'Milkshake murder' conviction overturned

2/12/2010 6:12:50 PM

By Mark McDonald

International Herald Tribune

HONG KONG — Hong Kong's highest court overturned on Thursday the murder conviction of an American woman who allegedly spiked her husband's strawberry milkshake with a date-rape drug and then bashed him in the head with a brass figurine.

The Court of Final Appeal ordered a new trial for the American, Nancy Kissel, who admitted killing her husband, Robert, a wealthy investment banker for Merrill Lynch, during an argument about divorce and the custody of their three children.

Mrs. Kissel struck her husband with the eight-pound statuette, and an autopsy showed five separate blows to the skull, any one of which would have killed him. She then wrapped his body in a sleeping bag, an Oriental rug and plastic sheeting, securing it with rope and duct tape.

The police discovered the body four days later in a storeroom at the family's luxurious Hong Kong apartment house, the Parkview. In the meantime, prosecutors said, she ordered new carpet, cushions and furniture for the home.

Mrs. Kissel, 46, from Adrian, Mich., has contended that she was a victim of domestic violence and killed her husband in self-defense. She said he had often forced her to have anal and oral sex, drank heavily and used cocaine. In the argument at the time of the killing, she said, he threatened her with a baseball bat.

In their ruling Thursday, the justices cited prejudicial evidence by the prosecution that was not properly explained to the jury or dismissed by the original trial judge. One of the five justices, Kemal Bokhary, said there were "many instances" of "harm being done by prosecuting counsel and not being undone or even mitigated" by Justice Michael Lunn of the High Court.

The result, Mr. Bokhary concluded, was "a departure from accepted norms so serious as to constitute a substantial and grave injustice for which her conviction should be quashed."

The murder took place in November 2003, and Mrs. Kissel was convicted in September 2005 and sentenced to life in prison. Her first appeal, in October 2008, was denied. The court on Thursday made a point of identifying the original trial judge, Mr. Lunn, and the three appellate justices who erred, an unusually pointed rebuke in the Hong Kong legal community.

Mrs. Kissel, who appeared in court Thursday in a wheelchair, was not granted bail and remained in custody. There was no immediate indication whether her defense team would seek bail. A Hong Kong criminal attorney who asked not to be identified said a new trial was not likely to start before autumn.

With its sensational revelations, the trial over the "milkshake murder," as the case has been called, mesmerized the Hong Kong expatriate community, a mostly well-to-do group of business executives, bankers and lawyers that enjoy a lavish social life, generous housing allowances, household staffs and expensive private schools for the children.

Two books were written about the case: "Never Enough," by Joe McGinnis, and "A Family Cursed," by Kevin F. McMurray.

Robert and Nancy Kissel were married in New York in 1989 and moved to Hong Kong in 1997. But their marriage had "seriously deteriorated" by the Christmas holidays of 2002, said Andrew Li, the chief justice of the Court of Final Appeal. A family skiing holiday that year, at Whistler, British Columbia, "involved a number of unhappy incidents," Mr. Li wrote in the court's 118-page ruling.

Mr. Kissel installed spyware on his wife's computer and hired a private investigator to catch her in an affair — later acknowledged by Mrs. Kissel — with a man who installed audio and video equipment at their vacation house in Vermont.

Mrs. Kissel admitted to previously doctoring her husband's whisky with Ambien — to calm him down, she said — and she had searched the Internet for the side-effects of several drugs, including Rohypnol, the so-called date-rape drug. An autopsy found Rohypnol in Mr. Kissel's system, along with four other medications that had been prescribed for Mrs. Kissel by a psychiatrist less than 10 days before the killing.

Mr. Kissel, from Upper Saddle River, N.J., reportedly left an estate worth $18 million, and his wife was the principal beneficiary of his will.

The couple's three children — all younger than 10 when the killing took place — initially lived with their maternal grandfather near Chicago. But when he was unable to care adequately for the children, custody went to Mr. Kissel's brother, Andrew, and his wife, Hayley, who lived in Greenwich, Conn.

In 2005, however, Andrew Kissel was charged by federal prosecutors with real estate fraud amounting to tens of millions of dollars, and he was forced to wear an electronic ankle monitor. In April 2006, he was found murdered in his home in Greenwich.

The children are now believed to be living near Seattle with Jane K. Clayton, their paternal aunt.

In summarizing the court's ruling on Thursday, Mr. Bokhary said that Robert Kissel's death at the hands of his wife "is not in dispute."

''But was the killing certainly murder or might it have been in self-defense?" he wrote.

The justice also said that "it is clear" that Mrs. Kissel worked to conceal the body.

''But is it certain that she did that to hide a murder? Or might it be that she panicked and tried to hide the fact of the killing even though it had been in self-defense?"

That is what a new trial will presumably decide.