Ellington attorney: Client vindicated

COEUR d'ALENE - The appellate attorney in Boise for Jonathan W. Ellington said on Tuesday his client is feeling "vindicated" after the Idaho Supreme Court threw out his second-degree murder conviction and sentence and granted him a new trial.

The state's top court also vacated two counts of aggravated battery that stemmed from a road-rage incident involving three cars that turned deadly on New Year's Day 2006 for one woman. His jury trial was in August 2006.

Ellington, of Hayden, who currently is imprisoned near Boise, was charged with killing Vonette L. Larsen, 41, by running her over near Scarcello and Ramsey roads.

In its opinion Friday, the Supreme Court cited multiple instances of prosecutorial misconduct and the likelihood that an Idaho State Police officer committed perjury during Ellington's trial.

In reaction, the ISP on Tuesday said in statement that an administrative investigation, in line with standard procedures, has been initiated into the issues identified by the Supreme Court.

"The ISP regards this as a serious matter and fully intends to complete a thorough investigation," the statement said. "The involved employee has been placed on administrative leave with pay, and since this investigation involves a current employee in a personnel matter, the ISP will not be able to comment further."

The employee, Cpl. Fred Rice, was called as a traffic accident reconstruction expert by prosecutors during Ellington's trial.

He testified about driver reaction times and the use of crash debris to locate a point of impact between vehicles.

Ellington filed a motion for a new trial, in part, on the grounds that Rice had testified inconsistently with testimony from a prior case. His testimony also was inconsistent with training materials Rice teaches from, which he prepared himself.

Justice Warren Jones wrote the new trial was being granted on the basis the trial court in Kootenai County abused its discretion in denying him a new trial after evidence of Rice's false testimony surfaced.

Kootenai County Prosecutor Barry McHugh said on Tuesday his office is evaluating the Supreme Court opinion and he intends to discuss it with the Idaho Attorney General's office, which handled the appeal before the Supreme Court, as soon as possible.

"Then we'll decide what the most appropriate steps are from here," he said.

McHugh's office could file a petition for a re-hearing in the next three weeks. McHugh was not the prosecutor in 2006.

"A re-hearing is not commonly granted," said Erik Lehtinen, Ellington's appellate attorney. "They're very careful the first time around."

The re-hearing would only be granted in "extreme circumstances," he said.

Lehtinen said there was a pattern of prosecutorial misconduct, which built on itself, and had an overall effect that was greater than the sum of its parts.

Lehtinen, said, "These were problems (Ellington) knew of and his trial team knew of. Unfortunately, we had to wait until 2011 to get him a new trial."

Anne Taylor, Ellington's primary attorney at trial, said, "I'm very happy. The Supreme Court heard what we were arguing loud and clear."

She believes she'll be re-assigned to the case.

"We fought hard in the trial in 2006," she said "The difference I would expect this time around is we might get a fair trial."

"The (Supreme Court) opinion is very well reasoned," said defense attorney Chris Schwartz, who also represented Ellington during his trial.

He said the defense made motions for a mistrial more times during Ellington's trial than any other he has been involved with.

The Supreme Court said District Court Judge John P. Luster, who presided over the trial, erred when he refused to give Ellington a new trial.

Luster determined that the newly discovered evidence of Rice's inconsistencies would probably not have produced an acquittal.

Ellington argued that if Rice had been consistent in his testimony it would have matched the testimony of defense expert Dr. William Skelton. The Supreme Court agreed.

The court said Luster abused his discretion in deciding that false testimony by Rice wasn't material.

Luster declined to comment Tuesday, saying the case is now pending and would likely come before him again.

However, in his March 2009 ruling denying a new trial, he wrote, "It is not even apparent that Rice was an effective witness."

He wrote that the new evidence about Rice's inconsistent testimony would not have altered the outcome of the case.

"From the perception of the court it is likely that the only one impressed with the testimony of Fred Rice was Fred Rice," the judge wrote.