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Judge hands Cusick a setback in Ottawa drowning case

OTTAWA — Accused killer Kenneth Cusick still can raise the issue of why state’s attorney Karen Donnelly made prosecuting him a campaign pledge, but now there’s a risk:

Donnelly, a judge ruled Thursday, could discuss a 2011 coroner’s jury that ruled Tracy Lynn Cusick died as the result of a homicide.

Cusick appeared Thursday for a status hearing on his upcoming murder trial. He would face 20-60 years in prison if convicted of murder for allegedly drowning wife Tracy Lynn in a home toilet in 2006. Jury selection is scheduled to begin Dec. 2.

Earlier in the case, Cusick and Ottawa defense attorney had argued that Donnelly, during her 2016 campaign for state’s attorney, had pledged to get an indictment into Tracy Lynn’s death. That, Hamer argued, is something the jury should hear about. Raccuglia agreed.

Now, however, Donnelly is prepared to say she simply was following up on a coroner’s inquest from 2011 under then-coroner Jody Bernard. There, a jury heard evidence that it’s impossible for an adult to accidentally drown in a home toilet.

Over Hamer’s objections, Judge Cynthia M. Raccuglia agreed that Donnelly can, if ordered to take the stand, cite the coroner’s verdict as a reason why she re-opened the Cusick case.

“And that’s a hell of a good reason,” the judge noted.

That leaves Cusick and Hamer with a potential Catch-22: They still can question why Donnelly pledged to get an indictment, but at the risk of the jury learning about a coroner’s verdict that otherwise wouldn’t get a mention at trial.

Hamer also struck out on a second matter. He asked Raccuglia to re-think an earlier ruling in which she held jurors could hear about an allegation of domestic abuse from 2004. Though charges weren’t filed, Kenneth Cusick gave a potentially incriminating statement prosecutors want to use.

Raccuglia clarified that she didn’t rule that domestic abuse had taken place, but stood firm in her ruling that prosecutors could pursue it at trial.

The remainder of the hearing was devoted to settling disputed autopsy photos. The judge admitted most of the photos, noting that modern juries see graphic images on TV and in the news and are less likely to be offended or repelled than in past generations.

Lawyers aren’t finished arguing pre-trial motions. They will be back Nov. 27 for a final pre-trial conference. Raccuglia had stated previously she means for this trial to proceed in early December.

Tom Collins can be reached at (815) 220-6930 or Follow him on Twitter @NT_Court.

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