What You Need to Know About the Prosecution Appeal of the Sean Phillips Open Murder Dismissal

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“We have evidence that we are convinced will prove beyond a reasonable doubt that Sean Phillips murdered his own daughter,” Attorney General Bill Schuette said one year ago.

On Thursday, October 9, 2014, Donna Pendergast, a member of the Attorney General's Office specializing with trying murder cases without presence of a corpse, filed an appeal to the 51st Circuit Court of Judge Peter Wadel's ruling in the preliminary of Sean Phillips' open murder trial.  Judge Wadel ruled that the prosecution hadn't proved that Baby Kate (the presumed dead daughter of Phillips) was dead, and that even if a letter penned by Phillips and all other evidence was to be taken into account as factual, there was nothing showing that death was anything other than accidental  With no criminal intent shown, first or second degree murder could not be inferred with the state's case. 

Process dictates that Defendant's attorney, David Glancy, can file his own brief, and probably will, by October 30, this Thursday.  I was impressed by Glancy's response to Pendergast's original filing in Judge Wadel's court filed on February 3rd, 2014 which I recently reviewed at the county clerk's office.   In it, he used several cases to defray the State's main claims about corpus delecti- the principle that a crime must have been proven to have occurred before a person can be convicted of committing that crime- being evident. 

He used from People v McMahon (1996):  "The corpus delicti of murder merely requires proof of a death and of some criminal agency that caused the death... The purpose of the rule is to exclude other possible explanations for a person’s disappearance, such as death by accident."  And from People v Fisher (1992): "Al prosecutor may not make a statement of fact that is unsupported by the evidence."  His most convincing argument was from a 1923 case (People v. Kirby), which was very similar in context.

If Glancy files a response brief, the prosecution may file a reply brief within three weeks.  An interesting addition to the usual mix is that before the process is finished, we will know who will succeed retiring judge Richard Cooper in the November election, and that could very well be the county's prosecuting attorney who signed the appeal form with Pendergast, Paul Spaniola.  If Cooper rules for the appealers and Spaniola wins, the question is who will the judge wind up being when the trial begins. 

But until and if that happens let's review the strength of the appeal on what looks to be a strongly supported argument by Judge Wadel.  The brief starts out with a 15 page "Statement of Fact" that is broken into four sections.  Sean and Ariel's tumultuous relationship, the day of the disappearance, Phillips statement and admission from prison, and the district court dismissed the case. 

The appellant puts forth only one main argument worded thus: 

"The District Court abused its discretion in dismissing this case when there was probable cause to believe that Sean Michael Phillips committed the crime of open murder"

For explanation of terms: probable cause is the standard to which a court believes that a crime has been committed; preliminary hearings are often referred to as probable cause hearings.   If the prosecution cannot make a case of probable cause, the court must dismiss the case against the accused.  An abuse of discretion is a failure to take into proper consideration the facts and law relating to a particular matter; an arbitrary or unreasonable departure from precedent and settled judicial custom. 

In her analysis, Pendergast states:  "The District Court Magistrate abused his discretion when he failed to bind the matter over to the circuit court."  Then proceeds to argue four different points that she already brought forth in trial.  First, that Phillips had a motive to kill Kate.  Second, that Phillips had an opportunity to kill Kate.  Third, Phillips other behavior demonstrates a consciousness of guilt.  Four, Phillips' specific admissions in his letter to Ariel. 

One can also sense that Pendergast is flustered with Judge Wadel's decision since she refers to him as a magistrate, which although is technically a correct usage of the term, downplays his actual position of elected district court judge.  A magistrate by job title, Paddy Baker, also serves the 79th District Court and has far less powers than Judge Wadel.

Attorney Pendergast puts forth with some precedence that “preponderance of direct or circumstantial evidence, and reasonable inferences drawn therefrom” can be used to prove corpus delecti.  Pendergast comes to the following conclusion thereafter (K.P. is Katherine Phillips aka Baby Kate): 

“More than three years have passed since the day that K.P. disappeared while in Phillips’ custody without any sign that she is alive.  The evidence points to Phillips killing K.P. and disposing of her body. Phillips’ claim of accident is inconsistent with the circumstances around K.P.’s disappearance. Whether or not the death was caused by accident is a question for the jury.

No universal and invariable rule can be laid down in regard to the proof of corpus delecti. The presence or absence of a particular item of evidence is not controlling; the issue is from whether all of the evidence it can be reasonably inferred that death occurred and that it was caused by a criminal agency. Every case depends on its own peculiar circumstances. The totality of circumstantial evidence in the present case is more than sufficient to establish probable cause to satisfy the corpus delecti requirement of homicide as well as probable cause that the defendant is the one responsible for committing the crime of open murder.

It would be patently unfair and contravene public policy to allow the District Court dismissal to stand. The law countenances logic, common sense, deduction and reasonableness, not cunning, guile deceit and subterfuge. A defendant should not be rewarded for being shrewd enough to remove all traces of physical evidence and declining to confide in anyone as to the location of his victim’s body. So long as the case can be made circumstantially and inferentially, the law should not protect the stealthy and proficient murderer. Bill Schuette, by Donna Pendergast, assistant attorney general, and Mason County Prosecutor Paul Spaniola respectfully request that this honorable court reverse the 79th District Court and bind the matter over to the Mason County Circuit.”

 

The State's case included five exhibits to illustrate its preponderance.  Exhibit A was the transcript of Sean Phillips interview at the sheriff's office with Detective Tom Posma.  Exhibit B was Phillips' jailhouse note where the inference is that K.P. went through a black market adoption.  Exhibit C was Ariel Courtland's letter that precipitated Phillips 'confession letter' which is Exhibit D. 

Exhibit E is Ariel's letter in reply to the 'confession letter, where she asks quite a few questions about it and states:  "I ripped and burned the last letter you sent after I showed your parents, so you don't have to worry about that ever getting out or being used against you."

Maybe Mr. Sean Phillips will learn something from the experience, he obviously forgot what he pointed out in his interrogation (transcript, p.50, lines 7-10):  "(Ariel) once sold me her phone and then reported it stolen around the time that we were about to go into court (for disputes over their other child, Haley).

Conclusion:  There is nothing new that the prosecution brings out for this appeal, it is still the standard circumstantial evidence and legal support that they insist points to murder that they brought to the table in front of Judge Wadel.  Wadel took a long time in crafting his decision for dropping the charge, a surprising result to some, and explained it well. 

If Judge Richard Cooper takes as long a time to craft his decision in reverse, will it address all the points Judge Wadel made in his decision and follow legal precedent that the defense will likely throw out in their brief as well?  We may know by Christmas.

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Defense granted 21-day extension in Phillips murder charge appeal.   An appeal by the state of Michigan in the murder case against Sean Michael Phillips will take place on Dec. 5, at 1:30 p.m., in 51st Circuit Court.

A hearing was held this morning in front of Judge Richard Cooper to extend the defense’s brief in opposition to the state by 21 days (up to November 21).