From far right, Jonas Bednarek and Andrew Erlandson, representing Ellen Tran, listen as D. Michael Guerin, attorney for Dr. Trung Tran, argue a point before Oneida County Circuit Judge Patrick OíMelia Wednesday, April 17, 2019.
4/20/2019 7:30:00 AM Judge denies doctor's request for return of bail money in toddler death case
Jamie Taylor and Heather Schaefer of the River News
The former Rhinelander physician whose former wife was convicted last fall of causing the death of his toddler son learned Wednesday the $50,000 he paid to bail his then-spouse out of jail when she was first charged with reckless homicide will not be returned to him.
Dr. Trung T. Tran argued in court documents that he is entitled to the bail money ($50,000 minus funds awarded to the boy's mother, Lori Edwards, as restitution) he paid for Ellen Tran in 2017 because there was no valid assignment of bail in the case.
Ironically, the hearing on Tran's motion for return of the money was held just days after the second anniversary of his son's death.
According to court records, Avery James Edwards, 20 months, became unresponsive April 14, 2017 while staying with his father and stepmother in Newbold for a court-ordered visitation. He died several hours later at a hospital in Marshfield.
Ellen Tran was convicted of first-degree reckless homicide on Oct. 25, 2018, following a four-day trial in which the state argued she caused the boy to suffer fatal brain trauma.
Judge Patrick O'Melia later sentenced her to 15 years initial confinement followed by seven years extended supervision.
On Jan. 31, Dr. Tran filed a motion requesting the $50,000 be returned to him.
An attorney for Tran's former wife immediately objected to the doctor's motion, arguing the funds were properly transferred to his firm's trust account as payment for services rendered as agreed upon when the firm took on Mrs. Tran as a client in July 2017.
According to court records, the dispute over the bail money is tied to a drafting error.
According to a brief filed by Ellen Tran's attorney Jonas Bednarek, both Trans signed an agreement in July 2017 that included the following: "Trung Tran agrees to sign an Assignment of Bail assigning the monies posted as bail on case number 2017 CF 102 in the amount of $50,000 to Hurley, Burish & Stanton, S.C. Should the bail money not be returnable to Hurley, Burish & Stanton, S.C. , at the conclusion of the representation, Trung Tran agrees to be personally responsible for this amount."
An irrevocable assignment of bail bond was drafted, and both Dr. and Ms. Tran signed it on August 16, 2017, the brief continues, however, due to an error in drafting, the assignment reads "2017 CF166," instead of "2017 CF 102," and it was filed in the second case instead of the first one.
Oneida County Case 2017CF166 was a bail jumping case filed against Ellen Tran after she allegedly had unauthorized contact with her young daughter at the 2017 Rhinelander Fourth of July Parade.
That charge was dismissed after Tran was convicted of reckless homicide in 2017CF102.
On Wednesday, Dr. Tran's attorney D. Michael Guerin reiterated the argument made in the original motion that the mislabeling of the paperwork made the paperwork invalid and the money should revert back to Dr. Tran since he posted it.
"This matter should be judged based on the facts, at least that is my position," Guerin said.
Bednarek wasn't sure if he was going to be called as a witness at the hearing, so his law firm's interests were represented by Andrew Erlandson, another attorney with Hurley Burish, S.C.
Erlandson said state statutes are clear in such matters, that the bond must be dispersed according to the assignment, since steps were taken before the trial to correct the matter. He also argued that Dr. Tran's October 2017 letter to the firm stating he would no longer be responsible for Ellen's legal defense going forward did not break the agreement he already signed.
O'Melia asked Guerin if he would have filed a motion for return of the bail money if the case number had been correct on the irrevocable assignment of bail bond. Guerin answered in the affirmative.
"Irrevocable assignment of bail bond, what does that mean?" O'Melia said. "Irrevocable, that means it can't be revoked."
Guerin agreed to the definition of irrevocable but reiterated that Dr. Tran made it clear in his October 2017 letter that he wanted nothing more to do with Ellen's legal expenses. O'Melia then asked Guerin if it was just the divorce that made Dr. Tran want to seek return of the bond.
"His wife was tape recording all of their personal conversations and sending them to Mr. Bednarek by email," he told the judge. "The strategy was they were going to blame him for the underlying crime."
Erlandson argued that state statutes are clear that bond is to be returned to the person who posted it or their heirs, unless there is an assignment in place.
"In this case, there was an assignment," Erlandson said, noting that the assignment form bearing the wrong case number was overlooked by everyone involved.
"Mr. Tran made the same mistake as everyone else," he said.
O'Melia sided with Ellen Tran's attorney and reiterated his belief that the paperwork error was the only reason the motion was before him.
"As it stands right now, it's pretty straightforward," O'Melia said, adding mis-numbering errors are pretty common and attempts were made to correct it.
The judge further ruled that although Dr. Tran stated he would no longer pay for his ex-wife's legal fees and costs that did not release him from the irrevocable assignment of bail bond he had signed earlier.
Dr. Tran faces two felony charges as a result of his son's death: child abuse (fail/prevent bodily harm and neglecting a child (consequence is death).
He is due in court for a motion hearing June 7 and the case is set for a five-day jury trial before Judge Michael Bloom starting Sept. 9, with jury selection on Sept. 6. If convicted, he faces a maximum prison sentence of 31 years.
Ellen Tran has filed a notice that she intends to appeal her case but has yet to file a brief.
Jamie Taylor may be reached via email at firstname.lastname@example.org.
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