When jurors hear the case of a Kenosha man accused of killing a local woman found beaten and partially naked in a cemetery, they also will hear about a reportedly similar sexual assault allegation from nearly a decade before.
However, jurors will not likely hear that the 2000 case against Javier Garcia was dismissed.
That case never went to trial and was, ultimately, dismissed because an administrative law judge did not believe the witness was credible.
But, Kenosha County Circuit Judge Mary Wagner decided Monday, the case is similar enough to the August 2012 death and attempted sexual assault of Lisa Maria Mezera that jurors should hear about it.
Mezera, 26, of Kenosha, was found dead in August in B’nai Zedek Cemetery, 1760 Sheridan Road. She had been beaten and strangled and, evidence suggests, her killer tried to sexually assault her.
Garcia, 52, of Kenosha, was the last person seen with Mezera, and DNA evidence ties him to her deadly attack, according to a criminal complaint. He was charged in October with first-degree intentional homicide and felony battery, among other crimes. He is being held in jail on bond. And, if convicted, he faces mandatory life in prison.
Attorneys met Monday to argue whether a July 2000 kidnapping and sexual assault case against Garcia should be allowed at his trial for Mezera’s murder.
Kenosha County District Attorney Robert Zapf argued that in each case Garcia “preyed” on the women because they were drunk, then drove them to a northside cemetery — perhaps the same cemetery where Mezera was found dead — and either used or attempted to use force to have sex with the women.
In each case, Garcia denied involvement, although DNA evidence tied him to each crime; in the 2000 case, DNA indicated sexual contact and, after insisting he was out of the state when the assault occurred, Garcia told investigators he had consensual sex with the alleged victim.
Defense attorney Terry Rose argued against the evidence, particularly because the case was dismissed at the request of then-Kenosha County District Attorney Robert Jambois. To mention the charges, but not the outcome of the case, would skew the evidence, Rose said.
“Why should the jury not get the full picture?” he asked.
Wagner said that getting into the case’s outcome could trigger a “mini-trial” about prosecutorial discretion and the merits of the 2000 case, which would sidetrack jurors in their attempt to weigh evidence in Mezera’s murder.
And, she said, “That’s not what this trial is about.”
Also Monday, attorneys revisited the issue of whether jurors from outside Kenosha County should hear Garcia’s case.
Rose continued his argument that pre-trial publicity could keep the court from finding an impartial jury. Wagner maintained her stance that the court should, at least, try to find jurors from within Kenosha County.
To do that, Wagner proposed the rare move to start jury selection on a Friday; typically, juries are chosen and trials begin on Mondays.
In Garcia’s case, jury selection is expected to begin Friday, May 10. An estimated 150 people will be brought in and asked whether they have knowledge of the case. Attorneys hope to then find a pool of 70 to 80 people who have not heard about the case, or who at least have not formed any opinions about the case based on what they might heard.
If impartial jurors could not be found, Wagner said she would be prepared to ask that jurors from another county, perhaps Walworth County, be brought in Monday, May 13.
If a jury can be chosen, Wagner predicted starting the trial with opening statements on Saturday, May 11. In fact, Wagner told attorneys to prepare to be in court two Saturdays, May 11 and 18, and to stay until 6 p.m. on weekdays, rather than the typical 5 p.m., during the trial.
Both moves, while not typical for the court, are meant to make sure attorneys can complete the trial before they are called away on other cases, Wagner said.
Attorneys also will meet April 15 to make sure the trial will continue as scheduled.