A Wisconsin appeals court says a drunk-driving defendant’s right to confront his accuser was not violated because the arresting Fond du Lac police officer was killed before trial. In a 2-1 decision this week, the District III Court of Appeals upheld Fond du Lac County Circuit Judge Gary Sharpes’ ruling that officer Craig Birkholz had a reasonable basis to stop Glenn Zamzow’s vehicle after it crossed the center line. About a week after arresting Zamzow in March 2011 for his third OWI, Birkholz was shot and killed while responding to an armed standoff in Fond du lac. At trial Judge Sharpe allowed jurors to hear statements recorded on Birkholz’s squad car video and audio recording system. Zamzow was convicted. In a dissent Appeals Court Judge Paul Reilly wrote that the majority’s decision “undermines” constitutional protections and “paves the way for a dramatic shift in the prosecution of criminal defendants in Wisconsin.” Reilly said the officer’s recorded statements were allowed at trial despite being “unsworn, untested, and unchallenged,” and without them “the government could not have continued its prosecution of Zamzow.”
