February 11, 2003
Suspect Can Withdraw Guilty Plea to Girl's Murder
BY STEPHEN HUNT
THE SALT LAKE TRIBUNE
LOGAN -- Purported killer Cody Lynn Nielsen -- who has been trying to withdraw his guilty plea to capital murder since he entered it last month -- will now get his chance.
First District Judge Clint Judkins on Monday appointed a special attorney to determine if there is a legal basis for Nielsen to withdraw the plea. The move will likely delay a sentencing hearing, which was to begin today in Brigham City, for at least three weeks.
If Nielsen -- accused of the murder and dismemberment of 15-year-old Trisha Autry three years ago -- is successful, he could once again be exposed to the possibility of the death penalty. In a series of handwritten letters to the judge, Nielsen claims his attorneys "lied" to him, "forced" him to enter the plea and "withheld evidence." Judkins had refused to acknowledge Nielsen's letters, calling them "hybrid motions," and Nielsen's attorneys, Shannon Demler and David Perry, refused to file his request, saying it would not be in his best interest.
Cache County prosecutors finally came to Nielsen's aid and filed the necessary paperwork.
Special prosecutor Scott Wyatt told news reporters that failure to resolve the plea-withdrawal issue could result in an appeal and the need to conduct a second trial.
"We hope it doesn't delay things too much," Wyatt said, adding that Autry's family "appears to be comfortable with what we are doing."
In exchange for Nielsen's Jan. 16 guilty plea to capital murder, prosecutors said they would not seek the death penalty. Had Nielsen's sentencing phase trial begun as scheduled today, jurors would have considered either life with or without the possibility of parole.
A month ago, Nielsen said he was pleading guilty to spare his family and the Autrys the trauma of a trial. But he almost immediately wrote the judge asking to take back the plea. Demler told reporters Monday that facing the possibility of life in prison without parole, Nielsen may have decided he would "just as soon face the death penalty."
For Nielsen to be successful in withdrawing his plea, Wyatt said he would have to prove a technical error occurred during the plea hearing, or something else "that makes it patently unfair."
Nielsen had also filed a motion asking to disqualify Judge Judkins, claiming among other things, that the judge has "been very negative" toward him, shown no patience and been "very biased." Judkins and fellow Judge Gordon Low both examined that motion and denied it.
Trisha Autry disappeared from her Hyrum home about 4 a.m. on June 24, 2000. Prosecutors claim that after weeks of stalking the girl, Nielsen kidnapped, killed and dismembered her, then burned and buried portions of her body on a coyote research farm where he worked. Prosecutors believe Nielsen scraped the girl's jawbone clean and kept it for a time as a trophy.
Almost a year after Autry disappeared, police found the jawbone, a bra and shoes belonging to Autry, as well as hundreds of pieces of fragmented and burned human bones.
At trial, prosecutors hope to call a former FBI profiler, who has investigated thousands of homicides, to "educate" jurors about killers who keep body parts as trophies or fetish items. The profiler would not, however, be asked to give specific opinions about Nielsen's alleged behavior, prosecutors said.
But defense attorney Perry claimed even limited testimony from the profiler would be "highly prejudicial" to Nielsen. A hearing is set for Wednesday to resolve that issue and to check the status of the plea-withdrawal matter.
Copyright 2003, The Salt Lake Tribune.