Erie Times-News

DA Foulk tries to block hearing
Last changed: March 28. 2003 6:05PM


The legal debate over the use of a psychic in the Janine Kirk homicide investigation has entered a new dimension.

District Attorney Brad Foulk filed court papers Friday trying to keep defendant James Fleming's lawyer, Tim Lucas, from questioning Erie County President Judge William R. Cunningham about his decision to consult a psychic while he investigated the case as district attorney in the 1990s.

Foulk does not even seem willing to grant that a psychic was consulted, let alone concede it might be of any interest to the defense of Fleming, the man accused of killing Kirk. His motion referred to the "purported use of a psychic" and said the matter is legally "irrelevant."

Lucas, meanwhile, said Friday he believes the District Attorney's Office under Cunningham consulted at least three and possibly more psychics in the Kirk case.

Lucas said information he has received, in part through the discovery process in the case, indicates that then-District Attorney Cunningham consulted with a tarot card reader about the case while on vacation in the early 1990s in Florida. Lucas said he believes there is evidence that consultation had an effect on the state police investigation of the case, because the state police reports come to what he called a "dead stop" in 1989 or early 1990.

In the years after, Lucas said, notes and records from the District Attorney's Office show that detectives from the office consulted with a man and woman who performed some kind of "psychic analysis of the evidence," and that another woman, whom he described as a "channeler," also was used in the investigation.

Lucas said the multiple consultations with psychics all indicate that a lack of evidence in the case in the early 1990s left prosecutors reaching into the beyond for clues.

If no new evidence has been uncovered since then, he said, the charges against his client should be dropped.

Kirk's body was found June 25, 1988, on a Presque Isle State Park beach. An investigative grand jury heard details of the case between 1990 and 1992. Fleming was not charged until August 2000, after Foulk said he gleaned new evidence with the help of an FBI profiler.

"These (psychic consultations) were not done under the auspices of the state police or anyone in law enforcement other than the District Attorney's Office at the time," Lucas said. "It wasn't really the type of psychics in general that a police agency would use.

"I believe I am entitled to show the quality of and where the investigation stood in the late 1980s and early 1990s when apparently there was no active state police investigation," he said. "My intent is to use all of the evidence to show where the investigation stopped.

"I think I am entitled to make a record. The judge is free to conclude whether or not Jamie Fleming was prejudiced (by the delay)," he said.

The matter will be for Crawford County President Judge Gordon Miller to decide.

A hearing is scheduled before him on Tuesday in Meadville on Lucas' request to have the charges dismissed. But Foulk said that hearing should not even happen.

In the motion he filed Friday, he said that under the law Lucas must first show his client was harmed by the delay before a hearing can even be held. Lucas has not named any witnesses who have died or are otherwise unavailable to him, Foulk said.

"This is not a case where 12 years after the fact the defendant is suddenly ambushed with an accusation of homicide and must scramble to prepare a defense," Foulk wrote.

"The defendant knew he was an immediate suspect and he retained Attorney Lucas within hours of the discovery of Janine Kirk's body. At all times, the defendant and Attorney Lucas have been able to preserve any evidence needed for any possible defense."

If Miller grants the hearing, Foulk said, Lucas should not be permitted to question Cunningham about his decision to consult a psychic when investigating the case.

"This line of questioning is completely irrelevant," Foulk wrote.

"The defendant knows police departments throughout the United States of America, especially in large urban areas, will consult with a psychic to further an investigation. As the defendant further knows, this method of investigation has never been held or deemed to be bad faith or reckless conduct. ... Defendant is clearly attempting to divert the court's attention from any inquiry into actual prejudice because the defendant cannot demonstrate actual prejudice," he said.

Foulk's motion to stop the hearing represents the third time Cunningham's possible testimony has provoked legal wrangling in the case.

Lucas' motion in January caused Erie County Judge Stephanie Domitrovich to remove herself from the case just two weeks before the trial was scheduled to start. Domitrovich said she did not think it would be proper for her to sit in judgment of Cunningham's testimony.

The state Supreme Court then asked Miller to preside over the pretrial issue.

Cunningham's lawyer, Patrick Carey, then filed a motion asking Miller to throw out a subpoena summoning Cunningham to testify. Miller refused that motion and the hearing was scheduled for Tuesday.

Cunningham has remained mostly silent as the struggle over his court appearance has unfolded. On Friday he said he has no objection to testifying if his testimony is deemed legally relevant by Miller.

"My position is there's no legal reason they need my testimony. It is not that I don't want to testify or that I am too good to testify," he said.

LISA THOMPSON can be reached at 870-1802 or by e-mail.

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