Cargill famously admitted in 2012 to having burned the dead body of Cherry Walker. She has steadfastly maintained her innocence as far as actually killing Walker.
Cargill has always said she burned the body because she was scared due to Walker having been subpoenaed to testify against her in a child custody case. She told jurors during her trial that she was worried the perceived motive would cause people to assume she had murdered Walker if she had simply gone to a hospital.
An application for a Writ oHabeasus Corpus filed by Cargill's attorneys seeks to vindicate Cargill's claims.
"What was remarkable about Kim's case was that there was no cause of death identified by the medical examiner," attorney Derek VerHagen with the Office of Capital Writs said. "Yet she was still tried and convicted of capital murder."
"I'm telling you the truth here today," Cargill told jurors in 2012. "She started to have a seizure."
The writ is similar to an appeal. In this case it's focused on new evidence from a Epilepsy specialist--a Dr. Samden Lhatoo--who believes Cargill's story lines up exactly with a rare phenomenon called Sudden Unexpected Death Epilepsypsy (SUDEP).
"Through vigorous cross-examination for over a couple of days, she stuck to her guns about what happened and we have a nationally renowned expert saying 'Yes, that is supportable,'" Brad Levenson with the Office of Capital Writs said.
Levenson and attorney Derek VerHagen want Dr. Lhatoo to testify in the same court where the trial happened, in front of the same judge. The crux of their argument is that Cargill's original defense attorneys knew about Dr. Lhatoo from the beginning and should have put him on the stand back then.
"They put their client, Ms. Cargill, on the stand and didn't support it with an expert who could have, in our opinion, convinced a jury, at least one juror, that Ms. Cargill was innocent," Levenson said.
"It feels good to her to actually be, you know, believed by someone," VerHagen said. "And to have someone validate what she's always maintained to be the truth."
Prosecutors argue that Smith County's 241st District Court isn't the appropriate place for such testimony at this point. They believe rulings from the state's top criminal court have already made it clear that new evidence belongs in an appeals court (as opposed to a trial court).
The District Attorney's office filed a response with the court asking Judge Jack Skeen Junior to limit his fact-finding to affidavits filed by the original trial attorneys. And that's what the judge ordered.
Smith County District Attorney Matt Bingham, who tried the case and continues to hold office, issued the following statement:
"Kim Cargill was convicted by a Smith County jury of Capital Murder and sentenced to death based on the overwhelming evidence, including DNA evidence, as well as her own admissions regarding her dumping and setting the body of the mentally retarded victim on fire in order to destroy evidence.
"Cargill has been afforded every right under the law to which she is entitled, during the trial of the case and the during the appellate process. Judge Skeen carefully followed the law, during not only the trial of the case, but also in his consideration of the 11.071 writ filed by the defense.
"The facts at trial showed the extreme brutally and heinous nature of this crime and what Kim Cargill is capable of doing to another human being. At all times, during the trial of the case and now, the parties involved and the Court, want to insure that Cargill is afforded all the rights she is entitled to under the law in the prosecution of this case."
"This is a very strong case."
Levenson and VerHagen believe the new evidence goes hand in hand with any argument about ineffective trial attorneys, and they want it heard in court.
"It would seem a no-brainer that the state would want to entertain thevidencence to make sure they got that convenience right and that an innocent person is not put to death by the state," Levenson said.
Levenson and VerHagen said they plan to keep fighting to have the new evidence heard. If not, they've at least established their efforts as part of the case's record in case a higher court is more sympathetic.
