Court Stays Execution Of Va. Man, Takes Case

Edward Bell, right, was convicted of murder in the 1999 shooting death of a police officer. Bell's appeal lawyers say his trial lawyers did not offer mitigating evidence to argue against a death sentence.
Edward Bell, right, was convicted of murder in the 1999 shooting death of a police officer. Bell's appeal lawyers say his trial lawyers did not offer mitigating evidence to argue against a death sentence. (2001 Photo By Scott Mason -- Associated Press)
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By Tom Jackman
Washington Post Staff Writer
Tuesday, May 13, 2008

The U.S. Supreme Court yesterday stayed the July execution of a Virginia man convicted of killing a Winchester police officer after the killer's appeals lawyers pointed out that the jury heard no positive "mitigating" evidence about him before sentencing him to death.

The appeals lawyers for Edward N. Bell also noted that federal courts are split on the issue of how to analyze whether the trial lawyers' defense was reasonably effective. The Supreme Court often takes cases to resolve such splits and accepted Bell's appeal, without comment, for oral arguments in the fall.

"For some time, there has been an anomaly in the law," said James G. Connell III of Fairfax, one of Bell's appeals lawyers. "Federal courts are expected to defer to state courts, when [in fact] the state court didn't have all the facts."

Bell's lawyers argue that the facts did not all come out until the case reached federal court, because Bell's original lawyers did not present any evidence about his life during the sentencing phase of the case.

In most criminal cases in Virginia, if a jury finds a defendant guilty, the case enters a sentencing phase. Prosecutors give additional evidence, to show that the defendant either committed a particularly vile crime or is a future danger to society. Defense lawyers typically give evidence that their client has had a difficult life or is not an evil person.

In death penalty trials, mitigation evidence produced by the defense is often seen as the most important part of the trial by defense lawyers, who are battling to save their clients' lives.

But Bell's lawyers decided not to introduce any evidence, and the Virginia Supreme Court and the U.S. Court of Appeals for the 4th Circuit found that to be a reasonable decision.

In October 1999, Winchester Police Sgt. Ricky L. Timbrook was working with a probation officer to track people on probation. Late one night, as Timbrook and the probation officer approached two men, one of the men took off running. Timbrook chased him through a neighborhood and was shot once in the face at close range. His wife was pregnant with their first child.

Bell was convicted in 2001 of capital murder. Jud Fischel and Mark Williams, Bell's lawyers for the trial, hired a psychologist to examine Bell but did not present the psychologist's findings or any other evidence in the sentencing phase.

A juror later testified, according to court records, that the jury was "looking for something mitigating, some reason not to sentence him to death, but . . . were given nothing by his lawyers."

After the Virginia Supreme Court rejected Bell's appeal, newly appointed appeals lawyers said they uncovered new evidence and persuaded U.S. District Judge James P. Jones to hold an evidentiary hearing.

Jones heard from Bell's family about an abusive childhood and his willingness to care for others. Jones found the trial lawyers' performance deficient, but not enough to reverse the conviction. The 4th Circuit agreed.

Bell's lawyers argued that other federal circuits have found that failure to introduce mitigating evidence can be prejudicial. They said the 4th Circuit has never found such failure to be harmful to the defendant.

David Clementson, a spokesman for Virginia Attorney General Robert F. McDonnell (R), said his office "will diligently represent the interests of the commonwealth before the Supreme Court to ensure that justice is done. Our thoughts and prayers remain with the family of police Sgt. Rick Timbrook."


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