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Justices listen to Bell case

Man on death row for killing city officer

By Garren Shipley -- Daily Staff Writer

WASHINGTON — The fate of a Winchester man awaiting execution for a 1999 murder is now in the hands of the U.S. Supreme Court.

Justices heard oral arguments in the case of Edward N. Bell on Wednesday, quite likely the last stop in Bell’s long legal journey.

The Jamaican national was convicted in 2001 of the murder of Winchester police Sgt. Ricky L. Timbrook, but has been pursuing appeals through the federal and state court system ever since.

He was scheduled to die in July, but Chief Justice John Roberts issued a stay of execution when the high court took the case.

If oral arguments are any indication, Bell’s legal team has a very high hill to climb in order to prevail.

Bell’s lawyers argued that evidence presented at a 2005 hearing on a claim of ineffective assistance of counsel should have allowed the U.S. Court of Appeals for the Fourth Circuit to take a fresh look at his case, rather than defer to the judgment of the Virginia Supreme Court.

But Roberts expressed concern that Bell’s theory could throw open the doors to limitless challenges from death row inmates.

“You’re looking at someone’s childhood,” Roberts said. “You can always find a new anecdote, a new concern going either way, that you know, this was unusual because he was a good child, or this is excused because he had such a bad upbringing.”

In the end, justices will have to determine whether Bell has enough “new” evidence to warrant a new review by the Court of Appeals.

“What is the test for determining whether the addition of new evidence is sufficient to make it a new claim?” Justice Samuel Alito asked.

Other justices hinted that the case may not have been what they thought it was when they agreed to hear it earlier this year.

Justice Stephen Breyer appeared concerned that the federal law in question — the Anti-Terrorism and Effective Death Penalty Act of 1996 — might not give prisoners a way to fight a truly manifest injustice by state courts.

Justice David Souter went in a similar direction.

“If we don’t … recognize [in some cases] that there is a claim that can be litigated in the federal court, which will not be subject to deference to state court findings, then there is a very clear hole in the law,” Souter said.

“I assume Congress didn’t mean to leave it,” he added.

Bell’s case may not be an instance where the federal law keeps a federal court from correcting an injustice at the state level, “but [that’s] the case we are worried about around the corner,” he said.

The entire court may have misunderstood what Bell’s team had claimed, added Justice John Paul Stevens.

“The assumption I think we made when we took the case was that there was a body of evidence that had not been available in the state proceeding that might be available in the federal proceeding,” he said.

If there is no new evidence for the court to consider, “maybe we shouldn’t have taken the case,” Stevens said.

Justice Antonin Scalia asked the commonwealth’s lawyer what to do with the case if there wasn’t enough new evidence to grant a new review.

“I think the court could dismiss this as improvidently granted,” said Katherine Burnett, the senior assistant attorney general. Such an action would effectively “undo” the court’s decision to hear the case.

“That’s it?” Scalia asked.

“I think the court could do that,” Burnett answered.

Justices could issue an opinion in the case any time before the end of their term in June.

* Contact Garren Shipley at gshipley@nvdaily.com



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