Attorney asks judge to deny deposition of Clay Waller's father

Clay Waller's attorney is challenging the state's application to preserve the testimony of Waller's father that his son admitted to murdering his estranged wife.

Scott Reynolds, who is representing Clay Waller in his state theft and harassment case, wrote in the motion that he technically does not represent Waller in the investigation and he has yet to discuss the state's application with Waller, who is in federal custody at the Pemiscot County Jail.

"Counsel is not legally nor ethically capable of entering an appearance to argue the merits of the application herein without first discussing the matter with Mr. Waller," Reynolds wrote.

Cape Girardeau County Prosecuting Attorney Morley Swingle submitted an application Sept. 22 to preserve testimony from James Clay Waller Sr. that alleges Clay Waller confessed to breaking Jacque Waller's neck during a fight and burying her body in an undisclosed location. In the application, Swingle wrote that the state anticipates filing a murder charge against Waller.

Jacque Waller has been missing since June 1, and Swingle called Clay Waller the primary suspect in her disappearance in the application.

"It does not appear that she disappeared voluntarily," Swingle said in the application.

Swingle has declined to directly comment on the investigation.

During pretrial motions in Clay Waller's federal Internet threatening case, federal prosecutor Larry Ferrell filed an affidavit referencing Clay Waller's confession to his father. Ferrell also presented blood evidence found at Clay Waller's former Jackson home that is a DNA match for Jacque Waller. The DNA evidence was not mentioned in Swingle's application.

Before Swingle submitted the application, Reynolds advised him that he was unaware of a Missouri law that allowed the state to take a deposition to preserve testimony in a criminal matter that had not yet been filed and that he had not spoken to Waller.

A Friday hearing before Cape Girardeau County Circuit Judge Benjamin Lewis to decide whether the testimony will be admissible in court has been postponed to Nov. 18.

Swingle submitted the application to ensure James Waller's testimony could be used even if he dies before a trial could start. The elder Waller is bedridden and in poor health, according to the application. If the application is accepted, the state would like James Waller to be deposed at his nursing home with Clay Waller and federal marshals present. Federal marshals have indicated they would make Clay Waller available for the deposition, according to the application.

In the dismissal motion, Reynolds wrote that the application does not comply with a Missouri Supreme Court rule that dictates the "expected adverse party" must receive a notice of the application at least 30 days before the hearing date. Neither Reynolds nor Waller have received a notice, Reynolds wrote in the motion.

Reynolds "requests that the application be dismissed or in the alternative, that [Swingle] be required to personally serve the application and notice herein upon Mr. Waller at least 30 days before such hearing," according to the motion.

Clay Waller faces state theft and harassment charges unrelated to Jacque Waller's disappearance. Probable-cause statements say he accepted a check for $55,000 from the Delta Cos. in April 2010 for construction work he never did. The harassment charge stems from a complaint made the week before his Sept. 2 arrest by a former friend, Gary Hill, who told police that Waller threatened to kill him.

Waller's next court date for those charges is Nov. 22 but may be postponed because he is in federal custody.

Clay Waller pleaded guilty in federal court Oct. 3 to threatening Jacque Waller's sister on an online message board and faces up to five years in prison.

He has repeatedly denied any involvement in the June 1 disappearance of Jacque Waller, his wife and mother of his three triplets. Police say Clay Waller was the last person to see her before her car was found abandoned on Interstate 55.

"I have not done anything," Waller said in a July interview. "I miss my wife. I hope for a safe return."

No sign of Jacque Waller's whereabouts has been found, and the search continues for her or any sign of her.

psullivan@semissourian.com

388-3635

Pertinent address:

101 Court St., Jackson, MO