News From Terre Haute, Indiana

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May 4, 2013

Boswell mistrial declared — again

Prosecuting attorney uses same phrase that caused first mistrial in February

TERRE HAUTE — A second mistrial was declared Friday morning for a Riley man accused of the 1979 slaying of 20-year-old Kathy Jo Baker.

Richard L. Boswell Jr., 55, was released Friday from the Vigo County Jail, where he had been held since his October 2010 arrest on charges of murder and attempted murder.

Boswell was arrested after an Indiana State Police investigation into the cold case linked Boswell to the May 1979 killing of Baker and the attempted murder of her then-2-year-old son, Ryan.

Boswell was linked to the case through DNA evidence, which was recovered on a shirt that Baker was wearing the day she died.

Closing arguments were under way shortly after 9 a.m., as the week-long trial was coming to a conclusion in Vigo Superior Court 6, when trial deputy prosecutor Dan McGlone said the same three words — “killed another woman” — that resulted in the first mistrial.

Defense attorney Luther Garcia immediately objected and asked Judge Michael Lewis to review McGlone’s statement. In presenting their case against Boswell, the prosecution is not allowed to go into his criminal history because it could prejudice the jury against him. Boswell has a 1991 conviction for criminal confinement and criminal deviate conduct. He was released from prison in June 2006.

After reviewing a recording of the statement made by McGlone, Lewis ordered a mistrial and the release of Boswell.

McGlone told the Tribune-Star that the phrase “killed another woman” unintentionally slipped out. It was said as McGlone recounted testimony from Jodie. R. Bennett, an offender at the Indiana State Prison, whose statement of those words in court resulted in the first mistrial in February.

Bennett, who is serving two 50-year sentences for a double homicide, had told the first jury that he associated with Boswell while Boswell was incarcerated on the 1991 conviction. Bennett testified that Boswell had mentioned he had committed a crime against a woman and her child but had never been arrested for it. While giving testimony in the earlier trial, Bennett stated that Boswell had said he “killed another woman,” which could imply to the jury that Boswell was in prison for murder.

Bennett testified again during the second trial, but was under orders from the prosecution not to use the same phrase during this testimony. He succeeded.

The 6-man, 6-woman jury had heard throughout the week from several witnesses — a retired Indiana State Police captain who photographed the scene where Baker’s body was found, a retired ISP lieutenant who had helped in the initial search for Baker, the forensic pathologist who autopsied Baker in 1979, a DNA expert, former neighbors, and a friend who was probably the last person to speak to Baker before she disappeared from her home on May 22, 1979.

When her husband arrived home from work on that day, he found the door to the house open, the gate to a fenced-in area open, and an uneaten lunch prepared on the stove. Baker and her injured son — who had an eight-inch gash in the back of his head — were discovered about 24 hours later at a remote area more than a mile from their home.

No arrests were made in the case, which went cold until a tip came in 2008 from a woman who told police that her ex-husband may have been involved in Baker’s murder. ISP reopened the case, and cleared the ex-husband of involvement. But evidence preserved from the case had been submitted to the ISP Lab for DNA analysis, and a DNA hit came back for Boswell, whose DNA was in the state database due to his 1991 conviction.

ISP detectives Tony Guinn and Troy Stanton continued the investigation and interviewed more than 50 people about the 30-plus-year-old slaying. The original case had interviews and information from more than 130 people, but many of those people had died in the following years.

The case first went to trial at the end of January, and a mistrial was declared in February. A speedy trial was set by Judge Lewis to start April 28.

Vigo County Prosecutor Terry Modesitt called the mistrial “very unfortunate” and said he plans to file paperwork to retry the case against Boswell a third time.

“We just met with the family,” Modesitt said minutes after Boswell was released from custody. “They understand what happened. They understand the hard work that went into [prosecuting this case].”

In fact, several relatives and friends of Kathy Jo Baker — including her husband Kenneth Baker and the couple’s now 36-year-old son — were in the courtroom to hear the closing arguments when McGlone said the phrase.

As all action in the closing arguments stopped while the attorneys conferred with the judge, the observers in the courtroom gallery sat silently awaiting an explanation. After dismissing the jury to the jury room, Lewis returned to the bench and noted that the same comment had been made in the previous mistrial, so he was ordering a mistrial in the current case and ordering the release of Boswell from the jail.

A round of objections then erupted from the gallery. “That is ridiculous,” one woman shouted.

The judge ordered the audience held in the courtroom until Boswell was escorted out of the courthouse to the jail to be released from custody.

Garcia said he felt the mistrial was justified considering what was said by McGlone

“This is a mistake that is so egregious that there is no other solution than mistrial,” Garcia said. “And we are so disappointed we were never able to present our argument to the jury and clear Mr. Boswell’s name.”

The family of Kathy Jo Baker gathered in a conference room and spoke with Modesitt after being released from the courtroom.

“The family wants closure. They do understand,” Modesitt said of the mistrial. “They also want me to mention that they don’t want anyone to take justice into their own hands. And, they were glad to hear it is our intent to pursue a third trial.”

Modesitt said it was uncertain yet when the paperwork would be filed with the Division 6 court. It would be up to Lewis to grant the new trial, Modesitt said.

Reporter Lisa Trigg can be reached at 812-231-4254 or lisa.trigg@tribstar.com. Follow her on Twitter @TribStarLisa.

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