By James Zambroski
February 24th, 2006 - Day 35
Nearing the End
Key rulings from a judge Friday may have brought the hammer down on defense efforts to clear David Ray Camm of murdering his family.
Two decisions from Warrick Superior Court Judge Robert Aylsworth -- one excluding certain testimony and the other allowing some previously controversial arguments to be placed before the jury -- both went against the defense during proceedings outside the presence of the jury.
In the first issue, defenses lawyers Katherine 'Kitty' Liell and Stacy Uliana wanted the jury to see a portion of a video recording in which Charles Darnell Boney appears to admit culpability in the slayings of Kimberly, Jill and Bradley Camm.
During a February 2005 interview with defense investigator Gary Dunn, a 28-year veteran of the FBI, now retired, Boney acknowledged that finding his DNA at the crime scene meant that he was there and, under further questioning by Dunn, that if he, Boney, was inside the Georgetown garage, it's likely that he was responsible for the murders.
The interview was done after DNA on a sweatshirt found tucked along the edge of Bradley Camm's body was identified as Boney's but before a palm print on Kimberly Camm's Ford Bronco was matched to his.
At the time of the interview, Boney was a suspect in the killings, but not yet under arrest. He voluntarily agreed to speak with Dunn but requested that Indiana State Police Detective Gary Gilbert be present as well.
The defense sought to have that brief portion (it's about a minute long) of the larger interview Dunn conducted with Boney played during Dunn's testimony as the final defense witness in the case.
The problem for the defense is that Boney has steadfastly refused to testify at the Camm trial, citing his Fifth Amendment right to avoid self-incrimination.
Even though Boney is convicted of the killings and sentenced to more than 200 years in prison, he has appeal rights and, theoretically, other state and federal firearms charges pending.
He cannot be compelled to testify against his will and playing the video without giving the prosecution a chance to cross examine him is, Aylsworth ruled, unallowable hearsay testimony.
The defense had vigorously argued that the law and previous United States Supreme Court rulings bent the hearsay rule in favor of the defense when there is evidence that someone else may have committed the crime for which the defendant is charged.
But that fell on deaf ears as Aylsworth ruled.
Camm family members were visibly upset over the decision. Donnie Camm, the defendant's brother, even confronted Floyd County Prosecutor Keith Henderson with a brief, profanity laced, fingerpointing tirade in the hallway outside the courtroom later. Henderson walked away, saying "Save it, Donnie, save it" as he waved him off.
A second judicial ruling allowing something into the trial may be equally devastating to the defense.
Aylsworth ruled that the prosecution can try to convince the jury during closing arguments that the motive for the slayings was the sexual molestation of Jill Camm and that her father is the likely culprit.
The Indiana Court of Appeals had said that connecting Camm with the alleged molestation required more evidence than was introduced at the first trial in 2002.
During these proceedings, the prosecution presented evidence that 1) Jill Camm sustained injuries to her genitalia and 2) Expert testimony saying those injuries were from sexual molestation and 3) The injuries could have happened up to 24 hours prior to her death.
That last element -- the timing of the injuries -- is likely what opens the door for Henderson's argument toward motive.
If Jill was hurt at the time of her death or no longer than eight hours before, as some have testified, then Camm has an airtight alibi -- he was at work; Jill was at school.
But by having at least three experts say it was possible that the injuries could have been inflicted up to 48 hours before her death, that timeline appears to be obliterated.
"We can make the inference that it was the defendant," Henderson said "I tried to set up where Jill was in that last 24 hours, tried to set up where David Camm was at, I tried to set up that the injuries couldn't have occurred with anyone other than (Camm)."
The defense acknowledged the ruling damaged their case.
"It does hurt the case unfairly because it's speculation, inferences and innuendo," said Uliana. "They have not given you one piece of evidence that David Camm was responsible for the injuries to Jill."
The judge ruled that either side can make any argument they wish about evidence already in place. Aylsworth told them that if the jury disagreed with the argument, the side making it may suffer the consequences or "be punished" by the jury, as Aylsworth put it, possibly with an unfavorable verdict.
And while the existing gag order prevents the lawyers from commenting directly on Aylsworth's decisions, the defense made it clear how they felt.
"It's inflammatory, it highly inflammatory," Uliana said. "What reasonable person can put that outside of their mind and give David Camm a fair trial?"
For the prosecution, the ruling is all about why Kimberly, Jill and Bradley were murdered.