Father's death makes evidence inadmissible in Clay Waller case

The most damning piece of evidence in the case against the man accused of murdering Jacque Waller may be the one prosecutors can't use: his late father's claim that Clay Waller confessed to breaking his wife's neck and burying her body in a hole he dug ahead of time.

Clay Waller, 42, was charged in April 2012 with first-degree murder and two counts of tampering with evidence in connection with the June 1, 2011, disappearance of his estranged wife, Jacque, whose body was found last week.

Morley Swingle, who at the time was Cape Girardeau County's prosecuting attorney, had sought a deposition preserving the testimony of Clay Waller's father, James Clay Waller Sr., who, according to court documents, told an FBI agent and a Cape Girardeau police officer his son had confessed to the murder.

"James Clay Waller, Sr. advised that his son, James Clay Waller came to him a few days after Jacque went missing and confessed to him that he killed Jacque," FBI Special Agent Brian W. Ritter wrote in a Sept. 12, 2011, affidavit. "Waller told his father that the hole was already dug and he buried her with a shovel. While telling his father how he killed Jacque, he made a motion with his arms consistent with breaking her neck."

At the time, Clay Waller had not been charged with his wife's murder, but in his motion to preserve the testimony, Swingle stated he anticipated filing charges and was concerned the elder Waller, who was bedridden and in poor health at the time, could be unavailable to testify by the time the case went to trial.

Cape Girardeau Circuit Judge William Syler denied Swingle's motion because Clay Waller had not been charged with a crime at that point, and Missouri Supreme Court Rule 25 states that depositions "cannot be taken until after the filing of a criminal information or indictment."

James Clay Waller Sr. died Dec. 20, 2011, a little more than four months before his son was charged with murdering Jacque Waller.

Without a body or a confession, prosecutors largely were relying on circumstantial evidence to build their case against Clay Waller, who pleaded guilty in 2011 to federal charges of threatening Jacque Waller's sister, Cheryl Brenneke.

Among the evidence in the case are a journal in which Jacque Waller stated that her husband had threatened to kill her and their children; testimony by witnesses who said she had called them just before her disappearance and told them she was going to Clay Waller's house; blood, which DNA testing revealed to be hers, found on the walls of Clay Waller's home and in carpet hidden in a crawl space under the residence; and inconsistencies in Clay Waller's story concerning his whereabouts in the hours after his wife's disappearance and the nature of their last interaction.

Absent the victim's remains, prosecutors faced an uphill battle, a Southern Illinois University School of Law professor said.

"They didn't need a body to get a conviction," William Schroeder told the Southeast Missourian last week, "but from the prosecution's standpoint, obviously a body is a big help. … It changes the case in a very significant way."

To obtain a murder conviction, prosecutors first must prove that a murder actually occurred.

"Jurors don't like the absence of a body. There's always the remote possibility going through people's mind that she ran off somewhere and wanted to start a new life," Schroeder said.

While such instances are rare, they do occur: In April, Brenda Heist, a Pennsylvania woman who disappeared in 2002, turned herself in to authorities in the Florida Keys, and last month, three kidnapping victims were found in a Cleveland home where they had been held captive for a decade.

Shawn Hornbeck, abducted in 2002 at age 11, was found in a suburban St. Louis apartment in 2007.

The discovery of Jacque Waller's body last week put an end to hopes that she would be found alive, but Schroeder said it also improved prosecutors' chances of obtaining a plea bargain or convincing a jury of her husband's guilt.

Any additional information investigators glean from Jacque Waller's body could bolster the case, Schroeder said.

"If the body tells them anything about cause of death and the like, it's that much more of a help," he said.

epriddy@semissourian.com

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