Monday, July 28, 2014

Defense closes, prosecution rebuts

From page A1 | October 28, 2013 |

The defense of the Joseph Michael Nissensohn triple-murder case gave its closing arguments Thursday, followed by a prosecution rebuttal and the beginning of the jury’s deliberation.

Defense attorney Hayes Gable III presented his closing statements regarding Nissensohn’s alleged 1989 killing of 15-year-old Kathy Graves in South Lake Tahoe. He noted the prosecution’s case had not gotten any better since 1990, when Graves’ body was found.

Now, though, they have a jailhouse informant that was seemingly the star witness, something that had come as a surprise to Gable during the prosecution’s arguments the day before. As for other witnesses, time had eroded their memories and some witnesses — including the defendant’s ex-wife, Cheryl Rose — had died.

He noted there was no physical or DNA evidence to connect Nissensohn with the murder. Just a prior conviction, copious amounts of pornographic material and four witnesses talking about unrelated sexual and physical assaults. “Some of it was pretty bad, but none of it was illegal child porn,” Gable said of the pornographic material. If it had been written by him, it would be a different matter, he said.

Meanwhile, “jailhouse snitches” came forward after the case was filed in 2008. None of the assaults were ever charged. Brenda Miller, who testified that her daughter Summer Dawn had been a child sex slave of Nissensohn’s, still allowed the man to keep in contact with her children, Gable said.

Jessica Pillow, who also said she was sexually assaulted by Nissensohn, was the consequence of suggestive post-event information, which an expert witness testified during the trial could taint memories. Ages and dates were wrong from what she remembered, he said.

“How does this show Mr. Nissensohn has a propensity for murder?” Gable asked the jury. “It doesn’t. Just that he does other bad things, which he is not on trial for.”

Rose’s testimony changed frequently in the years before she died, Gable said. She changed from having a van covered in blood during the murder of Sally Jo Tsggaris, which Nissensohn served 15 years on a second-degree murder charge for, to the van having no blood. First he carried a quilt, then it changed to a bag with sex toys and knives in it.

Rather than tackling the burden of proof, the prosecution turned to two “jailhouse snitches,” Gable said, neither of which could be trusted. One was blackballed after threatening to expose undercover officers’ secrets, while the other would constantly give often incorrect information and conveniently had new information on the case when he got in trouble.

Gable went back to Rose, showing the jury a forged transcript of grades from Ohio State University that Rose used to get a job as a Child Protective Services investigator; she was later fired after falsifying an interview. The interview with her in a preliminary hearing was “pathetic” and the questions asked of her were not what he and fellow defense attorney Peter Kmeto would ask.

Kmeto took over for the portion of the closing argument covering the killings of Tammy Jarschke and Tonya Jones near Monterey in 1981. He began by asking if the jury would lower the bar of conviction just because Nissensohn is “not a nice man, (and) has done some terrible things.”

Questions remained about the Monterey killings: where, when and who did the killing. He said it was the fault of the Monterey County Sheriff’s Office, who did a “terrible job of investigating a scene.” Despite there being a screwdriver in the sternum of one of the girls, no blood was found. “How do you know Tonya was killed there?” The same applied to Jarschke. “How do you know Tammy Jarschke was not hung like a trophy in some sci-fi movie like ‘Predator?’” he asked. She was found hanging from electrical wire from a tree branch. People were “stomping around the scene” with no science done. Plus, he later noted, the scene was bulldozed over two weeks later.

He also questioned the testimony of what witnesses saw at Denny’s the day the girls disappeared. No one, Kmeto asserted, said that they were going to “teach a lesson” to the two girls.

Instead, the claim was made much later, after the event, and was subject to post-event information corrupting memories. Although Gomes called a memory expert’s testimony a “comedy show,” the expert showed memories, despite how clear they might be, could be wrong.

The time frame was wrong, as well, with Nissensohn not having enough time to be seen by multiple witnesses in multiple places, taking the girls to Chews Ridge, sexually assault them, tie them up, get his car stuck and go back down to the city and going to a birthday party. Steve Agee testified that it would take between three and five hours to make the hike back.

There was also a failure to follow up on Ira Gilmore, who Tammy Thornton, his ex-girlfriend, said he confessed the murders to her. They didn’t follow up on Thornton’s uncle, Chuck Rider, who was also believed to be involved.

As for the book found in Nissensohn’s cell about Paul Bernardo, a Canadian serial killer and rapist, which contained explicit sex scenes, Kmeto said it is like Showtime’s “Dexter,” or comic books or video games. Just because some reads or plays video games or watches TV about brutal slayings does not make someone a psychopath. “Does that make you a candidate for a murder suspect?” he asked. “The answer is a resounding no.”

Prosecutor Dale Gomes then delivered his rebuttal.

The mentioning of the rape and “bad things” was not to lower the bar, he said, but to show what motivated Nissensohn. Intent is something he, as the prosecutor, has to prove. This was not a weekly drama on HBO, he said, but “this is this man’s lifelong obsession,” asking if it did not tell the jury anything about Nissensohn’s motives with teenage girls or his intent in taking them to isolated spots.

As for Rose, Gable had said he wished he could show all the inconsistencies of her testimony. “What they gave you was all they had,” Gomes said of the defense team. “Don’t buy that … They were allowed … and nothing stopped them. They didn’t present because it wasn’t there.”

Police were not ready to arrest Rose for the murders, as the defense said. She was, in fact, never arrested, and the defense’s claim was “absolute, out-of-the blue fabrication.”

As for the serial killer joke on the phone, Gomes said it was “funny because it was true.” It was an inside joke, as the defense said, but “that’s the only part Mr. Gable got right.”

The memory expert, he said, was not so much a “comedy act” as he was “sad-funny.” The witness “functionally stole $14,000″ to testify that people forget things, something that everyone already knows and is human nature, Gomes said.

He showed the jury a photo of the tire tracks in Monterey made by Nissensohn’s Plymouth. “Nobody made up those tracks,” he said. As for Agee testifying how long it would take Nissensohn to walk from the scene, Gomes noted that the defendant didn’t walk all the way from the crime scene to the bus stop. He hitchhiked. Although Kmeto argued that the prosecution claimed debris found at the car tracks was from Nissensohn’s car, Gomes showed testimony that the trash was from Don Haught’s car. Haught helped Nissensohn get his car from the slope. As for nothing of his being left at the scene, leading Kmeto to question if Nissensohn was ever actually there, Nissensohn told police that Haught used a black and orange rope that broke multiple times to pull Nissensohn’s car out. Frayed pieces of the rope were found at the scene.

Any one of the pieces of evidence, by themselves, could show reasonable doubt, Gomes said. But taken all together, it is far too large of a coincidence. “This man killed all four of these women, with a sexual purpose,” he said.

The jury then began its deliberation.

Contact Cole Mayer at 530-344-5068 or Follow @CMayerMtDemo.





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