Stanton seeking retrial of murder case

Attorney claims misconduct my prosecutors
Dec. 07, 2012 @ 12:18 AM

In a motion seeking a new trial for convicted murderer Jacob Stanton, attorney Bryce McKenzie alleges Judge Richard Vance should not have allowed a pathologist to testify as an expert on firearms and accuses the district attorneys who prosecuted the case of prosecutorial misconduct on a number of grounds.

A jury convicted Stanton on the charge of second-degree murder earlier this year, finding that he intentionally shot Leah Avril in 2010. Stanton has maintained his gun accidentally discharged while he was handling it and Avril was in the room.

Joe Baker represented Stanton in the trial. McKenzie, who works with Bryan Delius' law firm, filed the motion for a new trial. The matter is set to be heard Monday.

“A new trial should be granted because the cumulative, repeated incidents of prosecutorial misconduct have severely prejudiced the defendant and have violated his right to a fair trial,” McKenzie wrote. He includes statements a prosecutor made in closing argument, testimony from a purported jail-house snitch that was contradicted by a second inmate, and other actions.

Assistant district attorney Tim Norris made the state’s rebuttal, the final closing argument the juries get to hear. During that time, he said a 911 recording played during the trial includes Avril saying “Jake shot me.” McKenzie said that Avril is never heard saying that in the recording, and that Norris’ statement in the closing argument amounted to prosecutorial misconduct.

“The prosecutors utter fabrication of the decedent shouting ‘Jake shot me’ certainly qualifies as misstating evidence and misleading the jury,” McKenzie wrote in the motion. “Nothing in the 911 recording indicates that the decedent made this claim, and the state’s fabrication of evidence in the rebuttal stage of closing argument constitutes prosecutorial misconduct.”

No witness had pointed out the portion of the tape Norris mentioned, but the recording was played in its entirety during the trial. Baker objected at the time to Norris saying Avril could be heard saying Stanton shot her, but Judge Rex Henry Ogle said the jury would have to decide for itself whether Norris was correct, and the jury asked to review the recording shortly after it began deliberating on the case.

McKenzie also argues the state failed to provide the defense with evidence during discovery that was later used in the trial. Specifically, the state used statements made by Stanton to law enforcement personnel and McKenzie says the defense was never told about those statements before the trial.

He argues the state should also not have used a jail-house snitch whose testimony was contradicted by another inmate. William Lennox told the jury Stanton told him he killed Avril because she knew he was selling drugs. However, a second inmate called by the prosecution recanted a similar statement he’d given before the trial. Anthony Smith said he and Lennox concocted the story about Stanton in an attempt to avoid jail time for their own crimes, but said he decided he couldn’t go through with the plan.

McKenzie argues prosecutors knowing allowed Lennox to give false testimony.

The state has not filed a written response to the motion.

McKenzie also argues that Ogle should not have allowed a state pathologist, Dr. Steven Cogswell, to testify as though he were an expert on firearms. Both sides had stipulated that Cogswell could give expert testimony on Avril’s injuries; he performed her autopsy.

However, during the trial he also testified that it would take “a deliberate, volitional pulling of the trigger” to fire the gun that killed Avril. Cogswell testified at the time that he worked on firearms as a hobby, but McKenzie maintains Ogle should not have allowed Cogswell to offer expert testimony on guns over objections from the defense.

A firearms expert from the Tennessee Bureau of Investigation also testified about the gun, saying it would be difficult to accidentally discharge the weapon.

McKenzie also argues Ogle should have excluded some testimony from paramedics and other witnesses.

Stanton was facing a charge of first-degree murder, but the jury convicted him on the lesser charge of second-degree murder in April, following a trial that lasted most of a week.