Defense attorney says case against Wagner is flawed

August 28, 2002|by KIMBERLY YAKOWSKI

Jurors in the Russell Wayne Wagner murder trial are expected to begin deliberating today after hearing a rebuttal statement from the prosecution.

Assistant Washington County State's Attorney Joseph Michael and defense attorney Stephen Harris gave closing arguments Tuesday. Michael will have a chance to address the jury one final time today.

Wagner is charged with two counts of first-degree murder in the deaths of Daniel Davis, 84, and Wilda Davis, 80. The couple were fatally stabbed in their 109 W. Wilson Blvd. home. The prosecution says the couple died Feb. 14, 1994. Their bodies were found the next day. They had been bound with shoelaces and pillowcases placed over their heads.


Defense attorneys for Wagner concluded their case Tuesday with DNA expert Jeffrey Boore testifying that the FBI's mitochondrial DNA testing methods used in the state's case were flawed and unreliable.

Boore, a professor at the University of California-Berkeley, said that the mitochondrial DNA science used on evidence in the Daniel and Wilda Davis case is evolving and the test results are interpreted differently by different scientists.

Last week DNA expert John Stewart of the FBI testified that the mitochondrial testing was done on a hair on a glove that had Daniel Davis' blood on it. Stewart said that Wagner was among 10 people in the FBI databank of 5071 DNA profiles who might have been the source of the hair found on the glove.

Wagner, an employee and tenant of Ted Monger, the son-in-law of the Davises, previously was charged with two counts of first-degree murder, two counts of felony murder and one count of burglary in the deaths. A Garrett County, Md., jury that heard that case in 1996 failed to reach a verdict.

Wagner, 50, was reindicted on the same charges in 2001.

Boore criticized the FBI's DNA lab policy of allowing testing to continue in the presence of 10 percent contamination.

If contamination did exist, it would cause him to question the result, said Boore.

"I'm not aware of a lab that tolerates contamination. The ones I know would consider it a grave problem," said Boore.

On rebuttal, Michael recalled Stewart, who testified that FBI lab equipment is sensitive enough to read the results accurately even with 10 percent contamination.

During the start of closing arguments Michael showed the jury photos of the Davises and their home.

"It is inescapable that this crime was a senseless, evil, premeditated murder," Michael said.

Michael said the jury doesn't have to rely on DNA evidence alone to find Wagner guilty of the charges.

Wagner had money troubles, knew the couple kept rental income in their home and purchased gloves that matched those found near the crime scene, Michael said.

Wagner was one of at least two people that entered the Davis home on Feb. 14, 1994, intent on killing the couple and stealing the money they kept there, Michael told the jury.

One person could not have held a knife on the victims and covered their heads with pillowcases while tying them up, Michael said.

Laron Locke, an assistant state medical examiner, testified last week that the couple did not have defensive wounds or bruises from struggling to free themselves from their bindings.

Wagner told several people that he was at the home ransacking the upstairs while the murders were being committed, Michael argued. If his confession is true, Wagner would be guilty of first-degree murder if he helped the killer in any way, he said.

Michael said the Davis home was ransacked and no rent money was found, which was proof of a burglary.

A felony murder conviction requires that the state prove that murder was committed during the commission of a felony.

During closing arguments for the defense, attorney Stephen Harris suggested to the jury that it was not his client, but Ted Monger, who was responsible for Daniel and Wilda Davis' deaths.

Monger has never been charged in connection with the case.

Medical examiner Locke testified that the Davises died 24 to 36 hours before he performed the autopsies on Feb. 17. That provides a range for the time of death from 10 p.m. Feb. 14 to 10 a.m. Feb. 15, Harris said.

Harris told the jurors that testimony could lead them to believe the couple was killed, not on the evening of Feb. 14, but in the early hours of Feb. 15. If that were the case, he said, Wagner couldn't have participated because he was at work at the time. Harris contended that it could have been Monger who went to his in-laws' home early on Feb. 15 and stabbed the couple to death for the $50,000 his wife, Vivian Monger, would inherit.

Harris theorized that Monger could have left the Davis house after the stabbings, then returned later that morning, tied the couple with shoestrings as they lay dying and ransacked the house. He said that theory would account for the lack of bruising.

Hagerstown City Police Lt. Richard Johnson testified last week that the burglary initially appeared to have been staged, Harris pointed out.

Monger could have been the person seen leaving the home by a neighbor whose headlights illuminated the doorway of the Davis home as he backed out of his driveway at around 6 a.m. on Feb. 15, Harris said.

Monger could have planted the knife and glove so that they would be found along a route to the Chestnut Street home where Wagner lived. He chose Wagner to be his "fall guy" because "he's dumb and gullible," Harris said.

Harris said the state hadn't proved that Wagner was at the crime scene or purchased gloves prior to the murders. He cautioned the jury not to lump Wagner in with Ted Monger and other witnesses with lengthy criminal records.

"If you make that mistake you're not serving justice," he said.

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