Welton dismissal motion set for Anchorage hearing

An Anchorage Superior Court judge will be asked to rule next week on a motion asking that an arson and murder indictment against a Wasilla woman be dropped.

Public defenders representing Suzette Welton, 38, filed a motion to dismiss her grand jury indictment on the grounds that the state failed to give exculpatory evidence to the grand jury, and used inadmissible or mistaken evidence and false testimony. Prosecutors, in their response to that motion, have disputed or denied those allegations.

Judge Milton Souter will rule on the matter in Anchorage proceedings at 9 a.m. on Nov. 19 and 20.

Welton is accused of starting a fire Sept. 15, 2000, that consumed the upper part of the Mulchatna Drive duplex apartment where she had lived with her sons, Jeremiah, then 16, Samuel, 14, and their 6-year-old sister. Samuel died in the fire. After a two-month investigation, Suzette Welton was charged with first-degree murder, two counts of second-degree murder and arson.

In a 38-page document, Palmer Public Defender Greg Heath and Assistant Public Defender George Davenport, Welton's co-counsel, argued that the state failed to prove an arson had even taken place or, if an arson had occurred, that there was sufficient evidence tying their client to such an offense.

Evidence presented to the grand jury in November 2000 came principally from Carol Olson, deputy fire marshal, saying that "she had eliminated any accidental, mechanical or electrical cause of the fire. She believed the fire began in upper bedroom number two because the damage was most extensive there. She also described burn patterns on the floor extending from bedroom two across the hall to bedroom three, consistent with someone having poured accelerant along that path."

At the time of the fire, Jeremiah was reportedly sleeping in bedroom number two; bedroom number three belonged to the 6-year-old, who was sleeping downstairs with her mother; and Samuel was sleeping in bedroom number one.

Yet, no evidence was seized demonstrating any traces of accelerant, the public defenders' motion stated, and the lab had done no tests for the presence of accelerant -- therefore, the motion claimed, there was no evidence of any intentional act that resulted in the fire taking place.

Assistant District Attorney David Berry, in his response, said the fire marshal specifically testified that, "you would not be able to obtain these kind of fire patterns unless some kind of ignitable fuel had been used." There was strong evidence that an accelerant was used, based primarily on the burn patterns on the floor, Berry wrote.

The grand jury heard evidence regarding missing "window cranks, inoperative smoke detectors and life insurance in which [Suzette] was the beneficiary, all suggesting these were acts of Suzette Welton which were consistent with arson," the defense motion stated. "However, the information about missing window cranks was mistaken and the window cranks were not missing at the time of the fire. And no direct connection was established between Ms. Welton and the condition of smoke detectors."

Particularly, the type of life insurance Welton took out on her two sons and herself would be inconsistent with arson, the defense lawyers argued.

"She purchased whole life [insurance] for the boys on June 23, 2000 and term life for herself on July 3, 2000. Her three children were the beneficiaries on Suzette Welton's term life insurance. She did not request or purchase a rider to pay more benefits in case of accidental death," the defense argued.

The fact that she did not purchase the accidental death rider for her sons removes the financial motive for causing the fire, defense attorneys wrote. Grand jurors were not presented a copy of the life insurance policy, though they were allowed to hear testimony about it. The wording of the policy itself is exculpatory evidence, the dismissal motion stated, and yet was withheld from the grand jury.

There are two problems with this argument, Berry responded. The defendant was the primary beneficiary of Samuel Welton's life insurance policy. And, within a week of the fire and Samuel's death, the defendant made a claim on Samuel's life insurance policy.

"It apparently was not until Oct. 13, nearly a month after the murder, that the defendant asked whether suicide was covered under the policy," Berry stated. "Thus it seems at the time of death, the defendant believed she would be entitled to make a claim under his policy. This would be considered motive."

Berry addressed the defense argument that testimony about the locations of window cranks and smoke detectors in the home was mistaken. "Olson's testimony about smoke detectors was also correct. Her testimony that she found one that appeared to have been lying on the upstairs floor during the fire and had been kicked through a hole in the floor is supported by the evidence," Berry argued. " . . . the fact that a crank handle was found outside on the ground after the fire suppression efforts changes nothing in the state's analysis of the case. There was no reason for the crank handle to come off the window during the fire or suppression efforts, so the fact that it was later found outside still suggests that it had been removed from the window crank mechanism before the fire."

Defense attorneys, in their motion, wrote that the state also presented grand-jury testimony from Welton's ex-husband, Dennis Welton, who "believed that as an act consistent with arson, Suzette Welton created documents after the fire and backdated them to cast suspicion on her son Sam as the one who set the fire."

Dennis Welton testified he knew Samuel did not write the documents because the bad spelling and punctuation were unlike Sam's writing and were like Suzette's writing. He testified that his former wife could have backdated the document in question by setting the computer's calendar to mark the document as created June 4, 1999 when, in fact, it appeared to him to be created Oct. 8, 2000 -- weeks after Samuel died in the blaze.

The document to which he referred was created on a computer the family had donated to an Anchorage day-care center prior to the fire. Suzette Welton, after the fire and before her arrest, had recovered that computer and hired Charles Grimm, a Kenai-based computer consultant she knew, to retrieve files from it.

Since Dennis Welton is not a computer expert, he is not qualified to testify on such matters, the defense argued. Furthermore, defense attorneys contended, their own computer expert found it unlikely the document could have been backdated.

Berry counterargued that it may be true Dennis Welton is not a "hired" expert on computer forensics. Yet, Berry said, there is no legal requirement that a witness possess a particular license or academic degree, and the standard expected at grand jury is "whether the fact-finder can receive appreciable help from that person."

In any case, even if Dennis Welton's testimony were subtracted from the case presented to grand jury, "it becomes apparent that this evidence realistically played no substantial part in the jury's consideration . . . or its decision to indict" when considering the body of evidence as a whole, Berry wrote.

Welton's attorneys also objected to evidence of a prior alleged assault on Suzette Welton that the state presented to the grand jury, arguing that such information was prejudicial and inadmissible because it was not "similar conduct" to the arson case.

Suzette Welton had apparently reported to police on Aug. 19, 2000 that she was sexually assaulted and tied up by her former husband, Dennis Welton, in her home that day.

The state, in an earlier court filing, notified Suzette Welton that it intended to present evidence at trial about her claim that Dennis Welton raped her and tied her up.

In his response to the public defenders' motion, Berry stated that the Alaska State Troopers confronted Suzette Welton about their belief that she fabricated the rape allegation -- possibly because of an ongoing child custody battle in which the two were involved.

Suzette Welton has denied that accusation and has never specifically been charged with making a false report.

Berry explained why testimony about the August 2000 incident was presented.

"First, the state believes that the evidence provides a potential motive for the defendant starting the fire that resulted in the death of her son. The police had just accused her of making a false claim of rape against her ex-husband. In order to attempt to shift blame away from herself, and to support her claim that it was not a false report, Suzette Welton started the fire at her house. In other words, this was done in an attempt to cover-up her earlier crime of falsely accusing Dennis Welton of burglary and sexual assault," Berry said.

Defense attorneys claimed the state knowingly accepting false testimony from Jeremiah Welton concerning drug use. According to transcripts of chat room conversations removed from the family computer after the fire, Jeremiah admitted to experimenting with drugs.

Yet in his testimony to the grand jury, according to transcripts, he denied using drugs.

"The prosecutor had access to this computer, and therefore these records, months prior to grand jury. However, he allowed Jeremiah to deceive jurors . . . Jeremiah's credibility is crucial to this case," the defense argued.

Likewise, information about Samuel is crucial to the defense, as he is a suspect in the arson, the defense argued. Yet, the grand jury wasn't presented evidence about his state of mind.

The state, in its response, stated that prosecutors did not have access to the information gleaned from the computer in question until five months after the November grand jury hearing, and that prosecutors did present some writings attributed to Samuel Welton as possible exculpatory evidence.

At grand jury, according to the prosecutors' response, the state presented testimony to show Samuel would not have started the fire, that he wasn't depressed, and was a better writer than the writings suggested.

Grand jury is not a trial, Berry argued in his response to the defense filing. The role of the grand jury is to decide whether the state has enough evidence to suggest a crime may have been committed.

"Grand jury is not, nor is it intended to be, a trial on the merits to determine the defendant's guilt," Berry stated in the conclusion of his filing. "Its purpose is to return an indictment 'when all the evidence taken together, if unexplained or uncontradicted, would warrant a conviction of the defendant.'"