Defense closes in Nickels trial

EPHRATA - Defense attorney Jackie Walsh argued police picked David Nickels as their suspect and ignored any evidence to the contrary.

Closing arguments in the first degree murder trial of Nickels concluded Wednesday. Nickels, 31, Helena, Mont., is accused of shooting Sage Munro outside of his Ephrata home on Dec. 29, 2009.

Walsh's roughly four-hour long argument covered issues with the entire case, centering on the idea investigators decided on a suspect early and refused to look for anyone else. The attorneys have argued Ian Libby was a more likely suspect than Nickels.

Walsh argued the problems started when police arrived on the scene. The first officers arriving noted shoe prints along the road.

"What happens? Nobody photographs these shoe impressions," she said. "The first shoe impressions near the crime scene that the police see."

She pointed out the officers didn't stop Colleen Gibbins or Harmony Smith from coming into the residence, further contaminating the crime scene.

Walsh turned to the footprints found in the snow near Munro's house, pointing out officers circled valuable shoe prints with orange paint. She argued prosecutors introduced evidence of one trail of shoe prints along the side of Munro's house around out a back gate into an alley, but ignored a set of shoe prints found in another corner.

"Why did they do that because that fits with their theory," she said.

She argued the footprints were left by either Julian Latimer or Ian Libby as they ran around the house into the alley following the murder of Sage Munro.

Walsh pointed out investigators swabbed the door handles of Munro's truck for DNA before checking for fingerprints, destroying possible evidence of Libby prowling Munro's truck for guns.

"So when they talk about Ian Libby or Julian Latimer being excluded as donors to the fingerprints. They're not excluded as to any prints that might have been left on the door handle," she said.

Walsh turned to the prosecution's case against Nickels, starting with the handcuffs found on the scene. Anna Wilson, a Washington State Patrol Crime Lab forensic scientist, testified Nickels' DNA was included on the handcuffs.

The defense attorney pointed out the DNA found on the handcuffs came from at least three people, if not more.

"A potential contributor does not mean that someone is the contributor," she said. "If you can't extract out a single DNA profile you can never say, 'It's a match.'"

Walsh pointed to the statistics Wilson gave for how many people could potentially have contributed DNA. The forensic scientist testified one out of 2,300 people is a potential contributor.

The statistics mean nearly 3,000 people in Washington could be a potential donor, and at least 130,000 potential contributors in the United States, she said.

"So then the next question becomes given those statistics, how much weight should we really give to this conclusion? None, at all," she said. "The reason is because there is no evidence that Mr. Nickels was at the crime scene. No one places Mr. Nickels at the crime scene."

The handcuffs don't prove Nickels was at the scene, since investigators can't show how the DNA got on the handcuffs. Walsh pointed out leaves on top of the handcuffs and a lack of other disturbances in the snow.

Walsh argued the cellphone records don't prove Nickels was in Ephrata, saying items such as airports or geography could have interfered with the tower. She said prosecutors wanted jurors to suspect Nickels turned off his phone the night before the murder, but the next day showed a similar gap in phone calls.

The attorney pointed out Nickels traveled around the Northwest for his business, buying and selling catalytic converters.

"There is nothing sinister about it," she said. "He's traveled from Montana to Idaho to Washington down to Wyoming for work and down to other states. That's what he does."

The posting asking for a .22 caliber pistol is questionable as well, she said. Marita Messick also had access to Nickels' e-mail account and Craigslist doesn't require any identification to prove the person making the advertisement.

"That post wasn't taken down until Jan. 20, 2010, and what does the evidence show from that? There was no response," Walsh said. "Nobody responded to that post. There is absolutely no evidence, whatsoever, that Mr. Nickels posted the Craigslist posting. There's no evidence that anyone responded to it, and there's no evidence, whatsoever, that Mr. Nickels purchased a gun, owned a gun, or had a gun on Dec. 29, 2009."

Walsh turned to Messick, the woman at the center of the prosecution's case against Nickels, saying the relationship between the two didn't end. She pointed out a series of text messages Messick sent Nickels.

"She's looking forward to going to Spokane. She wants to go shopping. She wants him to spend money on her," Walsh said. "This is not a woman who is trying to get rid of somebody. This is not a woman who is being stalked and harassed by somebody. The evidence doesn't bear out that way."

Messick's cell phone bill for December 2009 showed 100 calls from Messick to Nickels, Walsh said.

"The total number of minutes was 543 minutes, or nine hours and three minutes," she said. "That doesn't account for all the time she called David."

Focusing on Nickels' alleged confession to Erick Alsager, Walsh said the bar was loud, crowded and people couldn't hear in normal tones.

"Is there any evidence whatsoever that David Nickels was in Miller's Crossing that night and yelled at Erick Alsager, 'Hey, I killed this guy in Washington?' It's absurd. There is a reasonable doubt as to the credibility of Erick Alsager. There is a reasonable doubt as to whether that conversation took place."

She pointed out Alsager continued to drink at the bar after Nickels made the alleged confession, saying he didn't seem to take it seriously.

She noted the differences between Alsager's initial statement about what happened, and the later statement. Alsager initially said Nickels claimed to use a shotgun.

"The police apparently didn't like that response ... because it repeatedly gets inquired about," Walsh said. "Mr. Alsager goes from, 'He said it was a shotgun,' (to) 'I think it was a shotgun,' (to) 'Maybe he said shotgun,' until Mr. Alsager apparently realizes they don't like the answer."

She finally pointed out Nickels talked to investigators willingly when they initially contacted him. He called Rex Lain in front of them, and contacted officers when he wanted to leave the city.

"Why would you do that if you killed Sage Munro? Why would you do that if you wanted (Lain) to be your alibi? There's no testimony that Mr. Nickels said, 'Was I with you on Dec. 28 and 29?' That's not what the evidence shows," she said. "The evidence shows he called (Lain) and said, 'When was I at your place in Wyoming?' and reportedly Rex Lain says when that was."

Walsh turned to the evidence pointing at Libby in the final portion of her argument, starting with Libby's text messages to Crystal Tycksen stating something bad had happened. Tycksen testified she met with Libby either on the day of or within days of Munro's murder.

"Mr. Libby directed that she meet him at the church," Walsh said. "She came to the Catholic Church and parked in the street ... Ian Libby was high, that he was high on methamphetamines."

Tycksen described a drive near Norton Road, because he needed to get rid of something, Walsh said. Tycksen testified to having a bad feeling about the ride in the fog.

"The state argues and wants you to believe that it wasn't a gun that he was trying to get rid of and Crystal Tycksen didn't see a gun," Walsh said. "Well let's remember what time of year this is ... is it reasonable to infer that Mr. Libby was wearing a coat and he easily could have hid a gun in his clothing? Of course."

After they turned around, and when Libby was getting out of the car Tycksen asked him whether he was involved in Munro's murder, Walsh said. Libby didn't deny it.

"What do we know from further conversations between Ian Libby and Crystal Tycksen? We know that Ian Libby admitted to being there when Sage Munro was killed. He said Julian Latimer was with him and he said a third guy was there too."

Walsh pointed out police didn't do anything with the anonymous tip from Laura Hays, saying Hays went to the Soap Lake police and the Ephrata police before making the call.

She turned to Libby's assault on Tycksen at Lenore Caves. Sounding like she was on the verge of tears, Walsh pointed out prosecutors believed Tycksen when they prosecuted Libby for the assault.

"All of the sudden she's incredible. She's not telling the truth?" Walsh said. "They believed her then. Why don't they believe her now? They don't believe her now because it doesn't fit with their tunnel vision, and they don't want to hear it."