Lawyer of stabbing suspect files motion to dismiss charges, release defendant from jail
ELKHORN—The attorney of a Delavan man suspected of stabbing his cousin to death wants the case dismissed and his client out of jail, saying a key fact in the criminal complaint is wrong.
Rafael Olivarez, 39, is charged with first-degree intentional homicide. He is accused of stabbing to death Ivan Guerrero, 31, at Guerrero's apartment at 509 Lawson School Road, Delavan, early in the morning May 4.
The criminal complaint indicates Guerrero's wife, Brenda Garcia, spoke to police and said she "saw the defendant grab a kitchen knife and stab Guerrero."
Police reports show Garcia didn't see the altercation, Travis Schwantes, Olivarez's attorney, wrote in his motion to dismiss the charges.
Michael Lambert, Walworth County Sheriff's Office detective, wrote in his report that he asked Garcia what she saw that morning, and "she again stated she did not see the actual stabbing," according to the motion.
Garcia told police she heard Guerrero calling Olivarez a name before the two went outside. She did not see blood on Guerrero before the men went outside, the motion states.
Garcia does not speak English, Schwantes wrote in his affidavit. Delavan police officer Gerardo Baca translated from Spanish to English for Lambert, according to the motion.
At a May 14 preliminary hearing, police testified about what they saw upon arrival.
James Berlin, Delavan police officer, said Olivarez was covered in blood and Guerrero was found lying in the grass covered in blood.
No witnesses testified about what lead to the event.
Court Commissioner Daniel Johnson ruled May 14 there was sufficient evidence that Olivarez probably committed a felony based on the criminal complaint filed as evidence.
"Absent the false statement in the complaint that Brenda Garcia saw Mr. Olivarez stab Ivan Guerrero, there was no probable cause established at the preliminary hearing May 14th that Mr. Olivarez committed a felony ... due to a defective criminal complaint and a flawed preliminary hearing, this matter must be dismissed and Mr. Olivarez must be released from custody," Schwantes wrote in his affidavit.
In the motion, Schwantes claims he was given all reports related to the investigation May 15.
Guerrero died May 4 at Mercy Hospital and Trauma Center, Janesville. An autopsy revealed Guerrero died from blood loss caused by multiple stab wounds.
Daniel Necci, district attorney and prosecutor for the case, could not be reached Thursday afternoon for comment.
A motion hearing is scheduled for 8:30 a.m. Thursday, June 19, at the Walworth County Judicial Center. Olivarez is being held at the Walworth County Jail on a $1 million cash bond.