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By BOB WHITE
ELIZABETHTOWN – Prosecutors for a second time Monday fouled in trying Michael St. Clair for the 1991 abduction of former Bardstown distillery worker Frank Brady.
Senior Judge Steven Ryan, appointed to the case after Senior Judge Janet Coleman removed herself as judge last year, declared a mistrial in St. Clair’s re-trial only two hours into opening arguments.
Ryan said special prosecutor Todd Lewis, who replaced retired prosecutor David Smith last year, inappropriately told jurors St. Clair shot and killed Timothy Keeling along a 100-mile stretch of road in northern New Mexico, after he and fellow escapee Dennis Reese abducted him from Denver.
Judges previously ruled such talk of Keeling’s murder would not be allowed in the St. Clair kidnapping re-trial.
St. Clair was not convicted of Keeling’s murder, even though evidence shows he died after being abducted by the escapees.
Lewis argued his statement about Keeling’s death did not violate the ruling, since it only implied St. Clair’s fatal shooting of Keeling.
Lewis told jurors that, after St. Clair and Reese kidnapped the EMT from Denver, taking him and his truck on a long ride into New Mexico, they stopped in the middle of nowhere so “St. Clair could pee.”
“It was before the sun came up and Keeling is ordered to get out …” Lewis told jurors. “Reese is at the wheel staring straight ahead. He hears two shots and St. Clair gets back in.”
St. Clair attorney Vince Yustas immediately objected, bringing to Ryan’s attention that Lewis’ inference violates a judge’s order.
After a long delay while clerks and the judge sifted through volumes of documents in the case, Ryan said “this is a mistrial, when do you all want to try again?”
Lewis again tried to convince Ryan his statement did not violate any order.
He asked Ryan for an admonition - an advisement to jurors to overlook the part about Keeling's death - but Ryan said that simply wouldn’t cut it.
“Be honest with yourself Mr. Lewis,” Ryan said, obviously angered by the prosecutor’s continual protest. “There’s going to be a mistrial.”
Ryan said talk of Keeling’s abduction was relevant to the kidnapping case, but not the abduction and murder of Keeling.
“He’s not been convicted of that murder,” Ryan said, scolding Lewis. “You shouldn’t have done (said) it.”
Heads shook throughout the courtroom as the mistrial was declared.
For many, this month's re-trial – nearly 18 years from Brady's death – was to be the final trial for St. Clair.
St. Clair already has been convicted of Brady’s murder, leaving many knowledgeable of the case to say this re-trial was pointless to begin with.
“We were trying to get this over with,” Yustas told Brady’s wife, Merle, and daughters, as he shook their hands and tried to console them.
Brady daughter Melanie Drury said, “it’s wrong,” but said she was not disappointed in the work of prosecutors.
During St. Clair’s first trial for Brady’s kidnapping from a Sonora truck stop Oct. 6, 1991, prosecutors used testimony from St. Clair’s ex-wife against him. Kentucky Supreme Court justices ruled that was a violation of Kentucky law and overturned the conviction.
Ryan's statement telling Lewis that "he shouldn't have done it" was similar to a statement retired Justice Thomas Cooper gave during a 2007 interview with The News-Enterprise. The story was about the expense of re-trial.
Cooper said of the initial case prosecutors "should have known better" than to use an ex-wife's testimony against a defendant.
One Brady relative openly voiced her anger while standing up in the courtroom gallery as three other Brady relatives remain seated.
The woman said the family was now heading to Frankfort to see Attorney General Jack Conway about removing Ryan from the bench for what will be the third trial of St. Clair.
Conway spokesperson Allison Gardner-Martin said in an e-mail “we are currently reviewing the ruling today from Judge Ryan and will be determining what steps should be taken as we move forward in this case.”
Dana Todd, who prosecuted St. Clair with David Smith during the 1998 and 1999 trials in Hardin County for the kidnapping and in Bullitt County for Brady’s shooting death, said she did not believe Lewis made an error.
Todd would not comment further. She was obviously upset with the mistrial.
Ryan did say in court that he found no intentional wrongdoing on Lewis’ part. His mention of Keeling's murder, or inference of Keeling's murder, was merely a mistake, according to Ryan's ruling.
The re-trial is scheduled for Aug. 3, with a preliminary hearing June 29.
Gardner-Martin said prosecutors will be prepared to retry the case at that point.
A complete story on Monday's re-trial will be published in Tuesday’s edition of The News-Enteprise.
Bob White can be reached at (270) 505-1750.