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Posted April 17, 2002 | Copyright © The Northern Virginia Daily
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Bell begins appeal with Va. court

By James Heffernan - Daily Staff Writer

RICHMOND — The fate of convicted murderer Edward N. Bell will rest on the Virginia Supreme Court’s interpretation of a pair of high-court procedural precedents — one, national and the other, international — as well as the seating of an alleged impartial jury member during trial.

Virginia’s seven high court justices heard oral arguments from attorneys Tuesday morning in an appeal to spare the life of Bell, a Jamaican national who was sentenced to death May 30 for the October 1999 slaying of Winchester police Sgt. Ricky Lee Timbrook.

Lead defender Marie Donnelly, with the Virginia Capital Representation Resource Center, claimed Winchester police breached international law by not informing Bell of his rights to contact a Jamaican consulate immediately after his arrest.

She said police were familiar with Bell’s nationality but proceeded to take incriminating statements from him before he could seek protection afforded under Article 36 of the 1963 Vienna Convention on Consular Relations.

“Police knew that, and they still failed to comply,” she said.

Donnelly referenced an international case in which two German brothers — Karl and Walter LaGrand — were knowingly denied consular access by police after being arrested in 1982 on suspicion of capital crimes in Arizona. No evidence to that effect was presented during any phase of the trial or on appeal, and the brothers were sentenced to death.

“A remedy is absolutely required,” Donnelly said, citing the subsequent decision by the International Court of Justice last June.

Senior Assistant Attorney General Katherine P. Baldwin countered that international treaties are still subject to the weight of the U.S. Constitution in matters involving domestic crimes, and added that prejudice has to be shown on the part of law enforcement in order to allege wrongdoing.

“Those rules are in direct contrast to [the] LaGrand [decision],” she said. “This court is not free to pick and choose. It is not even clear at this point what LaGrand means.”

Baldwin said Bell initially refused consular assistance, and his embassy was notified of his arrest within the required 36-hour period.

Justice Barbara Milano Keenan asked Baldwin what she felt constitutes timely notification, to which the prosecutor replied that 36 hours — “a weekend” — is a reasonable period.

“There has been no assignment of error here,” Baldwin said, “and if so, it certainly doesn’t show any prejudice.”

However, Donnelly noted that there is no reference to prejudice within the LaGrand decision.

“If they have to show this kind of prejudice, the rule would be meaningless,” she said.

A second ruling to be considered by the court involves a 1994 U.S. Supreme Court case, Simmons v. South Carolina, which established a defendant's right to inform the jury on the definition of life without parole.

As a matter of constitutional due process, a defendant in a capital case has the right to make sure that jurors deliberating between life and death do not incorrectly assume that a life sentence includes the prospect of parole.

After finding Bell guilty of capital murder, in addition to related weapon and drug charges, members of the jury passed a note to Circuit Judge Dennis L. Hupp inquiring about the possibility of parole. However, the note was reportedly lost by the clerk’s office, prompting a presentencing hearing.

At the hearing, Hupp admitted to being “less than truthful” about informing jurors of other ways to be released from prison if one is convicted of capital murder. Hupp said he did not mention them for fear of leading the jury “in all different directions.”

Defense attorneys on Tuesday asked the justices to extend the limits of the Supreme Court’s decision to include a Virginia judge’s instructions prior to sentencing.

Baldwin deemed the request “very narrow” and unnecessary.

“In Virginia, we do that [a judge instruct the jury], and in this case it was done,” she said. “The question is not accuracy. Bell is asking this court to expand a ruling and reverse his conviction based on a new procedure.”

Mark Williams, Bell’s co-counsel, argued that pretrial publicity surrounding the Bell case may have resulted in a biased jury, and in particular, one man’s interest to be impaneled.

Williams said the juror, who was referred to as “Estep,” was a criminal justice student when the trial began in January 2001. He was seeking a career in law enforcement and had a friend who had recently gotten a job in security at the regional jail in Frederick County where Bell was being held, Williams said.

The juror also received newspaper clippings about the case before trial from his mother in the mail, which Williams said left him with an image of Bell as a stereotypical “Hollywood” character.

“Our belief was there was reasonable doubt as to whether certain jury members could remain impaneled,” Williams said.

However, Baldwin maintained that the man’s preconceived notions of Bell did not lead to bias, adding his credentials were later backed by Hupp.

“Impressions can be misleading,” she said. “He admitted [during the jury selection process] that he would not give the testimony of a police officer more weight.”

Winchester Police Chief Gary Edwards and city Sheriff Lenny Millholland escorted members of the Timbrook family to and from the proceedings Tuesday. Also present in the back of the courtroom were Winchester Commonwealth’s Attorney Alex Iden, Assistant Commonwealth’s Attorney Mark Abrams, and James Pearce, director of Winchester’s victim witness program.

It is unclear exactly when the court will render a written opinion in the case, but Donnelly indicated it is unlikely a decision will come before the court’s June session.

Bell remains on death row at a prison in Sussex County.

* Contact James Heffernan at jheffernan@nvdaily.com

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