CAL HARRIS

Cal Harris murder trial No. 4 just around the corner?

Anthony Borrelli
aborrelli@pressconnects.com | @PSBABorrelli

After three trials — two reversed convictions and one mistrial — the murder case against Cal Harris is poised to begin a path toward yet another jury.

That journey is expected to be mapped out Wednesday in the same Schoharie County courtroom that hosted Harris’ most recent trial — a contentious and costly four-month ordeal that ended with the jury hopelessly deadlocked over whether proof exists to convict Harris of killing his wife, Michelle, nearly 14 years ago.

Schoharie Judge George Bartlett scheduled the conference after declaring the mistrial in May, a result of jurors’ deliberations for more than 50 hours over the span of 11 days that could not bring a unanimous verdict.

Wednesday, prosecutors are expected to press for another trial in the hopes of seeking a conviction, while defense lawyers have indicated they may argue for a dismissal of the second-degree murder charge against Harris. Bartlett is then expected to set a date for the fourth trial.

Tioga County District Attorney Kirk Martin walks away after giving a statement May 15, when the Cal Harris murder trial ended with a hung jury.

For a prosecution to proceed for a fourth time is unlikely unless the district attorney believed in his or her ability to get a conviction, said Valerie Hans, a professor of law at Cornell University Law School. She is not involved in the Harris case.

The prevailing cause of hung juries is a “serious split” among the jurors over what the evidence shows, Hans said, adding that appears to be what happened in the Schoharie County trial.

A prospective fourth trial raises a question of whether the case would be presented differently by either side, she said.

“The prosecutor has to think hard about, ‘How am I going to make a more persuasive case?’” Hans said. “We’re also guessing the defense will put on a more elaborate argument.”

In June, Cal Harris’ defense attorney Bruce Barket said his team maintains that law enforcement officials should “conduct a first investigation instead of a fourth trial.”

“The proposition that Cal and his children should be put through a fourth trial is simply outrageous,” Barket said in an email June 24. “The proof is not there because Cal is innocent.”

Following the mistrial, Tioga County District Attorney Kirk Martin vowed he intended to proceed with the case.

“My obligation as district attorney is to seek justice and I will continue to do that,” Martin said then. “I eagerly await the earliest possible trial date.”

The murder case against Cal Harris, 54, of Spencer, has been wrought with twists and turns since the disappearance of his estranged wife Michele, who in 2001 was a 35-year-old mother of four.

Two convictions in Tioga County were overturned — the first in 2007 after a new witness came forward, the second in 2009 after an appeal — in a murder trial that rests largely on circumstantial evidence.

Michele Harris

Michele Harris’ body has never been found. Neither has the weapon prosecutors say was used to incapacitate and kill her at the rural Harris estate.

Is a fourth trial likely?

Taking a case to a fourth trial is “very rare” in our criminal justice system, Hans said.

And yet, at least five defendants in recent murder cases along the East Coast have found themselves in similar legal scenarios:

• In Columbia County, a third trial for William Demagall ended in April with a hung jury. Demagall is accused of killing a retired schoolteacher in 2006 and has raised an insanity defense.

• Anthony Barnaby, in New Hampshire, is charged in the 1988 murder of two women in Nashua. Three trials since 1989 have ended with a mistrial, and a fourth is being scheduled.

• Sean Ellis was granted a fourth trial in May in the 1993 shooting death of a police officer Boston, Mass. Jurors could not reach verdicts in Ellis’ first two trials, and he has spent almost 22 years in prison.

• In June 2009, Quincy Butler and William Wood were convicted in Suffolk, Mass., after a fourth trial in the 2004 murder of a woman during a home invasion.

• Dwayne Bailey, of St. Petersburg, Fla., is accused of fatally shooting another man in the head in 2011. Two juries were unable to decide a verdict, and during his third in 2013, a mistrial was declared due to an issue involving a prosecution witness.

Prosecutors in such cases eventually have to consider when a trial reaches a point that it is no longer worth pursuing, Hans said, referring to the murder trials of Corbin Whyte in Tompkins County.

In December 2013, District Attorney Gwen Wilkinson announced after a third mistrial she would not pursue a fourth for Whyte, who was accused in an Ithaca shooting. She said she investigated the third jury’s deliberations and found no justification for seeking another trial.

Repeat trials also carry with them a steep financial burden.

The third Cal Harris trial cost Tioga County $61,478, according to expense records released in June.

Financial records for Harris’ second murder trial in 2009 indicate the county spent $42,605.

Expense records for Harris’ first murder trial in 2007 have since been destroyed in accordance with the county’s records retention policy, according to the Tioga County Attorney’s Office.

“Presumably, you don’t take a case to a fourth trial unless you think you can get a conviction,” Hans said.

Case remains in Schoharie

A fourth trial for Cal Harris would remain in Schoharie County, which has a population of nearly 32,000 people. Its village is home to 869, according to U.S. Census data.

Jury selection in Cal Harris’ third trial spanned eight grueling days, beginning in late January.

Schoharie County Court issued summons to 1,400 of the county’s residents ahead of the third Cal Harris trial.

Only 517 of those who were summoned reported for jury service, according to Schoharie Court Clerk Christian Spies.

The court estimates a similar number of summons would be issued in the event of a fourth trial, Spies said in an Aug. 10 email.

All prospective jurors who appeared for duty in January, whether they were selected for the trial or not, cannot be called upon to serve again for six years, Spies said.

He said that’s not expected to pose a problem in a fourth trial because in the court’s view there is a “more than adequate pool of prospective jurors,” he said.

When a criminal case is re-tried in a small community, it can sometimes be more difficult to find people who don’t already know about the case or who know someone who already served on the previous jury, Hans said.

“The small jury pool is fascinating because in larger communities the way most people hear about cases is through the news media,” she said. “In smaller communities, there’s also the word of mouth, and often those accounts can be perceived as more credible than reading about it or watching it.”

Follow Anthony Borrelli on Twitter @PSBABorrelli.