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Clay Waller's father dies at nursing home before prosecutors could record testimony

Wednesday, December 21, 2011

Paula Martin of Jackson hikes through a wooded area northeast of Cape Girardeau Sunday, June 26, 2011 in search of her friend Jacque Waller. James Clay Waller Sr., Jacque Waller's father-in-law, died Tuesday, taking an alleged confession by his son to her murder with him before prosecutors could have it recorded for evidence.
(Laura Simon)
Officials involved in the Jacque Waller disappearance investigation no longer will have access to testimony that claims Clay Waller confessed to killing his wife.

James Clay Waller Sr., the only person Clay Waller allegedly recounted murdering Jacque Waller to, died Tuesday morning in a Cape Girardeau nursing home, Cape Girardeau County Coroner John Clifton confirmed Tuesday afternoon. Clifton said he was unsure of Waller's age and his cause of death.

James Waller's death comes a month after Cape Girardeau Judge William Syler denied the preservation of his testimony that alleges Clay Waller confessed to murdering his estranged wife, Jacque Waller, who has been missing since June 1.

Cape Girardeau Prosecuting Attorney Morley Swingle submitted a motion Sept. 22 to preserve testimony from the elder Waller that alleged Clay Waller confessed to him shortly after Jacque Waller's disappearance. In a federal affidavit, an FBI agent writes that James Clay Waller Sr. told him Clay Waller confessed to breaking Jacque's neck and burying her body.

In the application, Swingle wrote that the state anticipates filing a murder charge against Clay Waller.

The alleged confession was laid out in an affidavit of FBI agent Brian Ritter, who talked to James Waller in the course of investigating Clay Waller for making an Internet threat. Clay Waller later pleaded guilty to that charge.

James Waller Sr. had been bedridden in a nursing home with diabetes, emphysema and chronic obstructive pulmonary disease. He found ease in breathing only while lying on his side, Swingle wrote in a court document. Swingle wanted to preserve Waller's testimony in case he died before a murder trial would start. Swingle could not be reached, but has declined to comment on the investigation.

"If we do not preserve his testimony, we may lose it," Cape Girardeau County assistant prosecuting attorney Angel Woodruff said during the hearing to determine whether the testimony would be preserved. Woodruff had the task of arguing unsuccessfully on the state's behalf during the hearing.

Syler denied the preservation because no charges had been filed against Clay Waller. Preserving the testimony would have meant setting new precedent, and Syler said he was not inclined to do that.

Had the deposition been permitted, Clay Waller and his attorney, Scott Reynolds, would have been given 30 calendar days to look over all relevant documents and evidence the state has against Waller. Reynolds would also have been able to cross-examine James Clay Waller Sr. with Clay Waller present at the deposition. The deposition was denied Nov. 18, 32 days before the elder Waller's death.

Stan and Ruby Rawson, Jacque Waller's parents, have declined to comment on the investigation, but Stan Rawson posted on the Find Jacque Waller Facebook page -- a page with almost 15,000 followers -- that finding his daughter's body is more crucial now than ever.

"We cannot let this interfere with going forward with the case against him," Rawson wrote Tuesday afternoon. "The best evidence is still that we locate Jacque's body, and there are people that will not rest until that happens."

The Rawson family said later in a statement that they are saddened by the elder Waller's passing, but they remain faithful that there will be "successful prosecution of the person or persons responsible for Jacque's disappearance."

The confession was not the only evidence investigators had implicating Clay Waller. Blood evidence was taken from two walls and from carpet that had been cut from the floor and hidden in a basement crawl space at the house Clay Waller where had been staying. DNA testing confirmed the blood was Jacque Waller's.

According to Clay Waller's testimony in an affidavit submitted in federal court, Jacque fell down and lay there. He also said she was "thrashing around." But Clay said he and Jacque cleaned up the blood together. Waller admitted to police he cut up and removed the carpet with the blood and hid it in the crawl space so the landlords wouldn't think anything wrong had happened. Throughout the affidavit, Clay Waller maintains his innocence.

"She started bleeding like a ... a lot," Waller said, according to the document.

Although the blood evidence remains, a conviction will be harder to get without a confession, said Tad DiBiase, an assistant federal prosecutor in Washington, D.C., who prosecuted that city's second no-body murder case in 2006 and provides advice to lawyers about bodiless murder trials.

"This makes it a lot harder," DiBiase said of losing the testimony.

A confession to a friend or relative, a confession to police and blood evidence are all crucial in getting a conviction, DiBiase said, noting that the loss of any of that evidence is a major blow to bodiless murder trial.

"A confession to a father is the pantheon of confessions," he said. "Many people are not going to believe a father would frame his son. That's pretty powerful."

DiBiase said that if Clay Waller confessed to one person, the likelihood he confessed to another is very good. The lost testimony will also force investigators to redouble efforts in every aspect of investigation, he said.

"This could spur [investigators] to think more creatively and can sometimes lead to another break in the case," DiBiase said. "Losing the testimony definitely hurts though."

Clay Waller will be sentenced for federal Internet threatening charges Jan. 3. Federal prosecutor Larry Ferrell, who preserved the elder Waller's testimony in a federal affidavit, said James Waller Sr.'s death will not affect the sentencing and that he will use the preserved testimony during the hearing.

Clay Waller pleaded guilty Oct. 3 to threatening Cheryl Brennecke, his wife's sister and the guardian of his three children. He faces up to five years in prison, although a presentence investigation report suggests he serve up to 10 months in a federal penitentiary. Ferrell plans to use evidence and testimony Jan. 3 to argue for a longer sentence.



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.......and just WHY could the prosecutors

NOT preserve the fathers's testimony?????????????


-- Posted by Skopos on Tue, Dec 20, 2011, at 1:11 PM

We all know what happened to Jacque. Unfortunately, justice will more than likely never be served the more time that passes. What a shame thet let this testimony slip thru their fingers.

-- Posted by MINT4U on Tue, Dec 20, 2011, at 1:47 PM

reread a couple paragraphs above you "Syler denied the preservation because no charges had been filed against Clay Waller. Preserving the testimony would have meant setting new precedent, and Syler said he was not inclined to do that." ......I don't understand it and why they couldn't either but then again there isn't much about laws that I do

-- Posted by irish6524 on Tue, Dec 20, 2011, at 2:22 PM

By what manner of proof did they originally have that the "alleged" confession took place? Couldn't they still use that in some way since it seems to be almost public knowledge that Clay Waller shared information regarding his wife's death with his father?

-- Posted by scifichik on Tue, Dec 20, 2011, at 2:44 PM

The fact is they "alleged" a confession took place. You can "allege" just about anything, but that doesn't make it true.

-- Posted by InReply on Tue, Dec 20, 2011, at 3:20 PM

I am sure law enforcement officers were spending time with him, and listening to what he remembered, in his final days. If not, they should have been.

-- Posted by rodgerdodger on Tue, Dec 20, 2011, at 4:47 PM

It's hearsy on its face, but they could have gotten it in as a statement against interest exception, after death. However, the problem was that they couldn't depose him, because clay hasn't been charged.

-- Posted by Tom"killer"Kowalski on Tue, Dec 20, 2011, at 5:42 PM

Mr. Clay Waller needs to read, The Tell Tale Heart by Edgar Allen Poe.

-- Posted by rodgerdodger on Tue, Dec 20, 2011, at 6:14 PM

MINT4U, Do you think it was the same guy that killed that lady in Tennessee?

Skopos, It sounds like they lack enough evidence to charge Mr. Waller of a crime. Remember it's not against the law for the police and prosecutor's to lie to you.

-- Posted by grandma73 on Tue, Dec 20, 2011, at 8:06 PM

It's a shame that with Mr. Waller's passing, the focus is not on him but on his son, what he may or may not have said, etc. I don't know if there are any other surviving family members, but I'm sorry for their loss. What a mess all the way around!

-- Posted by pmiinch on Tue, Dec 20, 2011, at 8:54 PM

This is why we need the common sense clause with requard to the law. When the law does not serve the people, common sense would prevail.

-- Posted by truthdetector on Wed, Dec 21, 2011, at 6:12 AM

Let's see . . . a "common sense clause" grafted onto the rules of evidence. Why don't we just call it "the mob wants blood" clause? The laws has served the people for hundreds of years by rejecting what you suggest truth detector.

-- Posted by Wiley Penner on Wed, Dec 21, 2011, at 6:26 AM

According to Missouri state statutes, charges must be filed before testimony can be admitted in court. Judge Syler was simply upholding that law and was unwilling to set a precedence. It was the correct thing to do.

If they have the evidence, either convene a grand jury or press charges.

I personally know Clay and suspect he will come forth with the truth in the near future. He needs to do what's right; if he doesn't, he'll pay dearly at some point.

-- Posted by semorider on Wed, Dec 21, 2011, at 9:23 AM

semorider, I sincerely hope you are right. I have met Clay on several occasions and just do not know. I am sorry for the loss of Mr. Waller and send out my prayers to all of Clay's children for the loss of their grandfather. That's as far as it goes though. Mr. Waller's own children get nothing from me.

-- Posted by Hot Dog on Wed, Dec 21, 2011, at 9:54 AM

Very few folks would be able to hide the fact they murdered another person unless they just have a criminal state of mind which I don't believe Clay has. The guilt will tear him apart at some point.

I pray he comes forward with the truth.

-- Posted by semorider on Wed, Dec 21, 2011, at 11:53 AM

Too many people are crying for the *truth* to come forward when all they are really wanting is their idea of the truth to be reinforced. Let us all hope that the truth does prevail whether it pleases us or not.

-- Posted by InReply on Wed, Dec 21, 2011, at 3:39 PM

BTW...so because of Clay's actions you have no use for his sister, half sister and half brother whom you probably don't know.... and I might add he wasn't much of a father to them.

-- Posted by Agnes on Wed, Dec 21, 2011, at 3:48 PM

I say vote the judge out next reelection.

-- Posted by dollbabies on Wed, Dec 21, 2011, at 6:57 PM

Wiley Penner, so you don't think preserving his fathers testimony would be "common sense"? Well I do, and I'll bet a lot of other people would agree. I'll bet you're a lawyer by the way you want to keep the judicial system the way it is, so you can manipulate it to your liking.

-- Posted by truthdetector on Thu, Dec 22, 2011, at 11:16 AM

Truth, there is that little troublesome thing called the law. It is not to be manipulated in the way that you are suggesting. I am not an attorney, just a teacher who believes in the Bill of Rights and teaches it to her students.

-- Posted by luvbball15 on Fri, Dec 23, 2011, at 11:04 AM

Judge Syler followed the letter of the law THIS time, but if you have followed this corrupt judge over the decades, you will know it's time for him to go. He is the #1 judge that attorneys switch their cases from & for good reason. No position with this amount of power should be occupied for this number of years by the same person, especially one with his statistics.

-- Posted by freefaller on Mon, Dec 26, 2011, at 10:30 PM

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