HUDSON — Kayle Alan Fleischauer will be tried — again — in the shooting death of his teenage son after a judge ruled Monday, Aug. 12, that a home experiment by one of the jurors directly violated the court’s instructions and was cause for a new trial.
St. Croix County Circuit Court Judge Scott Needham said in his 25 years as a judge he has always held jury integrity as a foundation of the judicial system.
“Unfortunately, given the events that have now come to light in this particular case, that foundation has been cracked and my comfort and confidence shaken,” the judge said. “To say that I am disappointed would be an understatement.”
Jurors were read instructions, Needham explained, that stated “do not investigate this case on your own,” and the case was to be decided “based on the evidence presented in this courtroom.”
Furthermore, Needham said jurors were instructed to inform the bailiff or the court as soon as they learned of any misconduct.
"My trust in the integrity of the system has been compromised, not just because of the actions of one juror in conducting an outside experiment and reporting the results to the balance of the panel, because not one of the 11 jurors who were witnesses to that misconduct, timely reported it to the bailiff or to the court," he said.
The juror admitted at a July 23 hearing that she conducted a test to see if her dogs could disturb an unloaded handgun left on the floor of her house.
Defense attorney Earl Gray filed a motion saying the experiment undermined a key facet of his argument — that loose dogs at the New Richmond crime scene could have disturbed the gun, found 10 feet from Chase Fleischauer’s body. Gray’s contention at trial was that the 19-year-old fatally shot himself during the April 14, 2018, incident.
Fleischauer was convicted by the jury in June of second-degree reckless homicide, which carries a maximum sentence of up to 15 years in prison and 10 years on extended supervision.
According to Gray, Fleischauer will be tried only on the second-degree reckless charge since he was acquitted of the initial charges of first-degree intentional and first-degree reckless homicide.
Needham said there hasn’t been a day since the defense filed its retrial motion that he hasn’t thought about this case. He said he found that there was a “reasonable possibility” that the experiment had the potential for prejudicial effect.
“I renew my overall disappointment and dismay at the conduct of juror M.E.B. and although the state has granted her immunity, find her behavior in direct violation of the court's orders,” the judge said. “Everyone who participated or witnessed the trial knows how difficult it was emotionally, intellectually — in fact, morally.”
In his tenure as judge, Needham said, he has only ordered a jury to be sequestered one time. The second time will be when the state takes up its case yet again against Fleischauer, which is scheduled to begin Feb. 24, 2020.
"As I said on Day 1 of the trial and now confirm: If jurors do not comply with these rules, it could, and now will, result in a new trial involving additional time and significant expense to the parties and the taxpayers of St. Croix County," Needham said.
Shortly after 4 a.m. April 14, 2018, authorities received the call of a male with a gunshot wound to the head. They arrived at the rural New Richmond residence to find 19-year-old Chase Alan Fleischauer, a Tartan High School graduate, unresponsive on the floor of the upper level.
Somer Johnson-Fleischauer was the trial first witness Monday, June 3.
"I could hear yelling and movement upstairs," Johnson-Fleischauer said of the early morning hours of April 14, 2018. She described a verbal exchange between her father and brother, saying she heard her brother say he would never hit his father.
Kayle Fleischauer testified he went downstairs with his 19-year-old son and wrestled on the tile floor before returning upstairs and then going to bed.
But Wisconsin Assistant Attorney General Robert Kaiser Jr. pointed to a video taken of the home the morning of the incident that he said showed no signs of any wrestling match downstairs.
Kayle Fleischauer also said he noticed no injuries on his son before he went to bed sometime between 2:30 and 3 a.m., but blood was found on the bottom of Chase Fleischauer's socks indicating he stood or walked on blood already on the floor. Prosecutors said tests revealed it was his own blood on the socks.
According to Dr. Kelly Mills with the Ramsey County Medical Examiner's Office and her boss, Ramsey County Chief Medical Examiner Dr. Michael McGee, Chase Fleischauer would not have been able to move after he sustained the gunshot to the head.
Gray argued that alcohol can mask pain and maintained injuries, which may have bled, were caused during a wrestling match.
Initial charging documents stated the gun was fired approximately 18 inches from Chase Fleischauer's head.
Throughout the trial, Gray raised questions as to the validity of the state's case. He focused on inconsistencies between St. Croix County Sheriff's Office Investigator Jim Mikla's claim in his report of the gun's distance from Chase Fleischauer's head and matching results from test-fire patterns.
Evidence stated subsequent test firings were done at 3, 6 and 9 inches.
"What happened to the 18 inches?" Gray said during closing arguments.
Gray argued Mikla knew a distance of 18 inches would eliminate the possibility of a self-inflicted wound.
"So he's making it up," Gray told the jury.
Mills, who performed the autopsy, said test firing results from 6 inches most closely resembled the gunpowder stippling pattern on Chase Fleischauer's head, but the lack of soot found in the wound more closely resembled the test from 9 inches.
John Larsen, former FBI agent and founder of Larsen Forensics & Associates - a company that specializes in reconstruction of shooting incidents - testified for the defense that according to his own tests and review of case materials the gun was 3-5 inches from Chase Fleischauer's head when fired.
Larsen posited the pistol was near the 19-year-old's head and he either purposefully or accidentally shot himself.
Larsen did not offer an explanation as to how the gun made its way more than 10 feet away from Chase Fleischauer's body.
"I have no clue," he testified.
Ellenwood said during a closing rebuttal that the gun usually falls at the feet of self-inflicted gunshot victims.
As to why Kayle Fleischauer would have shot his son, Ellenwood told the jury that was irrelevant.
"Doesn't matter," she said. "We don't have to give you motive."
Mills, in her autopsy report, noted a skull fracture and petechiae - small dots on the skin caused from bleeding capillaries that can be a sign of strangulation - preceded the gunshot that killed Chase Fleischauer.
Kaiser called on the compression count heard in Johnson-Fleischauer's 911 call while she worked frantically to save her brother.
"One, two. One, two," he repeated, echoing his opening statement. "Two kids came, one kid left."