Clay Waller mandated to attend Friday hearing

A hearing Friday will determine whether testimony from Clay Waller's father will be preserved, and Waller will be there despite wanting no part in the hearing.

Cape Girardeau County Prosecuting Attorney Morley Swingle filed a petition for a writ of habeas corpus Tuesday that requests Waller's presence at the hearing. A judge will decide whether Waller's father's testimony, which alleges Clay Waller confessed to murdering his wife Jacque Waller and burying her, will be preserved.

Clay Waller is in federal custody at the Pemiscot County Jail after pleading guilty to Internet threatening charges Oct. 3.

Cape Girardeau County Circuit Court Judge William Syler granted Swingle's request Tuesday.

"You are hereby commanded that the body of James Clay Waller II ... be before the Honorable William L. Syler on November 18, 2011," Syler wrote to the U.S. Marshals Service in the motion.

Waller's attorney, Scott Reynolds, said Clay Waller has no desire to be at the hearing.

"He doesn't want to be there, and I don't want him there," Reynolds said.

In his petition, Swingle wrote that Waller's presence is necessary because he is a primary suspect in the case.

Swingle submitted an application Sept. 22 to preserve testimony from James Clay Waller Sr. In the application, Swingle wrote that the state anticipates filing a murder charge against Clay Waller.

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

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.

James Clay Waller Sr. has declined to comment on the investigation.

"His testimony establishes an element of the felony of murder, specifically that James Clay Waller, II, is the person who killed Jacque Sue Waller, which element cannot be proven in any other manner at this time," Swingle said in the application.

Reynolds filed a motion to quash the deposition shortly after it was submitted.

Per Missouri Supreme Court Rule 25, "a deposition cannot be taken until after the filing of a criminal information or indictment." The rule overrides any Missouri rules that are inconsistent with the provision, Reynolds wrote in the motion.

Reynolds also filed a request for a judge who lives and works outside the KFVS12 viewing area to preside over the investigation. "Overwhelming" publicity from the continuing coverage in newspapers and on television, radio and the Internet could cause the appearance of impropriety in Cape Girardeau County Circuit Court Judge William Syler's ruling, Reynolds wrote.

"Such publicity makes it impossible for anyone to ignore or to be unaffected by either the alleged details of the criminal investigation or the extreme emotions it has caused in Cape Girardeau County and the surrounding area," Reynolds wrote in the motion.

Syler will determine Friday whether another judge will preside over the investigation.

Officials have recently ramped up their investigation, searching along southbound Interstate 55 where Jacque Waller's car was found the day after she disappeared. During the Nov. 3 and 4 searches, they found her purse and other personal items.

A search along the northbound stretch of the interstate is forthcoming, investigators have said.

Lt. David James with the Cape Girardeau County Sheriff's Department did not return a call seeking comment on the investigation.

In addition to Jacque Waller's personal belongings and potentially the elder Waller's testimony, blood evidence was found at Clay Waller's former Jackson home that is a DNA match for Jacque Waller. Federal prosecutor Larry Ferrell presented the blood evidence during Clay Waller's federal court proceedings regarding his Internet threatening conviction.

Clay Waller also faces state theft and harassment charges unrelated to Jacque Waller's disappearance. His next court date for those charges was set for Nov. 22 but has again been postponed because he is in federal custody and is now set for Jan. 24, although it is uncertain whether he can attend. He will be sentenced for his federal Internet threatening conviction Dec. 21.

Clay Waller has repeatedly denied any involvement in the disappearance of Jacque Waller. Police say he was the last person to see her before her SUV was found.

psullivan@semissourian.com

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