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Nissalke’s evidentiary hearing is scheduled to begin Feb. 23, 2009, months after re-examined evidence breathed new life into a case that had run cold for more than two decades.
Nissalke, 42, last appeared July 8 in Winona County District Court for an initial appearance.
His next court date was not set. It’s unclear why it took nearly two months to set the new date and why it was set so far out, but the case file — complete with demands for payments to an attorney and an intervention by the Minnesota Court of Appeals — offers a few clues.
It all started with a grand jury indictment.
Nissalke was originally charged with first-degree murder through a criminal complaint, but Winona County Attorney Chuck MacLean dismissed those charges and re-filed them July 1 after a grand jury indictment of Nissalke on first- and second-degree murder charges. A grand jury indictment is required under Minnesota law to obtain a conviction in a murder case.
The new indictment file was originally assigned to Judge Jeff Thompson on July 3, but he recused himself from hearing the case because of his previous experience as a prosecutor in the Winona County Attorney’s Office while the case was still under investigation.
Judge Mary Leahy got the assignment July 7 and was removed the same day by a motion from the defense. No reason was given.
Judge Terrance Walters of Wabasha County was assigned July 9. MacLean filed a notice of removal July 11, but Walters denied it, saying he wouldn’t honor the removal without first being instructed by the Minnesota Court of Appeals. MacLean filed a second notice July 28 to remove Walters.
That’s when Nissalke’s attorney, Chuck Ramsay, wrote a motion asking the appeals court to deny the motion, saying such a removal was prejudicial to his client because it slowed the proceedings.
“With no good reason, the state seeks to prolong these proceedings and throw another wrench into a case where Nissalke, if and when found innocent, will have already spent months behind bars,” Ramsay wrote.
MacLean was informed by court administration that it already was reassigning the case, so he withdrew the notice. Court of Appeals Chief Judge Edward Toussaint Jr. accepted the withdrawal.
Assistant Chief Judge of the Third Judicial District Robert Benson of Fillmore County, who originally set Nissalke’s bail at $5 million in June, was ultimately assigned July 29 to hear the case.
Now, after two months, the case is back where it started — almost.
According to the Minnesota Rules of Criminal Procedure, when the state makes a pretrial appeal, it must pay the defending attorney’s fees accrued as a result of the appeal. Ramsay has filed a motion with the Court of Appeals saying the county attorney’s second notice of removal was the equivalent of an appeal, and that it should pay $1,375 for the 5½ hours of extra work he spent reviewing documents and preparing motions and responses.
The appeals court has yet to rule on that motion.
