Dunlap competent to stand trial; Woodall to hear case

Above, From left, seated at the defense table are attorney James Gibson, Kevin Wayne Dunlap, and attorney Jason Pfeil. Security officers stand behind the table.-Bobbie Foust/Herald Ledger

Kevin Wayne Dunlap is competent to stand trial on charges of murder, attempted murder, rape and arson. His trial will go forward Feb. 9, and Circuit Judge C.A. Woodall III will hear the case.
Dunlap, 38, of Hopkinsville is charged with the Oct. 15, 2008 murders of Trigg County siblings Kayla Williams, 17, Kortney McBurney-Frensley, 14, and Ethan Frensley, 5, and the assault and attempted murder of their mother, Kristy Frensley, 37, in their Roaring Springs home.
He also is charged with setting fire to their home with them inside. Kristy Frensley escaped and was found in the pool by first responders.
Woodall ruled Dunlap competent to stand trial and assist with his own defense Friday after hearing testimony from Dr. Amy Trivette, a psychiatrist at Kentucky Correctional Psychiatric Center in LaGrange.
Trivette testified that she evaluated Dunlap at the center. She said he wouldn’t talk about his case, but tests involving a hypothetical case showed he understood the nature of the charges and the potential consequences. She said Dunlap exhibited anxiety and symptoms of depression for which she prescribed medications.
The hearing was conducted in Livingston Circuit Court where the case was moved on a change of venue from Trigg County.
Woodall, who has heard the case since Dunlap was indicted, denied defense motions to continue the trial indefinitely and for the judge to recuse himself because he had presided over Jeffery and Kristy Frensley’s divorce and custody of Ethan.
Defense attorney James Gibson said the defense needed a delay to allow time for its private laboratory to perform DNA tests on seven pieces of evidence. But Commonwealth Attorney G. L. Ovey objected saying this is the 11th hour, the defense gave no time frame regarding how long the tests would take and the defense has already had a three-month delay for the same purpose.
The trial was originally scheduled for last November, but Woodall earlier granted the three month delay to accommodate private testing of the DNA samples.
Gibson argued that he had two reasons for asking for a continuance:
 The DNA testing is not complete and after it is completed, it will require peer review.
 A more complete investigation is needed into Dunlap’s neurological condition.
He argued that the prosecution has had 11 months for its testing and the defense has had only a month and a half.
Ovey countered that the prosecution had to test numerous items while the defense has only seven.
Gibson also cited Trivette’s testimony that a computer tomography (CT) scan of Dunlap’s right frontal lobe at the psychiatric center showed two tiny white spots. She said a radiologist had recommended an MRI (magnetic resonance imaging) scan, and a PET (position emission tomography) scan. However, she testified that anything the tests might reveal would not likely affect her opinion that Dunlap was mentally competent.
Gibson claimed the defense will not be ready by Feb. 9, and going forward with the trial will violate Dunlap’s constitutional right to a fair trial.
“To me, it’s more important to have a fair trial than a fast one,” Gibson said.
Ovey countered that the tests the defense cited do not require a long time. “These are not tests that take forever,” he said.
Woodall deferred ruling on the neurological examination, MRI, and PET scans until he hears from the defense’s mental health expert.
Regarding the defense motion that he step down, Woodall said though he presided over the Frensleys’ divorce and the custody of Ethan, it would not affect him in this case. He said the facts cited by Gibson speak for themselves, and the timing of the custody case just 15 days before Ethan’s death as stated by the defense is correct.
Gibson argued that the prior case might have biased the judge in favor of the victims and that Ethan Frensley’s death might have had a psychological effect on Woodall.
“I think the death of any child would affect anyone,” the judge said, noting that if he had it to do over, he would disclose the information about the custody case earlier. “It’s not unusual for litigants to appear before me in different cases. ... I don’t know the Frensleys outside the courtroom.”
Woodall added that his only bias “is in Mr. Dunlap’s favor.”
“He is presumed innocent until proven guilty,” the judge said.
Woodall also:
 Denied a defense motion to prohibit Dr. Emily Craig, state forensic anthropologist, from testifying regarding her findings at the crime scene.
 Granted a defense motion that prosecutors disclose any promises made to two of Dunlap’s former cellmates to whom he reportedly talked about the crimes.
Ovey said no promises were made and he did not plan to call either of the former cellmates to testify.
 Decided to rule on whether the jury is allowed to see graphic photographs one at a time after prosecutors decide which ones they plan to use at trial.
Ovey has said there are thousands of photos.
 Denied a motion to require prosecutors to provide the defense with a list of potential jurors with whom they have relationships.
Ovey has said he will divulge any such relationships during voir dire (jury questioning).
 Defered ruling on a motion to prohibit testimony about someone reportedly watching the Frensley home until Ovey decides whether he will bring it up.
Ovey said he hadn’t planned to bring it up, but because of the motion, he’s going to look at it again.