Jonathan Ellis

jonellis@argusleader.com

MADISON – Authorities must enable the pass code protection on a cellphone they seized from a murder suspect before they can attempt to search the contents of that phone, a circuit court judge ruled Thursday.

The phone in question was seized from Joseph Schmitz, who is charged in the April 27 murder of his fiancée, Corina Booth, at the Lake Madison home they rented. Schmitz, who pleaded not guilty, says he shot Booth in self-defense.

During questioning in the hours after the shooting, Schmitz asserted his constitutional right to a lawyer. But after doing so, an agent with the state’s Division of Criminal Investigation forced Schmitz to reveal a password for his primary cellphone.

In December, Judge Patrick Pardy ruled that authorities illegally obtained the password by violating Schmitz’s Fifth Amendment rights. Pardy ruled that the contents from the phone could be used by prosecutors, but only if they prove that they could retrieve the contents by hacking the phone.

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Following Pardy’s ruling, the phone was turned over to an agent who was supposed to evaluate it for hacking. The phone was powered on in the presence of an expert witness for the defense, and the pass code protection was no longer functioning, Lake County State’s Attorney Manny de Castro said.

Authorities, after obtaining the password from Schmitz in April, had disabled the pass code protection.

“There was no password for us to hack into,” de Castro told Pardy on Thursday.

After learning that the pass code had been disabled, de Castro instructed agents not to make any searches on the device, he told Pardy. He suggested that the pass code protection be enabled and that authorities then attempt to hack the phone as they planned to after the December ruling.

Pardy agreed, saying the phone had been legally seized but that the pass code illegally obtained.

Pardy also agreed to allow the defense to hire a firearms expert following a closed-door meeting with Schmitz’s defense attorneys. Prior to the meeting, Pardy was skeptical about the need for the expert and the expert’s price tag of $19,000. De Castro also objected.

“I don’t think there’s any issue with the mechanics of the gun,” he said. “It seemed to work fine when he shot her three times.”

Following the closed door meeting with Pardy – which was done so Schmitz’s lawyers wouldn’t have to disclose portions of their defense strategy – Pardy ruled that the expert could be hired, although he reduced the expert’s fee by $4,000.

“If that’s not acceptable to him, he’ll have to let the court know,” Pardy said.