Nov. 12 TEXAS: Appeals court considering death penalty punishment----Brownsville man slated to die for killing, decapitating his 3 children The Texas Court of Criminal Appeals is expected to decide whether John Allen Rubio will be executed following a Wednesday hearing in which prosecutors and defense attorneys argued over the Brownsville case. Rubio, 25, was sentenced to death for strangling and decapitating his 3 children during a March 2003 incident in which he and his common-law wife, Angela Camacho, used drugs and thought the children were possessed. At his own request, Rubio was given the death penalty in November 2003, but the Brownsville man later decided to fight the capital punishment sentence. Lawyers for both sides of the case appeared before the Texas Court of Criminal Appeals in Austin on Wednesday to argue in favor and against of the death penalty. Cameron County Assistant District Attorney Rene Gonzalez said his office is fighting to uphold the death penalty sentence. Gonzalez said defense attorneys argued that Camachos statement should not have been used against Rubio during his trial and that the court should have also ruled out the use of a videotaped confession made after Rubios March 2003 arraignment. The district attorneys office contends that the statement and videotaped were made and used legally but that Rubio would have been convicted and sentenced to death regardless of their use based on "overwhelming evidence of guilt." First Assistant District Attorney Charles Mattingly said the court is expected to decide the case in 4 to 6 months. (source: Brownsville Herald) **************************** ATTORNEY QUESTIONS JUDGE'S TIES TO LAW ENFORCEMENT A Tyler attorney testified Friday that he believed Jack Skeen Jr. - former Smith County district attorney and current state judge - has too close a relationship with law enforcement to be fair and impartial in his sentencings when officers are victims. Thad Davidson was questioned for about four hours on his opinions about the 241st District Judge after he wrote a sworn affidavit about a case in which the judge sentenced Shane Ray Dykes to 2 concurrent life sentences for stabbing police officers with a methamphetamine-filled needle. Attorneys held an appeal hearing in Skeen's court for Dykes, whose appellant attorney, Don Killingsworth, is claiming Dykes had ineffective assistance of counsel - Rhett Darby - because Darby allowed his client to plead guilty in Skeen's court to assaulting the officers without an agreed sentencing, leaving it solely up to Skeen what punishment to assess. During the hearing, Skeen sat silently listening to the testimony, occasionally ruling on attorney's objections. After the hearing, Skeen said that as presiding judge over the case, he is prohibited from commenting on any testimony that he'll use to make findings of fact and conclusions of law. Davidson has been a criminal defense attorney in Tyler for about four years and was a Smith County assistant district attorney handling misdemeanor cases under Skeen for about a year. Smith County District Attorney Matt Bingham questioned Davidson about his July 2004 affidavit. Davidson said he could not remember ever before prosecuting or defending a case involving aggravated assault on a public servant and he was not present for Dykes' proceedings. He said he based his opinions on his experience as a Tyler attorney, facts of the case Dykes told Killingsworth, who relayed the information to Davidson, conversations with other defense attorneys and prosecutors about Skeen's practices, and newspaper articles. The defense attorney said he left the district attorney's office in 2001 because he was unhappy there and he didn't agree with Skeen's philosophies. He said he felt there was too close a relationship with the DA's office and law enforcement and it was inappropriate for prosecutors to consult officers about what they think a defendant's sentence should be. He said he felt it was a "standing rule" when Skeen was district attorney that all assistant prosecutors were to consult with the lead police officer in the cases on what should happen with the defendants. He said he was not aware that the practice was illegal or unethical, as long as the district attorney made the final decision, but he felt it was wrong if assistant district attorneys feel that they're obligated to follow police recommendations. Davidson said the practice is still in place under Bingham, which he discovered after talking to assistant prosecutors. Bingham said his policy, when disposing of a case, is to contact law enforcement officers who investigate the case to inform them of the decision the state is considering making. He said it is important to talk to officers, who might have additional information about the defendant, which could influence the decision always made by prosecutors. Bingham said his policy is the same as Skeen's was when he was DA. "We never get their (officers') permission before we do something - that's ridiculous," he said. Bingham said his office also contacts the victims, keeping them up-to-date on what is happening in the case and to ensure that they feel justice is done. After nearly 2 hours of questioning, Davidson asked to consult his attorney before continuing with his testimony because he said he felt further questioning might incriminate him. After a brief discussion with Bobby Mimms, he got back on the witness stand. Killingsworth requested that Skeen recuse himself from the case because he might become a witness regarding the allegations against him. But Skeen said the motion to recuse was not timely filed since the affidavit was written more than a year ago. He said his decision on Dykes' appeal regarded whether Darby was ineffective assistance of counsel. Davidson said he believed Skeen's relationship with law enforcement is wrong but he was not aware of any violations of law or professional code of conduct. He said he felt Skeen could not be impartial on cases where police are victims. He said he was told Darby "advised" Dykes to plead guilty. Davidson said an attorney allowing their client to plead guilty to assaulting an officer in front of Skeen is like "throwing your client to the wolves," adding that there would be no possible benefit for the client "because he's going to get hammered." "Mr. Darby led his own client down the garden path to his own execution, so to speak," Davidson said. When asked by Bingham, Davidson said he was unaware of facts in assault on a public servant cases mentioned by the prosecutor in which the defendants received lighter sentences. Davidson said a defense attorney is required to conduct an independent investigation or he can't effectively represent his client. The attorney also must lay down all of his client's options and advise him of the possibilities, but ultimately let the client decide what to do. After Davidson's testimony, Skeen requested that the attorneys file their proposed findings of fact and conclusions of law with the court within 10 days. Then he will make his decision on Dykes' appeal for a new trial. In June 2004, Dykes pleaded guilty to 2 counts of aggravated assault on a peace officer with a deadly weapon. The state initially requested the sentences be stacked but agreed with Darby that they would be served at the same time if Dykes waived all rights to appeal. Tyler police officers Steve Black and Dale Feuquay were stabbed with a syringe Dec. 7, 2003, during a struggle with Dykes. Doctors testified they could have been infected with diseases, such as hepatitis or HIV and they were given medicine that made them sick. The officers were told to refrain from intimate relations with their wives and to be careful with their children. Dykes testified he stabbed the officers because he was trying to escape and to avoid responsibility for his actions. He said he never thought about what the officers or their families went through until they testified and he apologized to them. "I deserve to go to prison," he said. "I deserve life in the pen." But Dykes asked the judge for "mercy" - to sentence him to deferred adjudication probation. He said he has been addicted to drugs for nearly half of his life, using cocaine, meth, marijuana, ecstasy and Xanax. Dykes was given deferred adjudication in 1991 for bringing a gun to school. In 1999, he was given probation for possessing cocaine. It was revoked in 2001 after he failed drug tests and to comply with other terms of release. (source: Tyler Morning Telegraph) ********************* San Antonio man charged in death of UT student In Austin, a San Antonio man has been charged with capital murder in the death of a 22-year-old University of Texas student found fatally shot in his apartment, authorities said. Jason Chacon, 21, was arrested early Friday in connection with the death of William Ehrhardt III, police said. Officers found the student fatally shot in his West Campus apartment Oct. 31 while responding to his 911 call reporting an attempted break-in. Chacon's arrest came a day after police raided his home and charged his mother and brother with marijuana possession. Diana Chacon and Dominic Chacon were released on bond Friday morning. Authorities believe Ehrhardt's death may have been drug-related, according to the Austin American-Statesman. Austin police homicide Sgt. Jessica Robledo told the newspaper that investigators believe the student "had associations with other people who are involved with drugs," adding that the San Antonio Police Department's drug trafficking, surveillance and narcotics units had been involved in the investigation. Authorities did not say what led them to Chacon as a suspect. Ehrhardt, a San Antonio native, called 911 minutes before the shooting to report the attempted break-in but then told an operator that the burglar had apparently left. Officers were responding to his call when they received a 2nd 911 call about a possible shooting and found him wounded, police said. He was hospitalized and died a day later. Neighbors said they heard a gunshot and the sound of breaking glass and saw 2 men fleeing on foot, the newspaper reported. Jared Pack, the victim's high school friend, said he was satisfied with news of an arrest. "As far as finding closure, I guess this helps in some way - knowing that somebody could be punished for this," Pack said. The homicide was the second since August in the West Campus neighborhood, prompting concern from students and parents. Campus police and city law enforcement have said they are examining their methods and working to communicate with each other more efficiently in the wake of the violence, although they do not believe that either homicide was a random crime. UT junior Colton Pitonyak, 22, has been charged with the murder of acquaintance Jennifer Cave, 21, whose body was found Aug. 18. ***************** Man found guilty in TCU retiree's death----Defendant could face death penalty in robbery, slaying of 77-year-old former professor Jurors deliberated about an hour Friday before finding a man guilty of robbing and suffocating a retired Texas Christian University professor last year. Edward Lee Busby Jr., 33, was convicted of capital murder and faces a possible death penalty. The sentencing phase is to begin Monday. In closing arguments Friday, prosecutor Greg Miller told jurors that if Laura Lee Crane was going to die at 77, she deserved to die peacefully and with dignity, surrounded by her family - not as the victim of a horrible crime. "He cut a life short. He did it. He acted intentionally. He wanted to kill her. He took that dignity when he dumped her by the side of the road," Miller said. Busby and his co-defendant, Kathleen Latimer, 41, are accused of kidnapping Crane from a Fort Worth grocery store parking lot on Jan. 30, 2004. Prosecutors say the two forced Crane into the trunk, later wrapping her head with duct tape. They also used her credit cards and a blank check to rob her of more than $775, prosecutors say. The 2 were found driving Crane's car in Oklahoma City 3 days later. The next day, Busby led police to Crane's body in woods off Interstate 35 near Davis, Okla. Busby, who did not testify during his three-day trial, has claimed that he did not mean to kill Crane and that Latimer was calling the shots. Latimer is jailed awaiting trial on a capital murder charge. In closing arguments, defense attorneys acknowledged that the crime was horrendous. They argued that an essential element was missing for a capital murder conviction: intent. They said Busby's tearful statement to police and another written statement show he didn't mean for Crane to die. "Do not do this. Do not equate unforgivable cruelty with intent," said Jack Strickland, Busby's attorney. "Do not equate mindless, reprehensible behavior with intent, because the law doesn't." (source for both: Associated Press) INDIANA: Man accused of killing 3 could face death penalty In Rockville, a Parke County prosecutor will seek the death penalty for Chad A. Cottrell, the western Indiana man charged with murdering his wife and 2 stepdaughters, crimes a sheriff said were committed to conceal the man's sexual abuse of the girls. Cottrell killed his wife, Trisha Cottrell, 29, and her daughters, 12-year-old Brittany Williams and 10-year-old Victoria Williams, while molesting or trying to molest the girls, Parke County Prosecutor Steven Cvengros charged in the state's notice of intent to seek the death penalty. The document was filed Thursday in Parke Circuit Court. Cottrell was trying to "hush" the 3 from reporting the abuse, Parke County Sheriff Charles Bollinger told The Brazil Times for a Friday story. Cottrell has pleaded not guilty and is being held without bond in the Parke County Jail. The girls' grandmother, Tricia Parker, discovered the bodies Oct. 31 inside bedrooms in the family's rural Parke County home. (source: Indianapolis Star) *********************** Brother Of Unabomber Speaks Out Against Death Penalty An art exhibit adds to the debate over who should and shouldn't be on Indiana's death row. Mental disability is becoming a growing part of the death penalty debate. The story behind one of the country's most notorious criminals helped bring the issue to light. The pictures are haunting images from Indiana's prisons. "There are real people, people with complex emotions and ideas," Michael Hartt with IICACP said. Prisoners created these sketches and drawings. Some painted clocks in the background of familiar rooms. The time reads one minute to midnight. It's an exhibit of inmate art, meant to give voice to people sent to Indiana's death row. "The voices of people who are locked away on death row, the voices of people who are mentally ill," Alice Fitzgerald with IICACP told News 8. The exhibit includes some of the artwork from one of the most recent residents to make it to death row, Frederick Baer. Baer went to prison for killing a Madison county woman and her young daughter. The Parke County Prosecutor wants the death penalty for Chad Cottrell, accused of killing 3 people earlier this month. David Kazcynski's brother was headed to death row too, until a judge gave him life in prison instead. "Everybody saw his image on tv, and heard the description of the crimes," David Kazcynski, the Unabomber's brother told News 8. Ted Kazcynski was the Unabomber, captured after a 17-year manhunt. David turned his brother in, and then fought with his conscience about Ted's battle with schizophrenia. "Unfortunately, the justice system doesn't recognize mental illness. It doesn't weigh that into the bargain and we end up with death rows filled with people with mental illnesses," David Kazcynski said. He also brings up the question, should mentally ill prisoners stay on death row? "I'd give anything if Ted's illness had never caused him to do what he did, but we have to live with what we have, and we try to bring something good out of something bad, and I think that is true for all of us who have been affected by violence," David Kazcynski added. It's an issue that's already hit home for Hoosiers. Governor Mitch Daniels stopped Arthur Baird's execution in August, citing Baird's mental illness as the reason. David Kaczynski says he understands what his brother's victims went through. He says some of the victims' families have joined him in making sure the application of the death penalty is fair and just. (source: WISH News) SOUTH CAROLINA: More Aiken County inmates on death row Arthur Hastings Wise was executed Friday afternoon at Broad River Correctional Institute in Columbia. A former Phelon employee, Wise was convicted of killing 4 of his former co-workers and critically wounding 3 other Phelon employees in September 1997. On Friday, Wise, who lived in Belvedere at the time of his crimes, was the 1st man executed for a crime prosecuted in the Aiken County area since the lethal injection of Jerry Bridwell McWee in April 2004. McWee was the 1st defendant to be executed following prosecution by Second Circuit Court Solicitor Barbara Morgan. Wise was sentenced to die in February 2001. He too was prosecuted by Morgan. The most recent prisoner to be executed in South Carolina was one of 71 inmates who have been sentenced to the death penalty in the state and one of four sentenced in Aiken County. Also on death row for crimes committed in Aiken County are Donnie Council, William E. (Junior) Downs and David Mark Hill. Council was sentenced to death for the murder of Elizabeth Gatti in 1992. Council was convicted of attacking the 72-year-old Gatti in her Bath home and, after brutalizing her, forcing her to drink a poisonous concoction of household cleaners, etc. He has been on death row since 1996. Hill has actually been on death row longer than Wise - since his 2000 conviction in the deaths of 3 workers at the North Augusta branch of the Department of Social Services. He murdered Michael Gregory, James Riddle and Josie Curry in the aftermath of a decision to remove Hill's children from his home. He then shot himself prior to being apprehended by North Augusta authorities. Sentenced to death for crimes also committed in North Augusta, Downs was convicted of the murder of 6-year-old Keenan O'Mailia, who was snatched and brutalized near his Georgetown Villas home in April 2001. The total death row population in 2004 - the last date for which the Department of Corrections has figures - included 34 black males and 37 white males. That year the Department records four resentenced and four executed. The average age of inmate on death row is about 37 years. Wise was 51 when he died. The average time served is nearly 8 years. Wise had only been on death row for 4 years and 9 months - probably because he had not taken advantage of all the legal avenues available to him. But it had been more than 8 years since Wise opened fire in the Aiken manufacturing plant, claiming 4 lives and seriously injuring 3. Wise's death brings the total of executions carried out by the State of South Carolina since Aug. 6, 1912, to 271, according to the S.C. Department of Corrections statistics. Prior to 1912, executions were carried out by individual counties in the form of hangings. Of the 271 thus far, 65 were white and 206 were black. All but 2 were men. The state used an electric chair until 1995, when it switched to lethal injection. Since June 1995 a person receiving the death penalty has been allowed to elect lethal injection over electrocution. Anyone sentenced before June 8, 1995, automatically receives electrocution unless he/she requests lethal injection in writing 14 days prior to the appointed date. Anyone sentenced after June 8, 1995, automatically receives a lethal injection unless electrocution has been requested on the same timetable. The last electrocution in the state took place last year when a death row inmate refused to sign the paperwork to make lethal injection possible - reportedly because he felt signing anything would somehow admit guilt. (source: North Augusta Star) ILLINOIS: Cop: Murder probe thwarted again----E-mail raises doubts in '86 double slaying 5 months after a jury concluded Illinois State Police brass thwarted an investigator's effort to probe a politically sensitive double murder, another investigator assigned to the case made similar allegations. Special Agent Jeffrey Marlow, in a Sept. 9 e-mail to his immediate superior, said special prosecutors overseeing the investigation seem to have "an agenda which serves to compromise further an already tragic transgression of the justice system." The e-mail relates to a case long dogged by allegations that two men, one of whom was sentenced to death, were wrongfully convicted. Marlow is the fifth investigator to allege interference with efforts to look at alternative suspects in the 1986 murders of newlyweds Karen and Dyke Rhoads in Downstate Paris. Noting that his request to be removed from the case was denied, Marlow wrote that he does "not want to be part of the attempted railroading of anyone." The e-mail was mailed anonymously to the attorney for now-retired Lt. Michale Callahan, who filed a federal civil rights suit accusing his superiors of thwarting his investigation of the Rhoads murders. In April, a jury ruled in Callahan's favor and against Lt. Col. Diane Carper and Capt. Steven Fermon. Carper allegedly called the case "too politically sensitive" after learning a potential suspect Callahan wanted to target had donated tens of thousands of dollars to Republican statewide candidates. Callahan last week accepted an order in the case awarding him $360,000 in damages. Meanwhile, the state police continue an investigation of the Rhoads murders to determine whether to retry Gordon "Randy" Steidl. A federal judge granted him a new trial, which led to him being set free in May 2004. Marlow and Sgt. Greg Dixon are doing the legwork in the new investigation. Dixon and 2 of his superiors backed up Callahan's allegations at trial. Their investigation has become an issue in the defense of Herb Whitlock, 59, who is serving a life sentence in the case even though Steidl, his one-time co-defendant, was freed. Edgar County Circuit Judge H. Dean Andrews in June denied Whitlock's request for a new trial. After that denial, Whitlock's attorneys sought and received a report on the investigators' interview of Phil Sinclair, a one-time associate of key prosecution witness Debra Rienbolt. Conflicting stories Sinclair, who passed a lie-detector test, said Rienbolt told him she was not--as she testified--a witness to the murders, that she went to Paris police to try to claim a reward, and that she had had a sexual relationship with a Paris detective assigned to the case, according to the report. Prosecutors have questioned the reliability of Sinclair, who is on parole for burglary and theft. Andrews is scheduled to hold a hearing Monday on whether to reconsider his decision, partly based on the Sinclair report. Marlow's e-mail also will be discussed, said attorney Richard Kling, who along with Susana Ortiz represents Whitlock. Sources on Friday confirmed the authenticity of the e-mail, sent to Capt. Bruce Zywiec. Lt. Lincoln Hampton, a state police spokesman, said his agency would "look into the situation, review it and decide on a course of action, internally." In the e-mail, Marlow said he and Dixon "caused a tumultuous uproar when we interviewed and polygraphed Sinclair." Marlow also alleged superiors "shut down" his attempt to interview Steidl, who he suggested could tell him more about "the organization which IS responsible for the murders." Steidl, 54, spent 17 years in prison, including 12 on death row. He has asked for a gubernatorial pardon on the basis of innocence. Witnesses called into doubt Marlow said he came to believe Rienbolt and Darrell Herrington, the two main witnesses at Steidl's and Whitlock's separate trials, were not credible. "At this point, I make no attempt at hiding the fact that I feel the main two witnesses used to convict Steidl and Whitlock were created," he wrote. "The farther a true and unbiased investigation proceeds, the more one feels there was wrongdoing concerning the original prosecution," he added. Marlow wrote that the probe was "being directed by David Rands" of the appellate prosecutor's office, the special prosecutor in the Whitlock case. He accused Rands' office of "ramrodding this case. ... Ideally, this would be handled by an independent agency." Rands declined to address Marlow's allegations. "In investigations, it's very important that we not talk about it while the investigation is still going on," he said. That, he said, protects the investigation and "the people who are possible targets." He said his office is not focused solely on Whitlock and Steidl. "My intent in the investigation has always been to identify, if possible, and prosecute, if possible, any persons responsible for these homicides." But Ortiz, one of Whitlock's attorneys, said the e-mail shows Marlow and Dixon, like Callahan, are not being allowed to probe the case wherever the evidence leads. 'A culture of corruption' "It shows a culture of corruption at the Illinois State Police," she added. "I think you do need an independent, outside investigation." Atty. Gen. Lisa Madigan's office is investigating the Whitlock case. In the Steidl case, Madigan's office determined that "information favoring the defense was never disclosed." Kling and Ortiz had asked Madigan's office to step in and "declare error" in Whitlock's case, but Barry Gross, Madigan's chief deputy, said that unprecedented action was unlikely "at this juncture." But Gross said his office would ask questions about Marlow's e-mail as it continues to investigate the matter. "We are concerned about the allegations that have been made, and we are looking into them," he said. Steidl in a federal civil suit has alleged prosecutors sought to frame him and Whitlock. Kling and Ortiz alleged former Edgar County State's Atty. Michael McFatridge, who denied wrongdoing, encouraged witnesses to lie on the stand at the initial trials. McFatridge's two main witnesses, Rienbolt and Herrington, have repeatedly changed their stories, according to prosecutors and defense attorneys. No physical evidence links Whitlock or Steidl to the crime. Callahan, who came to believe Steidl and Whitlock were innocent, has alleged the original convictions were the result of prosecutorial misconduct. Marlow's e-mail, Callahan said, shows "they haven't learned their lesson. ... They have no desire to search for the truth in this case." (source: Chicago Tribune) FLORIDA: Family Braces For 3rd Trial Although his life was cut short, Scott Mitchell was considered a gift by his family. The 32-year-old Bartow native was the youngest son of W.B. "Preacher" Mitchell, a well-known citrus grower and rancher. Although he loved fishing, hunting and joking around, his father and 4 older siblings watched as Scott Mitchell grew into an accomplished young man. He was 2nd-in-command of the family's business, WBM Inc., which was responsible for overseeing more than 2,500 acres of groves. In fact, his father was preparing to recognize his youngest son's hard work by giving him a 15-acre grove and about 150 cattle. "He was more than capable," said Mitchell's brother, Roy Dan. "Dad was really proud of him." On May 16, 1994, Scott Mitchell was preparing to check on harvesting crews when he was ambushed in a grove maintained by his family near Alturas. Investigators later concluded he stumbled upon trespassers who were stripping a stolen car of valuables. Mitchell was shot while trying to back out of the grove in his red Chevrolet pickup truck. W.B. Mitchell would later discover his son's body. Slumped behind the wheel, Scott Mitchell had been shot twice in the head with 2 different weapons. The foot of his lifeless body remained on the brake pedal. The truck was still in reverse with the engine running. GOING TO TRIAL FOR A 3RD TIME? Scott Mitchell's murder sent shockwaves through Polk's closeknit citrus community. Landowners posted no trespassing signs and urged deputies to check out suspicious activity on their property. Lawrence Crow Jr., former Polk County sheriff, said helicopter flights over groves reported any suspicious vehicles inside. "There was a great deal of apprehension in the citrus community because Scott was a well-respected citrus man," Crow said. "It caused some fear among the growers. We put a lot of time and effort into solving that case." But more than 11 years later, prosecutors are still trying to convict Darryl Earl Moody -who remains the only person charged with the fatal shooting of Scott Mitchell. They succeeded once in sending the 43-year-old Lake Wales man to death row. But about 4 years later, the Florida Supreme Court overturned Moody's conviction and sentence on Jan. 23, 2003, because of an illegal search of his car, ordering a new trial. Last year, a 2nd jury convicted Moody of 3rd-degree murder in Mitchell's death and acquitted him of related felonies. But he has again been granted a new trial because of jury misconduct. Circuit Judge Susan Roberts -who has presided over Moody's case since his 1st trial in 1998 -ruled that the 3rd-degree murder conviction of the second jury isn't credible because of the jury's misconduct. Therefore, Roberts concluded that Moody remains eligible for prosecution on 1st-degree murder. On Wednesday, the Lakelandbased 2nd District Court of Appeal put a hold on what would have been the 3rd trial against Moody, which was to begin Monday. Moody's lawyer, Robert Norgard, filed an emergency petition with the 2nd DCA, arguing that his client cannot be tried for an offense higher than 3rd-degree murder. Norgard says the Florida and United States constitutions clearly prohibit "double jeopardy" -or a retrial for any higher offenses for which a person has been convicted. The 2nd DCA gave Florida Attorney General Charlie Crist's office 30 days to provide a written response to Norgard's argument. A "COMPROMISE VERDICT" Moody's retrial in 2004 resulted in what some jurors have called a "compromise verdict." The jury's 3rd-degree murder verdict surprised those involved with the case. In order to convict Moody of the crime, jurors would have had to find him guilty of a lesser felony, such as grand theft, during which Mitchell was killed. But the jury acquitted Moody of burglary, grand theft, shooting into an occupied vehicle and dealing in stolen property. The jurors also found that Moody had not used a firearm -indicating that they didn't think he was a shooter. "The problem with trying to figure out why jurors did what they did is that to some extent that is almost an impossible task," Norgard said. When allegations of jury misconduct surfaced, Roberts summoned the jurors back to court for individual interviews. She discovered how their deliberations raged on for more than 11 hours over 3 days. At one point, the discussions turned ugly with jurors yelling and namecalling. One juror accused others who wanted to convict Moody of being racist. Women began to cry. James Applewhite, the jury's foreman, told Roberts on May 11 that he couldn't rule out the possibility that being called a racist might have affected his decision. "Honestly, it could have," Applewhite said. "I would say it could have (because) then I was trying extra hard, myself, to be extra careful about everything and what you do, what you say and everything." Roberts concluded "racial tension" prevented meaningful deliberations from taking place. She also noted that one or more jurors had obtained information about the case from outside the courtroom. In a recent interview, Tommy Thompkins, a juror from the second trial, said he felt evidence presented at the trial clearly shows Moody was at the crime scene. "It places him in the right spots at the right times," said Thompkins, 50, of Lakeland. "Other than that, there wasn't more for a jury to go on. There's no doubt in my mind that he was in that grove." But Thompkins said he still struggles to understand to what extent Moody was involved in Mitchell's death. "I am not so sure to this day that he pulled the trigger," Thompkins said. "It's not black and white. I think he did. I can't be 100 % certain." The investigation concluded the 2 shots in Mitchell's head came from 2 different weapons. One murder weapon, a Rossi .38-caliber revolver, would later be recovered from a man who said he bought the handgun from Moody for $60. The 2nd murder weapon has never been found. Prosecutors have theorized that, before the shooting, Darryl Moody and his younger brother, Dexter, were stripping a stolen green Buick Regal inside the grove when Mitchell surprised them. But Dexter Moody has never been charged in Mitchell's death. "It never appeared there was sufficient evidence to establish Dexter Moody's guilt beyond a reasonable doubt," said Administrative Assistant State Attorney Chip Thullbery. Although it was never discussed during deliberations, Thompkins said he was troubled that no information presented at the trial touched on what happened to Dexter Moody. "It's like he dropped off a cliff somewhere," he said. During a recent telephone interview, Dexter Moody, 39, of Lake Wales denies any involvement in Mitchell's death, saying the mere allegation has ruined his life. "It messed my whole life up," he said. "I don't like talking about that." Dexter Moody also said he no longer talks to his brother, Darryl, and doesn't want to play any part if a 3rd trial is granted. "I don't know nothing about all that," he said. TIME-CONSUMING CASE State Attorney Jerry Hill said he is frustrated that his office must go to such lengths to keep Moody behind bars. "This man cannot escape justice," he said. Hill acknowledges that his office has spent time, money and resources bringing 2 trials against Moody. But he remains committed to fighting for a 3rd try. "We think it's an incredibly justifiable expense in this case," Hill said. Roy Dan Mitchell said his father never seemed to recover after the "devastating" loss of his youngest son. W.B. Mitchell died less than 2 years later from cancer. He was 80. "Scott basically gave dad a reason to live," Roy Dan said. "He could see that his child was evolving into a young businessman." Mitchell said his family knows know it won't be easy to go through the pain of a 3rd murder trial. They just hope to get the chance. "Matter of fact, we've been praying for another chance since the verdict in the 2004 trial," he said. (source: The Lakeland Ledger)
