Court rules secret recording of bus driver not admissible
(Published Wednesday, April 4, 2007 10:04:02 AM CST)
A d v e r t i s e m e n t
By Todd Richmond Associated Press
MADISON, Wis. - A secret recording of a school bus driver threatening to beat a boy with Down syndrome can't be used in court because his parents made it on their own without police supervision, a state appeals court ruled Tuesday.
Jacob Mutulo's parents hid a recorder in his backpack to tape interactions with his bus driver, Brian Duchow, and turned the recording over to police later. The 1st District Court of Appeals ruled the recording doesn't count as evidence because it wasn't part of a police operation.
The ruling reversed Milwaukee County Circuit Judge Michael Brennan's decision to allow the tape. Duchow's case now returns to the circuit court for reconsideration, said Duchow's appellate attorney, Melinda Swartz. She declined further comment, saying the next moves will be up to whoever represents Duchow on that level.
Assistant District Attorney Paul Tiffin, who prosecuted Duchow for child abuse, also declined comment, saying he hadn't read the appeals court decision.
According to court documents, Mutulo's parents suspected Duchow, a Milwaukee Public Schools bus driver, was verbally and physically abusing their son on the bus. Duchow had filed written complaints about the boy spitting on him.
Mutulo's parents hid the recorder on him in April 2003 without telling police.
The recording picked up Duchow telling the boy, then 9 years old, to stop before he beat "the living hell" out of him and threatening to "slap the hell out of you." Duchow later told police he slapped the boy twice on the bus that day, according to the appeals ruling.
Mutulo's parents turned the recording over to Milwaukee police, who listened to the tape and questioned Duchow. A criminal complaint charging Duchow with felony child abuse and disorderly conduct contained details from the recording.
Duchow moved to have the recording withheld from evidence, but Brennan refused.
Duchow ultimately pleaded guilty to felony child abuse, and the tape never came up at any trial. He was sentenced to six months in jail, two years in prison and a year on supervised release. His prison term was stayed in lieu of three years' probation and his jail time was stayed pending his appeal, Swartz said.
The appeals court found the conversation between Mutulo and Duchow was lawfully recorded.
But the district attorney's office wasn't permitted under law to disclose the recording's contents in the criminal complaint because it didn't obtain it from someone working with police, the court said.
"This problem might have been easily remedied if another secret recording under the supervision of the police had occurred," Judge Joan Kessler wrote.
Judge Patricia Curley dissented, saying the state Supreme Court has found similar recordings admissible in previous cases even though they were made without police supervison.
"It seems illogical and contrary to common sense to approve the parents' actions to protect their child by tape recording the conversation, but prevent the State from prosecuting the offenses revealed by the recording," Curley wrote.
She questioned placing the boy in the same threatening situation again to make another recording with police.
"To suggest that the victim be subjected to another such incident, just to make the recording admissible, is cruel and inhumane," Curley wrote.
Mutulo's parents didn't immediately return a message.
