Here's more about the judge's decision from the Pensacola paper. I'm sure the prosecutor will appeal the decision. However, he may be in some hot water because of the prosecutorial miscount alleged:
PUBLISHED FRIDAY, OCTOBER 18, 2002
King verdicts thrown out
Judge Bell: "There's no question in my mind that they did not receive a fair trial."
Alan Gomez
@PensacolaNewsJournal.com
The murder convictions of Alex and Derek King were thrown out Thursday as the judge paved the way for a possible plea agreement or a retrial.
Escambia Circuit Judge Frank Bell said the brothers' trial last month was unfair. He appointed a mediator to meet with prosecutors and defense attorneys within the next few weeks to try to settle the case out of court.
"There's no question in my mind that they did not receive a fair trial," Bell said. "If everybody in this courtroom is not committed to a fair and legal process, they should not be in here."
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Attorney James Stokes and Alex King, 13, listen as Judge Frank Bell speaks to the court during a motion hearing for a retrial. Michael Spooneybarger |
Alex and Derek, ages 13 and 14, were convicted Sept. 6 of second-degree murder without a weapon in the beating death of their father, Terry King, 40, and the arson of his Cantonment home on Nov. 26.
The week before, Ricky Chavis, 40, a family friend, was acquitted on the same charges by a different jury.
The defense attorneys were seeking a new trial based primarily on two points: that the jury returned an improper verdict against the King brothers and that Assistant State Attorney David Rimmer was guilty of prosecutorial misconduct when he tried three people for one murder.
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Derek King, 14, listens as Judge Frank Bell speaks to the court during a motion hearing for a retrial. Michael Spooneybarger |
Bell's decision stunned Rimmer as well as optimistic defense attorneys.
"I am very, very surprised," said James Stokes, Alex's attorney. "The judge did the right thing."
Rimmer stood by his decision to prosecute all three defendants for first-degree murder, saying he maintained the same theory all along: that Derek swung the bat that killed his father, Chavis orchestrated it and Alex participated.
"I really didn't expect this, but I've learned in 20 years as a prosecutor to always expect the unexpected," said Rimmer, who left the courthouse quickly after Bell's announcement.
Family and friends, who took part in a rally outside the M.C. Blanchard Judicial Building before the hearing, wept and embraced afterward, saying it was the first time they saw some hope in the boys' case.
"We didn't know what to expect today because what we expected out of the Chavis trial didn't happen and what we expected out of the boys' trial didn't happen," said Lisa French, the King brothers' maternal stepgrandmother. "We're just so happy right now."
The boys' mother, Kelly Marino, had trouble putting her emotions into words.
"This is just wonderful. This is great. Just great," she said. "I just don't know what to say."
Bell said it will take several weeks to complete his order granting the new trials, and the State Attorney's Office will have 30 days from the day Bell files the order to appeal his decision.
In the meantime, Bell ordered all attorneys into mediation, a common practice in civil cases, but a rarity in criminal proceedings.
Bill Eddins, a Pensacola attorney for nearly 30 years, will handle the mediation, which provides for a wide variety of possibilities.
The boys could plead guilty to a lesser charge; the state could choose to drop the charges; the case could be sent to juvenile court; or attorneys in the case could disagree and let the appeals process run its course.
If the case is retried, the boys cannot face first-degree murder charges again. Prosecutors will be confined to the second-degree murder without a weapon charge.
Everyone involved said they hoped the case would not get that far and could be resolved in mediation.
"Look at things realistically and weigh the risks and benefits of an appeal or a retrial," Bell told the attorneys. "There could be some positives that come from it."
'Unusual and bizarre'
Bell based his decision on five "unusual and bizarre" actions taken by Rimmer in the case.
After explaining to the packed courtroom that he has worked with Rimmer on many cases and believes Rimmer would never do anything unethical, Bell laid out his reasons for granting the retrial.
Chavis was tried as a principal: Chavis' indictment on first-degree murder and arson charges was the result of Alex and Derek's testimony before a grand jury in April.
The boys confessed to the slaying two days after King was killed, explaining in great detail why and how they carried out the murder.
They changed their story in April, saying they were in the trunk of Chavis' car as he committed the murder.
But Rimmer prosecuted Chavis on the theory that he was a principal to murder, who assisted or encouraged the boys as they carried out the murder.
"Why was Mr. Chavis prosecuted as a principal when the evidence presented to the grand jury was the testimony of Alex and Derek King?" Bell asked. "That testimony said, `He did it. We didn't do it.' "
Bell said he noticed Rimmer's apprehension going into Chavis' case, when Rimmer said in a pretrial hearing he had reservations. On Thursday, Bell said Rimmer's comments made him wonder as well.
"It was clear to me that there was a lot of concern," Bell said.
Alex and Derek's testimony contradicted the state's case: Rimmer continued with the case against Chavis on the principal theory and called Alex and Derek to the stand.
Since the brothers testified that Chavis committed the murder, which was contrary to Rimmer's theory, Bell asked why they were called as government witnesses.
"What is very unusual was that the testimony did not help the state's case," Bell said. "It did just the opposite because Mr. Chavis was being prosecuted as the principal, and they both got on the stand and said, `He did it."'
Bell also implied that Rimmer might have allowed the brothers to testify so that Chavis' attorney, Michael Rollo, could cross-examine them. That way, Bell explained, Rimmer could get an idea of how Alex and Derek would answer in their own trial when he cross-examined them.
"It allowed the state to get a preview of what was going to happen the second week," Bell said.
Rimmer defended his actions.
"All three of them have told so many lies," Rimmer said, referring to Alex, Derek and Chavis. "Somewhere in all that was the truth, and I just wanted the juries to sort it out."
Rimmer could have dropped the case against Chavis: After Rimmer rested his case against Chavis, Rollo asked the judge to dismiss the case.
Bell ruled there was no evidence pointing to Chavis as a principal, so the judge threw that theory out, leaving the idea of Chavis as the bat-wielding perpetrator as the only road to conviction.
Why then, Bell asked, did Rimmer not drop the case?
"The perpetrator theory was 180 degrees opposite of what (Rimmer) indicated his theory was," Bell said.
Rimmer said if he had dropped the case, he would be criticized for letting Chavis go.
"At that point, I think it was the right thing to do to let the jury decide whether they believed what the boys said," Rimmer said.
Chavis could have been granted immunity for his testimony: Alex and Derek testified against Chavis after Rimmer granted the boys immunity, meaning nothing they said in that proceeding could be used against them in their trial.
Bell asked why Rimmer did not extend the same right to Chavis so he could testify against the boys.
"He would have certainly been a good witness," Bell said. "What is the logic?"
Rimmer's post-trial comments shocked the judge: After Chavis' trial was completed, Bell sealed the verdict so the jury in the King case would not be influenced by the decision.
But that left Bell in an uncomfortable position - when all three verdicts were announced at the conclusion of the King trial, he could find three convictions on first-degree murder, meaning automatic life prison sentences for all three.
To avoid that, Bell and the attorneys unsealed the verdict in private. But when the verdicts all were announced Sept. 6, it was the first time attorneys could speak publicly about the case.
Rimmer was asked one question repeatedly: What would he have done if all three had been found guilty of first-degree murder?
Bell recalled Rimmer's response as: "We would have gone and asked Judge Bell to set the Ricky Chavis case aside."
"What? I'm going to set Ricky Chavis' first-degree murder conviction aside because they've all been convicted?" Bell said "Why not set the King brothers' case aside? Why not set them all aside?"
National scrutiny
The case has drawn national attention since the boys were charged with murder.
Thursday's hearing was no exception. About 30 people gathered outside the courthouse to show their support for the King brothers.
Even those supporters didn't expect Thursday's ruling.
"I'm thankful (Bell) came to the same conclusions that I made, that the King boys deserve a fair trial," said the Rev. Thomas Masters.
Masters leads a newly formed group called Under Our Wings, which is trying to dissuade legislators and prosecutors from trying children as adults.
Bell was not present at the rally, but opened his comments Thursday addressing many of the issues supporters have raised in the past months.
"We're not here today to talk about how old Derek and Alex are. We're not here today to talk about how they physically look," said Bell. "We're not here to talk about how they were raised or whether or not they've been kicked around. That's not the issue."
Supporters from the rally filled the courtroom for the afternoon hearing and the courtroom murmured with excitement following Bell's announcement.
The boys' grandmother, Linda Walker, summed up their thoughts.
"Now they know they've got hope," she said.