By James Zambroski
February 13th, 2006 - Day 26:
Good News/Bad News
It took the judge about ten minutes to decide the state doesn't have shine-ola in its case alleging a conspiracy existed between David Ray Camm and Charles Boney in the murders of Kim, Jill and Bradley Camm.
Warrick Superior Court Judge Robert Aylsworth said he had no choice but to issue a directed verdict, in effect, dismissing Count 4 in the indictment against Camm.
It means the jury will not rule whether Camm is guilty or innocent of conspiracy but the 12 men and women will still decide Camm's fate on three remaining murder charges, the judge said.
The ruling came just a short time after the state rested its case Monday. With the jury out of the room, defense lawyer Katherine 'Kitty' Liell made her arguement for the directed verdict.
Under Indiana law, Liell said, the state must have a least some evidence that 1) an agreement was in place between Camm and Boney and 2) that agreement included an intent to commit a felony and 3) that evidence existed showing that Boney provided the gun to Camm (under language spelled out in the indictment).
Liell argued that all three elements must be present for an illegal conspiracy to be alleged, but that the judge could issue a directed verdict of innocense if he found that at least one of those three was missing from the state's case.
In arguing to allow the jury to decide if a conspiracy was in place, Floyd County Prosecutor Keith Henderson relied primarily on the testimony of Mahla Singh Mattingly, Boney's former girlfriend, who testified that Boney told her he had to go meet "a buddy" or buddies (she wasn't sure which) and that she saw Camm at the New Albany Police station when she'd gone there with Boney.
Henderson also argued that Boney's palm print on Kim Camm's Bronco and carpet fibers similiar to those found in the Camm home was enough to show the two men had a connection.
But the judge summarily granted the dismissal after hearing from both sides twice.
After the trial was adjourned, Henderson said he'd been hamstrung by previous rulings that forbade introduction of Boney's statements to police in this trial. Without Boney's direct testimony in Boonville -- and giving the defense an opportunity to cross examine him -- the statements are inadmissible hearsay.
Henderson downplayed the lost of the conspiracy count, saying it was more useful in getting a conviction against Boney.
"The conspiracy count was more important to Charles Boney's case," he said. "He helped. Let's not forget, the mastermind was David Camm."
But the day wasn't a total loss for the state. Prosecutors believe they scored big with testimony from two doctors who said it was their professional opinion that Jill Camm was sexually molested sometime before she was murdered.
Dr. Betty Spivack, a forensic pediatrician employed by the Kentucky State Medical Examiner's Office and Dr. Philip Merk, a pediatrician in private practice, both based their opinions on autopsy photos, diagrams and a report made by Dr. Tracey Corey, the state medical examiner.
Both told the jury that contusions and abrasions on the inner folds of Jill's private parts made a fall or an accident, like tumbling against a seesaw, playground equipment or bicycle highly unlikely.
"They (the injuries) were done in a purposeful manner...consistent with sexual abuse," Merk testified.
Spivack's opinion about when the injuries occurred swung the door wide open to the state's theory about motive, prosecutors said.
She told the jury Jill's non-fatal injuries could have happened up to two days before she was killed by a gunshot to her head.
And while Camm's name was never mentioned in connection with the alleged molestation -- the Indiana Court of Appeals ruled out such testimony without more evidence -- the prosecution believes the testimony spoke to the jury without ever mentioning the defendant's name.
Testimony in Camm's first trial -- and from at least one expert in this proceeding -- opined that the injuries happened hours before the 5-year old was slain. Everyone agrees that Camm was at work and Jill at school on September 28, 2000, that is, until she was murdered that evening.
But with Spivack widening the time the injuries might have happened, Camm's alibi that he had no contact with his daughter during the last hours of her life goes out the window, the prosecution alleges.
"I think we've linked it. I think we're there. I think the jury heard that today," Henderson told reporters.
"I think the evidence has shown very strongly that David Camm not only molested his daughter, but he was there when he killed them," Henderson said.
The Floyd County prosecutor said he's believed Spivack's time line on the alleged molestation from the beginning, but was prevented from commenting -- or correcting press accounts -- by the gag order in the case.
He termed the testimony of Spivack and Merk some of the strongest in the trial and he said he intentionally waited until the last day of his case to put the physicians before the jury.
Spivack also testified that it has been her experience that children overwhelming tell their mothers if they've been molested. However, no one, not Jill's teachers, the police or her grandmother, Janice Renn, offered testimony that Jill complained of pain or bad acts by another.
With Kimberly Camm deceased, the defense said it was practically impossible to prove a negative.
"So it's impossible for David Camm to prove that Jill didn't do something," said Stacey Uliana, one of Camm's defense attorneys. "That Dave didn't do something. That's why the burden's on the state."
Uliana also alleged that Spivack changed her testimony from a sworn desposition taken late last year.
"Dr. Spivack before in her desposition told us that the injuries occurred near the time of death, due to the painful nature of them," she said. "Today on the stand, she backtracked to fit the state's theory."