Objections to Appointment of Deters Denied; Niemerg Trial Can Move Ahead

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Published on January 25 2013 3:23 pm
Last Updated on July 14 2013 4:07 pm
Written by Greg Sapp

Judge Kimberly Koester Friday denied defense objections to the appointment of Ed Deters as special assistant state's attorney, clearing the way for him to prosecute the case of Kelci Niemerg.

The 25-year-old Niemerg is charged with aggravated battery of a child.  She is accused of using excessive force when placing a nine-month-old boy in her care in a playpen at her home in May 2011, resulting in injuries to the child.

Deters was prosecuting the case when he left office as state's attorney in December, so new State's Attorney Bryan Kibler sought Deters' service as a special assistant state's attorney to prosecute the case.  Kibler has contended Deters is familiar with the case so his handling it will make for a more efficient prosecution of the matter.

Defense attorney Bill Milner said his main objection is that state statute does not provide for a special assistant state's attorney.  Milner said Kibler has the right to hire whoever he wants, but said he feared problems if a guilty verdict is obtained and the case is appealed.  He said, "I don't want to try this case twice."

While denying Milner's objection, Judge Koester agreed that it was "unfortunate" that the term Special Assistant State's Attorney has been used and suggested that Deters re-file his oath to serve as an assistant state's attorney without the word "special" included.

Milner also alleged potential problems for Deters since he'll be working as a defense attorney while prosecuting the Niemerg case.  Judge Koester said, "The conflicts that may arise in Mr. Deters' cases must be handled by Mr. Deters."

Meanwhile, the prosecution of the case can move ahead.  Judge Koester said the case will go to trial the week of April 8th in Clinton County.  She had ruled last summer to move the trial out of Effingham County due to pre-trial publicity.

A final pre-trial hearing is set for 9am on March 18 with all motions due to be on file by February 15.