Harmel murder case can be retried; Jana Duty asks to be recused


A man charged in a capital murder case whose mistrial led to Williamson County District Attorney Jana Duty going to jail and battling two lawsuits is eligible to face a second trial.

The Texas Court of Criminal Appeals last week refused to consider an appeal by one of Crispin Harmel’s lawyers who argued Harmel could not be retried because Duty had intentionally provoked a mistrial by withholding evidence in his case.

A new trial date has not yet been set. Duty filed a motion Monday to recuse herself and her assistant district attorneys as prosecutors in the case, including at a court hearing next month. She did not respond Tuesday to a request for comment.

In her motion, Duty said the chief of the criminal prosecutions division of the Texas attorney general’s office, Adrienne McFarland, had agreed to serve as district attorney pro tem in the Harmel case.

“Matters that have transpired relating to how the district attorney’s office has prosecuted this case have become a distraction from the facts of the case and the determination as to whether Crispin Harmel murdered Jessika Kalaher,” the motion said.

“Furthermore, justice can only be served if the prosecutor in this case is able to focus on the facts of the case and not be sidetracked by discovery related issues that are not relevant.”

Duty lost her re-election bid to Shawn Dick in the Republican primary in March, and her term as district attorney ends in December.

Harmel is accused of following Kalaher of out a Wal-Mart in Cedar Park in 2009 and strangling her.

One of Harmel’s lawyers had argued in her appeal that it was double jeopardy — being prosecuted twice for the same offense — for him to be retried. Duty intentionally caused Harmel’s mistrial in 2014, the appeal said, by withholding time stamp information from defense lawyers on a Wal-Mart video during Harmel’s first trial.

Double jeopardy bars a retrial when the prosecutor’s conduct was intentional in provoking a request for a mistrial.

District Judge Rick Kennon declared a mistrial in May 2014 because of the time stamp issue. When defense lawyers then began filing motions saying Duty had withheld evidence in the case, she was cited for violating a gag order by talking to an American-Statesman reporter.

She then did not attend a court hearing about the violation of the gag order, was found guilty of contempt of court and served a few days in jail in August 2015.

Kennon said in September 2015 that Duty had withheld evidence in the case but that Harmel was eligible to be retried.

Harmel’s lawyers appealed Kennon’s decision to the Third Court of Appeals, which ruled against them in April.

Duty faced two lawsuits to remove her from office this summer that were both partly based on claims that she was guilty of misconduct by withholding evidence in the Harmel case. Her lawyers argued that she didn’t withhold evidence and that the gag order was unconstitutional.

The first lawsuit against her could not proceed because Williamson County Attorney Dee Hobbs refused to join it. Hobbs filed the second lawsuit to remove Duty but a district judge dismissed it this month.


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