A Round Rock man accused of capital murder will stand trial again after the first one ended in a mistrial and issues with the case landed then-Williamson County District Attorney Jana Duty in jail.
The second trial for Crispin Harmel, 38, is scheduled to start with jury selection on Monday.
He is accused of strangling 27-year-old Jessika Kalaher on Sept. 7, 2009, in Cedar Park while committing or attempting to commit kidnapping, robbery or aggravated sexual assault, an indictment said.
Prosecutors are not seeking the death penalty, according to a court filing Tuesday.
A gag order in the case prevents prosecutors and defense attorneys from discussing it with reporters.
“This case has been snakebit for several years because of prosecutorial errors,” said Bob Phillips, a veteran Williamson County criminal defense lawyer and former prosecutor in Dallas and Williamson counties.
He said the prosecutors who tried the case in 2014 “unintentionally withheld evidence” from the defense, an error Phillips characterized as an “honest mistake” due to what he called “the prosecutors’ lack of technological sophistication.”
Prosecutors have said Kalaher didn’t know Harmel. According to video surveillance tape from a Walmart in Cedar Park, he followed her out of the store about 1:47 a.m. that Monday morning and left in her car with her.
Harmel withdrew $20 from an ATM using her debit card and then took her to a park, where he raped and strangled her, according to prosecutors. Another video shows Kalaher’s car returning to a strip center near the Walmart about 3 a.m. and Harmel getting out of it before returning to his truck, prosecutors have said. They said Harmel went to a gas station a few minutes later.
Kalaher, found dead several hours later in her car, had bruises on her neck and other marks that indicated she was strangled with an unknown object, investigators have said. There was evidence of a violent struggle inside her car, according to prosecutors.
Harmel has denied killing Kalaher, telling police he met her on an adult sexual website, met up with her at Walmart and had consensual sex with her at a park. Harmel also told police Kalaher drove him back and dropped him off near the Walmart.
District Judge Rick Kennon on Wednesday denied a motion that defense attorneys had filed seeking to prohibit the Walmart surveillance video from being used in Harmel’s second trial.
Prosecutors in the past have said the video is a crucial piece of evidence because there is no DNA in the case and police never found a murder weapon.
Harmel initially was sentenced in May 2010 to 10 years in prison after he pleaded guilty to tampering with evidence in the case. He told investigators, according to an arrest affidavit, that he had thrown away Kalaher’s debit card and altered his truck’s appearance.
Prosecutors could not tie him to her death then, perhaps because two or three witnesses saw her looking “confused and lethargic” inside of her car after Harmel had beaten and strangled her, Duty said at the time.
Harmel was not indicted for capital murder until May 2013, after authorities reopened the case due to an article written by an Indiana University School of Medicine professor who said people could be strangled and then suffocate hours later from the effects of the strangulation. Duty said the medical phenomenon known as “delayed death due to strangulation” could be how Kalaher died.
Issues with the Walmart surveillance video led to Harmel’s first trial in 2014 being declared a mistrial.
On May 6, 2014, the sixth day of the trial, a prosecutor told the jury that Cedar Park police had used a special kind of software that placed time stamps on the Walmart video, showing the actual time it was recorded. A defense lawyer objected, saying defense attorneys were not provided with the software. The time stamp information provided a sequence of events that was at odds with the defense’s timeline.
Duty said at the time that prosecutors and defense attorneys both had the same security videos from the Walmart before the trial started and that defense attorneys also had the same access to the free software system prosecutors used to find the stamps on the video.
Kennon declared a mistrial, saying the defense had been placed in a “precarious position” and he wasn’t “too sure that Mr. Harmel could get a fair trial.”
A second trial was reset for March 30, 2015, but, a few weeks before it was to start, it ended up being delayed after defense lawyers alleged Duty knew before the first trial began that the time stamps were on the video because a former court employee said he saw them when he watched the video with her.
Duty later spent a few days in jail in August 2015 after a judge found her in contempt of court for, among other things, violating a gag order in the case.
In September 2015, Kennon ruled that Harmel could be retried even though Duty intentionally withheld evidence. Kennon said there was no evidence Duty “intended to goad a mistrial or avoid an acquittal,” according to the ruling. After defense lawyers appealed the judge’s ruling, the 3rd Court of Appeals ruled in April 2016 that Harmel could be retried.
Kennon also ruled that the Williamson County district attorney’s office could be recused from the case. Texas Assistant Attorney General Nancy Nemer is serving as the district attorney pro tem in the retrial.
Phillips, the longtime criminal defense attorney, said he did not think it was unusual that the case was being heard again nearly 10 years after Kalaher’s death.
“I think the state is doing the exact right thing,” he said, “seeking a conviction in a retrial, because of the horrific nature of the crime.”
Story so far
Jan. 7, 2009: Jessika Kalaher, 27, is found strangled to death in her car near a Cedar Park Walmart. Prosecutors later say video from the store showed Crispin Harmel following Kalaher around the store and then to her car.
May 26, 2010: Harmel is sentenced to 10 years in prison for tampering with evidence in the case after he told police he threw away Kalaher’s debit card and altered his truck’s appearance.
May 9, 2013: Harmel is indicted on charges of aggravated kidnapping, aggravated robbery and capital murder in Kalaher’s death.
April 29, 2014: Harmel’s first capital murder trial begins.
May 7, 2014: Judge Rick Kennon approves motion for mistrial after prosecutors revealed the discovery of time stamps on a Walmart video showing when events occurred. Defense lawyers did not know about the time stamps.
Sept. 16, 2014: Harmel’s second trial delayed after defense attorneys challenged a new video that prosecutors entered into evidence in August 2014. The evidence was a video of Harmel and Kalaher both getting into the driver’s side of her car in a Walmart parking lot the morning she died. A prosecutor said Walmart discovered the video while cleaning out surveillance tapes and prosecutors gave it to defense lawyers three days later.
March 18, 2015: Harmel’s second trial, rescheduled for March 30, 2015, is delayed again after defense lawyers allege then-Williamson County Attorney Jana Duty knew the time stamps were on the video before the first trial because a former court employee said he saw them when he watched the video with her.
Aug. 6, 2015: A visiting judge finds Duty in contempt for violating a gag order in the case, failing to appear in court and disrespecting the court. She is fined and is sentenced to 10 days in jail.
Sept. 10, 2015: Kennon rules that Harmel can be retried because it could not be proved that Duty intentionally provoked a mistrial.
Aug. 3, 2017 : Kennon sets retrial for May 14.