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Prosecutors ask Gailey to testify against son

Public Defender Koll says conversations with Denis Gailey are privileged

November 3, 2007
By JOHN MOLSEED, Messenger staff writer
Prosecutors in a kidnapping and sexual abuse case are asking the court to order the defendant’s father to testify against his son.

Denis Gailey faces life in prison for allegedly kidnapping his wife and daughter April 25, sexually abusing his stepdaughter and planning to set his Moorland home on fire. Webster County Attorney Tim Schott wants Gailey’s father, local attorney John Gailey, to testify in the trial on the kidnapping. Fort Dodge Public Defender Jim Koll, who is representing Denis Gailey, said those conversations are private and protected under attorney/client privilege.

The issue was one of three motions in the case taken up in a nearly two-hour hearing Friday morning in Webster County District Court.

Denis Gailey faces life in prison on two charges of first-degree kidnapping, one charge of second-degree sexual abuse, four counts of third-degree sexual abuse and one count each of first-degree burglary, second-degree arson and being in possession of a firearm as a convicted felon.

He allegedly kidnapped his wife and daughter and led law enforcement on a high-speed chase northwest of Fort Dodge. The chase ended when the van he was in was forced off the road, according to police reports.

John Gailey took the stand and said that he had been giving his son legal counsel in the sexual abuse investigation and should not have to testify. The exchange between Gailey and Schott became heated.

‘‘You claimed on April 25 that you were Denis Gailey’s attorney in the kidnapping case?’’ Schott asked.

‘‘I don’t know what kidnapping you’re talking about,’’ Gailey said.

‘‘Yes you do,’’ Schott said.

‘‘No I do not.’’

District Court Judge Joel Swanson intervened.

‘‘We all understand what’s going on here. Let’s not play games, Mr. Gailey,’’ Swanson said, ordering Gailey to answer the question.

‘‘I was representing him as his attorney in a pending sexual abuse case,’’ Gailey later said.

Schott pointed out that Denis Gailey indicated he didn’t have an attorney when he made his initial appearance on the charges April 26.

Schott also pointed to a transcript of testimony from John Gailey in a June 8 hearing to determine whether the Fort Dodge public defender would be appointed to represent Denis Gailey.

‘‘Do you remember telling the judge ‘I’m not his attorney. I’m not representing him in any criminal matters?’’’ Schott asked reading from the transcript.

Koll called Assistant County Attorney Sarah Smith to the witness stand and asked her if she had conversations with Gailey leading up to Denis Gailey’s arrest. Smith said that she had talked with John Gailey before warrants for Denis Gailey’s arrest were issued. She also said that she told John Gailey that, at the time, the office hadn’t issued warrants for his son’s arrest. Smith added that she would not have given that sort of information to anyone other than an attorney or law enforcement officer.

John Gailey was accompanied by his attorney, Mark Crimmins, who represents him in another criminal case related to the alleged kidnapping. John Gailey is accused of coercing Denis Gailey’s wife, Dawn Gailey to change her testimony.

Crimmins said that forcing John Gailey to testify in the kidnapping case would violate his Fifth Amendment right to not have to testify against himself.

‘‘They’re asking to violate the two most sacred rights given to person in this country,’’ Koll said of the state’s request to compel John Gailey to testify.

John Gailey faces up to five years in prison on a Class D felony charge of suborning perjury.

Koll said that asking John Gailey to relate his phone conversations with Denis Gailey and describe Dawn Gailey’s state of mind while trying to keep both criminal cases separate could be a legal ‘‘can of worms.’’

‘‘I’m going to have to ask (John Gailey) about relationships and contacts ... and alleged attempts to influence witnesses,’’ Koll said of his role as Denis Gailey’s attorney.

Koll moves to dismiss charges

Later in the hearing, Koll asked that three of the charges against Denis Gailey be dismissed. Koll said that both first-degree kidnapping charges, which are Class A felonies that carry up to life in prison, are too severe. Prosecutors allege Gailey subjected Dawn Gailey and his daughter to torture when he held them at gunpoint April 25.

Koll said that prosecutors haven’t demonstrated how the allegations meet the Code of Iowa definition. Legal precedent established that a perpetrator has to do more than threaten the alleged victim or victims with a firearm.

‘‘On Dawn Gailey we have a threat with a gun at best,’’ Koll said. ‘‘There’s no way that my client threatened (his daughter).’’

Schott countered that Gailey inflicted serious emotional and mental torture on both women, including asking Dawn Gailey how she wanted to die in front of their daughter.

‘‘Does she want it in the head, does she want it in the stomach,’’ Schott said.

Koll also targeted the first-degree burglary charge, a Class B felony that carries up to 25 years in prison. He said the allegation in the trial information doesn’t specify where Gailey allegedly broke in to and who was allegedly present during the burglary.

A person needs to be present in the structure or vehicle a defendant is accused of burglarizing to meet Iowa’s definition of first-degree burglary.

Koll also asked the court to consider releasing Gailey with supervision to the Iowa Department of Correctional Services. Gailey is currently being held on $2.7 million bond, which Koll called ‘‘excessive.’’

‘‘This is the highest bond I’ve ever heard of in this county,’’ he said. ‘‘And no one died, no one was scratched.’’

Schott maintained that Gailey has demonstrated he is a threat to the community if released.

‘‘He planned this out. He stalked the victim when she was picking up the child from school.’’

Swanson will make a ruling on the motions after reviewing the evidence and testimony.

A trial date in the case is tentatively set for January 8.

Contact John Molseed at (515) 573-2141 or />



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