The State

Richland County, SC man convicted in cab driver’s ’61 slaying to get a new trial
BY JOHN MONK   February 11, 2015

The Richland County jury that convicted a man in 2002 in the cold-case murder of a taxi driver in 1961 heard flawed and incomplete ballistics evidence, a three-judge panel on the S.C. Court of Appeals ruled Wednesday.

The court’s decision means Edward Freiburger, 72, who has served 13 years in state prison, will get a new trial, if the decision is not appealed to either the full Court of Appeals or the S.C. Supreme Court. Freiburger is serving a life sentence.

Freiburger was found guilty in 2002 of the killing of taxi driver John Orner, who was fatally shot Feb. 28, 1961.

John Blume III, one of Freiburger’s appeals attorneys, said late Wednesday he was pleased with the court’s decision but had not been able to reach Freiburger.

“I’m happy – he did not get a fair trial,” Blume said. “The jury that convicted him did not hear all the evidence.”

Orner’s cab stand in 1961 was near Fort Jackson. He disappeared after being dispatched to an officers’ club at the post. His bloodstained taxi was found abandoned near Gervais and Assembly streets in downtown Columbia. His body, with one gunshot wound to the head, was located several days later off U.S. 601 in Lower Richland County.

At the time, Freiburger was an 18-year-old recruit at Fort Jackson. The day before Orner disappeared, Freiburger had bought a .32-caliber Harrington and Richardson revolver and bullets at a downtown Columbia pawn shop, according to evidence at his trial.
Top right: John Orner and Edward Freiburger in 1960.
Bottom left: Edward Freiburger today

Freiburger was arrested several weeks later while hitchhiking in Tennessee. A state trooper seized the .32-caliber revolver from Freiburger at the time. Police questioned Freiburger about Orner’s death in 1961, but he was not charged.

It was only in 2001 that Freiburger was charged with Orner’s slaying. A Missouri firearms expert testified in 2002 that fragments from the gun matched fragments from bullet parts in Orner’s skull. Four SLED examiners, however, had been unable to say whether the fragments matched but did not testify, according to the court’s ruling.

At trial, the jury was not told that police had another suspect and that another .32-caliber Harrington and Richardson pistol had been taken from that suspect. Police could not match the bullet fragments from this gun to the death bullet either, according to the Court of Appeals opinion.

In the opinion, the court panel noted that Freiburger’s trial lawyer, John Delgado of Columbia, did not introduce a 1961 letter from the late legendary SLED Chief J.P. Strom that stated that a SLED ballistics expert had concluded the other suspect’s pistol – not Freiburger’s – had been the death weapon.

The trial defense counsel’s failure to introduce the Strom letter was important, the court said, because “it would have been the only evidence that directly contradicted” the Missouri expert’s positive identification of the Freiburger gun.

Delgado’s failure to use a letter that might have altered the outcome of the trial amounted to “ineffective assistance” by a defense lawyer, the court ruled.

In a post-trial proceeding, Delgado, a high-profile defense attorney, said he didn’t remember why he didn’t use the Strom letter at trial. He conceded it “would have been powerful evidence,” the Court of Appeals said.

If the Strom letter had been introduced at trial, “there is a reasonable probability the jury would have had a reasonable doubt as to whether (Freiburger) was guilty of murder,” the ruling said. Other evidence against Freiburger was “weak,” the court said.

Delgado, reached Wednesday, declined to comment.

The prosecutor in the 2002 trial was Knox McMahon, who is now a circuit judge.

The case was dormant until 1999, when the Richland County Sheriff’s Department’s cold case squad reopened it. At that time, none of the original investigators were still alive.

Until he was arrested in 2001, Freiburger lived a quiet life in Indiana, raising three children and going to church with his longtime wife, his relatives said.

Sheriff Leon Lott said Wednesday, “We did our job and found the man responsible for the 1961 murder. He was convicted by a Richland County jury. Ineffective counsel by one of Columbia’s most respected attorneys is out of our control.

“We are ready to go back to trial and convict him again. The technology in 1961 was nowhere close to what it is today. Any letter from SLED Chief Strom would have been based on the technology of 1961 and not what is present today,” Lott said.

Fifth Circuit Solicitor Dan Johnson, whose office would prosecute the retrial, declined comment Wednesday because the case is pending, he said.

Attorneys Lindsey Vann and Blume are handling Freiburger’s case. Blume, formerly of Columbia and now of the Cornell (University ) Law School, is a national authority on death penalty and wrongful conviction issues.

Blume said he is confident that with Strom’s letter, and other new information, the case “has been put in a fundamentally different light.”

Blume cast no blame on Delgado. “The attorney who overlooked it is actually a very good lawyer. But it was a very important document that would have undermined the state’s case.”

Attorney General Alan Wilson, whose office lost the appeal case, is reviewing his options, a spokesman said. Any new appeal would go to the full Court of Appeals or the S.C. Supreme Court.

Following his 2002 conviction, Freiburg appealed issues in his case, but they were denied. The action considered by the Court of Appeals was what is known as a post-conviction relief petition, which typically examines the performance of a lawyer in the case. On rare occasions, a high court will find the lawyer’s performance was such as to warrant a new trial.

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