ST. GEORGE — Nine months after 30-year-old David Heisler was abducted from his Santa Clara home and left for dead on the Arizona Strip, the three suspects believed by authorities to have perpetrated the abhorrent and shocking crime appeared in court.
A review hearing for Kelley Marie Perry, 32, and Francis Lee McCard, 56, was set before Judge Eric Ludlow in Washington County’s 5th District Court Tuesday on charges of first-degree felony aggravated kidnapping, first-degree felony aggravated burglary and second-degree felony theft.
Since the July 5, 2016, arrest of McCard and Perry, Heisler’s former girlfriend and mother of his now 7-year-old child, Washington County prosecutors have been awaiting word on a possible federal indictment being sought in the case.
Federal authorities have the right to prosecute certain crimes that become federal offenses by crossing from one state to another – as in this case involving a kidnapping resulting in death when the defendants reportedly transported Heisler from Utah to a desolate area in Arizona where Heisler was either killed or left to die in the extreme heat after allegedly being assaulted.
Ryan Stout, defense counsel for Perry, told the court during a Jan. 1 review hearing that federal prosecutors intend to indict Perry.
While Washington County Deputy Attorney Zachary Weiland said Tuesday he had not heard from federal authorities as to whether they are going to federally indict Perry, Weiland confirmed he had received word the federal government would be indicting McCard – which could potentially earn McCard the death penalty if he is convicted.
“Mr. McCard has been appointed an attorney to represent his interest’s in the federal system,” Weiland said, noting that Kathy Nester, federal public defender for the District of Utah, was appointed to represent McCard in the matter.
“I know that Ms. Nester has contacted our office and indicated that they are trying to put together a mitigation report to avoid the death penalty,” Weiland added. “And it just takes time. They are in the process of interviewing lots of people.”
A mitigation report provides information to assist the defense counsel in identifying, understanding and persuasively presenting all mitigating evidence to a judge or jury in considering the disposition of a significant criminal case, and to advocate for the lowest possible sentence.
In the federal system, the final decision to seek the death penalty belongs to the United States attorney general, differing from a state case in which local prosecutors have the final say with no involvement from the state attorney general.
Prior to seeking an indictment charging a capital-eligible offense, the U.S. attorney or assistant attorney general must submit his conclusion on whether all the aggravating factors found to exist sufficiently outweigh any mitigating factors in order to justify a sentence of death.
Views of the alleged victim’s family on seeking the death penalty and other victim impact evidence must also be provided in the prosecution memorandum to be considered.
When asked, Debbie Heisler, David Heisler’s stepmother, told St. George News she is “absolutely” in favor of the death penalty in this case.
“I don’t know that it will happen,” Debbie Heisler added, “but I do know there’s a lot of talk about the death penalty. I would like to see that, I mean, I have lots of personal reasons why I would like to see that, obviously.”
Debbie Heisler and her husband, Kenneth Heisler, have been raising David Heisler’s daughter, Mariah, since the day he went missing.
The sentence is ultimately decided by a jury during the penalty phase of the trial following a conviction. The decision must be unanimous. If a single juror opposes death, a life sentence is issued.
Over the last several months, prosecutors in the Heisler case have collected an overwhelming amount of evidence to present to a jury in support of the criminal charges.
Prosecutors theorize that McCard, Perry and 54-year-old Tammy Renee Freeman, who was arrested July 9 for her alleged involvement in the crime, each played a role in the abduction of David Heisler from his home on June 27.
Following the kidnapping, an extensive seven-and-a-half-week search for Heisler ensued before coming to an end Aug. 18 when Heisler’s body was discovered by a geologist in the Mt. Trumbull region of the Arizona Strip.
Read more: Body of David Heisler found
During the police investigation, McCard allegedly admitted to going to Heisler’s home with the two co-defendants the morning of June 27 with the intent to “scare” Heisler, who had just been awarded sole custody of his daughter, Mariah, on June 13, after years of related legal proceedings with Perry.
McCard and Perry both reportedly admitted to tying up Heisler, assaulting him in his home, placing a pillowcase over his head and forcing him into the backseat of his car and driving to the Utah-Arizona border.
Freeman, who allegedly drove McCard and Perry to Heisler’s home on June 27 and assisted in attempting to cover up the crime, also appeared in 5th District Court Tuesday for an evidentiary hearing before Judge Jeffrey Wilcox.
Weiland requested a continuance of Tuesday’s hearing until Friday in light of new video evidence revealed during the prosecution’s preparations to respond to a motion to suppress evidence filed by Freeman’s defense attorney, Gary Pendleton, on his client’s behalf. In his motion, Pendleton asked the court to suppress all statements made by Freeman during police interrogations at the Santa Clara Police Department on July 5, 2016, and July 9, 2016.
In the motion, Pendleton maintains that police obtained statements from Freeman by denying her her Fifth Amendment and Sixth Amendment rights when she reportedly told officers during the interrogation that she thought she should have the advice and assistance of counsel.
“In response to this statement,” the motion states, “police officers told the Defendant: that she was ‘not entitled to have an attorney’; that if she was ‘going to go that route … we’ll go accessory’; and that ‘if you work with us you’re going to walk out of here’ … suggesting that her ability to ‘walk out of here’ was conditioned upon her ‘working with’ the police officers established a ‘custodial’ situation which clearly required that the Defendant be advised of her rights per Miranda.”
Judge Wilcox granted the continuance until Friday at 2 p.m.
McCard and Perry are scheduled to make their next appearance in court for a review hearing on May 23 at 9 a.m.
Until the matter is resolved, Debbie Heisler said Tuesday that she and her husband would continue to attend every court hearing for each of the defendants accused of perpetrating the crimes against their son.
“It’s very hard to wait this long, very hard,” Debbie Heisler said. “We would love nothing more than to see it go faster, but we’re told over and over again, especially on the federal level, that they just take their time and they just keep working away.”
Although she is young, Mariah fully understands the entirety of the situation surrounding her father’s death and her mother’s incarceration, Debbie Heisler said, noting that Mariah has been going through counseling to help her cope.
“She’s doing good,” Debbie Heisler said of her granddaughter. “She’s adapting. We’re all adapting to our new reality. It’s always going to be hard, but you make do and you just kind of go with it. We try to keep his memory alive to her so that she can feel him.”
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