Robert Schwander with his attorney, Craig Elhart, and Elhart’s employee, Dena Horvath, at a hearing in the 13th Circuit Court. Photo by Patrick Sullivan.
The killing of Carly Lewis sparked a lot of interest in Northern Michigan.
The story of how the body of the Traverse City teenager was found in a sand pit on the eve of her 17th birthday was splashed over newspapers across the state, broadcast on television and radio throughout Michigan, and spawned at least four Facebook groups with over 10,000 members.
The death even inspired a local metal band to write a song in honor of Lewis, a guitar-driven dirge that calls for retribution for Lewis’ accused killer, Robert Jensen Schwander.
Schwander’s attorney, Craig Elhart, feels that all of that media publicity could be a detriment to his client receiving a fair trial from an impartial jury. But at a hearing in the case on Sept. 14, lawyers agreed they might nonetheless be able to seat a jury to hear the case in Grand Traverse County.
Elhart said at the hearing that he might be able to get around the pretrial publicity with a jury questionnaire, to be mailed to prospective jurors, in an effort to weed out people who know too much about the case or who have already made up their mind. But Elhart said he would still like to have the trial moved out of the region should it prove impossible to seat a jury.
Circuit Court Judge Thomas Power and Grand Traverse County Assistant Prosecutor Noelle Moeggenberg agreed to proceed with a questionnaire and wait to decide whether to
move the trial, which is currently scheduled to begin Oct. 19.
Power said at the hearing he was optimistic an impartial or unaware jury could be found, based on his previous experience with well-publicized cases.
“It would be discouraging to the news media to know how many people really don’t know,” he said.
In the motion, Elhart had argued the media storm around the case could prevent his client from getting a fair trial. He said his client would suffer bias because he’d been cast in “an extremely negative manner.”
In particular, Elhart focused on statements to the media from Schwander’s former attorney, Clarence Gomery, and a detective.
Elhart cited comments Gomery made about why he stopped representing Schwander so quickly after he started. One example Elhart cited quoted a television report: “Gomery tells 9&10 News that he is at a position in his career where he can evaluate cases he wishes to be identified with.”
At the hearing, Power agreed the statement “could be read in an unfortunate way.”
Also at issue were statements made by a detective in the case, TC Police Capt. Brian Heffner, about how Schwander failed a polygraph and that he confessed.
Polygraph evidence is not admissible in court because of its questionable reliability.
News coverage of the confession raises a problem because apparently what Schwander told police amounted to a confession that he acted in self defense. Prospective jurors who believe Schwander confessed to murder would be a problem for the defense.
Despite that, Moeggenberg argued that the media coverage had not amounted to “highly inflammatory pretrial publicity,” part of the legal standard judges are supposed to use when considering whether to move a trial.
“The idea of a polygraph being mentioned likely did not receive the same attention among most (members of the public) as it did in the legal community,” she wrote. “With respect to the other statements of Captain Heffner, readers and potential jurors are aware that they are hearing one side of the case when he speaks.”
CLARK AND HOLTZER
In 1998, there were two cases in Grand Traverse County that produced a media frenzy and defense lawyers in both cases wanted the trials moved out of the region.
In one, John Clark killed TC Police Sgt.
Dennis Finch on May 12, 1998.
Clark’s attorney argued that an “inflamed community atmosphere” meant his client couldn’t get a fair trial.
In addition to extensive media coverage, people tied blue ribbons on their cars to show support for the sergeant and the police department and the police department headquarters, which was then right next to the courthouse, was named in honor of Finch.
As in the Schwander case, the judge said he would consider moving Clark’s trial to another county if a fair and impartial jury couldn’t be found in Grand Traverse County.
Dozens of prospective jurors were summoned to the Civic Center to answer questions so that lawyers could seat a jury of people who hadn’t already made up their minds. Once a jury was seated, the presiding judge, Circuit Court Judge Philip Rodgers, took the extraordinary step of ordering the jury to be sequestered for the duration of the trial.
Clark was convicted and sentenced to life in prison without parole.
In another 1998 case, Judge Power moved a trial out of the county because of highly publicized information that needed to be kept from prospective jurors.
In that instance, Kevin Holtzer awaited trial in two similar but unrelated cases.
He was accused of the beating death of Kalee Bruce, a college student who worked at the hotel where he lived in East Bay Township, and also of savagely beating a woman and leaving her for dead in a TC alley.
Once Power ruled that evidence of the assault would not be admissible in the murder trial, he moved both trials out of the county so that jurors in on case would not have heard about the other.
Both trials were held in the town of White Cloud in Newaygo County, where Holtzer was convicted and sentenced to spend his life in prison.
‘THEY’D WISH YOU’D DIE’
During the Clark and Holtzer cases, lawyers didn’t have to deal with Facebook or Youtube or local bands who could easily offer song downloads to the public.
In the Schwander case, lawyers are dealing with problems they never imagined in the late 20th Century.
As Elhart noted in his motion for a change of venue, four Facebook groups were created in reaction to the death of Carly Lewis.
The four groups claim 10,558 members, he said. One of them called “Justice for Carley Jean Lewis” boasts 2,930 members.
There are also links to a song and a video from the band Arbitor, whose members were inspired to write a song about Lewis.
In his motion, Elhart quoted lyrics from the song:
“But as for him “Some of us have wished her fate upon you “I’ve heard them say they’d wish you’d die “But we won’t let you take the easy way out “You will regret this all your life.”
For now, the lawyers will work on a questionnaire to send out to prospective jurors.
Elhart had already submitted 27 pages of 108 proposed questions. Many of them are standard questions that lawyers would ask during a typical jury selection process. But some of them are unusual, enough that Power questioned the relevance of some, like one question that asked whether the potential juror listened to National Public Radio or Rush Limbaugh.
“It might be interesting in telling which side of the culture war they are on,” Power said.
Elhart said he thought he could whittle the questions down to about four pages. He and Moeggenberg agreed to come up with a questionnaire they could both agree on.