Prosecutors aren’t shy in explaining the similarities between the 1996 death of Sandra M. Perry at the Glacier Bear Lodge in Yakutat and — 12 years later — the 2008 death of Lorraine Kay Morin in Montana.
In fact, their case against defendant Robert D. Kowalski, who was dating both women at the time of their deaths, is hinging on it.
But does the conviction in the Montana case prove retroactively that Kowalski murdered Perry?
Juneau Assistant Public Defender Eric Hedland says that's what the state's theory is in light of no new evidence in the 17-year-old cold case, other than the fact that Kowalski was charged and convicted of homicide in Montana.
Hedland is moving to dismiss the indictment issued by a Juneau grand jury in September 2011 that charges Kowalski with two counts of murder in connection to Perry's death. Oral arguments regarding the motion took place Monday in Juneau Superior Court before Judge Louis Menendez. Attorney General James J. Fayette, the lead prosecutor in the case with the Office of Special Prosecutions and Appeals, participated in the hearing by phone from Anchorage.
Hedland argues the indictment should be dismissed because the state of Alaska is using the Montana case as “substantive proof of murder," which he says is unfairly prejudicial to his client. He questioned whether such “bad act” evidence is admissible at grand jury proceedings under Alaska Rules of Evidence and the state constitution.
“It is not difficult at all to make a logical argument — forgetting the rules of evidence, forgetting hundreds of years of jurisprudence — to make a logical argument that we would all make in our daily lives, that is: ‘Fool me once, shame on you. Fool me twice, shame on me.’ That’s not hard argument to make,” Hedland said in court. “But that, your Honor, is exactly why it’s so prejudicial. Because that’s such a knee-jerk thing. Because it’s so easy to get there. Because it’s so easy to go to, ‘This guy’s just a killer.’ It’s just the danger of unfair prejudice is that much more exponentially present.”
Fayette, on the other hand, said the evidence is allowed for limited-purpose theories, including absence of mistake and intent. Fayette argued evidence law does not categorically bar subsequent-act evidence, and that if it is relevant to an issue at trial, it is admissible.
State prosecutors have drawn similarities between both of the women's deaths: they say both were shot by Kowalski at close range with a single gunshot following an argument. Both times, he waited hours before reporting the deaths to authorities, and both times, he claimed it was an accident.
In 2009, the Morin case was resolved with an Alford plea that Kowalski entered to a mitigated non-deliberate homicide charge. That’s to say, he never admitted to killing Morin (neither by accident nor intentionally) as the plea allows him to maintain his innocence. However, the plea also acknowledges that prosecutors probably had enough evidence to convict him.
While that case was ongoing in Montana, investigators in Alaska re-opened the case involving Perry. At the time, Perry’s death was ruled accidental, but the Montana homicide proved to be such “a similar event” that it served as “a catalyst for us to take another look at the case,” Paul J. Miovas Jr., the previous lead prosecutor in the case, also with the Office of Special Prosecutions and Appeals, told the Empire in an earlier interview.
On Monday, another point of contention in the courtroom was regarding grand jury testimony about the Alford plea from the Montana sheriff, who was called in to testify as an expert witness. The prosecutor had asked the sheriff whether Kowalski had entered a plea in the Montana case and if it was resolved, and the sheriff confirmed that it was.
Hedland said that without further explanation, that testimony strongly and incorrectly suggested to the grand jury that Kowalski had admitted to a homicide. Fayette, however, said the purpose of that line of questioning was to actually eliminate prejudice to Kowalski by assuring jurors he was not a fugitive on the run.
Kowalski, now 52, is presently incarcerated at Lemon Creek Correctional Center and is slated to stand trial in Juneau in November. He is next scheduled to appear in court at the end of October for a trial call. A decision from the judge will be reached before then and will determine how the case will proceed.
• Contact reporter Emily Russo Miller at 523-2263 or at email@example.com.