edward bell Mar 28, 2008 19:59:02 GMT -5
Post by klepdaddy on Mar 28, 2008 19:59:02 GMT -5
Lawyers petition for halt to execution and return of case to lower courts
By Garren Shipley -- Daily Staff Writer
What is likely the last act in Edward N. Bell's appellate drama is now under way.
Lawyers for the condemned killer filed a petition with the U.S. Supreme Court on Tuesday, asking the high court to step in and stop his execution and send the case back to the lower courts.
Bell, a Jamaican national, was convicted in 2001 of the 1999 slaying of Winchester police Sgt. Ricky M. Timbrook and was sentenced to die. Timbrook was the first Winchester police officer to be killed in the line of duty.
Bell has unsuccessfully appealed his conviction to the Virginia Supreme Court twice, and has come up short at both the U.S. District Court and U.S. Court of Appeals for the Fourth Circuit.
Now Bell's legal team has placed almost all its remaining appellate eggs in one basket — arguing that various U.S. Courts of Appeals and state supreme courts have come to very different conclusions about "cross purpose" evidence, and that the high court should use Bell's case to set a nationwide standard.
After a Winchester Circuit Court jury convicted Bell in 2001, his legal team put on virtually no case in mitigation to convince the panel to choose life in prison over the death sentence.
His lawyers at the time, Jud Fischel and Mark Williams, have said under oath that they put on such a meager effort out of fear that they would antagonize a jury with evidence that could hurt Bell as well as help him.
Using Bell's children to illustrate the fact that he was not just a murderer but also a loving father would have opened the door to the fact that Timbrook's widow was pregnant, and that the child would never know a father.
But by presenting no mitigating evidence, Bell's first legal team was "inviting the jury to infer that Bell was so irredeemable that no one was willing to speak on his behalf," his appellate lawyers wrote. "The prosecutor used the absence of mitigating evidence that way, reminding the jury of it six times."
Bell's lawyers did such a poor job that a federal judge in Harrisonburg ruled that it was "constitutionally deficient," but that the mitigating evidence would likely have made no difference.
A three-judge panel of the Fourth Circuit agreed.
But the fact that then-Commonwealth's Attorney Paul Thompson pointed it out six times means the appellate court in Richmond "was not free to disregard it," Bell's lawyers wrote.
Other U.S. Courts of Appeals have come to very different conclusions.
"Had Bell been convicted in Winchester, Georgia, rather than Winchester, Virginia, his case would have been materially indistinguishable from" an 11th Circuit case in which "cross purpose" evidence was found to be a vital part of mitigation.
In that case, the appellate court held that "evidence of good character is vital to the inquiry that juries must apply in death penalty cases, even though it will always carry with it other aspects of the defendant's human complexity and limitations," Bell's team wrote.
But Bell's lawyers played one other card in their filing on Tuesday — they asked the court to stay the execution until it rules on a Kentucky case, Baze v. Rees, concerning the constitutionality of lethal injection.
In that case, a condemned inmate claims that the commonwealth's method of execution could lead to unnecessary pain and suffering if the three-drug cocktail is administered improperly.
Justices heard arguments on that case in January. They have stopped six lethal injections since Sept. 25, when they agreed to hear the case.
"It would be a miscarriage of justice for Bell to be executed on April 8 by a method the constitutionality of which remains unresolved," his lawyers wrote.
Chief Justice John Roberts or any four justices could issue a stay of execution at any time.
* Contact Garren Shipley at email@example.com