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McCowan trial opens: Defense says no evidence, prosecution begs to differ

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By KEVIN NEVERS

The state’s case against Dustin McCowan not only lacks any physical evidence linking him to Amanda Bach’s murder but is based on the “shoddy” police work of investigators who assumed almost from the get-go that McCowan was their man. So defense attorney John Vouga told the jury on Tuesday in his opening statement, the first time the defense has publicly confronted the state’s case as it originally appeared in the charging document of Sept. 19, 2011, and was later elaborated, somewhat, at McCowan’s bond hearing two months later, on Nov. 16, 2011.

Vouga urged jurors, during the trial, to “listen for the sounds of real concrete evidence,” then assured them that “you will not hear any.”

Porter County Chief Prosecuting Attorney Matt Frost, on the contrary, told jurors that the physical evidence will link McCowan to Bach’s murder; that eye- and ear-witness testimony will do the same; that cell phone locates will put McCowan at or near Bach’s abandoned Pontiac shortly after he told police that she left his home in the early morning hours of Sept. 16; and that McCowan’s own demeanor and actions in the hours after Bach went missing tend to cast suspicion on him.

The State’s Opening Statement

Frost began the first formal session of the trial with the state’s opening statement, consisting essentially of a timeline constructed by the Porter County Sheriff’s Police and supplemented by photographs: of ariel views of the site where Bach’s body was found, in a tree line south of the Canadian National’s right of way and approximately 300 yards from McCowan’s home on C.R. 625W in Union Township; of two brief views of Bach’s body at autopsy; of the “stab” cut which an FBI analyst said caused the flat on the driver’s side front tire of Bach’s Pontiac; and of the bullet recovered from her body.

Frost promised the jurors they would hear the following testimony:

• That of Linda Phillips, who resides one house to the north of the McCowan residence and who told investigators that, on the night in question, she heard a male voice saying “Amanda, get up, come on, get up, Amanda, get up,” and a female voice saying “I can’t believe this is happening.”

• That of a neighbor two houses to the south, who reported hearing “what she thinks were gun shots.”

• That of a man who, while driving to work northbound on C.R. 650W—the likely route to Dean’s General Store on Ind. 130, where Bach’s Pontiac was found abandoned a short time later—saw a Justin Timberlake lookalike and subsequently identified that subject as McCowan.

• That of the forensic pathologist who performed the autopsy on Bach and will testify that she died of a bullet fired at her throat from close range and that “abraded excoriations” on her back were caused by the dragging of her body after death to the disposal site “like a backwards wheelbarrow.”

The state will also introduce the following pieces of evidence, Frost told jurors:

• Two flip-flops, identified as Bach’s, found in two separate locations between McCowan’s home and the site where her body was later found.

• An orange “long-sleeved shirt,” found along the Canadian National right-of-way, from which Bach’s DNA was later recovered. “The evidence will show that Dustin McCowan was a fan of orange tee-shirts,” Frost said.

• A medium-caliber hollow-point bullet recovered from Bach’s body, which Frost said shares the same characteristics as ammunition which McCowan’s father, Elliott McCowan, had previously purchased along with a .38 Special revolver. Elliott McCowan reported that handgun missing from where he customarily kept it, beneath the sofa in the living room, after investigators conducted a search of the McCowan home.

Finally, Frost told jurors that McCowan himself made odd statements or acted oddly in the hours after Bach was found to have gone missing:

• When first informed by a PCSP that Bach’s abandoned car had just been found, McCowan told the officer that he hadn’t been able to contact her by cell. But phone records show that McCowan only made two attempts to call her and that both—within a minute of each other—were made after speaking with the officer, Frost said.

• When McCowan and Allison Bolde, a mutual friend of both his and Bach’s, went to visit another friend’s home around 5:45 a.m. Sept. 16, the friend’s mother remembered McCowan’s saying “She could be dead,” just before he went to the lavatory to vomit, Frost said.

• Later in the morning, McCowan told Bolde—before he left on his previously planned trip to Bloomington—“This is going to ruin my time at IU and I’m going to party in her honor.”

The Defense’s Opening Statement

Vouga began his statement by telling jurors that the state will be telling them a “story.”

“Do not,” he said, “let the prosecutors complicate it with smokescreens. It’s their story but it’s only a story. They want you to believe it. They need you to believe it. Your job as jurors is to hold them to that story.”

Vouga’s chief theme: that PCSP investigators never looked further afield for a suspect than McCowan, that only three hours after Bach’s body was found he was taken into custody by Bloomington law enforcement and only 48 hours later formally charged, and that their investigation “involved gross negligence.”

“Most of the investigation took place in the days and weeks and even months after he was charged and that investigation was obligatory and shoddy because Dustin was their man,” Vouga said.

At McCowan’s bond hearing in November 2011, Vouga noted, prosecutors indicated that more than 90 pieces of evidence had been collected and sent to the FBI for analysis. But on none of that evidence—but for his own cell phone—were found traces of McCowan’s DNA or his fingerprints or otherwise hairs or fibers linking him to the murder, he said.

Vouga added that investigators did not, even for “exclusionary purposes,” pursue the collection of DNA samples from any other persons—“suspects,” was his word, including four registered sex offenders who he said live in the area.

Of the orange shirt mentioned by Frost, Vouga said this: that the shirt was actually a hoody, that it did have Bach’s blood on it but no DNA belonging to McCowan, that it had dog hair on it but not hair from McCowan’s dog, and that a lot of people in Wheeler wear orange inasmuch as orange is the Wheeler High School’s school color.

Of the cell phone evidence, Vouga said this: that it’s “entirely unreliable” and that the state’s own witness will indicate that it puts McCowan at different places “at the exact same time” and puts him, within minutes, at widely separated places between which he could not have traveled in that time frame.

Testimony will also show the following, Vouga said:

• That, according to a forensic entomologist, insect activity on Bach’s body when found indicates that she “couldn’t have been in that location as long as the state said she was,” casting doubt on the presumed time of death and narrowing the window in which McCowan could possibly have committed the crime.

• That the PCSP had two reports of a vehicle—one describing it as dark colored, another as silver—parked next to Bach’s abandoned Pontiac prior to its being discovered by the owner of Dean’s General Store at 3:23 a.m. Sept. 16. No vehicle was parked next to the Pontiac when it was found, Vouga said.

• That, when discovered on Sept. 17, Bach was not wearing the same clothing which her father said she had left home in, around 10 p.m. Sept. 15. Instead, she was wearing five shirts. “Who dresses in five shirts?” Vouga asked. “Who changed her? Where and when?”

• That investigators have never actually identified the crime scene. “It sounds like the murder happened right outside” the McCowan home, Vouga said. “And that property was searched.” But at the bond hearing in November 2011, PCSP Det. Com. Jeff Biggs testified, under cross-examination, that investigators still did not know where Bach had been murdered, Vouga recalled.

• And that the testimony of the man who reportedly saw McCowan walking along C.R. 650W is dubious, inasmuch as he estimated the subject’s height at 5’ 6’’ while McCowan actually stands 6’ 3’’and did not identify that subject as McCowan until after he had seen McCowan’s photo in the newspapers.

“Do not make the parents’ tragedy of losing a child even worse by convicting an innocent man,” Vouga concluded.

 

 

Posted 2/6/2013