The Nancy Kissel Case - Part 54

American housewife Nancy Kissel sobbed quietly Tuesday as her lawyer wrapped up his closing argument in her Hong Kong murder trial, saying the woman killed her husband in self-defense and that investigators missed blood stains that showed there was a struggle.

The high-profile trial went to the jury, which must sift through nearly three months of testimony about drugs, violence and sex that gave the Hong Kong public a rare glimpse into the private life of a wealthy expatriate couple.

Nancy Kissel, 41, has admitted killing her husband, Robert, in 2003. But she has pleaded innocent to the prosecution's accusation that she is a cold-blooded killer who drugged her husband with a sedative-laced milkshake, then smashed in his skull with five blows with a metal ornament in the bedroom of their luxury apartment.

Robert Kissel's body was found days after he was killed in a stinking, rolled-up carpet in a storeroom rented by the defendant at the complex where the couple lived.

The prosecution said she wanted to run away with her lover -- a repairman living in a U.S. trailer park -- and was worried about losing custody of her three children in an imminent divorce.

But defense attorney Alexander King noted Tuesday that witnesses testified that Nancy Kissel was a kind, loving and devoted mother.

"Was she someone who was shown to be violent?" King asked the jury.

King argued that Robert Kissel, 40, a top investment banker at Merrill Lynch, was an abusive husband who used cocaine and frequently forcefully sodomized his wife.

Nancy Kissel cried quietly as King read out e-mails she wrote before the killing that described how unhappy her marriage was. During a break, she began sobbing loudly and her mother and attorney tried to calm her down.

The defense has said that Robert Kissel was threatening to kill his wife with a baseball bat on the night of the killing, but the prosecution has argued that the husband was unarmed and rendered unconscious by the milkshake.

King told the jury that the prosecution did not prove beyond reasonable doubt that a baseball bat wasn't used in the couple's violent argument.

King also said that investigators missed large amounts of blood stains all over the bedroom that were evidence of a struggle. He accused the investigators of being careless or ignoring evidence that undercut the prosecution's case.

"This evidence is put before you as expert evidence, and the reality is that there is nothing expert about it at all," King said.

The defense attorney also challenged the prosecution's claim that Nancy Kissel's lover, Michael Del Priore, was a gold-digger who hoped to profit off of Robert Kissel's life insurance payout. The lawyer said Del Priore was a confidant who helped the woman endure a miserable marriage.

"Michael Del Priore, far from being a villain, was a shoulder to cry on," King said.

High Court judge Michael Victor Lunn began summarizing the case and directed the jury to consider whether the defendant killed her husband in self-defense.

Lunn reminded the jury: "Have regard to the fact that Robert Kissel was well-built ... and the defendant is a relatively slightly built female."

The judge was to continue his summary Wednesday.

The victim was from New York. Nancy Kissel lived in Michigan and Minnesota.

(Reuters)  Defense wraps up in Hong Kong milkshake murder trial.  August 30, 2005.

An American woman who admitted clubbing her wealthy banker husband to death in Hong Kong had been doing all she could to save their marriage at the time, her lawyer said on Tuesday as the defense wrapped up its case.

The prosecution has said Nancy Kissel intentionally bludgeoned her husband Robert to death after searching the Internet for details on drugs, got them from doctors and gave her husband a strawberry milkshake spiked with sedatives.

The trial has riveted Hong Kong and its expatriate community since it began in June with tales of rough sex, marital violence and infidelity.  Nancy, 41, has admitted killing the top Merrill Lynch banker on November 2, 2003, but has pleaded not guilty to the premeditated offence of murder which carries a maximum penalty of life in prison.

"She was trying everything she could to make the marriage better," her lawyer, Alexander King, told the court, adding that investigators had blundered in gathering evidence and failing to seize key items, including Robert Kissel's work computer.

"They (investigators) had framed a conclusion ... that there was really nothing to investigate," he said, adding that the jury should be concerned that it did not have all the evidence.  Other evidence, he said, contradicted the prosecution's case that Robert was unconscious and immobile when he was killed, bolstering the defense argument that there had been a fight the night he was killed.

As he recounted graphic details, Nancy Kissel sobbed in the dock at the back of the courtroom.

When King rested, the judge summarized the arguments and delivered instructions to the jury, explaining that it had the option to find that Nancy Kissel had committed manslaughter "by reason of provocation," instead of murder, killing him during a "temporary and sudden loss of self control."

The maximum penalty on that charge is also life in jail. There is no minimum.

The judge is expected to continue recapping evidence on Wednesday.

The prosecution said Robert, 40, had decided to divorce his wife and was going to tell her that on the night he was killed.

She said she had struck her husband five times on the right side of his face with a metal statue after he hit her repeatedly, but added that she had no recollection of what happened afterwards.

Prosecutors have painted Robert as a loving father and husband who lost hope of saving his marriage after he found out that his wife was still communicating with her TV repairman lover a few weeks before he died.

During the trial, Nancy admitted to the affair, which happened in the United States between March and July 2003, when she fled there with their three children to escape the SARS epidemic in Hong Kong.

The defense described Robert as having a history of being physically and mentally abusive.

(The Standard)  'No cold-blooded killer' By Albert Wong.  August 31, 2005.

Nancy Kissel simply doesn't have what it takes to commit the cold blooded murder she is accused of, her defense counsel told the High Court in summing up his case Tuesday.

"Is Nancy Kissel the sort of person who would commit the type of crime the prosecution alleges?" Senior Counsel Alexander King asked.

"Does she have it in her to shop for drugs, serve them in a milkshake to her husband and then bludgeon him to death while he lies defenseless, with five lacerations to the head, each one of them fatal? The answer is 'no."'

Kissel, 41, is accused of drugging her investment banker husband Robert and murdering him with a heavy metal ornament on November 2, 2003.

She denies the charge and has testified that there was a furious fight that night, during which she feared for her life, and used the ornament to fend off blows from her husband as he swung at her with a baseball bat.

Gabriel Ip, the former bus director for Hong King International School, had told the court earlier that, in the years he was acquainted with her, he found Kissel to be "very kind, pleasant, always helpful to kids."King said in his final speech that character witnesses such as Ip, who were acquainted with the accused but not personal friends, were vital in considering whether she had the "propensity" to conduct such an act.

Ip's testimony was "straightforward, honest, truthful, heartfelt," said King.

Throughout the trial, King said, there had been little dispute that the accused was a kind and loving mother, who was deeply involved with charitable organizations, the school and the community.

King also continued a line of attack on the scientific basis on which the prosecution case relies.

Convinced of Kissel's guilt, the police had "nothing to investigate" from day one, leaving vital areas either missed, discarded or not presented to the jury, submitted King.

"You should be very concerned why a proper investigation was not done and why the full picture was not put before you," he said.

He added that there was a further "positive defense case," with doctors testifying as to the reason for the prescription of drugs, friends recollecting signs of injury to the accused and character witnesses supporting her.

King claimed Tuesday that the prosecution played down its own scientific case because it realized it wasn't wholly reliable. There were no photography specialists to ensure a detailed search for blood spots or stains and, consequently, areas were "simply missed," said King.

The investigation lacked coherence, King said, pointing out that one government scientist had taken photographs of the master bedroom, recording blood spots in various areas around the room, but the scientist who conducted the bloodstain pattern analysis was unaware of that record, and conducted his examination primarily at the foot of the bed.

Referring to photographs of a laboratory experiment that reconstructed the couple's bed, King insisted the reconstruction showed far more blood spatters in areas around the bed.  Such results "didn't fit with the case of him lying still at the end of the bed." These findings would, therefore, support the defense case that "there was a fight in the bedroom that night," and so it was left out of the prosecution evidence.

King also questioned the scientific logic that a government expert used to say that a baseball bat presented in evidence had not come into contact with the murder weapon.

The prosecution's toxicology report on Robert Kissel's corpse, King added, was also "inconclusive" in that it could not prove whether "he was _ one, unconscious; or two, so severely impaired that he could not defend himself," on the day of the murder.

King told the jury to consider the testimony of other neighbors who saw Robert Kissel speaking coherently before his death, and CCTV photographs of him making phone calls that evening. The jury should conclude that Robert Kissel was not "drugged, unconscious or severely impaired."

Apart from criticizing the police investigation and government scientists, King also summarized how his own witnesses supported the defense case.

He noted the prosecution relied on the "theory" that the accused went "shopping for drugs" as part of her pre- meditated scheme.

"But, of course, they didn't call Dr Fung or Dr Dytham to explain why they had prescribed those drugs," said King.

Desmond Fung and Annabelle Dytham testified for the defense that the drugs were prescribed for the accused's sleep problems and depression from marital abuse, submitted King.

Friends of the accused said they had seen black eyes, bruises and signs of rib injury on several occasions between 1998 and 2003, which supported the case of an "abusive relationship in which Robert Kissel inflicted physical violence on his wife," said King.

He asked the jury to return a "true verdict" of "not guilty to murder."

(The Standard)  Judge spells out options to jury as Kissel trial nears end.  By Albert Wong.  August 31, 2005.

With the prosecution and defense finished presenting their cases and summations, Justice Michael Lunn began his directions to the jury Tuesday in the trial of Nancy Kissel, who stands accused of murdering her husband, top Merrill Lynch banker Robert Kissel.

Before returning a verdict of guilty of murder, they must be certain individually, he told the jury, that the accused had the intention to kill, before and during the fatal event, and that she did not do so in lawful self defense.

The jury has been asked to find whether Kissel murdered her husband, killed him in lawful self defense or killed him when provoked into a "sudden and temporary loss of self control," which would result in the conviction of manslaughter because of provocation.

Without a word of introduction or warning, Lunn began the final proceeding after the defense counsel ended his final speech shortly before the lunch break in the High Court Tuesday.

The case began in the early hours of November 7, 2003, when police officers found a rolled-up carpet concealing the decomposing body of Robert Kissel, a former managing director at Merrill Lynch, locked in a storeroom of their luxury Parkview residential complex, said Lunn. A few hours later, Nancy Kissel was arrested for his murder.

In a synopsis of the prosecution case, Lunn said Kissel is accused of killing her husband by "smashing his skull with five separate blows to the upper right side of his head, each one of the blows fatal. Fractured skull bone was driven into his brain."

The prosecution said she was able to do this because he was "sufficiently impaired by a cocktail of drugs," which she served to both him and a neighbor in the guise of a milkshake, said Lunn.

The prosecution wants the jury to take note, said Lunn, of the Internet searches conducted by the accused for drugs and overdoses, and the drugs she was prescribed in the week leading up to the fatal night, the type of which were later found in Robert Kissel's stomach.

Other elements to bear in mind include her amorous relationship with US resident Michael Del Priore, the estimated US$18 million (HK$140 million) estate of Robert Kissel, the defendant's incriminating actions after the fatal incident _ including her testimony in court, which the prosecution submits to be evidence of her "spinning a web of lies," said the judge.

The defense, on the other hand, says she killed in lawful self defense when her husband, "following taunting and provocative statements," attempted to force anal sex upon her while threatening her with a baseball bat.

Fearing for her life, she killed him with the metal ornament, originally used to fend off blows from the bat, the defense argues.

Another element to note in the defense case is the allegation that Robert Kissel had "a controlling nature that developed into paranoia," said the judge. Homosexual pornographic Web sites found on the family computer were submitted to support "the defendant's testimony that Robert Kissel routinely forced anal sex upon her."

The judge warned that liars can portray themselves as confident and that "in contrast, those telling the truth, when they present themselves, may be hesitant."

The prosecution does not have to prove a motive in a charge of murder, although it can offer an explanation "to satisfy natural curiosity."

Lunn said it can sometimes be lawful, even "good sense," to kill in self defense, as long as it is with "such force as reasonably necessary to defend [oneself]."

The judge will continue directing the jury today on the evidence from the near three-month trial. 

(SCMP)  Were blows reasonable or excessive, judge asks Kissel jury.  By Polly Hui.  August 31, 2005.

The judge in the trial of Nancy Ann Kissel said yesterday the jury had to consider whether the force she used to deal the five fatal blows to her husband's head was "reasonable" or "in excess" when deciding whether she is guilty of murder.

Mr Justice Michael Lunn told jurors in the Court of First Instance they had to be sure the injuries Kissel inflicted on Robert Peter Kissel, a senior Merrill Lynch banker, were intended to kill or cause grievous bodily harm to satisfy one of the conditions for a murder verdict.

Recalling evidence, he said forensic experts identified five curved lacerations on the upper right side of the deceased's head, with fractured skull driven into the brain, causing "massive spillage of brain substance". "Did the defendant believe it was necessary to use force to defend herself? If yes, was the amount of force she used reasonable?" he said.

Defence counsel Alexander King SC said Kissel, 41, was attacked by her husband with a baseball bat as he was attempting to force anal sex on her in their Parkview flat on the night of November 2, 2003. He argued she had acted lawfully when she swung a heavy lead ornament in self-defence.

Mr Justice Lunn reminded the jury that Mr King had argued Kissel had reacted "on the spur of the moment" as her husband said "I will f***ing kill you" in the bedroom of their flat. He described the victim, 180cm tall and 69kg, as "well-built" and "athletic". By contrast, Kissel was a "slightly built female".

However, the judge reminded jurors that forensic pathologist Lau Ming-fai said each of the five blows "required a great amount of force" and that there was no self-defence injuries on his upper limbs, which led him to conclude he had "little or no motion at the time the blows were dealt to his head". If the force used was unreasonable, Kissel could not be acquitted on the basis of self-defence, the judge said.

Mr Justice Lunn also directed jurors to consider a reduced verdict of manslaughter by reason of provocation if they believed the conduct of the victim had caused Kissel to "suddenly and temporarily lose her self-control".

The judge repeated Kissel's claim that she had been physically and sexually abused by her husband for five years, resulting in broken ribs, bruises and a black eye on different occasions. Kissel had also testified about the bedroom struggle with her husband on November 2 after he told her he had filed for divorce and was taking their three children, he said.

If the jury did not believe the killing was provoked by the victim's conduct, the verdict would be guilty of murder, he said. But if the victim's conduct could "cause the defendant of such age and sex to do what she did", a verdict of manslaughter would be returned.

He said jurors could consider Kissel's good character and years of aid to the United Jewish Congregation, Hong Kong International School and deprived children of Vietnam when considering the credibility of her evidence. "If you think self-defence may be true, you may acquit," he said.

He instructed jurors to consider the credibility of oral testimony by its consistency. An example he gave was the evidence of Kissel's father, Ira Keeshin, who said in his police statement his daughter told him in a phone call on November 3, 2003, that her husband had slammed her into a wall in 2002. But in court last month, he said he had heard about the assault in 2002. Asked by prosecutor Peter Chapman, he accepted his oral testimony was incorrect.

Mr Justice Lunn drew the jury's attention to conflicting versions of the events of November 2 given by Kissel to the court, her father, friends and a colleague of her husband, but added there could be innocent reasons, such as panic or confusion.

Earlier yesterday, Mr King told the jury in his closing submission they should not consider a verdict of manslaughter by provocation. He argued that Kissel acted in lawful self-defence and was entitled to be acquitted of murder.

Kissel wept in the dock as her lawyer outlined the case.

Mr King said the victim was not rendered unconscious or severely impaired after he and his neighbour Andrew Tanzer drank a milkshake prepared by Kissel on November 2. He said the amount of drugs found in his body was insufficient. The banker was talking on his mobile and walking around in Parkview when Mr Tanzer, who passed out on his couch about 4pm, was severely affected, he said.

"Evidence all points to the direction that he didn't receive the same dose as Mr Tanzer," said Mr King.

The lawyer said Kissel did not ask for the sedatives Rohypnol, Lorivan and Stilnox and anti-depressant amitriptyline during her several visits to clinics shortly before November 2; they were prescribed to her by her doctors.

He said the video recorded by Rocco Gatta, a private investigator hired by Robert Kissel to follow his wife in Vermont, had no sign of Kissel's lover, Michael Del Priore. He said it showed nothing other than a "beautiful countryside", a "very expensive home" and a van parked at the house at night several times.

Mr King criticised the government's bloodstain pattern analysis experts for missing a large number of blood spots and not looking for the extent of cleaning up of the blood in their investigation.

Mr Justice Lunn continues his directions to the jury today.