Can dead people testify in a criminal trial

Some interesting legal arguments on the subject of dead people testifying against a person. In this case a man murdered his wife and they want to use statements the mans wife made that if she was found dead that the husband probably was the killer.

I don't know the legal answers but the questions raised here are interesting


Poisoned wife to essentially testify from grave in husband's trial

Associated Press
Jan. 2, 2008 06:23 AM

MILWAUKEE - Julie Jensen will essentially testify from the grave when her husband's murder trial begins this week.

Shortly before her death in 1998, Jensen told police, a neighbor and her son's teacher that she suspected her spouse was trying to kill her, court documents show. She gave a letter to the neighbor that said that if she died, Mark Jensen should be the first suspect.

"I pray I'm wrong + nothing happens ... but I am suspicious of Mark's suspicious behaviors + fear for my demise," she wrote.

Until recent years, using such evidence in court was virtually unheard of because of constitutional guarantees that give criminal defendants the right to confront their accusers.

But the Wisconsin Supreme Court created new rules, prompted by a U.S. Supreme Court decision that laid the groundwork for her accusatory letter and statements to police to be used as evidence in the trial.

At a hearing this summer, it was determined the letter and statements to police should be allowed at trial. Jury selection begins Thursday; opening statements were scheduled for Monday.

The hearing gave a glimpse of what both sides would argue.

The prosecution alleges that Mark Jensen, now 48, poisoned his wife with at least two doses of ethylene glycol, commonly used as antifreeze, so he could be with his girlfriend, now his wife. They argue he got the information on poisoning from doing Web searches.

The defense counters that a depressed and disturbed 40-year-old Julie Jensen did the Internet searches and poisoned herself - to frame her cheating husband.

Special Prosecutor Robert Jambois wouldn't comment on his case. Defense lawyers didn't return a call for comment.

Julie Jensen was found dead in her Pleasant Prairie home in Dec. 3, 1998. Mark Jensen was not charged until 2002, and legal wrangling over evidence delayed the trial.

In March 2004, the U.S. Supreme Court overturned a 1980 case that laid out complex rules about when statements can be used without the opportunity for cross-examination. The court said the case complicated a part of the Constitution that guarantees a criminal defendant the right to confront his accusers.

Kenosha County Judge Bruce Schroeder then ruled the letter and voice mails to police were inadmissible, but testimony of the neighbor and teacher could be allowed. Prosecutors appealed and the state Supreme Court ruled previously inadmissible testimony could be used if a judge determined the defendants' actions prevented the witnesses from testifying.

After the hearing this summer, Schroeder decided it was reasonable to believe that Mark Jensen's actions prevented his wife from testifying.

Marquette University Law Professor Dan Blinka said the U.S. Supreme Court decision overturned 24 years of precedent, leaving states and lower federal courts to make sense of the new rules.

Each state has had to deal with the new rules, and their decisions on how to interpret them vary, he said.

"Every criminal prosecution features some use of hearsay evidence against a criminal defendant and the problem for prosecutors and for trial courts and for defense lawyers is to figure out what the boundaries are," he said.

Among the witnesses expected to testify is Tadeusz Wojt, the neighbor Julie Jensen gave the letter to and one of several people she talked to about her marital problems.

During a hearing, he described Julie Jensen as a perfect mom who spent most of her days with her two sons, jumping and laughing in the yard and swimming in the pool.

Wojt said that about two weeks before her death, she told him and his wife that she found syringes in their bedroom. She said the next day her husband tried to force her to drink wine. She suspected he was trying to get her drunk so he could inject her with something, he said.

"He was like going after her from one room to another, pushing her to drink it, to drink it," he testified.

One of Julie Jensen's four brothers, Paul Griffin, said he expects closure from the trial. "I am very strongly confident that the right outcome will happen," he said.


January 5, 2008 - 4:46PM

Dead man's testimony against Gypsy sparks battle

Gary Grado, Tribune

Some would call it a case of he said-she said. But he is dead.

What is certain in the case is that 22-year-old Tina Salazar arrived July 3 at the east Mesa home of an 80-year-old widower, and by the time she left, each had been stabbed.

Woman stabs 80-year-old man with letter opener 80-year-old man stabbed in July 3 incident dies

Jerry Naponelli gave police his side of the story before he died two weeks later. His statements suggest the young woman who befriended him was part of a group of gypsies that targeted him for fraud.

Police reports and court records suggest Salazar’s partners in crime gave her up to police because the incident drew too much attention to the group.

But a jury may never hear Naponelli’s version of what happened in his condominium at 2310 S. Farnsworth Drive near Baseline and Sossaman roads.

Salazar, whose own stab wounds were nearly fatal, will ask a judge on Thursday to rule Naponelli’s statements to police as inadmissible because a dead witness is not subject to cross examination.

Laura Swenson, Naponelli’s granddaughter, said she’s been told by authorities that her grandfather’s statements are crucial in the case because the physical evidence tells only part of the story.

“They have a hard time proving what happened,” Swenson said.

A medical examiner ruled Naponelli’s death a homicide, and Mesa police recommended a charge of second-degree murder for Salazar. But she probably won’t be charged with his death.

Instead, she is charged with aggravated assault and criminal trespassing


Naponelli was a World War II and Korean War veteran who moved from Chicago to the East Valley in 1986 with his wife, Lillian.

He retired about a year later, and his wife died in 1998.

He was a union sheetmetal worker and spent his vacations fishing, whether it was deep sea or fresh water.

Salazar told police she knew Naponelli through her boyfriend’s sister, who spent more time with him than she did.

Naponelli told police he met the other woman, who the Tribune is not naming because she hasn’t been charged with a crime, in a Wal-Mart parking lot where she struck up a conversation.

Naponelli told police that Salazar, the other woman and their family scammed him out of $9,000, and Salazar showed up the day of the stabbing to get more money.

Swenson said her grandfather was enchanted by children, which may have been his undoing. He enjoyed making children happy and often made “rock people” figures at a lapidary shop to give as gifts.

She believes Salazar and the other woman used Salazar’s 6- and 4-year-old children to take advantage of him.

“That was his weakness,” she said.


Swenson said her grandfather would sometimes take the women shopping with Salazar’s children.

When he complained about the women loading the cart with too much merchandise, Swenson said one of the women would lead him away by the arm. He’d pay despite his misgivings, Swenson said.

“He was alone,” she said. “And he was lonely.”

A Mesa detective told Salazar he believed she and the other woman were pulling a sweetheart scam, which is where a con artist gains the trust of someone who is in need of companionship and love and eventually drains the victim’s finances.

Salazar said she was no part of any scam and was at his house only to get a package for her boyfriend’s sister. She told investigators Naponelli became angry and slapped her, and she grabbed a letter opener and forced him to sit down.

She said he grabbed a kitchen knife and stabbed her, but she didn’t remember stabbing him.

Naponelli told police that Salazar stabbed him first with the letter opener.


Witnesses saw Salazar staggering on the sidewalk and eventually lay down. People in a Chevrolet Suburban later picked her up.

That night police spoke with friends of hers, a man and woman, who told them they could find her at the Hollywood Video at Val Vista Drive and Guadalupe Road.

After her arrest, she said she remembered going to her home, getting bathed and then waking up in her truck with her children as police arrived.

Police later got tips she was part of a group that commits various scams, and the stabbing was “the nationwide talk of the community” and was “bad for the community.”

Naponelli underwent exploratory surgery, and two days later became confused and paranoid and ripped out his urinary catheter, which led to more surgery, according to an autopsy report.

He underwent two more surgeries and eventually died on July 18.

The medical examiner concluded that the medical complications he developed were the direct result of the assault, and his underlying medical problems limited his ability to recover.

Swenson, who becomes emotional when talking about her grandfather, said she isn’t overly concerned with any possible punishment Salazar may get because she’s already paid a heavy price with her serious injuries and losing custody of her children.

“Whatever happens to her, I just hope she can learn from it,” Swenson said.

Dead guys testimony can't be used in Serial Shooter trial?

Witness' testimony may be off-limits in suspects' trials

John Faherty
The Arizona Republic
Jan. 31, 2008 12:00 AM

Ron Horton's death will likely preclude any of his statements to police from making it into the trials of Dale Hausner and Samuel Dieteman in the "Serial Shooter" case.

The problem is that Horton's death eliminates the opportunity for defense attorneys to question him in court.

Hausner and Dieteman are charged with multiple counts, including first-degree murder and attempted murder in a spree that spanned more than a year. Police link the pair to the killings of seven people and wounding of 17 others in 2005 and 2006.

Horton told police that Dieteman told him about shooting people while he and Dieteman were sitting in a bar in June 2006.

The office of Maricopa County Attorney Andrew Thomas addressed the death of Horton in a statement.

"The County Attorney's Office mourns the passing of this courageous witness," it said. "However, the case against these defendants will move forward as planned."

But it will probably have to proceed without Horton's testimony, because in the past four years, the U.S. Supreme Court has twice reaffirmed a defendant's right to confront his accuser.

"Generally, when a person who has made a statement to law enforcement, foreseeing the use of that statement by prosecutors, then the accused has a right to cross-examine the speaker," said Tom Lininger, professor at the University of Oregon School of Law and a former federal prosecutor.

The loss of Horton's statement may be difficult to gauge at this point.

Authorities still have physical evidence and secretly taped conversations between Hausner and Dieteman although the tapes will be contested in court.

Defense attorneys are seeking to have a judge rule as inadmissible those incriminating statements obtained through wiretaps of the men's apartment, car and telephone.

The trials for the two men are expected to take place this year.

Witness in 'Serial Shooter' case dies before trial gets under way

Lindsey Collom
The Arizona Republic
Jan. 31, 2008 12:00 AM

At the height of a public scare in the summer of 2006, as joggers and pedestrians were being randomly shot and killed in the Valley, Ron Horton made a call to police that proved to be the big break in the "Serial Shooter" case.

For the heroic deed, Horton became a haunted man.

Troubled by a death he couldn't prevent. By his act of turning in a friend to the police. By the money he took in exchange.

The guilt manifested in his compulsion to give away the reward money, all of it, even when his kids were in need - an action that made no sense for a man who devoted his life to being a father and loyal friend.

"He was pretty tormented," his sister Shelly Kossel said. "Even though he knew he did the right thing, it still bothered him that he had to turn in someone he knew."

Horton, the man credited with leading police to the suspects in a case that terrorized the Valley for months, died Sunday of complications related to a bacterial infection. He was 49.

Horton was a key witness for the prosecution in the case against Samuel Dieteman and Dale Hausner, who authorities say are responsible for killing seven people and wounding 17 others in 2005 and 2006. The two face a series of charges that include first-degree murder, aggravated assault and drive-by shooting.

Horton was a key witness who was expected to testify for the prosecution. It was not clear how his death would affect the case, which has yet to go to trial.

Phoenix police issued a statement Tuesday that expressed sorrow for Horton's passing.

"Mr. Horton stepped forward and provided invaluable assistance to the Phoenix Police Department that contributed to the arrest of the suspects in the Serial Shooters case," Sgt. Andy Hill said. "We are eternally grateful to Mr. Horton for his courage in stepping forward."

Court records show Horton started working with police in summer 2006 after calling in a tip.

Horton told authorities he felt Dieteman might be their guy. He said they were having drinks one night at the Rib Shop in west Phoenix when Dieteman started talking about shooting people. Horton reported that Dieteman said he and his roommate would blast at people with shotguns late at night as they cruised Valley streets.

They called it "RRV-ing," which was short for random recreational violence, he said.

Horton chalked it up to a morbid sense of humor until three months later, when he overheard friends discussing the Serial Shooter case.

Family say Horton felt like he did the right thing, but he was haunted by his role in what could mean the death of an old friend. Prosecutors are seeking the death penalty against Dieteman and Hausner.

According to Debbie Dryer, ex-girlfriend and the mother of his three sons, Horton blew through the "blood money" given as a reward for his information, handing it out to friends and spending it on gambling and booze.

"He didn't like being called a snitch," Dryer said. "There were hundreds that told him how good he did, but there were just a few (who said otherwise). He heard it."

For a man with a rough exterior - he was a long-haired, leather-clad Harley rider who frequented biker bars - Horton had a soft side he reserved for those closest to him. He drew, kept a journal and wrote poetry, some of the works he gave as gifts.

The words of the few critical people were hurtful, Dryer said.

A note he had written in a spiral-bound notebook said as much. Writing in pencil, Horton used two pages to chronicle what he told police. The tale stops midsentence.

Dryer isn't sure whom he was writing to or why he didn't finish.

"Everybody was telling him what a hero he was, and I think more of him felt good about being a hero than the other part," said Joyce Hart, Horton's mother. "I think he took that home with him, and it ate away at him."

Horton did more than tell police about Dieteman; he went along with investigative tactics and arranged for Dieteman and Hausner to be at the same location so police could tail the pair, court records show.

But before that could happen, a final murder tied to the Serial Shooter case took place. Robin Blasnek, 22, was shot to death July 30, 2006, while walking on a street in Mesa. Devastated, Horton blamed himself for not intervening sooner.

Roughly three days later, Dieteman and Hausner were in police custody.

The money he received as reward is long gone.

As a rule, Silent Witness does not disclose the amount of its rewards, but nothing remains for the three sons, ages 11, 14, and 16, he raised on his own as a single father.

His death was sudden. Family members say he was diagnosed with pneumonia at an urgent-care facility.

Within two weeks, he was gone.

Hart said it was MRSA, a methicillin-resistant staph infection.

Despite his mixed feelings about the case, family members say Horton would want to be remembered for his role.

"I think he would consider that his legacy," stepfather Roger Hart said.


February 2, 2008 - 10:12PM

Witness' death hurts Serial Shooters case

Nick R. Martin, Tribune

When a key witness in the Serial Shooters case died last week, police and prosecutors were tight-lipped about whether it would hurt their case against the two Mesa men accused of the killings.

Now, legal experts, including a former Maricopa County prosecutor, say the death of Ron Horton, who died unexpectedly Jan. 26, will almost certainly injure the case, but will not kill it.

Horton provided a big break leading to the arrests of his friend, Sam Dieteman, and acquaintance, Dale Hausner. He was presumably going to testify against them in an upcoming trial.

"It would be nice to have him around to lay the foundation and give the context from the beginning," said former county prosecutor Bill Montgomery, now a victims-rights advocate. "But it won't be fatal."

Horton died in Mesa from an infection he picked up after injuring his arm, according to the Maricopa County Medical Examiner's Office, which ruled the death an accident.

Horton's family members could not be reached for comment. Lawyers for Hausner and Dieteman did not return calls. Officials from the county attorney's office issued a short statement saying the case "will move forward as planned."

Horton's death means everything he saw or learned before the arrests will probably be buried with him, according to interviews with multiple defense lawyers and former prosecutors.

It comes down to the rights defendants have in criminal court, said professor Ralph Spritzer, a former federal prosecutor now teaching at Arizona State University's Sandra Day O'Connor College of Law.

If someone is accused of a crime, Spritzer said, the law says the person has the right to question all witnesses in the trial.

Sometimes, testimony from a dead witness can be used if he was questioned by both sides before he died.

"But if he just dies and he's never been on the stand and never been cross-examined, then you're out of luck," Spritzer said.

Maricopa County Superior Court shows no record of Horton testifying at a hearing or deposition.

Hausner and Dieteman are accused of a months-long shooting spree in 2005 and 2006 that left seven people dead and 17 wounded. Horton helped police catch the men after Dieteman reportedly made a bar-stool confession over drinks one night.

The outlook, though, is not all bad for prosecutors. While Horton's testimony could have helped convince a jury, the county has a lot more evidence to use.

For one, investigators put a secret recording device in the suspects' Mesa apartment and taped their conversations. After their arrests, investigators seized their guns and interviewed both men. Surviving victims of the attacks also are available.

"If that one individual was a linchpin for the case, it would be problematic," Montgomery said. "But with all the other information and all the other things available to the county attorney ... my guess is that it would not be a problem."

Former Florida prosecutor and longtime Valley defense attorney Michael Black said it's rare for a case to be derailed by a death.

"I've probably been involved in 10 jury trials where a witness died during the trial," Black said. "And I don't think that it ever resulted in a case being dismissed."

What prosecutors in the case should worry most about, Black said, is the possibility the recorded conversations between Dieteman and Hausner, in which they are said to have discussed the killings, will be thrown out on a technicality.

County Attorney Andrew Thomas gave emergency approval to bug the suspects' apartment without first getting a search warrant, a move that the defense argues was illegal.

Judge Roland Steinle has ordered Thomas to testify about why he did it, but Thomas has refused. If the recordings are thrown out, Black said, "I think the whole case is going to tumble."