The last of three suspects accused of murder, kidnapping and arson in the 2012 death of Dradrick “Drad” Fleming will be the first to stand trial in the death penalty case, Letcher Circuit Judge Sam Wright has ordered.
Austin L. Ison, 25, of Pert Creek, will be tried March 31, Wright said near the end of a lengthy hearing in Letcher Circuit Court on Dec. 4. Wright also ordered that Ison’s codefendants, 34-year-old James Ray Maggard of Neon and 31-year-old Stephanie Jones Fleming of Millstone, who is Drad Fleming’s widow, be tried together June 23.
All three defendants are also charged with hindering prosecution and tampering with physical evidence in connection with the apparent beating death of Mr. Fleming, whose badly burned body was found near Eolia on June 23, 2012.
Until last week, Stephanie Fleming had also been charged with being a persistent felony offender. However, that charge was ordered dismissed by Wright after defense attorney Bridget Saunders and Commonwealth’s Attorney Edison G. Banks agreed that Mrs. Fleming’s agreement to participate in the state’s “pretrial diversion” program to settle Medicaid and food stamp fraud charges filed against her in 2011 does not count as a previous conviction and could not be used to enhance her punishment if she were found guilty of any of the current charges.
Stephanie Fleming and Maggard were charged with murder on the afternoon of June 23, 2012, after Maggard led police to the location of Mr. Fleming’s body on Black Mountain. Mrs. Fleming and Mag- gard were lovers at the time. Austin Ison was arrested Aug. 9, 2012 after an indictment charging him with the murder was unsealed in Letcher Circuit Court.
Authorities believe that Maggard and Mrs. Fleming — with the help of Ison — plotted to kill Mr. Fleming and make it look like an accident so the couple could be together and the three could profit from two life insurance policies in Mr. Fleming’s name.
Banks, the prosecutor, said during last week’s hearing that Ison’s attorney, James Wiley Craft of Whitesburg, “has made it clear to us” that Ison will not testify in the trial of Maggard and Mrs. Fleming. Banks made the comment after Craft objected to a request by Saunders that Judge Wright order Craft to give her and other defense attorneys “access to Mr. Ison’s psychological records.”
Saunders, who represents Mrs. Fleming, is a death penalty specialist with the Kentucky Department of Public Advocacy. Craft told Wright he objected to Saunders’s motion because Ison “is not a party to their case” and because releasing the medical records would violate Ison’s rights under the federal health privacy law known as HIPAA.
Saunders answered that “the gravity” of a death penalty trial should “outweigh” Ison’s privacy rights. Wright denied the request by Saunders, but said the matter could be revisited if Ison does agree to testify against Maggard or Mrs. Fleming.
“At this point it is not appropriate and is overruled,” Wright said.
Ison became friends with Mrs. Fleming when the two worked together at Pizza Hut in Whitesburg.
Sheriff ’s Lt. Brian Damron testified during a hearing last year that Ison was “privy to a conversation” in which he heard Maggard and Mrs. Fleming discuss killing Mr. Fleming with a baseball bat and making his death look like an accident.
Damron testified in June 2012 that even though Ison told authorities he thought Maggard and Mrs. Fleming were joking about killing Drad Fleming, he believes Ison’s role in the homicide was greater. Damron said that Ison, a mortuary school graduate, told Mrs. Fleming and Maggard the temperature to which a body would have to be burned to reach a stage of cremation that would keep the cause of death from being determined.
Ison voluntarily submitted to a polygraph examination soon after Mr. Fleming’s body was recovered. He also surrendered his laptop computer to allow experts to examine it to see if any research had been done pertaining to the crime.
During last week’s hearing, Commonwealth’s Attorney Banks said the results of that computer search had just been returned earlier that day (Dec. 4) and includes more than 1,000 pages of data.
Attorney Saunders remarked during last week’s hearing that it had been a “tossup” with the prosecution “between indicting Mr. Ison or indicting Jonathan Maggard” so that at least one of them would feel compelled to testify against Stephanie Fleming or James Maggard.
“He (Ison) is part of the reason why my client has been indicted on a charge of complicity,” said Saunders.
Jonathan Maggard, who is James Maggard’s cousin, told police that James Maggard showed up to his place of work at Hubble Mining’s No. 12 mine site near Eolia on the night Drad Fleming was killed. He said James Maggard went inside a guard shack to clean himself up and to change into clothes Mrs. Fleming had brought to him.
The mine site is near the location where Mr. Fleming’s body was found in the cab of his new Chevy Silverado pickup. The truck, which had burned, was found some 80 feet over a Black Mountain embankment. The site is not far from where Mr. Fleming worked as a roof-bolter in an underground mine.
Maggard told Letcher County Sheriff Danny Webb and Sheriff ’s Lt. Brian Damron that he had been acting in self-defense before Mr. Fleming died on the night of June 20, 2012, which is also the last date any of Mr. Fleming’s family members saw him before they reporting him as missing.
Maggard told deputies that events leading up to Mr. Fleming’s death began when the two started arguing on Pine Mountain near Whitesburg, where Maggard said he was walking when Mr. Fleming drove up in his pickup. Maggard said Mr. Fleming got out of his truck and began attacking him with a baseball bat, but that he was able to get the bat away and use it to subdue Fleming instead. Maggard said he remembers waking up from being passed out from exhaustion and then placing a still-breathing Mr. Fleming into the cab of the truck and driving him to Black Mountain. He said that after he reached the location he began to feel sick and got out of the truck to vomit. It was then, he said, that the truck rolled over the embankment and caught fire.
Sheriff Webb and Lieutenant Damron have said that instead of using the baseball bat in self-defense, Maggard used it as a murder weapon after lying in wait outside the Flemings’ home at Millstone until Mr. Fleming returned from a trip to Neon, where he had gone to attend a wake for his late uncle.
Mr. Fleming’s relatives saw him outside the church where the funeral visitation was held, but said he did not enter the building. Authorities say that’s because Mrs. Fleming lured her husband back home so that Maggard could murder him and use an accelerant to burn his body and his truck in a manner that would look like an accident.
Judge Wright also ruled during last week’s hearing that the remains of Mr. Fleming’s truck will be made available for examination by a defense expert, but that a police officer must be at the scene and “remain close enough to supervise” to ensure that no evidence is tampered with.
Wright also ordered prosecutors to provide the defense with a list of police officers who visited the Flemings’ mobile home and any items taken during those visits for investigative purposes.
The ruling was handed down after defense attorney Saunders said evidence that could help Mrs. Fleming prove her innocence is missing.
“There was a piece of exculpatory evidence our client told us about,” Saunders said. “It’s now gone.”
A pretrial conference was set for Jan. 21 to allow the defense to look at all items removed from the home by police.
A separate “discovery conference” was set for March 7 to allow attorneys to examine all transcripts related to the investigation, some that are not expected to be completed until January.
A hearing was also set for Jan. 30 to allow attorneys to question a Kentucky Correctional Psychiatric Center physician who has determined that Ison is competent to stand trial.