Linehan lawyer wants indictment thrown out (9/9/11)

Grand jury was corrupted by use of evidence, she says.

Anchorage Daily NewsSeptember 8, 2011 

Mechele Linehan speaks to her defense attorney Cynthia Strout during a hearing to dismiss her murder indictment on Thursday, Sept. 8, 2011, at the Nesbett Courthouse.

BILL ROTH / ANCHORAGE DAILY NEWS Buy Photo

It was a key plot point in the saga of Mechele Linehan's arrest and murder conviction.

The letter from her alleged victim, Kent Leppink, warned his parents that if he was to wind up dead, Linehan and other conspirators were likely to blame. "Take Mechele DOWN. Make sure she is prosecuted," Leppink wrote in 1996, days before he was found shot dead near the Hope turnoff.

When it comes to swaying a jury, only an out-and-out confession can be more compelling than this kind of "letter from the grave," Linehan's lawyer argued recently.

Now it's up to a judge to decide if Linehan should still be charged with murder at all, given that a higher court has ruled that Lippink's letter and other important evidence should never have been allowed in her trial.

Defense lawyer Cynthia Strout is pushing for Judge Philip Volland -- the same judge who allowed the letter as evidence -- to throw out the indictment altogether.

"The grand jury was corrupted by the use of the same evidence that our court of appeals found caused Mrs. Linehan's trial to be fundamentally unfair," Strout argued in a hearing Thursday in Anchorage Superior Court.

Prosecutors counter that Linehan believed she stood to cash in on a $1 million life insurance policy upon Leppink's death at the hands of conspirator John Carlin, and would have been indicted even without the letter.

"There was more than sufficient evidence presented to the grand jury to sustain the indictment when the improper evidence is excised," prosecutor Paul Miovas wrote in opposition to the motion to dismiss.

If Volland allows the indictment to stand, Linehan would be back on trial for murder in April, barring yet another appeal or delay. If the judge agrees with Linehan's lawyer and rules that the original murder indictment hinged on evidence the appeals court has now disallowed, prosecutors would have to win a murder indictment against Linehan all over again.

Linehan was accused in 2006 of conspiring to kill Leppink. Prosecutors said the then-23-year-old Bush Company dancer manipulated the 36-year-old commercial fishermen into a marriage engagement and had him killed by Carlin, who was enamored with Linehan.

An Anchorage jury convicted her in 2007. But the Alaska Court of Appeals overturned the conviction in February 2010, saying she did not receive a fair trial and that Volland should not have allowed the jury to hear testimony about the movie "The Last Seduction" or Leppink's letter.

Throwing out the indictment would mean that prosecutors would have to convince another grand jury that Linehan should be charged with murder. A second jury trial would follow.

Volland asked both lawyers to present him with more information before making a decision. Among the questions: Did Linehan waive the right to challenge the indictment by failing to do so right away, rather than waiting until after the conclusion of her trial?

Miovas, the prosecutor, said the grand jury learned that Linehan, now 38, had the motive to kill Leppink regardless of the letter.

"The most relevant (motive) that we've all dealt with is the insurance policy and the million-dollar payout that arguably Mrs. Linehan was thinking was going to come her way," he said.

As the prosecutor talked, Linehan and her lawyer exchanged handwritten notes. Roughly a dozen people watched from the gallery and Leppink's parents listened over the phone.

Prosecutors took a risk by using the letter as evidence in the first place, Linehan's lawyer said. Such evidence should be presumed to be inadmissible, she argued. Now that the higher court has thrown the letter and other evidence out, it's time for prosecutors to try again for an indictment.

"The only fundamentally fair thing to do is to require them to do it again but do it right," Strout said.

Volland said that some of the evidence that he considered to be the most persuasive surfaced only in the grand jury presentation -- including testimony from Linehan's sister.

Volland said his decision could come as early as an Oct. 7 hearing. Whatever he decides, the losing side could once again appeal.

Volland told the lawyers that he allowed the use of the Leppink letter at the trial for a reason that no one has ever talked about. While one part of the letter said Linehan and other men in her life might be responsible if he died -- that was the most prejudicial part, the part presented to the grand jury -- there was another section of the letter that helped balance it out, Volland said.

In that part, Leppink told his parents that he wanted them to tell Linehan how much he loved her and to visit her in jail, he said.

The judge claimed he had been expecting Linehan's request to dismiss the indictment and had no problem with the higher court ruling that he should not have allowed the controversial evidence.

"You're not a real judge until you get overruled," he told the lawyers.


Twitter updates: twitter.com/adn_kylehopkins. Call Kyle Hopkins at 257-4334 or email khopkins@adn.com.

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