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 death of Emporian Mary Clark on May 4, 2004.
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 cases were remanded to the court over expert testimony that involved the propensity of drug addicts to commit crimes. In the decision, the state supreme court also ordered the local court to ensure that Kastigar rights had been protected.
The ruling Wednesday afternoon came after several weeks of intermittent testmony in the Kastigar hearing. The new trials were 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 of law and court rulings 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 at www.lyoncounty.org/FifthJudicialDistrict.htm.
A Kastigar hearing had been held prior to the defendants’ trials. The judge noted that he had determined then that most of the evidence against the defendants had come from independent sources.
“(That) remains true, in my view, even under my opinion today,” Wheeler said. “However, what is different today is that the scope of the indirect use of those statements and evidence and the pervasive taint caused by permitting the unfettered access to and knowledge of the defendants’ statements were then unknown and unexplored. Therefore, I believe that my opinion as to the use has obviously changed following the completion of these hearings.”
Wheeler said that the existence of the grants of immunity to the two defendants had not been disclosed to defense attorneys until shortly before the trials, and that neither the attorneys nor the court was able to conduct the extensive analyses then that were done during the current hearings.
The defendants had been given the limited immunity during their testimony at an inquisition held into Clark’s death; the immunity was related to information given about drugs.
Another person involved, Mollie (Jeneen) Paico, was able to plead guilty to reduced charges of aggravated burglary and three counts of aiding a felon in exchange for information about the murder. Paico received a 60-month prison sentence, with earliest possible release on Sept. 26 this year.
Paico was a home health aide-type worker who assisted Clark. She initially told investigators that she took checks from Clark and forged a check, but she denied involvement in Clark’s death. Later, she said she had gone to Clark’s home to repay money she had taken and saw Carapezza and Hughes when she looked into the window. She said she went into the home and saw Hughes with a hammer in his hand and saw blood on the victim’s head. Paico also identified a second man, who was found not guilty after trial.
Paico admitted she took the hammer and hit Clark several times to make her lie still, then shoved a glove into her mouth to keep her quiet. She said she and Carapezza returned to the home later that day and found Clark lying face-down and unconscious. They cleaned up some blood and began loading a trash bag; when Clark moved, Paico reinserted the glove into her mouth.
“As just a bit of an aside here, this Court finds it very difficult to believe that any agency that would arrange such services would have utilized the services of Ms. Paico had any reasonable effort been made to investigate her background or suitability for the employment by Ms. Clark,” the judge said in his statement.
Wheeler said that no physical evidence was obtained to place either Carapezza or Hughes at the crime scene and that the primary evidence was Paico’s description of their presence and the testimony of Carapezza’s two cellmates, who said that she had admitted participating in the murder.
The prosecution had the burden of proving that its evidence came from a legitimate source, wholly independent of the compelled testimony of the inquisition. The Kastigar ruling required Wheeler to determine whether the prosecution had used the compelled testimony in any fashion to indict or to convict a defendant.
“... (A)nd I emphasize the word ‘any,’... Wheeler said.
Counsel conceded, with one minor exception, there was no direct use of the compelled statements of either defendants, Wheeler said; the focus of this hearing was on indirect or non-evidentiary use.
“This Court ... noted that human frailties being as they are made indicated that those frailties made it nearly impossible to conduct a completely separate investigation and to separate what was learned from the immunized statement from what was not,” Wheeler said.
“While this Court does not in any way attribute any bad faith on the part of our county attorney’s office, except perhaps as to the failure to notify defendants’ counsel of the inquisition proceedings, this Court concludes that neither the State’s attorney or the law enforcement officers who were exposed to the defendants’ statements could rationally be expected to avoid utilizing the defendants’ statements, even if for nothing more than to confirm their belief that the defendants were lying about their involvement in Ms. Clark’s death.”
The knowledge from a statement given under oath by a defendant would give “a significant strategic advantage in shaping the investigation and trial.
“Here the prosecutors made no effort to insulate either themselves or the principal investigating officers from the statement of either defendant,” the judge said. “Further, the prosecutors did not utilize any other recognized means to avoid the taint of the immunized statements that are recognized. ... (T)he government might find the burden to be onerous, but must recognize that in its sole discretion it can decide who to immunize and who to deal with, in this case Ms. Paico, and who to prosecute, in this case Mr. Hughes and Ms. Carapezza. It therefore runs a grave risk that any prosecution may be impossible.”
Wheeler said the attorneys had testified that the transcripts had been put away and never looked at, but that was not the test courts use to determine compliance with Fifth Amendment and Kastigar.
The judge also noted that police and the prosecution convinced authorities that both Hughes and Carapezza had lied in their prior interviews and in their immunized statements, “despite a polygraph report to the contrary.”
“I dare say that it is obvious that the plea negotiations with Ms. Paico and the subsequent inquisitions used to frame and shape her testimony were done with this knowledge in mind,” Wheeler said. “ ... It is very painfully apparent when you review the evidence in these two cases that there was literally no case available against these two defendants until such time as Ms. Paico signed and provided information following the reaching of her cooperation agreement with the State of Kansas. ... (Paico) was also, obviously, motivated in part by the knowledge that was communicated by Mr. Goodman to her that the defendant Carapezza had implicated Ms. Paico. Ms. Paico’s agreement was undoubtedly a result of knowledge of that implication.”
Wheeler also noted that, while free flow of information among police officers is normally appropriate, the actions of several detectives “were in fact directed by the persons who were directly exposed to the statement of the two defendants...”
Those officers, and several other witnesses, now are precluded from involvement in the case, according to Wheeler’s ruling.
After the 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 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 Feb. 5, to provide the judge a status report.
Spainhour alerted the court that she would ask that the previous bond be reinstated.
Happiness09 (anonymous) says...
And Judge Wheeler said...."it is painfully apparant that there was literally no case against Carpazza and Hughes until such time as Molly Pacio" made up a bunch of crap and made a deal with Marc Goodman. Case closed!!! And as Carpazza said "How do you people sleep at night knowing that you have let a murderer go free, and sent two innocent people to jail?" Care to answer that Mr. (and I use the term lightly) Goodman?
January 29, 2009 at 2:07 p.m. ( permalink | suggest removal )
kittenslvsu (anonymous) says...
I am so sick of hearing how these 2 may have been mistreated what about Mary or some of you may have known her by sis. What about her voice. What rights does she now have some one please tell me. they have been taken away from her and she will never get them back
Stephanie
February 4, 2009 at 10:09 p.m. ( permalink | suggest removal )
justthefacts (anonymous) says...
So anybody know what collusion there was between the county attorney and the higher ranking city police department members?
February 4, 2009 at 10:31 p.m. ( permalink | suggest removal )
kittenslvsu (anonymous) says...
They will let us know thursday afternoon
February 4, 2009 at 11:25 p.m. ( permalink | suggest removal )
kittenslvsu (anonymous) says...
I want to keep voicing the point WHAT ABOUT MARY ????? WHAT ABOUT HER VOICE????
February 14, 2009 at 5:21 p.m. ( permalink | suggest removal )