5/26/2009
By ERIN MATHEWS, Salina Journal

Judge gives prosecutor a third chance to convict

Saline County Attorney Ellen Mitchell said Tuesday that the Salina Police Department has assigned a full-time investigator to probe the murder of Mark Simpson and, if she's allowed to prosecute Cameron Nelson a third time, new witnesses will testify.

District Judge Daniel Hebert agreed to give Mitchell a third chance but questioned why the actions hadn't been taken previously.

"I realize this isn't 'CSI,' but if that was possible, why wasn't it done before?" he asked.

The exchange came during a hearing Tuesday on defense attorney Julie McKenna's motion to acquit Nelson, 21, of Salina. Hebert denied the motion, but assured McKenna the motion could be raised again during trial.

A hearing was set for 9 a.m. June 1 to review arrangements for Nelson's legal counsel and set a new trial date. Nelson remains in custody on a $500,000 bond.

Nelson is accused of fatally shooting Simpson, 38, while Simpson stood in the street in the 500 block of South 10th shortly before 2:30 a.m. April 16, 2008.

Evidence not there

McKenna argued that two previous juries deliberated diligently and were unable to reach agreement on Nelson's guilt because the state's evidence against Nelson is insufficient.

"There are too many doubts that surface in this case that it could in any way sustain a conviction of Cameron Nelson," she said. "The evidence just isn't there."

Mitchell told Hebert she and her staff had discussed what their next course of action should be following two hung juries in trials that concluded in December and May. She said that in both previous trials, the juries came "very close" to convicting Nelson of Simpson's murder even though the state had difficulty getting witnesses to appear and testify truthfully.

She said she believed because of the seriousness of the charges the case warranted a third attempt.

How many strikes?

Hebert expressed skepticism but ultimately cleared the way for a third trial.

"How many strikes does the state get? Tell me this," Hebert asked Mitchell. "The prosecutor's duty is not to secure a conviction. It's to pursue due process of law."

However, Hebert said he was not able to say a reasonable jury could not conclude that Nelson was guilty beyond a reasonable doubt. Therefore, he deferred to the prosecutor's decision to present the case to a third jury. He indicated that the third trial -- even if it results in a deadlocked jury -- will be the last.

"If it happens again, this will be an easy decision for me," he said.

n Reporter Erin Mathews can be reached at 822-1415 or by e-mail at emathews@salina.com.

Read the rest of this story in Wednesday's Salina Journal.