Cold case murder indictment tossed in Cape. Judge cites police tactics

Superior Court Judge Raymond Batten also said the Cape May County Prosecutor's Office detective misled the grand jury when he told them Carty had been "highly deceptive" during a polygraph examination.

Those mischaracterizations on key pieces of evidence in the case tainted the murder indictment, the judge ruled.

"It's akin to evidential nitroglycerin," Batten said of Detective Ed Musick's misleading testimony regarding Carty's performance on the polygraph.

Batten said that without the polygraph exam and the statement that followed, there was nothing new in the 27-year-old murder case.

"This indictment is fairly and properly dismissed," the judge said.

Carty, 51, however, remains charged with aggravated manslaughter. After Wednesday's ruling, he was returned to the Cape May County Jail, where he has been held since his December 2007 arrest in lieu of $350,000 bail.

Senior Assistant Prosecutor Jim Herlihy said his office will decide if it will present the case to new grand jury between now and Oct. 22, the date Batten set for Carty's bail review.

Carty was arrested Dec. 18, 2007, at the Ohio home he shared with his wife, Cheryl. The arrest came nine months after Carty met with two Cape May County detectives in a West Virginia State Police building and submitted to a polygraph examination and lengthy interrogation with West Virginia State Police Detective James Merrill.

Carty, a 2005 graduate of the West Virginia School of Osteopathic Medicine, was living in West Virginia at the time.

Defense attorney David Stefankiewicz said the grand jury presentation, made in June 2008, "distorted the actual evidence" in the case, including the results of that polygraph examination and of DNA tests conducted on evidence collected at the crime scene.

Attenborough's beaten body was found July 27, 1982, lying on a dirt road about 5 feet from his car in the area that is now the Tranquility subdivision in Lower Township.

DNA was collected from a beer bottle at the scene and a State Police lab determined "Carty was excluded as a donor of any of the DNA found," Stefankiewicz said.

During the grand jury presentation, however, Detective Edward Musick said the DNA tests were "inconclusive."

"There was nothing remotely inconclusive about that," Stefankiewicz said. No DNA was found on two additional beer bottles.

Stefankiewicz said calling the DNA evidence inconclusive misled the jury, and he noted that the American public, as evidenced by the popularity of television crimes shows, has come to view DNA evidence as critical.

Next, Stefankiewicz cited the prosecutor's decision to discuss the polygraph examination with the grand jury.

"The polygraph results were exaggerated," Stefankiewicz said. Musick told the grand jury that Carty's answer to one question was "highly deceptive," Stefankiewicz said.

That question asked, "Were you physically present when John died?"

But the polygraph examiner's actual finding deemed Carty's response was a "reaction indicative of deception."

Stefankiewicz added that finding was inconsistent with Carty's responses to three other so-called "hot questions" that asked if Carty planned Attenborough's death, if he knew who caused Attenborough's death or if he was physically responsible for Attenborough's death.

Merrill, the polygraph examiner, did not find Carty was deceptive when he answered those questions, but the grand jury was never given that information.

Stefankiewicz also took issue with the prosecutor's attempt to offer a motive. The grand jury was told there was bad blood between Carty and Attenborough, suggesting premeditation, Stefankiewicz said.

Herlihy argued that the DNA was mentioned last in the grand jury presentation because it was least important; he agreed that the DNA test results should not have been described as inconclusive.

Herlihy also acknowledged that the polygraph examination would not be admissible at trial, but he said what followed was a statement by Carty in which he made statements against his own interest describing the crime scene.

Herlihy called the polygraph a step in the proceeding, an investigative tool that led Carty to make incriminating statements, and he said the state's mischaracterizations were minor errors.

Batten said he had read and re-read the transcript of Carty's statement and found nothing that he would characterize as a confession.

Batten said he also found Musick's use of the phrase "highly deceptive" more than misleading.

Batten also noted Merrill's interview technique, which asked Carty to "visualize," speak of hypothetical situations, and discuss what was within the "realm of possibilities" was questionable.

In one section of the interview, Batten said Merrill used such terms 30 times and that Carty denied any involvement 18 times to those questions.

But it was the description of the DNA evidence as inconclusive and the polygraph results as highly deceptive that Batten said were particularly unfair.

Batten dismissed the indictment, but opted not to go ahead with a bail review requested by Stefankiewicz.

Stefankiewicz said Carty's medical career was derailed by his 2007 arrest and added that he and his wife were coping with the costs of both his defense and his student loans.

Carty's wife sat on one side of the courtroom Wednesday as Attenborough's son sat on the other.

Herlihy asked for time for his office to decide if it will pursue the case with another grand jury. He said it could be presented no later than Oct. 20.

Batten agreed to delay the bail review until Oct. 22.

E-mail Trudi Gilfillian:

TGilfillian@pressofac.com