State Supreme Court orders retrials
Expert witness testimony 'prejudicial'
By Bobbi Mlynar (Contact)
Monday, August 25, 2008
Kansas Supreme Court judges by the narrowest margin on Friday ordered new trials for two people convicted of stealing from a disabled Emporia woman and beating her to death.
Marcy Faith Carapezza and Jason Cole Hughes — along with Mollie Paico — had been convicted in Lyon County District Court on multiple felony charges in July 2005 for the May 2004 beating death of Emporian Mary Clark, 63.
A fourth person charged in the case, Gail Bennett, was found not guilty.
The basis for the retrial, ordered on a 4-3 vote by the Kansas Supreme Court, was that expert testimony from a prosecution witness was prejudicial against the defendants. The dissenting judges -- Hon. Marla J. Luckert, who wrote the dissenting opinion, and Hons. C.J. McFarland and Lawton R. Nuss — disagreed that the admission of the expert's testimony required reversal of the convictions.
"Obviously, we are incredulous that they reversed it on expert witness testimony that we believe assisted the jury in understanding the case," said Lyon County Attorney Marc Goodman, who prosecuted the case. "But we wait for the mandate and we take them back to trial."
Carapezza was sentenced to serve life in prison for the murder, 83 months for aggravated robbery, 34 months for aggravated burglary, and 12 months for misdemeanor theft.
Hughes appealed his convictions for felony murder and aggravated burglary.
Paico, who initially was charged with murder in Clark’s death, testified against Carapezza and Hughes in exchange for having the murder charge reduced to three counts of aiding a felon and one count of forgery. Paico was sentenced to 60 months in prison on Jan. 12, 2005. Her earliest release date is Jan. 7, 2009.
Goodman said that the nuances of the decision involved legal theories that are difficult to explain.
"II can't get it into layman's terms for you, outside of saying that our expert witness was too prejudicial to the defendant," Goodman said. "... What they're saying is that my expert, what he testified to, makes it look like they have a propensity to commit crimes."
Goodman said the retrials ordered on those grounds had surprised him.
"We briefed it, we were prepared for it, but that's not where we thought it would come from," he said. "The dissent noted that there was more than sufficient evidence to sustain a conviction."
Carapezza and Hughes were convicted by jurors in the courtoom of Chief Judge Merlin Wheeler.
A full story on the retrials will be published Tuesday in The Gazette.
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Posted by birch (anonymous) on August 25, 2008 at 5:17 p.m. (Suggest removal)
BS! I am sorry...but, those Judges are Stupid! It is sad we have to put up with this kind of Crap. I want to know who appointed those Clown Judges! Hopefully, we don't elect such jerks!
Posted by create (anonymous) on August 25, 2008 at 5:51 p.m. (Suggest removal)
I'm with you, birch. And yup, we do elect them, but they are appointed by the governor in the beginning.
"The governor appoints from a list of three qualified individuals submitted by the Supreme Court Nominating Commission. After the first year in office, a justice is subject to a retention vote in the next general election. If a majority of electors votes to retain the justice, he or she remains in office for a term of six years. Justices are subject to a similar retention vote at the conclusion of each term."
This is going to cost us another trial, and I recall that one was long-running.
Posted by slipandslide (anonymous) on August 25, 2008 at 7:32 p.m. (Suggest removal)
i feel so sorry for the family having to go through another trial
Posted by jayhawker (anonymous) on August 25, 2008 at 10:35 p.m. (Suggest removal)
Oh, what a tangled web we weave. Prosecutors by necessity must go to extreme lengths to convince juries (too many of whom watch CSI and confuse it with the real world), but Judges have the luxury of Ivory Towers, untouched by the real world. Between confused jurors and life appointed judges, the real world stands not a chance in the disposition of these serious cases, replaced by a fantasy world where fiction becomes reality. Someone once said that the purpose in a trial is for the jury to decide who has the best lawyer. Consequently, prosecutors need to carefully watch the line and trial court judges must oversee the proceedings in order to avoid these very situations. I don't know if this is the same trial judge or not (we have, what, 8 or 9 of them?), but we have borne the expense of several retrials (I think of other murders) recently. It seems that many decisions emanating from our courthouse have been incompetently made. The one thing about all of this that is for sure - we won't have sales tax revenue to pay for these two new trials.
Posted by emporialifer (anonymous) on August 26, 2008 at 9:01 a.m. (Suggest removal)
I understand the need for everyone to get a fair trial, but seriously we have created a monster with our Judicial System in which it seems darn near impossible to convict someone even if they confess (if all the rules aren't followed to a T with the confession it is thrown out). When did common sense go by the wayside? Retrials based on little things are a waste of time and taxpayer money. Now if new evidence surfaced that proved otherwise then I think a retrial is necessary. We are way too quick to forget the Victim(s) in these cases.
Posted by digitaltwister (anonymous) on August 26, 2008 at 11:02 a.m. (Suggest removal)
Needless to say when we found this out we were shocked, not by the retrial, but the reasons that are cited for the action.
This has set a precedent, not only for the state of Kansas, but for the rest of the the US. This literally means that anyone in any state can cite this decision and have expert witness testimony barred from a trial because it may be "prejudicial".
We went through this 4 years ago and now it starts again.
Maybe the KS Supreme Court doesn't realize how difficult it is to put ones life back together after something like this happens.
Oh, well, round 2. As was stated by the dissenting judges though, "The dissent noted that there was more than sufficient evidence to sustain a conviction."
We shall see.
Thanks to all that have supported us over these years.
DigitalTwister
Posted by digitaltwister (anonymous) on August 26, 2008 at 11:31 a.m. (Suggest removal)
I wrote my last comment after speaking with a few people that could inform us of the "schedule" of the forthcoming proccedings.
Emporialife, you hit the nail on the head, "We are way too quick to forget the Victim(s) in these cases." Not only Mary, but the entire family of Mary. WE must live on and protect those in our family that need protecting. It is difficult, to have to face the "monster" again.
Jayhawker:
"It seems that many decisions emanating from our courthouse have been incompetently made." The prosecution and the judges instructions, were the best that could be made under the prevailing law at the time. Now, with this recent decision by the KS Supreme Court, the rules have changed.
May I remind everyone that there have been a few decisions that have gone to the US Supreme Court and are now law of the land.
1. The Block License for contractors. This started in Emporia maybe 25 years ago. I knew the parties involved and this did go to the Supreme Court. A decision was handed down and now it is accepted throughout the US as a defacto standard.
2. Remember the firefighters being on call without pay? That also went to the US Supreme Court and was found in favor of the firefighters. What is it? If you are on call and have to stay by your phone, you get 50% of your pay? Something like that.
The point is that some decisions that effect everyone in the US originated in Emporia KS. This could be a test case that definitively defines the use of expert witnesses in trials. Eliminating the need for retrial and taxpayer expense.
My personal feelings at this point are, "Don't shoot the messenger or the piano player." They did their job to the best of their ability with the rules that were prevelant at the time.
Take a deep breath, as we are now. Don't let yourself have a knee jerk reaction. Look at the overall picture and hopefully, when all is said and done, we will see a positive outcome for the justice system.
DigitalTwister
Posted by Happiness08 (anonymous) on August 26, 2008 at 11:36 a.m. (Suggest removal)
Maybe there is some "Liberty and Justice for all" even if it isn't in Lyon County. How can anybody sit there and say they got a fair trial or a fair sentencing when Molly Paico admitted that she had "hit her in the head with a hammer a few times" and even lied about who was there. The County Attorney's reliable witness happened to be another inmate in jail with Marcy Carapezza. I personally knew a member of the jury at the time that told me that "if she would have just kept her mouth shut there was no evidence to even prove she was there" Watch out Emporia community. Molly Pacio gets out next year because she testified against the other two. Who knows.....you may be the next one she hits in the head with a hammer.
Posted by Happiness08 (anonymous) on August 26, 2008 at 11:55 a.m. (Suggest removal)
Marc Goodman could you explain to me in "Layman Terms" why Molly Pacio admitted she killed somebody and got 60 months for "aiding a felon" ? Seems to me she way the felon. Most of us understand that. Even in layman terms.
Posted by dhcc66 (anonymous) on August 26, 2008 at 3:08 p.m. (Suggest removal)
what is really terrible is that the criminals have so many more rights than the victims or the families....
now, you have to ask yourself...which attorney took it all the way to the supreme court? and how do they live with themselves....knowing in the backs of their minds that the two are guilty?
what stinks even more is that the ones who are getting the bad guys back out into public are paid far more than the ones trying to keep us safe.
Posted by emporialifer (anonymous) on August 26, 2008 at 5:11 p.m. (Suggest removal)
Excellent point dhcc. Our system is extremely backwards.
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