BOSTON — The lawyer for a former Andover plastic surgeon convicted of killing his estranged wife's lover nine years ago argued in state court yesterday that his client deserves a new trial even though he has already served his prison sentence.
It is the third time that James Kartell has tried to win a new trial in the shooting death of Janos Vajda on Feb. 23, 1999.
Kartell was released from the Pondville Correctional Center on Oct. 2 because he had completed his eight-year sentence for voluntary manslaughter. Kartell has moved back into the Brady Loop home in Andover he once shared with his now ex-wife.
Kartell's lawyer, Michael Traft, argued before the state Appeals Court in Boston yesterday that certain testimony shouldn't have been admitted, and if that testimony were left out, he said the jury would have found that Kartell shot Vajda, 56, in self-defense.
According to evidence presented at his trial, Kartell entered Holy Family Hospital in Methuen with a loaded gun and extra ammunition. Vajda was visiting Kartell's wife, Dr. Suzan Kamm, who was hospitalized with pneumonia. The two men got into a fight during which Kartell shot Vajda in the stomach and then execution-style in the back of the head.
"In Massachusetts, we have a tradition of reviewing cases to ensure that justice has been done," said Traft, who is with the Boston-based law firm Carney & Bassil, adding that the critical issue in this appeal is "is this a person who didn't know when to stop?"
Traft said yesterday that two statements in particular that Kamm made to a nurse wouldn't have been admitted under a recent Supreme Court ruling, and that ruling should be applied retroactively. Kamm told a nurse who testified at the trial that Kartell said, "Now I'm going to get you," after shooting Vajda once. He also cradled Vajda in his arms after he shot him and asked his estranged wife to "look at him now."
A 2004 Supreme Court ruling — Crawford v. Washington — said that defendants have a constitutional right to question witnesses whose statements will be used against them. Defense attorneys couldn't cross-examine Kamm about her statements because she invoked spousal privilege and didn't have to testify in the case.
"There's no basis for a new trial," Assistant District Attorney Catherine Semel said. "Crawford should not be applied retroactively."
The panel of three judges had numerous questions for Traft. They had only one for the prosecution — if Vajda died from the first or second gunshot.
"The defendant testified. (The jury) heard what he had to say," Justice Joseph A. Grasso said. "If they accepted the defendant's testimony, he walks. If they accepted the defendant's testimony, it's self-defense."
Grasso added that "there were other witnesses as to what the defendant had said."
Justice Christopher J. Armstrong seconded his point.
"Wasn't there also evidence, aside from these statements, that the victim was no longer attacking the defendant after the first shot was fired? Wasn't there other evidence that he was just lying there at some point?"
The justices set a deadline of four months to decide if Kartell should be retried.
Traft said Kartell's goal is to have the voluntary manslaughter conviction reversed and a new trial scheduled. Even if Kartell receives a new trial and is convicted, he wouldn't go back to prison because he has already served his entire prison sentence and would get credit for time served, Traft said.