Chesterton Tribune

 
 

Defense makes unsuccessful attempt to get mistrial as McCowan trial enters the home stretch

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By JEFF SCHULTZ

Once prosecutors announced they rested their case late Wednesday morning, Dustin McCowan’s defense attorneys John Vouga and Nick Barnes asked Porter County Superior Court Judge William Alexa to declare a mistrial.

Barnes said that the clothing items that were found on Amanda Bach’s body as well as the black flip-flops and the orange shirt found by the Canadian National railroad tracks did not have any of trace of McCowan’s DNA on them according to testimony given by members of the FBI, but were admitted by the judge as evidence despite objection by the defense for lack of foundation.

Vouga added that the sealed bags containing the articles had initials of FBI agents who had not testified in the trial that they did or did not alter the materials when they handled them and he asked in a motion that the items be excluded.

Barnes said that because there had been “an immense amount of testimony” about the items, the defense made a motion for a directed verdict or a mistrial.

He said that the state had “failed to produce any direct evidence” linking McCowan to the crime and, in his opinion, did not show sufficient proof of guilt beyond the burden of reasonable doubt.

Chief Deputy Prosecuting Attorney Matt Frost said the items were admitted and said he believes the state has offered more than just prima facie evidence, hearing the testimony of 43 witnesses in eleven days.

Alexa said that the clothes were never conditionally admitted as evidence just as he ruled. “They will not be withdrawn,” he said.

Alexa said he agrees that this is more than just prima facie evidence and there is “more than substantial evidence” for the jury to make their verdict. He denied the motion for mistrial.

Cell mate

One of the defense’s first witnesses was Timothy Reeves, a current inmate at the Westville Correctional Facility serving a 12-year sentence for dealing cocaine, who said detectives of the Porter County Sheriff’s Police asked for him to get information on McCowan while the two were cellmates for a few weeks at Porter County Jail.

“They were looking for me to snitch,” Reeves testified while in Barnes’ direct examination.

Reeves said he met McCowan when he came to PCJ in Sept. 2011 and McCowan said he was innocent of a murder charge and was “sad he didn’t get to go to the funeral.” It was then that Reeves met with detectives who were trying to get him “to hop on (McCowan’s) case for a better plea bargain,” but Reeves said he never cooperated with them. Reeves said he and McCowan became friends.

In cross-examination, Frost asked Reeves if McCowan’s father, Elliot McCowan, offered him favors.

Reeves said he had come to know Elliot McCowan, who helped him get money in his commissary account to order food off the internet. Frost asked if Reeves thought it was odd for a police officer like Elliot McCowan to carry on a relationship like that with an inmate. Reeves answered he didn’t think so and said he believed Elliot McCowan was “just good people.”

Shelby Reilly, Trey Swanson

Meanwhile, the defense called two of McCowan’s acquaintances to testify.

Shelby Reilly said she and McCowan were close and that she had been in love with him at a time before Bach was killed. She said she was not aware of McCowan’s and Bach’s relationship and had never met Bach.

Answering Barnes’ questions as to her whereabouts on Thursday, Sept. 15, 2011, hours before Bach was supposedly killed, Reilly said she was dropping off a friend at their house close by Dean’s General Store and then she returned home.

Reilly said she had texted McCowan that evening and got a text at 11:19 p.m. saying he was at home and then another text at 12:34 a.m. asking if she would come over. She said she didn’t know if Bach was with him when he texted her.

Police had verified her alibi with her grandfather, Reilly said. She testified police had never checked her DNA or fingerprints.

In Polarek’s cross-examination, Reilly said she thought the texts were strange including one from McCowan at 6:30 a.m. that Friday asking her to call him if she had seen Bach since she never met her.

“Were you jealous of the relationship that Amanda had with Dustin?”

“Maybe a little,” Reilly said.

Reilly told Polarek she denies making statements to detectives that she hated Bach and other spiteful remarks.

In his testimony, Robert “Trey” Swanson, who graduated from Wheeler High School with McCowan, said McCowan wasn’t his outgoing self when he came to visit Swanson at Indiana University with three other friends later on the Friday Bach was reported missing. He said McCowan had only one or two drinks at a party and spent a lot of time on his phone talking about Bach.

Swanson said the group had originally made plans to come visit him the weekend before but the plans fell through.

“But they did come the weekend when a 19 year-old girl was missing?” Polarek asked in her cross-examination. Swanson said if someone who was close to him were missing, he would have stayed home to look for them.

Paper carrier sees flip-flops

The defense’s first witness was Deborah Meyers, a newspaper carrier for The Times of Northwest Indiana who routinely passes Wheeler High School and C.R. 625 West at about 3:30 a.m.

On Friday, Sept. 16, 2011, Meyers said as she was turning north onto C.R. 650 West, crossing the Canadian National railroad track, she spotted two black flip-flops with her headlights on pavement near the utility, about three feet from each other. She testified that before that she heard a “Chewbacca-like moan” on 625W about three-quarters of a mile away from C.R. 350 North. She said she thought it was a deer but was afraid to investigate.

The next day when Meyers passed the railroad tracks, she said she saw the flip-flops again, pressed together near a utility pole.

“They had been moved,” she said. The pair was gone by the time she passed again on Sunday, Sept. 18, Meyers said.

Detective

And finally, Vouga called PCSP Sgt. Erik Wiseman to the witness stand and questioned him on whether or not he followed up with certain persons in the investigation days after Bach’s death.

One of those was an employee at Quaker State and Lube in Portage where Bach had worked who allegedly saw a vehicle in the parking lot of Dean’s General Store on Ind. 130 and a “tall, slender middle-aged man” standing next to it.

Vouga also probed as to why Wiseman had not investigated further a male who reportedly gave Bach “large’ tips at Quaker State and Lube and another individual who had been a convicted sex offender. Wiseman said none of his superiors told him to gather DNA or take fingerprints to be analyzed.

 

Posted 2/21/2013