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Posted May 5, 2006 | Leave a comment
Judge: Bell has enough help now
By Garren Shipley -- Daily Staff Writer
WINCHESTER — A federal judge reviewing Edward N. Bell’s last major appeal won’t change his mind about outside help for the condemned murderer’s legal team.
U.S. District Judge James P. Jones said in a ruling Wednesday that Bell, a Jamaican national, isn’t entitled to any help other than that which he has already been given.
The ruling is in response to an effort by Bell’s lawyers to get more help in proving their sole remaining allegation that could win him a new sentencing — that his trial lawyers failed to present evidence to the jury that might have swayed one or more of the panelists to spare his life.
Earlier this year, Jones awarded Bell the services of one investigator at taxpayer expense to gather evidence from Winchester.
His lawyers wanted more help, including an investigator who would go to Jamaica and research more claims that, had the trial lawyers pursued them, may have swayed the jury.
“Bell has set forth a list of potentially mitigating evidence that he contends should have been presented by his trial counsel during the sentencing phase, and the upcoming evidentiary hearing will give Bell an opportunity to prove the truth of such evidence,” Jones wrote in the three-page opinion.
Jones awarded Bell the use of a fact investigator at the taxpayers’ expense earlier this year because he needs help in proving what he alleges, Jones wrote.
But “an evidentiary hearing is not a fishing expedition for facts as yet unsuspected, but is instead ‘an instrument to test the truth of facts already alleged in the habeas petition,’” he wrote, citing a case decided by the appellate court in April.
Bell was convicted in 2001 of the 1999 murder of Winchester police Sgt. Ricky Timbrook. All of his state-level appeals have been exhausted.
He was scheduled to die in Virginia’s death chamber in January 2005, but Jones intervened just days ahead of the execution, postponing it until the federal court system reviewed Bell’s case. That process, known as a habeas corpus petition, reviews the legality of Bell’s detention and execution.
All during 2005, Bell’s lawyers put together their arguments as to why the federal courts should either vacate the conviction or at least order a new sentencing.
Just a few of the arguments they advanced were that Virginia’s death penalty is unconstitutional, Bell is retarded and his lawyers were ineffective. In the end, though, Jones turned away all but one — that Bell’s lawyers were ineffective during his sentencing.
Bell’s current legal team claims his lawyers presented no mitigating evidence, and told the jury as much. At a bare minimum, the team argues, his trial lawyers should have called family members and friends to the stand to talk about Bell’s relationships with them.
That may have been enough to convince at least one juror that Bell didn’t deserve death, they said.
Jones didn’t agree with that argument, but he didn’t throw it out, either.
In a ruling earlier this year, the judge said he wanted to hear more and set a two-day hearing in July to take evidence from both sides.
If Jones rules in Bell’s favor, the defendant may get a new sentencing in front of a new jury. If he rules for the commonwealth, Bell’s chances of staying alive drop precipitously.
His only remaining avenues of appeal would be the Fourth U.S. Circuit Court of Appeals in Richmond or the U.S. Supreme Court. Gov. Timothy M. Kaine could also commute Bell’s death sentence to life in prison.
The case became a political issue during the 2005 gubernatorial campaign, when Republican candidate Jerry Kilgore ran a television ad featuring Timbrook’s widow, Kelly, in which she said that she didn’t trust Kaine, then the lieutenant governor, to carry out the execution if elected.
Both sides will be in court in Harrisonburg in July.
* Contact Garren Shipley at firstname.lastname@example.org
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