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Wisconsin Supreme Court to hear McGuire case

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Pedro Oliveira Jr.
October 6, 2009

The Wisconsin Supreme Court will hear the appeal of a former Jesuit priest convicted in Walworth County of molesting two boys during retreats in the 1960s.


Donald McGuire was sentenced in 2006 to five counts of indecent behavior with a child stemming from two victims' accounts that they separately had sexual contact with McGuire during trips to a cottage in Fontana in the 1960s. He was sentenced to 7 years in prison and 20 years probation.


At the time, McGuire was a Jesuit priest teaching at an academy in Illinois.


Milwaukee-based attorney Robert Henak wrote in his appeal that the 36 years between the alleged offenses and McGuire's prosecution barred him from presenting a proper defense and from having a fair trial.


"What we're saying here is that although the statute of limitations would allow the prosecution, the due process clause and right to a fair trial bar it," Henak said.


The statute of limitations for sexual assaults is six years in Wisconsin. The statute freezes, however, if the defendant moves to a different state, which McGuire did after the alleged offenses took place.


The freeze allowed Walworth County officials to prosecute McGuire almost four decades after the alleged offenses took place because he was not residing in Wisconsin.


But Henak said despite conforming to the statute of limitations, prosecuting a man 36 years later takes away the defendant's right to a fair trial. Henak said key witnesses were either dead or their memories faded.


Unavailable because of the long delay in prosecution, Henak said, were:


-- Priests who shared a floor with McGuire at his residence, where the victims said they stayed and engage in sexual activities with the priest.


-- The man who owned the cottage in Fontana and could have said whether he granted McGuire access to the property.


-- Records from the school where McGuire worked showing whether he was scheduled to work or was absent on dates the victims claimed the offenses happened.


"Given the complainants' delay in bringing these charges, we therefore can never know whether those charges are based in fact, in fantasy or in fraud," the attorney wrote in his appeal to the Supreme Court.


After the 2006 trial, McGuire's attorney appealed, saying the prosecution was beyond the statute of limitations.


The 2nd District Court of Appeals affirmed the conviction.


In an e-mail to the Gazette, District Attorney Phil Koss wrote Monday that he was surprised to hear the Supreme Court would hear the case in January.


"I thought the court of appeals covered it," he said.


Koss said the Attorney General's Office will represent the state in the appeal to the Supreme Court.


Oral arguments are scheduled for Jan. 5.



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