Phillips Open Murder Prelim Day 1: Pendergasms and Pendergasps

[XLFD]

First Impressions

If you've not been in a Mason County cave, and we need some jurors that do, you are aware of the open murder trial of Sean Phillips is about to start after the preliminaries are taken care of, two years after he was found guilty of secret confinement of his daughter Baby Kate, and given 10-15 years in prison.

I got there early for the preliminary hearing which was scheduled to go off at 9 AM sharp, but when you have attorneys from all over coming to help out with the defense and prosecution, along with transporting the man-of-the-hour up for his trial, you sometimes get delays.  Sean Phillips was led into the courtroom by a couple of CO's, wearing a jailhouse tiger outfit, mostly navy blue with orange and prison numbers around the shoulders about fifteen minutes after the hour.

Meanwhile, before the trial was gaveled to order by Judge Peter J. Wadel at a little after 9:30, the attorneys filtered into and out of the courtroom.  Donna Pendergast, the Attorney General's addition to the prosecution team, looked like a formidable presence, and she needed to be, because she carried the weight of the prosecution's case all day.  Mason County Prosecutor Spaniola was AWOL at the start of the day, and when he wandered in later, he questioned one minor prosecution witness for about fifteen minutes and let the lady from the state-y take charge of the rest of the day.

On the defense side, you had a nice looking line-up with heavy-hitting John Smietanka, former U.S. attorney for western Michigan and twice the Republican nominee for state attorney general, acting as an adviser, and Gene Debbaudt, clutch-player former head of the FBI’s Grand Rapids office and now a private investigator, acting as an assistant to-- low-average local public defender David Glancy.  Both Smietanka and Debbaudt stayed off the record for the full day, you could sometimes see Debbaudt whispering to Glancy, and see Smietanka get up and move about, but they let Glancy carry the water all day. 

         Smietanka, Phillips, Debbaudt, and Glancy.  That's my grey shoulder and nose in the upper left corner

The audience was mostly media, only a handful of people like me who were there for fun or for there own interests, whatever that was for them.  Beyond the general police used for security, and those who were there for being witnesses for the prosecution, was Chief Mark Barnett, who I sat rather close to in the back row of the courtroom.  Like me he apparently likes his back secure.  He chatted amicably when Ariel Courtland (Baby Kate's mother and star prosecution witness, as if you didn't know) came over, but my presence was noted and she went back out of the courtroom until she was later called in.

The Prelims Begin

Donna Pendergast read a long list of about a dozen stipulations to begin the proceedings to outline her mode of achieving her goals, and then shortly thereafter Ariel Courtland was called in.  Now, I will assume you have access to much of what she attested in the first trial's prelims and actual trial, so I won't recant that here.  AG Pendergast often did make her (and later Sean's mother Kim Phillips) recant what was already part of the record, or cite records that 'speak for themselves' at a preliminary investigation.  Donna is apparently used to playing in front of the jury, but Judge Wadel had to remind her at times that he is the one she plays to in this hearing. 

Ariel's testimony was largely sympathetic towards Sean's past and temperament as she answered questions from Pendergast for the rest of the morning; Ariel would remain on the stand until after 2:00 PM.  Here were a few things I learned from her testimony, some of which may have been brought up before but were new to me:

1)  During her pregnancy, Sean had given her $60 to be used towards an abortion, but she used it on a pack-and-play.

2)  The two trips taken to Grand Rapids concerning adoption of Baby Kate were Ariel's idea, and Ariel had taken more of an active role than mentioned before in the process

3)  According to Ariel, Sean would only be wearing his black seedless shoes, but then she made some comment about some white and brown ones he had also.

4)  After receiving the 'accidental death' confession letter from Sean, she showed it to Sean's parents within hours of receiving it.  She later said her own mother (April Lange) stole that letter, along with some prescription drugs from her.

5)  There was never any verbal or physical abuse on Sean's behalf towards Ariel or the kids, "he would never get angry".  Whenever he discussed adoption or abortion he would always use rational reasoning to sway her.

6)  She had never changed the baby's diaper in Sean's car, other than on a road trip where it was taken care of, leading one to suspect the soiled diaper found in his car that day got there after he allegedly took off with the child.

7)  When they stopped at DHS, she had gotten up and unbuckled Kate, but buckled her back in when she had a change of mind.  Sean, for some reason did not drop her off at the hospital, which he drove by on the way back to her place.  Later, back at her place she allegedly unbuckled Kate and went out to get her stroller, during which time Sean drove off.

8)  A couple of letters of her (wrote after the original trial) sandwiched Sean's 'confession' letter.  The first was written to plea with him for answers to what happened with Baby Kate, the latter was to get more info.

The most annoying aspect of her testimony was that whenever she did have an emotional moment, like when she opened the evidence which had the clothes her baby is supposed to have worn that morning, the clicks of cameras caught her grief.  They also caught her in a moment of mirth about something.  Most of the time she was stoic and unemotional in her delivery.

During a court recess when few were in the courtroom, Ariel came over to DA Glancy and they conversed for about a minute in hushed tones.  For the rest of the day, she was sequestered from the testimony of the other witnesses, and removed from the room.

Ken Baum was the next witness, a Mason County Sheriff Deputy who delivered the May 22, 2011 subpoena to Sean Phillips at home that said he had to get a paternity test.  This guy had a definite military bearing and was indeed a military man like Sean Phillips was, who objected to the way that Phillips reacted to the subpoena, saying that Phillips had said something about having to pay, which the deputy took offense to.  Later, Kim Phillips who witnessed the service, said that observation was false.  Baum reminded me of a drill sergeant in manner, so I think he may have been overly sensitive to Sean's being served that day, and got more involved than he should have by admonishing Sean.

Alaina Campbell was next, and she offered little more than she did the first time in corroborating Ariel's story, including saying favorable things about Sean's character.  Phillips had come over to her apartment to help fix something at one time, but didn't have much personal encounters with him.

Anna Appledorn testified as she had at the original trial that Ariel had come in that afternoon at around 1:45 PM acting frantic and asking about her baby, and whether Sean had dropped by.  Before she finished her testimony, Chief Mark Barnett left the courtroom with a purpose.

Chad Skiba, former LPD officer, Urka Chevrolet salesman, and current Whitehall Police Department officer was next.  He was the first police contact with Ariel and Sean, and conducted a search of Ariel's apartment later on (with Dan Ruba), and later searched the Birch Lake Apartment area for clues of Baby Kate's whereabouts.  His testimony mirrored his original narrative.  Once WPD Officer Skiba left the room, a few seconds later Chief Barnett came back.  There was rumored in the first trial that there was some bad blood between the two shortly after Skiba left LPD, and this seemed to show there still is some.

The Bloody Finish

The days testimony ended with Kim Phillips.  It is my impression from the amount of effort AG Donna Pendergast used on her, and the mass of testimony that she had her go through from the original trial and from supplementary questions at last years 'secret' hearings at the courthouse with some of the principals from the case, that her stories weren't consistent.  But it was very hard to follow, and Pendergast used a lot of time to just show some minor inconsistencies, drawing objections from the defense and exasperations from the judge.  She may have been tiring at the end of a long day, but sometimes to me she just seemed mean to this last witness-- meaner than Spaniola gets.

The worst thing to come out of her was to come from the friendly prosecution, where Glancy asked Kim Phillips a series of questions about Sean's character, and after receiving mostly good answers about his non-violent past, finally elicited a juvenile offense of "destruction of property" in his background when he asked about any kind of offense in his past.  The day ended with her.

The preliminary is said by many in this case to be just a step that has to be stepped on before getting to the real thing, but with what came out today, I am having a hard time seeing first or second degree murder taking place.  Unless they can get something better tomorrow beyond the "accidental death" letter that may or may not be verified to be his, I think open murder is going to be hard to show.  But this is Mason County.

(Photos courtesy of John Housman, MLive)

[Willy]

X

Has it been established that the confession letter was written by Sean? If so then I am surprised they have not offered Sean a plea bargain to a lower charge, something I'm sure he would grab onto which could run concurrently with his 15 year maximum sentence for kidnapping. If this was really an accident and the letter is genuine then why the murder charges instead of manslaughter or some other low level charge?

[XLFD]

Nope, that's why the preliminary hearing was extended, because the prosecution took so long processing the letter, and keeping it from the defense for its own analysis.  The defense needs three months to do their own checks, and it was funny the way the prosecution took umbrage to them handling that letter, when they acknowledged the original letter went out to Ariel, and listed a few names that had allegedly handled the original letter outside of police officers. 

They compounded this compromising of the evidence by having various witnesses handle the original letter on the witness stand.  The original will be needed for proper handwriting analysis, and any other test that may show that Phillips handled the letter, such as fingerprints.  Sean should have his fingerprints all over this letter if he wrote it, but they may not be recoverable now because of all the unprotected handling that has happened over time.  The prison inspector should have done fingerprints before sending it along to Ariel, but he didn't.

[AQUAMAN]

Willy, all I can say is that you should know by now, this County goes after locals by the throat first every time, then, perhaps some leeway may be given if the evidence is weak in the end. Strange, these people are professional corrections officers, and still, they tend to make rookie mistakes, like the handling of a letter. I ask why are they opening and reading private mail without the defendants permission to begin with? Is it legal? I think it's routine operating procedure with everyone. Whenever we see these rookie mistakes being found during court proceedings, I just have to question the authenticity of the evidence to begin with. I don't think it's legal or admisable now. We also see repeated violations of the discovery process with MCPO in this county all too often. Here's another clear example of the violation, thus, the judge needs to at least admonish the PA for this, or throw out that tainted wrongly obtained and withheld evidence imho.

[XLFD]

Prisons do have the right to review mail being sent out or coming in, they just need to provide a reasonable suspicion that contraband may be coming in or going out, whether there is a potential safety issue, and other vague issues that trigger the invasion of privacy. 

As the prison inspector said, they had what amounted to a standing warrant to look at Phillips' mail going or coming, and I think that was a sensible policy, being that they were hoping to find the whereabouts of Baby Kate (albeit late). 

[XLFD]

The prosecution has had Sean's mother on the stand two times, and have yet to ask her anything about the condition of Sean's shoes when he showed up back home, what shoes he was wearing, and whether he changed his shoes.  The only reason I can envision for not doing so is that her testimony would debunk the Seedless shoes 'myth'.  The shoes he wore to the hospital just an hour before he allegedly took off with Baby Kate were not the Seedless shoes they got the plant and soil material from. 

The record does show that the shoes he wore to the interrogation were different shoes than what he wore to the hospital, so Sean did likely change his shoes before the police arrived.  The Seedless shoes, after being retrieved the next day, and then photographed, went untouched in the evidence room for six months before they had them analyzed by specialists at MSU, perhaps because it was a last ditch effort for the prosecution to grab onto, and deflect the fact that they had a weak case.

[AQUAMAN]

Contraband in letters? I find it hard to believe that any prisoner already in full custody has been entered into any facility and still have any contraband. Letters can be sniffed by dogs, and also scanned, without invasion of privacy by opening and reading contents. Withholding key evidence from the defendant's attorneys during a discovery period before trial, is at least, a willful and wrongful procedural mistake that the judge needs to admonish, and perhaps, disqualify. That's the entire reason for discovery, so that both sides know what the claims and evidence will be so they know how to react, or whether to disengage in prosecuting/pleading the case. Fighting dirty and unlawfully isn't a good sign of how the PA's office sees justice. I'm not saying this because I believe Sean is innocent, but it violates his rights. I also said long ago, I felt a charge of manslaughter was more in line with the facts of the crime, not murder. I guess they always go for the throat, so they have a good way to look fair later when they modify charges downward.

[XLFD]

It's just a fact that prison inmates don't have a lot of rights-- which makes them prisoners in the first place.  That's why I find it incredible about how many people are okay with giving up their basic rights to achieve more 'security' or 'safety'. 

The only correspondence that a prison allows to go through unmolested in all cases is letters between the inmate and his attorney.  The 'jail letter' found in Sean's orange jumpsuit after a shower was probably going to his attorney Annette Smedley, but was intercepted before he sent it.

[AQUAMAN]

Has the envelope with the address also been entered into evidence? If it is, and his attorneys name is on it, then this may be another snafu.

[XLFD]

The jail note never made it into an envelope, and it would be inconclusive as to figure out whether it was scheduled to be put in one, or maybe just handed to Attorney-at-the-time Annette Smedley, who did try to block the admission of the note due to attorney-client privilege, overruled by Judge Cooper.

The prison letter, from what I could tell from the hearing, was sent directly to Ariel Courtland, and had no 'privileged' status, and was entered into evidence.  The authenticity of the prison letter, in my opinion, is highly doubtful, if we accept the jail note as his.  I will elaborate on this further.