http://www.kansascity.com/mld/kansascitystar/news/4233564.htm
Judge refuses to declare mistrial over defense opening statement
The Associated Press
WICHITA - A defense attorney told jurors in opening statements that a third man was involved in the crimes, but a judge refused to declare a mistrial Monday in the case of two brothers charged with five killings.
Prosecutors requested sanctions against John Val Wachtel, attorney for defendant Reginald Carr. District Judge Paul Clark put off a decision on the sanctions until he had seen the defense's case.
"As I understand evidence, lawyers don't get up and make declarations concerning evidence in opening statement that they don't have. ...The inference of intentional misconduct is well-supported," Clark told attorneys after the jury had left.
Val Wachtel made the statement while outlining his defense case. He told jurors Reginald Carr was not with his brother Jonathan Carr the night four of the five persons were killed but instead was out selling drugs on the street. He contends that a hair from an unidentified black person that was found at a crime scene indicates that someone else might have been involved.
"Ultimately the DNA evidence will show that Jonathan Carr, not Reginald Carr, committed most if not all of the crimes alleged in the complaint -- and he did it with a third black male which still walks the street," Val Wachtel told jurors.
Mark Manna, the attorney for Jonathan Carr, said the incident showed why he initially wanted the trials of the two brothers separated. He said that if a mistrial was not declared, the brothers should be tried separately.
In his opening statement, Manna argued that no evidence connected his client to earlier robberies. He also discounted some of the ballistics evidence the prosecution planned to introduce.
"Because some counts may be proven against one defendant does not mean all counts will be proven by both. ... My role in these brief opening remarks is to let you, the jury, know Jonathan Carr is innocent," Manna said.
District Attorney Nola Foulston told jurors that the state had DNA, ballistics and other evidence tying both brothers to the crimes.
Between them, the brothers are charged with 113 criminal acts, including capital murder. Prosecutors are seeking the death penalty.
In the most notorious of the crimes, the brothers are charged with abducting five persons from a Wichita home Dec. 14, 2000, and shooting them in a soccer field the next morning. One woman survived, but Aaron Sander, 29; Heather Muller, 25; Brad Heyka, 27; and Jason Befort, 26, died. The Carrs also are accused in the shooting earlier that month of Ann Walenta, 55, who later died.
Foulston told jurors that Reginald Carr was arrested in an apartment filled with television and computer equipment from the victims and that Muller's blood was found on his clothing. In his pocket was a credit card that belonged to Befort, she said.
When Jonathan Carr was arrested later that day, police found in his pocket the diamond engagement ring that Befort had planned to give to his girlfriend -- the woman who survived the ordeal.
Testimony presented Monday showed the woman ran nude nearly a mile over snow-covered fields and fences to the nearest house, suffering frost-bite on her feet and hands along the way.
Foulston said the woman urged the police to collect evidence from her body if she died before she finished giving them details of the crimes.
"This was a woman who was desperate to let someone know what happened to her," Foulston said, "because she believed she was going to die and if she did the story of the execution of her friends would be left untold."