Appeal will be filed in Clark murder
Wheeler hears motions Thursday
By Bobbi Mlynar
Thursday, February 5, 2009
An interlocutory appeal is expected to be filed Friday in the cases of Marcy Carapezza and Jason Hughes, and a bond hearing for each defendant has been set for 11 a.m. Tuesday in Lyon County District Court.
During a court hearing Thursday afternoon, special prosecutor Rod Symmonds notified Chief Judge Merlin Wheeler that he would appeal Wheeler's decision that much of the evidence and testimony was tainted in the July 2005 trials of the pair.
Symmonds was hired as special prosecutor because Lyon County Attorney Marc Goodman needed to testify at the hearings just completed.
Hughes and Carapezza were convicted of murdering Emporian Mary Clark, 63, in May 2004. Each also was convicted of several other charges including taking money from Clark.
Another woman, Mollie Jeneen Paico, agreed to cooperate with the prosecution in exchange for pleading guilty to lesser charges. She was sentenced to 60 months in prison and could be released as early as Sept. 26 this year.
Information gained from Paico became a part of the hearing into whether testimony was tainted.
The Kansas Supreme Court, on a 4-3 vote, had ordered new trials for Carapezza and Hughes because testimony given by an expert witness prejudiced the jury against them. The expert testified about the tendency for drug abusers to commit crimes; Paico and Carapezza reportedly used crack cocaine and needed money to be able to buy more drugs.
In the court's opinion, the justices also said that care would need to be taken regarding potentially tainted evidence. A Kastigar hearing was begun in December and ended with Wheeler's ruling on Jan. 28.
The Kastigar decision by the U.S. Supreme Court in 1972 mandates that when a witness is compelled to testify and is granted use or derivative-use immunity, the state must establish that any evidence presented comes from an independent source, and that the evidence involved in the immunity grant is not use in any way during the prossecution.
Wheeler said Thursday afternoon that the state's previous trial counsel "absolutely failed" to prevent a Kastigar-type situation.
"The ramifications of having that information available to them in fact allowed the state to shape its entire case," Wheeler said later in the hearing.
On a motion made by the defenses, Wheeler ruled that a witness who previously had been on a list of witnesses for the re-trial had been overlooked and would be transferred to a lengthy slate of witnesses who will not be available to testify at the next trial. Among other witnesses who will not be able to testify are a number of Emporia Police Department officers, including the deputy chief and several detectives.
Wheeler said that the information gained from immunized testimony during inquisitions had been known and used by officers. He surmised that Paico contacted police when a cellmate at the Lyon County Jail told Paico about information Carapezza told her about the case before she was moved to Paico's area.
""They were able to shape what they wanted to get from Miss Paico," Wheeler said. "... They were using information that they were not supposed to use."
Symmonds had argued that the earlier investigations and prosecutions did not make use of information gained through the immunized testimony.
Defense attorneys and prosecutors were to have worked the past several days to come to agreement on what evidence and witnesses would be usable to forward to Overland Park attorney Thomas Bath, who has agreed to be prosecutor for the next trial.
"We didn't make any real progress on disseminating information," Symmonds told Wheeler on Thursday.
Wheeler told those present that, faced with no hope for agreement, there were two alternatives: dismissing the charges without prejudice, which would allow charges to be filed again if evidence warranted, or filing an interlocutory appeal.
An interlocutory appeal is made before a trial or proceeding has been completed. Symmonds had 10 days from Jan. 28 to file the appeal, which goes directly to the Kansas Supreme Court for consideration. The time schedule for the Court to hear the appeal cannot be predicted.
"I fully expect to have this thing filed by tomorrow," Symmonds told the court.
In response to defense attorney Julia Spainhour's earlier request to discuss possible bonds for the defendants during the appeal, Wheeler scheduled a hearing on the matter at 11 a.m. on Tuesday.
He told attorneys that he would have a Community Corrections staff member present then to answer any questions. Wheeler also mentioned that sentencing may not have been passed on Carapezza in two forgery cases against her.
In the interim, Wheeler said, he also would have Community Corrections check to see if there are any detainers of any type on either Hughes or Carapezza.
A link to a complete transcript of Wheeler's ruling on the Kastigar motion last week may be seen at http://www.lyoncounty.org/FifthJudicialDistrict.htm.
Blackshirt (anonymous) says...
Here is how this is going to go: State files appeal, Court of Appeals hears appeal, Court of Appeals affirms the District Court and two very bad people walk free.
February 5, 2009 at 7:12 p.m. ( permalink | suggest removal )
spectator (anonymous) says...
Blackshirt, I fear you are 100% correct.
February 5, 2009 at 8:03 p.m. ( permalink | suggest removal )
myangel (anonymous) says...
Thank GOD Carapezza and Hughes are finally getting a break. They are not the bad ones. They have suffered being falsely incarcerated for the past 5 yrs. The real murderer got off with a slap on the wrist. I don't know why people still insist that Carapezza and Hughes were the ones that did this. There was NO EVIDENCE THAT THEY WERE AT THE CRIME SCENE!!!!!!! There is no way that someone could possibly commit such a brutal, horrific crime without at least one hair or clothing fiber, footprint, finger print , blood splatter or anything else being found. Come on people lets get real. No evidence is no evidence. This is not the 50's. We now have DNA and foresic technology. They don't lie or have human error.
February 5, 2009 at 11:50 p.m. ( permalink | suggest removal )
Happiness09 (anonymous) says...
Blackshirt: They've already planned on letting the "bad person" go free. That person is Mollie Pacio, who if you read the article, could be free this Sept. She is the one who murdered Mary Clark. My prayers are that Hughes and Carapezza are freed. On the other hand, I feel very bad for Mary Clark's family. Like Carapezza said , "You let a murderer get away with murderer"
February 6, 2009 at 9:16 a.m. ( permalink | suggest removal )
Happiness09 (anonymous) says...
By the way......my oldest daughter dated Hughes at one time. Even before the trial began she said that she didn't believe he was guilty. She stated that he just wasn't the kind of person who could do something like that.
February 6, 2009 at 9:19 a.m. ( permalink | suggest removal )
sadinemporia (anonymous) says...
Anyone who is guilty of the crime of the murder of Mary Clark will face their Judgement Day. No one will ever know the truth except God and those involved. Be assured, whatever happened, those involved will be sentenced in their own time. We may never see it or know it, but it will happen. They are the only one's who will look themselves in the face every day and know that their time will come for what they have done.
February 6, 2009 at 9:42 a.m. ( permalink | suggest removal )
Blackshirt (anonymous) says...
Because I characterized them as bad people does not mean that I am judging their guilt in this case, it is a characterazation based on other knowledge of the two. Just because you didn't kill someone doesn't mean you aren't a bad person. And I do agree that Paico was extremely culpable in the killing, but she made her deal and their isn't anything that can be done about that now.
February 6, 2009 at 12:22 p.m. ( permalink | suggest removal )
kittenslvsu (anonymous) says...
Again we go on about how these to were mis treated what About Mary What about her Voice did we for get about her I have not nor has the rest of our family. I pray that they will not go free they could have stopped it and did nothing
A family member
February 6, 2009 at 5:16 p.m. ( permalink | suggest removal )
Happiness09 (anonymous) says...
kittenslvsu: You and your family have my deepest sympathy. I think that the whole issue here is that they let the actual murderer get off with 5 years for taking Mary's life. And yes, you are correct. IF the other two were even there then they should have done something to stop it. The question is......were they even there? As Judge Wheeler says "There is no evidence whatsoever." I would be curious to know how you and your family feel about Molly Paico getting off so easy.
February 10, 2009 at 2:24 p.m. ( permalink | suggest removal )
kittenslvsu (anonymous) says...
Happiness
I am not happy that she has gotten off so easy. I cant even think of how Mary must have felt her last few hours and to know that every one that was there may have only gotten a slap on the wrist, it scares me, that the judical system don't care or should I say seem to care that Mary was so horridly attacked. I know that god will take judgement in the end but for me none of them that were there or even if they were aware the attack was going to take place did any thing to stop it. How do I feel it makes me sick.
February 14, 2009 at 5:19 p.m. ( permalink | suggest removal )
UsayULoveGod (anonymous) says...
This is crazy , no matter who is bad or who is good ! someone took a hammer and beat a person to death. Does it matter which one delivered the final blow ! They are all guilty. Even if they were on drugs. They were there and did nothing to stop this . This they confessed to . So please do not tell us are they are all innocent. Just by doing nothing they are guilty. And the crazy part of it all , they gave one person 3-5 years because she testified against the others, and she admitted to hitting Mary in the head to make her be quiet . Wow that blew my mind !!!!!!!!!! She admitted that she used a hammer to make her be quiet , how do we not know if that was the hit that ended all for Mary ! Why would you let her off with 3-5 years for taking the life of someone who only wanted help in her daily living activities. She lost her life because she trusted the one person who she thought was a friend. She even offered to help her out with some of her bills and lend this person money when she needed it . I hate to say but this case will end up with two getting off , ony because Mollie is the KILLER and she lied about the other people . But they were there and they did NOTHING , so they to , are GUILTY !
February 15, 2009 at 12:51 a.m. ( permalink | suggest removal )
create (anonymous) says...
I agree with usay. They're all guilty just by being there and doing nothing. It's still conspiracy.
Who employed thugs like these for home health care? No drug tests?
It's too bad we don't have enough jail space to put people accused of serious crime in solitary confinement to prevent these kinds of problems. Yes indeed, they're all guilty just by being there.
What's the bottom line? A woman has been brutally bludgeoned to death. No one should be released until we solve this once and for all. Trust a druggie?
February 15, 2009 at 7:43 a.m. ( permalink | suggest removal )