Complex, costly woman-drugging case inches toward trial

Judge will allow expert from France to testify in what promises to be county’s most expensive prosecution
By 
DAN BENSON
Ozaukee Press staff

What’s shaping up to be one of the most expensive and most complicated trials ever in Ozaukee County could get even costlier if the case is moved to another county, District Attorney Adam Gerol told the Ozaukee County Public Safety Committee Tuesday.

That comes a week after a Washington County judge struck down an attempt to prevent expert testimony from a French pharmacist in the case against a former Ozaukee County man charged with drugging a woman at his Cedarburg restaurant in 2014. 

That ruling prompted renewed media attention to the case, which may prompt a motion from the defense to move the trial, scheduled for February, out of the county, Gerol said.

“That kind of thing is totally out of my control. I would not be surprised if they revisited that (change of venue) in the next month or so,” Gerol told the committee, which oversees his department. Although district attorneys are state employees, the cost of the trial will be borne by  the county.

Jacob Banas, 39, was charged in October 2018 with allegedly administering a dangerous or stupefying drug to a woman in 2014 when she visited his restaurant, the August Weber Haus in downtown Cedarburg.

According to a criminal complaint, Banas served shots of liquor to the woman and a friend.

The woman told police she felt different than she usually does after drinking alcohol and could not remember anything from then through the rest of the evening.

Her friend told police the woman was crying uncontrollably on the way home at about 9:30 p.m. The woman’s husband said he found her lying on the floor and that she was totally limp when he tried to get her to stand up and she was unable to answer questions.

Sometime after midnight the woman began vomiting, he said.

A specimen of the woman’s hair was examined by the FBI crime laboratory and other specialists who found the presence of doxylamine, an ingredient in antihistamines that when combined with alcohol produces symptoms similar to what the woman experienced and was in large enough quantities to incapacitate an adult, according to the complaint.

Complicating matters, however, is that the woman admitted she took an over-the-counter medication containing doxylamine at about the same time to treat allergy and cold symptoms.

But Gerol intends to call as an expert witness Pascal Kintz, a professor of legal medicine and Senior Forensic Expert and head of the laboratory of toxicology at the Institute of Legal Medicine at the University of Strasbourg in France.

In court documents, Gerol called Kintz “possibly the world’s foremost authority on the use of hair analysis in drug-facilitated crimes.”

Flying Kintz, plus two other experts — one from Virginia and another from California — and at least one witness from Florida, a woman who says Banas drugged her at a bar where they both worked, will make this one of Ozaukee County’s most expensive cases.

“There has never, at least in recent years, been a prosecution in Ozaukee County that will (cost) such significant sums of money to prosecute,” Gerol wrote in a brief arguing against a change of venue. “The costs of three or four expert witnesses, one of whom is coming from France, will be extraordinary.”

According to court documents, Gerol says Kintz will testify that his testing of segments of the woman’s hair establishes a time line based on the average rate of hair growth and shows multiple exposures to high doses of doxylamine in April and May 2014, coinciding with when the alleged attack occurred.

Last week, Banas’ attorney Brent Nistler sought to prohibit Kintz’s testimony, saying it was unreliable and speculative.

Gerol acknowledged that Kintz’s analysis is not precise enough to pinpoint what happened on the night the woman lost consciousness but argued that combined with other testimony, the totality of the evidence makes a convincing case against Banas.

Washington County Circuit Judge Todd Martens, who is hearing the case after three Ozaukee County judges recused themselves for various reasons, ruled against Nistler, saying his objection had more to do with how Gerol sought to use Kintz’s testimony than with Kintz’s methodology or qualifications. He said it was up to the jury to weigh Gerol’s arguments and Kintz’s testimony.

Martens did grant Nistler’s motion to bar Kintz from testifying about criminal behaviors and practices.

In 2008, several women began speaking out that Banas had doctored their drinks and in some cases assaulted them or took nude photos of them.

Banas was not charged, however.

Those women banded together with others to boycott the restaurant and form a group called Citizens for a Safer Cedarburg.

Banas, whose current address is listed in court documents as Clearwater, Fla., sued several of the women for defamation in 2016 and 2017. Neither of the lawsuits went to trial. 

Also in 2017, the Cedarburg Common Council voided the August Weber Haus’ liquor license because of its sporadic business hours. 

In the current case, Nistler argued that past news coverage of Banas merited moving the trial or bringing in a jury from outside the county.

Gerol argued that media coverage had dissipated in recent years and that few people outside Cedarburg were aware of the case.

That motion was denied, but media coverage this week of Martens’ ruling may have changed that, Gerol said.

In a filing related to the previous change of venue motion, Gerol said bringing a jury from outside the area to Ozaukee County would be “far more expensive” than moving the trial to another county.

“I believe this case would be fairly presented if we were in Racine, Kenosha, Walworth or Rock counties,” Gerol wrote in the filing, noting those counties have easy access to Chicago airports, which would help mitigate some of the cost of flying in his expert witnesses.

If Banas is convicted, he could be sentenced to seven years and six months in prison followed by four years and six months extended supervision, and fined $25,000.

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