The attorneys for a man set to be re-tried for a 2008 Oceola Township double-homicide have filed an emergency motion to adjourn the trial set next month to allow more time to examine possible DNA evidence they say may exonerate their client.
Jerome Kowalski’s original 2013 conviction for the murder of his brother and sister-in-law in their Lyngre Drive home was vacated earlier this year following revelations that the judge who presided over the trial and sentenced Kowalski to life in prison was having an inappropriate relationship with the lead prosecution witness in the case.
A re-trial is currently set for January 20th, but in a motion filed Tuesday in Livingston County Circuit Court, defense attorneys Mark Gatesman and Heather Nalley ask that the court adjourn the trial as they have yet to receive all of the data requested from the Michigan State Police Crime Lab concerning a suspected blood sample that was found in the car of the victim’s step-son which may contain DNA from more than just one person. That would be significant as a trust fund from Richard and Brenda Kowalski left $5 million to their two sons, one of whom owned the car in which the sample was found. After the sample was re-tested by the crime lab earlier this year, prosecutors informed defense counsel that no DNA was found in the sample. When defense attorneys sought clarification from the lab itself, they were informed there was “no conclusive determination regarding any of the reference samples.”
The defense then sought an outside expert, Dr. Greg Hampikian, professor of Biology and Criminal Justice Director of the Idaho Innocence Project, to look over the results. In an affidavit provided as part of the motion, Dr. Hampikian said that “It has been established by several studies that complex DNA mixtures and low template samples can result in conflicting interpretations, and inconclusive results. These problems can result in wrongful convictions.” But when Dr. Hampikian requested that the MSP lab send him all of the “Raw DNA data” and “SOP validation data” from the testing, they were informed they would need a court order. Dr. Hampikian told defense counsel he found it odd an order would be needed as the data he was requesting, “…would be required for any standard forensic review of the case.”
Based on the requirement of a court order for the data, Kowalski’s defense asked the judge to provide additional time to obtain that information and properly evaluate it. In the motion, Nalley said that having been in prison the past six years, Kowalski, “more than anyone else, wants this matter to diligently progress. But, also, he, more than anyone else, wants (the-re-trial) to go right this time.”
Shiawassee County Circuit Court Judge Matthew Stewart, who is overseeing the re-trial, said in court Tuesday that he will soon issue a ruling on the adjournment motion, as well as a prosecution motion to limit the cross-examination of Sean Furlong, the now-retired State Police Detective whose relationship with former Judge Theresa Brennan caused the dismissal of Kowalski’s original conviction. Furlong was the one who elicited a confession from Kowalski that was the basis of the prosecution’s case in the original trial. Kowlaski almost immediately recanted the confession and said it was coerced. His defense counsel at the time tried to have an expert in false confessions testify, but was prevented from doing so by Judge Brennan. Kowalski’s current defense team is seeking to have another expert, this one on interrogations that lead to false confessions, testify. Judge Stewart ordered an evidentiary hearing to take place on that matter following objections by prosecutors. However, he did grant defense motions to review Furlong’s personnel records as well as investigative subpoenas conducted by the Michigan Attorney General’s Office and to examine the Kowalski trust fund. He will also rule later this week on a request by Livingston County Prosecutor Bill Vailliencourt that temporarily sealed portions of the case file. (JK)