Barbara Thayer, the former babysitter for Michele and Calvin Harris, was one of the main witnesses called by the prosecution during the second-degree murder trial for Calvin Harris. Pictured, Thayer enters back into the courtroom on Wednesday to sit in on closing arguments presented by the prosecution. (Photo by Wendy Post)
After over 11 weeks of testimony, 50 prosecution witnesses, a dozen defense witnesses, and days of arguments between the defense and prosecution, the jury in the Calvin Harris second-degree murder trial will enter into deliberations in the Schoharie County Courthouse on Thursday.
But this did not come without more arguments on Wednesday as defense attorney Bruce Barket objected to the prosecution’s arguments within less than one minute of their delivery.
Tioga County District Attorney Kirk Martin began presenting closing arguments, telling the jury that Calvin Harris was Michele Harris’ only known enemy. But then, when he said, “There is no evidence of anyone else having a motive,” the defense immediately and emphatically objected.
The defense argued, outside of the jury, that they had evidence but were not allowed to present it because of a third-party culpability ruling – mainly referring to evidence they claimed to have regarding Stacy Stewart’s involvement in Michele Harris’ disappearance.
The defense said the prosecutor’s statements were “burden-shifting” and “improper.”
“There’s others, and he knows it,” argued the defense, adding, “There is no burden on the defense to prove something else. We weren’t allowed to do it.”
The judge overruled this objection, but did, however, instruct the jury that the defendant is innocent until proven guilty, and that he doesn’t have to prove anything.
The prosecution continued summations, but not without dozens of objections from the defense throughout it.
The prosecution presented a different viewpoint than the defense, stating that the defendant, Calvin Harris, caused the death of Michele Harris and did so with intent to kill Michele Harris.
The prosecution centered their arguments on circumstantial evidence, telling the jury that “The murder did not happen in a shopping mall, it happened in a residence in the hills in a rural area.”
The prosecution then told the jury that the defense wants them to speculate about a shadowy relationship between [Stacy Stewart and Michele].
This drew an interruption and another immediate objection from the defense.
“How can prosecution argue on evidence that wasn’t allowed in because of third party culpability,” said Donna Aldea. She, too, felt that the summations presented by the prosecution were improper.
“We’re never going to win this argument,” said a visibly frustrated Barket, stating that he hasn’t called for a mistrial in awhile.
Judge George R. Bartlett III, who is presiding, struck this particular statement delivered by the prosecution, about the defense wanting the jury to speculate, from the record.
Kevin Tubbs and Stacy Stewart
The prosecution continued their arguments, calling the focus on Stacy Stewart a “house of cards with a link – Kevin Tubbs”.
He told the jury that Kevin Tubbs is not credible, and that there was no way that Tubbs could have seen anything in the early morning hours because of darkness.
The prosecution argued that Tubbs must have known Michele Harris was missing, but for years – did nothing.
“He called the lawyer representing the wealthy defendant, six years later,” said Martin.
Martin also spent time discrediting Tubbs, saying he was divorced, sued by a credit agency, and arrested at a gas station for not paying for his diesel with something other than a check.
Martin also said he changed his affidavit three times, and that the neighbors interviewed said they never saw Tubbs hauling a hay wagon on the morning of Sept. 12, 2001.
“The house of cards fell on Kevin Tubbs,” said the prosecution to the jury.
Barb Thayer and suspicious behavior
The prosecution built a large portion of their case around testimony by the babysitter, Barbara Thayer.
Thayer had informed police throughout the investigation about Calvin Harris’ behavior surrounding Michele Harris’ disappearance. She testified that he did nothing after her disappearance, and that he was in a hurry to get rid of her things – so he must have known she wasn’t coming back.
She was also the first person called by Calvin Harris on the morning of Sept. 12, 2001, and during this trial claimed responsibility for a phone call made from the Harris residence to Michelle Harris’ cell phone at approximately 7:15 a.m.
The prosecution said she would have had time to get ready and go to the Harris home and make the call. The defense had argued that there was no way, from phone records from her own home that showed a call out that morning, that she would have made it to the Harris’ home in time to make that call. She had also testified in an earlier trial that she didn’t make the call.
The Divorce
The prosecution claims that Calvin Harris had the motive to kill Michele Harris as the divorce would have resulted in a substantial amount of money being paid to her, and that she would have custody of the children.
“She [Michele Harris] had a new relationship with Brian Earley and was building her new life,” Martin told the jury.
Martin talked about Calvin Harris’ pattern of control and threats of violence towards Michele Harris.
“The only dangerous thing Michele Harris ever did was try to divorce that man over there,” said Martin, pointing to Calvin Harris in the courtroom.
Martin referred to testimony by Mary Jo Harris in which she told of an incident in 1996 when Michele Harris called her from inside a closet of her home – and she was whispering while Calvin Harris was loading the chamber of a gun.
He also referred to testimony from Shannon Taylor, who stated she received a call from Michele Harris early on and before her disappearance, but no one was on the line. In the background, she testified, she heard Calvin Harris screaming.
Martin also recounted testimony by Michele Harris’ hairdresser, Jerome Wilczynski. Wilczynski testified that Calvin Harris told Michele Harris to “Drop the divorce proceedings. I will [expletive removed] kill you. I can make you disappear. [Expletive removed] you, you [expletive removed], drop the proceedings or I will make you disappear.”
The defense had earlier argued this statement, as the lead sheet from the investigation did not contain these comments during the interview with Wilczynski.
Martin talked about finances, and how Calvin Harris was looking at having to pay $10,000 in lawyer fees, $2,500 on appraisal fees of his business, Royal Automotive, and an additional $400 a week and all of the household bills. A trial date had been set for Oct. 22. Michele Harris was expecting to get a sizeable amount from assets as well.
The prosecution claimed this was motive.
“The last thing the defendant wanted was his finances looked into,” said Martin, who also called the Harris’ marital relationship unhealthy and toxic.
Martin touched on Calvin Harris’ guilt by behavior in that he didn’t look for Michele Harris, and he never asked about Michele Harris.
“He thinks he committed the perfect crime, said Martin, adding, “It was the day of Sept. 11, 2001, and was a perfect time for him to do this.”
The Harris home and the bloodstains
The prosecution claims that Michele Harris went home the evening of Sept. 11, 2001 after leaving her boyfriend, Brian Earley’s house. They claim she parked in the garage, and that Calvin Harris hid and then attacked her in her home.
They claimed he had time to attack her, hide her body, clean up, and then park her van at the end of the driveway before the kids awoke and the babysitter arrived.
Following Michele’s disappearance, investigators found tiny stains of blood in the kitchen alcove, on a rug, and in the garage.
Experts testified throughout the trial, creating some conflict in summations, about the bloodstains and spatter.
Earlier testimony claimed that few of the stains found tested positive for blood, and the DNA wasn’t solely Michele Harris’.
Barket, during his summations on Tuesday, had argued that the blood evidence is not enough to prove the scene of a fatal assault.
But the prosecution presented each area, describing what was tested and found positive for blood and a match for Michele Harris’ DNA.
But as noted earlier, this argument by the prosecution carried some inconsistencies as their own witness testified about areas that tested negative for blood. The prosecutor, however, continued to tell the jury that all areas were a match for both DNA and blood.
Reasonable explanations
The prosecution argued defense claims that Michele had cut her hand in the spring of 2001, and that was how the bloodstains landed in the home. Prosecution witnesses had testified earlier that Michele did not appear to have any cuts.
But the prosecution was persistent in their theory, explaining that the blood was pooled in the garage, where they believe Michele Harris took her final breath.
Martin said that Calvin Harris made some mistakes.
Martin said that Calvin Harris never asked the babysitter if the keys were in Michele Harris’ van at the end of the driveway the morning of Sept. 12, 2001, and when he told Barbara Thayer they had to retrieve it and bring it back to the house.
Martin said that another mistake that Calvin Harris made was when he didn’t wipe up all of the blood.
“The defendant can’t clean the blood off of his conscience,” Martin said to the jury.
Who benefits
The prosecution asked the jury who benefits from Michele Harris disappearing. Calvin Harris does, Martin said.
“Michele wanted a divorce, she threatened his legacy, she was going to get his money, custody of his children, and without Michele in the picture, he would be a part-time dad,” said Martin.
Martin also said that Calvin Harris made plans and went on with his life, because he knew Michele wasn’t coming back.
In summation, Martin said that Calvin Harris picked a good place in all of those barren acres surrounding his land, and he put his plan in motion to make Michele disappear.
Mischaracterization of summations
After the prosecution finished its closing argument, legal arguments continued.
Following the prosecution’s summation, Aida Ferrer Leisenring, who was part of the defense team and hasn’t argued much in the trial, said that Martin’s summation was a mischaracterization in that they based their arguments on things that weren’t true.
As an example, the prosecution told the jury that Calvin Harris vomited in the sink at his residence after he killed Michele.
It was testified to in an earlier trial that the vomit was from one of the children.
“It’s not fair,” said Leisenring. “They get to persuade the jury that he saw a dead body and got sick, when they know that Barb Thayer testified it was one of the children who was sick.”
Leisenring stated this was not fair, that in the segments of 48-Hours this was mentioned and it actually swayed the jurors from a previous trial.
At one point, Calvin Harris stood up and started yelling at the judge for “continuously siding with the prosecution.”
The jury in this trial will be charged and will begin their deliberations on Thursday. If Calvin Harris is found guilty of second-degree murder, he could face a prison sentence of 25 years to life in state prison.
