Chesterton Tribune

McCowan trial to begin February 4; no change of venue

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By KEVIN NEVERS

Last month, Dustin McCowan’s defense attorneys told Porter Superior Court Judge Bill Alexa that, given the number of witnesses whom the state could potentially call to testify—148—they would need most of the fall to take depositions and prepare their case.

For that reason, attorneys John Vouga and Nick Barnes had been hoping for a November trial date.

What they got is a February date.

But, at hearing on Thursday before Alexa, that’s just about all they got.

Vouga and Barnes had wanted Alexa to change the venue of the trial. Alexa refused.

They had wanted him to declare dog-tracking evidence inadmissible. On that motion Alexa hasn’t ruled yet but he did signal his willingness to reconsider Indiana case law which—since 1917—has clearly disallowed such evidence when used to show proof of guilt.

Vouga and Barnes had also wanted Alexa to order the release from evidence of 29 firearms and a Playstation belonging to McCowan’s father, seized during the execution of a search warrant on Sept. 17, 2011. Alexa denied that motion as well, on the grounds that they have no standing, as Elliott McCowan is not actually their client.

Begin with the trial date. Based on Vouga’s estimate that the trial is likely to last a minimum of three weeks, Alexa scheduled it to begin at 1 p.m. Monday, Feb. 4, 2013. Final pre-trail conference: 9 a.m. Friday, Jan. 4.

Both Vouga and Chief Deputy Prosecuting Attorney Matt Frost said that the Feb. 4 date works for them.

Change of Venue

In arguing for a change of venue, Vouga cited not only “prejudicial” and “inflammatory” press coverage but also a flood of social media sites “plastered with derogatory” comments about his client. One of them—a Facebook page called “Justice for Amanda Bach”—has had fully 16,000 “likes,” Vouga said, a sizable fraction of Porter County’s entire population.

“We need a fair and impartial jury,” Vouga told Alexa.

Alexa, for his part, asked Vouga who exactly is “liking” the Facebook page in question.

Vouga was unable to say, although he did allow that Facebookers anywhere—“California,” by way of example—could be “liking” it.

As an alternative to a change of venue, Vouga urged Alexa to bus in a jury from another county.

Frost, however, objected to the motion, on the ground that under Indiana Code a change of venue motion must be filed 10 days after the defendant’s initial hearing. And the exception to that rule—“subsequently discovered grounds”—simply doesn’t apply in this case, Frost said.

Vouga replied that it was only as recently as June 8—after the Times published a story on the case—that he became aware of the extent of the coverage. “It’s not our fault that this case is generating excess publicity,” he said. “And there’ll be more and more pre-trial publicity as the trial draws closer.”

Vouga also suggested that the only reason which Frost could have for objecting to the motion is because the state wants a “prejudiced jury.”

That comment prompted an adamant and angry response. “I object to that,” Frost said, after banging his fist on the table. “I object to that. Stop slurring me.”

“A venue change is something that’s not going to prejudice the state in the slightest,” Vouga concluded.

Alexa rejected Vouga’s motion, both as a technical matter and on its merits. “The 10-day rule is exactly what it is,” he ruled.

More to the point perhaps, Alexa disputed Vouga’s contention about the press coverage’s prejudicial nature. “I ask every juror if they’ve heard and read about the case,” he said. ‘Can you set that aside and disregard it?’ I think you can get a fair and impartial trial in this county. Any case at all, it’s in the papers.”

Alexa did say that, should it appear during jury selection that the pool has been prejudiced by the press coverage, at that point—and only at that point—will he consider a change of venue.

Dog-tracking Evidence

Barnes presented the case for the inadmissibility of the dog-tracking evidence. In particular, he cited case law—originating in 1917 but with two other rulings within the last 25 years—which has held, pretty clearly, that dog-tracking evidence may not be used in a trial to show proof of guilt. To that end, Barnes quoted a 1987 ruing which concluded that such evidence “is not sufficiently reliable to be admitted into evidence.”

And “the only purpose for the dog-tracking testimony,” Barnes said, is an attempt to link McCowan to Bach’s body and her abandoned vehicle.

Barnes noted as well that dog-handler and retired PCSP Sgt. Charlie Douthett’s bloodhound Jury is not a certified tracker.

In response, Deputy Prosecuting Attorney Cheryl Polarek led Douthett through a detailed direct examination of his involvement with the case on Sept. 21-22, 2011, when he and Jury conducted a number of tracks, in the hope of locating Bach’s missing cell phone and the murder weapon.

Among other things, Douthett testified to the following:

•Using standard protocols designed to preserve their integrity, he prepared several “scent pads,” one for McCowan, one for Bach, and several others: from a Detective Bureau secretary and a PCSP officer for tests at the scene.

•Jury, following McCowan’s scent, tracked from a utility building on C.R. 625W—across the street from his home—to the site where Bach’s body was found; and tracked as well from Dean’s General Store on Ind. 130—where Bach’s car was found abandoned—south along Jones Road and then C.R. 650W, where Jury’s behavior was consistent with what Douthett called a “proximity alert.”

•Jury, following Bach’s scent, similarly tracked from the utility building to the site where her body was found but took a different route from the one she did when tracking McCowan’s scent.

Douthett did say, under direct examination, that he had some “concern” when asked by the Porter County Sheriff’s Police to participate in the search for the cell phone and murder weapon, because since his retirement in 2008, he has not regularly been training Jury.

Under Barnes’ cross-examination, Douthett stated the following:

•Under certain circumstances, it’s possible for a scent to last in excess of five months.

•Under certain circumstances, it’s also possible for a bloodhound to track a person who’s traveled in a vehicle.

Alexa, for his part, agreed with Barnes that “the State of Indiana has not recognized the reliability of bloodhound evidence.” In deferring his ruling on the motion to exclude that evidence, however—until he’s had time to research the issue—Alexa did say that “it may be time” to open the door to the admissibility of dog-tracking evidence in Indiana courtrooms.

Two Other Motions

As a “courtesy” to McCowan’s father, Elliott McCowan, Barnes filed a motion to force the PCSP to return 29 firearms and a Playstation seized by the PCSP during a search of the McCowan home. Elliott McCowan, a Crown Point police officer, testified that among the firearms taken were his duty sidearm, issued by the CPPD, and two long guns which were not issued by the CPPD but which he does take on patrol.

Frost argued that Barnes has no standing because Elliott McCowan is not his client.

Alexa concurred with Frost and urged Elliott McCowan to file suit against the PCSP to force the return of his property. “The standing question is a real question,” he said.

The final motion filed by Barnes and Vouga: one to force the state to release various documents.

Frost said that the state had provided the defense with the documents in question and that the defense must have lost them.

Vouga was not amused. “If we don’t have it, they didn’t give it to us,” he said. “I’m not in the habit of losing documents.”

In any event, Frost promised Vouga that he would make those documents available and all Vouga had to do was ask. “I’ll do it,” he said. “I just don’t know why they filed this matter.”

 

 

Posted 8/17/2012