Lawyers have filed arguments with an appellate court over whether an Elkhorn man can argue that an anxiety attack caused a fatal 2015 car crash.
Last December, Aaron Gillett, 29, was on the eve of a jury trial when the Wisconsin Court of Appeals District II agreed to review an order from Walworth County Judge Phil Koss that said Gillett’s lawyer could not argue Gillett had an anxiety attack at the time of the accident.
Gillett on Jan. 22, 2015, drove into a car driven by Clarence Watson in the town of Delavan, according to court documents. Watson, 86, of Elkhorn, was taken to a hospital by helicopter, but he died four days later due to blunt force trauma. Watson’s wife, Yuka, was also injured in the crash.
Gillett’s blood test showed the presence of traces of marijuana and difluoroethane, which is a chemical found in compressed-air household cleaners and sometimes abused as an inhalant, according to a brief filed Sept. 26 by the prosecution in the appellate case. Officers found a can of Ultra Duster in Gillett’s car.
Dennis M. Melowski, an attorney out of Sheboygan now representing Gillett, is arguing a trial can only be fair if his client can present evidence on his behalf, according to a brief filed in May.
Gillett told the first officer on the scene that he had an anxiety attack brought on by his PTSD before the accident, according to the defense’s brief. Gillett served multiple tours in Afghanistan and Iraq for the U.S. Navy, which resulted in later diagnoses of PTSD, panic attacks and generalized anxiety disorder.
As Gillett was leaving Wal-Mart earlier on the day of the crash, he heard a tornado siren sound that caused a “flashback” and a later panic attack, during which he lost consciousness, according to the defense.
The seven criminal charges Gillett faces include first-degree reckless homicide and homicide by intoxicated use of a vehicle while having prior intoxicant-related conviction.
Gillett on May 4, 2016, pleaded not guilty by reason of mental disease or defect to the charges, which means his trial would be broken down into a guilt phase and a responsibility phase.
The prosecution for the case, now being handled by the attorney general’s office, wrote that Gillett’s argument about PTSD and an anxiety attack would be relevant for the latter phase but not the former.
The prosecution in its brief cited a report from a psychologist who examined Gillett and wrote, “Voluntary inhalant intoxication caused by ingestion of Ultra Duster containing difluoroethane is the best, single explanation” for the crash, according to the prosecution’s brief.
Melowski couldn’t argue for an affirmative defense, Assistant Attorney General Michael C. Sanders wrote, because Gillett knew about his medical history and was therefore not exercising “due care.”
“Gillett seems to believe that even though he knows he has PTSD, and knows he is prone to anxiety attacks that can leave him incapable of driving safely, he can drive and cannot be held responsible for whatever carnage he causes,” Sanders wrote.
Melowski argued, however, having a history of anxiety disorders does not disqualify Gillett from driving. A decision on his ability to drive should be made by the Department of Transportation—not the court, he argued.
Sanders also argued in his brief that Gillett made inconsistent statements about his use of substances and his medical history.
But inconsistent statements are left for the jury to decide, not the court, the defense argued. Melowski told the court that taking the decision into its own hands showed “utter disregard for the role of a jury in the fact-finding process.”
The appellate court has not issued a decision on the matter.