Serving Gogebic, Iron and Ontonagon Counties
Serving Gogebic, Iron and Ontonagon Counties
By RICHARD JENKINS
Hurley — The public defender representing a Kimball man accused of bombing an asphalt plant has filed a motion to dismiss the charges against his client, arguing too much time has passed since the explosions to allow for a fair trial.
Matthew Allen Gollubske, 39, is charged with two counts of being a party to the crime of using explosives to damage property in connection to several explosions between 4:15 and 6 a.m. on the morning of July 4, 2015 at Mathy Construction’s asphalt plant off U.S. 2 in the town of Kimball. Both Gollubske and his father, Robert Gollubske, 82, have previously complained about the asphalt plant — also known as the Northwoods Paving asphalt plant as the company became a division of Mathy Construction in 1995 — and the impact its operations were having on the family and their property nearby.
In a motion filed at the end of August, Matthew Gollubske’s attorney, William Appleton, seeks to dismiss the charges due to a “pre-charging or pre-arrest delay.”
The motion states law enforcement agents interviewed Gollubske and conducted a search of his property shortly after the bombing in July 2015, but no arrest was made until June 17, 2019. Appleton argued the delay between the incident and arrest violated Gollubske’s rights and “resulted in actual prejudice to the accused.”
“The state’s delay in charging the defendant has significantly impaired his ability to assist in his own defense, including but not exclusive to impaired memory of state and defense witnesses, inability to locate/identify and/or resulting (in)unavailability of potential defense witnesses, staleness of the evidence, decreased ability of defendant to investigate the criminal allegations and identify alternative suspects and/or recover and present exculpatory evidence at trial,” the motion reads.
It also points to the August ruling that found his father, Robert, not competent to stand trial on the same two charges Matthew faces in connection to the bombing.
“The delay in charging … and subsequent determination by the court to suspend all criminal proceedings against the co-defendant based on his current … mental state results in substantial prejudice to the defendant as (the)defendant’s ability to investigate, confront, and ultimately secure credible exculpatory evidence … has been severely compromised by the co-defendant’s current mental state,” the motion reads.
In a response filed Tuesday, assistant attorney general Richard Dufour argued the delay in filing charges didn’t meet the standard to serve as grounds for dismissal.
Dufour is prosecuting the case for the Wisconsin Department of Justice in conjunction with Iron County District Attorney Matt Tingstad.
“For a defendant to succeed in a claim that his due process rights were denied by pre-charging delay, the defendant must establish two elements,” Dufour wrote. “First, he must show that he has suffered actual prejudice, not merely speculative prejudice; and second, he must establish that the delay was intentional and for purposed of obtaining a tactical advantage over the defendant.”
Dufour argued there are no facts in the defense motion to imply the delay in bringing charges was the result of the state’s improper motives.
Dufour’s response also sheds light on what was happening with the investigation between the explosions and charges being brought in June.
According to his response, the matter was originally referred to the U.S. Attorney for the Western District of Wisconsin and a grand jury was convened. The U.S. Attorney’s office ultimately declined to file charges after the grand jury completed its proceedings in June 2018.
Dufour attributed “the vast majority of the delay” to the assumption that the federal government would be bringing charges against Gollubske.
Following the U.S. Attorney’s decision not to bring charges, the Bureau of Alcohol, Tobacco, Firearms and Explosives released the records to the state near the end of June 2018.
The state Department of Justice was approved to assist Iron County in the case in June 2019, according to Dufour’s brief, a few days before charges are filed.
“At best, the defense can show ‘prosecutorial negligence or indifference,’ but clearly not intentional delay for the purpose of harassing the defendant or gaining a tactical advantage,” Dufour wrote, arguing this doesn’t rise to the standard needed for dismissal.
He further argued the defense motion fails to show any actual prejudice caused by the delay and instead only lists allegations of potential prejudice.
A motion hearing is scheduled for Monday in Iron County court, according to online records.
