Court Rejects Challenge to Wiretap in ‘Too Fat to Kill' Case

The “too fat to kill” defense didn't work for a Florida man convicted of murdering his son-in-law in 2006, so he appealed his conviction on the grounds that New Jersey's wiretapping law is unconstitutional.

New Jersey's highest court has rejected the challenge to the state's wiretapping law.

The challenge came from Edward Ates, a Florida man who was convicted of murdering his son-in-law in New Jersey in 2005. The case received notoriety because of Ates' initial defense that he was too fat and in too poor health to have committed the murder and escaped.

Ates was convicted in 2009 but challenged the ability of New Jersey authorities to secretly record a conversation between him and his sister in Louisiana. Ates was back in Florida at the time.

An appeals court disagreed, and the state Supreme Court upheld that ruling in a decision published Tuesday.

New Jersey permits the wiretapping of phones in other states if the location where the calls are intercepted is in New Jersey.

The victim, Paul Duncsak, was shot six times at his home in Ramsey. Prosecutors said the 40-year-old pharmaceutical executive and Ates' daughter, Stacey, were involved in a bitter custody dispute after their divorce.

Prosecutors contended that Ates drove up from Florida and broke into Duncsak's house, then shot him several times before driving back south.

At his 2009 trial, Ates' defense centered around a novel theory: In his 60s and at 5-feet-8 and 285 pounds with numerous health problems, he 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 buy it and convicted Ates of murder, felony murder and other counts. A judge sentenced him to life in prison.

A key piece of evidence in the trial was a wiretapped conversation between Ates and his sister in Louisiana after Duncsak was killed, in which Ates repeatedly went over the timing of his return to make sure stories matched up. 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 in Florida to search Ates' residence in Fort Pierce, the phone conversation with his sister was recorded without the need of a warrant in Florida. 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 in his appeal that even if New Jersey authorities followed the letter of the law, the law itself is unconstitutional because it exceeds federal law and “eradicates all jurisdictional boundaries between the states.”

“We are arguing for a higher standard,” Ates' attorney, Walter Lesnevich, said last week. “I'm saying you have to do what's right for New Jersey and say the statute just has too much power.”

Copyright AP - Associated Press
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