Mistrial in double murder case in which Waddy man died

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By Forrest Berkshire

BARDSTOWN – Improper discussion by jurors was the reason given in Nelson Circuit Court on Wednesday, when a mistrial was declared in a double murder case involving the death of a Shelby County man.

Circuit Court Judge Jack Seay ruled that jurors had violated the prohibition against discussing a case before all of the evidence was presented against John T. Hilbert, who was on trial for killing Danny Elmore of Waddy and Joe Stump Jr. of Nelson County in 1999.

Seay questioned several members of the jury Wednesday before declaring the mistrial. Under questioning by the judge, jurors admitted a discussion had taken place about the facts in the case and the credibility of witnesses who had testified. According to the video transcript, several jurors also told the judge there had been comments by at least one juror critical of the prosecution for objecting to a witness answering a line of questioning.

“Pretty much everything in general was discussed,” one juror told the judge. “Evidence in general — mulling it over.”

Jurors questioned by the judge told him they had not formed an opinion at that point and did not feel swayed by the discussion. The defense objected to the mistrial ruling.

After questioning jurors, Seay said he was concerned that jurors were forming opinions about the credibility of witnesses before arguments had ended.

“It puts us in a very difficult position,” Seay told the lawyers in the case. “I don’t think an admonition will cure it at this point.”

Seay scheduled a new trial for Aug 12.

Assistant Nelson County Commonwealth’s Attorney Chip McKay, who was assisting in the case, said this was the first time he had seen a mistrial because of inappropriate jury conduct in his 12 years of working as a prosecutor.

Wednesday marked the third day in the trial. Hilbert had just wrapped up testifying in his own defense shortly before lunch. Before the prosecution had a chance to cross-examine him, reports of the jury’s discussions reached Seay.

McKay said they had expected for the closing arguments to wrap up that afternoon and for the jury to start its deliberations.

McKay said the judge made the right decision in ruling a mistrial, because a jury is supposed to wait until it hears all the evidence presented before deliberation begins.

“If a jury deliberates prematurely, that can affect how they make their ultimate decision,” McKay said.

McKay said a mistrial complicates an already complex case. He pointed out that because the killings occurred 11 years ago, just tracking down some of the officers involved in the original trial proved difficult, as some had retired and moved away from the area. They must all now be recalled

This was the second time Hilbert has stood trial for the killings. He was convicted in 2001 for the killings of both men and sentenced to life without parole for 25 years.

The Kentucky Supreme Court ruled in 2005 that the jury in Hilbert’s original trial was not instructed properly and the case must be re-tried.

At the beginning of every trial, jurors are given a set of instructions that lay out what they must find to be true in order to convict or acquit the defendant. In Hilbert’s case, the Supreme Court said the Nelson County Circuit Court failed to give the jury instructions saying that Hilbert could have acted in self-defense.

However, the retrial was delayed because Hilbert’s lawyers argued prosecutors should not be able to seek the death penalty, because the jury in his original trial did not impose that sentence. The defense argued that would amount to double jeopardy, which is impermissible by the Fifth Amendment to U.S. Constitution.

Hilbert’s defense was successful in getting the death penalty removed as a possible sentence in his retrial.

According to court records, Hilbert was accused of shooting and killing Elmore and Stump on Dec. 17, 1999, in a mobile home on Old Bloomfield Road.

Hilbert, Elmore, Stump and two women, Karen Miller and her sister, Tammy Patterson of Shelby County, had gone to the residence after meeting up at a bar in Fern Creek. Hilbert allegedly shot the two men after being asked to leave the mobile home.

During this week’s trial, the sisters’ testimony was one part of the trial the jurors improperly discussed.

New evidence was also introduced by the prosecution this week, when they submitted a statement from a jailer who said he overheard Hilbert say he had killed before, “and would do it again.”