Tempers Rise at Unusual Death Penalty Case Hearing

August 15, 2012

There was never much of a chance that Tuesday’s hearing in the Edward Montour death penalty case was going to be average.


Montour’s attorneys were arguing a somewhat uncommon application of the U.S. Supreme Court case Batson v. Kentucky. In that case, the Court found it is unconstitutional to strike potential jurors from a jury pool based on race. Montour’s attorneys applied that reasoning to change-of-venue decisions and argued that, if the prosecution moved Montour’s case from Lincoln County to Douglas County to get a more favorable racial or socioeconomic makeup of the whole potential jury pool, that is also unconstitutional.


Douglas County District Judge Richard Caschette has yet to make a decision on the argument, meaning the debate is simmering. It hit full boil Tuesday afternoon, though.
To wit:

• The defense attorney tried to put the lead prosecutor on the witness stand and cross-examine him.
• The prosecutor began objecting so vehemently to questions that the judge scolded, “I can handle this.”
• The judge blasted the defense attorney for suggesting a previous judge on the case was “buddies” with the prosecutor.


The already sparky hearing — after all, the defense was accusing the prosecution of serious misconduct, which the prosecution adamantly denied — reached 1.21 gigawatts when defense attorney David Lane sought to call prosecutor John Topolnicki to the stand. Topolnicki — who argued the prosecution’s side in the hearing and cross-examined earlier witnesses — would best be able to explain the reasoning behind the venue change, since he has been with the case since the start, Lane said.


Caschette denied Lane’s request, instead telling Topolnicki to make a “proffer” about the reasons. At the conclusion of Topolnicki’s statement, though, Lane was allowed to raise questions he thought Topolnicki should answer, and the ensuing back-and-forth quickly picked up all the acrimony of a cross-examination.


Lane suggested not so subtly that Topolnicki wasn’t being forthcoming about the discussion around moving Montour’s case to Douglas County. Topolnicki shouted objections — “Argument!” — with each question and said he did not have to respond, prompting Caschette’s “I can handle this” reply.


Lane then questioned whether prosecutors moved the case to Douglas County because of the presence of District Judge Paul King, a former Douglas County prosecutor. King handled Montour’s original case proceedings in Douglas County, and Lane said it was a benefit then to prosecutors that King was Topolnicki’s “buddy.”


The implication outraged Caschette, who told Lane, “I don’t appreciate you impugning his position on the court.”


And with that, Caschette closed the hearing for the day. It picks up again on Wednesday, with more hearings scheduled for Thursday and Friday. Don't expect things to cool down anytime soon.



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