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Judge denies dismissal of felony murder charge in Appleton bar shooting case

Henry Nellum (Photo courtesy Outagamie Co. Jail)

APPLETON (WLUK) -- A judge has denied Henry Nellum’s challenge of the felony murder charge filed against him in the Jack’s Apple Pub shooting case, but has also put the case on hold to allow him to appeal the decision.

Nellum faces multiple charges, including attempted homicide, for allegedly firing shots at another man during a fight at the bar. An Aug. 17 trial has been scheduled.

During the police response to the incident, Appleton Police Lt. Jay Steinke ran into the bar and fired at Nellum, but instead struck and killed Jimmy Sanders -- who was not involved in the fight. Steinke was cleared of any wrong-doing.

Nellum, however, was charged with felony murder for Sanders’ death. Under Wisconsin law, because Nellum allegedly initiated the sequence of events which led to Sanders’ death, Nellum can be charged with Sanders’ death -- even though he was not directly responsible for it.

Outagamie County Judge Nancy Krueger denied a defense motions in February to dismiss the felony murder charge. In a decision filed Monday, she reiterated the decision to deny the motion, but also ordered “that all proceedings in the case are stayed pending appeal.”

Nellum’s attorney, Paul Ksicinski, says he hopes to file an appeal by the end of the week. He did not comment on the judge's decision to deny his motion.

For a FOX 11 Investigates story last fall, Ksincinski argued the statute is unfair because it aims to punish someone for something they didn’t intend to happen.

"You have to have an action and you have to have thought and there's multitude of Supreme Court decisions that say the same thing. Without both, you shouldn't be convicted. It's just basically unfair," Ksicinski said then.

FOX 11’s request Tuesday for a comment from the Outagamie County District Attorney’s office also was not immediately returned. Former District Attorney Carrie Schneider defended the charge after one of Nellum’s court appearances last summer, saying the law was applied correctly with the charge.

As of Tuesday afternoon, court records do not show that any appeal had been filed yet with the appeals court. It usually takes several months for the court to decide an issue, possibly putting the Aug. 17 trial date in jeopardy.

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