Published: August 20, 2009 08:34 pm      

Prosecution, defense again waiting on State Supreme Court

Justices will not consider letter from juror in second trial

The Indiana Supreme Court on Wednesday requested to have the entire David Camm murder case file sent to them.

That came after Camm’s defense team filed its response Friday to Attorney General Greg Zoeller’s and Floyd County Prosecutor Keith Henderson’s request for a rehearing before the Supreme Court.

Henderson said the Supreme Court could have rejected the state’s argument without looking at the case file. He is hopeful the request means the justices will review transcripts of the trial.

“Definitely, it was my intention through the petition for reconsideration for the four justices [who ruled in favor of overturning Camm’s murder conviction] to review the record of the trial, because I do think they overlooked some key portions of it,” Henderson said. “I think the Supreme Court will give such an important case a thorough review.”

Katharine Liell, Camm’s attorney, said the Supreme Court requesting the case file is standard procedure, and she believes the court will deny the state’s request for a new hearing.

“The state, in its petition for rehearing, raised nothing new,” Liell said. “These are arguments they already made and lost on.”

Liell said the Indiana Supreme Court generally will only reconsider a ruling if the state can show that it misapplied U.S. Supreme Court precedent.

“A rehearing is not appropriate just to regurgitate what has already been argued,” she said.

Camm has twice been convicted of murdering his wife, Kimberly, 35, and children, Bradley, 7, and Jill, 5, in September 2000.

The first conviction was overturned by the Indiana Court of Appeals. The second was overturned June 26 by the Indiana Supreme Court, ruling that hearsay testimony from a family friend and arguments from the prosecutor that Camm molested his daughter should not have been allowed at trial.

Henderson argued that the door was opened for him to bring up the molestation in his closing arguments because the defense had argued that Charles Boney had molested the girl.

Following Camm’s first conviction being overturned, Boney was charged with the murders in 2005. His DNA was found on a sweatshirt at the scene.

Boney was convicted and sentenced to 225 years in prison. Boney has said he gave Camm the gun and was there when Camm shot his family, but said he did not know about the plan.

He appealed, but the state Court of Appeals upheld the conviction. The Supreme Court did not hear the case.

One item the court will not consider is a letter written from a juror in Camm’s second trial, which took place in 2006 in Warrick County. Darlene Short wrote a letter to the court on July 1 stating that she was “saddened” by the court’s decision to overturn Camm’s conviction.

She asked the state’s highest court to hold a second hearing because of “overwhelming admissible evidence that points to Camm’s presence at the time of this tragic crime.”

She wrote that the blood spots on Camm’s shirt, and not the molestation evidence, were considered “foundational” by the second jury.

Kevin Smith, clerk of the Supreme Court, responded in a letter written to Short last week that “rules governing judicial conduct and appellate procedure prevent the justices from considering letters from jurors or other persons interested in the case, no matter how well-intentioned or sincere the senders’ efforts might be.”

Henderson believes the Supreme Court should be willing to hear from the jurors in deciding whether to grant a new hearing.

“I think [the Supreme Court] should consider her letter and also consider Robert Crowell’s letter,” Henderson said. “Both jurors totally debunked the reasoning of the court.

“Those are the people who made the decision. They know what influenced them and what didn’t.”

In writing the court’s majority opinion, Justice Brent Dickson cited statements that Crowell, the jury foreman in the second trial, reportedly made comments to a newspaper that when jurors learned Jill had been abused the night before the murders and Boney did not do it, then Camm must have.

The court found that the statements show how the jury was influenced by the evidence.

Henderson argued that the court should place more weight on jurors’ own words rather than a reporter’s interpretation of them.

Crowell reportedly wrote a letter to WAVE-TV in Louisville after Camm’s conviction was overturned in which he wrote: “David Camm was not convicted because of the evidence that Jill was molested.”

The prosecution and defense say there is no telling how long it may take the Supreme Court to decide whether to uphold or reverse its decision or grant a new hearing.

In the meantime, Liell said Camm’s defense team is preparing a to-do list that will include interviewing witnesses again and retesting physical evidence using the new science of touch DNA.

If the Supreme Court rejects the state’s request for a rehearing, the case will proceed very quickly, Liell said. Within a matter of days, Camm’s case will be remanded to Warrick County. The defense plans to file a motion to reduce bond within 10 days of when Camm is moved to Warrick County.

They will then begin the process of finding a new location for a third trial.

“We fully expect there will be a third trial,” Liell said.

Henderson has not said whether he would seek a third trial. He said that decision will come after the Supreme Court makes its decision.