The attorneys for an Earlville man convicted of killing his wife say he deserves a new trial because a prosecutor misled the jury by questioning him about comments that were never uttered.
Todd M. Mullis, 43, faces an automatic sentence of life in prison without parole after being convicted of first-degree murder in the November 2018 death of his wife, Amy Mullis.
But his attorneys argue that the actions of the prosecutor prevented him from receiving a fair trial — including her questions about his alleged comments about his “cheating” wife captured on a 911 call — and that the evidence in the case didn’t support the jury’s decision.
“After the case was submitted to the jury, defense counsel conducted a detailed review of the 911 recording, including having it enhanced by a professional audio company,” states the document filed by Mullis’ attorneys, Gerald Feuerhelm and Robert Sabers. “The words that the prosecutor claimed were said by the defendant do not exist.”
In response, prosecutors said that not only did Mullis make the disparaging remarks about his dying wife that were pointed out during the trial, but that “several jurors indicated that they heard even more instances where the defendant made similar derogatory remarks about his dead wife on the recording.”
The Mullis trial was held in Dubuque in September after being moved from Delaware County over concerns about pretrial publicity. It featured three days of testimony, then the 12-person jury deliberated for about 7½ hours over the course of two days before returning the verdict.
In the recently filed request that the verdict be set aside and a new trial be ordered, Mullis’ attorneys first took aim at Iowa Assistant Attorney General Maureen Hughes, accusing her of “prosecutorial misconduct.”
When Mullis was on the stand, Hughes questioned him about the recording of the 911 call he placed while driving his wife to the hospital.
When he started performing CPR on Amy Mullis, as instructed by the emergency dispatcher, Todd Mullis stayed on his phone, which he pinched between his cheek and his shoulder.
Hughes played an audio clip until what sounded like distorted whispering could be heard.
“Right there, do you say, ‘Go to hell, cheating whore’?” she asked Mullis.
“No,” he responded initially and in response to follow up questions from Hughes.
During his closing argument, Feuerhelm said the audio clip captured Todd Mullis saying “so cold” while he was out of breath, not “cheating whore.”
In the request for the new trial, the attorneys wrote that Mullis never said the disparaging remarks.
“The questioning of the defendant in such a manner and asking him if he had heard words that clearly were not said was a deliberate effort to mislead the jury and, thus, robs the defendant of a fair trial,” the attorneys wrote. “Such action by the prosecutor constitutes prosecutorial misconduct, not prosecutorial error.”
But County Attorney John Bernau, of Delaware County, filed a response, asserting that there had been no prosecutorial misconduct and that jurors reported hearing Mullis utter that and other derogatory remarks about his wife that were captured on the recording.
“Additionally, during closing statements, prosecutor Hughes cautioned the jury not to take her word for what the 911 tape contained, but (that they) should listen and decide for themselves, as finders of the fact, what was said,” Bernau wrote.
Mullis’ attorneys also said their client deserves a new trial because “the verdict is contrary to the evidence.” They cited the testimony of the Mullises’ son, who testified that his father was only out of his sight on two occasions during the time frame in which Amy Mullis was fatally stabbed with a corn rake.
The attorneys state in their brief that the teen said these instances “were of short duration” and that “it would have been impossible for Todd to leave the barn, assault and kill Amy, and then returned to the hog barn without Trysten being aware of his absence.”
During the trial, Hughes argued that the boy’s testimony was unreliable because he didn’t know how long his father was gone.
In their newly filed request, the Mullis attorneys also again brought up that “significant forensic testing was not done,” noting that Amy Mullis’ fingernail clippings were not tested.
“Amy’s body showed signs of a significant struggle, a struggle in which her attacker’s DNA may have been deposited under her fingernails,” they wrote.
In response, Bernau argued that it is not important what Mullis’ attorneys believe the evidence shows. Rather, the county attorney said, it mattered what the jurors found the evidence to show and that jury convicted Mullis of first-degree murder.
A hearing on the request for the new trial is scheduled for Dec. 17, with a start time that is five minutes before Mullis’ sentencing hearing.
His attorneys have requested that both of those proceedings be delayed to allow them more time to prepare.