Judge Fabian denies motion for mistrial in Tuchek arson case

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Fri, Nov 22nd, 2002
Posted in Features

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Caledonia - After reviewing legal briefs filed by the prosecution and defense, and listening to oral arguments in the case, Judge James Fabian denied John Tuchek�s request for a mistrial on Monday, November 18, in Houston County District Court.

Tuchek was convicted by a jury on October 24 of eight counts of first degree arson and one count of fifth degree arson for the April 7, 2002 fire that destroyed three historic buildings in Lanesboro.

Described by law enforcement as a �hero fire�, Tuchek is alledged to have set the fire in order to save his ex-girlfriend who lived in one of the buildings.

Defense Attorney, Marc Kurzman, argued before the court that Tuchek had been convicted on circumstantial evidence and that even the chief investigator in the case had testified during the trial that he had �no evidence that Tuchek intended to start the fire.�

Kurzman told Judge Fabian that the state gave the jury the wrong standard of law - that it was �reasonably forseeable� to conclude that if a fire was set on cardboard that it would lead to the buildings burning down.

The defense also argued that they were not allowed to introduce key evidence from a witness who could provide an alternative theory as to how the fire started - that the fire was started on cardboard on a trailer and later spread to the building.

In his brief, Kurzman stated that the state introduced witnesses who prejudiced the jury against his client and that a polygraph examination taken by Tuchek, which was ruled inadmissable by the court, would have supported the hypothesis of innocence of first degree arson.

�John Tuchek is stupid and a criminal, but what he did is fifth degree arson and not first degree arson. We ask that it be set aside,� Kurzman asked the court.

Assistant Attorney General Brent Wartner, representing the state, told the court that the state�s legal brief responds to each of the defense�s arguments. He also said that the defense had never produced polygraph results.

�We don�t know if they exist or what the results are,� Wartner said.

Judge Fabian, in making his ruling, responded to each of the defense�s arguments for a mistrial:

�The defense had ample opportunity to call witnesses. The defense listed no witnesses.

�Any testimony from witnesses that the fire was started on cardboard on a trailer would be contrary to overwhelming evidence from the state fire marshall, the fire chief, the lab investigator, as to where the fire was started.

�In pre-trial instructions, it was agreed that the state would introduce witnesses who lived in the buildings, but they would not be allowed to talk about dollar losses.

�It is reasonable to conclude that by starting a fire in cardboard boxes that it could spread and burn down a building.

Fabian concluded:

�After starting the fire, he could have pulled the boxes away and started yelling. But instead he drove away and the fire spread.

�The state concedes that he didn�t want to burn the buildings, but to be a real hero, the building indeed had to be on fire.

�This is the consequence that came from starting the boxes on fire. Intent was shown. The intent was demonstrated from the evidence presented.

�Your motions are denied.� Judge Fabian said.

After the hearing, Kurzman vowed to appeal the case to the next level.

�As soon as sentencing is completed we will file a motion with the Appeals Court to have the trial overturned,� Kurzman said.

When asked to comment on the proceedings, Tuchek said, �Disappointed, that�s about it.�

Sentencing has been set for December 16 at 10:00 a.m. in Preston.

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