Judge appointed to preside over motion in Clay Waller investigation

A new judge will preside over the hearing that will determine whether testimony from Clay Waller's father can be preserved as evidence.

Cape Girardeau Circuit Court Judge William Syler will replace Judge Benjamin Lewis in the Nov. 18 hearing after Waller's attorney, Scott Reynolds, filed a motion for a change of judge Thursday. Lewis sustained the motion the same day, according to court documents.

The motion was the second Reynolds filed for a change of judge. The first was submitted Oct. 17 and overruled by Lewis. Lewis doesn't comment on ongoing cases.

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 Clay Waller.

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

In his first motion, Reynolds identifies his client's right to a change of judge, as well as ongoing media coverage that has "made it virtually impossible for anyone to ignore the allegations made in the pending criminal investigation." Because of media coverage and the emotion tied to the case, Reynolds suggested the Missouri Supreme Court appoint a special judge who does not reside in Cape Girardeau County or St. Genevieve County.

"The underlying criminal investigation in this matter has resulted in overwhelming and continuing publicity ad nauseam from local newspaper, television, radio, Internet and various other mediums on a daily basis since June 1, 2011," Reynolds wrote.

The motion also cited precedent in which the Missouri Supreme Court appointed Missouri Court of Appeals Western District Judge Gary Witt to conduct the sentencing in a criminal case against former Cape Girardeau attorney Joe Buerkle. Reynolds suggested appointing a judge who is not a member of the Missouri Court of Appeals Eastern District.

Despite a page and a half of explanation, Lewis overruled the motion.

Three days later, Reynolds submitted a one-sentence motion.

"James Clay Waller II, through counsel, and pursuant to the Missouri Supreme Court Rules, requests a Change of Judge (sic) in this case," Reynolds wrote in the motion.

Lewis granted the change the same day, and Syler was appointed to the case.

Reynolds declined to comment on the change of judge.

Clay Waller, who is in federal custody at the Pemiscot County Jail after pleading guilty to Internet threatening charges Oct. 3, received a summons Oct. 6 notifying him of the Nov. 18 hearing regarding the preservation of his father's testimony, according to Missouri Case.net.

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 by a former friend, Gary Hill, the week before his Sept. 2 arrest. Hill 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 will be sentenced Dec. 19.

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

psullivan@semissourian.com

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