Damian Hauschultz appears via video conference in Manitowoc County court June 25, 2021. PC: Fox 11 Online
MANITOWOC, WI (WTAQ-WLUK) – Damian Hauschultz says he should get a new trial or be resentenced after being convicted of causing the death of his 7-year-old foster brother in 2018 because the judge who presided over his case had a conflict of interest, according to a new motion.
Hauschultz is now 22 but was 14 at the time of Ethan Hauschultz’s death. He pleaded guilty to reckless homicide and was sentenced to 20 years in prison. His case was presided over by Judge Jerilyn Dietz.
Long after Damian’s case had concluded, Judge Dietz was also presiding over the case of Damian’s father, Timothy Hauschultz. He faces child abuse-causing death and other charges for allegedly ordering the punishment for Ethan which Damian carried out.
During preparation for that case, it was discovered that, before she was a judge, Judge Dietz had been involved in a case with Damian as a Guardian ad Litem. Although she didn’t remember it, the conflict caused her to remove herself from Timothy’s case.
“That role was fiduciary in nature and involved investigation, advocacy, and the formation of judgments concerning Damian and his adoptive father, Timothy Hauschultz, who was charged in a separate criminal case in connection with the facts underlying Damian’s prosecution,” notes Damian’s new attorney Karin Jonch-Clausen.
As a result, Judge Dietz should remove herself from the case and not hear any the post-conviction motion for a new trial, she contends.
But that motion is a precursor to the primary issue now being raised: Hauschultz’s request for a new trial, or, at the least, a resentencing, due to the conflict.
In the 23-page motion, Hauschultz argued the entire case is tainted.
“Because this disqualifying conflict was revealed after the conclusion of Damian’s direct appeal, and because a disqualified judge lacks lawful authority to act, every ruling by Judge Dietz—including her juvenile reverse-waiver decision, suppression rulings, and imposition of sentence—was invalid and must be vacated, after which Damian’s case can proceed before a neutral judge,” Jonch-Clausen wrote.
“Here, Judge Dietz herself correctly acknowledged in Timothy Hauschultz’s case that, regardless of memory or intent, the appearance of bias alone was sufficient to require recusal to protect the defendant’s due process rights. Because the same undisputed facts apply with even greater force in Damian’s case (as discussed supra), confidence in the outcome is necessarily undermined,” the motion states. “Here, because the conflict and appearance of bias existed from the outset, and the judge presided over all critical stages of the case, all rulings entered by the disqualified judge must be vacated and the case must proceed anew before a different judge.”
The motion also argues Judge Dietz erred in rulings authorizing the case to proceed in adult court.
“Specifically, it did not establish probable cause that Damian showed “utter disregard for human life,” which is the element that distinguishes first-degree reckless homicide from second-degree reckless homicide and makes proceeding in adult court possible,” the motion contends.
The motion also contends Hauschultz’s attorneys made multiple errors and were “constitutionally ineffective.”
If the court rejects the motions, Hauschultz argues that he should be resentenced by a different judge.
“A defendant is entitled to be sentenced by a judge who is, and appears to be, neutral and detached,” the motion states. “At sentencing, Judge Dietz was charged with evaluating the Damian’s character, culpability, and the circumstances of the offense—all determinations that must be made by a neutral and detached decisionmaker. Judge Dietz made extensive findings about Damian’s character and blameworthiness during her undisclosed prior representation of him, including findings relating to Tim’s actions, and Damian’s relationship with Tim. That sentence cannot stand because the sentencing determination was made by a judge whose impartiality was compromised by a significant undisclosed conflict.”
The state has not replied to Damian’s motion, and no hearings have been scheduled.
Meanwhile, Damian’s continues to have an impact Tim’s case in another way.
Both prosecution and defense want Damian available to testify at Tim’s trial, but have said this appeal by Damian would make him legally unavailable – due to the expected invocation of his Fifth Amendment rights – and have asked for Tim’s trial to be delayed. Judge Carey Reed has denied those rejects – although the previous rulings were made before Damian’s motion was filed Monday.
Tim returns to court next week, where the issue may be addressed again. Tim Hauschultz is scheduled to stand trial Feb. 23.
According to the criminal complaint, on April 20, 2018, Timothy told his son, Damian, then 14, to make sure Ethan completed his punishment. That included, according to the complaint, Ethan being required to carry a log for two hours around a path in the backyard of their home.
Damian said Ethan had to carry wood for not knowing 13 Bible verses to Timothy’s satisfaction. The punishment was one week of carrying wood for two hours per day.
Timothy picked out the logs, but Damian had to supervise the punishment for the younger children.
During that time, the complaint says Ethan “struggled to carry his log” and Damian did “hit, kick, strike and poke Ethan approximately 100 times.” The complaint goes on to say
Damian also stood on Ethan’s “body and head” while he was “face-down in a puddle.” The complaint also alleges Damian buried Ethan in about “80 pounds of packed snow” where he was left for about 20 to 30 minutes without a coat or boots.
Neither Timothy nor his wife, Tina McKeever-Hauschultz, were home when Ethan died.
Hauschultz was arrested in February 2019 and ordered held on a $100,000 cash bond, which he was unable to post. His case was delayed for several years because of his son’s case. While Damian’s trial and appeals were pending, Damian was considered unavailable for Timothy’s trial. Eventually, Timothy’s bond was reduced to $75,000, which he posted in May 2022.
Tina McKeever-Hauschultz served a five-year prison term for her role in the events leading up to Ethan’s death and failing to prevent it. She was released to extended supervision in January, 2024. The supervision lasts until January, 2029, state records show.
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