BY LEESHA FAULKNER
NEW ALBANY – Marlon Howell is sitting on death row for the murder of Hugh David Pernell nearly four years ago, sentenced by a Union County jury to death by lethal injection.
But that's not the end of the story.
The U.S. Supreme Court will hear oral arguments Monday about the case. At issue is whether Howell's sentencing jury should have been given more than the two choices – the death penalty or freedom – it was allowed to consider.
“An innocent man is sitting on death row,” said William “Billy” Richardson, Howell's attorney from Fayetteville, N.C. “The district attorney should be ashamed of himself.”
Richardson took the case because Howell passed a recent lie detector test during which the Blue Mountain man denied killing Pernell.
But the court record available through Howell's appeal to the Mississippi Supreme Court has him painted as the killer.
Pernell, a 61-year-old retired postal worker from New Albany, was a carrier for the Northeast Mississippi Daily Journal. He was delivering newspapers about 5 a.m. May 15, 2000, when Howell, Curtis Lipsey and Adam Ray flagged him down.
The day before, Howell, who had been convicted in 1999 of possession of a controlled substance, had told Lipsey, Ray and another man, Brandon Shaw, that he needed money to pay his probation officer $25 for the supervision fee and $10 for a failed drug test.
If he didn't pay, Howell said, he would go to jail.
The four men drove to Tupelo from New Albany to ride around. Later, they drove to Shaw's house in New Albany and passed the time talking. Court records state that Howell, Lipsey and Ray left at 4 a.m. and returned around 5:30 a.m.
During the trial, Lipsey testified that he was with Howell when Pernell was shot. He said that while they were in the car after leaving Shaw's house, Howell reached over and blinked the vehicle's lights to get a car to stop.
The car pulled over and Howell approached the car. According to Lipsey, an altercation occurred, Howell pulled a gun and fired into the car. Lipsey testified that Howell told him the man in the car sprayed him with Mace, so he shot him.
The murder, court records show, occurred in front of Charles Rice's home in New Albany. Rice testified that he awoke in the pre-dawn hours, watched television and prepared for work. Rice told New Albany Police Chief David Grisham he saw the whole thing.
During the trial, Rice testified that he heard a horn blow and looked out his window. He saw two vehicles stop in front of his house. One vehicle pulled in behind the other. Rice said he saw a man get out of the passenger's side of the rear vehcle and walk in between the two to the driver's side of the car in the front.
Rice saw the two men have a conversation, then he saw the man standing outside the vehicle pull a gun and shoot the driver. The man with the gun returned to the car in the rear, which had pulled up. Rice testified that he called 911.
During the trial, Rice acknowledged that it was early, but he could see.
However, on appeal to the Mississippi Supreme Court, Howell contended that Rice misidentified him. Rice said, according to a statement given to New Albany police in the hours after the shooting, Howell wore a long-sleeve, plaid red-and-black shirt.
Other witnesses had described the shooter wearing a green, short-sleeve shirt.
Richardson believes the investigator for the prosecution and investigating police officers didn't check behind Rice. “It's impossible for him to say what he saw,” the attorney said.
Richardson and his daughter re-created the shooting as described by Rice in the trial transcript. They determined Rice couldn't have seen what he claimed. Richardson labeled the investigative work on the case as “shoddy.”
Richardson said his daughter took the position of the shooter in their re-creation of Rice's eyewitness claim. Her father stood back as though he was Rice.
“I couldn't recognize any features of her face,” he said. “If I didn't know she was my daughter, I couldn't tell if the person was male or female.”
The attorney already has been to New Albany once with an investigator. “We spent three days there,” Richardson said, “and came back with enough evidence to acquit the man.”
Jim Hood prosecuted the case in Union County as the District 3 district attorney, and the Mississippi Supreme Court affirmed the conviction and death sentence in October 2003.
Hood, now the state attorney general, will face off against Richardson on Monday.
“Since the defendant claimed he had an alibi and did not commit the vicious murder, I hope that the United States Supreme Court will follow the opinion of the Mississippi Supreme Court in finding that there was no other reason for the murder, other than robbery,” Hood said in a statement issued last week.
“Since I tried the case as a district attorney and am very familiar with the facts, I intend to argue the case myself.”
Before Richardson's involvement in the case, the Mississippi Capital Defense Agency had worked in Howell's interest.
Richardson must get beyond the U.S. Supreme Court. He has employed professors from Duke University and the University of North Carolina to coach him and the defense team about their appearance before the justices on Monday.
He wants to contest the death penalty decision on the basis that the court gave the jury the decision of death or letting Howell go.
They should have, according to law, been given the option of finding Howell guilty of a lesser murder charge – simple murder or manslaughter by culpable negligence – that didn't involve the death penalty, Richardson said.
But that argument didn't come up before the Mississippi Supreme Court, said Kent Scheidegger, a lawyer with the Criminal Justice Legal Foundation in Sacramento, Calif., which generally supports victims' rights.
The foundation has filed a friend of the court brief in Howell's case. Scheidegger argues in the brief that the case shouldn't be heard by the federal high court. “Howell didn't raise the federal question when he appealed to the state court.”
Richardson disagrees. At trial, he said, Howell's attorney objected to the court's instruction to the jury, and raised the issue on appeal.
This criminal lawyer wants the case stayed long enough to continue the investigation he believes will prove his client innocent of the murder. He also said he means no disrespected to Pernell's family and hopes they can find peace.
“The victim has not received justice yet,” Richardson said. “The real killer has not been brought to justice.”
Contact Leesha Faulkner at 678.1590 or email@example.com
WILLIAM “BILLY” ODUM RICHARDSON
– Has 20 years experience as a prosecutor and criminal defense attorney
– Served two terms in the North Carolina Legislature
– Graduated in 1977 from the University of North Carolina
– Received law degree from Norman A. Wiggins School of Law, Campbell University
– Featured in Scott Whisnart's book “Innocent Victims,” which was made into a mini-series for ABC in 1996. Actor Rick Schroeder played Richardson in the movie.