. Judge Richard Brown wrote that the U.S. Supreme ruled in 1987 that a co-defendant’s statements incriminating the defendant aren’t admissible in a joint trial. What’s more, Wisconsin law states that if prosecutors plan to use a co-defendant’s statement implicating another defendant they must tell the judge, who then must sever the trials, Brown wrote.

The failure to sever led to a “domino effect” of problems, the judge wrote. Navigato’s statements were admitted, Bieker was unable to confront Navigato because Navigato didn’t testify and Bieker may have felt compelled to take the stand, Brown wrote.

“We cannot say beyond a reasonable doubt that these compounding errors were harmless,” Brown wrote.

The state Department of Justice defended the convictions on behalf of Kenosha prosecutors. DOJ spokeswoman Dana Brueck said agency attorneys are evaluating the rulings and for a possible request to the state Supreme Court to take the cases.

Navigato’s appellate attorney, Matthew Pinix, said he was happy with the appellate findings and said he was surprised prosecutors didn’t realize the trials had to be separate.

“It’s like a reboot,” he said. “I find that kind of remarkable that the state’s attorneys were unaware of that rule or chose to act in contradiction to it.”

Bieker’s appellate attorney, Urszula Tempska, said she, too, was shocked that the trials were allowed to proceed together.

“It never should have happened the way it did,” she said.

Kenosha County District Attorney Robert Zapf, who prosecuted the cases, said defense attorneys didn’t mention the U.S. Supreme Court decision or the provisions in state law when they tried to sever the proceedings before they began.

Tempska confirmed that but pointed out no one involved in the cases applied the correct law.

“Everybody was at fault,” she said.

Regardless, Zapf said barring a state Supreme Court review he would retry Bieker and Navigato separately on the same charges.

“The circumstances surrounding a home invasion and the nature of what happened (are) very violent and very aggravated and certainly warrants it coming back to another day in court,” he said.

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