04192013 - News Article - McCowan seeking to toss out conviction/sentence

McCowan seeking to toss out conviction/sentence
NWI Times
April 19, 2013 - 8:00 pm
nwitimes.com/news/local/porter/wheeler/mccowan-seeking-to-toss-out-conviction-sentence/article_4c559ef4-c6b0-5152-9ed4-980dae989a79

VALPARAISO - A public defender brought in to handle the appeal for convicted murderer Dustin McCowan is seeking to toss out the conviction and/or 60-year sentence because Porter Superior Court Judge Bill Alexa did not step aside after learning about a telephone call with McCowan from the jail that includes derogatory and threatening remarks about the judge.

The original defense attorneys, who did not learn about the recorded call until Alexa made reference to it during the March 28 sentencing, would have asked the judge to recuse himself had they been made aware of it ahead of time, said attorney Mitch Peters.

Alexa mentioning the call during sentencing indicates "a personal prejudice and animosity against the defendant inspired by said conversation," Peters wrote as part of his motion to correct errors filed Thursday.

Alexa said at sentencing that the call by McCowan at the jail included a comment that prosecutors would have to experience the murder of their own children to understand what the McCowans were going through.

No hearing had been set on the motion as of Friday.

Peters argues that state trial rules say that "the court, if it determines that prejudicial or harmful error has been committed, shall take such action as will cure the error." The potential remedies include a new trial or modifying the original judgment.

Peters said this motion to correct errors is a prerequisite for appeal when addressing newly discovered evidence that could not have been discovered at the time of trial. He reserves the right to take up other issues on direct appeal, but first must review the record considering he did not represent McCowan at the time of trial.

Those original defense attorneys — John Vouga and Nicholas Barnes — submitted a sworn affidavit supporting the claims that they were not made aware of the recording before the sentencing hearing and would have asked Alexa to recuse himself had they been provided a copy ahead of time.

A jury found McCowan guilty in February of shooting his former girlfriend, 19-year-old Amanda Bach, of Portage, in the throat during the early morning hours of Sept. 16, 2011, after she showed up at the Union Township home he was living in at the time with his father.

Bach's partially clothed body was found the next day less than 300 yards from the house in a wooded area along County Road 625 West at the Canadian National Railroad tracks.

McCowan, 20, who has maintained his innocence, has been transferred to the Pendleton Correctional Facility to begin serving his time. He is listed on the DOC's online offender search site with a release date of Sept. 17, 2041.