Phillips' Attorney Files Brief as December Court Hearing Nears

[XLFD]

Sean Phillips' court appointed attorney David Glancy filed his appellee brief to counter the appeal made by the State to counter Judge Wadel's decision not to bind Phillips' over to the circuit court made in the open murder preliminary hearing earlier this year.  In less than two weeks, on Friday, December 5th at 1:30 PM, Judge Cooper will hear in open court pleadings of both Attorney General's Office Donna Pendergast and Mason County Prosecutor Paul Spaniola making their case for an open murder trial, and Sean Phillips' attorneys arguing Judge Wadels' ruling to stand. 

Brian Mulholland of the City of Ludington Daily News (COLDNews) was able to get a look at Glancy's appellant brief and describe its content in an article reproduced below. 

The Ludington Torch hopes for a swift conclusion to this exercise in Phillips' favor, so that the state and its police agencies will finally be forced to release all the records they have withheld from the public for three and a half years claiming their release would somehow taint the jury pool, damage part of an active investigation, etc.  Perhaps then the people can finally get some answers about what may have happened to Baby Kate, which our officials have deemed less important than putting Phillips behind bars for longer because they cannot.

"Judge Richard Cooper will hear arguments next week on whether Sean Phillips should face murder charges in the 2011 disappearance of his daughter Katherine “Baby Kate” Phillips. On Monday, defense attorney David Glancy filed a reply brief in the appeal requested by prosecutors in the case. Glancy’s 19-page brief counters the arguments posed by Assistant Attorney General Donna Pendergast in the case. Pendergast filed her appeal in October of the September ruling by 79th District Court Judge Peter Wadel that Phillips should not be bound over to 51st Circuit Court on murder charges.

“The district court held that there was insufficient evidence to support the binding over of defendant for trial on the charge of Open Murder because the prosecutor failed to establish the corpus delicti of the crime. Specifically all of the evidence presented at the preliminary examination does not support that criminal agency was the cause of Kate’s death.”

In his brief, Glancy argues that Wadel correctly ruled in the case.

“The judge found that there are two plausible scenarios that led to Kate’s disappearance; (1) that she was given to another family or (2) that she has died,” Glancy wrote. “However, in order to bind Sean Phillips over on the charge of murder, the prosecutor had to show that Kate is in fact dead, and the death was a result of a criminal act. Upon examination of the whole matter, the judge reasonably believed that the (prosecutors) failed to show death by a criminal act.”

Phillips also counters arguments that the “totality” of the circumstances points toward Sean committing violence toward Kate. He writes that actually, “Sean and Ariel’s relationship was improving since Kate’s birth.”

He continues that Sean turning off his cellphone for a block of three hours was not unusual.

“There were never any threats that if Ariel didn’t have the abortion or go through with the adoption that Sean would cause any harm to her or her children,” Glancy writes. “Even on the day in question, the people 

try to argue that something criminal had to happen because defendant shut off his phone. However there is testimony that that is his typical response when Ariel and Sean have an argument and she repeatedly calls his phone, which is what happened on the day in question.”

He reiterates what Wadel found.

“In reviewing all of the testimony from the preliminary examination and the written opinion of the district court judge in this matter, it appears that the judge took into consideration the evidence presented and the credibility of all the witnesses in reaching his decision,” Glancy notes. “The evidence presented supports the district court’s decision not to bind Sean Phillips over on the charge of murder because there is not sufficient evidence to prove that a death occurred by criminal act of Sean Phillips.”

He states that Wadel’s decision can’t be considered an abuse of discretion because the prosecution can’t demonstrate that Wadel had any bias.

“Abuse of discretion occurs when the lower court’s decision is ‘so palpably and grossly violative of fact and logic that it evidences not the exercise of will not the exercise of judgement but defiance therof, not the exercise of reason but rather of passion or bias.’

“The appellant has failed to show that the judge’s decision in this matter was an abuse of discretion.”

Glancy also wrote that Pendergast’s introduction should be stricken from the brief filed in the case.

“The introduction section in the appellant’s brief is nothing more than the prosecutor’s emotional statement of the case that is not supported by the facts produced at the preliminary examination. This is an attempt by the people to prey upon emotions due to the sensitive nature of the case rather than the facts presented at the preliminary examination.”

Cooper is scheduled to hear oral arguments in the case at 1:30 p.m. Friday, Dec. 5."

http://www.shorelinemedia.net/ludington_daily_news/news/local/artic...

[wildfire]

Some of this sounds so much like the same ordeal, how the state police are keeping records,don't they call them FOA  OR SOMETHING n the corpus what the paul prosecutor didn't do in his job, also reminds me of something that wasn't awfer  n not beging totally investigated just going on what the prosecutor  paul had n would not go on evendents n begining  in more witnesses for another case but did mention  to lawyer that the case that paul the  prosecutor was working with was  a very change case but could not pin point  what they were up to.And why do they keep going over n over n over like back n forth from wadels court to cooper court so many times like that do they not know what to do in some cases or is that just the way the systom works? you would thing that if your in one court n that judge should beable to do the same as the other judge cause they both seem to from what i have been hearing

[XLFD]

You cover a lot of bases there, wildfire, so I'll start off by wishing you and the ones you love a Happy Thanksgiving, even though it may be rough this year for you. 

I find it odd that Judge Cooper will make the ultimate decision on whether this goes to his court as an open murder trial or not, because of his prior involvement with the two week unlawful imprisonment trial.  Many including myself, are of the opinion that his involvement helped the prosecution significantly in that trial.  Yet, I think if he will be hard tested to show that Judge Wadel abused his discretion in the preliminary hearing.   

[wildfire]

so why is the prosecutor is sure a hurry to throw away a man in prison for a crime he didnot comment, must be money or brownie points? and how does the court systom keep letting paul prosecutor keep getting away with this stuff, we should be going all the way back as far as it goes n see now many case paul prosecutor pushed cases thur that was not investigated n sent the people to jail or prison that wasn't needing to be their cause of no evendents from the one who was the accuser it sounds like or that prosecutor not doing his job right

[Willy]

I think Spaniola is continuing to press the issue in hopes that Sean will eventually cave and reveal what actually happened because I can see no other reason for this. The evidence for murder is just not there unless something new has poked it's ugly head out of a hole. I wonder if Sean's behind now belongs to Bruno the 7ft. con.

[XLFD]

 What one should not forget is that just after the April 2012 trial for unlawful imprisonment and June 2012 sentencing found Sean going to prison for 10-15 years, this was turned into a murder investigation.

This means simply that the 'prison confession' letter and the dubious revelation by his prison friend came months after the focus shifted to murder.  Before that, they had soil and seeds from shoes that likely weren't even worn that afternoon and plenty of speculation.  The only thing Sean will get for coming clean on events now, whatever those events are, is more time for him-- and probably for others; he's smart enough to understand that. 

Spaniola may have been like the Attorney General, getting free name exposure for doing something so noble right before an election year in a high-profile case.