Thursday morning's hearing in Judge Robin Vannoy's courtroom was, in a word, dramatic.
Cornell McKay is facing ten to 30 years for an August 10, 2012 armed robbery. His lawyers argue that evidence collected in the robbery investigation clearly points to a different man, Keith Esters, currently serving 50 years for the murder of Megan Boken. Vannoy presided over McKays' trial in December 2013, and it was her word that prevented McKay's lawyers from presenting all their Esters-related evidence to the jury.
"I made certain decisions in that trial," said Vannoy during the hearing, moments after upholding McKay's conviction and denying his lawyers' motion to delay the sentencing date. "I stand by those decisions."
Vannoy also denied McKays' lawyers' motion to call Esters as a witness. Calls from the cell phone stolen in the August 10 robbery were made to Esters' girlfriend, and police eventually confirmed where and when Esters sold that phone. Last week, Esters strongly hinted to his involvement in the robbery during an interview with the Post-Dispatch.
"Tell you the truth, I can't say nothing that gonna benefit him because in the end it's gonna make me look bad," Esters told reporter Jennifer Mann in an interview.
During McKay's trial in December 2013, the jury did hear limited testimony from Esters' girlfriend. However, they didn't hear anything about Esters shooting Megan Boken on August 18, just blocks from the scene of the August 10 robbery.
"The state insisted that all the pertinent evidence was raised in the initial trial, and it was not," says Thomas San Fillipo, one of McKay's attorneys. "The next step is to appeal to higher court. Hopefully they'll see the overwhelming evidence that Keith Esters committed the crime."
Yesterday's ruling was certainly rough for McKay. His defense team -- recently joined by former State Appeals Court Judge Jim Dowd -- has only a week to prepare for the sentencing hearing on March 20. The lawyer who represented McKay during his initial trial, a civil attorney named James Hacking, missed a procedural deadline and was allowed to withdraw as McKay's legal counsel in February. The mistake could complicate McKay's options for future appeals, and his current lawyers plan to argue he was not adequately represented.
Indeed, this case is as complicated as they come. But Vannoy's ruling against McKay wasn't the only motion she heard during yesterday's hearing: First, the judge allowed prosecutors to call Post-Dispatch reporter Mann as a witness.
Continue to read how Judge Vannoy compelled a journalist to become part of her own story.
Reporters are rarely called to the witness stand. To overcome the significant Constitutional protections afforded to the press by the First Amendment, prosecutors must prove a reporter's testimony is necessary and could not be obtained by alternate means. In this case, prosecutors sought to ban McKay's non-family members from attending his sentencing.
Mann was was present for the last day of McKay's trial on December 12, 2013, when supporters from his church shouted and pleaded with the victim of the August 10th robbery's husband. According to testimony, some of the church members asked him how he slept at night and to reconsider McKay's identification as the robber.
During yesterday's hearing, Circuit Attorney Christine Krug characterized the incident as "threatening" to the victim and her supporters.
In her argument, Krug compared Mann to a bystander who witnesses a crime in the street. The Post-Dispatch's lawyer, however, argued that Mann's testimony was unnecessary and that prosecutors were using their subpoena to disrupt Mann's ability to cover the case.
"When Mann said that she planned to cover the sentencing in this case, she was told by the prosecutor that the Post-Dispatch should find someone else to do so because the State planned to subpoena her," writes attorney Joseph Martineau in a memo to the court. "As such, lurking in the background is the appearance that the motive behind the subpoena for Mann's testimony may be as much to squelch her news coverage of this case as it is to seek relevant evidence."
Mann was not the only witness to the "threatening" behavior after McKay's trial. Krug also called Michael Graves, an investigator with the prosecutor's office who was escorting the victim's husband during the incident.
Though Vannoy did compel Mann to testify, the judge eventually denied the prosecutor's motion to exclude McKay's supporters from the sentencing.
"Being called to the witness stand hampered my ability to report on the proceedings in their entirety," writes Mann in an e-mail to Daily RFT. "Whether or not that was the intent of the circuit attorney office's subpoena, it certainly was the result and that's why we fought it. It's a very slippery slope when you start subpoenaing reporters -- particularly when you do so without necessity."
Continue for documents related to yesterday's motion, including the Post-Dispatch's arguments for keeping Mann off the witness stand
Here's the amended motion prosecutors filed to ban members of McKay's church from attending his sentencing. It describes the incident where some church members allegedly harassed the husband of the victim of the August 10 robbery.
Here's the affidavit filed by Post-Dispatch reporter Jennifer Mann.
Finally, here's the Post-Dispatch's motion to quash the state's subpoena calling Mann as a witness, followed by a detailed memo of support by the papers' attorney Joseph Martineau.
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