[Dave]

http://thenewsdispatch.com/main.asp?Sectio...amp;TM=76548.38

Defense Asks For Mistrial
Trial continues, but defense contends state is trying to shift burden of proof to woman accused of killing her own child.

By Timothy O'Connor
For The News-Dispatch

Friday, July 18, 2008


LA PORTE - The trial for the Rolling Prairie woman accused of killing her newborn infant nearly ended in a mistrial on Thursday.

Kathy Phillips' attorney, Richard Cook, made the motion after a line of questioning by the prosecutor that could have forced the defendant to testify against herself in order to prove her innocence. It could lead to self-incrimination and a violation of the Fifth Amendment.

Phillips, 31, was arrested Oct. 3, 2006, on charges of murder and neglect of a dependent. Phillips' husband found the body of the infant near the couple's Rolling Prairie home.

The controversy arose during the testimony of Joseph Prahlow, the South Bend doctor who performed the autopsy on Baby Jane Doe, Phillips' alleged daughter. Evans asked Pharlow if he could make any medical determination why the infant died.

"In my experience those questions can be answered by both autopsy and investigation," Prahlow said of why he couldn't find the cause of death from his examination alone.

Evans asked why an investigation was needed and Pharlow said typically the mother would have to come forward with information because she was the only person there at the birth.

Cook objected and the jury left the room while the attorneys debated.

Cook argued that by stating the mother typically comes forward the jury would assume Phillips' guilt since she did not provide information about the child's birth and will not testify. This, of course, hinges on the prosecution proving Phillips is Baby Jane Doe's mother, which may be verified through DNA evidence.

By creating this assumed guilt, Cook said, the prosecution was shifting the burden of proof from the state to the defense. Phillips would need to testify to prove her innocence. Constitutionally, that burden is laid on the state.

Evans responded that Cook had ample opportunity to impose an objection before the damage was done.

Circuit Court Judge Thomas Alevizos asked how the attorneys planned to rid the jury's minds of the statement and ensure the burden of proof remained with the state. A break was taken as the attorneys met privately with Alevizos to discuss a solution that would avoid a mistrial.

Upon returning, Cook said he drafted a jury instruction he hoped would cure the problem; however, he said he doubted the damage could be completely cleared.

"I'm in a no win situation," he said. "It's like putting a Band-Aid on a mortal wound."

The judge said he would not declare a mistrial at this time, but would keep the motion under advisement.

....and the added on article...

Day Four Of The Kathy Phillips Trial


LA PORTE - An awkward moment at the buffet was recounted as evidence Thursday during the Kathy Phillips trial.

Witness Carol Foster testified she thought Phillips looked pregnant at a Michigan City wedding they attended in 2005. She said she asked when the baby was due which prompted Phillips to angrily respond, "I don't understand why everyone thinks I'm pregnant."

The prosecution relied on testimonies like Foster's on Thursday. Another witness, Denise Woods, Phillip's cousin, said she had a conversation with Phillips, prior to Baby Jane Doe's discovery, where the defendant said she wanted another baby. Woods said, however, that Phillips stated her husband didn't want any more children.

The second set of testimonies came from people who worked on the investigation.

Indiana State Police officer William Bunton told the court he was on the scene of a search of the Phillips home. Prosecutor Jennifer Evans asked him to identify evidence collected at the scene: A roll of garbage bags supposedly matching the ones Baby Jane Doe was found in on March 12, 2006.

Thursday's major testimony came from Joseph Prahlow, who performed the autopsy on the infant. He said a portion of the umbilical cord was wrapped once around the baby's neck and the cord was ripped. According to his testimony, she appeared to be a full-term infant.

"The child appeared to be normally developed and normally formed," he said.

Further, he said the umbilical cord was 75 centimeters in length, unusually long but within an acceptable range. This fact led to several hours of questioning between the attorneys.

Cook used the long cord and the fact it was wrapped around the infant's head to establish it was possible the baby could have been choked while being born. Prahlow explained if the cord was wrapped around the neck during birth, it could have been stretched and torn as the baby went through the birth canal.

He added, however, that there was no way for him to know what caused the umbilical cord to tear.

Evans, meanwhile, said Prahlow's testimony was proof that there was no known medical reason the baby was dead.

"There is no way for me, at autopsy, to say," Prahlow said of the cause of death or the date of birth.

The trial will resume at 8:30 a.m. today in the courthouse.

One of the precepts in criminal law is that defendants are not required to testify against themselves, and that their silence can not be used against them. Defendants are not required to even defend themselves -- the state has the burden of proving beyond a reasonable doubt that the defendant in any case performed the illegal actions, and the defendant has no burden of proving anything (in virtually every criminal case, after the prosecution has put on its case in chief, the defense moves for dismissal on the basis that the case hasn't been proven beyond a reasonable doubt. If that motion is denied, the defense doesn't have to do anything, though it often puts on witnesses of its own to poke holes in the prosecution's case.)

Therefore, what the defendant doesn't say is out of bounds. A suggestion by the prosecution that the defendant should have said anything at any time is always grounds for a motion for a mistrial, and denial of the defense's motion for a mistrial based on this scenario is almost always reversible error.

Additionally, because the jury has been seated, jeopardy has attached. When a mistrial is declared due to an error by the prosecution after jeopardy has attached, a new trial is prohibited as it would be double jeopardy under the Fifth Amendment.

And in the second article where I bolded it. the prosecutor states "there is no known medical reason the baby [is] dead."

My legal prognostication: case dismissed. Between the prosecutor being unable to show cause of death (stillborn due to umbilical cord vs. strangulation after birth) and what I see as prosecutorial overreaching, I'd be surprised if a second year law student couldn't win this for the defense.

I also noticed (did everyone else?) that in the first article, the prosecutor in the case was referred to only as "Evans", though the second article did identify her as Jennifer Evans. It didn't mention anywhere that she is the Democratic contender for Judge for County Court 3. I also note that Court 3, per the county's webpage, handles civil cases and misdemeanor criminal cases -- not felonies.

This post has been edited by Dave: Jul 18 2008, 08:05 PM

[Roger Kaputnik]

Are you saying that she got this case to make a name for herself to bolster her election campaign? And she is blowing the case?

[Dave]

Are you saying that she got this case to make a name for herself to bolster her election campaign? And she is blowing the case?

To tell the truth, if I were the prosecutor, I don't know as I would have taken the case to trial at all with the autopsy results they appear to have.

Evans, meanwhile, said Prahlow's testimony was proof that there was no known medical reason the baby was dead.

With something like that, how could there not be reasonable doubt?

As for the election angle, getting a conviction in a high profile murder case would have to be a good thing for a candidate. Making a mistake during the case that a second year law school student should be able to see a mile off, well, that has to make one wonder.

[ChickenCityRoller]

I ate at Enzo's last night and Juror's were there (at the court house, not Enzo's) until after we left (9 pm).

[Roger Kaputnik]

NOT GUILTY on all counts, reported by WIMS first.

[Southsider2k12]

NOT GUILTY on all counts, reported by WIMS first.

Nice call by Dave!

[Michelle]

Move over, Dan Abrams!

Great commentary, Dave.

[Dave]

Nice call by Dave!

Hey, I'd like to take credit for it, but I don't know as I can.

The result -- defendant walks -- is what I'd expect, but I'm kind of surprised it even got to the jury, as I really expected the judge to grant a defense motion for dismissal.

[Southsider2k12]

The comments are included as one of the jurors posted...

http://thenewsdispatch.com/main.asp?Sectio...ArticleID=16188

LaPorte County Woman Acquitted In Newborn's Death
Kathy Phillips found not guilty
LAPORTE, Ind. (AP) - A jury has found a woman not guilty of murder and neglect in the death of a newborn girl whose body was found in a field near her LaPorte County home.

The verdict was read early Thursday after jurors deliberated for more than eight hours.

Kathy Phillips was charged in the death of the baby her husband, Garry, told police he found in a garbage bag on their property near Rolling Prairie in March 2006.

Prosecutors said DNA testing showed that the Phillips were the biological parents of the infant, but they denied it. Kathy Phillips also denies having been pregnant before the dead child was found.

Deputy Prosecutor Jennifer Evans says prosecutors presented the best circumstantial case they could.

The defense did not call any witnesses in the trial.








Reader Comments

Posted: Friday, July 25, 2008
Article comment by: navy blue

They could have at least found her guilty but insane, which is what this whole thing was. She obviously had the child. Whatever. Kid's probably better off dead than with her anyway.

Posted: Friday, July 25, 2008
Article comment by: willie

Deb, you are so full of it, the prosecution did everything they could have done. This lady lucked out, that's all there is to it. No woman has a child (and everyone knows it was theirs) and just puts it in a garbage bag, alive or deceased, when born for someone else to find. This woman needs to be behind bars.

Posted: Friday, July 25, 2008
Article comment by: Juror

As a juror in this case I can tell you this was not an easy case, in fact it was the hardest thing I have ever done. The evidence given to the jury was examined and in light of the laws of the state of Indiana we decided the case accordingly. This was not a decision we took lightly, but it was what was right according to the law. If you are unhappy with the outcome of this case, you should contact your state reps and petition for the laws to be changed. Remember, one of the hallmarks of the Amertican justice system is that the state must prove beyond a reasonable doubt that the defendant is guilty. If there was any room on the other side of that proof, any reasonable possibility that the defendant might not be guilty, then we were instructed by the court and the law to find the defendant not guilty. The state has near unlimited resources to bring the full weight of the law down on a defendant and therefore must make the case air tight that the defendant is guilty in order for the jury to render that verdict. I am bound by law not to discuss the deliberations from the jury room on Wednesday night and early Thursday morning but I can say that within the law we made the right decision. I have heard that Baby Jane Doe did not receive justice and my personal opinion is "You're Right!!!!". But there was reasonable doubt based on the charges that were brought by the state. Please remember, we could not decide this case based on emotion, personal feelings, speculation, gut instinct or what we thought we knew about Kathy Phillips. We had to decide the case based on the evidence presented at the trial and the law regarding the charges that were filed. You will appreciate this a little more if you ever have to serve on a jury, or if you are facing a jury as a defendant in a case brought down upon you by the state!

Posted: Thursday, July 24, 2008
Article comment by: Jennifer Konda

Wow, she wasn't prosecuted for "chucking," as you said, the child out in a field in the dead of winter, she was prosecuted for murder. If YOU can prove she murdered that baby I would love to hear it. The jury went by the LAW. That makes them far from stupid, and the prosecutor said it herself, "circumstantial evidence" is what she went on. If you don't like the laws.....do something to change them. Compassion is a very powerful thing and something all of us need more of in our lives.

Posted: Thursday, July 24, 2008
Article comment by: WTH

WOW!! So, in La Porte County it's okay to have a baby - stillborn or alive - and just chuck it in the field next to your home in the dead of winter? I've always said that there is something in the water in this area that make people stupid - this just proves it. I can't believe you people let her walk. Watch your backs everyone - La Porte just keeps getting worse. Soon witnessed murder will be excusable.

Posted: Thursday, July 24, 2008
Article comment by: Deb

One more thing...who do you think paid for all the fancy tricks the prosecution pulled out? Like sending our detectives to the trash bag company in Louisiana and then flying up a rep from that company for trial? Or who paid for all those tests that never showed if the baby was alive, or what the cause of death was? That's right, boys and girls, WE'RE paying for it, the taxpayers of LaPorte County. We'd do well to remember this case the next election when we vote on the county prosecutor.

Posted: Thursday, July 24, 2008
Article comment by: Deb

Erin and Joe, the jury is NOT kidding. The prosecutor's office had no business prosecuting this case w/o knowing cause of death or IF the baby was ever alive. She may be morally guilty of something, but legally the jury reached the just verdict. The burden of proof is on the prosecution to prove guilt, NOT on the defendant to prove innocence. Ever heard of innocent until PROVEN guilty? Prosecutors didn't do their job on this one. I do feel bad for Kathy and Gary Phillips if they stay in LaPorte county. You people will have them convicted in YOUR minds forever.

Posted: Thursday, July 24, 2008
Article comment by: Jennifer Konda

I think the verdict came out the way it should have. It can't be proved that the baby took a breath upon being born and it can't be proved that the baby was strangled or suffocated in any way, and it can't be proved that the Phillipses are the ones that did it. All you have is that they are more than likely the parents and that the bag was most likely theirs. I personally believe that the baby was not breathing when born and that Mrs. Phillips may not have known she was with child since that does happen and women get taken by surprise when it happens. I also feel she may have gotten scared and didn't know what to do. People react differently in different circumstances when faced with something like this. How do you know what any one of us would do? We all could say "I wouldn't do that" but when faced with it you have no idea what you would do. I kept my ears open to all facets of this case from the beginning and never once did I take sides and say the "Phillipses are killlers" or "baby killers" or all the nasty things I heard about them. That is called basing your opinion on an "open mind." Judging from all the negativity I heard about them, I thought for sure she would be found guilty and how unfair justice would have been. My hope is that this family can now get back to some form of normality for the sake of their children. The children don't need to hear gossip and accusations about their parents anymore. I wish that people would be more open minded and less opinionated before they know ALL the facts about ANY THING. People are way too judgemental and ready to take one's gossip as being the truth.

Posted: Thursday, July 24, 2008
Article comment by: anon

It's my understanding that the maternity of the child was not necessarily in question at this time, but, rather whether or not the child was born alive.

Posted: Thursday, July 24, 2008
Article comment by: Joe

This is ridiculous. I agree with Erin. It would have been so easy to do an exam on the baby murderer. If a baby is taken to the hospital and it looks like it's a newborn, they insist on examining mom. Many women have been arrested due to the fact the newborn turns out to be stolen and the mom is lying in the woods cut open. Why didn't they perform one? Scott Peterson was sentenced to DEATH for killing Lacey and Conner even though the prosecution couldn't prove it. What is going on, La Porte jurors????

Posted: Thursday, July 24, 2008
Article comment by: Erin Phillips

You have got to be kidding me!!!! I always thought that DNA doesn't lie!!!. There should have been a way to have her go to the doctors and be made to have an examination to determine if she had recently given birth. I can not believe this injustice for this baby!!!!!

[Roger Kaputnik]

Is there any fallout for the prosecutor who may have handled the case poorly?

[Southsider2k12]

http://thenewsdispatch.com/main.asp?Sectio...amp;TM=39242.13

The Impact Of The 'CSI' Effect

By Craig Davison
For The News-Dispatch

LA PORTE - Before a trial starts, one of the things Deputy Prosecuting Attorney Jennifer Evans wants to talk about with potential jurors is a TV show.

The goal is to remind fans of shows like "CSI," "Law and Order," or other dramas that in real life, cases aren't as glamorous or always as high-tech as the shows on TV.

"If you don't talk to them about it, sometimes they do have unrealistic expectations," Evans said. "We actually call it the 'CSI effect.'"

Evans said she's been to several courses for attorneys that have sections on DNA and the "CSI effect."

She said she talks about this whether the case deals with forensic evidence or not.

"I've learned that pretty early on, juries, because of TV, almost expect to see DNA or fingerprints," she said. DNA only comes into the case when identity is an issue, she said.

For example, Evans prosecuted Richard Dobeski in his March trial. In that case, a child testified in regard to being molested, she said. Because the crime was reported later, no DNA was available. But the child knew the perpetrator, so DNA evidence wasn't necessary because the child knew who committed the crime against him.

Cases are almost never quick as the hour installments of TV shows, either. Even high-profile cases can take months, or years.

"Very rarely is a case ever wrapped up in an hour," Evans said of cases in general. "And certainly not when DNA is involved."

La Porte County Chief Deputy Coroner John Sullivan is very familiar with the time it takes to do DNA tests.

For a DNA test, he would need to send the sample to the state police post in Lowell or FBI headquarters in Virginia. For toxicology tests, he can find out the blood alcohol level right away from the local hospital, but a comprehensive drug screen can take a week to 10 days to get the results from the South Bend Medical Foundation.

"We will get the job done, and we will, it just takes a little time," Sullivan said. "We want to get it solved just like anybody else does."

But that doesn't mean the quality of work done by the men and women in the police department, emergency services, prosecutor's office or coroner's office isn't as good as big cities.

Sullivan said the county is "blessed" to have the people it has serving them. The TV shows are more glamorous and exciting because they have to be, he said.

"If they made a show 'CSI: La Porte County,' nobody would watch it," Sullivan said.

Still, Evans said they don't underestimate the intelligence of jurors. By taking the time to explain the differences, a lot of misconceptions or expectations are cleared away.

"A lot of times once you talk about the differences, they easily grasp it once it's talked about," Evans said.



Craig Davison is a reporter for the La Porte Herald-Argus.

[Roger Kaputnik]

Evans, who is running for judge, can't seem to cadge much press that is positive.

[lovethiscity]

Evans, who is running for judge, can't seem to cadge much press that is positive.

Who cares about bad press? We have punch 10. Carol McD was caught up in a money scandel right at the election, didn't matter.

[Roger Kaputnik]

Hard to argue that point!