Prosecution to appeal Judge’s ruling that could free Carapezza, Hughes
By Bobbi Mlynar
Friday, February 6, 2009
An interlocutory appeal is expected to be filed today 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 prosecution.
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 whether there are any detainers of any type on either Hughes or Carapezza.
A complete transcript of Wheeler’s ruling on the Kastigar motion last week may be seen at http://www.lyoncounty.org/FifthJudicialDistrict.htm.
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