Garrett Neese/Daily Mining Gazette Jacob Kempainen, seated with his attorney David Gemignani, and Houghton County Prosecutor Dan Helmer listen to Houghton County Circuit Court Judge Brittany Bulleit during a hearing on defense motions Monday. Kempainen is slated to stand trial with his mother Margaret for the December 2023 death of his grandfather, Alvin Kempainen.

HOUGHTON — A Houghton County Circuit Court judge Monday denied a defense motion requesting the counseling record of the juvenile sister of the Wisconsin man alleged to have fatally shot his grandfather in his Hancock Township home in December.

Jacob Kempainen, 21, was arrested in Clear Lake, Iowa, on Dec. 19, along with his mother Margaret Kempainen, 51. The day before, police found his grandfather, Alvin Kempainen, 86, dead of a gunshot wound at his home.

The defense also requested access to the counseling record of Jacob’s juvenile sister, referred to as KK during June’s preliminary hearing. She had also been with Margaret and Jacob when they were apprehended in Iowa.

In the motion, the defense said the records would help understand the case from her perspective. At June’s hearing, KK had testified she had undergone coercion and brainwashing from Margaret. Police said Margaret’s focus on Alvin had come through a paranormal story they likened to the M. Night Shyamalan film “The Visit.”

About two years before the shooting, KK testified, her mother had begun telling her she was a “necromancer” who could communicate with spirits and control the souls of the dead.

The defense said it was especially interested in understanding the case in relation to KK giving the command to Jacob to kill his grandfather, which she testified she had done under the guise of a necromancer.

The counseling records are protected by privilege. Gemignani sought to have the trial court conduct an in camera inspection of the records, which could be made available to the defense if the court finds there is material information necessary to their case.

He pointed to state law directing the court to conduct the inspection if the defendant demonstrates a “good-faith belief, grounded in articulable fact, that there is a reasonable probability” the records would contain material information.

“Her state of mind at that time is relevant to our defense here, because of her influencing our client, and I think that there’s no other way that we can get these records to see what statements she’s made in counseling with regards to what she testified to, what her state of mind was,” he said.

Prosecutor Dan Helmer said he doubted the records would shed any more light that what had been provided through her preliminary examination and statements to the police. He cited a 2016 state appeals case in which they found a defendant’s argument for an in camera review was tied to a “generalized assertion that the record might contain useful evidence.”

“I don’t see what we gain by piercing that veil and going around the privilege she has with her counselor … realistically, counseling that started after the event,” he said. “I don’t think the defense has presented this court with anything more than a fishing expedition.”

Judge Brittany Bulleit cited the same case law against “fishing expeditions,” and referred to the lack of specific statements on the record about what KK had discussed in therapy. KK being a minor is also important, she said.

The request to better understand KK’s perspective drew on “the nature of topics discussed in counseling,” Bulleit said.

“Those are very broad concepts,” she said. “And Mr. Gemignani, you yourself acknowledge it’s a fishing expedition. It’s not allowed under the case law.”

The defense also withdrew a second motion, which asked to exclude statements made during Kempainen’s police interrogation he alleged were obtained in violation of his Miranda rights.

The withdrawal came after Helmer said he did not intend to introduce statements made by Jacob Kempainen that had already been suppressed at the district court level.

Both Kempainens are charged with homicide-open murder and a related conspiracy charge. Jacob Kempainen faces an additional count of felony firearms.

Their joint trial is on the court’s January docket.