Motions argued in murder case
Man charged in deaths of Atlanta family
LINDEN, Texas—Pretrial motions were argued Friday in the capital murder case of Michael Kevin Hailey, accused of murdering an Atlanta, Texas, woman and her two young daughters in 1992.
“The state is seeking to put a needle in Mr. Hailey’s arm and kill him,” Hailey’s defense attorney Bryan Simmons of the Collins Law Firm said. “Therefore, there should be a higher standard here.”
Simmons was referring to a defense motion, which, if granted, would require the state to respond in writing to every defense motion. Normally, some motions are responded to orally in court, though others may prompt a written response.
“Basically, the defense wants to sneak a peek at our trial strategy and work product,” said Cass County District Attorney Clint Allen. “This isn’t about judicial economy, it’s not about aiding the court, it’s about aiding the defense.”
Fifth District Judge Ralph Burgess, who serves both Bowie and Cass counties, denied that motion—one of eight discussed at Friday’s hearing.
Hailey, 39, is accused of murdering Gerri-Faye Butts, 29; Jessica Butts, 11; and 3-year-old Mackenzie Sullivan Butts. The three were found dead in their Atlanta mobile home on Jan. 27, 1992.
Autopsy and investigation records indicate Gerri-Faye was found strangled on the living room sofa. Jessica was sexually assaulted after being strangled with a telephone cord and Mackenzie was drowned in the bathtub.
Hailey is being held in the Cass County jail. Trial is scheduled for February 2009. He was brought to the jail in Linden from Louisiana’s Angola Prison where he was serving a sentence of 87 years without parole. The Louisiana prison sentence stems from an attempted murder in 2004.
In August, Allen announced his office would seek the death penalty for Hailey in the 16-year-old case. However, a motion filed Friday morning that was not discussed in court casts some doubt on whether a conviction might mean the end of Hailey’s life.
The defense motion asks the court to compel the state to provide an explanation for an offer of life in prison in exchange for a guilty plea from Hailey. The motion asks the court to order the state to produce any evidence that would support Hailey’s claim of innocence, such as conflicting DNA evidence or witness statements.
Another possible explanation for a plea offer might be linked to funding. Capital cases in Texas must be paid for by the counties trying them. The expense associated with the appeals process in a case where the death penalty is assessed is enough to bankrupt some smaller counties. The lawyers in the case cannot comment because of a gag order Burgess has in place.
Motions to prevent the state from creating “snitch testimony” and from recording conversations Hailey has in jail with his defense team were discussed.
“We have no intention of sending a snitch into his cell,” Allen said.
Mitch Collins, one of Hailey’s lawyers, told Burgess his client wasn’t going to talk to anyone connected with the state. Allen told the court “snitch” testimony shouldn’t be an issue.
Recording telephone conversations made by inmates is a common practice used for security and sometimes prosecution. A capital murder case in Hunt County, Texas, where prosecutors used conversations between the defendant and his attorneys during the trial was cited by Collins and Simmons as an example of how such recordings could violate the concept of attorney/client confidentiality.
Lisa Tanner, an attorney with the Texas Attorney General’s office, is assisting Allen in his prosecution of Hailey. She told Burgess there was no plan for such recordings to be heard or used by the prosecution. When Tanner said the prosecution “would not listen” to any such recorded conversations, members of Hailey’s family laughed in court.
Burgess denied the motion. He noted issues of security in the jail as cause for the denial.
“The conversations are to be recorded as they typically are,” Burgess said. “They are not to be reviewed by the state’s attorneys or jailers or whatever.”
Two other motions argued by the lawyers Friday included one that would allow Hailey to wear street clothes minus cuffs and shackles at pretrial hearings and his trial. Street clothes are worn by defendants at trial even when they are in custody so the “presumption of innocence” is preserved. Cuffs, shackles and jail attire could unfairly create the impression a defendant is guilty before evidence is presented.
Simmons told the court that media attention to the case likely would mean prospective jurors would be exposed to photos of Hailey wearing black and white striped clothing, cuffs and manacles.
Allen told Burgess he believed Hailey presented a flight risk and that his office would not oppose a defense motion for a change of venue.
Simmons argued the defense has not yet filed a motion to move the trial to another county. Simmons also questioned whether there was any risk of Hailey trying to escape.
“He’s been a flight risk since the day this case was filed. He’s serving 87 years and is facing the death penalty,” Burgess said, apparently to indicate Hailey has nothing to lose by trying to escape. “The reason they have jail clothes, the reason they have shackles is to prevent a flight risk. I’ve got to take into consideration the security necessary in this case.”
Burgess denied the motion though he assured the defense Hailey would be permitted to dress in street clothes for trial.
Burgess also considered a related motion regarding the presence of uniformed officers in the courtroom during Hailey’s trial. The defense asked that members of law enforcement clad in uniforms be kept to a minimum during the trial to help preserve Hailey’s presumption of innocence.
“I agree that if you have 20 uniformed officers encircling the defendant it’s the same as if he were wearing shackles,” Burgess said. “I will put some limitations on the number of uniformed officers attending the trial. I will take this under advisement and discuss it with the sheriff.”
Hailey will return to court for another pretrial hearing in mid-April. The motion concerning an explanation for the plea offer could be discussed as well as a defense motion filed Friday morning asking Burgess to ban “ex-parte” conferences between the state’s lawyers and the court. Ex-parte means any discussions had outside the courtroom regarding the case without both sides present. The motion filed by Collins said the defense believes such discussions have previously occurred.
February 23, 2008