James Harmon's defense rested its case Thursday after offering an innocent explanation for him asking state troopers why they didn't arrest him sooner in the death of Maggie Wigen in Tenakee Springs.
"I told him he could expect to be arrested, and when it happened to contact me immediately," said attorney Louis Menendez, who testified that he talked to Harmon in early April 2003 after he was hired by the defendant's family.
More than two weeks ago, testimony in the Juneau Superior Court trial began with the prosecution showing jurors a video recording of Harmon's May 2004 arrest. Harmon's only question for troopers then was, "What took you so long?"
After Harmon's arraignment, Menendez withdrew from the case.
Harmon, now represented by the public defender's office, was charged with first- and second-degree murder, first-degree sexual assault, first-degree attempted sexual assault and second-degree theft in Wigen's death. The 19-year-old woman was unearthed on April 1, 2003, in a small dam near the cabin she rented in the island community 45 miles southwest of Juneau.
Juneau District Attorney Patrick Gullufsen said in court that he expects to wrap up his rebuttal case today. Ketchikan Superior Court Judge Trevor Stephens, presiding in the case, told jurors the trial was still on schedule for closing arguments Monday.
On cross-examination of Menendez, Gullufsen asked if Harmon had waived the attorney-client privilege, which protects a client's confidential statements. That drew an objection from Assistant District Attorney David Seid
"What did your client tell you ...?" Gullufsen began to ask, when Seid objected again.
"Your honor, could you instruct the jury? This is totally inappropriate," Seid responded.
Stephens sent the jury out.
"The right of cross-examination doesn't just belong to the defense," Gullufsen argued. "It belongs to the state as well. This is an extremely critical issue."
He said he is entitled to ask Menendez what Harmon told him to prompt the statement that an arrest could be imminent.
Seid said he didn't see how there was a waiver of privilege. He said Menendez was aware of a trooper investigation and aware that search warrants were served on Harmon in Juneau and for his boat-residence in Tenakee Springs. That should be sufficient justification for the legal advice, he said.
Stephens recessed court to consider a ruling, but after about 20 minutes, Gullufsen said he could continue his questioning without asking what Harmon had told him.
Menendez went on to say he talked to Harmon in April 2003 and maybe into early May 2003, but did not talk with him again until the arrest in May 2004. He said he learned from Assistant District Attorney Julie Willoughby, one of Harmon's current attorneys, that she had seen him at the Lemon Creek Correctional Center.
Earlier, Seid called Rebecca Wilson, who testified for the prosecution last week on her 16th birthday. He had one question relating to the New Year's Eve party several months before Wigen's death.
Deena Wisenbaugh testified last week that she told Harmon to "be honorable" in taking the intoxicated Wigen up the stairs to her cabin after a party. Wisenbaugh said she later found Harmon attempting to rape Wigen.
Wilson said Thursday she saw Wisenbaugh walking up to the cabin with both Wigen and Harmon after the party.
Wednesday, the defense disputed whether Harmon was even in Tenakee Springs when Wigen was buried in the dam. Dave Zeiger testified that there were changes to the dam between the time the search for Wigen began on Friday, March 28, 2003, and the following Tuesday, when Wigen was discovered. Harmon had left town the Sunday after the search began.
Gullufsen's first rebuttal witness was someone Seid said he decided not to call on Wednesday. Rachel Myron said she was with Zeiger at the dam the day Wigen was discovered and disagreed with his conclusions.
A Tenakee Springs resident who has worked as an archaeologist for the U.S. Forest Service, she said she was active in the community search and believed the idea that Wigen wasn't in the dam all along grew out of disbelief that the site could have been missed.
"We were all very angry and disturbed that we had not found Maggie's body," she said. "We were very angry and disturbed that the troopers had not found Maggie's body. That's their job."
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