Fagone may not testify

One man says he saw it all.

James Fagone says he saw Larissa Schuster knock her husband out, put him in a barrel and pour hydrochloric acid over his body.

But Fagone, who is locked up in state prison serving a life sentence for his role in Timothy Schuster's death, is not expected to testify in Larissa Schuster's murder trial, which will begin with the prosecution's opening statements Monday.

Fagone, who is appealing his conviction, doesn't have to testify because the Fifth Amendment protects him from self-incrimination.

This wouldn't be a problem for prosecutor Dennis Peterson if he were allowed to introduce Fagone's videotaped confessions or bring in witnesses who would testify that Fagone says he saw Schuster, a 47-year-old Clovis biochemist, kill her husband, Timothy Schuster, in the summer of 2003. But because Larissa Schuster has a right to directly cross-examine her accuser -- in this case, Fagone -- Peterson is prohibited by law from introducing such evidence.

That leaves the prosecutor in the awkward position of trying one of the Valley's most notorious cases without a key witness -- the only person who says he saw the crime.

If Fagone were to testify, then Schuster's trial "would be an open-and-shut case," said Fresno defense attorney Ernest Kinney, who is not associated with the Schuster case but has followed it closely. Instead, he said, Peterson will have to rely on circumstantial evidence -- facts that don't directly incriminate Schuster, but point to her as the killer.

In 2003, Fagone, then 21, was a former employee at a Fresno research lab Schuster owned, and he often baby-sat Schuster's 12-year-old son, Tyler. Last December, Fagone was convicted of first-degree murder after testifying in his trial that he helped Schuster break into her estranged husband's house and watched her kill him. He said he didn't know the plan was to murder Timothy Schuster.

In some criminal cases where there are two defendants, prosecutors will agree to give one defendant a plea deal in exchange for their promise to testify against the other defendant. But in this case, Fagone insisted on a speedy trial and was prosecuted before Schuster. If prosecutors offered a deal to Fagone, he didn't take it.

But Fagone could decide at any point in the trial -- which is expected to last four to eight weeks -- that he will testify, even though doing so would not reduce his sentence. That would place Peterson in the unusual position of relying heavily on a witness whom he successfully prosecuted less than a year ago.

Whether or not Peterson would want Fagone to take the stand "depends on when [Fagone] decides to testify and what he decides to testify about," said Ed Hunt, a former Fresno County district attorney.

A second way Fagone could become part of the trial would be if Schuster's attorney, Roger Nuttall, decides to introduce as evidence Fagone's videotaped confessions or witnesses who would testify about what Fagone said he and Schuster did.

Unlike the prosecution, Nuttall is not restricted by law from introducing such evidence. And, Nuttall said, there is a chance he may do so, because he plans to argue that his client was never at Timothy Schuster's home the night he was murdered and that it was Fagone who committed the crime.

But introducing such evidence would require skillful lawyering.

Peterson said Judge Wayne Ellison already has made it clear that if Nuttall were to bring to the stand a witness who would tell jurors what Fagone said about his role in Timothy Schuster's murder, then Peterson would be allowed to ask that same witness what Fagone said about Larissa Schuster's alleged role in her husband's murder.

"Nuttall could try to introduce aspects of what Fagone said to certain people, but I'm sure he would want to be very careful that the statements made to those people didn't include references to Larissa or her involvement," Peterson said. "The question is, are there any witnesses like that? I don't think there are."

Similarly, Peterson said, if Nuttall introduces one or more of Fagone's three videotaped confessions to police, then whichever tape is introduced would have to be played in full. In one of the tapes, Fagone denies knowing anything about Timothy Schuster's murder. In the other two tapes, he incriminates both himself and Larissa Schuster.

Nuttall, however, appears to have a slightly different interpretation of the judge's ruling. He implied that portions may be introduced without requiring entire videos to be played in front of jurors.

Nuttall wouldn't say which parts of Fagone's confessions he might introduce.

Nuttall and Peterson each say they don't know how the other will present their case, leaving both sides -- almost 41/2 years after Schuster's arrest -- unsure how this trial will play out.

"It's a chess game," said Hunt, the former DA. "All of the talk is over. Now you go to war."