The U.S. Supreme Court yesterday ordered Virginia's highest court to review the case of a death-row inmate convicted of abducting and murdering a 22-year-old McLean man in 1995.
The Supreme Court said the judge at the murder trial had erred when he allowed statements by the defendant's brother to be introduced into evidence even though the brother refused to take the witness stand so the defendant's attorneys could question him.
The case was sent back to the Virginia Supreme Court, which must reconsider whether the trial judge's error affected the case's outcome.
"The chances are very high that a new trial will be granted," said Ira S. Sacks of New York, an attorney for Benjamin Lee Lilly. "I don't see how any reasonable jurist could conclude that two confessions by the defendant's brother are something that the jurors did not take into account" in reaching the verdict. Lilly was convicted of killing Alexander V. DeFilippis, a student at Virginia Tech in Blacksburg.
Virginia Attorney General Mark L. Earley issued a statement saying that if there is a new trial, the state again will seek the death penalty.
Court records show that on Dec. 5, 1995, the Lilly brothers, Benjamin, 27, and Mark, 20, and Mark's roommate, Gary Wayne Barker, 20, abducted DeFilippis about a mile from the Tech campus after the three men's car had broken down.
The carjacking occurred when DeFilippis, a Tech junior, drove to a convenience store to copy some notes for upcoming exams. The three men then drove DeFilippis's car to a deserted spot, where he was shot and killed.
After their arrests, Mark Lilly told police that his brother shot DeFilippis and that when he and Barker asked him why, he replied, "Because he saw my face."
At Benjamin Lilly's trial, Mark Lilly invoked his Fifth Amendment right against self-incrimination in refusing to testify. Prosecutors offered his tape-recorded, 50-page confessions into evidence, and they were admitted over objections by Benjamin Lilly's attorney.
The jury found Benjamin Lilly guilty of capital murder and sentenced him to die. For their part in the abduction, Mark Lilly was sentenced to 49 years in prison and Barker to 53 years.
On appeal, the Virginia Supreme Court upheld the trial judge, saying the confessions qualified as a "firmly rooted exception" to the admission of hearsay evidence because "Mark Lilly was cognizant of the import of his statements and that he was implicating himself as a participant in numerous crimes."
But in yesterday's ruling, the U.S. Supreme Court said the Virginia Supreme Court should not have accepted the trial judge's finding..
Larry Traylor, spokesman for the Virginia Department of Corrections, said that after the court order reaches his agency, Lilly probably will be moved off death row to another part of the Sussex prison, awaiting further court action.