Tuesday, July 29, 2014
Inquirer Daily News

Justices reject killer's wiretap appeal

A man whose "too fat to kill" defense failed at trial, lost again, this time at the N.J. high court.

TRENTON A Florida man whose "too fat to kill" defense failed at his 2009 murder trial suffered another defeat Tuesday when New Jersey's Supreme Court rejected his challenge to the state's wiretapping law.

Edward Ates claimed in his appeal that authorities in New Jersey should have been required to obtain warrants authorizing wiretaps on phones used by him, his mother, and his sister, all of whom lived in either Louisiana or Florida.

A wiretapped conversation between Ates and his sister in Louisiana was a key piece of evidence in Ates' trial.

In the call made after Paul Duncsak's murder in Ramsey, N.J., Ates repeatedly went over the timing of his return. His sister later testified that she misled police about the day Ates arrived in Louisiana because her brother had asked her to lie.

While a warrant was required to search Ates' residence in Fort Pierce, Fla., the phone conversation with his sister was recorded without the need of a warrant. Under New Jersey's wiretap law, local authorities are allowed to intercept calls between callers in other states if the "listening post" - the location where the calls were intercepted - was in New Jersey.

Ates claimed the law is unconstitutional because it exceeds federal law and "eradicates all jurisdictional boundaries between the states."

Tuesday's Supreme Court decision upheld a 2012 appellate court ruling that also rejected Ates' theory.

"The inherent mobility of cellphones would make it impractical, if not impossible in some instances, for law enforcement to intercept cellphone conversations if agents could only rely on orders issued in the state where a call was placed or received," the court wrote in a 7-0 opinion.

Ates' attorney, Walter Lesnevich, said Tuesday that courts in other states and at the federal level have reached the same conclusion in similar cases.

"There is no privacy on a telephone, anywhere, anyplace," he said. "If you think there is, you are nuts. Only now it's not just the spook at the NSA; it's . . . the county prosecutor's office listening in."

Prosecutors contended Ates drove up from Florida, broke into Duncsak's house in Bergen County and shot him several times before driving back south. The 40-year-old pharmaceutical executive and Ates' daughter, Stacey, were involved in a bitter custody dispute after their divorce, prosecutors said.

At trial, Ates' attorney claimed his client, in his 60s and at 5-foot-8 and 285 pounds with numerous health problems, wasn't physically capable of running up a flight of stairs to shoot Duncsak, then escape by driving nearly 24 hours straight to his mother's home in Sibley, La., as investigators believed.

A jury didn't accept the defense and convicted Ates of murder, felony murder, and other counts. A judge sentenced him to life in prison.

David Porter Associated Press
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