Reduced prison term for man who said years of father’s abuse drove him to murder
A prison sentence far below state guidelines was given to a New Prague man who killed his father after he told a judge that years of physical and emotional abuse upon him and his mother prompted him to end the torment with a single gunshot.
Austin J. Herbst, 27, of New Prague, was sentenced by Scott County District Judge Carrie Lennon to a 12½-year term in connection with the death of 57-year-old Gary A. Herbst, whose bullet-punctured skull was sniffed out by a dog in December 2017 south of Barron, Wis., and brought back to its owner's home.
Sentencing guidelines called for a term ranging from 21¾ to 30½ years. Prosecutors argued for the maximum, which would have kept Herbst locked up for about 20 years.
Instead, with credit for time in jail since his arrest in November, Herbst will serve about 7¾ years in prison and the balance on supervised release after pleading guilty to second-degree intentional murder.
"To this day, I believe he was going to kill her that night," Austin Herbst is quoted in a presentence defense argument filed one day before the judge chose Friday to depart from state guidelines. "If I would have stood aside, my mom would be dead. I knew what I did, and why I did it, and to this day I am confident that my decisions were justified."
Gary Herbst was killed in the family's home in Elko New Market by Austin Herbst on July 6, 2013. The body remained in the home until mid-August of that year, when the mother and son hauled it out after dark and dumped it in the woods near Barron, Wis.
Herbst's mother, 63-year-old Connie L. Herbst, remains jailed charged with aiding and abetting second-degree murder and is due back in court before Judge Colleen King on July 14.
The son went on to explain in the defense filing that he took his father's handgun from under the couch where he slept and shot him in the back of the head in order to free his mother "from a prison, and I put her back in one. ... I am really hoping she gets a reduced sentence. It wasn't her fault. She was just trying to protect me, and I was trying to protect her."
The defense argument revealed many accusations spanning years of Gary Herbst being a "cruel, dangerous bully to his wife and son."
Gary Herbst threatened many times to kill his wife over their 30 years of marriage. Also, the son alleged, his mother wasn't allowed to have any friends nor allowed to speak with family.
"He didn't even allow her to go to her mother's funeral," Austin Herbst told the court. If the two of them went anyway, the son continued, his father threatened to "call the cops on my mom for kidnapping [and] would plant drugs on her."
Austin Herbst said his father often hit his mother, recalling, "My mother always had bruises that I noticed as a kid."
He said his father directed physical abuse at him as well, once "he was angry at me for interrupting and put a cigarette out on me" at age 6 or 7. A couple of years later, Austin Herbst disclosed to the court, "I bothered him by going into the basement, and he grabbed me by the neck and he threw me up the stairs resulting in an injured back."
Pushing for the maximum sentence under state guidelines, the prosecution wrote in its argument with the court that Austin Herbst "executed his father [and] then threw away his father like yesterday's trash."
Prosecutors also noted how Gary Herbst was sleeping in his own house and helpless when he was shot by his son, who had other and less deadly options to prevent his mother from being harmed that day. They said he could have taken the gun while his father slept and hidden it or he could have gone to his mother, who was at the local library and the time, and warned her.
"Instead, [the] defendant simply made the choice to kill his father because [he] had the opportunity," the prosecution argued. "The pistol was there and loaded. ... He chose to murder his father as a matter of convenience to eliminate what he saw as a problem."
Following the discovery of Gary Herbst's skull in late 2017, the rest of the skeletal remains were soon located by Barron County sheriff's deputies. It took another 2½ years before authorities identified the remains, thanks in large part to the DNA Doe Project, a volunteer organization based in California that helps law enforcement solve especially challenging "Jane and John Doe" mysteries around the country.
About a week after authorities announced the identity of the remains in late June 2020, former neighbors told police they saw the Herbst pickup backed up on the grass behind the home after dark in mid-August 2013. One of the neighbors said they saw Connie and Austin Herbst load into the pickup something that looked like rolled-up carpeting.
Police interviewed Austin Herbst on July 28, 2020, and learned that he and his mother had gone camping in northwestern Wisconsin on the weekend following the last known whereabouts of his father.
Paul Walsh • 612-673-4482
