Defense Attorney Grills Witness

OSWEGO, NY – Alan Jones’ murder trial got off to a stormy start today (Sept. 9) barely 15 minutes into the attorneys’ opening statements.

Jones, 28, of Palermo, is charged with second-degree murder in the death of his 11-year-old stepsister, Erin Maxwell, last August.

According to the indictment, Jones showed “depraved indifference” in causing Erin’s death.

About 15 minutes into his opening statement, Oswego County District Attorney Donald Dodd made reference to Jones’ lack of emotion and unresponsiveness when dealing with rescue personnel who responded to his 911 call on Aug. 29, 2008.

That prompted defense attorney Sal Lanza to call for a mistrial.

Oswego County Court Judge Walter Hafner asked the jury to step out while he and the attorneys discussed the situation.

“He’s shifting the burden to my client. He’s making it look like just because he wasn’t excited, he must be guilty,” Lanza said.

Jones’ lack of emotion, according to Dodd, was evidence of conduct of depraved indifference.

Hafner disagreed, citing a ruling by the court of appeals that a defendant’s attitude cannot be used as evidence of depraved indifference, “it’s inappropriate.”

“First, you have to lay the foundation,” Hafner added. “What has he done?”

“We’ll get there,” the DA said.

“That’s the problem. We haven’t got there,” Hafner replied. “You haven’t established he did anything, except maybe find the victim.”

The judge denied the motion for a mistrial.

His client absorbs and processes conflict differently than other people, Lanza pointed out.

When the jury returned, Hafner instructed them to disregard the DA’s comments regarding Jones’ lack of emotion. He explained that some people react differently to stressful situations.

The DA intends to prove that Jones caused Erin’s death by strangling her and that she didn’t die due to an accidental hanging.

Lanza says Jones’ statements to police about Erin’s death were consistent and accurate. He intends to call an engineer to the witness stand who will testify how the accident could have happened.

Deb Denery of the Palermo Volunteer Fire Department, who along with her husband, Andrew (assistant chief of the Palermo VFD) were the first rescue personnel on the scene last August.

She was on the witness stand for two and a half hours and described how she administered aid to Erin.

The witness also described the layout of the house and where Jones was and what he did after they arrived.

During an intense cross-examination by Lanza, the defense attorney pointed out that Denery made a statement to state police in August 2008 that she didn’t notice any marks on Erin’s neck.

In court Wednesday, she told the prosecution that she saw a mark on Erin’s neck.

She later said she “was shaken and a nervous wreck” after working on Erin and that’s why she didn’t mention the mark in the statement to state police.

Lanza also noted that she had testified in Palermo Town Court (at Erin’s father, Lindsey, and stepmother, Lynn Maxwell’s trial) that she had multiple flea bites from being in the Maxwell home.

However, he said, according to a doctor, the marks are from psoriasis and not fleas.

The defense attorney questioned whether she understood what it meant to make a statement or testify under oath. She replied that she did.

Then which truth was correct, the statement she made in August 2008 or her testimony today, Lanza wanted to know.

“How much fame do you want to get out of this case?” Lanza asked her.

That drew an immediate objection from the DA and an audible gasp from a woman in the audience.

The court took a short break after Denery left the stand.

During the break, prior to the jury returning to the courtroom, Lanza expressed his displeasure with the spectator’s outburst.

He said he doesn’t mind people disagreeing with him.

“But don’t gasp in court,” he said. “That isn’t proper; this isn’t town court.”

As Hafner was instructing the audience on proper courtroom etiquette, the woman returned.

She apologized to Lanza saying, “It wasn’t something that I meant to do. It just popped out.”

While he accepted her apology, Lanza added, “It’s going to stop,” referring to outbursts from the audience.

When the jurors returned to their seats, Judge Hafner instructed them to disregard any comments by spectators.

Andrew Denery took the stand for about 35 minutes.

He reiterated what his wife had said about what they did.

Mike Allen, the county’s E-911 director, was the first of Wednesday’s three witnesses. During his testimony, the jury heard Jones’ 911 call from Aug. 29, 2008, and how he was instructed to perform CPR on Erin.

The prosecution will resume calling witnesses Thursday morning.