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Location: Strasburg, Virginia

Wednesday, February 08, 2006

Judge grants Bell last hearing; B1

Convicted man gets another shot to avoid execution

By Garren Shipley
(Daily Staff Writer)

Edward Bell has one last chance to avoid execution.

A ruling in federal court earlier this week all but closed the door on Bell’s last substantive appeal, but did grant him a hearing to prove that his lawyers were ineffective during his sentencing.

A Winchester Circuit Court jury convicted Bell in 2001 for the 1999 slaying of Winchester police Sgt. Ricky Timbrook. The jury later sentenced him to death.

He has since exhausted all of his state appeals and was slated to be executed in January 2005. But a new team of lawyers took up the case and won a stay of execution while the federal courts reviewed his case.

Bell’s case came to prominence outside of Winchester during the 2005 gubernatorial campaign, when Republican candidate Jerry Kilgore aired a television ad in which Timbrook’s widow, Kelly, said she didn’t trust the Democratic nominee, now Gov.
Tim Kaine, to carry out a death sentence.

Some observers said those ads backfired on Kilgore and helped turn what was a 10-point lead in the polls into defeat in November.

The part of that review most likely to give Bell a new trial or at least a new sentencing is now over, and the judge’s ruling went almost completely against Bell.

Judge James P. Jones, the chief judge of the U.S. District Court for the Western District of Virginia, ruled Tuesday that Bell’s claims of mental retardation — which would make him ineligible for the death penalty — were un-founded in Virginia law.

Bell’s lawyers didn’t raise the issue during trial, which makes it impossible for federal courts to look at the possibility, Jones wrote.

“However, even were I to excuse the procedural defaults … the evidence is insufficient to entitle Bell to relief or even to a hearing in this court,” Jones wrote.

Bell may have posted a retarded score on one IQ test, the judge wrote, but it’s not one of the tests used by the commonwealth to determine mental capacity.

Jones parted company with the Virginia Supreme Court, however, on issues of lawyer effectiveness. The commonwealth’s highest court found that there was mitigating evidence introduced and that his lawyers did enough to prove to the jury that Bell wasn’t a danger if he was released from prison.

But the federal court pointed to a laundry list of potential evidence that wasn’t introduced, such as testimony about Bell’s relationship with his children, and wants to hear more.

“Despite all of this potential mitigation evidence, the mitigation case put forth by Bell’s trial counsel consisted of only two witnesses, Bell’s sister and father, who testified collectively for less than seven pages of transcript,” Jones wrote.

“Trial counsel did not ask Bell’s sister or father a single question about Bell’s background, his relationships with his family, his children or any other potentially mitigating factors,” he wrote.

The closing argument by both sides serves to prove the point, according to the judge.

“The prosecutor noted that Bell had not ‘produced one shred of evidence of mitigation’ … Moreover, defense counsel stated in closing argument that ‘[t]he testimony that was offered was very graphic about a violent man. We didn’t rebut it. Not try to defend it, refute it. We didn’t,’” Jones wrote.

That’s enough to make Jones hold his final judgment on the issue until he’s seen evidence from both sides on the matter.
If Bell wins, Jones may order a new sentencing hearing with more mitigating evidence to be introduced. If the state comes out on top, it will all but put an end to Bell’s chances to avoid the death chamber.

Jones also rejected claims that the Vienna Convention, a treaty that deals with how countries handle the arrest of foreign nationals inside their borders, was violated.

Bell’s attorneys said the Jamaican consulate in Washington should have been notified earlier when Bell was arrested.

No date for the hearing had been set as of Wednesday.

Neither side had much to say after the ruling.

“We can’t comment on ongoing litigation,” said Tucker Martin, a spokesman for Attorney General Bob McDonnell.

As for Bell’s team of lawyers, “the focus is on the next hearing,” said Greg McCarthy, a spokesman for the law firm handling the case.