L'ANSE - Lawyers for the two suspects in a Watton armed robbery last August argued their cases should be tried separately during a hearing in Baraga County Circuit Court Wednesday.
Judge Charles Goodman will make a final decision on the motion after both sides submit written arguments, the final deadline for which is in May. Bernard Fish, 47, of Shawano, Wis., and Donavan Waupoose, 21, of Stephenson, Mich., are scheduled to stand trial starting the week of June 23 on identical charges stemming from their alleged involvement in an armed robbery in Watton. They allegedly represented themselves as federal marshals, demanded $10,000 in cash and stole wallets and other items.
At the time the two cases were joined in February, it looked as though the defenses for Fish and Waupoose would be similar, said Waupoose's lawyer, Aaron Schenk. But the defenses have since diverged. Waupoose will be using a duress defense, which Schenk said will require testimony from Fish.
Garrett Neese/Daily Mining Gazette
Donavan Waupoose, second from left and Bernard Fish, far right, are seen in Baraga County Circuit Court Wednesday with their respective attorneys, Aaron Schenk and Matthew Tingstad, during a pretrial hearing. Judge Charles Goodman will rule on whether the two cases should be tried separately after reviewing written briefs from the attorneys and Baraga County Prosecutor Joseph O’Leary.
"If we go forward in a joint trial and Mr. Fish incorporates his Fifth Amendment right ... we then run into a situation where we're unable to provide our defense," he said.
Schenk said he would prefer to be able to subpoena Fish after his trial is finished so he will have no right against self-incrimination.
Fish's attorney, Matthew Tingstad, said if the two trials are joined, Waupoose's duress defense will prejudice the jury against his client.
Additionally, since they won't know until the end if Waupoose plans to testify, Fish might be deprived of his right to confront his accuser, Tingstad said.
"To put us in a position where the entire trial goes through and statements from Mr. Waupoose are put into evidence and we're waiting to cross-examine him and he never is called or he invokes his right not to incriminate himself, then we have to ask for a mistrial, because my client misses his right to confrontation," he said.
Baraga County Prosecutor Joseph O'Leary said whatever case the defenses make would have to overcome a strong presumption that the two trials should be joined together.
O'Leary said Waupoose's confessions might provide that case on their own.
But they're offset by statements Fish made against his own interest to police while being transported, he said.
"The people should be allowed to proceed with joint trials, using all the evidence they have, and will handle any unfair prejudice that might arise ... through instructions of the jury," he said.
Rather than ruling Wednesday, Goodman asked the lawyers on both sides to supplement their oral arguments with written briefs.
"This is an issue that deserves some thought," he said.
O'Leary will submit his brief within two weeks. Tingstad and Schenk will then have until May 14 to file their response.
Once the motion to try Fish and Waupoose separately is decided, the court will hear a motion on whether evidence of another crime can be admitted as evidence.
Waupoose and Fish are charged with two counts of armed robbery, a felony punishable by life imprisonment; two counts of extortion, a 20-year felony; two counts of unlawful imprisonment, a 15-year felony; and a count of impersonating a police officer to commit a crime, a four-year felony.