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Bucher Law Group, LLC

Reasonable Doubt

Innocent until proven guilty...it's been the hallmark of the American justice system for centuries. But what happens when outrageous claims are made against you and you find yourself beneath the full weight of the government - forced to defend yourself and prove reasonable doubt? See what happened when one Wisconsin EMT was forced to defend himself against the unthinkable.

It all started out simple enough. The 911 call on July 19, 2011, came shortly before noon for a female having seizures at a local Girl Scout camp. Captain Jodin Froeber wasn't at the station or even on call that day, but knew the service was short-staffed. As an officer with the Somers Fire Department, located in Kenosha County, he was allowed - if not encouraged - to respond whenever he could.

Froeber had been involved in EMS for nearly a dozen years. He was 36 years old at the time, a captain and the training officer for the Somers Fire Department. The service operates as a combination department with Froeber being one of their full-time employees. Like many, he loved his job in fire and EMS. He had done other things, including working for the telephone company, but EMS and firefighting was a passion and a job he truly enjoyed. Like many, he responded to as many calls as he could-even if he was not technically on duty or on call at the time. A life-long resident of the area, he knew many in the community and many knew him.

Although first reported as being 17 years old, it was actually a 20-year-old camp counselor suffering the seizure. According to the patient's aunt, who was also on the scene, the girl had a history of seizures. She had already suffered one before the EMTs had arrived. A second seizure occurred as they were assessing her. It was after she was moved to the back of the ambulance that she had her third seizure in the series.

Operating at the Wisconsin EMT-Intermediate level, sometimes called "I-99" or "Enhanced Intermediate," their treatment protocols included the administration of Valium (diazepam) to treat the seizure. A total of four EMTs, including Froeber, provided care to the female. Oxygen was applied, along with a 4-lead cardiac monitor. An IV was established with Froeber's partner administering the Valium.

According to court testimony and written reports, the female did not respond verbally at any time during the call or transport. The crew continued to talk to her, telling her what they were doing, attempting to communicate and assessing her level of consciousness. There was never any response.

Because of the short-staffing, Froeber decided he would transport the patient so the others could return to the station to be in-service for other calls. With the seizures stopped and the patient now stable, they would transport with a crew of two-an EMT driver and Froeber in the patient compartment.

It was a routine transport to St. Mary's Medical Center in Racine County, bordering Kenosha County to the north. The female was still not responding verbally but was maintaining her airway and having some purposeful movement. The crew briefed the emergency department staff and returned to the station. Froeber returned home and back to his life - or so he thought.

Can We Talk to You?

It was later in the day, close to early evening, that a call came from the Racine County Sheriff's Department asking if Froeber could meet with them. "We're all on the same team," said the detective. "We just have some questions about a call you were on earlier today," he said.

Feeling he had nothing to fear, Froeber agreed to meet with them and have a "chat." At first it seemed routine. They wanted to know what happened on the call, how it went, did he transport the patient...all pretty routine things. However, after a while, the tone started to change. As the interview continued, it started to sound like they were accusing Froeber of doing something inappropriate. Before the interview would end, they were no longer hinting but clearly claiming he had sexually assaulted the seizure patient in the back of the ambulance.

The patient had been released from the E.D. within hours of arriving. Shortly after her release, she contacted the Kenosha County Sheriff's Department to report a sexual assault. Because the camp was located on the Kenosha-Racine County border, they referred her to the Racine County Sheriff's Department. According to the criminal complaint, the EMT in the back of the ambulance had lifted her shirt and bra up, followed by two "clicking sounds" that she believed came from a camera or smartphone. She then felt her shorts and underwear lift away and a hand begin to rub her vaginal area. Minutes after the rubbing stopped, she felt her shorts being pulled down, this time followed by a finger being inserted inside of her vagina for about a minute.

As the words were coming out of the detective's mouth, Froeber could not believe what he was hearing. "I was really pissed," said Froeber, "I knew I had not done any of this." Like something seen in a television police drama, the detective's claimed they already knew what he had done, had DNA evidence and Froeber should just admit it and they would be able to help him. Instead, Froeber offered to give his own DNA sample, knowing there was no way his DNA could have been found.

At this point Froeber decided it was time to end the interview. An interior cheek swab DNA sample was obtained and Froeber was allowed to return back home.

This Is Serious

Froeber, of course, had to tell his wife and family what had just happened. Combing through on-line listings for defense attorneys, Jonathan LaVoy, of the Kim & LaVoy law firm was the only one who answered the telephone that evening. "He ended up being one of the best lawyers I could have hired," says Froeber. LaVoy was able to give him some initial advice that night and would later become his attorney.

The next day a search warrant was served at Froeber's residence. Because Froeber lives in Kenosha County, but it was the Racine County Sheriff's Department processing the case, both agencies descended on his house, collecting computers, USB drives and cell phones. Froeber's wife and stepson's computers and devices were taken as well. Because Froeber's mother-in-law happened to be at the house when the warrant was served, even her phone was seized.

An initial $5,000 retainer would be required in order for Kim & LaVoy to defend him. Not having ready access to that much money, Froeber put the charge on his credit card. He felt he had no choice, as this was serious.

The Longest Year

Even though the allegations, if true, were very serious, no charges had yet been brought. There obviously were no witnesses, no confessions and only an unresponsive victim who had been sedated with medication. Still, the impulse to react often kicks in. Spouses and family start to wonder - some may jump to conclusions. Employers oftentimes move to suspend or terminate employment. Knee-jerk reactions in a situation like this are not uncommon.

Thankfully for Froeber, none of this happened. His wife stood by him as did his family. The crew at the station, who by this time had been questioned themselves and were well-aware of the situation, provided their support. The fire chief completely stood behind him. Froeber would remain on the active roster.

About one month after the first search warrant was served, additional items were seized from his home during a second warrant search. As the investigation continued, detectives contacted the fire department in an effort to find out more information about Froeber. They were told he had a very clean record-both criminally and with the department. Neither other patients nor co-workers had ever experienced or reported anything improper. In fact, no one had ever even suspected him of doing anything close to assaulting a patient. The detectives attempted to get a list of all female patients transported by Froeber in the past year, but failed to produce a warrant for the list. Some patients were able to be identified anyway, but none had anything to report as nothing like what was being claimed had ever happened to them.

It would be a full year for Froeber having sexual assault charges looming over his head. While he believes that some members on the municipal board and in the community wanted him removed from his position, it never happened. The Somers fire chief, since retired, stood behind him as he continued to do his job, continued to transport patients and did his best to move forward. If the detectives believed they had a rapist on their hands, they clearly didn't have enough evidence to prove it and left him with the ability to continue patient care, and if true, continue assaulting patients. The adage of "innocent until proven guilty," was still in place.

Nothing Found Charges Brought

After a full year with multiple labs combing through Froeber's phone, no evidence of any patient photos or deleted photos were ever found. In fact, other than a single photo of his wife, nothing of any sexual nature was ever found on his phone or computers. The crime lab was able to identify two separate sets of male DNA collected from the underwear worn by the patient that day. However, Froeber was excluded as being the source of that DNA. In other words, no DNA was found matching Froeber-only two other unidentified males.

It was coming down to the word of an unresponsive, post-seizure, medication-sedated patient and that of an EMT, who up until this point had a spotless record. With only that evidence, on August 16, 2012-more than a year after the 911 call-Jodin Froeber was charged with the second degree sexual assault of an intoxicated victim.

At this time he was relieved of his duties at the fire department and placed on paid administrative leave pending the outcome of the charges. The State EMS Office sent him a letter suspending his EMT-Intermediate license pending the outcome of the case.

The charges carried up to 25 years in prison, a maximum of 15 years extended supervision and a fine of up to $100,000. More-over, just the charges themselves were likely to end Froeber's EMS career - even if found not-guilty. At the very least, he would always have been suspected of and charged with sexual assault.

How Could This Happen?

As EMTs, we've always been taught the cornerstones of treatment. Patient assessment is, by its nature, often a physical, if not intimate, encounter. It's nearly impossible to apply EKG leads, especially for a 12-lead EKG, without partially exposing the chest. Trauma patients are often stripped naked in record speed. Many in emergency medicine don't think twice about going about the job of patient care just as they have likely done thousands of times before. If you don't perform according to the standards and miss something, you are liable.

Could everything have happened just as the patient asserts? Absolutely anything is possible. In this case, doubt is increased following both a seizure and sedation. The fact that the patient never once spoke or responded to the EMTs further supports that doubt. Is it possible that the crew just assume the patient was unresponsive when she really was not? We've all heard of cases where the patient appeared to be unresponsive and unable to communicate yet was later able to completely recite everything that went on.

"This just screams of an injustice," said Paul Bucher, retired district attorney for Waukesha County. "As a prosecutor for nearly 30 years, I would give police, fire, and EMTs, the benefit of the doubt."

The patient's shirt likely was lifted for EKG electrodes to be placed. That is more easily explained. Any number of things can account for the "clicking sound" that was later assumed to have been a camera or smartphone. However, there is nothing within the EMT scope of practice that requires or calls for any vaginal insertion. This goes far beyond anything that could be misconstrued or misunderstood by a patient. However, no DNA evidence connected to Froeber was found, making this claim far less likely.

"There was no physical evidence other than her word," said Froeber's attorney, Jonathan LaVoy, of Kim & LaVoy. "I believe they should not have brought charges," says LaVoy. "As a prosecutor, you really have to hold back and determine you have enough evidence as possible unless you have a confession," says Bucher. "DNA is what often drives the case and is a must. After the DNA test, it's game over," stated Bucher.

"Absent any other corroborating evidence, I believe the testimony of a victim, who is postictal and who has received diazepam, is insufficient in and of itself to bring charges in this case," says former paramedic, nurse anesthetist, and now attorney, Greg Stocks of Law Med Consulting. "Bottom line - Either they have pictures he took and his goose is cooked, or they do not and he should never have been charged," said Stocks.

For Froeber and his department, after more than a year with the possibility of charges hovering, he was now facing many years in prison, not to mention having to register as a sex offender. The story was carried by the media throughout the country with reporters showing up at the fire station and at his home. National publications and websites propelled the story throughout the Internet and social media. "I just didn't want to go out in public," says Froeber. "Every month or so, I was in court and then it all would just start up again," he said.

Without warning and without fault, he was thrust into the largest struggle of his life. His wife and family continued to stand by his side. "I think my wife expressed doubts once or twice about it," says Froeber. "She said, 'Just tell me if you did it, did you do it?' and I told her I absolutely did not. Other than those few times, she completely trusted me."

Comments on various social media sites continued to question the charges. "I have seen a lot of postictal patients, and they have no recollection of anything that happened," is representative of many comments left by readers. Many were confused by how an EMT with a clean record, no previous suspicions in his professional or person life, and seemingly no evidence could be charged with a sex crime based simply on the word of a patient in a mentally-altered condition following a seizure and sedation. "With sex crimes today, fewer and fewer prosecutors are willing to say no - which is very scary,' says Bucher. "Finding him not guilty is almost like a second victimization," according to LaVoy. "Sometimes it's in the best interest of the victim to not bring charges and make them go through a trial that can't be won," says LaVoy.

"As a prosecutor, I would decline prosecution [in this case] but refer for state licensing," said Bucher. "Prosecutors need to be aware of the ramification of bringing charges. It doesn't have to be beyond all doubt, but it has to be pretty close," says Bucher. "You have to have significant evidence. With DNA evidence excluding him, it would automatically decline prosecution," he says.

The Case Goes to Court

Just as it took over a year for charges to be filed, it would be more than another year before the case would go before a jury. Froeber tried to live his life as best he could. "I was scared shitless," said Froeber.

Three months prior to eventually going to trial, the DA reduced the charge to third degree sexual assault. While the change dropped the maximum sentence from 25 to 5 years, the totality of the situation Froeber was facing remained nearly the same. According to quotes from the DA, "based on further investigation into the effects of the drugs that were administered to the victim in this case, the amended charge more closely fits." It appeared that the prosecution may have started to have some of the same concerns as others viewing the case had all along.

Several weeks prior to trial, the DA offered a plea agreement to further reduce the charge to fourth degree sexual assault and not require registering as a sex offender. Froeber's attorney had to present the deal to his client, but it was felt that the case was weak enough and the deal not good enough to accept. "I felt confident in our defense," said LaVoy. As for Froeber, "I knew I didn't do it and I wasn't going to plead guilty to something I did not do!"

At the end of August 2013, a year after first being charged and more than two years after being accused, Jodin Froeber stepped into court to face a jury of his peers. Much of the first day was taken completing jury selection. As the trial started, the prosecution had only one witness - the patient. During testimony, multiple inconsistencies and inaccuracies became apparent. The patient testified that two EKG patches were placed on her chest. An EKG was part of the patient record which proved, along with other testimony, that four leads would have actually been placed. Still, she was certain there were only two leads. She was adamant there were only three EMTs taking care of her - there were actually more. Understandably, it would be difficult for a seizure patient to accurately recall what took place, which was entirely the point.

Both the prosecution and defense provided expert testimony in the case. According to the defense expert, "I have no opinion on whether the woman is being truthful in her allegations, because she could sincerely believe that these events occurred," wrote Milwaukee physician assistant Jeffrey G. Nicholson. "However, given her physical and mental condition at the time of the alleged incident, it is equally if not more likely that the alleged actions did not occur as she perceived them." Nicholson claimed that the woman's mental state at the time was "severely compromised," and "her perception simply cannot scientifically be believed or accepted as valid under the circumstances."

The prosecution expert stated, "This patient's clinical picture is not consistent with postictal psychosis and therefore cannot be attributed to hallucinations." He claimed that while the Valium may have contributed to drowsiness and loss of memory, it would not cause her to hallucinate.

Froeber chose not to take the stand in his own defense. His attorneys believed that the case was sufficiently weak enough to not warrant any risk under cross examination.

In the end, closing arguments would come down to exactly where it started, the word of one person against another. According to the district attorney, "This was a perfect storm for a sexual assault. The defendant was alone in the back of the squad with the victim." The defense summarized that, "A search of Mr. Froeber's cell phone revealed absolutely no pictures of (the woman). Mr. Froeber's DNA was not found anywhere on (the woman's) clothing or body. There were two male DNA profiles in (the woman's) underwear, but not Froeber's. When Mr. Froeber realized he was under police investigation, he didn't 'lawyer up.' He fully cooperated. He provided a voluntary statement to police. Also, he voluntarily gave them his DNA. There are so many things that give us reason for pause. You know what that pause is, ladies and gentlemen? It's reasonable doubt."

In a matter of minutes, the jury was about to put an end to everything that had gone on for over two years. It took the jury less than an hour to return to court with a verdict of not guilty. After more than two years it was finally over. Jodin Froeber had been found not guilty of a horrendous crime. But was it really over?

Getting his Life Back

While the district attorney simply closed the book on this case, chalked up a mark in the loss column and moved onto the next task, it's not nearly as simple for someone charged of a horrendous sex crime.

to begin with, criminal defense is not cheap. "Once my credit cards were maxed, I had to start borrowing money from family. It cost nearly $35,000 with attorneys, an expert witness, lab analysis and stuff," Froeber recalled. "I lost my house, lost my car, had to file bankruptcy," he said. "I will never live in that house again."

Many EMTs assume that if they do something that lands them in a court of law, that department insurance will kick in and finance a defense. While that is true for civil proceedings due to mistakes or malpractice, it is not the case for criminal charges. If an EMT is charged with stealing something from a patient or from their home, insurance will not cover them. The same goes for assault. "Criminal liability is never covered by insurance, says LaVoy. "You cannot insure against criminal law - there is no such insurance," he says. "That's why having witnesses are so important."

"His name has been splashed all over the news in a very condemning fashion," said a fellow EMT who asked not to be identified. "Even though he was found innocent of the charges, I don't believe that he will ever fully get his life back. Up until this incident, he was a valued member of the department with a sparkling clean record. He should have been afforded some discretion until it was ascertained that a crime had indeed been committed. I feel that he was seen as guilty by the public and will never be able to crawl out from under that moniker," said the EMT. Bucher agrees. "Where does he go to get his reputation back? You never shake this odor that hangs around you even if you've been acquitted," says Bucher.

Thankfully for Froeber, he has gotten his life back. In fact, he's essentially right where he was when everything started - a lieutenant on the Somers Fire Department. The State of Wisconsin reinstated his EMT-Intermediate license a week after the trial ended. He updated his status with medical control and his medical director and returned to providing patient care. "It felt good having the department on my side," said Froeber. "They have all welcomed me back."

He admits it has been difficult. "For the first couple months I would not transport by myself. I'm still leery of that," says Froeber. "The first time I was sent on a call to the camp, I was like, oh no, here we go again."

In many ways Froeber may be luckier than he realizes. Many marriages do not survive such an ordeal. Additionally, just as many EMS and fire organizations would opt on the side of caution and, legal or no, find a way to remove the accused EMT from service. According to Froeber, he has yet to have a patient recognize him or say anything. None have been fearful of receiving care from him-nor should they be.

What You Should Do

Clearly it's a different world today. Litigation, whether warranted or not, has increased. In large part it is civil litigation that has gone on the rise. Sadly, criminal litigation has also increased in recent years with people being charged for things considered common in years gone by. "I'm so paranoid that even after being in the DA's office for nearly 30 years, if an elevator comes with only one female in it, I won't take the elevator. Just that thought scares me," says Bucher, while acknowledging that thought process is going overboard. Still, he claims, anything could happen. "The doors can open and she can scream rape. How will I prove I didn't do anything?"

While admitting the elevator example may be going a bit too far, Bucher thinks that this is a case that should generate some conversation for body cams or ambulance cameras for EMTs. "I'm surprised that these cases have not come up more frequently," says Bucher. While the use of cameras in the back of the ambulance is a double-edge sword, multiple services throughout the country have implemented them. Law enforcement has been rapidly embracing and deploying body cams. Certainly if a patient care error is made, it's now caught on video. However, the case of Jodin Frober would have been open and shut.

While understanding the limitations on many services, both LaVoy and Bucher suggest always having a second person in the back of the ambulance. It's even more important when a sensitive situation arises or your gut is telling you that you need the protection. "In an opposite sex situation, bring a family member along. Anytime you can do anything reasonable to protect yourself, you've got to do it," says Bucher.

Froeber admits that he still transports patients, even females, by himself. "You sometimes can't avoid it," says Froeber. "I try my best to have someone with me, but that's not always possible."

When it comes to police questioning, both Bucher and LaVoy again agree. EMS very often interfaces with law enforcement. It's common for police officers to question EMTs as to what they saw, what the patient may have said, what occurred prior to their arrival. It's not practical to never talk to police without an attorney - advice often given to the general public. "If accused, an EMT should always cooperate with an investigation," says LaVoy, "If you feel you may be a target or if you think you are a suspect rather than a witness, it's best to have an attorney present," LaVoy says. "You can always give a statement later," he says. Bucher agrees, saying once it becomes clear that you are being investigated it's a good idea to say, "Let's set this up for tomorrow after I can speak to my attorney." "EMTs may have the impression they need to speak now. That is not the case. You can still cooperate, but [do it] with legal counsel," says Bucher. "Take a step back, be polite and say you want to consult with your chief, union, others or an attorney. Nothing says you can't give a statement in a few days," says Bucher.

Epilogue

Thankfully, in this case, the system worked and reasonable doubt prevailed. It's also thankful that cases like this one continue to be rare. Even with the high price he paid, and even if it will be something that follows him for the rest of his life, Froeber has fared better than most. As many have been heard to say, "The legal system is often a crap shoot."

"I've come to understand the power of the government now that I'm on the other side," says Bucher. "The power of the government is awesome," he says. "I'm just shocked that it went this far. I usually don't second guess other prosecutors, but in this case...."


Don Hunjadi is a former EMT-Intermediate who has been involved in EMS since 1986. He served for five years on the Wisconsin EMS Advisory Board and was the executive director of the Wisconsin EMS Association from 1992 through 2009. He is currently a free-lance author, graphic designer and media specialist for the company he has owned since 1982, HG Studio.

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