Judge won’t dismiss MacNeill murder case

March 06, 2013 12:25 am  •  Paige Fieldsted – Daily Herald

PROVO — Tuesday should have marked the beginning of a six-week murder trial in the Martin MacNeill case, but instead attorneys are still hashing out issues of evidence and alleged misconduct by both parties.

In December MacNeill’s defense attorneys filed a motion to dismiss or disqualify the Utah County Attorney’s Office from prosecuting the case. On Tuesday morning the two sides met to argue the state’s motion to strike that motion.

Prosecutor Sam Pead argued that the defense didn’t provide grounds for dismissal in its original motion. Pead also argued that the defense brought forth a number of issues that weren’t addressed in the original motion, which shouldn’t be considered by the judge when he makes his decision.

“The state is entitled to know the grounds for relief when a motion is made,” Pead said. He said there was no legal basis for the case to be dismissed.

Defense attorney Randy Spencer said this case is based on circumstantial evidence, and the prosecution is guilty of not preserving evidence that could damage its case. Spencer said the only reason he brought up new issues in his reply is because new evidence came forward after the defense filed the motion to dismiss and said he would file a second motion to dismiss, including all the new evidence.

“We will do whatever you want, but these facts need to be heard,” Spencer said.

Fourth District Judge Samuel McVey said there were no grounds to dismiss the case and granted part of the state’s motion to strike. He agreed to strike the motion to dismiss as well as any portions of the memorandum that dealt with the motion to dismiss. But McVey said the defense should have the opportunity to present its case against the prosecution and the evidence it has that would support disqualifying the county attorney’s office from working the case.

McVey reprimanded both the defense and prosecution for bringing forth allegations of lying by both parties without submitting proper evidence.

“When that happens a judge automatically thinks, ‘They don’t have good legal arguments so they are tearing them down,’ ” McVey said. He asked that both sides refrain from making claims about each in other in an effort to not distract from the case.

Alexis Somers, MacNeill’s daughter, said all the issues between the attorneys is causing a delay in justice.

“It is frustrating. My mom was murdered by Martin MacNeill and all of this other stuff is distracting from what happened and getting justice,” she said. “We are just anxious to get to trial and get justice for my mom.”

Pead says he is glad McVey saw the motion to strike the way the prosecution did and now prosecutors are hoping to get back to trying the murder case.

Oral arguments have been set for March 25, at which point attorneys will argue a motion filed by the defense to immediately disqualify the Utah County Attorney’s Office pursuant to unavoidable conflict of interest. The motion, filed Feb. 27, raises questions about a wiretap performed by Utah County investigators during the summer.

According to the motion, prosecutors filed an affidavit with 4th District Judge Fred Howard asking for permission to listen to phone calls between MacNeill and Gypsy Willis. In that affidavit, prosecutors represented that they did not have sufficient evidence to prove beyond a reasonable doubt that MacNeill killed his wife, but believed they would get that through a wiretap. However, reports about the wiretaps indicated nothing useful was overheard. Despite that, murder charges were filed three days later.

“Notwithstanding the representations to the court that this prosecution could not proceed without evidence expected to be obtained from the wiretap, and notwithstanding the fact that there was no significant evidence obtained from the wiretap, and notwithstanding the fact that the lack of evidence from the wiretap led to the termination of the wiretap after only portions of 10 days were monitored,” such charges were filed, defense lawyers argue in the motion. “The UCAO clearly intended to charge MacNeill regardless of the results of the wiretap, and affirmatively misrepresented its position to Judge Howard stating that it could not proceed in charging MacNeill without the wiretap, and allowed MacNeill his liberty just long enough to conduct the wiretap.”

The unavoidable conflict of interest occurred because of the prosecutors’ conduct, which could be grounds for a civil lawsuit or criminal charges for an unlawful wiretap, the defense argued. Had the defense done a similar thing defense attorneys likely would be charged with tampering with evidence or being in violation of Utah law.

Additionally, the county attorney’s office acted as both the investigating agency and the charging agency instead of allowing the Pleasant Grove Police Department to conduct the investigation, which represents an additional conflict. Thus, defense attorneys argue, the Utah County Attorney’s Office should be disqualified from the case and be replaced by the Utah Attorney General’s Office.

Prosecutors have yet to reply to that motion.

Following the arguments an evidentiary hearing will be scheduled, allowing the defense to present its case as to why the Utah County Attorney’s Office should be disqualified.

Most of the documents in the case have been sealed. Pead said he had no comment about why the state chose to seal the documents in the case.

MacNeill is charged with first-degree felony murder, accused of killing his wife Michele at their home in Pleasant Grove in 2007.

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