ASHLAND - Final jury selection and opening statements in the capital murder trial of Shawn Grate will take place as scheduled Monday.
There was some question about a possible delay after defense attorneys Robert and Rolf Whitney filed a motion Thursday, asking the court to approve up to $14,500 for additional testing, evaluation, consultation and travel for the services of Mindset Consulting Group in New Mexico.
The Whitneys say the information could help the defense for mitigating purposes in case Grate is found guilty of aggravated murder.
"Counsel is unable to assess the defendant's status without further testing and consulting with the aforementioned," they wrote in their motion.
Ashland County Prosecutor Chris Tunnell said the request was "deeply troubling to the state," adding the motion came much later than it should have and that he's not even sure it's necessary.
He asked for a hearing on the matter, which was held Friday afternoon via Skype.
Tunnell and Common Pleas Judge Ron Forsthoefel questioned Dr. John Fabian, who contacted the defense team on Tuesday about the need for additional review "over and above the traditional MRI results." He added this field of study is very specialized.
Fabian is a neuropsychologist who evaluated Grate for the defense. He concluded Grate had "a number of complicated mental health issues."
Fabian compared the standard MRI to the first layer of an onion. He said further testing would show "more and more of the onion."
He added the further imagery could provide more insight about the structure and function of Grate's brain.
Fabian said he has evaluated 488 murder cases, most of them capital. Fewer than 10 included this level of neuroimagery.
Tunnell asked the doctor if he would be able to provide testimony if there is a need for a mitigation phase.
"Absolutely," Fabian replied.
The doctor said he was hoping to interview Grate's sister this weekend.
"I'm not trying to sandbag the court or prosecutors," Fabian said. "I'm not looking to delay the trial."
Forsthoefel asked if Mindset Consulting Group had done a preliminary analysis to determine if further testing would be needed.
"I don't believe so," Fabian replied.
The judge asked how long a preliminary analysis would take. Fabian said less than a week.
"I'm trying to be a good steward of the taxpayer dollars," Forsthoefel said. "My whole concern is that the state have an opportunity to review these test results."
That was also Tunnell's concern.
"These experts have had it for a year," the prosecutor said. "I'm going to get it dumped on me. I would need sufficient time. I'm just trying not to get screwed in the process."
Forsthoefel assured Tunnell he would get time to review test results. If need be, there might be a break between the evidence phase and the sentencing phase, if Grate is convicted of aggravated murder.
The judge authorized defense expenditures for the preliminary analysis and said he would release the balance of the request if further testing is needed.
"I don't see where we need to delay the trial part when we're talking about the mitigation phase," Forsthoefel said.
The first witnesses are scheduled for Monday afternoon. Forty-eight people are left in the pool after nine days of jury selection.
PHOTOS | Jury selection underway in the Shawn Grate trial
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