Topeka A former Kansas State University English professor convicted of killing his ex-wife in rural Douglas County was denied a fair trial because prosecutors made inappropriate statements, his attorney argued Thursday before the Kansas Supreme Court.
The statements were "far outside the latitude given to prosecutors in closing arguments," said Sarah Ellen Johnson, who represents Thomas Murray as he appeals his conviction for killing Carmin Ross.
Johnson, an appointed attorney, also argued that Douglas County District Judge Robert Fairchild inappropriately allowed testimony of statements that Ross had made to others before her death, and testimony that showed the jury that Murray had at one point refused to talk with investigators.
Douglas County Assistant District Attorney Angela Wilson conceded that one statement prosecutors made during closing arguments "may not have been the most well-turned phrase." But she said the statement didn't rise to the level of flagrant misconduct and shouldn't be used to grant Murray a new trial.
Murray, incarcerated in the El Dorado Correctional Facility, has been sentenced to life in prison for the stabbing death of Ross. He has denied killing her.
Ross' body was discovered Nov. 14, 2003, in her home north of Lawrence.
Murray and Ross, who had divorced in 2003, had been involved in a custody dispute over their 4-year-old daughter. Ross had planned to remarry and possibly move.
Police arrested Murray after nearly a yearlong investigation.
On Thursday, justices peppered Wilson with numerous questions about the five-week trial, which was in 2005.
During the trial's closing arguments, Tom Bath, a private prosecutor hired by the Ross family, stated to the jury, "His best friend thinks he is a murderer."
Bath was referring to testimony by Murray's friend Gay Lynn Crossley-Brubaker.
But Crossley-Brubaker never said that. When asked on the witness stand whether she thought Murray could have killed Ross, Crossley-Brubaker said she didn't know.
"Isn't there a considerable difference" between what Crossley-Brubaker said and what Bath told the jury she said, asked Justice Lee Johnson.
But Wilson said Bath's comment could be a "reasonable inference" and didn't arise out of "ill will."
Wilson also was quizzed about a comment she made during another part of closing arguments in the trial when she said blood found in the Ross' bathroom was from Murray. Expert testimony during the trial was inconclusive.
Murray's attorney, Johnson, also took issue with the fact that a Lawrence detective was allowed to testify that at one point Murray decided not to answer follow-up questions from investigators.
Johnson said when a defendant invokes his right to remain silent, that shouldn't be used against him in the case.
But Wilson said Murray's trial attorneys opened the door to the statement when they asked the detective whether there were other questions police had wanted to pose to Murray.
Wilson said Murray's attorneys had wanted the jury to believe that investigators didn't follow a viable lead, when in reality, she said, investigators had been rebuffed in their attempts to ask questions.
Much of the hearing before the Supreme Court was spent on the issue of Fairchild allowing testimony from others, such as Ross' mother and attorney, about what Ross had said to them before her death.
Much of this testimony cast Murray in a negative light and showed that tensions had increased between Murray and Ross over custody of their daughter.
The testimony was not properly admitted during the trial, attorney Johnson argued.
But Wilson argued the hearsay testimony was relevant because it showed the deteriorating relationship between Murray and Ross. Wilson argued that all the rules were followed to allow such hearsay evidence.
'House of cards'
The court took the matter under consideration and is expected to make a decision on the matter no earlier than Oct. 28.
One justice, Robert Davis, was absent from the proceeding because of a family emergency. But Davis will listen to the recorded arguments and participate in a decision in the case, according to court spokesman Ron Keefover.
After the hearing, Johnson said any of the alleged errors in the trial could require a new trial for Murray.
"This case was so circumstantial," she said. "Any one point could be the card that if you pulled, the entire house of cards falls down."
Wilson said she was in contact with the Ross family, who she said planned to listen to the court proceeding online.
Asked whether there was ever another suspect in the case, she said, "I really am uncomfortable about commenting on that sort of thing because until this court makes their decision, this is a closed case."