The attorney for twin infants murder defendant David R. Yates might present evidence to the jury arguing another person, the victims' mother Susan Winbun of Baraboo, killed them, a judge ruled Thursday.
Yates, 46, of Baraboo, appeared in Sauk County Circuit Court with his attorney, John M. Brinckman of La Crosse, for a hearing on a number of pretrial motions. Representing the prosecution were Sauk County District Attorney Patricia Barrett and Sauk County Assistant DA Kevin Calkins.
Yates is scheduled for a three-week trial beginning Oct. 1 on charges he killed his 5-week-old children, Tyler and Savannah Yates, during the weekend of April 13, 2008.
That evening, Winbun, who was not living with Yates, called police to Yates' Lake Street home after he didn't answer the door when she came to pick up the children. A Baraboo police officer found Yates lying in bed drugged and confused, according to court testimony. When questioned, he gave conflicting stories about where the children were.
A short time later the officer found the children's ashen and battered bodies under the bed. An autopsy found they sustained fatal blows to their heads and other serious injuries from 12 to 24 hours before they were found, according to court testimony.
Brinckman argued a "Denny motion" before Circuit Court Judge James Evenson. It was based on legal rulings governing when a defense attorney is allowed to argue a known third person committed a murder rather than the person the state has charged.
Brinckman argued Winbun had stronger motives to kill the children than Yates did and the opportunity to do it as well. He said Winbun didn't want the children, that she wanted to extract money from Yates and to hurt him after he spurned her.
He presented postings Winbun put on a parents support website showing changes in her attitude toward Yates,
A posting in August 2007 is written just after she learns she is pregnant and says the revelation has left her "reeling." Yates, she writes, is thrilled and she finds that encouraging.
A Sept. 4 posting has Winbun angry because Yates accepted a promotion and will move to Virginia just when she learns she is carrying twins. She refers to him as a "selfish b@$*@#& that would choose a job over his family."
A Feb. 5, 2008, text message to Yates shows Winbun angry he is going to the new job with another woman and "leaving me behind 2 raise our children I don't want," court records show.
In addition to having a motive, Brinckman said at one point Winbun had a key to Yates home, perhaps giving her access to the residence.
Barrett countered that it is not surprising for a woman who is having a man's child to expect financial support from him. Winbun's hatred of Yates has a pre-existing basis, a history of domestic battery on his part, she said.
A change in the locks at Yates' home raises questions about whether she could have entered without permission, Barrett said.
"If there is a financial motive, Winbun has an interest in keeping these children alive," she said. "She could litigate his fatherhood and financial responsibility."
After nearly an hour of the parties making their cases, Evenson ruled Brinckman met the requirements of the Denny precedent and may present evidence Winbun could be the guilty party.
The judge also must rule on whether the charges against Yates should be dismissed because the prosecution destroyed evidence that theoretically could have proven he is innocent.
Baraboo Police Department Detective Sgt. Chris Nielsen testified he recovered Yates' cell phone from his kitchen counter with bloody smears on its back. He said he sampled the smears to check for DNA evidence and photographed the phone noting a poor-quality fingerprint in the blood. Nielsen said he then sterilized the phone with bleach because at the time he thought, incorrectly, it was necessary before he submitted the phone to state computer experts who would retrieve messages and call data from it.
Nielsen said he did not believe the fingerprint was well-defined enough to be useful evidence. He said the DNA from the blood smear and potential DNA traces left by the person who touched it would be better evidence than the print.
"If that fingerprint came back to someone other than Mr. Yates, that would be very important to this case, Brinckman said.
Yates is serving four years at the state prison in Green Bay after having his probation revoked on charges of domestic abuse and drunken driving in 2008. If he is convicted, he faces life in prison.