Posted August 15, 2007 | comments Leave a comment

Bell’s appeal options starting to dry up

By Garren Shipley - Daily Staff Writer

The stage is set for what is likely convicted killer Edward N. Bell’s last appeal.

Lawyers for the Jamaican national and the commonwealth have both filed their briefs before the U.S. Court of Appeals for the Fourth Circuit.

Bell was convicted in 2001 of the 1999 murder of Winchester police Sgt. Ricky Timbrook and sentenced to death. He was scheduled to die in January 2005, but a federal court postponed the sentence while his appeals progressed.

If Bell fails at the appellate level, only the U.S. Supreme Court and Gov. Timothy M. Kaine stand between him and the death chamber — long shots both.

At issue is whether Bell’s trial lawyers, Mark B. Williams and Jud A. Fischel, did an adequate job defending their client during the sentencing phase of the trial.

U.S. District Court Judge James P. Jones ruled last year that the two lawyers did not do an adequate job, but that a reasonable juror could have still sentenced Bell to die even if they had done their jobs.

Jones never should have entertained the issue, wrote Virginia Senior Assistant Attorney General Katherine P. Baldwin, in a brief filed Monday.

Federal law gives the findings of state courts great respect in death penalty matters, Baldwin wrote.

“Indeed, even when the state court decision in fact is incorrect, it is not grounds for relief in a federal habeas court unless it also was unreasonable,” she wrote.

Even so, the judge was wrong to when he ruled that Bell’s lawyers did a “deficient” job during sentencing, she added.

Bell’s current legal team argued in a brief last month that his trial lawyers had a responsibility to present some kind of evidence that might convince at least one juror that their client didn’t deserve to die.

“It is undisputed that at sentencing, his counsel presented ‘zero mitigating evidence,’” they wrote. The decision wasn’t part of a legal strategy, either, they added. His old legal team just didn’t do the job.

“Bell’s trial lawyers — in short — gave up on the penalty phase long before the trial even started,” wrote James G. Connell, a longtime member of Bell’s appellate legal team.

Not only did they not help Bell, they probably hurt him, according to Connell. In his final arguments attorney Williams “conceded that ‘very graphic’ testimony showed his client to be ‘a violent man,’ and that when he leaves his clients ‘the first thing I do … is wash my hands.”

Statements like that allowed the prosecution to push the jury into a death sentence, according to Connell.

“Rather than simply noting the lack of mitigation evidence, however, the prosecutor relied on it as an affirmative reason to sentence Bell to death,” Connell wrote.

But federal law gave Bell’s trial lawyers wide latitude to investigate as much or as little as they wished and to put on whatever case they wanted, Baldwin wrote.

As for mitigation, there wasn’t much to work with.

Fischel and Williams were “faced with a case involving no mitigating circumstances,” she wrote.

Introducing evidence that Bell was a good father would have opened the door for the commonwealth to tell jurors that he abandoned his pregnant wife in Jamaica, she wrote.

Similarly, telling jurors that Bell provided for his children would have allowed prosecutors to introduce evidence that he was a known drug dealer.

Trying to introduce evidence that Bell was mentally slow or retarded would have opened the door to testimony that “Bell faked bad … on his tests for brain damage and retardation to an extent that any testing for such possibilities was invalid,” Baldwin added.

In the end, all Bell’s new team could come up with was “an ex-wife and her sister, and one ex-girlfriend, each of whom he has convinced since he was sentenced to death to say he was a good father to his one legitimate, and four illegitimate, children, and that his execution would upset them,” she wrote.

Both sides will likely present oral arguments to the court in October.

• Contact Garren Shipley at gshipley@nvdaily.com

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