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Posted January 8, 2008 | Copyright © The Northern Virginia Daily
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Bell’s attorneys file Supreme Court brief

Lawyers will try to prove to high court lack of evidence at Winchester sentencing hearing

By Garren Shipley -- Daily Staff Writer

Whether condemned murderer Edward N. Bell lives or dies could come down to how nine people answer one question — whether he got an adequate defense from his attorneys during sentencing.

Lawyers for the Jamaican national filed a brief with the U.S. Supreme Court on Thursday, hoping to persuade the nine justices to send the case back down for further consideration, rather than upholding Bell’s death sentence.

Bell was convicted in 2001 of the 1999 slaying of Winchester police Sgt. Ricky L. Timbrook and sentenced to death by a Winchester Circuit Court jury.

Direct appeals and petitions for habeas corpus wended their way through both the federal and state court systems for years, until a three-judge panel of the 4th Circuit U.S. Court of Appeals in Richmond denied Bell’s petitions earlier this year.

Much of Bell’s case has been anchored around the fact that his trial lawyers put on scant evidence during his sentencing hearing to convince jurors that their client should receive life in prison, rather than death.

In their brief before the Supreme Court, Bell’s lawyers argue that federal courts have new evidence that their client’s trial team didn’t do their jobs effectively — evidence that wasn’t considered at the state level.

Under the 1996 Anti-Terrorism and Effective Death Penalty Act, Congress has instructed federal courts to stop second-guessing state courts on matters that have been “adjudicated on the facts.”

That slams the door on most state prisoners asking the federal courts to intervene. Federal habeas corpus petitions are more often than not resolved using a body of evidence identical to the one presented to state courts.

“In a small minority of cases, however, the evidentiary record will expand or change to such an extent that the claim adjudicated by the federal court will differ significantly from the claim before the state court,” they wrote.

That’s what happened in Bell’s case, the attorneys state.

The Virginia Supreme Court declined to give Bell the resources to look for mitigating evidence that his trial lawyers could have found.

But the U.S. District Court for the Western District of Virginia took a different tack, ordering an evidentiary hearing in Harrisonburg in July 2006, where several witnesses testified that they would have been more than willing to speak on Bell’s behalf.

New evidence puts the judgment of the federal courts, not that of Virginia’s state courts, in the driver’s seat, Bell’s attorneys wrote.

“If federalism and comity do not prevent a federal court from receiving new evidence, then those principles similarly should not prevent that court from considering the evidence it has received.”

But Bell’s lawyers go out of their way in the new filing to tell the high court that it shouldn’t become a new jury for their client.

“This Court need not decide whether, ultimately, the jury would have believed Bell’s witnesses over the prosecution’s with respect to his future dangerousness,” they wrote.

Instead, the U.S. Supreme Court should send the case back to the 4th Circuit in Richmond with instructions to grant Bell a new sentencing hearing or some other form of relief.

A Winchester Circuit Court judge set Bell’s execution date for April 8, but Democratic Gov. Timothy M. Kaine intervened on April 1, postponing the execution in order to see the outcome of Baze v. Rees, a U.S. Supreme Court case in which a condemned inmate challenged the constitutionality of lethal injection.

The high court upheld the practice just two weeks later, apparently clearing the way for a July execution date.

But the U.S. Supreme Court decided in May to hear part of Bell’s petition, and Chief Justice John Roberts issued a stay of execution.

The commonwealth’s brief in the case is due Sept. 29. Oral arguments are set for Nov. 12.

* Contact Garren Shipley at gshipley@nvdaily.com

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