Missoula County District Judge Ed McLean has ordered an Ecuadorian witness to be physically present at the December trial of Markus Kaarma, who stands accused of deliberate homicide in the shooting death of a 17-year-old foreign exchange student.
Former exchange student Robby Pazmino was standing outside Kaarma's Grant Creek garage last April 27 when Kaarma fatally shot Pazmino's friend, Diren Dede, a student from Germany.
Pazmino later told police that Dede was looking for alcohol inside Kaarma's garage, and that they had participated in "garage hopping" several times in the past, but Dede had never entered a home before.
In the ruling filed late Wednesday, McLean denied prosecutors' request to have Pazmino appear with his attorney by VisionNet, insisting that Pazmino be physically present during the proceedings.
Additionally, McLean denied Kaarma's third attempt to change his trial venue, but said if an impartial jury cannot be selected during voir dire, he would consider a change in location.
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He further forbid attorneys from both sides from speaking specifically with Missoulian reporters about the case.
"Essentially a gag order is in place," McLean wrote.
No other news organizations were mentioned in the order.
Earlier in the day, Kaarma’s attorneys filed a motion asking McLean to move the upcoming trial to another county, claiming two stories published in the Missoulian last week have further tainted Kaarma’s reputation to such an extent that an impartial jury cannot be selected.
In the motion, Brian Smith – one of Kaarma's five attorneys – argued the Missoulian’s Sunday publication of a story outlining the defendant’s prior criminal record “destroys Mr. Kaarma’s ability to receive a fair trial in Missoula County.”
“The Court has previously held the danger of unfair prejudice in the release of Mr. Kaarma’s prior acts was too great to allow the public to know. The court sealed proceedings on the defendant’s motion regarding prior acts,” Smith wrote. “All parties agreed the danger of unfair prejudice was too great to allow Mr. Kaarma’s prior acts to be open to the public.”
In the story, the Missoulian reported that Kaarma had a prior criminal record both in Seattle and Missoula and published some of the public criminal records online.
The Seattle records showed Kaarma pleaded guilty to a 2003 assault – an attack that was labeled domestic abuse and child abuse in the documents – and received a two-year deferred sentence.
According to those records, the case was revisited in 2005 after he was charged with two new crimes in Missoula Municipal Court. However, the Missoula court refused to release the public documents and Judge Kathleen Jenks would not divulge details about the criminal cases.
Kaarma's initial charge from 2003 was dismissed with prejudice and the finding was vacated in 2005.
The story was circulated by the Associated Press to news organizations statewide.
On Monday, the Missoulian published another story detailing McLean’s order for Kaarma to undergo a psychological exam prior to his upcoming trial, a story also disseminated by other media, in Missoula and statewide.
“The prejudicial press coverage continues,” Smith wrote. “The press continues to print the state’s theories, theories contained in a 19-page affidavit.”
Smith requested that if McLean prefers the trial stay within the 4th Judicial District, it be moved to Mineral County or, alternatively, a jury be selected from there.
Though he denied Kaarma's request, McLean said he would be following the voir dire process closely and the jury is to be limited to the evidence it receives in the courtroom.
In Wednesday's ruling, McLean further denied public access to the recording of the 9-1-1 call Kaarma's wife, Janelle Pflager, made after he fatally shot Dede in their garage.
Last week, the Missoulian requested a copy of the recording, but a protective order was filed to prevent the release of the tapes.
"The Court ruled the Defendant's right to a fair and impartial trial took precedence over the Missoulian's right to access and the protective order was issued," he wrote.
Kaarma's attorneys claim that he shot Dede in self-defense, but prosecutors paint a more sinister picture.
On April 17 – just 10 days before the fatal shooting – Kaarma and Pflager were burglarized by thieves who took marijuana, marijuana paraphernalia, cash and credit cards from the couple's vehicles and garage.
The couple claimed they felt traumatized from the incident, so they installed a surveillance camera and set up motion detectors in and around their garage.
According to court documents, they left their garage door partially open to ensnare burglars on the night of the fatal shooting.
Shortly after midnight on April 27, they were alerted to Dede’s presence by a baby monitor that depicted a dark figure walking inside their garage.
Kaarma grabbed a shotgun, opened the front door and exited his home. He turned toward the garage and fired four shots into the darkness – two of which hit and fatally wounded Dede.
In interviews with the police, Pflager allegedly said that she heard her husband say “hey, hey” before he chambered a shell in the shotgun. She then allegedly heard a male voice say “hey” or “wait” before her husband fired the fatal shots.
Pflager then re-entered the garage through the home and turned on the garage light. It was then that the couple first saw Dede bleeding to death on the floor.
Several weeks later, Missoula police interviewed 18-year-old Tristan Staber and his 16-year-old accomplice, who admitted to burglarizing Kaarma’s home in the weeks prior to the shooting.
Staber pleaded guilty to charges of felony conspiracy to commit burglary and misdemeanor trespass to vehicles in October. Neither teen claimed to be acquainted with Dede or Pazmino.