Thursday, June 22, 2000 Older Editions

Murder-trial jury enters third day of deliberation Wednesday to decide: James Kartell, free man or convict?

By Neil Fater

Twelve jurors entered their third day of deliberation yesterday, Wednesday, pondering whether Andover surgeon James Kartell shot his wife's lover, Janos Vajda, to save himself from harm, or in a calculated move to save his marriage.

Following closing arguments Monday, Judge Isaac Borenstein told the jurors they can deliberate from 8:30 a.m. to 4 p.m. each day until they reach a verdict.

The jury spent a quiet Monday afternoon, Tuesday and Wednesday morning until Townsman press time behind closed doors, rarely venturing from the room.

It will decide if Kartell is guilty of first-degree murder, second-degree murder or voluntary manslaughter, or if he was a victim himself, who fired his gun twice in self-defense.

During closing arguments Monday, the lawyers for both sides tried to convince the jurors to take back a wildly different picture of James Kartell with them into their deliberations.

"There's probably nothing more important than being a juror in a murder trial," said J.W. Carney, Kartell's defense attorney. "And to me there's nothing more stressful than to be a lawyer representing an innocent man."

Walking behind the defendant's table, Carney stood behind Kartell and said, "This is not a man who's a murderer."

Carney described Kartell as a sad man who was more prone to talking about his marital problems than he was to violence.

However, Prosecutor Fred McAlary said Kartell was not just a man depressed over losing his wife, but an angry man who went to Holy Family hospital with a carefully considered plan -- a plan for murder.

Though Kartell had supposedly lost 50 pounds in the weeks before the shooting to impress his wife, he wore large, eight-year-old tailored pants to the hospital that night, said McAlary.

"He didn't put these on as a fashion statement. He put them on because he was on a mission," said McAlary. "Because the bagginess of these pants will conceal a weapon."

McAlary noted the pants also had a special, hidden pocket sewn into them to hold a "speed strip" -- extra bullets.

"He's never fired this gun in 20 years. What does he need a back-up round of ammunition for?" asked McAlary.

Looking to prove premeditation, McAlary said that two hours after the shooting, Kartell's blood alcohol level was .035.

McAlary suggested that Kartell had tried to find "a little courage in a bottle" before heading over to Holy Family. Kartell then provoked a fight by telling Vajda to leave his wife Suzan Kamm's hospital room, throwing Vajda's jacket into the hall and pushing Vajda.

By contrast, in his opening statements, Carney had tried to portray the deceased Vajda as the man with anger issues, referring to his "pent-up rage," and suggesting he was "insulted that this wimp," Kartell, would tell him to leave the room.

He said both shots, the first to Vajda's stomach, and the second to the back of his head, were done in the heat of a struggle.

Pantomiming the numerous blows Kartell allegedly suffered at Vajda's hands, Carney told jurors of the "windmill" of punches a near-defenseless Kartell withstood before firing his fatal shots.

"Every person in this country has a right to protect him or herself. What happened that night was a mugging," Carney later added. "Whether that assault takes place in an alley or a hospital room, the law says you have a right to use deadly force to stop it."

McAlary argued there was little medical evidence to support this claim, and noted that no one in the crowded hospital that Kartell worked in and was familiar with heard him call for help.

But while McAlary tried to show a pattern of growing hatred toward Vajda by Kartell, Carney downplayed that Kartell had referred to Vajda by names such as "Super Jew" and "swine" in conversation. He said many people have a name for someone they do not like.

Carney also compared Kartell's statement in the months before the murder that he "could kill" Vajda to an expression such as "I could kill Billy. Did you see the mud that he tracked in on the rug last night?"

While McAlary would later ask jurors to think about who had more to gain by lying, Carney asked the jury to consider if some of the prosecutor's witnesses seemed "defensive and combative" on the stand. Carney accused witnesses of saying something different on the stand than they had said either immediately following the shooting, or during earlier statements.

Kartell's story never changed, he said.

In response, McAlary began his closing statements by trying to dismiss the idea that there was any kind of conspiracy by the prosecution. If anything, hospital workers would probably bend the truth in favor of Kartell, who worked at the hospital, he said.

"Using your common sense, who had the most to gain by not telling the truth?" asked McAlary. "If they were going to be biased toward anyone, why would they not be biased toward him?

"They came forward to see that justice is done," he said.

McAlary also used several minutes of his closing to question this contention that Kartell had no choice but to fire the weapon.

While Carney had asked during his closing statement, "What makes someone put a 60-year-old man on the floor and just keep punching him?" McAlary told jurors that according to Kartell's driver's license, Kartell was only three years older and three inches shorter than Vajda. At one point during the past few years, Kartell weighed more than Vajda, said McAlary.

McAlary asked jurors why there was no evidence of a punch to the back of the head if Kartell had been "sucker-punched," as the defense claimed. He asked why there weren't more than six bruises on Kartell's body if he had suffered the type of beating claimed.

"Mr. Carney was very dramatic about these punches, (saying) they were like a windmill. Where was the evidence of this? What do the medical records have to gain? The defendant has a great deal to gain," he said.

McAlary also asked whether there was any evidence that Kartell's head had been bounced "like a basketball" as Kartell had claimed when he testified the previous week. A beating like that would leave some abrasion, said McAlary.

McAlary tried to discredit the suggestion that Kartell and Vajda continued struggling after Kartell fired his first shot into Vajda's stomach. The prosecutor reminded jurors that a doctor had described the damage to the aorta caused by the first shot as being like a water-main break.

If Vajda was still wrestling and punching Kartell after this first shot, as the defense claimed, Kartell's clothing would have been stained, he said.

"Where is this blood of this vicious attacker on this shirt?" asked McAlary, displaying to the jury the shirt Kartell wore that day. "There isn't any."