Attorneys for convicted cop-killer Derrick Powell, in an attempt to keep him from being executed, are renewing arguments previously rejected by a Sussex County judge.
Public defenders Bernard J. O’Donnell, Nicole M. Walker and Santino Ceccotti have filed a motion with the Delaware Supreme Court in part charging that the trial should have been moved out of the county because of publicity and that the judge erred in allowing the death penalty to be on the table.
The appeal to the state Supreme Court is automatic in all death-penalty cases.
Powell, of Cumberland, Md., fired the single shot that killed Georgetown Patrolman Chad Spicer on Sept. 1, 2009.
The bulk of the motion is devoted to the change-of-venue dispute, taking up a full third of the 28 pages of legal arguments.
It cites “inflammatory and sensationalized” media coverage, as well as intense public interest around the county in Spicer’s death, as making the potential jury pool biased.
“Powell’s real trial occurred in the days, weeks and months following the tragic events of Sept. 1, 2009, when Sussex Countians were exposed to a media blitz never seen before,” the attorneys wrote.
The motion cites a poll showing at least 94 percent of eligible jurors knew something about the case. The poll also showed at least 69 percent believed Powell was guilty; an almost identical percentage believed he could get a fair trial.
Superior Court Judge T. Henley Graves rejected the change of venue before the trial.
The motion also cites a California case in which a man was granted a new trial on a charge of killing a police officer because his counsel did not vigorously seek a change of venue. That case similarly involved significant pretrial publicity and community interest.
In their police cruiser, Spicer and his partner, Cpl. Shawn Brittingham, chased Powell, Luis Flores and Christopher Reeves through the center of town after hearing a report of shots fired at a McDonald’s. The motion suggested an alternative explanation for Spicer’s death — the possibility that the gun sat on Powell’s lap and went off after the police cruiser collided with the fleeing car.
Powell’s attorneys claimed that Graves refused to instruct the jury that it could consider a second-degree murder charge, which hinges on criminal negligence, instead of first-degree murder, which hinges on recklessness.
Attorneys also argued:
« That police should have tested the clothing worn by Flores and Reeves that night for gunshot residue.
« That Graves erred when giving the jury’s 7-5 recommendation for the death penalty “great weight” in his decision, saying that courts are no longer required to give that level of consideration to a jury’s choice.
« That the death sentence was disproportionate to other cases in which the jury was split 7-5 on a recommendation. Other cases in which death was imposed involved brutality, multiple victims, a home invasion or burning of a body, they said.
The state and federal appeals take about 10 years on average. If the death sentence is overturned and the jury’s guilty verdict remains, Powell will serve many years in prison. Graves sentenced him to a total of 82 years for other crimes he committed the night Spicer died.
The jury convicted Powell of first-degree murder in February 2011. Powell’s attorneys argued that the jury’s split verdict — finding him guilty of one count of murder but not guilty of another — prevented Graves from imposing a death sentence, calling the verdict “inconsistent.”