Rock County judge considers jailing prosecutor over request for delay in murder case

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Frank Schultz
July 8, 2015

JANESVILLE—A Rock County judge told a prosecutor Wednesday he was considering throwing him into jail for contempt of court over a requested delay in a murder case.

Deputy District Attorney Perry Folts had asked Judge Kenneth Forbeck to delay a trial in a Beloit homicide scheduled to start Monday.

Folts asked for a continuance, saying Assistant District Attorney Jerry Urbik, who is prosecuting the case, had an emergency medical procedure Monday and would not be able to prepare for the case.

The case is against Mickale A. Hicks, 29, of Beloit. He faces a felony murder charge.

“It is in the interest of the public to try this case as soon as possible,”  Forbeck said.

“It's in the interest of the public especially because it's a Rock County homicide, and it also involves the city of Beloit, which both of us live in, which has been replete with a lot of these different homicides.

"I don't think we get across to the criminals that these are serious matters unless we try these cases and get them done," Forbeck said.

Hicks is accused of shooting and killing Joel Baldwin-Davidson-Royster, 24, of Beloit during a robbery Nov. 23. The death is one of the eight gunfire deaths that have plagued Beloit over the past 14 months.

The attorneys were in court Wednesday for the final pretrial hearing.

Folts said he is second chair for the homicide case but also is preparing for a child sex assault trial, also scheduled for Monday.

Forbeck asked why Folts would not be prepared for trial Monday because Urbik had told Forbeck in a previous hearing that Folts, not Urbik, was the primary prosecutor in the Hicks case.

Folts said that's not true, that Urbik's name is on the criminal complaint and Urbik had always been the primary chair.

“No, he was never named as primary attorney," Forbeck responded. "You were named primary attorney in this matter. I've been told that on several occasions."

“Then you've been misinformed, and I apologize for that,” Folts responded.

Folts and Forbeck went back and forth about who was supposed to prosecute the case, and then Folts said he would dismiss the murder case and refile it later if Forbeck didn't grant the continuance.

Then came this exchange, with Forbeck obviously perturbed and Folts speaking emphatically:

Forbeck: “I'm not going to grant a motion to dismiss.”

Folts: “We won't show up on Monday.”

Forbeck: “You won't show up on a homicide case on Monday?”

Folts: “That's correct. We are going to dismiss it if you are going to force it to trial on Monday. We want to be prepared and give this case the attention it deserves. At this particular point in time, we cannot do that, and if you force it to trial, we will not be able to try it on Monday. We will not show up.”

Forbeck: “You're not going to show up in a homicide case that's of significance in this county?”

Folts: “That's correct because we'd like to get a conviction and not simply try a case that we're not prepared …”

Forbeck, interrupting: “I've looked at the factual situation in this particular matter. The factual situation is not complicated, it does not require experts. It requires a couple of eyewitness testimonies. … So what would not permit you to be ready on Monday?”

Folts: “I've already explained that, judge.”

Forbeck asked defense attorney Michael Murphy for his position.

“If the state were here just asking for a continuance based on their respective vacation schedules or something like that, I'd be pounding the table, demanding the court deny the relief,” Murphy said.

But Murphy said he believed Urbik was the primary attorney and that if Urbik could be there, he would try the case.

Hicks is in prison on another matter, so the continuance would not be an issue for the defendant, Murphy added, so he would not object to a continuance.

Forbeck said the law gives him the authority to deny a motion to dismiss a case, based on the significance of the case.

Forbeck: “Now you're telling me you're going to not show up, you're going to move to dismiss this case, am I correct?”

Folts: “I don't believe it would be in the public interest to try a case that we're not prepared to give it the attention it deserves. As you indicated, it's a homicide, and it deserves all the attention in the world from this particular office, and we have not been able to give it that, due to Mr. Urbik's health condition, and, therefore, we are not prepared to go to trial Monday, and we will move to dismiss if you try to order that we try it on Monday …”

Forbeck: “Are you threatening me, counsel?”

Folts: “No, I'm just telling you the facts."

Forbeck: “You're not threatening me?”

Folts: “Correct.”

Forbeck: “So, what are you telling me?”

Folts: “I'm telling you we won't be here Monday.”

Forbeck: “So, you won't try a homicide case on Monday?”

Folts: “That is absolutely correct.”

Forbeck: “Well if it weren't for Mr. Urbik, you'd be trying this case on Monday, and if you didn't show up on Monday, I'd find you in contempt, and I'd throw you in jail. Just so you understand that. The only reason I'm not doing that is because of the fact that I respect Mr. Urbik, and I understand his ability to try a case and his willingness to try cases. Based upon the fact that he is not here, unfortunately, I'm going to have to grant a continuance in this matter. …"

Forbeck moved the trial date to Monday, Aug. 24, and the pretrial conference to Wednesday, Aug. 19.

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