A Wisconsin judge has rejected a plea agreement negotiated by prosecutors in the case of an ex-prison guard charged with attacking a gay woman, calling her an anti-LGBTQ slur, pushing her into a fire and attempting to strangle her.

Brown County Circuit Court Judge Kendall Kelley dismissed the plea agreement on Tuesday, meaning that the accused, Shane Nolan, formerly a guard at Green Bay Correctional Institute, will go to trial on charges of felony battery and misdemeanor disorderly conduct — as well as with additional hate crime penalties — for allegedly attacking 31-year-old Dessiray Koss last summer during a group gathering at her house after a night of drinking.

The plea agreement was negotiated by Brown County District Attorney David Lasee, who agreed to drop the hate crime penalties and reduce felony charges to misdemeanors, potentially opening up the possibility that Nolan, 31, would avoid jail time if convicted, according to the Green Bay Press Gazette.

But that left some people in the community incensed by the plea agreement, including Koss, who wrote, in response to a Facebook comment from a friend, that the deal was “unacceptable” and urged people to contact Lasee’s office and share their thoughts.

In court, Lasee said that while he appreciated Koss’ victim impact statement and the trauma she experienced, the case involved “unusual components,” implying that might make it harder to secure a conviction at trial rather than a plea deal. For instance, he noted that nobody called 911 to the scene of the crime, that Koss’s sister, a key eyewitness, was not at HSHS St. Mary’s Hospital when law enforcement officers first took up the case, and that Nolan was also suffering from injuries from the scuffle with Koss.

Lasee also said that while he had “no reason” to doubt Koss’s account of the altercation, Nolan has no prior criminal record, and said the reason the charges were reduced to misdemeanors had to do with balance and consistency with “what we typically do.”

He also noted that the hate crime enhancements — which could add up to 10 years of additional prison time and thousands of dollars in fines to Nolan’s sentence if he were to be convicted — might be especially hard to make stick, given that Nolan and Koss were with others around a fire pit for an entire half-hour before the incident, and Nolan had made no prior statements suggesting he had a problem with Koss’s sexual orientation.

“I don’t know that we’d be able to prove beyond a reasonable doubt that the crime was motivated by her sexual orientation, as opposed to motivated by drunken, stupid, inappropriate behavior on the part of the defendant,” Lasee said in court on Tuesday.

Clarence Duchac, Nolan’s defense attorney, had argued in favor of a plea deal, saying that although the facts of the case aren’t “necessarily clear,” his client has accepted responsibility for his actions.

“I ask the court to adopt it so he can move forward with his life. The victim can move forward with her life. And he’ll receive the penalty that he’s going to receive,” Duchac said.

Before dismissing the amended charges, Kelley explained that the court is not involved with the intricacies of plea negotiations, but makes a larger ruling on the overall merits of the plea agreement. He noted that going to trial could make matters harder for Koss, which is why prosecutors sometimes agree to plea deals because they result in a conviction that avoids re-traumatizing a victim during a trial.

But Nick Ross, an anti-violence advocate with the LGBTQ organization Diverse & Resilient, which spoke on behalf of Koss at the plea hearing, noting that Koss wants to go to trial and didn’t consent to the plea agreement negotiated by Lasee. Ross also asserted that pursuing the hate crime enhancements would send a message that violence against a protected group of people is unacceptable.

“We definitely believe this would go against the great public interest because this extreme form of violence would present safety concerns to the public, especially the LGBTQ community,” Ross said. “We feel that accepting the plea agreement deteriorates the seriousness of the offense, and also promotes disrespect for the law — specifically hate crime laws.”

After Kelley dismissed the plea deal, a woman in the audience, claiming to be Nolan’s sister, called the proceedings “ridiculous,” stated she was a member of the LGBTQ community, and was escorted out of the court.

Nolan is next expected to appear in court on Feb. 13 for a pre-trial hearing, with his trial running from Feb. 15-17. He is currently released on bond.

According to police reports and witness accounts, Nolan first met Koss in the early morning hours of July 3, 2021, at her home in Green Bay, after he and another man had met her sister and sister’s friend out while bar-hopping. Koss invited everyone to join her around the fire pit and offered everyone a beer. At some point, everyone except Nolan and Koss went inside to use the bathroom.

Koss told police she offered Nolan another beer, which he accepted. But she claimed he then, unprompted, stood up, called her a homophobic slur, grabbed her by the torso from her chair and threw her into the lighted fire pit, according to charging documents.

After Koss crawled out of the fire, she began fighting back against Nolan, drawing the attention of the other attendees. Koss’ sister intervened, pushing Nolan to the ground and punching him to subdue him. But Nolan allegedly pushed Koss’s sister aside and lunged for Koss’s throat, choking her while the two of them struggled.

An unidentified neighbor helped intervene and break up the altercation, kicking Nolan off the property and taking Koss to the hospital for treatment. She suffered first-, second-, and third-degree burns — some of which required plastic surgery — from being thrown into the fire pit. 

Police who responded to HSHS St. Mary’s Hospital Medical Center on July 3 photographed Koss’s injuries, noting that she was in a “considerable amount of pain.” After taking statements from Koss and other witnesses, police identified Nolan as a suspect who matched the description of an employee with the Green Bay Correctional Institute.

Nolan reportedly hadn’t shown up for his shift on the morning of July 4, according to police reports. Officers attempted to reach him by phone and at his home. Koss identified Nolan through a photo lineup, and Nolan turned himself in to the Green Bay Police Department when he learned officers were looking for him.

At the police station, Nolan claimed he had drank too much, blacked out, and woke up to being physically assaulted by Koss, according to the Press Gazette. He also denied calling Koss any type of slur, saying it’s not in his character to use such language. Following his arrest, he was placed on unpaid leave and was ultimately terminated from his job at Green Bay Correctional Institute on Nov. 18.