Concealment of evidence in 2012 capital murder case leads to 7th delay

LOUISVILLE, Ky., (WDRB) – For the seventh time, the death penalty trial for a Louisville man charged with killing 15-year-old Gregory Holt in 2012 has been postponed – this time because a judge decided his attorneys have a conflict of interest.

James Mallory’s trial was supposed to begin Friday in the slaying of the teen, who is believed to have been an unintended target when he was shot in his home about six and a half years ago.

But Jefferson Circuit Court Judge Susan Schultz Gibson ruled Tuesday that Mallory’s attorneys for the last three years have a conflict of interest and she must find him new representation.

The case is already one of oldest pending in Louisville and Gibson said she did not know how long it would take to find new attorneys.

Mallory asked that he be tried within six months.

This delay was prompted by what Gibson previously deemed potentially “criminal” actions by the Louisville Public Defender’s office in February.

Gibson postponed the trial at that time after the Jefferson Commonwealth’s Attorney’s office found out an investigator and attorneys for a co-defendant, and key witness against Mallory, had for six years been in possession of bullet casings possibly linked to the shooting -- without disclosing them.

Mallory’s attorneys, Darren Wolff and Mark Hall, called the actions by public defender Angela Elleman and the investigator working with her unethical and “most likely criminal.”

Gibson also repeatedly asked in court whether concealing the shell casings amounted to a criminal offense, specifically tampering with physical evidence.

But the head of the public defender’s office, Dan Goyette, defended the actions in a statement to WDRB News in February:

“After a careful review of the rather complex legal and evidentiary situation that arose in this case, it’s clear that the actions of Mr. Hogan’s attorneys were directed in the best interests of their client and were consistent with their professional obligations."

Since Hall and Wolff were hired by Goyette's’s office as outside counsel for Mallory, Gibson found they had a conflict of interest and it was up to Mallory to decide whether to waive the conflict and continue with the two lawyers.

The judge assigned another attorney, Thomas Clay, to work with Mallory to determine whether he felt Hall and Wolff could sufficiently defend him and vigorously attack issues with the public defender’s office’s handling of the case. Goyette's office not only pays Hall and Wolff but would make the decision whether to hire them as outside counsel for other cases as well.

On Tuesday, however, Mallory told the judge he needed more time to talk with Clay before making a decision.

Gibson expressed frustration, telling Mallory “we are not in a situation where I am going to allow this to go on.”

Instead, Gibson ruled Mallory was not waiving the conflict of interest and she would assign him new attorneys.

“I have no idea how long it’s going to take to find somebody,” she said. A new court date has been set for next month.

After the hearing, Wolff said he and Hall got along well with Mallory, but said he understood the judge's ruling.

“I think the public defender’s decision in June 2012 to go out and collect evidence in a capital murder case and to basically hide that evidence for over 5 ½ years has led to some unfortunate results, including the conflict that developed in this case,” Wolff said.

Elleman and and an investigator working with her dug up the shell casings buried in a tree stump outside a bar in Louisville.

The casings were kept in a safe at the public defender’s office. Recent testing has matched the casings to the shooting.

Hogan allegedly claims he saw Mallory bury the shell casings after Holt was shot to death in his mother’s apartment near Dixie Highway and East Rockford Lane. The defense team dug them up in June 2012, after Hogan had been arrested.

Holt was a student at Farnsley Middle School. Prosecutors have said Holt’s mother, Kendra Wilson, participated in a robbery and attempted execution of Mallory hours earlier, and that Mallory shot the teen while trying to retaliate against Wilson.

Hogan was pulled over in April 2012 in possession of the gun, but he has accused Mallory of firing the shots that killed the teen. He told police the men drove to the apartment, Mallory kicked in the door, planning to attack Wilson, and fired shots into the darkened home, killing the teen.