CONWAY -- A woman's sentencing for her husband's bludgeoning death in the remote Van Buren County town of Alread has become a focal point in legal arguments over a lawsuit against nursing-home owner Michael Morton and lobbyist Gilbert Baker.
At issue is whether a court should take "judicial notice," or accept as evidence, the fact that former Circuit Judge Michael Maggio pleaded guilty in January 2015 to a federal bribery charge.
The lawsuit's plaintiffs -- two daughters of Martha Bull, who died in Morton's Greenbrier nursing home in 2008 -- contend the court can take such notice even though Maggio is trying to withdraw the guilty plea. Morton's attorneys say the court cannot take such notice because Maggio's criminal case, which is on appeal, is separate from the lawsuit. Maggio is also not a defendant in the lawsuit pending in Faulkner County Circuit Court.
In a court filing Monday, Morton's attorneys said Bull's family had "misstated" a 2008 ruling in the criminal case of Anne Throneberry in their arguments.
Anne Throneberry and two men were charged in the 2004 bludgeoning death of Throneberry's husband, Ted, and tried separately. One co-defendant received life in prison without parole; the other was given a 30-year prison sentence.
The jury convicted Anne Throneberry of manslaughter, kidnapping and hindering apprehension or prosecution and recommended that she serve the sentences concurrently. But the judge gave her consecutive sentences, saying he had heard evidence that jurors had not heard in the cases of Throneberry's co-defendants.
The Arkansas Court of Appeals later ordered the judge to resentence Throneberry and said he was wrong to consider evidence from other cases. In resentencing her, the judge said he was following the appeals court's order in Throneberry v. State, but he stuck with the consecutive sentences. He declined to give reasons for his decision.
In Monday's filing, Morton's attorneys said, "What the court in Throneberry actually held was that 'the record of a co-defendant's case cannot be considered at the sentencing phase of a defendant's separate trial if the co-defendant's record has not been introduced into evidence.'"
"The court in Throneberry specifically held that 'judicial notice may not be taken of the record in a separate case,'" Morton's attorneys added. "Thus, Throneberry supports Morton's position that the Court cannot take judicial notice of Maggio's plea agreement. Maggio's plea agreement is also not admissible into evidence under the Arkansas Rules of Evidence."
In November, attorneys for Bull's family said Maggio's plea agreement "contains facts detailing the bribery" and that those "facts" were incorporated into the daughters' amended complaint against Morton and Baker. The plaintiffs' attorneys say "Maggio stipulated to the veracity of those facts" in his plea agreement.
"Defendants do not dispute that Maggio so stipulated, they simply disagree with what he says occurred," the Bull family's attorneys added. "However, this disagreement does not change the circumstances of this case, i.e., that it is generally known that Maggio admitted to these facts."
A judge last year sentenced Maggio to 10 years in prison. Maggio is free pending his appeal to the 8th U.S. Circuit Court of Appeals in St. Louis. That court has yet to set a date for oral arguments.
Morton and Baker have not been charged with a crime, and both have denied wrongdoing.
Assistant U.S. Attorney Patrick Harris said Tuesday that prosecutors are waiting on the federal appeals court's decision. Harris said he could not comment on whether the investigation of Baker and Morton is ongoing.
Throneberry was not at home when her husband was bludgeoned, but prosecutors said she knew of the plan. The killers stuffed the victim's body inside a blue barrel, burned the body until only bone chips remained and then scattered the chips on a nearby dirt trail, prosecutors said.
State Desk on 01/12/2017