Phillips Open Murder Prelim Day 2: Dan, 'Death Row' and Delay

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The first day of the preliminary was interesting, with the women taking center stage:  Donna Pendergast leading the prosecution, Ariel Courtland taking the stand for most of the day, and Kim Phillips, Sean Phillips' mom, ending the day beleaguered by Pendergast over details in her testimony.  The men of the trial played minor parts.

 

Day two was one for the testosterone-producers, with Pendergast sharing a lot more time with Paul Spaniola doing the prosecution, Defense Attorney David Glancy and Judge Peter Wadel growing in stature, and guys monopolizing the witness stand, whether they were lawmen or lawbreakers. 

 

Ludington Police Officer, and acting detective of that organization when Baby Kate went missing, Tony Kuster went first.  Kuster had coordinated information with Officer Chad Skiba and visited the Phillips' household on Millerton Road, just west of US 31, arriving around 2:30 PM and staying for about 20 minutes to apprise Sean's mom of what was happening, before going back to the LPD, not long afterwards, Sean calls his phone.

 

Skiba took the call, but Kuster contacts the Mason County Sheriff's Office (MCSO) to get some assistance in going out to the Phillips, which is outside of the LPD's normal bailiwick.  Sergeant Jody Hartley of the MCSO and him arrive in separate cars, and the rest was an interview with Phillips which was discussed in detail in the original trial, without much difference here.  A couple things struck me as interesting, however in this retelling.

 

Kuster (and later Hartley) says Sean Phillips was anxious and showed several signs of nervousness in pacing, clenching and unclenching his fists and having an 'aggressive' stance.  Both DA Glancy and Judge Wadel both take issue with their characterizations, saying they could have been mannerisms normally used by Phillips when stressed.  Both officers admit Phillips was compliant when they asked to search his person, and his car and for everything else, consenting to go down to the station for questioning, and voluntarily admitting he had Kate's clothes in his pocket.  I believe his actions were more defensive actions than aggressive given such compliance.

 

It was also revealed that the much ballyhooed line of Sean's about Kate:  "It's with Ariel.", was actually a reply to Kuster asking "Where is the baby?"  In the original trial, Phillips was roundly criticized for using the pronoun 'it' when referring to Kate.  Kuster also remarked with a certain amount of certainty that the shoes Sean wore to the hospital were the Seedless shoes they found later in his room.  That's not the case, the shoes wore at the hospital, at the interrogation, and the muddy shoes found in the bedroom were all different.

 

Sergeant (now Undersheriff) Jody Hartley was next, and mostly mimicked Kuster's testimony.  One thing about the day was that Sean passively was handcuffed by Hartley after the sergeant took baby clothes out of the back pocket of Sean's khaki shorts, as if that in itself was a matter of being arrested. 

 

I hate to tell such seasoned officers like Kuster (who was on the Michigan State Police for 20 years) and Hartley that they may have felt such action was for 'officer safety', but it is an unlawful arrest at that point.  Sean consented to everything, volunteered to tell the officers where his keys were to get in his trunk, agreed to go down to the MCSO for questioning without duress.

 

Then the morning got interesting.  Former Mason County Probate Judge candidate Nick Krieger, who lives downstate came in and sat in the audience, making me believe he may be running for 51st Circuit Court judge.  Since current Judge Cooper is scheduled to retire at year's end, whoever takes his place may get the murder trial if it develops.

 

 

 

Also coming into the courtroom was Dan Ruba, who stayed on the stand for the rest of the morning.  Dan talked of some of the stuff he said at the first trial, particularly a statement Sean made in Dan's garage after a few beers involving Sean allegedly saying that he could get rid of a body due to his military training.  Bud Parrish, who was also subpoenaed but did not testify, was also present.  Judge Wadel, with a little help from DA Glancy, started a cross examination that impeached the reliability of Ruba's testimony by quite a bit. 

 

Ruba could not remember too many things and had difficulty keeping himself out of possible trouble, admitting to doing marijuana, couldn't say for certain whether he did so with Sean, and became confused as to what was actually related.  Most of his interaction with Sean was back when Ariel was living at her mom's in 2009 and 2010, but the alleged statement by Sean was done in May of 2011, or thereabouts.  The defense wanted to check more of the record, and the judge called for lunch.

 

Ruba was let out easily about 5 minutes after lunch, much to his relief.  Replaced by MCSO Detective Mike Kenney.  Other than what was said at the original trial, I learned that Ariel was interviewed down at the LPD for a little over one hour, and stayed the rest of the night, to keep her ostensibly from looking for Baby Kate.  He also told of the finding of the 'jail note' which implied an adoptive solution, and the 'prison letter' which told of Kate's accidental death. 

 

These were developed by the next two correction officers, after he explained that the prison's inspector intercepted the letter, which was then photocopied and sent on to Ariel to see what she would do.  If you remember, she did report the letter once it was allegedly stolen by her mother and made public.

 

John Long MCSO Correction Officer told of his finding of the jail note in Phillip's clothe after Sean had asked him to get a note he left behind after a shower he requested.  For whatever reason, Sean, in my opinion, wanted that note found.  Similarly, the letter Ionia Correction Security Inspector Craig Smith intercepted, was something he knew would be public knowledge.  Unfortunately for the prosecution, neither show an inclination towards murder, just an inclination to not want to be charged with murder.

 

 

 

Now came the Hollywood moment:  prisoner Rushaun DeMario ("Death Row") Burton took the stand.  The inmate had interfaced with Sean Phillips up to four hours each day, after an initial encounter in the mess hall when they were at Cason City.  He related a time in July 2013 where he and Sean were in the law library talking about things when something that troubled him later came up. 

 

It started innocently talking about famous men like Tiger Woods and Kobe Bryant getting reamed by their ex-wives for support, and Phillips allegedly made a statement about him personally picking up a baby and then getting rid of it and not having to worry about payments.  Like Ruba, this wasn't brought out until two months later, when Burton was moved to Macomb County and somehow had a revelation in October 2013 that made him write to the Attorney General.  Ironically, this is when it was noticed that the AG was getting involved in the Phillips open murder case.

 

Burton's testimony was hard to put too much credit in.  He obviously heard about the case in October, put two and two together and put the story together, more than likely.  Consider, they were in a prison law library under surveillance.  I don't see Phillips saying such a statement in such a situation, especially since Burton testified Phillips as saying he was in for something other than secret confinement of a baby. 

 

The felonies and other charges in Burton's history didn't help, nor did his motive for coming forward two months later, because he has two daughters that he cares about.  Fame and leniency at his next parole hearing may be better incentives.  It didn't help when he thought that the baby's momma was named 'something like Kate'.  Not a very reliable witness.

 

Tom Posma finished the day off, except for the bargaining between the attorneys and judge.  AG Donna Pendergast started him down the Sean Phillips interrogation transcript, until DA Glancy said enough, and had it entered into the record.  Early on in the investigation he admitted they ruled out the possibility of adoption (I welcome any of the police agencies involved to prove why it isn't possible, instead of just taking you at your word).  He went over the various locations they searched for Kate, and said the area where she might be is limited to what he called the Lemke Drain right off Modjeski Road (this is of course contingent on the near-impossible likelihood that all of the plant and soil material were picked up at around the same time by shoes that Phillips probably never wore that afternoon.  And why weren't any fresh plant and soil materials gathered around his car's foot pedals?  There surely would have been quite a bit of dirt and seeds in that area considering all the driving he did afterwards).  According to Posma, dogs were used to search the area, but they picked up nothing other than one hit with no results. 

 

Perhaps one of the biggest hits the prosecution team took that day was forensic work on the 'confession letter' from Sean to Ariel.  They had the actual letter since the fall of 2012 but didn't even start analyzing it until December 2013, keeping the preliminary open for a longer time, since the defense needed to have tests run on the letter for handwriting and other analysis.  Currently, they don't even know whether this unsigned letter was written by Sean, or the full range of fingerprints that may be on it. 

 

So when Posma was dismissed, the Judge conferenced with the lead attorneys (Pendergast and Glancy) and they postponed the preliminary for three months.  So we'll see what happens then.

(Photos courtesy of:  MLive)