Friday, August 22, 2008

Court: Man denied fair trial in slayings -
Tuscon (AZ) Citizen

A.J. FLICK

The 9th U.S. Circuit Court of Appeals ruled Thursday that a California man's right to a fair trial was violated when he was convicted and sentenced to death for a 1979 Tucson-area double murder.

The appeals court unanimously upheld a district court ruling that Jasper McMurtrey, who spent 22 years on Arizona's death row, likely wasn't competent to stand trial in 1981.

"We hold that McMurtrey's memory problems, his erratic behavior, and the variety and quantity of medications that he was prescribed, combined with the absence of an expert evaluation made at the time of trial, created a reasonable doubt as to McMurtrey's mental competence to stand trial," Judge Harry Pregerson wrote in the ruling.

"What it means," said defense attorney Gregory J. Kuykendall, "is that Mr. McMurtrey did not ever receive a hearing at the time of his trial to determine whether he was competent to stand trial. And because of the failure to conduct a hearing at that time about his competence and because of a number of factors that seriously indicate that he was, in fact, incompetent, his right to a fair trial was violated."

Being competent to stand trial means the defendant is able to understand the charges and able to help in his or her defense. Being incompetent does not necessarily mean that the defendant is mentally ill, though McMurtrey does have some mental health issues.

Tucson attorney Natman Schaye also represented McMurtrey in his appeal.
The Arizona Attorney General's Office could decide to ask for a rehearing at the 9th Circuit or take an appeal to the U.S. Supreme Court, which is unlikely, Kuykendall said.

Barring any appeal, McMurtrey would return to Arizona to find out whether prosecutors will retry him, offer a plea deal or dismiss charges.

"This is in the hands of the Attorney General's Office," said David Berkman, chief criminal Pima County Attorney. "They are weighing their options regarding to the appeal.

"If it has to come back to us, we will review the case and determine our options," Berkman said.

McMurtrey, who is being monitored by Pretrial Services, is living out of state.
"He has adjusted really, really well and has been living a productive, crime-free and substance abuse-free life," Kuykendall said.

"He's gone to school, gotten a job and he's just done extraordinarily well," Kuykendall said. "It's a real tribute to the power of redemption."

McMurtrey was sentenced to death in 1981 for the shooting deaths of Barry F. Collins of North Carolina and Albert Hughes Jr. of New Jersey at the now-defunct Ranch House bar, a topless-dancer club and biker hangout at 4950 N. Casa Grande Highway. He was also sentenced to 21 years for wounding another bar patron, Eugene Taylor.

In March 2003, a federal judge ordered a new trial, ruling that McMurtrey's legal representation had been inadequate. The state Attorney General's Office appealed that ruling, but failed to seek a stay of the new trial, which was supposed to take place within 180 days.

In December 2003, U.S. District Judge William Fremming Nielsen released McMurtrey, saying he did not believe he intended to kill.