Trial bombshell is a big dud

Jurors and witnesses were put on ice after Robert Kowalski’s defense attempted to sideline proceedings in his homicide trial.

Kowalski is being charged with first- and second-degree murder in connection with Sandra Perry’s death at Yakutat’s Glacier Bear Lodge in July 1996. He has maintained that the shooting was an accident, although he had reported different stories about what happened.

Trial on Monday took a major turn with a statement by Kowalski’s attorney while the jury was out of the courtroom.

“There’s kind of bit of a bombshell that the court may not be aware of, ” said public defender Eric Hedland.  “I believe that all the evidence was destroyed in 1998, intentionally.”

Public defender Eric Hedland addresses the jury as Superior Court Judge Louis Menendez listens during opening statements on Thursday, March 20, 2014. (Photo by Matt Miller/KTOO)

Public defender Eric Hedland addresses the jury as Superior Court Judge Louis Menendez listens during opening statements on Thursday, March 20, 2014. (Photo by Matt Miller/KTOO)

Two years after Perry’s death, the State of Alaska reported destroying original tape recordings by investigators that formed the basis of interview transcripts, plus clothing and personal effects from the crime scene. Hedland wanted testimony suppressed that was based on any destroyed evidence.

But within an hour on Monday’s hearing, it was apparent Hedland had made a huge mistake. He conceded his office may have missed reviewing key documents that clearly specified the routine destruction of evidence by Alaska State Troopers.

Then on Tuesday, with the jury again cooling their heels outside the courtroom, attorneys argued about a possible remedy.

Prosecutor James Fayette once again referred to Monday’s diversion as “gamesmanship,” and said information about the evidence destruction was never hidden from the defense.

“This is a tactical defense decision  — to not file a motion to compel discovery, to not file a motion for a pretrial hearing, wait until middle of trial — probably for this effect to make a big deal of stuff that they knew two years ago didn’t exist,” Fayette said.

Hedland argued for possible instructions to the jury about the potential favorability of any testimony based on the destroyed evidence. Kowalski’s defense also wanted to introduce a memo from former prosecutor Richard Svobodny about Kowalski’s differing, but not contradictory statements made to investigators.

“If you want to say that the defense screwed up and they’re not entitled to suppression, that’s fine,” Hedland said. “But nothing has happened changed the facts that the state destroyed evidence.”

Fayette says they are now a day behind in their schedule of witnesses taking the stand.

Prosecutor James Fayette addresses the jury during opening statements on Thursday, March 20, 2014. (Photo by Matt Miller/KTOO)

Prosecutor James Fayette addresses the jury during opening statements on Thursday, March 20, 2014. (Photo by Matt Miller/KTOO)

“My fault for the delay,” Hedland admitted.

Tempers flared on Tuesday morning and Superior Court Judge Louis Menendez had to intervene after personally tinged comments between prosecution and defense.

“And judge, I’ll assure the court I’m going to get decaf,” Fayette said at the end of the proceeding.

The jury was allowed to re-enter the courtroom and testimony from witnesses resumed late Tuesday morning.

Judge Menendez took attorney’s arguments under advisement and issued an instruction to the jury on Wednesday morning. It was a notice that neither the defense nor the prosecution allege “any bad faith on the part of the State” for the destruction of evidence. It’s an advisory that will likely be repeated throughout the trial.

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