Judge: Prosecutors can discuss past injury at La Salle murder trial

A La Salle man accused of smothering his infant son was dealt a setback Friday when his trial judge ruled that prosecutors can introduce evidence of a past injury to the baby.

Kenneth Herbst, 25, appeared Friday for a motion hearing on whether prosecutors can introduce evidence of past crimes at Herbst’s upcoming trial for first-degree murder. Herbst faces 20 to 60 years if convicted of suffocating his son with a pillow in early 2019.

Ordinarily, the state cannot use evidence of past crimes as proof of guilt. Prosecutors cannot, for example, convict a bank robber by showing that he’d robbed a bank before. There are exceptions to that rule, however, and past acts can be admitted to show motive or a pattern of abuse.

In this case, the baby’s autopsy showed a rib fracture that was healing and therefore not sustained when Herbst allegedly used the pillow. Public Defender Tim Cappellini wants the rib injury withheld from jurors, believing the state’s request to introduce it is “misplaced and misguided.”

“They’re saying, ‘It happened once, it could happen again,’ ” Cappellini said, “and that’s just not proper.”

Chief Deputy La Salle County State’s Attorney Greg Sticka said Herbst, in his statement to police, admitted to “grabbing the child forcefully” and that this was the only plausible explanation for the rib injury.

“There’s no other history that would account for this injury,” Sticka said, arguing that the rib injury fits squarely into the exceptions to mentioning other crimes.

Chief Judge H. Chris Ryan Jr. agreed and said the state can disclose the rib injury for jurors. That isn’t quite the end of it, however. Ryan said he and the lawyers would have to devise an instruction for how the jurors are to weigh and consider the rib injury when the trial nears conclusion.

The trial has not been rescheduled. Ryan proposed conducting jury selection in mid-May, but attorneys said that date hinges on the availability of witnesses. A status hearing will be March 5, at which time Ryan may issue a new trial setting.