Defense concerned publicity may jeopardize prospects for a fair trial

HONG KONG: An American expatriate serving a life sentence for the murder of her investment-banker husband won her bid for a retrial Thursday.

Nancy Kissel, 45, will be retried on a new indictment of murder. The trial is expected after September, said her lawyer Simon Clarke. Kissel's defense team is expected to argue that intense media coverage would render Kissel's receiving a fair trial in Hong Kong impossible, he added.

Initially unmoved but breaking into a broad smile after Chief Justice Andrew Li delivered his 20-second verdict at the Court of Final Appeal Thursday, Kissel teared up and several supporters from the public galley cried at the news, congratulating her through the bars of the dock.

Her friend Nancy Nassberd told reporters Kissel was "elated". Kissel's barrister Alexander King left the courtroom in good spirits but offered no comment.

In a 111-page judgment, Li upheld the defense argument that testimony addressing Kissel's fair mental state at a bail hearing was unjustly applied to skew her claims of memory loss. The judge added the introduction of the evidence went against the right of defendants to present their bail application without self-incrimination.

Justice Kemal Bokhary wrote Kissel's decision not to call her attending physician to testify was unfairly used by her prosecutors during her cross-examination to prejudice her case in the eyes of the jury.

"The unfair cross-examination went on repetitively and not for hours but for days," he wrote.

Addressing Kissel's second ground for appeal, the judgment also hit out at the prosecution's submission of emails from two hearsay witnesses which were used to suggest Kissel was poisoning her husband and that he prophesized his own death and died because of his failure to follow up on his suspicions. Li added the trial judge also failed to intervene to counteract the "grossly prejudicial" and improper submission.

The Justices also agreed Kissel's judge misdirected her jury with Li writing the judge's interpretation that anyone acting out of revenge or retaliation or from spite or anger nullified any plea of self-defense was "too absolute" and should have been tailored to the specific facts of Kissel's case.

Kissel will remain in custody pending a bail application.

Only allowed two visits a month under the terms of her incarceration, Kissel will now be allowed daily visitors with more access to media, Clarke said.

The case was dubbed the "milkshake murder" by the media in a sensational series of trials through an initial 2008 failed appeal and Thursday's development, with prosecutors arguing that Kissel drugged her Merrill Lynch senior banker husband Robert Kissel with a sedative-laced strawberry milkshake before the homicide and kept his body in a rolled up carpet until police uncovered the corpse in a storage room.

(HK Edition 02/12/2010 page1)