Inescapable conclusion

PUBLISHED : Sunday, 27 March, 2011, 12:00am
UPDATED : Sunday, 27 March, 2011, 12:00am

Twice in just over five years Hong Kong's highest courts have had to rule on conflicting accounts of Nancy Kissel's family life: was her husband a high-flying banker betrayed by the mother of his three children or was he a violent and abusive husband who cruelly mistreated his long-suffering wife?

On Friday, after the benefit of a retrial, Nancy Kissel was again found guilty of murdering her husband, her protestations of diminished responsibility failing to convince a jury for the second time despite the reappraisal of her grim and sordid tale of private misery.

Once again, a jury had heard tales of infidelity, homosexuality, drug use, violence, sodomy and greed, and was unmoved. Once again a trial ended with Nancy Kissel deprived of her freedom, her children, and a life of privilege, this time probably forever. The Kissel children - Elaine, June and Reis, who live in the United States - have sued their mother for the wrongful death of their father, who now lies buried in New Jersey.

The children's suit was filed in 2006, soon after their mother was first convicted of murder and automatically jailed for life; their action probably represents the severance of all links between Kissel and her children. That same year, a US court awarded custody of the two girls and the boy to Jane Clayton, Robert Kissel's sister.

The torment of the past seven years, five of them in prison and including a stint in the Siu Lam Psychiatric Centre, is deeply etched into Nancy Kissel's face. People who once knew a beautiful and cheerful woman say her charm and physical strength are gone, and they now see someone who is frail and gaunt, pale and bony. Five years ago, she weighed 54kg, now she weighs barely 38kg. During her retrial she spoke slowly and softly and needed the help of a Correctional Services Department officer to walk into the defendant's dock.

The object of her desire

More typically grist for the mills of fiction, the Kissel tragedy has made its way into at least two works of non-fiction - Never Enough and A Family Cursed - and at least one movie 'inspired by actual events'.

But if the Kissel family was cursed, the curse was not confined to Hong Kong. In April 2006, the body of Robert's older brother, Andrew, was found bound and stabbed in the basement of his Connecticut home, days before the wealthy property developer was due to plead guilty to a multimillion-dollar fraud.

Prosecutor David Perry QC, summing up at the end of Nancy Kissel's retrial, saw the Kissel case as 'a simple, straightforward case of murder, a story as old as history itself... A woman falls out of love with her husband, comes to despise him, the man who was previously the object of her desire, and falls in love with another. She begins to wish her husband would disappear and eventually kills him.'

The tale began when the Kissels, who married in 1989, came to Hong Kong in 1997. Robert had been sent by Goldman Sachs to work as a specialist in Asian debt. Over the subsequent years, a happy marriage turned sour, with Robert changing employers and, his wife claimed, family life becoming burdensome.

Robert's friends and family described him as a loving father and a loyal husband, but Nancy portrayed her husband as a violent sex abuser who was frequently away from home. Suggestions were also made that he was a secret homosexual.

'Everybody saw my wonderful life. Everybody sees what money buys, so your life must be wonderful if you have things... But things are not what make you happy,' Nancy told her retrial.

When she had been eight months' pregnant with her son, Robert had tried to punch her, but missed and hit a wall. On a trip to Whistler, Canada, over Christmas in 2002, Robert had pushed his pregnant wife down a flight of stairs after finding presents under the tree facing the wrong way.

After the boy's birth, according to Nancy, Robert had begun to have forceful sex, including anal sex, with her. 'I didn't know what to think,' she said. 'He made me feel like a prostitute. I didn't know who I was any more. I didn't feel like a wife or a mother ... Just the whole forcing of the sex and the cash the next morning.'

However, Robert's sister saw things differently, saying her brother was 'such a beautiful human being' who just wanted a family and that 'his wife and kids meant everything to him'.

Hard time being happy

In the months leading up to his murder, frustration in his marriage simmered, breeding mistrust, betrayal and secrets. In April 2003, Robert Kissel confided in a good friend of Nancy's, Bryna O'Shea, about his concerns. On one occasion Robert called her because he was upset that Nancy had done nothing to celebrate his 40th birthday, which was to be his last.

On another occasion, he called after a marriage-guidance session during which Nancy had said she wanted a divorce. Around the same period, Robert began taking legal advice on his marriage, including on the possibility of divorce.

Since January 2003, he had also been spying on his wife, installing software on her laptop and a home computer to monitor her activity. He also hired two private detectives in the United States, where she had stayed, in Vermont, during Hong Kong's Sars outbreak in early 2003. The surveillance suggested that she was having an affair.

After his death the same spyware, E-blaster, gave police an insight into Nancy's mind during that time. As Robert had been feeling frustrated about his marriage, so had Nancy. In a diary entry dated August 2 she wrote: 'I got into this hole eventually, a hole so deep that I truly believed I was worth nothing. I had lost my true spirit.'

She felt she was worthless and had a hard time being happy. During this dark time Nancy began conducting internet searches on topics such as sleeping pills, overdose on sleeping pills and medicines that cause heart attacks. She eventually obtained 10 sleeping pills prescribed by a doctor that same month. She obtained more such drugs from doctors in the following months. By the end of October, Nancy had collected a number of drugs prescribed by two different doctors on different occasions.

Meanwhile, a suspicious Robert discovered that his wife was having an affair with an electrician, Michael del Priore, who regularly visited their Vermont home at night when all the lights were off.

On the afternoon of November 2, 2003, a Sunday, Robert finally felt that his marriage was beyond rescue. He decided to discuss divorce with Nancy at their home in the luxury Parkview estate in Tai Tam. That day, Robert died.

The only account of what happened at Parkview is the killer's. During her retrial Nancy said Robert had told her he had filed for divorce and she was unfit to take care of the children. While talking, he leaned on and swung a baseball bat menacingly. He then pulled her into a room, attempted to force himself on her and, when she kicked him, grabbed her by the ankles, she said. She swung a heavy ornament and Robert lay bleeding on the floor. As Nancy heard Robert say 'I'm going to f***ing kill you,' she kept swinging the ornament. She could not remember what happened next.

The prosecution said Nancy killed Robert with at least five blows to the head after he had been rendered unconscious by a milkshake spiked with the drugs she had obtained in the preceding months.

The court learned of the power of the milkshake - which Nancy had told others was made from a 'secret recipe' - through testimony about the bizarre behaviour of a neighbour who had drunk some of it. Andrew Tanzer, who had taken his daughter to the Kissels to play with one of their daughters, was given a 'sweet, thick, milkshake' to drink when he was about to leave. After he returned home, he went on a bizarre binge, eating three tubs of ice cream. He became drowsy and fell unconscious. The next morning, his memory was a blank.

Nancy Kissel admitted to the court she killed her husband, but her defence argued her crime was not murder but manslaughter because of diminished responsibility - her judgment had been impaired because she was suffering from depression and battered-wife syndrome.

But the prosecution submitted that she was fully responsible. Along with the premeditation she had shown in acquiring the drugs with which to lace the milkshakes, she had also planned and organised the killing and how to conceal it in such a way as to secure Robert's estate, which was estimated to be worth US$18 million. She also stood to benefit from several million dollars' worth of life insurance policies that named her as the sole beneficiary.

After killing her husband, Kissel embarked on what the prosecution called an 'elaborate and cool and calculated' plan to conceal the murder. She placed her husband's body in a sleeping bag, wrapped it in a living-room carpet, then tied it up using rope and adhesive tape, and left it in the house.

Outwardly, she behaved as if nothing serious had happened. She called her friend Bryna O'Shea in the US, saying she and Robert had had a fight - during which she had sustained two broken ribs - and that her husband had left. She then went out to shop for home furnishings, including a chaise longue, cushions and a loose cover and a new carpet.

Kissel also told O'Shea she would not be cancelling a trip to the US for breast enhancement surgery she and her friend had planned to have together. She also called her father in the US. She invented excuses to explain Robert's absence from work and home.

On November 5, she asked several workmen to move the carpet roll that contained Robert's body to a storeroom.

On November 6, David Noh, a friend and colleague of Robert's at Merrill Lynch, filed a missing person's report with police. He was worried because it was unusual for Robert, who used to contact him several times a week to talk about work, not to contact him for such a long time.

Noh said that in their last conversation, Robert sounded tired and depressed, distraught because of his marital problems and was only partially coherent. Police, armed with search warrants, searched Kissel's house and eventually found Robert's body. Nancy was charged with murder two days later.

A further strategy

The first trial began in August 2005. Kissel was jailed for life after seven jurors unanimously found her guilty of murdering her husband. The following month, she lodged an appeal against her conviction. Three years later, the appeal was heard before three Court of Appeal judges, who rejected Kissel's claim that she had been denied a fair trial and upheld her conviction and life sentence. Yet Kissel continued to challenge the ruling by bringing the matter to the Court of Final Appeal, the city's top court, in her final bid to have her conviction set aside. This time she succeeded. In February last year, the Court of Final Appeal threw out Kissel's conviction and ordered a retrial on the grounds that the manner in which the prosecutor conducted his cross-examination had led to an unfair trial.

The five Court of Final Appeal judges, including then chief justice Andrew Li Kwok-nang, also found that trial judge Michael Lunn had erred in ruling that evidence from a confidante of Robert Kissel and from a private investigator about the banker's suspicions that his wife intended to drug and kill him were relevant to Kissel's claim of self-defence.

Kissel and her lawyers had a further strategy. Once she had been granted a retrial and the proceedings had begun, she applied to the Court of First Instance to have the retrial halted, arguing that the intense media interest meant it was impossible for her to get a fair trial.

The media was forbidden from reporting on this application, filed in November, until after the retrial verdict. If this application had succeeded, Kissel would now be free.

In it, barrister Edward Fitzgerald QC submitted that material adverse to a fair trial had been widely disseminated - scattered across the internet and in the form of books, news reports and a movie - that jurors could easily be exposed to it and were likely to recall it and that they would be influenced consciously or subconsciously in their deliberations. Fitzgerald also compared Kissel's case with that of infamous gangster Yip Kai-foon, who in 1997 was jailed for more than 36 years for kidnapping, shooting at police, possessing explosives, escaping from custody and other charges.

Yip was also the subject of a movie based on his crimes, The King of Robbery. He, too, had argued that the publicity meant he would not be able to have a fair trial. Fitzgerald argued that while Yip's movie was known to be completely fictional, the movie and books about Kissel were based on transcripts, interviews with witnesses and information that was not admissible in court.

Fitzgerald also argued that Yip was a notorious criminal the courts could not allow to escape, and that such notoriety did not apply in Kissel's case.

Mr Justice Andrew Macrae was not persuaded, and ruled that his direction to the jury to ignore information other than that heard in the court would be sufficient to ensure a fair hearing. The Kissel retrial went ahead.

Details of the Kissels' life were again laid bare. Among many things that surprised the public gallery was evidence of Robert Kissel's alleged homosexuality. Examination of his computers showed that he had used them to search for gay pornography, massages and gay escorts in Taiwan days before a trip there.

In the retrial, Nancy admitted that she had killed her husband and pleaded guilty to manslaughter but denied murder on the basis of provocation and diminished responsibility, which the prosecution did not accept. She said she had been abused for years and had been suffering mental problems. Nancy's lawyers called experts who said she was suffering from a major depressive disorder, battered-wife syndrome and a form of post-traumatic stress disorder when she carried out the deadly attack.

The prosecution argued that she had shown great presence of mind, by her regular volunteer work at Hong Kong International School on an almost daily basis and by chairing an annual dinner at the United Jewish Congregation. She was due to host a Halloween party at her home. The prosecution also accused Nancy of telling 'a pack of lies' and inventing a troubled mental history.

After 48 days of hearings and 10 and a half hours of deliberations, the jury's verdict was unanimous - Nancy Kissel was guilty of murder.

As Kissel received the mandatory life sentence, she rocked slowly back and forth. Her father, mother and stepfather embraced each other and burst into tears. Michael McGlothlin, her stepfather, said they 'couldn't understand the verdict' and suggested 'cultural differences' might have led the jury to their decision.

Before sentencing, Fitzgerald said it was open for the judge to write to the long-term prison sentences review board reflecting that his client had been through a 'terrible ordeal' from the first trial, the Court of Final Appeal ruling and the retrial, as well as her time at Siu Lam Psychiatric Centre and in the general prison population.

He also noted witnesses had testified in support of her character, saying she was a warm, compassionate, generous woman.