Whitesburg KY
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New trial delayed for accused foster child killer

The retrial of a Letcher County man accused of murdering his foster child has been continued until January because two members of the jury panel are witnesses in the case.

The new trial for Jeffrey Allen, of Sandlick, was scheduled to begin August 24 in Letcher Circuit Court. Allen was sentenced to 50 years in prison in 2006 after a jury found him guilty of murdering a 2- 1/2 year old foster child who was in his care. On January 22 the Kentucky Supreme Court denied Kentucky Attorney General Jack Conway’s petition asking it to reconsider its earlier opinion which reversed one part of Allen’s conviction, affirmed two other parts, and still ordered the case sent back to Letcher Circuit Court for retrial.

“It would not have been possible to select a jury from the current panel due to at least two of the jurors being material witnesses in the trial,” said Letcher Commonwealth’s Attorney Edison Banks. “In addition, the current panel has several members who are social workers, hospital employees, the niece of one of the material witnesses and a sister of another. In fact, the father of our victim, Dakota Yonts, had originally been told he was to serve on the jury and one of the former attorneys for the defendant remains on the jury.”

Banks said if he had tried the case this week “any conviction would likely have been dismissed and likely ordered not to be retried by the Kentucky Supreme Court.”

“Because of these several issues (Letcher Circuit Judge Sam Wright) wisely continued the trial in the interest of justice,” said Banks. “The judge has indicated he will reschedule the trial to January 2010 when a new jury is selected.”

The Supreme Court handed down its initial ruling ordering the new trial in June. Four justices voted in support of the ruling, holding that jurors may have become prejudiced against Allen after they were improperly allowed to hear recordings of two nonemergency telephone calls to E- 911 officials in Hazard. Three justices, including Will T. Scott of Pikeville, joined in a dissenting opinion which said that Allen’s conviction should stand because the admission of the 911 tapes was “harmless” error.

The case against Jeffrey Allen began on the night of March 27, 2003, when Dakota Yonts, appearing frail and badly bruised, was pronounced dead at the Whitesburg hospital. Dakota had been taken to the hospital for treatment after Allen’s wife, Eugenia, returned from a shopping trip in Hazard to find her husband sitting on a couch holding the baby, who was not breathing.

During Allen’s long trial in Whitesburg, prosecutors sought to prove — and jurors ultimately agreed — that Dakota, a child small for his age who had been diagnosed with failure to thrive, died of injuries he suffered after Allen used physical force while attempting to get Dakota to be quiet so that Allen could enjoy a hotly-contested NCAA Tournament basketball game between the Kentucky Wildcats and the University of Wisconsin.

Emergency medical workers who tried to revive Dakota, including nurses at the Whitesburg hospital, said the injuries that killed the baby could not have been caused by Dakota’s young siblings or another foster child, as Allen had claimed. State medical examiners also testified that the injuries which killed Dakota were too severe to have been caused by a child.

In granting Allen a new trial, the Supreme Court held that Letcher Circuit Judge Sam Wright erred when he allowed into evidence the recordings of two phone calls made to E-911 officials after Dakota had already been pronounced dead at the hospital.

In one of the calls, a nurse who tried to revive the baby could be heard telling the 911 operator that Allen’s story about what happened to Dakota did not “fit,” and that she thought the fatal injuries had to have been caused by an adult. The other call was made by an unidentified City of Whitesburg police officer who told the 911 operator that “it was the foster parents” who caused Dakota’s death and asked that a Kentucky State Police detective be sent to open a murder investigation.

“Here, the trial court failed to recognize when the calls to 911 ceased to address an ongoing emergency situation, and instead became testimonial statements,” the court wrote in its majority opinion. “The phone call by the police officer clearly goes beyond the intent of what the 911 line is to be used for, namely for reporting emergency situations, and segues into testimonial speculation concerning culpability.”

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