Willoughby attorneys subpoena Sublette County, court officials
by Joy Ufford
April 26, 2013
Attorneys on both sides of the lawsuit filed by Troy D. Willoughby, who was convicted and then acquitted of the 1984 murder of a Jackson woman, met in Pinedale April 24-25 to take pre-trial depositions from court and county officials.
Subpoenas from Willoughby’s attorneys were delivered to Sublette County Circuit Court Clerk Wendy Sutherland, Sublette County Sheriff’s Office (SCSO) Capt. John Wells and Lt. Lance Gehlhausen and county attorney Neal Stelting, records show.
They were each asked to produce evidence and testimony in closed "discovery" proceedings Wednesday and Thursday in the Sublette County Commissioner’s Meeting Room. This portion of Willoughby’s civil suit is in preparation for the December bench trial before U.S. District Judge Scott Skavdahl in Casper.
Civil suit background
Willoughby filed a civil suit seeking unspecified damages in October 2012 against former SCSO Capt. Brian Ketterhagen, former Deputy Sarah Brew and former county prosecutor’s trial investigator Randall Hanson, arguing they violated his constitutional rights before his first-degree murder trial in 2010 by deliberately withholding potentially "exculpatory" evidence from his defense team.
Willoughby was arrested in March 2009 in Helena, Mont., after a Sublette County "cold case" team led by Ketterhagen determined he was a primary suspect in the June 21, 1984, early-morning shooting death of Elisabeth "Lisa" Ehlers, of Jackson, who was found dead by her car in a highway pullout between Bondurant and Hoback Canyon.
His civil suit claims that Ketterhagen, Brew and Hanson knowingly withheld a 1984 SCSO incident report from then-prosecutor Lucky McMahon that showed Willoughby apparently was contacted at home in Daniel by an officer about five hours before and 35 miles south of Ehlers’ death, records show.
In January 2010, a Sublette County jury convicted Willoughby of Ehlers’ murder and he was sentenced by now retired Ninth District Judge Nancy Guthrie to life in prison.
The Wyoming Supreme Court upheld his conviction in a June 8, 2011, decision. Two days later, Stelting announced Gehlhausen had secretly recorded the above-named investigators apparently deliberately withholding the 1984 SCSO report and other information from his defense before Willoughby’s first trial.
Ninth District Judge Tim Day ruled that Willoughby should have a new trial, and transferred the case to the Fremont County courthouse in Lander. The second trial took place there in January/ February 2012; the jury found Willoughby "not guilty" and he was immediately released from jail. Willoughby had been incarcerated since his Montana arrest, records show.
Suit proceeds after denial
The recent closed proceedings in Pinedale follow Judge Skavdahl’s Feb. 26 order denying the former investigators’ motion for judgment – in effect, for the suit’s dismissal.
In his order, the judge noted that the defendants’ (former investigators’) motion "is premised on the argument that (Willoughby’s) claims are in reality ‘malicious prosecution’ type claims requiring (Willoughby) to establish the absence of probable cause for his arrest and conviction…"
Judge Skavdahl said he disagreed with that argument and another that Willoughby should have known of the 1984 incident report because it involved him personally, court records show.
The judge also said the former investigators’ motion to dismiss argued that "prosecution ‘suppressed’ evidence because the government is under no obligation to disclose to (Willoughby as defendant) what he already knows," namely that "a file" containing the 1984 SCSO report and other purported documents might have been used by the defense in the first trial.
"First, the Court does not know what is contained in the file," the judge wrote, adding that the complaint says it includes witness statements and other "associated civil and criminal papers."
"This Court cannot find that (Willoughby) knew of the exculpatory information until the extent of that information is determined," Judge Skavdahl continued.
Moreover, he wrote, by not fulfilling obligations to turn over the potentially exculpatory "file" to then-prosecutor McMahon, they are not entitled to immunity at this time "given the factual issues that exist at this stage of the proceedings."
The next documents filed in the lawsuit were subpoenas served on SCSO and court officials for evidence production and sworn testimonies in the Pinedale meeting room.
Thursday’s depositions were to begin with the "SCSO custodian of records." Capt. John Wells signed the subpoena seeking "the case file or investigative file with all documents pertaining to the Hank Ruland incident report #84-394 … pertaining to property damage on 6/20/1984 involving Troy Willoughby (and three other men)."
Next at 9:15 a.m., Sutherland was to bring four sets of "original criminal files … plus, after diligent search, any civil file involving the same people within one year after 6/21/1984" to the Commissioners Meeting Room, according to the subpoena from Willoughby’s attorney.
The next deposition was set for Thursday at 9:30 a.m., for the SCSO (also received by Wells) with the subpoena requesting information about its policies, procedures, guidelines and training and who those would have applied to from 2008 through 2010 "and whether (such policies) applied to the Leadership Team investigating the cold case murder of Lisa Ehlers in2008 through 2010."
Stelting was next, scheduled for deposition at 2 p.m. Thursday, with the subpoena seeking the county attorney’s office position on "disclosure of exculpatory evidence, specifically, any documentation from 2008 through 2010."
The subpoena also asked for any documents, reports, letters, internal memos, emails from the county attorney’s office or former prosecutor McMahon to the SCSO and/ or the Leadership Team that might be considered "exculpatory" for Willoughby, as well as the "topic of undisclosed evidence with respect to Troy Willoughby and the Lisa Ehlers’ murder."
Lastly, Capt. Lance Gehlhausen was told to appear Friday at 9 a.m. to produce recordings and transcripts of recorded interviews in his custody with any witnesses (except Malcolm Scott Willoughby) as well as any communications about "the topic of undisclosed evidence with respect to Troy Willoughby and the Lisa Ehlers murder."