Judge’s Rulings Go Against Dally Defense

Less than a week before the start of the penalty phase of Michael Dally’s trial, prosecutors won a series of court battles Wednesday in their push to secure a death sentence against the convicted killer.

Superior Court Judge Charles W. Campbell Jr. ruled that prosecutors could put family and friends of the defendant’s slain wife, Sherri Dally, on the witness stand. The judge tentatively agreed to let prosecutors show a 10-minute videotape and several pictures of the 35-year-old victim.

And in yet another blow to the defense, the judge denied a request to dismiss the jury on grounds it had been tainted by media coverage and loud cheers outside the courtroom last week when the guilty verdict was announced.

The rulings broaden the scope of testimony that will be allowed during the penalty phase of the high-profile trial, which resumes Monday. But at least one issue remains unresolved.

Defense attorneys are weighing whether to put the defendant’s 10-year-old son, Devon, on the stand to testify about his love for his father. Prosecutors would likely ask the boy about how much it hurts to lose his mother as well.

But recognizing the emotional impact it could have on the child, defense attorney James M. Farley told the judge Wednesday that his client is opposed to the idea--even if it would help spare his own life.

“Michael Dally, their father, does not want his children to testify,” Farley said, referring to Devon and his 8-year-old brother, Max.

Acknowledging that it may sound callous, Farley said he was inclined to call the eldest boy despite the emotional risks because his client’s life was hanging in the balance.

But as an alternative, Farley also said he may ask child psychologist John Goulet to testify about his sessions with both boys and statements they have made to him about the case.

Debate Over Impact Testimony

The proposal raises a clear issue about hearsay, or second-hand, testimony and may be challenged by the prosecution, although Deputy Dist. Atty. Lela Henke-Dobroth said she might not oppose Goulet’s testimony if it means the boys are spared from testifying.

“We don’t want the children subjected to something that may be detrimental,” she told Campbell. The issue is expected to be argued during a hearing today.

Wednesday’s hearing was crucial in setting the stage for next week’s penalty phase, in which the jury will recommend whether the 37-year-old defendant should be executed for plotting to kill his wife or sentenced to life in prison without parole.

The most-heated debate centered on the admissibility of so-called victim-impact testimony, and the amount of victim-related evidence the jury would be allowed to see or hear.

It is a thorny issue. Defense attorneys argue that too much evidence focused on the personal characteristics of the victim can inflame the jury’s passions in favor of a death sentence.

But prosecutors are quick to point to a 1991 U.S. Supreme Court ruling that allowed victim-impact testimony to show each victim’s “uniqueness as an individual human being.”

In the Dally case, prosecutors asked to show the jury a wedding portrait, family photographs and a picture of the ceramic urn in which Sherri Dally’s ashes were placed after her death.

To accompany the testimony of family and friends, they also sought to play a videotape compiled from snippets of home movies from the day-care provider’s life.

Michael Dally’s attorneys fiercely objected to all the victim-impact evidence proposed by the prosecution, arguing that it was prejudicial and duplicative of earlier testimony from his murder trial.

Such testimony was strictly limited by another judge during the trial of Dally’s ex-lover and co-defendant, Diana Haun. No videotape was allowed and only one friend and the victim’s mother were allowed to testify.

And victim-impact testimony in other death penalty cases in Ventura County has been severely curbed by other judges.

In the trial of Mark Scott Thornton four years ago, for instance, retired Superior Court Judge Charles R. McGrath refused to let relatives of Westlake murder victim Kellie O’Sullivan take the stand.

But Campbell ruled that such evidence was relevant and admissible in Dally’s case because of the couple’s relationship and the circumstances of the crime--a spouse fatally stabbed in a murder scheme planned by her husband.

“This situation is different,” the judge said. “This was not a case where the victim was unknown--a crime of opportunity.”

Rather, the intimacy between Dally and his wife assured that he would have known the traumatic effect her death would have on family and friends.

“The impact on them is clearly foreseeable,” Campbell said, ruling that Sherri Dally’s parents, brother and two closest friends could testify about the anguish they have suffered as a result of her murder.

Sherri Dally was kidnapped May 6, 1996, from a Target parking lot and stabbed repeatedly before her body was dumped in a steep ravine outside Ventura. The coroner testified that she may also have been beheaded.

Judge Denies Defense Requests

Last week, a jury made up of Santa Barbara County residents decided that Michael Dally planned the killing with Haun, and convicted him of murder and special circumstances that allow the death penalty to be considered as punishment in the case.

In other rulings Wednesday, Campbell denied a request by the defense to select a new jury for the penalty phase.

Dally’s attorneys unsuccessfully argued that the jury had been tainted by cheers from a crowd of spectators gathered outside the courtroom when the guilty verdict was read April 6.

To bolster the defense position, Farley played a tape recording of the proceedings in which the outburst is clearly heard inside the courtroom.

In addition, Farley told the judge that bad character evidence presented during the first phase of the trial has biased the jury against his client. And he said publicity of the verdict may have tainted the jurors.

“I don’t believe the jury can be impartial at this time,” Farley said. But the judge disagreed.

“I don’t know that that brief burst of noise affected them at all,” he said of the hallway cheers. Even if the jury heard the ruckus, he said, it was not focused on a possible punishment. “I didn’t hear chanting for death or anything.”

In another blow to the defense case, Campbell ruled that Dally’s attorneys could not tell jurors that Haun was spared execution during the penalty phase of her trial.

The 35-year-old former grocery clerk, who began an affair with Dally when they worked together at an Oxnard Vons store, was convicted of murder and related charges last fall. She was sentenced to life in prison without parole for kidnapping and for bludgeoning and stabbing Sherri Dally to death.

Prosecutors indicated last week that they planned to put her on the stand during Dally’s penalty phase. But on Wednesday, they told Campbell that they decided not to call her as a witness.

In other rulings, Campbell said the defendant’s ex-girlfriend, Sallie Lowe, could tell jurors that Michael Dally twice tried to choke her during their three-year affair.

They jury will also learn that Lowe named Dally as the beneficiary to her bank account. She told an investigator that one time when he choked her, Dally said: “Just give me the money and I don’t have to do this.”

The statement could be explosive since Dally was convicted of murdering his wife, in part, for financial gain--one of special circumstances alleged in the case.

For that reason, Campbell hesitated before allowing the prosecution to elicit the statement from Lowe. But Deputy Dist. Atty. Michael Frawley argued that the statement should not be stricken just because is emotionally charged.

“We can’t back away from this evidence just because it is extremely powerful,” he said.

Campbell’s rulings Wednesday were not entirely in favor of the prosecution, however. He refused to let prosecutors admit as evidence an essay Sherri Dally wrote in the fifth grade, which they said spelled out her hopes and dreams.

And the judge would not allow two butterfly knives police seized from Michael Dally several years ago to be shown to the jury. Prosecutors wanted the evidence to be admitted because Sherri Dally had been stabbed to death.