The trial for the accused Richland Fred Meyer shooter will stay in Benton County — for now.
Judge Joe Burrowes decided during a Friday hearing that there wasn’t enough information to show that Aaron C. Kelly, 41, can’t get a fair trial from an impartial jury.
But that may change as the Oct. 2 trial date approaches, and he said the defense attorneys can bring it back at a later time.
The Superior Court judge also ruled that a prosecution psychologist can interview Kelly, after two previous experts found that he was not sane at the time of the shooting.
Kelly is charged with first-degree murder and attempted first-degree murder in connection with the Feb. 7, 2022, shooting inside of Richland’s Fred Meyer store.
The shooting brought national attention as police from across the region flooded into Richland.
Defense Attorney Michael Vander Sys argued that the widespread publicity combined with the impact to people across the community means that finding people who haven’t made up their minds about Kelly is going to be impossible.
“The nature of this case being so very public makes it much more of community safety concern, and has a greater impact on the community as a whole,” he said.
Prosecutor Eric Eisinger argued that it’s too soon to know whether or not they won’t be able to find a jury.
“The relevant question is not whether the case receives media attention. The question is not whether the jurors that actually do come in on this case are familiar with the case, but whether they have such a fixed opinion and whether they can be impartial.”
Eisinger pointed out that the defense attorneys had only provided a few examples of media coverage and not a comprehensive list of articles. He also said the coverage on whether Kelly was insane has been minimal.
Burrowes also noted missing and inaccurate information about the extent of the coverage, but he left the door open to call for moving the trial at a later time.
Kelly is accused of walking into the Wellsian Way Fred Meyer at about 11 a.m. He had a brief conversation with Instacart shopper Justin Krumbah before shooting him.
Krumbah, 38, died in the store.
Kelly allegedly then shot at store employee Mark Hill three times near the customer service desk, according to court documents. Hill was hit all three times but survived.
Police say Kelly walked out of the store and got into his car. He was arrested 11 hours later while driving on Interstate 90 near Sprague, southwest of Spokane in Eastern Washington.
Since his arrest, Kelly’s mental health has been at the center of most of the court hearings. First to determine if he was mentally healthy enough to help with his own defense.
Then if he would be required to take medication to treat his schizophrenia, and finally making sure he was able to stand for trial.
As part of the hearings, a defense expert testified that Kelly believed an “entity” was influencing events around him. Kelly’s delusions extended to thinking that a group of intelligence agencies fabricated the shooting.
He has since been prescribed medication to treat his condition.
Now a jury will decide if he was too mentally disturbed to understand what he was doing at the time of the shooting. This came after he pleaded not guilty by reason of insanity.
As part of that defense, prosecutors asked two state psychologists to evaluate Kelly at the time of the shooting. They found in an 87-page report that he was not sane.
Now prosecutors have found another expert, Wendi Wachsmuth, who disagrees with the defense experts based on a review of the police reports and evaluations.
There is evidence that Kelly put planning into his actions, Eisinger said in his brief. Kelly conducted numerous online searches after the shooting at the store about whether Mexico extradites suspects, withdrew money from a bank in Walla Walla and traveled on “secondary highways” as he headed to Idaho.
“Based on her initial review, Dr. Wachsmuth believes there are other explanations that were not considered in the mental state evaluations,” Eisinger wrote.
But Eisinger said it was necessary for Wachsmuth to get to interview Kelly to finish her evaluation.
He agreed that nothing was stopping her from testifying based on the knowledge that she had, it would appear to be less complete to a jury if she didn’t have a chance to interview him.
“The request is that he simply be required to answer the questions as he has done with the other experts,” Eisinger said. “And failing to allow Dr. Wachsmuth an opportunity to interview the defendant opens her up to an obvious attack on cross examination, I would anticipate the first question out of the defense counsel’s mouth would be, ‘Have you met with my client and discussed the case?’”
He also noted the Kelly is already in jail and it wouldn’t be a great imposition to have him answer questions.
Vander Sys countered that this request created a danger of “expert shopping” in every case of where the prosecution didn’t get the answer they wanted from their experts.
“By allowing the court to sanction that type of conduct, it encourages people, litigants to seek out subsequent orders and subsequent evaluations,” he said. “I think it’s a problem if the state does it. It’s a problem if the defense does it.”
The defense attorney said the prosecution can have their expert testify, but didn’t believe they should be required to have their client participate.
Burrowes ruled in the prosecutor’s favor pointing out that there is little in the way of legal cases about the issue, and that the judge is given a lot of authority in these situations.
He pointed out that the testimony of the expert would be limited if he didn’t allow the interview to happen.
“However, given all the evidence in front of me, and the issues that the state has raised with respect to the limitations of the expert testimony if this matter goes to trial and what that expert may or may not be able to testify to, outweighs those issues that could be raised by the defendant.”