News

Judge denies Schalow's double jeopardy motion

Leonard Schalow, with his attorney Dennis Maxwell, faces trial in November on 20 assault and child abuse charges.

By Bill Moss, Published: August 7, 2018

The long and convoluted prosecution of Leonard Paul Schalow has at least one more chapter after a Superior Court judge delayed what would have been his third trial on assault charges.

Prosecutors say the 50-year-old Schalow deserves a long prison sentence for what they describe as months of severe beatings and psychological torture of his wife, Erin Henry Schalow, in the presence of their son. The beatings were so severe that prosecutors obtained an indictment for attempted first degree-murder.
Schalow was convicted on the attempted murder charge in November 2015 and sentenced to 17 years in prison. But that trial came after the state voluntarily dropped its first attempt to prosecute Schalow, when a judge pointed out that the indictment was defective. As a result, Schalow’s defense attorneys won an appeal on the grounds that his conviction violated double jeopardy protections under the Fifth Amendment.
Prosecutors and Schalow’s team of public defenders — he had three lawyers on Monday in Superior Court — were back in court arguing that the latest charges also are invalid on double jeopardy grounds and for other reasons. After a hearing on Schalow’s motion to dismiss the 20 felony counts he now faces, Superior Court Judge W. Robert Bell ordered the trial continued. Too many questions remain, including whether the defense had received all the pretrial evidence it sought.
Bell ruled Tuesday morning against the Schalow’s motion to throw out the charges on double jeopardy grounds, clearing the way for a third trial later this year.
“Naturally, we are pleased with this latest ruling and will proceed to hold this defendant responsible for his actions,” District Attorney Greg Newman said in a news release. “The victim in the case continues to be very cooperative with my office, so I know she is looking forward to a time where she can put this matter behind her.” 

After the attempted murder charge was thrown out on appeal, Newman filed 14 felony child abuse and six assault charges against Schalow, some the same as charges originally brought in 2014.
In a motion he filed last month, defense attorney Dennis Maxwell pointed out that the state had filed assault charges, “all with the identical language and dates of offense as the warrants originally issued” in February 2014.
“Now the state is trying again to undermine the fundamental protection against double jeopardy in the Constitution,” Maxwell told Judge Bell. “The law prohibits them, if they lose on a higher offense, from coming back and trying him on a lesser offense until they get a conviction… This is a third prosecution for a crime he’s already been tried for twice.”
Mundy argued that the charges are new, not the same ones Schalow faced four years ago.
Maxwell also argues that his client is the target of a “vindictive prosecution” by Newman.
“The timeline of events … shows clearly that the state indicted Mr. Schalow for the current charges because he was successful in his appeal of the attempted murder conviction,” he said.
The two sides reached an impasse on the issue of discovery. The defense argued that it had received no police reports, witness statements or other material when it filed motions for evidence the state would use in the case.
“The defense has everything that we have,” Newman responded. These were the same reports, he acknowledged, that the state used in two previous trials.
Maxwell pounded on the opening.
“If it’s going to be the exact same facts with the exact same discovery we’re back to double jeopardy,” he said.
Newman said the public defenders should have known to pull the discovery material from the earlier trials — “we’re talking about the same people n the same office.”
Maxwell and Stang argued that if this is a new case, there should have been new investigative reports, witness statements and so on.
Does the state have new evidence to share? Judge Bell asked.
“Really, little to none,” Newman responded. “Nothing different than what we’ve already provided in the previous cases.”
“But these are new cases,” Bell said.
Minutes later, the judge ordered the three-month postponement, giving Schalow’s defense attorneys time to review pre-trial material, even if that’s the same material from four years ago.
“I don’t see how you can proceed without defense seeing discovery,” he said.