VALPARAISO | Dustin McCowan has failed in his first shot at overturning his 60-year sentence and conviction for murdering former girlfriend Amanda Bach.
Porter Superior Court Judge Bill Alexa on Friday tossed out claims that he erred by not stepping aside after learning about a telephone call with McCowan from the jail that included derogatory and threatening remarks about prosecutors, police and their family members.
Public defender Mitch Peters argued 20-year-old McCowan's original defense team did not know about the call until Alexa commented on it during sentencing or it would have asked the judge to recuse himself.
The judge mentioning the call indicated "a personal prejudice and animosity against the defendant," Peters said.
Alexa said in his Friday order that the court is made aware of any potential threats involving staff or participants in order to determine whether there is a risk to personal safety. That is what occurred in this case, and Alexa said he determined there was no threat.
This type of communication is carried out for safety reasons and does not require recusal, he said.
Alexa also said in his order that Peters filed the challenge April 18, before a written transcript was even available of the March 28 sentencing hearing.
According to Friday's order, Alexa had said during the sentencing hearing that McCowan said no when it was suggested during the recorded telephone call that it would be appropriate for prosecutors' children to be killed "so that they would know what this is all about." As a result, Alexa said he did not take the call into consideration when he decided on a sentence.
The call in question was between McCowan and an unnamed person.
Peters has said this failed motion to correct errors was a prerequisite for appeal when addressing newly discovered evidence that could not have been discovered at the time of trial. He reserves the right to take up other issues on direct appeal, but first must review the record considering he did not represent McCowan at the time of trial.
A jury found McCowan guilty in February of shooting his former girlfriend, 19-year-old Bach, of Portage, in the throat during the early morning hours of Sept. 16, 2011, after she showed up at the Union Township home he was living in at the time with his father.
Bach's partially clothed body was found the next day, less than 300 yards from the house in a wooded area along County Road 625 West at the Canadian National Railroad tracks.
McCowan, who has maintained his innocence, has been transferred to the Pendleton Correctional Facility to begin serving his time. He is listed on the DOC's online offender search site with a release date of Sept. 17, 2041.