An abundance of evidence and a long list of witnesses may not be available to prosecutors, if Marcy Carapezza and Jason Hughes are re-tried for their alleged roles in the murder of Emporian Mary Clark.
Chief Judge Merlin Wheeler ruled Wednesday afternoon in Lyon County District Court that testimony had been tainted in the defendants' first trials for the murder and related crimes.
The ruling came after several weeks of intermittent testmony in a Kastigar hearing held prior to their re-trials. Those trials had been scheduled to begin next week, but will be delayed because of a change of venue motion granted last week to the defendants. Overland Park attorney Thomas Bath Jr., will be prosecutor for the re-trials, if they are needed.
Wheeler read a lengthy statement to explain his ruling on Thursday, and to provide details and examples on which he based his decision.
"Kastigar prohibits any derivation use whatsoever," Wheeler said, describing ways in which the derivative evidence had been used in the investigation and first trials.
After the hearing, Hughes' defense attorney Stephen Atherton briefly explained the circumstances that evolved from the U.S. Supreme Court's decision in the Kastigar case.
"The Kastigar decision basically states that when a witness is compelled to testify and granted use or derivative use immunity ... then the state has to establish that any evidence comes from an independent source, and that there's no use of that (immune) evidence in any way, shape, or form in the prosecution," Atherton said.
Wheeler, noting an ample audience in the courtroom, announced that his decision would be published on the Lyon County court's Web site after it has been transcribed so interested people can read the explanation in full.
After Wheeler's ruling, special prosecutor Rod Symmonds told the court that he reserved the right to appeal the decision, which must be done within 10 days, and asked for assistance in determining what evidence can be forwarded to Bath to prepare for the trials, if they are held.
Wheeler had announced that evidence from a number of Emporia Police Department officers will not be allowed because of the tainted testimony, and Symmonds questioned whether certain reports from those officers on interviews of other witnesses could be forwarded to Bath.
"If you'd be available to assist counsel, that would be appreciated," Symmonds said.
A short discussion among Wheeler, Symmonds, Atherton and Carapezza's attorney, Julia Spainhour, ended in agreement that Symmonds would pull pertinent reports, show them to defense attorneys for approval and, if approval is not granted, the documents will be brought to Wheeler to judge.
The attorneys will meet with Wheeler at 1:15 p.m. on Thursday, Feb. 5, to provide the judge a status report.
Spainhour alerted the court that she would ask that the previous bond be reinstated.
For a fuller story, see Thursday's Gazette.
dpope (anonymous) says...
This comment was removed by the site staff for violation of the usage agreement.
January 28, 2009 at 11:28 p.m. ( permalink )
madpoet (anonymous) says...
How sad that everyone has to be dragged thru this AGAIN. I know the defense lawyers are just doing their jobs and if the defendants are innocent (which I personally doubt) I can see how they want a retrial. But how many times will they go thru this before conceeding defeat?
January 29, 2009 at 8:20 a.m. ( permalink | suggest removal )
Happiness09 (anonymous) says...
madpoet: If your life was on the line I am quite sure you would not be willing to just "conceed defeat" either. If this whole trial hadn't been "tainted" by the prosecution in the first place then nobody would be getting "dragged thru this AGAIN" My question is.......How many times are the prosecutors going to keep letting the real criminals walk off in return for testimony against other people who may have been remotely involved?
January 29, 2009 at 10:56 a.m. ( permalink | suggest removal )
madpoet (anonymous) says...
My point is that if I were guilty, I would serve my time and get it behind me. If they are innocent then they are doing the right thing to keep fighting for a new trial. But if they are guilty and trying to get out of paying for their crime, they are inflicting needless pain on others. Plus wasting tax dollars.
January 29, 2009 at 11:52 a.m. ( permalink | suggest removal )