Eric Kay‘s scheduled release from federal prison for supplying the fentanyl-laced pill that resulted in the overdose death of Angels pitcher Tyler Skaggs is Feb. 18, 2041. The former Angels media relations executive would be 67 years old.
In his latest effort to have that sentence overturned or at least whittled down, Kay filed a 75-page appeal in Texas federal court Friday, requesting that his conviction be vacated and that judge Terry R. Means order a new trial. Means ruled earlier this year that Kay could introduce new details pertaining to the evidence that led to his 2022 conviction.
The appeal, first reported by the Athletic, centers on Kay’s contention that his trial attorney, Michael Molfetta, pressured him to turn down a plea offer from prosecutors for a 5-to-10-year sentence. Kay, 52, has already served four years and eight months for giving Skaggs the counterfeit oxycodone pill that contained fentanyl July 1, 2019, shortly after Angels arrived in Texas ahead of a three-game series against the Rangers.
The filing also alleges that detective Delaney Green lied when testifying in Kay’s criminal trial that she pulled data from Skaggs’ phone. Another detective with the Southlake (Texas) Police Department actually did so. Kay contends that the phone could have been tampered with because it continued to receive messages for more than two weeks after Skaggs’ death. Furthermore, when Kay sought to obtain the raw data extracted from Mr. Skaggs’ phone closest in time to his death, he was told that the police department “no longer has the external hard drive” that contained the data.
“The Government’s case against Eric Kay rested on two key allegations,” Kay’s attorneys wrote in the appeal. “First, only Mr. Kay supplied Mr. Skaggs with pills in the time leading up to his death. Second, but for those pills (later discovered to be fentanyl), Mr. Skaggs would not have died.
“To prove up the first, the Government relied extensively on evidence obtained from Mr. Skaggs’s phone. But that evidence is unreliable. Records show that after Mr. Skaggs died and while in the custody of law enforcement, the phone continued to receive text messages, calls, and other content consistent with network connection — heightening the possibility, vehemently denied by the Government at trial, that content was deleted or altered from the phone.
“As to the second, Mr. Kay’s trial counsel’s advice and strategic decisions suffered from a constitutionally inadequate investigation. The traditional method for establishing cause of death — an autopsy—did not and could not identify any particular substance as the but-for cause of death.”
Toxicology testing established that at the time of his death Skaggs had alcohol, oxycodone and oxymorphone in his blood and urine in addition to fentanyl.
“The impact of this unreliable evidence, whether it be as to the phone or the but-for cause of death, was compounded by the ineffectiveness of Mr. Kay’s trial counsel, who failed to investigate this evidence against their client and bullied him into going to trial, ultimately resulting in Mr. Kay’s conviction,” the appeal said.
An appeal three years ago by Kay of his two felony convictions was denied by the U.S. Court of Appeals for the Fifth Circuit, which ruled that the evidence allowed a reasonable jury to conclude that Kay met with his supplier in California and obtained the pills after Skaggs asked him to do so, that Kay gave the pills to Skaggs in Texas, and that Skaggs died after ingesting one of the tainted pills.
Kay’s appellate attorney David Gerger withdrew in April and most recent appeal was written by a team of federal public defenders led by Jason D. Hawkins. The Angels had paid for Kay’s defense while preparing for a civil trial brought by Skaggs’ parents, but ceased doing so after the lawsuit was resolved for an undisclosed monetary settlement during jury deliberations in December.
Kay is currently serving his sentence at the Federal Correctional Institution in Englewood, Colo., a low-security prison for males. The deadline for federal prosecutors to respond to the appeal is Dec. 31.
“This case is a sobering reminder: fentanyl kills,” U.S. Attorney Chad Meacham said after Kay’s conviction. “Anyone who deals fentanyl — whether on the streets or out of a world-famous baseball stadium — puts his or her buyers at risk.”
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