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McClellan: Case is resolved — but not the issues

McClellan: Case is resolved — but not the issues

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This is the second of two columns on Rebecca Callaway. The first ran Wednesday.

As the spring of 2011 turned into summer, Rebecca Callaway sat in the Lincoln County Jail charged with second-degree murder in connection with the death of Crystal Cagle.

Callaway had admitted injecting Cagle with heroin. She told police she had done so at Cagle's request.

Also charged with murder was Travis Tippit. He had admitted buying the heroin.

The decision to charge Callaway and Tippit was made by Lincoln County Prosecuting Attorney Leah Womack Askey.

While prosecutors in Illinois regularly pursue murder charges in overdose deaths, their counterparts in Missouri have been more reluctant to do so.

The argument is as much philosophical as legal. Who is the responsible party in the case of an overdose? Is it the person who willingly took the drug? Or does the blame belong to the drug dealer? Or to a fellow drug user who bought the drug and shared it with the person who overdosed?

The questions are being asked with increasing frequency because cellphones, now ubiquitous, make it easy to trace the final conversations of overdose victims. Often, those last calls were made arranging a drug buy.

Phone records were not necessary in Cagle's case.

Callaway called 911 herself. But by her own admission, she did so about 36 hours after putting Cagle in a bathtub.

That would not play well to a jury. Had Callaway called for help earlier, perhaps Cagle would not have died.

In July 2011, two things happened to change the course of the case. First, Callaway made $100,000 bail. It cost her father $8,000. By making a bail that size, she lost the services of the public defender.

Out of jail but with little money, Callaway asked the public defender if he could recommend a good young lawyer. He recommended Mayra Flesner.

Flesner was a 2010 graduate of the St. Louis University School of Law. While she had handled several drug cases in her private practice in St. Charles, none had gone to trial.

Her only trial experience was when she worked as an intern with the public defender while going to law school. She had assisted with a DWI case.

She told Callaway that she was inexperienced, but hard-working and not afraid to ask for advice. Callaway hired her.

A week after Callaway was released from jail, Tippit, who was also free on bond, died of a drug overdose. If the state was hoping to turn one defendant against the other, that hope was gone.

The initial report from the coroner had indicated Cagle's cause of death to be multiple organ failure due to poly-drug intoxication. Callaway said that Tippit and Cagle were gone for several hours before the three of them did the heroin. No one was alive to dispute that. Maybe the drugs Cagle consumed in that earlier time period contributed to her death.

The autopsy report would be crucial.

Flesner went to experienced lawyers for advice. She consulted with Charlie James in St. Peters and Tom Gabel, the former longtime public defender from Lincoln County. He is now a federal defender in East St. Louis.

Flesner tried unsuccessfully to get Callaway's confession thrown out. Discovery dragged on for months.

Flesner said Askey offered a 15-year sentence if Callaway would plead guilty. Flesner turned the deal down. Askey did not return phone calls for this story.

In June of this year, Askey informed Flesner that there was no autopsy report. No autopsy had been done.

In Askey's defense, she took office in January 2011. Cagle died in early February. Perhaps Askey had assumed that an autopsy would be done.

With the news that there was no official cause of death came a new offer. Probation in return for a guilty plea.

Callaway is 60 years old. She is on disability. A felony conviction would mean nothing. She told Flesner to take the offer.

But Judge Dan Dildine refused to accept the deal. He said he would not grant probation in a murder case.

Flesner said she and Askey met with the judge, and each explained the weaknesses of their respective cases. The prosecution had a confession, but no heroin, no paraphernalia and no autopsy. The defense had an unsympathetic defendant who had left Cagle in a tub for 36 hours.

The judge reconsidered, and late last month, Callaway pleaded guilty of second-degree murder and received probation.

"I think about her every day," she said of Cagle. "I feel bad about what happened, but I did not kill her."

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