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Murder retrial sketch causes delay

The Kaua’i County prosecutor’s office still has to pay for some of the costs to defend a man who is to be retried for murder.

Fifth Circuit Court Judge Kathleen N.A. Watanabe denied last week the prosecutor’s office’s motion to reconsider an earlier ruling she had made about the office paying for expenses to defend William Lowell McCrory.

McCrory was found guilty of second-degree murder in 2002 for stabbing to death Brent “Kerby” Kerr. He was sentenced to life in prison with the possibility of parole.

McCrory’s conviction was reversed on appeal to the Hawaii Supreme Court in 2004. The justices agreed that the testimony of a witness for the prosecution was irrelevant and prejudicial.

Watanabe said she was surprised that the prosecutor’s office asked to reconsider her Jan. 19 ruling concerning the costs.

Three days before McCrory’s murder retrial was set to begin on Jan. 9, Watanabe pushed back the trial to March 20 because a Kaua’i Police Department computer sketch had been found.

Defense attorney Daniel Hempey believes the KPD-produced sketch shows a drawing of the murdered man alive, more than two hours after he was supposedly killed in Nawiliwili.

“This is a discovery issue,” said Watanabe, adding that Hempey had been asking for the sketch since September 2004.

Hempey said that the prosecutor’s office made representations that the sketch was lost.

County prosecutor Craig De Costa pointed out that he did not know that a retired police officer had the sketch digitally stored at his house.

Watanabe said that it was incredible, just days before the retrial was to start, the sketch shows up.

“The point is, the defense is entitled to it,” said Watanabe.

At the Jan. 19 hearing, Watanabe ruled that the prosecutor’s office will be paying for airfare to bring a witness from the Mainland to Kaua’i to testify.

Watanabe also ruled that the prosecutor’s office will have to pay for Hempey’s request to hire an investigator for 30 hours to interview witnesses and to serve subpoenas for the new retrial date.

Kerr’s body was found near the Coco Palms Resort on Kuhio Highway in Wailua on Oct. 26, 2001. The body was found near where witnesses said they had seen McCrory’s Bronco parked, along Kuhio Highway, and where McCrory and Pierce testified at the first trial, the vehicle ran out of gas early in the morning of that day.

At the first trial, William “Billy” Pierce testified he saw McCrory stab and kill Kerr in Nawiliwili. Pierce has died since the first trial.

Hempey wrote in court papers that a witness came forth after McCrory was arrested and told police she had seen two men fighting at the place where Kerr’s body was found.

The witness worked with police to come up with a computerized composite sketch of the man she saw fighting under a streetlight in the rain near the Coco Palms.

Attorney Hempey argued in court papers he believes the sketch is a picture of Kerr, the murdered man. He pointed out, if the sketch showed Kerr, it would discredit Pierce’s testimony in the first case because he claimed Kerr was killed earlier in Nawiliwili.

Court records show that Hempey was informed by the county prosecutor’s office the sketch was lost or destroyed when KPD moved into its new headquarters on Ka’ana Street.

However, Hempey wrote in court papers, he received a faxed copy of the sketch three days before the retrial was scheduled to start.

In court records, Hempey argued that discovery of evidence on the eve of trial could be “likened to an evidentiary ambush.”

Hempey was court-appointed to represent McCrory in July 2002, when McCrory’s first murder trial was held.

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