GEORGETOWN, Texas (KXAN) — Hidden and difficult-to-access timestamps on a key piece of evidence led to a mistrial in a capital murder case last May. Now, it has led to allegations of prosecutorial misconduct against Williamson County District Attorney Jana Duty.
Surveillance video from a Cedar Park Walmart in 2009 appears to show suspect Crispin Harmel and murder victim Jessika Kalaher, but the defense team said the inability to access timestamps until midway through the trial was detrimental to their case. Now, they think Duty may have planned it all along.
“We know Jana Duty knew about the timestamps and how to access the timestamps, based on our investigation,” said Harmel’s attorney, Ryan Deck.
He has filed a motion requesting a hearing to determine if Duty deliberately withheld the time-stamped evidence. If the judge in the case rules misconduct took place, it could prevent the state from retrying Harmel for Kalaher’s killing.
The motion contains a sworn affidavit from former Williamson County DA investigator Royger Harris, stating he saw Duty viewing time-stamped surveillance video prior to the trial. Deck said the statement proves Duty knew how to access the timestamps.
“(Harris) was very adamant that she did see the timestamps, without question.”
First Assistant DA Mark Brunner said withholding the timestamps from the defense would make no sense for the state’s case.
“This was not Mr. Harris’ case. And I don’t know what he thought he saw or what he says he saw, but we did not have the timestamps,” said Brunner. “There was no reason for us to have hidden information from the defense that was actually beneficial to us.”
The copy of the video from 2009 had timestamps embedded into the disc but could only be accessed with certain laptops or software, according to Brunner. During a weekend break during the trial, Brunner said he spent time trying to access the timestamps and finally did. But when the time-stamped video was entered as evidence without the defense having access, Deck said it ended any possibility of a fair trial.
“Our defense was based on a timeline defense, a timeline of events, and I am not convinced those timestamps do benefit the state,” said Deck.
The timestamps are important to the evidence because Cedar Park police investigators frequently referenced the stamps in their written reports. Harris left the DA office in December 2013. His sworn affidavit is dated March 11, 2015. The office could not comment on the circumstances involving his departure.
Meanwhile, Duty could not be reached for comment Wednesday.