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.

psullivan@semissourian.com

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