State court dismisses motion in 2001 murder case after defendant returned
The Arkansas Supreme Court on Thursday dismissed a defense motion to quash an order deeming accused killer Rickey Dale Newman incompetent to stand trial and sending him to the Arkansas State Hospital, declaring the motion moot.
Newman, 56, was convicted of capital murder and sentenced to die at the end of a one-day trial in Crawford County Circuit Court on June 10, 2002, for the 2001 murder of Marie Cholette, 46, at a Van Buren homeless camp. Newman represented himself, confessed to the crime and asked jurors to sentence him to death.
But on Jan. 16, the state Supreme Court ruled Newman was incompetent to stand trial when he was convicted in 2002 and ordered a new trial.
On Feb. 18, Newman was scheduled to be arraigned on the capital-murder charge, but Circuit Court Judge Gary Cottrell determined the hearing wasn’t necessary when he learned Philadelphia attorney Julie Brain had entered her appearance on Newman’s behalf.
On Feb. 28, Cottrell signed a “not-fit-to-proceed commitment” order based on the Supreme Court’s finding that Newman was incompetent to stand trial in 2002, directing Newman be sent to the State Hospital for “detention, care and treatment until restoration of fitness to proceed.”
Brain filed a motion March 6 asking Cottrell to reconsider his order, which he denied March 10, and Newman was subsequently transferred to the state hospital March 18. On March 24, Brain filed a motion to quash the order with the Supreme Court.
In her March motion filed with the high court, Brain argued Cottrell’s order “is in clear violation of the statutes governing determination of fitness to proceed.”
If there is reasonable suspicion a defendant is unfit to proceed, Brain said a mental evaluation is required for a judge to make a final determination, and if the findings of the evaluation are contested, the court is required to hold a hearing on the matter, according to her motion.
On June 17, Brain filed a motion to dismiss the March 24 filing as moot, after Newman was returned to the Crawford County Detention Center. The high court granted the motion Thursday.
In April, Cottrell was notified by Mark Peacock, director of the state hospital postdoctoral fellowship in forensic psychology, that Newman’s unwillingness to cooperate with an examination to assess his current mental state or fitness to stand trial — at the direction of Brain — makes any ongoing effort to forcibly treat or “restore” his fitness to stand trial potentially “unsafe” and doesn’t serve the best interest of the state hospital or Newman.
In a May 15 letter, Billy Burris, forensic services program coordinator at the state hospital, notified Cottrell that Newman exhibited no signs or symptoms of a major mental illness during his stay at the hospital and does not require continued hospitalization. Burris noted that his letter did not constitute a formal opinion on Newman’s fitness to proceed and informed Cottrell that Newman would be returned to Crawford County on May 18.
No future court dates for Newman are scheduled yet, but a motion Brain filed to appoint a special prosecutor for the case is pending.
In her motion, Brain argues Prosecuting Attorney Marc McCune and his office should be disqualified from handling the case because McCune participated in questioning Newman on May 9, 2002, about a month before Newman’s trial, and he accompanied a Van Buren police officer who took Newman to two different locations where Newman claimed he disposed of the knife used to kill Cholette.
Brain argues there is exculpatory evidence in the May 9, 2002, interview and if the defense uses that information, McCune would be a material witness and therefore excluded from prosecuting the case under a 1987 state Supreme Court decision that says a prosecutor can no longer serve as an advocate for the state when he/she is a potential material witness.
“It is highly likely that Mr. McCune will be a critically important witness if the state’s case survives a motion for a directed verdict,” Brain wrote.
Brain argued McCune’s deputies also should be precluded from prosecuting the case because of the involvement of Chief Deputy Robert Presely and deputy prosecutor Scott Houston in post-conviction proceedings in the case.
McCune could be immediately reached for comment Thursday; his office has not yet responded to Brain’s motion.
In November 2009, the state Supreme Court remanded Newman’s case to circuit court after a psychologist who found Newman competent to stand trial admitted errors in his evaluation during a 2007 federal court hearing, and questions were raised about whether the state withheld evidence from the defense.
Cottrell presided over a five-day hearing that ended March 18, 2011, during which he heard extensive testimony from prosecution and defense mental health experts regarding Newman’s competence to stand trial in 2002.
In a five-page ruling issued the following July, Cottrell ruled Newman is mentally retarded but was competent to stand trial in 2002.
In court hearings and court filings, Brain has argued the state withheld evidence when Newman was tried in 2002 and Newman is innocent and his confession was a product of his mental illness.
Newman has gone back and forth through the years, allowing appeals to be filed on his behalf and then asking that all appeals be dropped. In 2011, Newman asked Cottrell to halt a hearing on his appeal so he could be executed.
http://arkansasnews.com/news/arkansa....9OmlmApD.dpuf
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