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Posted May 4, 2005 | Copyright © The Northern Virginia Daily
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Convicted murderer’s attorneys see uphill battle on final appeal

Judge recently rejected request for more time -- By Garren Shipley (Daily Staff Writer)

WINCHESTER — Friday’s two-part ruling by a federal judge appears to be a major setback for Edward Bell’s efforts to overturn his death sentence.

But the ruling did more than just prevent the convicted killer of Winchester police Sgt. Ricky Timbrook from getting more help or more time to plead his case. It also demonstrates that his final appeal will be an uphill battle, according to his attorneys.

Judge James Jones’ decision not to grant Bell’s legal team extra time or give them outside, taxpayer-funded help is a setback, said James Connell, one of the two lawyers working on the case, but it doesn’t close the door completely.

“The way I read the opinion, he’s telling us that we need to address these issues after we have filed our petition for habeas corpus,” he said.

Bell, who was convicted in 2001 of Timbrook’s 1999 shooting death, is preparing to ask the U.S. District Court in Roanoke to intervene and overturn his sentence.

He has until May 17 to file his petition for review, but in the meantime had asked for extra investigative help to prepare his case and more time to file it — until August.

But Jones’ ruling cited a section of federal code repeatedly mentioned by the commonwealth in opposing Bell’s request — “the state court’s determination of factual issues ‘shall be presumed to be correct,’” Jones wrote.

That applies to all state courts, from the trial courts through the state supreme court, and it can only be rebutted with “clear and convincing evidence” that the state court erred in interpreting the facts, according to federal law.

“That is the thrust of the opinion,” Connell said. “[But] I don’t think he’s telling us this is his final answer.” Rather, Connell said, Jones has implied that he wants to see very strong evidence in the May 17 filing.

Given the state’s presumption of correctness, there’s simply no reason to investigate the case further at this time, Jones wrote, given the facts at hand, particularly as they relate to the murder weapon.

“The bar is already very high” for a successful habeas corpus petition, Connell said.

Connell and co-counsel Jonathan Sheldon have ar-gued repeatedly that tracing the origin of the gun and further analysis of DNA on the gun would go toward exonerating their client.

But “Bell has failed to demonstrate any particularized need to trace the weapon, or suggest how the results of such an investigation could enable him to win on the merits of his claim,” Jones wrote.

Prosecutors did present DNA evidence, but it’s contribution to his conviction is dubious, since the analysis of the DNA could neither confirm that Bell handled the gun nor exclude him from handling the gun, the judge wrote.

“Nor has he shown how additional DNA evidence could assist his claim. Neither investigation would exclude Bell as the perpetrator,” he said.

A second argument designed to keep Bell out of the death chamber — that he is mentally retarded, and thus ineligible for the death penalty under the U.S. Supreme Court’s 2004 decision, Atkins v. Virginia, — also falls flat, Jones wrote.

Sheldon and Connell may well prove with further investigation that Bell meets half of Virginia’s definition of mental retardation, but there’s simply no way at this time to legally prove Bell’s IQ is low enough to be considered retarded, the judge said.

“Evidence from Jamaica may demonstrate that Bell has limitations in adaptive behavior,” Jones wrote, “but it still would not establish that he has significantly subaverage intellectual functioning.”

For Bell to prevail on the merits of that claim, he would have had to submit the results of his initial IQ test to the court at trial, the judge said.

“Bell had access to a competent psychologist during the state … [trial],” he wrote. “Defense counsel did not submit the results of that testing at trial.”

Connell said he and Sheldon have no plans to take Jones’ rulings to the Fourth Circuit Court of Appeals at this time, but they are keeping their options open.

* Contact Garren Shipley at gshipley@nvdaily.com

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