04/18/2006

Motions filed as trial nears

Prosecutors want to bar incident re-enactments

By PATRICK SULLIVAN

psullivan@record-eagle.com

BEULAH — State prosecutors filed a flurry of last-minute motions in the days leading up to the first-degree murder trial of Mark Unger.

They seek to stop Unger's defense from arguing that police determined the death was an accident, bar animated re-enactments of Florence Unger's death produced by defense experts and stop some experts from testifying.

Unger is accused of killing his wife as the couple and their two children spent a weekend at a Lower Herring Lake resort in October 2003.

Prosecutors contend Unger pushed his wife from the deck of a boathouse to a concrete apron below, then dragged her into the lake where she drowned.

Unger's attorneys have argued that Florence Unger accidentally fell from the deck, which they have said was in a state of disrepair.

The trial is scheduled to begin April 26.

In one motion, assistant state attorney general

Donna Pendergast argued that a state police investigator who conducted "stress testing" on the deck made a statement in a report based on a faulty assumption that a railing on the deck was broken when Unger died.

The railing was broken after Unger's death, according to the prosecution.

But the investigator wrote: "'For some reason the victim lost her balance and in an effort to recover, grabbed the top rail and her body acted as a rotational lever against the top rail," according to the motion.

That statement apparently created fodder for defense attorneys to argue that a police officer determined the death was an accident.

They asked 19th Circuit Court Judge James Batzer to rule Mark Unger's attorneys cannot argue that police concluded the death was an accident.

Pendergast also filed a motion to exclude five "animations" produced by defense experts that Unger's attorneys planned to use to conduct a re-enactment of how they believe Florence Unger died.

Prosecutors also want to bar defense experts who they say were brought into the case too late. They include Wayne County's chief medical examiner, Dr. Carl Schmidt, who would testify the victim died of a head injury.

Prosecutors plan to use testimony from Oakland County's chief medical examiner, Dr. Ljubisa Dragovic, who determined that the woman drowned. They said that's important evidence because — if true — it would show Unger intended to kill his wife.