Police are searching for a 24-year-old man who they say is a suspect in the slaying of his mother, whose body was found in her garage earlier this week.

An all-points bulletin has been issued for Bill P. Marquardt, said Chippewa County Sheriff Doug Ellis. The body of Mary Jane Marquardt was found in a pool of blood in her garage in the Town of Eagle Point, just north of Chippewa Falls, on Monday afternoon.

Ellis said Bill Marquardt is believed to be armed and dangerous. He is described as 5-foot-11, weighing 200 pounds, and was last seen with a shaved head. He is believed to be driving a 1986 sky blue Chevrolet Geo Metro.

Update 3/20/00:  Deputies arrested a man sought in the slaying of his mother, the Eau Claire County Sheriff's Department reported.

Marquardt was captured at his cabin in the Town of Fairchild. Marquardt was arrested after tear gas was lobbed into the cabin.

Marquardt was being held in the Eau Claire County Jail pending a court appearance.

Update 3/29/00:  Marquardt, who remains a suspect in the March 13 murder of his mother, has been bound over for trial in Eau Claire County on unrelated charges.

  (Photo courtesy of WQOW TV)  Marquardt is charged with six counts of cruelty to animals and one count of felon in possession of a firearm. He remains in the Eau Claire County Jail on $100,000 cash bond.

Chippewa County has not charged Marquardt with the murder of his mother.  Chippewa County authorities have said that Bill Marquardt is just one suspect in the case.

"He is not just a suspect, he is the suspect," Eau Claire County District Attorney Ray Pelrine told Judge Eric Wahl in arguing against a reduction of bond.

Asked after the preliminary hearing if Chippewa County authorities have told him that, Pelrine answered, "Not in so many words. That's my own conclusion from information that I've received."

While Chippewa County continues its investigation into the murder, Pelrine is proceeding with the animal cruelty and firearm case, which Marquardt's defense attorney, Loren Hadcock, attacked as weak.

Chippewa County authorities issued a statement on March 15 that they were looking for Marquardt in connection with the case. That day, a search warrant was served at a town of Fairchild cabin Marquardt owns with his father, Albert Marquardt.

According to testimony, a .22 rifle was found there. Alfred Marquardt testified that the firearm belonged to Bill.

Also found at the cabin were three dogs, which had been shot to death, their bodies placed in the pit of an outhouse at the property. Also, three rabbits were found shot to death, with their bodies on the edge of the lawn.

The criminal complaint states that the dogs had also apparently been slashed with a knife. However, a state animal health laboratory examination makes no reference to that and concludes all six animals died from gunshots.

Hadcock argued that no evidence presented at the hearing indicated a felony had been committed, or that Marquardt had committed it. He said that there is no law against a man killing his dogs as long as it is done in a humane manner, and there is no indication the dogs were inhumanely killed.

"Mr. Pelrine seems to suggest that the killing itself is cruel," Hadcock said.  Pelrine indeed argued that causing the death of an animal without justification is considered cruelty, though he granted that Hadcock's argument provides an affirmative defense to the charge. 

Hadcock also objected to the high cash bond, set partly due to the murder case.  "As of this point, the defense has heard nothing from Chippewa County. There have been no charges filed in Chippewa County," Hadcock said.

Pelrine argued that nothing has changed, as Marquardt remains the main suspect in the murder and is a risk to flee.  He revealed that since the murder, Marquardt fled to Florida and also at one point stopped at a storage shed in a third state and switched vehicles, revealing an ability to move about the country easily.

Wahl left bond at $100,000.

Pelrine said after the hearing that the Eau Claire County charges were in no way a pretext to hold Marquardt "while Chippewa County gets its ducks in a row.  "It's about seeing that justice is done and holding Mr. Marquardt accountable for his actions in Eau Claire County," Pelrine said.

Update 5/31/00:  Prosecutors filed an additional charge against Marquardt of being a felon in possession of a firearm. 

Marquardt remains in jail on $500,000 bond. Separate felony charges of animal mistreatment are pending against Marquardt in Eau Claire County.

Update 7/9/00:  Virtually all evidence against accused murderer Marquardt should be thrown out because the information came from an illegal search warrant, Marquardt's attorney says.  Attorney Harry Hertel of Eau Claire filed that motion and another to move Marquardt's trial out of Chippewa County or bring in an outside jury. These and other motions will be argued before Chippewa County Circuit Court Judge Roderick Cameron on July 31.

Marquardt was arrested March 18. Authorities allegedly found Mary Jane's blood on his shoes and on a knife in his possession.  Evidence was also collected from vehicles Marquardt was believed to have driven.

Hertel challenges the state's case by focusing on the search warrant that led to the animal cruelty charges.

Hertel argues investigators used the fact that Marquardt had not been seen since his mother's murder as a reason to search his property for murder evidence. However, when Marquardt was last at his parents' residence on Feb. 17, he said "they" were after him again and he would have to leave the country.

Marquardt then went out to a shed in the backyard and dug up $12,000 he had buried there.

Hertel said investigators knew that Marquardt said he was going to leave the country, but did not disclose that to Eau Claire County Circuit Court Judge Benjamin Proctor when asking for the search warrant.

"The application for the search warrant fails to contain any information whatsoever which indicates, other than mere speculation, that there would exist at the defendant's property ammunition and firearms," or other evidence of the crime, Hertel wrote.

Hertel also argues the search warrant application was based on facts in a Chippewa County search warrant for the murder scene itself. But, he said, that Chippewa County warrant contains no references to the Eau Claire County site to be searched.

Hertel concludes, then, that the search in Eau Claire County was illegal, along with everything that came out of it. He reasons because the search was illegal, the basis for the arrest warrant lacked probable cause. So the arrest along with the evidence was without a correct warrant.

"(He) was subjected to a warrantless search of his person, which yielded certain items, all of which were the fruit of the poisonous tree of the defective search warrant and arrest warrant," Hertel wrote.

The Chippewa County District Attorney's Office has not yet written a response to Hertel's arguments.

Hertel also filed motions asking for the suppression of evidence seized in the vehicle searches, on similar grounds.  Hertel argues that Marquardt could not receive a fair trial from a Chippewa County jury due to publicity on the case.

Marquardt has pleaded not guilty and not guilty by reason of mental disease or defect to the murder charge. A psychological evaluation was recently performed, but the results are confidential and have not yet been discussed in court.

Update 7/31/00:  Evidence seized from murder suspect Bill Marquardt can be used at trial, despite a defense challenge to a search warrant, ruled Judge Roderick Cameron.

While Cameron said, "This is obviously not the most clear search warrant," he allowed it, and the state's case, to stand.

Roy Gay, Chippewa County assistant district attorney, said that Eau Claire County Judge Benjamin Proctor found probable cause in the search warrant, and the officers acted in good faith.

Cameron thought long, but upheld the search warrant. He also dismissed a defense argument that the warrant was flawed because investigators failed to include information that Marquardt had told his father that he would be leaving the area.

Hertel also challenged a search of Bill Marquardt's vehicle, which was seized at the cabin on March 18. According to Richard Price, a Chippewa County Sheriff's Department investigator, clothing and DNA evidence was seized from the vehicle.

Price said that the Eau Claire County District Attorney's office indicated that a warrant would not be needed for that search. Hertel disagreed, and the argument continued.

Cameron had yet to rule on the motion to exclude evidence seized in the search of the vehicle.

Another motion asks to move the trial outside Chippewa County or to bring a jury in from outside the county. Hertel argues that Marquardt could not receive a fair trial from a Chippewa County jury die to publicity on the case.

Update 1/24/01:  Marquardt burst into tears after a judge ordered him to spend up to a year in a mental hospital to determine whether he was competent to stand trial.

Chippewa County Circuit Judge Roderick Cameron indefinitely postponed Marquardt's trial, ordering him to Mendota Mental Health Institute in Madison for evaluations and possibly medication for what the judge believed was a mental illness.

"I don't get a trial? I didn't get a trial?" Marquardt frantically asked his attorney, James Connell. "I can't get a trial for my mother?"

Marquardt was told his trial would happen if doctors determine he is competent to stand trial.

Connell asked the judge to consider his client incompetent after Marquardt asked to withdraw his insanity plea.  Connell said Marquardt wouldn't cooperate with him, had declined to meet with doctors on several occasions and didn't seem to understand the situation.

Marquardt insisted he was innocent and had asked to give his own opening statement to the jury.  "I did not commit the crime so I cannot plead to mental disease anyway," he said.

Update 4/29/01:  Samples of DNA found on a knife believed to have been used in a homicide indicate the weapon may have been used to hurt others, investigators say.

Capt. Curt Folska of the Chippewa County Sheriff's Department said the DNA samples found on the knife came from two other people.  That suggests there were at least two other stabbing victims between the mother's slaying and the defendant's arrest on March 18, 2000, he said.  During that time, Marquardt drove from Chippewa Falls to Atlanta and back, investigators say.

Update 5/7/02:  Marquardt was found competent to stand trial on animal cruelty charges in Eau Claire County, but Chippewa County Circuit Judge Roderick Cameron said that does not mean Marquardt is ready for a murder trial in Chippewa County.

Marquardt's animal cruelty trial is scheduled to start May 28 in Eau Claire.

Update 1/25/03:  In St. Croix County Marquardt will finally get a trial - but only on animal cruelty and burglary charges from Eau Claire County.  Still, authorities hope it gives them the mechanism they need to deal with Marquardt, whose fate has been hanging in the balance through an unusual series of legal maneuvers spanning more than two years.

If Marquardt is found guilty, Eau Claire County District Attorney Rich White has already agreed not to contest a finding that he is not guilty by reason of mental disease or defect. Marquardt would then be sent to a mental hospital for treatment for an indefinite period.

The decision by a jury selected in St. Croix County, where the trial will be held due to publicity in this area, will determine if Chippewa County authorities even need to deal with the complications an acquittal would create. The trial is scheduled to last three days.

Update 4/8/03:  Marquardt is going back to a mental health institution.  In an hour-long hearing that served to reinforce the belief that he is a young man with extremely serious mental health problems, Eau Claire County Judge Eric Wahl ordered the murder suspect to be placed at the Mendota Mental Health Institution for up to 75 years.

"Just because Nostradamus wrote something 500 years ago that could be about me doesn't mean I'm not competent," Marquardt told Wahl, in reference to a 16th-century figure that some people believe accurately predicted the future.

Marquardt denied writing a letter to Wahl claiming he was Jesus Christ, as his attorney, Robert Rusch of Medford, stated. But Marquardt said another letter he sent to Wahl -- in which he supposedly stated that marijuana, loud rock music, and pornography would enable him to reach a state of trance, see the future and even find a cure for aging -- was "no joke."  The letter asks Wahl to provide those materials for him in the jail, according to statements made in court.

"I have no mental health problems," Marquardt insisted, though it was not clear what, besides mental commitment, Marquardt was asking Wahl to do with him.

Marquardt had, reluctantly, agreed to accept a finding of not guilty by reason of mental disease or defect after a jury found him guilty of animal cruelty, armed burglary and felon in possession of a firearm charges in January.

Marquardt has long insisted on his own competence, sanity and innocence.

Along the way, Marquardt's competency to even proceed with the cases has been questioned and evaluated at least four times. Nevertheless, Rusch raised the question again, motivated by the bizarre letters Marquardt had sent to Wahl.  "I think Mr. Marquardt remains competent," Wahl said. "As far as I'm concerned, he's the same as he was at the time we tried the case."  That does not mean, however, that Marquardt is sane.

Wahl accepted a psychiatrist's report that Marquardt, who has been previously diagnosed with schizophrenia, is a danger to himself and others and should be confined to an institution.

He also accepted Eau Claire County District Attorney Rich White's recommendation to find Marquardt not competent to refuse medication.  "It is my intent to have Mr. Marquardt under supervision for the rest of his natural life," White said in making the 75-year recommendation.

The murder case is still on hold.

Update 12/16/06:  Marquardt now faces charges that two days after her death in Wisconsin, he killed two women in Florida, local prosecutors have learned.

Chippewa County District Attorney Jon Theisen was returning from court late Friday afternoon when he found a message on his desk reading: "Your work has paid off."

It was signed by Capt. Gary Brannen of the Sumter County Sheriff's Department in Bushnell, FL where a grand jury issued three indictments against Marquardt, now 31.

Marquardt, who suffers from paranoid schizophrenia and is in a state mental hospital, was charged with two counts of first-degree murder and one count of burglary to a dwelling with a firearm in the murders of the two women near Webster, FL on March 15, 2000.

Marquardt's mother, Mary Jane Marquardt, had been murdered two days earlier at her town of Eagle Point home.

Last May, Marquardt was acquitted of murder in his mother's death.

But Theisen went on an Internet search trying to link evidence in the case to other murders.

For one thing, when Marquardt was arrested after his mother's death, he had a knife that contained DNA evidence of his own, his mother and two unidentified females, records show.

Marquardt had used an alibi with connections to Florida, so Theisen created a timeline and determined it would have put him near the scene of the unsolved killings of 72-year-old Margarita Ruiz and her daughter Esperanza Wells, 42.

Theisen said the DNA from the knife has been found to match the two victims, and they had been shot and stabbed in the neck, similar to how Mary Jane Marquardt died.

Marquardt is institutionalized after being found not guilty by mental disease or defect to armed burglary and animal cruelty in Eau Claire County.

Brannen said the next step will be for his Florida county to seek Marquardt's extradition.

Update 4/1/08:  Marquardt’s first-degree murder trial in Florida is likely many months away, and he remains in a mental health facility in Wisconsin awaiting extradition.

An extradition request is now in the hands of the Wisconsin Gov. Jim Doyle’s office, according to Capt. Gary Brannen of the Sumter County Sheriff’s Office in Bushnell, Fla.

While Marquardt is currently serving a 75-year sentence at Mendota Mental Health Institute in Madison for animal cruelty and home invasion, Brannen is anxious to move along the case, which dates back to 2000.

Marquardt was indicted in December 2006 in Florida on two counts of first-degree murder. Sheriff’s officials there have said they linked Marquardt with the gun used to kill a mother and daughter, and DNA from Marquardt’s knife to the two victims.

Marquardt was acquitted by a Polk County jury in May 2006 of the March 2000 death of his mother, Mary Jane Marquardt, in the township of Eagle Point.

Within weeks of the verdict, Chippewa County District Attorney Jon Theisen had tied Marquardt’s trip to Florida following his mother’s death with the unsolved deaths of two Florida women.

Update 7/8/08:  A grand jury in Florida points the finger at a western Wisconsin man for the death of two women in that state. Police say prosecutors could pursue the death penalty. The grand jury deliberated for about three hours before deciding to indict Marquardt on two counts of first-degree murder. He's accused of killing the women in Florida six years ago.

Police say a drop of blood found in the victims' house contained the DNA of the two victims and an unidentified person. Police say a report they just received shows that person's DNA is probably a match for Marquardt's. They say the chance it's someone else's is about one in 77,000. Investigators also claim the victims' blood was found on Marquardt's car, clothes and his knife.

Update 4/23/09:  The Chippewa County district attorney says an agreement has been reached to extradite Marquardt from Wisconsin to Florida.

  (Photo courtesy of WQOW TV)

Update 5/4/09:  Marquardt is now in the Sumter County, Fla., jail, awaiting trial for a 2006 double murder.

Marquardt is accused of the March 15, 2000 killing of Margarita Ruiz, 72, and Esperanza Wells, 42, in Tarrytown, FL.

Update 10/14/09:  Marquardt, acquitted in his mother’s 2000 killing but ordered to a mental hospital for up to 75 years for killing some rabbits and dogs has failed to win a new trial.

The 3rd District Court of Appeals rejected Bill Marquardt’s argument that he deserved a new trial.

In 2003, an Eau Claire County jury convicted Marquardt of animal cruelty, being a felon in possession of a firearm and burglary in the killing of some dogs and rabbits at his cabin shortly after his mother’s death at her rural Chippewa Falls home.  The animals had been shot and their necks cut, suffering the same wounds as his mother.

Prosecutors conceded Marquardt, now 33, was insane when he committed the crimes. A Polk County jury in 2006 found Marquardt not guilty of first-degree intentional homicide in his mother’s death.

The court's decision follows:

State of Wisconsin, Plaintiff-Respondent, v. Bill P. Marquardt, Defendant-Appellant.

APPEAL from orders of the circuit court for Eau Claire County: Michael A. Schumacher, Judge. Affirmed.

Before Hoover, P.J., Peterson and Brunner, JJ.

1 PER CURIAM. Bill Marquardt appeals orders denying his Wis. Stat. § 974.06[1] post conviction motion, a motion for reconsideration and various other requests for access to materials. He argues he is entitled to a new trial based on newly discovered evidence and ineffective assistance of counsel. We reject these arguments and affirm the orders.

BACKGROUND

2 Marquardt was a suspect in the death of his mother, a crime for which he was ultimately acquitted. During the investigation, police searched Marquardt’s cabin on three occasions. During the first search, they found a .22 rifle and the remains of three dogs and three rabbits that had been shot and had their necks cut. The dogs’ remains were found stacked on top of each other down the hole of an outhouse, on top of a gun case for a 9mm handgun. Bullet fragments showed the dogs were shot by a .22 caliber gun. In a storage shed, deputies found a .22 caliber bullet casing and a blood stained tarpaulin.

3 At the time of the second search three days later, Marquardt was arrested at the cabin after teargas was used. During that search, officers found a box of .22 caliber bullets in a backpack in the bedroom. They were the same brand of bullets as the casings found in the storage shed. Eleven bullets were missing from the box. The backpack had not been in the cabin three days earlier. Deputies also found a live 9mm bullet on the kitchen floor.

4 Eleven days later, deputies conducted a third search and moved a refrigerator, finding a 9mm handgun lodged beneath it along with two boxes of bullets. The crime lab later determined the 9mm handgun had been used to kill a neighbor’s dog during a burglary.

5 The jury found Marquardt guilty of seven counts of mistreatment of animals, two counts of possession of a firearm by a felon, and one count of aggravated burglary. On the State’s stipulation, Marquardt was found not guilty by reason of mental disease or defect and was committed to institutional care for a period not to exceed seventy-five years.

NEWLY DISCOVERED EVIDENCE

6 Following his initial direct appeals and state and federal habeas corpus petitions, Marquardt filed a motion under Wis. Stat. § 974.06 alleging newly discovered evidence and ineffective assistance of counsel. Marquardt contends new evidence would show the 9mm handgun and boxes of bullets found when officers moved the refrigerator were planted there because they would have been seen by the officers and Marquardt’s father, Alfred, during earlier inspections of the cabin.

7 The new evidence consists of a videotape taken by Alfred showing that the cooling coils pushed a box of bullets out when the refrigerator was moved and the box stayed visible after the refrigerator was returned to its original position. Other newly discovered evidence consists of a police report and photographs describing the officers’ removal of a window that was partially blocked by the refrigerator, Alfred’s statement that he moved the refrigerator out to replace the window between the second and third searches, a photograph showing a can of air freshener touching the edge of the refrigerator and Alfred’s statement regarding the can of air freshener. Marquardt contends this evidence proves the 9mm handgun and boxes of bullets were not under the refrigerator at the time of the second search and, because Marquardt was incarcerated at the time they were placed under the refrigerator, someone planted evidence to incriminate him.

8 To obtain a new trial based on newly discovered evidence, Marquardt must show by clear and convincing evidence that: (1) the evidence was discovered after conviction; (2) he was not negligent in seeking evidence; (3) the evidence is material to an issue in the case; (4) the evidence is not merely cumulative; and (5) a reasonable probability exists that a different result would be reached on retrial. State v Love, 2005 WI 116, ¶¶43-44, 284 Wis. 2d 111, 700 N.W.2d 62. Newly discovered evidence does not include new appreciation of the importance of evidence previously known but not used. State v. Fosnow, 2001 WI App 2, ¶9, 240 Wis. 2d 699, 624 N.W.2d 883.

9 The circuit court correctly concluded Marquardt failed to establish newly discovered evidence because the proffered evidence is not new and it would not likely lead to acquittal. Although the videotape prepared by Marquardt’s father did not exist at the time of trial, it merely demonstrates evidence that could have been presented at trial. Alfred testified that he moved the refrigerator exposing some but not all of the floor under the refrigerator. He saw no gun on the floor. Sheriff’s detective Mark Christopher said he did not look under the refrigerator and there was a lot of clutter on the floor in the area consisting of garbage, clothing, and an overturned chest of drawers. Special agent John Rehrauer testified he had to kneel to see the 9mm handgun under the refrigerator and saw it only after two bullet boxes were removed. At a post commitment hearing, Marquardt’s trial counsel, Robert Rusch, testified he personally examined the scene and believed the handgun and bullets could have been under the refrigerator. Even when the refrigerator was moved, it obscured a portion of the floor. Rusch concluded from his personal observations that it was not necessarily true that anyone moving the refrigerator would have seen these items on the floor and he recalled speaking with Alfred on that very point. The circuit court correctly concluded this evidence was available at the time of trial. The evidence was not presented because it was not persuasive.

10 Likewise, the evidence regarding a can of air freshener does not meet the test for newly discovered evidence. This evidence could have been derived from Alfred’s testimony and existing photographs that could have been discovered prior to his trial. In addition, the significance of a can of air freshener depends on Marquardt’s bizarre theory that, while he was in jail suspected of killing his mother, someone broke into his cabin and planted evidence of lesser crimes under his refrigerator and placed a can of air freshener on the floor to draw attention to that area. The circuit court properly concluded presentation of that evidence would not create a reasonable doubt that Marquardt killed his neighbor’s dog during a burglary and unlawfully possessed the handgun.

11 Marquardt next contends pictures of the cabin’s interior depicting areas that were spray painted silver constitutes newly discovered evidence. Marquardt was personally aware of the painted light fixture and doorknob. After trial, he had his father take pictures of the painted areas. Although the photographs did not exist at the time of trial, they do not constitute newly discovered evidence. The photographs merely document previously known damage.

12 Marquardt next argues letters from Jason Fitts constitute newly discovered evidence. Marquardt contends the letters threaten retaliation against him because he refused to smuggle marijuana and LSD into prison for Fitts. He argues the letters would show Fitts’ motive for killing Marquardt’s animals and framing Marquardt for killing the neighbor’s dog. Admissibility of the letters is questionable. Evidence that a third party committed a crime must be based on something more than suspicion. See State v. Denny, 120 Wis. 2d 614, 623, 357 N.W.2d 12 (Ct. App. 1984). In addition, although Marquardt did not have copies of the letters, he had received them and knew their contents. The letters themselves do not appreciably add to that possible defense. Furthermore, it is highly improbable that a jury would acquit Marquardt based on a belief that Fitts would frame Marquardt for these crimes in retaliation for refusing to supply him with drugs after Marquardt had been taken into custody.

13 Marquardt next argues newly discovered evidence would show Alfred told special agent Rehrauer that Marquardt possessed the .22 rifle only after sheriff sargent John Vogler told Alfred they found the rifle at the cottage. Marquardt contends the rifle was not at the cottage and Alfred only believed it was because the suggestion had been made by Vogler. That evidence does not constitute newly discovered evidence because it was not new. The evidence could have been elicited from Alfred at the trial. In fact, on cross-examination, Alfred admitted he could not recall seeing Marquardt handle any firearm after his felony conviction. In addition, the evidence would not likely result in acquittal. Bullets for a .22 caliber gun were found in Marquardt’s backpack, the same brand of casing found in the storage shed with a blood stained tarpaulin. Eleven bullets were missing from the box found in Marquardt’s backpack. We conclude it is highly unlikely a jury would doubt Marquardt’s possession of the .22 caliber rifle based on evidence that Vogler first suggested to Alfred that the weapon had been found at the cabin.

EFFECTIVE ASSISTANCE OF COUNSEL

14 Marquardt alleges ineffective assistance of trial and post commitment counsel based on their failure to present four issues: (1) counsel failed to pursue a claim under Franks v. Delaware, 438 U.S. 154 (1978), that the search warrant application was misleading; (2) counsel failed to argue that shooting rabbits and dogs does not constitute cruelty; (3) counsel failed to challenge the length of his commitment to a mental institution; and (4) counsel failed to argue that the jury never considered whether the sentence enhancer for repeat offenders should apply. To establish ineffective assistance, Marquardt must show deficient performance and prejudice to the defense. See Strickland v. Washington, 466 U.S. 668, 687 (1984). Failure to pursue a meritless motion does not constitute deficient performance. State v. Cummings, 199 Wis. 2d 721, 747 n.10, 546 N.W.2d 406 (1996).

15 Marquardt has not established ineffective assistance of counsel for failure to request a Franks hearing because no Franks violation occurred. A defendant alleging a Franks violation must make a substantial preliminary showing that a false statement in support of the search warrant was made knowingly or with reckless disregard for the truth and the statement was necessary to the finding of probable cause. State v. Mitchell, 144 Wis. 2d 596, 604-05, 424 N.W.2d 698 (1988). The same burden applies when a defendant claims the affidavit reflects a critical omission. See State v. Mann, 123 Wis. 2d 375, 386, 367 N.W.2d 209 (1985). In Marquardt’s previous appeal, the Wisconsin Supreme Court determined that law enforcement officers acted in good faith in procuring the initial search warrant. Therefore, the Franks claim is relevant only to whether the alleged violation was sufficient to defeat the conclusion that the officers acted in good faith.

16 Under the good faith doctrine, evidence obtained through a search warrant is admissible if the officers acted in “objectively reasonable” reliance on it. United States v. Leon, 468 U.S. 897, 919 (1984). The inquiry is confined to the objectively ascertainable question whether a reasonable well-trained officer would have known the search was illegal despite the magistrate’s authorization. Id. at 922 n.23. The Wisconsin Supreme Court concluded the officers acted in good faith because the warrant affidavit allowed a reasonable inference that Marquardt’s absence was suspicious and that Alfred thought Marquardt might be involved in his mother’s death. Marquardt argues the magistrate was misled by false or incomplete information because the warrant omitted Alfred’s statements that would have provided an innocuous explanation for Marquardt’s absence. The affidavit also omitted evidence regarding the placement of Marquardt’s mother’s body that Marquardt interprets to show that she answered the doorbell when she was killed, refuting the inference that she knew the killer.

17 As a threshold matter, the statements in the warrant affidavit were accurate. The record does not support Marquardt’s argument that Investigator Price intended to mislead the magistrate by suggesting that Marquardt’s absence was suspicious. A reasonable magistrate would recognize that Marquardt’s unavailability could be due to a variety of possible reasons other than involvement in the homicide. Price was accurate to the extent he sought to convey the impression that Alfred believed his son may have been in the area at the time of the homicide. At a proscenium hearing, Alfred testified that Marquardt had been at his residence two days before the homicide. Alfred said Marquardt had keys to their residence. Nothing in the residence had been broken into or disturbed.

18 In addition, the Wisconsin Supreme Court observed in Marquardt’s direct appeal that the warrant affidavit contains other indicia of probable cause whose accurate presentment had not been challenged, indicative of the good faith effort on the part of the warrant applicants. State v. Marquardt, 2005 WI 157, ¶¶39-44, 286 Wis. 2d 204, 705 N.W.2d 878. Moreover, at the time the application was made, officers possessed other information omitted from the warrant application that supported the inference Marquardt was in the area at the time of the homicide, but failed to contact his family despite widespread publicity. Investigator Price testified that Alfred said Marquardt’s mother had attached a phone message for Marquardt to the refrigerator. The note was found a day or two after the homicide under a jewelry box in the bedroom, suggesting that Marquardt had been in the house on the day of the homicide. From this record, Marquardt’s attorneys did not provide deficient performance by failing to challenge the search warrant by claiming the magistrate was misled.

19 Counsel was also not deficient for failing to argue that shooting Marquardt’s three dogs and three rabbits constituted humanely destroying them. The jurors were instructed that “cruel” means causing unjustifiable injury or death. The record contains no evidence that the animals “needed to be put down.” The puppies had been purchased only days before they were killed and there was no indication the animals needed to be euthanized. In addition, presenting the alternative “humane killing” defense would have undermined Marquardt’s theory that a third party killed his animals.

20 Marquardt’s attorneys were not deficient for failing to argue that his seventy-five year commitment to a mental institution constitutes cruel and unusual punishment. Marquardt faced commitment of more than 131 years for the offenses for which he was found guilty. The nature of his offenses and his mental condition support the trial court’s determination that a lengthy potential commitment is necessary to protect the public. Furthermore, commitment for institutional care is not punishment subject to the Eighth Amendment prohibition against cruel and unusual punishment. State v. Mahone, 127 Wis. 2d 364, 376, 379 N.W.2d 878 (Ct. App. 1985). In addition, an insanity acquitee enjoys the right to semi-annual re-examination by petitioning the court for conditional release. Marquardt had previously been found incompetent to stand trial.

21 Finally, Marquardt was not entitled to a jury determination of the repeater allegation. Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). The basis for the repeater enhancement, Marquardt’s previous drug conviction, was established at the commitment hearing by introduction of a judgment of conviction, a conclusive judicial record. Shepard v. United States, 544 U.S. 13, 25 (2005).

Update 12/8/09:  A prosecutor says Marquardt may not stand trial in Florida until 2011 for the 2000 murders of a woman and her daughter.  Although more unlikely, there is a possibility Marquardt’s trial could be held much sooner.

“It all depends on the defense counsel,” said Peter Magrino, assistant state attorney for the 5th Judicial Circuit in Florida. The circuit includes five counties. The trial will be held in Bushnell, Fla.

Normally, the average time in death penalty cases in the 5th Circuit from first appearance to trial is about two years, Magrino said.

Marquardt was extradited in May from Wisconsin, where he was serving a 75-year sentence at Mendota Mental Health Institute in Madison for animal cruelty and home invasion.

Magrino said Marquardt, who appeared in court in Bushnell, FL is next due back March 25 for a status conference on his case.

He is accused in Florida of the March 15, 2000 murders of Margarita Ruiz, 72, and her daughter Esperanza Wells, 42. The women were shot and stabbed in front of Ruiz’s 2- and 4-year-old grandchildren in Tarrytown, FL.

Authorities claim a knife found in his pocket during his arrest for his mother’s murder yielded DNA from Ruiz and Wells. They said they have also linked Marquardt with the gun used in the Florida slayings.

Marquardt was indicted on two counts of first-degree murder in Florida in December 2006.

Marquardt is represented by lead defense attorney Trish Jenkins and other attorneys from the public defender’s office.

Magrino said while Marquardt’s attorneys have waived his right to a speedy trial, they could reverse that decision. If that happens, under Florida law Marquardt would have to be tried within 60 days.  “Am I ready to start the trial in the case? Yes,” Magrino said.

He said the defense and prosecution still need to come to Wisconsin to take depositions, including from members of the Chippewa County Sheriff’s Department and the Wisconsin Department of Justice – Crime Laboratory.

Under Florida law, there are 15 aggravating circumstances to be considered for the death penalty. Magrino said the Marquardt case could qualify for seven of those factors.

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