CAPE GIRARDEAU, MO (KFVS) - Cape Girardeau County Prosecuting Attorney Morley Swingle filed a motion this week asking the trial court to overrule a motion made by Clay Waller's attorney Scott Reynold's to quash the state's application to get a deposition from Waller's father.
According to court documents filed October 25, Swingle wrote there is nothing in the Missouri Constitution or Supreme Court rules or statues which prohibit the taking of a deposition prior to the formal filing of charges, and given the unique facts and circumstances of this matter, the interests of justice support the taking of said deposition.
According to Swingle, James Clay Waller, II is the primary suspect in the murder of his wife Jacque Waller. The mother of three has been missing since June 1, 2011.
Swingle believes the circumstances surrounding her disappearance indicate she did not disappear voluntarily.
According to court documents, investigators believe Jacque Waller was murdered, and her body has not been found.
According to court records, James Waller, Sr. told investigating officers that after the disappearance of Jacque Waller, his son James Clay Waller, II admitted to his father that he had killed his wife.
The Prosecuting Attorney's Office anticipates filing a murder charge against Clay Waller.
When recently asked about how long it would be before doing so, Morley Swingle could not comment on a time frame.
Clay Waller remains in federal custody after entering a recent guilty plea to internet threat charges. He will be sentenced on that in December.
The current question is whether the court may authorize the state to conduct a deposition to preserve testimony prior to filing the formal charges.
Swingle states this is a matter of first impression in Missouri, and in fact there are virtually no cases in any court, at any level which directly addresses this issue.
In his filing, Swingle cites Missouri Supreme Court Rule governing the state's ability to conduct a deposition in order to preserve testimony.
Swingle states that James Waller, Sr., 72, and is confined to a nursing home facility where he is in poor health.
According to court records, Waller is bedridden and can only find ease in breathing while lying on his side.
Swingle is concerned about whether there is a likelihood Mr. Waller would be available for trial.
Swingle said the length of Clay Waller's sentence is unknown at this time, though it is not unreasonable to assume he will receive a sentence to which would be in a federal correctional facility outside the State of Missouri. Upon his eventual release from federal prison, if Clay Waller were to be charged with the murder of his wife, the time could span years.
Given the witness' age and current health issues, Swingle stated, it is a very real possibility that Mr. Waller would no longer be available as a witness years from now.
According to the recent motion filed, the Prosecuting Attorney's Office believes James Waller, Sr. is an essential witness in this matter.
Swingle calls this case a "murder investigation". Swingle says Clay Waller confessed his guilt to his father.
Swingle says the state would prefer the live testimony of James Waller, Sr. at any future trial.
If the court allows, Swingle is requesting the deposition take place approximately 30 days after providing defense counsel time to prepare.
Swingle stated, the State is seeking an extraordinary remedy, but these are "extraordinary circumstances."
He said in his newly filed motion that a mother of young triplets has disappeared in a manner pointing to a violent death and the primary suspect in her murder has confessed his guilt to his elderly and ailing father.
It concludes by saying that to deny the state's application would be conferring a benefit and undeserved windfall upon a confessed murderer who was "clever enough to hide the body of his wife in a location we have yet to discover."