On remand, Judge Wheeler held the hearing resulting in a detailed order suppressing a substantial part of the state's case (blogged about here). The state appealed that suppression order. The KSC affirmed the district judge's findings:
With respect to the excluded lay witnesses, the district court carefully explained why the State had failed to meet its Kastigar burden for each. On appeal, the State places a favorable spin on the facts to urge us to find that it did not make a derivative use of the immunized statements with respect to those lay witnesses. We must decline the invitation to function as a factfinder. The district court's negative finding that the State failed to carry its burden of proof is entitled to the full measure of the deferential review standard applicable to that question. Moreover, at the Kastigar hearing, the district court made the following finding:This case sort of presents a class on how not to utilize inquisition proceedings. So the case is remanded three and a half years after the original convictions were reversed. Three and a half years is a long time to be sitting in jail without a conviction. Updates when available.
"It is very painfully apparent when you review the evidence in these two cases that there literally was no case available against these two defendants until such time as Ms. Paico signed and provided information following the reaching of her cooperation agreement with the State of Kansas. Reaching this agreement by Ms. Paico was also, obviously, motivated in part by the knowledge that was communicated by Mr. Goodman to her that the defendant Carapezza had implicated Ms. Paico. Ms. Paico's agreement was undoubtedly a result of knowledge of that implication."
That characterization is supported by substantial competent evidence in the record. The investigation can be visualized as an upside-down pyramid, resting on the initial questionable statements of Paico. On top of that was layered the inquisition testimony of Carapezza and Hughes. Those statements led to numerous interviews with other witnesses and the development of other leads. Capping the pyramid is Paico's changed, plea-bargained story and the jailhouse witnesses. The State demonstrated no effort to support the pyramid with any independent foundation that did not rest squarely upon the defendants' immunized statements. To the contrary, the evidence adduced at the Kastigar hearing demonstrates that the State used the immunized testimony from the inquisitions as the launching pad for its case against Carapezza and Hughes.
At first blush, one might view the heavy burden placed on the State at a Kastigar hearing to be an onerous obstacle to prosecuting alleged murderers. But, as the district court pointed out, the prosecutor possesses the sole discretion and authority to choose who to immunize, who to let plea-bargain, and who to prosecute to the fullest. Here, the State used Carapezza and Hughes to gather evidence against Paico and then used Paico to implicate Carapezza and Hughes. Ironically, the State maneuvered itself into a position of agreeing not to pursue a murder prosecution against Paico, who was the only person against whom it had physical evidence, while pursuing a murder prosecution against the first persons to whom it had granted immunity. Having made the decision to grant immunity to Carapezza and Hughes, the State is constitutionally and statutorily required to honor that commitment.
In Carapezza I and Hughes I, this court charged the district court with the daunting task of conducting a Kastigar hearing to assess which, if any, evidence the State could prove was not derived from the defendants' immunized testimony. The court's Herculean effort resulted in a well-reasoned opinion that correctly assessed the evidence in accord with the principles we set forth in our remand opinions. In short, the district court should be affirmed.
Here is an Emporia Gazette article reporting that the charges against Mr. Hughes and Ms. Carapezza were dismissed without prejudice on May 3, 2012 and they were finally released (after spending nearly seven years in custody after the initial conviction).