The attorney for a New Richmond man accused of murdering his son cited new evidence and alleged false testimony last week in outlining grounds for exonerating the charges against his client.
Kayle Fleischauer, 42, faces one count of first-degree intentional homicide in the April 14 shooting death of his son, 19-year-old Chase Fleischauer. Kayle Fleischauer pleaded not guilty to that charge and a second count - possession of a firearm by a convicted out-of-state felon - at a June hearing in St. Croix County Circuit Court.
Defense attorney Earl Gray filed a motion for dismissal last week outlining his theory.
"The circumstantial evidence clearly establishes that Chase Fleischauer in a drunken stupor while handling a loaded firearm either accidentally or intentionally killed himself," Gray wrote in a motion filed with the court Nov. 6.
Fleischauer appeared at a Nov. 9 hearing, where prosecutors, led by Wisconsin Department of Justice Assistant Attorney General Robert Kaiser, said they were not yet ready to address the dismissal motion.
"Counsel," Kaiser said in reference to Gray, "has made some very serious allegations."
In the dismissal motion, Gray alleges a probable cause decision made after Fleischauer's preliminary hearing was based on "false and erroneous testimony."
Gray's bone of contention centers on a statement by St. Croix County Sheriff's Office investigator Jim Mikla. In it, Mikla said he was told by Dr. Kelly Mills that the gun was fired about 18 inches from Chase Fleischauer's head, according to Gray.
Prosecutors later used that distance in establishing someone other than Chase Fleischauer fired the fatal round.
The court filing states Mills and her superior at the Ramsey County Medical Examiner's Office, Dr. Michael McGee, performed a test of the gun Sept. 27 to determine the actual distance. The test didn't include a shot from 18 inches "because obviously they both knew the distance was not" that," Gray wrote. They tested 3 to 9 inches, which yielded inconclusive results, according to the filing.
"It is not credible to believe that a so called expert such as Dr. Mills would erroneously opine an 18-inch distance but only test up to 9 inches," the document states.
The motion also alleges Mikla's statement about the absence of gunpowder residue on Chase's head was false. Gray cites the autopsy report, which describes "gun powder stippling surrounding the wound."
"Stippling is gun powder residue," Gray wrote.
The importance of that component is critical, Gray argues in the motion, saying the closer a gun is to the head, the more such gunpowder residue would be left behind.
Gray offered those points in support of his argument that Kayle Fleischauer is innocent. The filing states Chase Fleischauer's DNA was found on the barrel of the gun, but no DNA from Kayle was found on the firearm. The motion also states no gunshot residue was found on Kayle's hands and that it was unknown whether Chase's hands possessed such residue.
Chase's blood-alcohol content was 0.278, according to Gray's motion.
Gray argued in court Friday that prosecution never turned over evidence from gunshot residue test results that was reportedly received in September. St. Croix County District Attorney Michael Nieskes contended that information had been turned over to the defense, so Needham ordered prosecution to provide a copy directly to Gray after the hearing.
The dismissal motion will be heard before Needham on Jan. 22.