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WILKES-BARRE — The Wilkes-Barre Township mother convicted of trying to kill her two children has filed an appeal for a new trial due to alleged errors by the judge.
If her appeal is upheld, it would lead to Melissa Scholl’s third trial for the same case.
Scholl, 34, was found guilty in September of attempting to asphyxiate her children in the back seat of her car along Blackman Street in December 2015. Investigators found a garden hose running from the exhaust pipe of the car to one of the windows.
Last month, Scholl was sentenced by Luzerne County Judge David W. Lupas to 10 to 30 years in prison. Scholl’s defense attorney, Larry Kansky, said after the sentencing that an appeal had already been written.
On Tuesday, that appeal was filed in county court, accusing Lupas of making several errors which Kansky said should allow his client another trial.
Most of those alleged errors stem from the way evidence was handled, Kansky’s appeal says. He also continues to argue one of the prosecution’s witnesses perjured herself.
One of the key pieces of evidence against Scholl were screenshots of text messages that prosecutors said were sent by Scholl to her mother in which she wrote of her plans to kill herself.
Kansky argues this evidence was improperly used, as none of the screenshots included a time stamp. Without the time stamp, Kansky argues, it cannot be determined when Scholl wrote the texts. Kansky pointed to other cases in which text messages without a time stamp were not admitted as evidence.
Kansky also claims the texts were retrieved through an illegal search. After a search warrant was filed shortly after the incident, investigators were unable to extract text messages from Scholl’s phone due to software limitations.
The text messages were eventually extracted in June 2017, which Kansky argues was outside of the scope of the initial search warrant, and a new warrant was required. Kansky argues Lupas made further errors by allowing jurors to bring copies of these text messages into the deliberation room.
Kansky also continues to claim that Luzerne County Det. Lt. Deborah Parker committed perjury at Scholl’s preliminary hearing. He first made the allegation during Scholl’s re-trial in September.
Kansky moved for a dismissal of the charges against Scholl based on alleged perjury. Judge Lupas, obviously shocked, denied Kansky’s motion. In his appeal, Kansky alleges Lupas had a duty to halt the trial upon learning about alleged perjury.
Kansky accuses the court of other improprieties, saying charges should have been dismissed when key pieces of evidence were accidentally destroyed; his client’s right to a speedy trial had been violated; and that a video interview with Scholl’s son Julian had been played without adequate notification from prosecutors.
The attorney said in the filing it was impossible to tell if these alleged issues were “harmless errors” on Lupas’ part, therefore entitling Scholl to a new trial.
If Scholl were to get a new trial, it would be the third in the case.
Scholl’s first one ended in a mistrial in June after the jury was deadlocked.
She was convicted during a re-trial in September.
She remains locked up at a state prison.