MASON COUNTY ATTORNEY REFUSES TO HONOR OHIO GRANT OF IMMUNITY. CHASE LAW PROFESSOR SAYS THIS RAISES ENTRAPMENT BY ESTOPPEL ARGUMENT
BY BARRETT J. BRUNSMAN ENQUIRER.COM
BATAVIA – A Kentucky criminal charge alleging that Amy Baker tampered with evidence by helping toss the remains of Marcus Fiesel into the Ohio River raises questions about whether her constitutional rights are being violated, legal experts say.
But she might not be able to avoid prosecution just because she had an immunity deal in Ohio.
Kentucky prosecutors might be able to convict Baker of the charge, which is punishable by up to five years in prison, if David Carroll Jr., convicted of killing the boy, testifies against her – and a jury believes him.
Clermont County prosecutors are furious that Mason County Attorney John Estill filed the charge Friday against Baker, who was the key witness in the murder cases against Carroll and his wife, Liz.
Estill had told Clermont County Prosecutor Don White that Baker wouldn’t be charged, said Daniel “Woody” Breyer, the assistant prosecutor who tried the cases and negotiated the immunity deal.
“I’m appalled,” Breyer said. “He told Don White and myself (two months ago) he had no interest in this – it wasn’t worth fooling with.”
Baker’s testimony about the 3-year-old foster son of the Carrolls probably can’t be used against her in Kentucky without violating her Fifth Amendment right to not incriminate herself, Breyer said.
“That statement (Baker’s testimony) was made only because certain promises were made to her,” Breyer said. “If those promises are not kept, I’m not sure that’s a voluntary statement.”
Kenneth Katkin, a professor at the Chase College of Law at Northern Kentucky University, agreed with Breyer.
“I’ve never heard of a case like this,” Katkin said.
It might be unprecedented in the modern era – since U.S. Supreme Court rulings in 1959 and 1964 – for a prosecutor to interfere with such an immunity agreement, Katkin said. Estill might be bound to honor the Ohio agreement with Baker based on constitutional considerations, Katkin said.
One argument could be that prosecuting her in Kentucky based on her Ohio testimony might be considered entrapment by estoppel – meaning she was misled by government officials in violation of her Fifth Amendment right to not be deprived of liberty without due process, Katkin said.
If courts don’t agree with that, and “if David Carroll is going to come forward against Amy Baker … she could be prosecuted based on his testimony,” Katkin said.
An Estill spokeswoman declined to comment Saturday.
In February, he said he didn’t plan to charge Baker.
“The one thing I want to be clear with (Clermont County) about is we are not going to interfere with Mr. White’s prosecution of that murder case over there by playing some kind of interstate one-upmanship,” Estill told The Enquirer back then. “The last thing I want to do is complicate his job.” But that’s what has happened, Breyer said.
“Here’s the other thing I find incredibly offensive: What (Estill) has done,” Breyer said, “is make a deal with the murderer who actually threw the body off the bridge so that he could get the person who cooperated with the state of Ohio to solve the case.”
Breyer said Estill didn’t return four telephone calls made by the Clermont prosecutor. But David Carroll’s lawyer, Cathy Adams, told him of the deal, Breyer said.
“The deal is (Carroll) will come down there, he’ll plead guilty to the same charges (as Baker) – make it look like, ‘Oh, I’m holding him responsible, too’ – and then (Estill) will guarantee (Carroll) that he will do concurrent time” with his prison sentence in Ohio.
Adams did not return an Enquirer phone call seeking comment.
Baker called Breyer on Friday to say she had heard about the charge, he said.
“She was in tears,” Breyer said. “She’s distraught.”
Baker went to the prosecutor’s office in Batavia, where Breyer arranged for her to surrender to the Clermont County sheriff’s office.
After being taken to the Clermont County Jail, she appeared before Municipal Court Judge James Shriver, who set bail at $50,000.
Baker, who Breyer said can’t afford the bail, is to appear before Shriver on Monday afternoon for an extradition hearing.
The court-appointed defense attorney who helped negotiate her immunity deal, Norm Aubin, said Baker plans to fight extradition.
It might take 30 to 90 days for the office of Gov. Ted Strickland to approve or deny Kentucky’s request for extradition, Breyer said.
It’s unclear what all this might mean for a Juvenile Court hearing May 7, in which Baker planned to try to regain custody of her three children. They were taken by Clermont County Children’s Protective Services on Aug. 29, the day after the Carrolls were arrested, because Baker was left homeless and didn’t have a job to support them.
She now has a job and lives in an apartment in Batavia Township.
‘HE WANTS TO GET EVEN’
While Carroll can’t be forced to incriminate himself by testifying in a Mason County court, “he’s been guaranteed he won’t suffer any punishment,” Breyer said. “…You think he’s not (perturbed at Baker) for ratting him out? He wants to get even with her.”
Carroll will be eligible for parole in 16 years. His wife, who also was convicted in February in the August death of Marcus, will be eligible for parole in 54 years.
Baker, who was the live-in girlfriend of the Union Township couple, testified in Liz Carroll’s murder trial that she accompanied David Carroll when the boy’s body was burned in Brown County.
The foster dad threw the remains off the William Harsha Bridge to Maysville, Baker testified.
The charge against Baker could jeopardize future prosecutions in Ohio because people involved in crimes might not testify in exchange for immunity, Breyer said.
“How is anybody going to believe anything we tell them?” Breyer said.