Daleen Berry
Cumberland Times-News
April 17, 2008 11:56 am
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CUMBERLAND - The public defender representing a Friendsville man accused of murder says documents being withheld by the state are needed to give his client a fair trial.
Motions involving the case are being heard today in Washington County District Court. Stephan Moylan, who represents Norris Rush, the man charged with second-degree murder in the fatal shooting of former Garrett County resident David Lancaster, also said it's possible a plea deal may result as well.
"Anything's possible," Moylan said, and could happen anytime all the necessary parties are present at such a hearing.
Garrett County State's Attorney Lisa Welch refused to comment about the matter, saying it would be "absolutely inappropriate" to do so.
Among other things, the outcome of today's hearing will determine whether Welch will have to turn over witness statements Moylan has been asking for since Dec. 3, 2007, shortly after Rush was charged in the then 1-year-old murder. Moylan maintains the law is on his side in this matter: Rule 4-263, regarding the state's rules for discovery, allows for it.
Specifically, that rule says the state must furnish without request anything to the defense that tends to "mitigate the guilt or punishment of the defendant," or which provides "pretrial identification of the defendant by a witness for the State."
Moylan said the statements given by Billie Jo Zimmerman, the state's only eyewitness to what happened the night of Dec. 3, 2006, fit that criteria. Rush has claimed he shot Lancaster in self-defense, but Zimmerman's statements vary about the details.
According to a court transcript of an Oct. 31, 2007, preliminary hearing, Capt. J.D. Murphy of the Garrett County Sheriff's Office testified Zimmerman has given four statements, including her grand jury testimony.
Based on Murphy's testimony in the preliminary hearing, Moylan argues those statements are all different. "Ms. Zimmerman's statements don't match up. There's things that don't match up in the state's case between what they told us at the preliminary hearing and what is written down on paper in discovery."
Because he hasn't received Zimmerman's statements, Moylan said he is concerned. "If a person that is the main witness, the only eyewitness, gives four different accounts and they're different ... none of them match, I'm assuming the fourth doesn't match, either."
And Moylan said he's "baffled" about why his client is being denied evidence that could help him. "My issue is, it's good for me to know what my case is. It's good for me to know what the state's case is so I can assess it," he said.
Ensuring his client receives a fair trial is important, but Moylan said it's almost as important he see Zimmerman's statements because "most cases ... get pled out ... if they're good witness statements, for the state, I need to know that so I can advise my client properly."
Moylan also said the "deck is stacked against my people already. My people are poor. They're charged with a crime. And then they have the whole weight of the state coming down on them."
This isn't the first time Moylan has had trouble getting the state's attorney to provide him with what he needs to represent his clients. "That is my experience. Compared to other folks, compared to other places, she holds onto information more than others. The discovery, in my mind, is an issue with her," he said.
A public defender since 1990, Moylan said he's worked with different state's attorneys in the Baltimore area. Admitting some of them "would hide the ball and they wouldn't give you grand jury testimony of witnesses ... most state's attorneys (did). I mean in Cumberland they're wonderful ... They'll give you everything ... it is easier to deal with someone who just doesn't hide the ball," he said.
It's easier when there is "a true open file policy," Moylan said. "They call their policy open file in Garrett County but a lot of times it's open file because there's nothing in the file because the police officers have the stuff," he added.
Refusing to give the defense documents, Moylan said, creates "a huge inconvenience and a burden on us when they don't give us these things ahead of time."
But it also slows down the judicial process. Moylan said his experience has been to go to trial "and then the judge will strong arm the state and say, 'Come on, just give him the stuff.'" That results in a postponement of "sometimes a few minutes, sometimes days or longer," Moylan said, so the defense can then prepare.
"Courts don't like to do that. Especially in the middle of a jury trial," he added.
Welch also refused to answer general questions about her office's procedures for releasing evidence to the defense during a Wednesday phone interview.
She has been mostly tight-lipped about the case in spite of claims by Lancaster's family that justice is not being served for their loved one. Those claims have led to public outcry, media reports and even a petition that asks the governor to investigate the conduct of both Welch and Garrett County Sheriff Gary Berkebile, due to the belief by some Garrett County residents that the case has been mishandled.
Berkebile is related to Rush through marriage; Rush is his wife's brother. Welch has no ties to either the defendant or the Lancaster family.
Contact Daleen Berry at dberry@times-news.com.
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