Posted October 31, 2000 | comments Leave a comment

Judge: Bell’s lawyers can hire residue expert

By Laetitia Clayton -- Daily Staff Writer

Seven motions recently filed by the attorneys for Edward N. Bell were discussed Monday in Winchester Circuit Court, exactly one year from the day that Bell was charged with killing city Police Sgt. Ricky L. Timbrook.

Bell, wearing a dark brown sweater and jeans, sat with his attorneys, Jud A. Fischel and Mark B. Williams, both of Warrenton, while Timbrook's parents, his widow Kelly, and other family members sat in the courtroom with city Police Chief Gary W. Reynolds.

Circuit Judge Dennis L. Hupp, who is presiding over the case, ruled in favor of three of the motions, denied one, withheld ruling on two and took one under advisement.

The sustained motions include one seeking to keep spectators from wearing any insignias or tokens during Bell's January trial, a motion for the jury to view the scene of the shooting and one for the defense to hire a gun residue expert. This last motion is in response to state test results that "give rise to suggestions that are incriminating to the defendant," Bell's attorneys have said.

The expert chosen by the defense is John P. Riley, of Illinois, whose fees are $100 per hour for consultation and file and data review, and $1,500 per day for his travel and testimony. Williams said Riley's schedule is free for the trial, which is to begin Jan. 16 and last two weeks.

Williams also supplied Riley's resume, which lists his credentials of 30 years as a special agent with the FBI and 27 of those years as a supervisory agent in the Elemental and Metals Analysis Unit of the FBI Laboratory. Riley has testified in more than 900 trials, most involving examinations of bullet lead and gunshot residue, according to the resume.

Winchester's Commonwealth's Attorney Paul H. Thomson agreed that the defense is entitled to hire its own expert, but said it is the court's decision whether to hire Riley. It was established in an earlier motion that the commonwealth will pay for the defendant's expert. Hupp said the Virginia Supreme Court has ruled that while a defendant is not entitled to an expert on every point, a defendant must be given "necessary tools of a defense."

Hupp asked Williams to try to find an expert who is closer to Winchester in hopes that it will decrease the cost.

"I must consider the expense," Hupp said.

In addition, Hupp said he will set a limit on what the commonwealth will pay for a defense expert at a future date.

Regarding the motion that spectators not wear insignias or tokens during the trial, Hupp said, "This is not an election campaign. It's a court of law."

The defense's reasoning for this motion is that some people may want to wear ribbons or similar items in memory of Timbrook, which could evoke sympathy from the jury. Thomson agreed to this motion as long as it applies to "both sides."

Fischel said that "nobody should wear anything of a demonstrative nature," either pro or con, during the trial.

Hupp also agreed to let the jury view the scene of the shooting, with counsel to work out the details at a later date, such as what the jury should and should not see.

Also during the hearing:

• Hupp denied a motion to reconsider the defense’s request for the appointment of an expert witness to testify during the penalty phase of the trial.

• The court discussed selection of a jury and whether the trial should be moved to Staunton or a Staunton jury brought to Winchester. Both attorneys said they think the best option is to bring a Staunton jury to Winchester, but Hupp said he would like to think about it.

"It's gonna be a balancing act either way," he said.

Thomson cited the fact that he has subpoenaed 75 witnesses, a lot of them city police officers, which causes public safety concerns about taking the officers away from their duties if they go to Staunton to testify.

The first choice is still to attempt to get an impartial jury in Winchester, Hupp said.

• Both attorneys agreed that the terms "vileness" and "future dangerousness" will not be used in opening statements at the trial, and will not be discussed until the sentencing phase of the trial. Vileness of a crime or future dangerousness could lead to a sentence of death if the defendant is found guilty. Hupp withheld any ruling on this motion.

• Hupp also withheld ruling on the motion to prohibit consideration of "pre-adjudicated conduct" -- or prior convictions -- on the basis that this motion is premature.

Another hearing was scheduled for Dec. 11 at 2 p.m. where some of these issues will be discussed.

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