Judge David Ritchie has denied a motion to quash the murder charges against Robyn Davis and Carol Sissy Saltzman, accused of second degree murder in the 2009 death of Davis's husband, Brian. And the trial is set for April 23rd at 9 a.m.
However the defense plans to appeal to a higher court.
The motion to quash stemmed from continuance of the case last November when the evidence part of the trial was about to begin. Prosecutor Rick Bryant became seriously ill and the case was put on hold. The jury had been picked but was never sworn-- that is was never administered the oath to do its duty.
No one disputes that Bryant had legitimate health concerns come up. The dispute is over whether the continuance resulted in unfair harm or prejudice to the defendants and whether they only fair remedy is to throw out the charges.
Bryant testified during the hearing and said he did everything within his power to prevent the case from being continued. Several who know him suggested he would have gone forward with the trial in November to the detriment of his own health.
In testifying about his health problems and symptoms that led to the continuance, Bryant said he felt terrible about what it happened. Bryant underwent a stress test and was told by a heart doctor he would not drop dead of a heart attack within a few days. Still, the cause and severity of his health problems were as yet unresolved.
After Ritchie's ruling, Bryant said it's in the interest of justice that the women be brought to trial. "My number one concern are the victims and their families who have been wanting justice. Whether we win or lose is irrelevant. It's a very difficult case. It's a circumstantial evidence case. It's a lot like the Casey Anthony case down in Florida, the Scott Peterson case in California. These circumstantial evidence cases, we all know how difficult those are. But everybody deserves their day in court. Everybody deserves justice and that applies to the families as well as to the defendants,"said Bryant.
However defense attorneys Glen Vamvoras and Shane Hinch say delays have hurt their clients and that the only fair remedy is that the charges be thrown out. Vamvoras responded to a question about those who see their efforts as trying to get the defendants off on a "legal technicality." Said Vamvoras, "We wanted the trial to go forward (last November) and that is the point that they fail to recognize. We were asking the court please take some other steps besides send this jury home. I would much rather the jury cut these ladies loose. But if a technicality will cut them loose, then so be it. We're obligated to assert those technicalities, to argue those technicalities and take them up on appeal and that's what we're going to do."
The state had argued that the judge has broad discretion on many of the issues taken up during the hearing, such as when to swear the jury and whether to grant a recess or continuance. But Saltzman defense attorney Shane Hinch argues the law is in their favor. "The law clearly states that once a trial has commenced a continuance shall not be granted." When asked what will happen on appeal Hinch said, "I think that if the appellate court follows the law, which I think we're seeing is hard to get a court to do, if they follow the law then I think they have to grant our motion to quash and throw the case out on double jeopardy grounds."
The defense had argued that First Assistant District Attorney Cynthia Killingsworth could have taken the case forward when Bryant became ill. But Bryant testified Killingsworth had no duties in the case and could not have prepared for it in three weeks let alone three days. Bryant says that's because it's a very complex, complicated case with 1000's of pages of testimony and evidence. He also said he presented the case to grand jury and doesn't even remember if Killingsworth was there.
The defense tried to suggest that Killingsworth was familiar enough with the case to go forward and wanted to put on a grand jury witness they evidently felt would support that theory. But the court refused to let the defense put on witnesses, who testified before the grand jury, specifically an expert on cell phone tower analysis.
In arguing that they should be allowed to put on the witness, Vamvoras told the court the cell phone tower analysis is the lynch pin of the state's case, suggesting that if Killingsworth was able to present that part to the grand jury, she was familiar enough with the case to take over for Bryant. The state objected to the calling of the witness because grand jury proceedings are secret and the judge found in favor of the state.
As well, Bryant denies that the state has learned anything as a result of the continuance that has helped in the prosecution of Davis and Saltzman. However the defense position is that the delay and court proceeding that took place last November unfairly allowed the state to become privy to flaws the defense planned to reveal to the jury.
Brian Davis was found shot to death in July 2009 off Big Lake Road. Then authorities said Davis had supposedly been trying to buy a boat, and that his wife Robyn told investigators she last saw him on June 29. Investigators would later charge Robyn Davis and her close friend, Carol Saltzman.