Witnesses to Abril conversation say juror wanted off jury

Published 5:19 pm Thursday, August 7, 2008

In her affidavit, McKaig indicates that the conversation between Abril and the potential juror dealt at least in part with the potential juror&squo;s desire not to serve on the jury. The affidavits had portions &dquo;redacted,&dquo; blanked out, by the judge&squo;s order before they were released to the public.

&dquo;I was present when Chris called (blank) from the car,&dquo; Nancy McKaig said in her affidavit. &dquo;I was unable to hear much of the conversation because I was in the back seat. I did hear Chris say just before the call ended that, &dquo;That wouldn&squo;t be right for you to do&dquo; or, &dquo;You can&squo;t do that&dquo; or similar words… Chris did tell us (me and Ronnie Murtaugh) what the call was about following the call. While the call was going on, I did observe that Chris said very little. The call lasted a minute or two and it appeared to me that the signal was lost.

McKaig continues: &dquo;Chris told Ronnie Murtaugh and I that (blank) was angry at the judge for not letting him off of jury service. He said that (blank) told him that if the judge was (blank….). He also said that (blank) told him that if the judge was going to f*** with him like that, he (blank) would f*** back with him by going in the courtroom and saying &squo;not guilty.&squo; Chris said he told him that it would not be right for him to do that.&dquo;

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In his deposition, Murtaugh said he was talking with Sheriff Abril when something reminded him that, &dquo;(Blank) called me and I need to return his call.

&dquo;I didn&squo;t pay any attention to the call,&dquo; Murtaugh said. &dquo;The reason that I know that (blank…). A person very close to me also died tragically, My mind started to wander and think about (blank) problems and my problems and I was not at all focused on what the conversation was about. I do not recall any conversation following the phone call. I was not feeling well due to all the curves in the road from Lake Lure to Asheville.&dquo;

Affidavits were also filed by Abril&squo;s defense attorneys, Lindsay and Baiba Bourbeau, regarding Abril&squo;s having reported the phone call to them Monday morning, but Lindsay withdrew those affidavits from the public record Wednesday, citing attorney-client privilege.

On Tuesday, after hours of meetings behind closed doors, attorneys scuttling to and fro, the discussion in open court that afternoon was quite heated.

Lindsay told Judge Zoro Guice Jr. he firmly intended to report the phone conversation to the court, but did not want to do so in the middle of the jury questioning going on Monday. Before the defense could report the matter, however, the state had got wind of it and filed four motions Tuesday, seeking a mistrial, a change of venue, a revocation of Abril&squo;s bond and an assessment to Abril of all court costs incurred this past week.

Lindsay said it was &dquo;a bit unusual&dquo; to think that Abril was trying to fix the case when he had the conversation in front of two witnesses and told his attorneys, who serve as officers of the court, about the conversation. Lindsay argued that while the phone call from Abril to a member of the jury pool was &dquo;poor judgment&dquo; it did not rise to the level of a cause for mistrial.

But the state prosecutor, Senior Deputy Attorney General Jim Coman, said the call was inexcusable and would have landed any other defendant in jail.

&dquo;There is no explanation that justifies the conduct of this defendant,&dquo; Coman said. &dquo;There is no spin you can put on it. He has been a sworn officer for 21 years. He is the sitting sheriff. To have done something like that sends the message that he is above the law…It is symptomatic of the mind set that exists with this defendant, that he can do whatever he wants and not be held accountable.&dquo;

Judge Guice seemed to echo that sentiment, saying, &dquo;My goodness. John Doe knows not to have any contact with potential jurors if he is a defendant. You don&squo;t have to be a graduate of Harvard to know that.&dquo;

On Wednesday, however, things were calm and judicial again. The defense joined the state&squo;s motion for a change of venue and the other three motions were all denied by the judge.

Outside the courtroom, when the Polk County portion of this trial was wrapped except for the media interviews, Lindsay said he did not believe the kind of juror contact which was alleged had occurred, although he said the file was sealed and attorneys were not at liberty to discuss those allegations any further.

&dquo;When you start looking into allegations, you have to investigate over time. The initial impression may not be very accurate. You have asked one question and gotten one answer, but you have not asked all the questions, and have not interviewed all the witnesses. That&squo;s why we have moved forward and he (Abril) is still on the same bond.&dquo;