Suspects dismissed in homicide investigation

POLSON — State prosecutors have dismissed criminal charges against two men accused of killing an elderly St. Ignatius man and incinerating his remains, but the alleged murder suspects aren’t off the hook quite yet.

The charges against the two men stem from a July 2005 incident in which four young men allegedly went to Harold Mitchell Jr.’s trailer in St. Ignatius, where he was rumored to keep large amounts of cash. According to court documents, the men beat Mitchell in an attempt to make him reveal where he kept his cash; upon learning that Mitchell did not have the rumored money, the men allegedly stabbed him to death and then burned the trailer and the body.

The state has dismissed, without prejudice, Nathan Ross and Nigel Ernst, two of the defendants in the case. It’s a move that, according to the defense’s legal counsel, could allow the state to cut a deal with either Ross or Ernst, thus obtaining testimony against alleged accomplice, Clifford Old-Horn.

The state’s strategy also gives them the chance to re-arrest and try Ross or Ernst, without breaking double-jeopardy.

“It’s a tactical decision which allows them to get to Clifford Old-Horn,” said Steve Eschenbacher, one of the attorneys representing Ross.

He said the state’s “tactical decision” to dismiss Ross and Ernst was made in anticipation of a potential problem at Ross’s trial, which had been slated to commence May 31. Namely: Ross’s legal counsel would have had the right to cross-examine Old-Horn, who in turn, would have had the right to remain silent as not to implicate himself before his own trial in late June.

According to Eschenbacher, the state usually deals with such a dilemma by providing immunity to one of the accused, in this case Old-Horn, as motivation to testify against his codefendants. However, since confessing to police, Old-Horn has recanted his statement, and despite a promise of immunity, refuses to tell prosecutors what he will say on the stand.

Court documents authored by the prosecution report that in recent weeks “the state has been unable to reach a plea agreement with Old-Horn that would ensure his testimony in the case against the defendant. Recent communication with Old-Horn’s attorney have also suggested that Old-Horn will not testify against the defendant in a manner consistent with his prior statements.”

According to Eshenbacher, the uncertainty surrounding Old-Horn has left the prosecution in a tough spot because they considered his testimony crucial for convicting Ross and Ernst. So rather than risk Old-Horn’s wildcard testimony, the state decided to dismiss Ross and Ernst without prejudice and instead move forward with Old-Horn’s trial.

Dan Minnis, Ernst’s attorney, attempted, unsuccesfully, to fight the dismissal by asserting that Ross’s prior dismissal left his client at risk.

“Ernst is harmed because dismissal of the Ross case without prejudice makes Ernst vulnerable to deals between the defendant Ross and the state and provides a motive for Ross to perjure himself,” Minnis wrote about Ross’s prior release.

The defense attorney also objected to what he considered an unscrupulous strategy by the state.

“[The state] knew the difficulties that would arise when it tried the Ross case. Yet it continued in a holding pattern until the eleventh hour,” Minnis wrote. “Then the state subpoenaed Clifford Old-Horn for deposition. Soon after the court quashed the subpoena. Now the state wants to pull an end around to sidestep its problems and shift it to Ernst…Such a tactic suborns perjury and demonstrates an improper use of the system; that is, using a delay to gain tactical advantage against the other codefendants.”

One question that lingers in this already complex case: why would Old-Horn reject the state’s offer of immunity, a seemingly sweet deal?

Court documents suggest that Old-Horn’s hesitation may have its roots in a prior deal, which he mistakenly believed offered himself and his friends immunity.

According to those documents, in November 2007, then Det. Jay Doyle was contacted by a prison inmate who said he knew two witnesses to the Mitchell homicide. The inmate said the men would be willing to speak to police, provided that they were not prosecuted for the crime.

After speaking with Doyle, the inmate received letters about the matter on Dec. 3 and Dec. 7, 2007.

The first letter, from county attorney Mitch Young, stated that he would not file charges for “any collateral crimes committed by them [the two witnesses] in the course of this incident,” but also said that he could not make the same promise if it turned out the men were involved in the murder. The second letter, from Doyle, stated that, “Mitch did agree to give immunity to your friends.”

Documents state that the inmate showed the letters to fellow inmate, Old-Horn, who agreed to talk to Young and Doyle, ostensibly because of what he thought were assurances of immunity.

So on April 14, 2008, Doyle and Detective Mike Sergeant conducted a video recorded interview with Old-Horn about the Mitchell homicide. According to a transcript of the conversation included in court documents, Doyle and Sergeant again discussed immunity with him:

Sergeant: One of the things you have to understand, even if you and Nate [Nathan Ross] were in the house doesn’t make you a participant.

Old-Horn: Yeah

Sergeant: Participant means being actively involved. Ok? If you were in there and had to use the restroom or you were in there for whatever reason and all of a sudden this just happened in front of you, that doesn’t make you a participant.

Old-Horn: F---, if I seen it happen and I didn’t stop it, then I ain’t got nothing to do with this then, I mean…but what if I knew the guy was gonna get killed before?

Doyle: If you didn’t have any active participation in planning that thing out, you know, that’s cool. We can work with that.

On April 22, 2010, almost two years later, Old-Horn was charged with felony deliberate homicide based on attempted robbery. Specifically, the state alleged that Old-Horn aided or abetted an attempted robbery of Mitchell, and in the course of the attempt, Mitchell was killed by a fourth accomplice.

According to court-documents, six days after the charges were filed, Doyle again met with Old-Horn, who at the time, was apparently unaware that he had not been given immunity and that he was in fact being charged with deliberate homicide. Old-Horn had, however, learned of the charges filed against his friends, and court documents state he voiced his confusion about the matter to Doyle.

“My main concern was, you know, that Nathan and I came forward, you know, because Mitch Young said we wouldn’t be you know that we would have immunity from all this,” Old-Horn told him. “I don’t understand why Nate was arrested.”

According to a transcript of that conversation, Doyle told him “because you knew a little bit about it, that’s why you are here today…I have no reason to doubt Mitch about wanting you to help us to get the real bad boys. I mean that’s what this is all about.”

And if this complex case needed one more soap opera-esque twist: according to Eschenbacher, defendant Ross recently suffered severe injuries from a forklift accident, and is now in the hospital in stable, but critical, condition. Ernst remains incarcerated on other charges.

Young was unable to comment on this on-going case, and Doyle could only say that “we will continue to push forward on this case.”

Clifford Old-Horn’s trial is slated to begin June 20 in District Court.