Milkshake murder conviction quashed
By Olivia Chung
HONG KONG - Nancy Kissel, the American banker's wife serving life in prison for
the "milkshake murder" of her husband, had her conviction thrown out on
Thursday by Hong Kong's highest court in a dramatic turn in one the territory's
most sensational trials.
The Court of Final Appeal said in its judgment there were "numerous elements of
grave concern" when reviewing the case to decide if Kissel had received a "fair
trial". "The court unanimously allows the appeal, quashes the conviction and
orders a retrial," chief justice Andrew Li said. "It is plainly in the
interests of justice that there should be a retrial," the judgment said.
Kissel was sentenced to life in prison in 2005 for killing her husband and
fellow American, Robert Kissel, after a trail that
rocked Hong Kong and its expatriate banking community. Kissel, now 45, was
dubbed the "milkshake murderer" after being convicted of giving her husband,
Robert, a sedatives-laced strawberry milkshake and then bludgeoning the senior
investment banker with Merrill Lynch to death in 2003.
The court said prosecutors had used illegal evidence in the trial, but ordered
that the mother of three be kept in custody pending a bail application ahead of
her second trial. "Mrs Kissel killed Mr Kissel. That much is not in dispute.
But was the killing certainly murder or might it have been in self-defense?"
the court said in its judgment.
Kissel, looking frail in a wheelchair and dressed in her trademark black,
barely reacted when Li read out the court's brief conclusion toward the end of
the 111-page judgement.
She only broke into a smile when Alexander King, one of her barristers,
approached to confirm to her what Li had read out. It was her last chance to
appeal her conviction.
It was clear Kissel had concealed her husband's body after killing her husband,
the court said. "But is it certain that she did that to hide a murder? Or might
it be that she panicked and tried to hide the fact of the killing even though
it had been in self-defense?
"The question is not whether a reasonable hypothetical jury that had sat
through a fair trial free from any material irregularity and had been properly
directed could, or even probably would, convict," the court said. "It is
whether such a jury would inevitably feel sure that Mrs Kissel was lying from
start to finish and that she had planned and carried out a coldly calculated
murder."
During the 2005 trial, Kissel, a native of Minnesota, said she killed her
husband in self-defense because he was wielding a baseball bat. She described
her fear of the 40-year-old banker, saying he was a violent, whisky-drinking
workaholic who snorted cocaine and forced her to have painful anal sex.
Prosecutors said Robert Kissel found out his wife was having an affair with a
TV repairman in the United States and had planned to seek a divorce just before
she killed him. She drugged him using a milkshake laced with the "date-rape
drug" Rohypnol and hours later bludgeoned him to death with a metal ornament in
the bedroom of their luxury apartment in Hong Kong, prosecutors said. She
wrapped the body in a rug and asked maintenance workers to take it to a
storeroom, according to the prosecution.
Robert Kissel had hired a private investigator to track his wife's movements in
the US - where she went during the SARS outbreak in Hong Kong in 2003 - and had
installed spyware on her computer and told friends he feared his whisky was
drugged. His estate was worth US$18 million in life insurance, stocks and
properties, according to prosecutors.
Simon Clarke, Kissel's lawyer, told reporters that her legal team was
considering asking for a permanent stay of proceedings on the grounds that it
would be impossible for her to have a fair trial following media coverage of
the case.
"Basically, we are saying 'Can the milkshake murderer get a fair trial in Hong
Kong'? Probably not," Clarke said. He said he didn't expect a retrial before
September. Kissel could walk free if the court granted the request.
Samra Geertruida, a defense witness, said she and Kissel's other friends were
"very pleased" and would immediately apply for bail for her. "Justice has
finally been done," said Geertruida, who described Kissel as "spiritually fine,
although her body is weak".
Kissel's conviction was upheld in 2008 after her first appeal and she was
granted leave for her second appeal on February 10 last year.
Representing Kissel at the Court of Final Appeal in January, senior counsel
Gerard McCoy argued the prosecution had broken evidence rules in applying a
proviso from a separate bail proceeding in November 2004, which attested
Kissel's sound mental health.
At the 2005 murder trial, prosecutor Peter Chapman used the material in
cross-examining Kissel about her mental state. Chapman had tried to use the
material to discredit her claim of having an unsound mind when she claimed to
be under mental duress from years of abuse at the hands of her husband.
Chief Justice Li said the proviso could properly be applied to the Kissel case.
"Mrs Kissel's case wholly depended on her credibility. Her marital infidelity
was relevant to a possible motive for murdering her husband. But if her account
of the history of the marriage is true, some people might say that she had to
some extent been driven to that infidelity ... Applying the proviso would be to
pronounce that Mrs Kissel must have been lying, so pronouncing without
having seen or heard her."
"The proviso is an instrument of justice. As there have been in the past, there
are likely to be in the future many cases in which it would be appropriate to
apply the proviso. But the present case is not such a case. Accordingly, I
would allow the appeal to quash the conviction," said the judgment.
In 2006, another tragedy hit the Kissel family when Robert's brother, Andrew,
was found stabbed to death in his Connecticut home.
Olivia Chung is a senior Asia Times Online reporter.
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