by Antoinnette Borbon
We knew going in that the murder trial against James Mings would not be straightforward. It had its share of twists and turns, with the defense arguing that Mr. Mings was not the actual murderer. The defense claims that Mings’ original attempts at murder, in the heat of the moment after the pleading from victim Kevin Seery to end his life, were unsuccessful.
It was unknown to Mr. Mings at the time that Mr. Seery was still alive and his accomplice, Thomas McDermott, may have choked him a second time and been the one to force the sock down his throat.
The state’s case against James Mings began with his being accused of allegedly taking the life of Davis resident, Kevin Seery. Seery had been ill for quite some time, suffering from chronic illnesses. A lot of witnesses on the list confirmed this for both sides of this case.
The first witness to take the stand was officer Jennifer Candelo, from the Davis Police Department. She testified about the 911 call on the morning of October 1, 2011. Candelo explained what is done with the 911 calls when they receive them. In the 911 call made by Mings, he reported Seery had injuries but did not state them. Mings was cut off as Candelo tried to switch over to the fire department to send help.
Seery’s mother took the stand to talk about the family, and Kevin’s life until the end. She stated he was having problems coping with things from being in the military and had been under the care of a psychiatrist in Davis who had put him on an anti-psychotic type of drug that later caused him to get ill with diabetes. She stated Kevin had been drinking to self-medicate beforehand but, after being diagnosed, he stopped and was put on several different meds along with insulin to treat his diabetes. She stated in one sentence, “He was a happy camper,” but later told an officer that Kevin was doing the best he could. She told about her son’s friends and how he had met them down at the homeless shelter where he enjoyed helping out, but she stated that on more than one occasion, Kevin expressed a fear of being robbed by them. Thomas McDermott, a close friend who at times lived with Seery, was one of the friends she felt was a questionable character.
Prosecution then called Laurel Weeks, deputy coroner for Yolo County. On the stand she described the crime scene. She described in detail how she found Seery, lying face down on the floor, in front of his scooter. She stated the apartment in which Seery lived looked messy, cluttered. As she and another officer pulled Kevin Seery in a position so they could observe him, she noted finding hairs around his mouth, reddish in color. But she also found a couple darker hairs too, one near the upper cheek area. She stated she had advised Detective Pinada of her findings. As she looked around the room, she saw several bottles of medications stemming from pain meds to anti-psychotic and anti-depressant meds. Catherine Seery had testified earlier about the morphine, hydrocodone and several other meds, along with marijuana, that Kevin was taking. Weeks stated that, as she turned the body over, she saw a white cloth inside Seery’s mouth. She let the other officers know immediately.
Outside the apartment stood the two men, James Mings and Tom McDermott, who had been with Seery the night before and reported Seery’s death. Weeks noted in her report she had also found a note that had the lyrics to a song and what looked like the beginning of a written will on another piece of paper. She took several photos of the body and the surrounding area, finding blood just above Seery’s head.
Officer Warren Rayman testified to arriving to the scene and witnessing a deceased male. He stated, “We moved the body just about a foot north so we could get to him.” Defense suggested the darker hairs found on Seery could have come from the move, being that the carpet was unkempt.
Later, taking the stand for the prosecution’s case was Mario Alfaro, Davis Police Departments forensic investigator. In testimony he told the jurors that, upon arriving on the scene, he saw the house was unkempt, with a dirty carpet. Alfaro talked about his gathering of evidence. He pointed out finding the hairs and putting them on what is called a “tape lift.” He witnessed the cloth-like material in the mouth of Seery. After several items were collected and the body of Seery was placed into a locked bag to be taken to the coroner’s office, he and the other officers left but returned later that night with a search warrant. Alfaro had a list of things to look for – this was after he had received word about Seery having a piece of a sock, towlettes and gauze found inside his mouth.
Detective Arial Pineda testified to having taken a brief statement at the apartment outside from Mings, with a fellow officer taking the statement of Thomas McDermott. Pineda testified that Mings was brief with him about what happened, until later going down to the station to give what would be Mings’ confession. In the video of the interview that evening, Mings appeared to be under the influence of something. He sat there sniffing his nose every few seconds, going back and forth with stories that were only partly finished. At one point he even asked the detective why he was there, as if he could not keep focused on one subject or remember what he was doing at the police station. Pinada had to ask him several times to continue his statement. Mings then finally told Pinada about this mental telepathy he shared with Seery. He stated he made a connection right away with him and felt his pain, suffering. He told Pinada that Seery had asked him to help him end his life and, out of love and charity, he decided to do it. Mings told Pinada it was only 1 to 3 minutes after Seery asked him to help end his life that he acted.
He said he put Kevin in a choke hold until he passed out, then stuffed 3 to 4 pieces of gauze in his mouth. He never stated, not in any testimony given, that he put in a sock – contrary to what was written in the Davis Enterprise.
Mings told Pineda once he choked Seery out, they both fell to the ground. Mings stated that he wept. After he thought he had succeeded, he went into the living room where Thomas McDermott was sitting with headphones on with the tv turned up loud.
After several hours had passed, McDermott made a phone call to Catherine Seery, telling her that Kevin was no longer with them. It was soon after this that Mings made the 911 call.
Department of Justice DNA Specialist Kooksy testified to the types of DNA and how closely they can tell if it is a specific person’s. The specialist talked about the hairs found around the mouth being more than likely from a limb. Later we heard from another DNA specialist from the D.O.J. who stated the hairs found in Seery’s mouth were not from the defendant or from McDermott. But Kooksy testified to Mings not being excluded from the neck swab taken with what is called, “contact DNA.” Kooksy also stated the dark hairs found on the sock put inside Seery’s throat were not tested. The deputy district attorney felt they were irrelevant to the case, once again.
After hearing testimony from the DNA specialist, we listened to Dr. Super, who performed the autopsy. He stated how he found the body of Seery to be in poor health, in the end stages of pancreatitus. Dr. Super noted that the toxicology report only showed hydrocodone, morphine and marijuana in the body of Seery. He testified to the injuries found on the body. But he could not be clear as to the time sequence or events surrounding the death of Seery. He told the jurors he found a bit of gauze, a few towlettes and a sock all inside the mouth. He said the sock had been shoved down the throat of Seery and may have caused the laceration on the base of the tongue. He said the cause of death was by asphyxiation and gagging. But he stated he also had a crushed windpipe, voicebox and trauma to the neck.
Later for the defense was Dr. Omalu, a very well-known and educated doctor who took brain stock and tested it to find a more specific cause of death and a possible sequence. Dr. Omalu testified that there was evidence he was still alive after the choke hold Mings had done on him because there was vomit on the front of Seery’s shorts. He indicated Seery had aspirated food down into the lungs and it would not have been possible for him to have been dead by the choke hold for this to be present. Dr. Omalu told the jurors, from the revealing evidence of the brain stock, one could tell Seery may have lived five to ten minutes after being choked out before something caused the gagging. Dr.Omalu also noted in his findings from the autopsy report done by Dr. Super that there were more blunt force trauma injuries to the neck, suggesting more than one choke done on Seery. Dr. Omalu stated that, from the testing of the brain stock, results indicated the heart was still pumping before the gagging took place. He noted the abrasions found on the chin and also stated the broken neck could have come from the fall.
Prosecution called another officer, Hatfield, who testified to finding a pair of socks out at the campsite where Mings and McDermott had been living. Officer Hatfield made a note of it, took photos but was told these particular pair of socks were not relevant to this case by her superiors, so they left them there. Defense was shocked they were not taken in as evidence. Defense asked intently, “Did anyone ever think those socks may have been important to the defense’s case?” She answered, “No. I was told by my superiors to leave them, as they were not relevant, so I did.”
Mario Alfaro, who is Davis Police Department’s evidence tech, testified to all of the evidence collected and then later testified to finding a couple of dark hairs on the sock which had been placed down in the throat of Seery. He notified both Dan Hutchinson, the defense attorney, and DDA Martha Holzapfel to come down and be a witness to the removing and viewing the hairs. It was the defense’s understanding these hairs would be sent to the Department Of Justice to be tested, but later we heard thru a conference call between Deputy D.A. Holzapfel and the D.O.J. that the hairs were insignificant to this case, once again!
Detective McNiven, who had been the lead detective on the case, testified to interviewing the defendant while at the Yolo County Jail. He told the jurors he had a audio recorder while he was taking Mings’ testimony but at some point it quit working. He later returned and said he thought his phone had recorded it but it did not. McNiven stated he took some really good notes and by the use of the notes he could write his report. In interviewing the defendant, Mings, never once did he make mention of the towelettes or the sock being put in Seery’s throat. In fact, Mings asserted only to the putting of three to four pieces of gauze in Seery’s mouth to finish the job. It was noted that this first interview with Det. McNiven was taken only three days later after his arrest. Mings seemed to be much calmer through what we could hear on the audio, but it was a terrible recording due to the background noise of the jail. Mr. Hutchinson asked why McNiven did not take Mings over to an actual quiet interview area across the way, but McNiven had no real answer.
McNiven, just as Ariel Pineda, testified also that neither of them could smell marijuana or felt the defendant was under the influence of any drug. Defense asked if they had smelled the strong odor illuminating from Mings’ clothing, which had been taken into evidence. Both officers said they did not smell anything unusual other than body odor.
It was now time for the defense to present its case. Mr. Hutchinson saved his opening to present to the jurors before he started with his defense. In his opening, he told of a man who had been a kind man, coping with a lot of hurt from his past hurts. He told of a man who believed in love and charity for others and how he would express it to people by saying, “have a blessed day,” while at work. He talked about Mings’ journey of a thousand miles to be with the woman he loved and how it led him to Davis, California. Defense did state that Mings may be a bit unusual, but is still a kind man. He defined the defendant as an intelligent man.
Mr. Hutchinson then called a man named John Chester as his first witness. John was a friend of Seery’s who testified to knowing a man named Tom McDermott. He told the jurors during his friendship with Seery he just drank and smoked some pot and then, on a few occasions, Seery had asked him if he knew anyone who would help him end his life. Chester stated, “Friends do not ask friends to do things like that,” and he left the apartment of Seery. The defense then asked him how he knew Tom McDermott. John Chester told jurors he knew him from the homeless shelter. He testified to the character of McDermott, stating, “He was always in trouble with the law, always selling drugs to undercover officers, stuff like that.” His testimony was brief but appeared to be truthful.
The defense called another Davis officer to testify. Officer Briesenick testified to interviewing McDermott, who was also at the apartment the time of Seery’s death. In Briesenick’s report, written about her interview to McDermott’s parole officer, the defense read a statement which said Briesenick knew McDermott was hiding something. She also told the jurors she felt McDermott was high on meth at the time of the interview. It raises questions…
Another of Seery’s friends, who also lived at the Davis Community Meals House, testified to doing somewhat of his own investigation into this case. Nick Reynolds told on the stand that shortly after he learned of the death of Seery, he heard McDermott and others talking about a sock found in Seery’s throat. Defense attorney Hutchinson revealed that the only person at that time who could have known about the sock was McDermott himself, thus implying he would have had to have been in the room with Seery on the night of his death.
Defense re-called Mario Alfaro to talk about the hairs found and why they were not tested. Alfaro stated it was his understanding they would be tested later but was told they were insignificant to this case. Once again, a refusal to look at a crucial piece of evidence.
He also called in Pete Martin from the D.A’s office to testify to a partial story which had been written on the night of the incident. It backed up the part of testimony Mings had given on the stand about the events leading up to the death of Seery.
Mr. Hutchinson kept pushing to the jurors, through his interrogations of the witnesses, how important the evidence may have been, contained in the hairs the D.A refused to test. He also made it clear to the jurors no one had informed him or asked him if he wanted the hairs to be tested. He stated he knew the county is on a budget but the results of the hairs found on the sock, and the socks found at the campsite just may have been exculpatory evidence. It didn’t seem to phase the officers or prosecutor Holzapfel, as she said they were not relevant to this case, once again….
Defense then put on his client, James Elron Mings. In a lengthy testimony, Mings described his life as being a sort of series of “failures,” from having been depressed about the death of his brother and the hurtful breakup of a couple relationships. Mings told how he had been raised poor and attended the Mormon church growing up. He told about taking his lessons in life and turning them into a journal. He called it his Journey. After giving great detail into his background, he began to tell of the night Seery died. Mings wept thru his testimony as he told about his love for others and how he knew Seery was in great pain. He spoke about a mental telepathy and his research into metaphysics. He stated he and Seery had made a connection from the first conversation. He also talked about meeting Tom McDermott, who had introduced the two while he and McDermott were living as bunkmates at the homeless shelter.
Mings told the jurors he felt “set-up,” and betrayed by McDermott after the death of Seery. He stated he went into the bedroom with Seery to start writing Seery’s story. Mings said as they were looking at photos of Seery’s younger years, Seery asked Mings to help end his life. Mings said he waited a few minutes and watched Seery get onto his scooter, turn to look out at McDermott in the living room, smiled and said, “If you cannot do this, I will understand,” Mings stated he then put Seery in a choke hold until he thought he had killed him, falling to the ground with Seery, then lay there weeping for a bit. Mings stated he then put the gauze in Seery’s mouth, to finish the job, as Seery requested, and left the room. Mings walked into the living room telling McDermott, “Hey, it’s done,” but he did not once check to see if Seery was actually dead, thus not knowing if Seery were indeed deceased.
Mings stated that McDermott at some point had gone into the room. The next morning, McDermott told Mings, “Do not wake Kevin, he hates that,” and assuming that Seery was already dead, Mings did not understand why McDermott would say that.
After a while had passed, McDermott phoned Seery’s mother to say that her son was no longer with them. McDermott did not state he was actually dead. Catherine Seery wept while testifying to this earlier when she was on the stand. After phoning Seery’s mother, Mings called 911 to report the death, but in the audio it was not really clear what he told them, as only the jurors get a copy of transcript.
Mings told jurors, after being questioned by the cops as to how the red hairs got onto the mouth area of Seery, he and McDermott left. Mings stated he went down to the duck pond where a few other homeless people were and smoked pot. He told jurors that he felt scared the homeless community was going to harm him after learning of the death of Seery, their friend. Mings, after being very high on marijuana, decided to phone the police and tell them he was on his way there. He arrived and went into an interrogation room where Detective Pinada had a videotape of his confession. During this confession, Mings seemed to be under the influence of something, as he could not sit still, kept sniffing his nose, asking for water and not being able to focus on even why he was there. Det. Pinada had stated in his earlier testimony that he felt the defendant was fine, and not under any influence. It raises questions…
In conclusion, Prosecutor Holzapfel stated Mings knowingly and intentionally killed Seery and had no change of heart about what he had done, not even three days later. She contended there may have been a conspiracy to kill Seery between Mings and McDermott. She explained how it would have been odd to put gauze in the mouth of Seery, only to have McDermott come in and take it out to shove other items down his throat to finish the job. She talked about the betrayal Mings felt, and his failures in life, pointing to the belief that maybe this death may have been a success for him. She went over the Dr.’s report and how they did agree on what caused the death. Her closing was quite lengthy and detailed, but seemed geared toward adding a charge not much talked about until now.
In Dan Hutchinson’s closing, he started out with the mission statement of the Yolo County District Attorney’s, with an obligation to seek justice. He apologized for getting emotional in the beginning of his closing, for getting personal with the prosecutor. But he asserted that the People were not getting justice. Dan stated the doctor’s findings again and the testimony of Mings and what happened the night of Seery’s death. He told jurors that Mings only thought he had killed Seery, but did not check to see if he were actually dead. He instructed the jurors once again about doubt, and if there is any doubt they must weigh on the side of the defense. It was lengthy also, but was a very well thought out and prepared closing.
On Friday, the jurors went out to deliberate. As of Tuesday, we still have no verdict, and only a few questions from the jurors.
