Prosecutor lays out his case for preserving testimony of Clay Waller's father

Although there is no Missouri precedent that deals directly with the preservation of testimony before formal criminal charges, the testimony of Clay Waller's father should be preserved, Cape Girardeau County Prosecuting Attorney Morley Swingle wrote in a brief filed Tuesday.

Swingle lays out the legality of preserving the elder Waller's testimony in a 10-page brief that cites Missouri Supreme Court rules and other legal literature. In the document, Swingle acknowledges there is no direct precedent in Missouri history but cites cases from other states to prove his point.

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 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 the brief, Swingle cites a Missouri Supreme Court rule that says a prosecuting attorney may file a motion in a pending case to take the deposition of a witness to preserve testimony. In his motion to quash Swingle's application, Clay Waller's attorney, Scott Reynolds, misinterpreted the rule, Swingle wrote.

"The Respondent has argued the language of the rule permits the State to take preservation depositions only in pending criminal cases, and interprets 'pending' to require the formal filing of a criminal charge," Swingle wrote in the brief.

In his motion to quash, Reynolds wrote that, per Missouri Supreme Court Rule 25, "a deposition cannot be taken until after the filing of a criminal information or indictment." The rule overrides any Missouri rules that are inconsistent with the provision, he wrote.

Swingle further cites a Missouri Rule of Civil Procedure that says a deposition to preserve testimony may be taken before any action is filed. Reynolds writes in his motion that this is a valid rule but only in civil cases.

Both attorneys cite In re Grand Jury Proceedings, in which the Rhode Island Federal District Court allowed the state to preserve the testimony of prospective witnesses who were terminally ill before an indictment.

James Clay Waller Sr. is bedridden in a nursing home with diabetes, emphysema and chronic obstructive pulmonary disease. He finds ease in breathing only while lying on his side, Swingle wrote.

Reynolds wrote in his motion that the ruling is subject to scrutiny because In re Grand Jury Proceedings concedes that various other federal courts have concluded that a new federal criminal rule does not apply to pre-indictment situations. The new rule does not have "pending cases" in its language, but a Missouri Supreme Court rule that is similar to the federal rule does.

Swingle argues in his brief that Reynolds cited a dissenting opinion from the case and that the cases Reynolds cites that disagree with the In re Grand Jury Proceedings ruling are "neither persuasive, nor on point."

The state would prefer the live testimony of James Waller Sr. at any trial if he is available, Swingle wrote, but because the potential case could span years, the state would like to preserve his testimony.

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.

Waller faces state theft and harassment charges unrelated to Jacque Waller's disappearance. 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 denied any involvement in the disappearance of Jacque Waller, his wife and mother of his triplets.

Cape Girardeau County Circuit Judge William Syler, who was recently appointed to replace Judge Benjamin Lewis in the hearing, will decide Nov. 18 whether the elder Waller's testimony will be preserved.

If Syler rules in favor of the state, it does not necessarily mean the testimony will be admissible in any subsequent trials, Swingle wrote.

psullivan@semissourian.com

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