Motion to preserve testimony against Clay Waller denied

He just couldn't get past the word "pending."

Cape Girardeau Circuit Judge William Syler denied Friday the state's motion that would have preserved the testimony of Clay Waller's father, which alleges Clay Waller confessed to killing and burying his estranged wife.

Syler denied the motion because of the ambiguity surrounding pending cases in Missouri Supreme Court laws. Per Missouri Supreme Court Rule 25, "a deposition cannot be taken until after the filing of a criminal information or indictment." The law does not mention pending cases, which Cape Girardeau County Prosecuting Attorney Morley Swingle had interpreted in court briefs to be the anticipation of a criminal charge. Because no charges have been filed against Clay Waller in connection to the disappearance of his wife, Jacque Waller, any case against him is not pending, Syler said.

"I don't see how I can get around a ‘pending case,'" Syler said. "The state can file charges if it would like and then take the deposition."

Swingle submitted a motion Sept. 22 to preserve testimony from James Clay Waller Sr. that alleges Clay Waller confessed to him on June 2 to breaking Jacque Waller's neck during a fight and burying her body. In the application, Swingle wrote that the state anticipates filing a murder charge against Clay Waller.

James Clay Waller Sr. is bedridden in a nursing home with diabetes, emphysema and chronic obstructive pulmonary disease. He finds ease in breathing only while lying on his side, Swingle wrote. Swingle would like to preserve the elder Waller's testimony in case he dies before a murder trial would start.

"If we do not preserve his testimony, we may lose it," said Cape Girardeau County assistant prosecuting attorney Angel Woodruff, who presented most of the state's case at Friday's hearing.

Jacque Waller has been missing since June 1, and Swingle called Clay Waller the primary suspect in her disappearance in the application to acquire the testimony.

Swingle and Woodruff declined to comment after the hearing.

In arguing against the motion, Clay Waller's attorney, Scott Reynolds, said that no law that permits the preservation of testimony without a criminal charge exists in Missouri, and Syler has no jurisdiction to create such a statute in the context of the investigation.

"You just can't create the Clay Waller exception," Reynolds told Syler. "If you grant this motion, you're granting a slippery slope where you will have to use this exception on subsequent cases. The law states you can't do that."

Woodruff cited a Missouri Rule of Civil Procedure that says a deposition to preserve testimony may be taken before any action is filed in civil cases, as well as federal laws that supported her argument. The laws bore some relevance to the Clay Waller investigation, she said.

"We're dealing with rules that are similar," Woodruff said. "When it's a close call like that, you err on the side of justice."

Had the deposition been permitted, Clay Waller and Reynolds would have been given 30 calendar days to look over all relevant documents and evidence the state has against Waller. Reynolds would also have been able to cross-examine James Clay Waller Sr. with Clay Waller present at the deposition.

Reynolds said that he would not be able to adequately prepare for any cross examination because no charges have been levied against his client in the investigation.

"What are the charges we're working with?" Reynolds asked Syler. "First-degree murder? Second-degree murder? Obstruction of justice? Littering?"

After the hearing, Reynolds said Syler made the right choice and that the law speaks for itself.

"It's crystal clear," he said. "Judge Syler just did his job."

Speaking on behalf of Jacque Waller's parents, Stan and Ruby Rawson, Laura Long Helbig said the family was disappointed with the ruling but optimistic that justice will prevail.

"There have been decisions that have gone in favor of both sides," Helbig said.

Helbig said the family is confident that law enforcement can build a case without the preserved testimony and hopes another break in the investigation happens soon. Investigators' efforts have been diligent, she said.

On Nov. 3, investigators found Jacque Waller's purse and other personal items along southbound Interstate 55 near Fruitland where her car was found June 2. More searches are forthcoming, but Helbig said she was unsure of any dates.

Blood evidence was also found at Clay Waller's former Jackson home that is a DNA match for Jacque Waller. Federal prosecutor Larry Ferrell presented the evidence during Clay Waller's federal court proceedings regarding his Internet threatening conviction.

"We just want to bring Jacque home," Helbig said.

Cheryl Brennecke, who has custody of her sister Jacque Waller's triplets, was also at the hearing but left immediately after. Stan and Ruby Rawson were not present and have directed any questions about the investigation to Helbig.

Although ordered to be in court by Syler, Clay Waller was absent from the hearing as a result of him waiving his right to be present.

"He doesn't want to be there, and I don't want him there," Reynolds said two days before the hearing.

Although not in court, Clay Waller was in Jackson at the Cape Girardeau County Jail. He was transported there from the Pemiscot County Jail to sign the waiver that negated his right to be present, Reynolds said.

In addition to denying the state's motion, Syler denied Reynolds' motion for a judge from outside the KFVS12 viewing area.

Reynolds had filed a motion Nov. 1 that requested a judge from outside the KFVS12 viewing area preside over Friday's hearing. "Overwhelming" publicity from the continuing coverage in newspapers and on television, radio and the Internet could cause the appearance of impropriety in Syler's ruling, Reynolds wrote.

"There's no question there's a lynch mob mentality," Reynolds said. "You can't ignore that mentality."

Syler believed he could ignore the mentality.

"I've been involved in cases here for the last 19 years that have gotten local publicity," Syler said. "I see no reason why I can't proceed."

In denying the motion, Syler allowed the hearing to proceed with him at the helm.

Next month may mark the last time Clay Waller is out of the confines of a prison for an extended period. He pleaded guilty to federal Internet threatening charges Oct. 3 and will be sentenced to up to five years in a federal penitentiary Dec. 19. Once in federal custody, he will not be able to leave the penitentiary for any state court dates pertaining to theft and harassment charges he faces. His case reviews for both charges continue to get pushed back as a result, with his Nov. 22 court date getting moved to Jan 24.

"We have a hard enough time getting him to cross the street," Woodruff said, referring to the fact Clay Waller was in Cape Girardeau County Jail on Friday. West Washington Street separates the jail from the Cape Girardeau County Courthouse in Jackson.

Clay Waller has denied any involvement in his wife's disappearance. Authorities say he's the last person to see Jacque Waller before she disappeared.

psullivan@semissourian.com

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