Will Justice Be Served This Time? Aaron Fisher Headed To Trial For Assault On Infant Daughter

LACLEDE COUNTY, Mo. — Aaron Fisher will stand trial for allegedly assaulting his five-month-old daughter in 2009. Judge Peggy Richardson, on Friday, Feb. 24, denied all three of Fisher’s motions to dismiss the charge against him.

Richardson’s presence in the 26th Circuit is largely due to the 2015 dismissal of charges that Fisher raped his infant daughter. After the only two 26th Circuit judges recused themselves from a case that had dragged on for nearly six years, Cole County Judge Patricia Joyce ruled that Fisher’s constitutional right to a speedy trial had been violated. That dismissal included the prohibition against refiling charges upon Fisher for that crime.

That ruling triggered outrage in the Lake of the Ozarks community. A bill was quickly filed by State Rep. Rocky Miller to add a third judge to the sorely overburdened 26th Circuit, which covers a five-county area around the Lake.

A Missouri appeals court upheld Joyce’s ruling, so Miller County Prosecutor Ben Winfrey filed a 1st Degree Assault charge against Fisher as a last resort. Missouri law states the penalty for a Class A Felony such as 1st Degree Assault is 10 to 30 years in prison. The current charge is based upon the original set of facts from the 2009 case and included the probable cause statement from that case.

Fisher was arrested in Bowling Green, Ohio, in November of 2016.

Fisher’s attorney, Kimberly Kollmeyer, filed three motions of dismissal: one for Res Judicata, one for Violation of Double Jeopardy Clause, and one for Violation of Right to Speedy Trial (the same type of motion that got Fisher freed in 2015).

Judge Richardson denied all three motions.

The first, Res Judicata, argued that this set of facts had already seen their day in court. Res Judicata translates to “previously judged.”

But in her ruling, Judge Richardson pointed that the intent behind the crimes was different. She noted the intent of the alleged sodomy (the charge that Judge Joyce dismissed) was sexual gratification while the intent of the alleged assault was to stop the victim (a five-month-old girl) from crying.

There are also different sets of evidence—different physical indicators—for proving assault, versus proving sodomy.

The second motion, claiming Violation of the Double Jeopardy Clause, argued Fisher has already faced charges for this crime previously and those charges were dismissed by a court. Kollmeyer said the spirit of the double jeopardy clause should not allow the state to reuse the “same offense, occasion, and conduct [and should] bar the state from…successive bites at the same apple.”

Assault had been one of the initial charges filed against Fisher along with Sodomy, when he was arrested in 2009. But then-Prosecutor Matt Howard had dropped that charge before it ever went to trial, and Judge Richardson said Fisher was never burdened with mounting a defense against it, so the charge could be brought again.

The third motion was a Motion to Dismiss for Violation of Speedy Trial Right. This motion argued that the previous charges based upon the facts of 2009 had been in the court for over six years before being dismissed, creating a “patently oppressive pretrial incarceration…[and] now, defendant is in custody on the same facts again.”

Even though the charge stems from the same event, the elements of the crime are different enough, the intent of the crime is different, and the evidence needed to prosecute and convict is different, the judge said.

The defense had also filed to reduce Fisher’s bond, arguing excessive bail becomes a form of punishment barred by the 8th Amendment of the U.S. Constitution as well as Article 21 of the Missouri Constitution.

Kollmeyer wrote that the “use of bail for any purpose other than securing defendant’s appearance is against Missouri law.” She also cited State v Jackson (2012) where the Court held that “if bail is set higher than necessary to secure the defendant’s appearance … it constitutes an impermissible punishment….” Kollmeyer asked for the $100,000 bond to be reduced to $25,000.

In the most moving moment of the hour-long hearing, the victim’s adoptive mother addressed the court. She spoke eloquently for several minutes, though her voice occasionally broke with emotion. Fisher, she argued, assaulted her (formerly his) daughter when she was five months old, and he does not need to be back on the street before his trial, where he could do the same thing to someone else.

The judge denied that motion as well, and Fisher’s bond stayed at $100,000.

Following the four denials, Fisher’s attorney filed a Speedy Trial request. Fisher’s trial was subsequently set to begin on April 10, 2017, in Laclede County Court.

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