UPDATE: On October 31, 2003, the Virginia Supreme Court affirmed Merry's conviction. Prosecutor Tim McAfee, whose egregious misconduct in Merry's first trial led to reversal of her conviction, has dodged the bullet of disbarment because in the eyes of the Virginia State Bar, in obtaining a second conviction against Merry, McAfee "cured" his misconduct. Click HERE to read the Virginia Supreme Court's rationalization.
Click HERE for the conclusions of forensics experts who reviewed Merry's case pro bono (no fee) -- and who Merry's lawyers decided not to call to testify at trial.
Merry Pease: What can go wrong in a court of law
BY ANDREA HOPKINS
BRISTOL HERALD COURIER
Sunday, July 13, 2003
After three indictments, two trials and a handful of appellate proceedings, some of the best legal minds in Virginia still are trying to decide whether Merry Pease was a domestic-violence victim or a cold-blooded killer.
Pease, 46, of Wise County, has been fighting to clear her name for almost a decade now.
She has been convicted twice of killing her husband, Dennis Pease, most recently in 2001. The latest conviction was overturned by a three-judge panel of the state Court of Criminal Appeals, only to be reinstated by the full appeals court a short time later.
Her case now is headed to the Virginia Supreme Court, which could hear arguments this fall, said her lawyer, Gerald Gray of Clintwood.
"They have granted our appeal on the issues of double jeopardy, prosecutorial misconduct and the sufficiency of the evidence against her," Gray said.
It is the claim of prosecutorial misconduct -- which was one of the reasons the case was overturned the first time around -- that is drawing new attention to it.
Pease's case was one of 22 in Virginia reversed because of prosecutorial misconduct over the past three decades, according to a new study by the Center for Public Integrity.
The center's study, which found more than 2,000 cases of prosecutorial misconduct nationwide, was released earlier this month. It included cases in which 32 innocent people were convicted in cases touched by tainted prosecution, but it does not list the Pease case in that category.
But Pease's case easily could serve as a study in what can go wrong in a court of law, according to her lawyers and appellate opinions.
Pease has been mired in Virginia's legal system since her arrest shortly after the shooting death of her husband in 1993. Dennis Pease died of two gunshots to the chest -- shots that prosecutors claim were fired by his wife.
Merry Pease contends she was shot by her husband, who then turned the gun on himself. Prosecutors claim she shot herself to cover up the crime.
Evidence presented at both of her trials showed that Dennis Pease disabled her car and the home's telephone on the day he died. Witnesses testified he had threatened to harm her because he believed she was having an affair.
The case first was overturned by the state appeals court in part because of actions of the prosecutor, Tim McAfee, then the Wise County commonwealth's attorney.
He was found to have improperly influenced the grand jury that indicted Pease and to have withheld a medical examiner's report from the defense that called Dennis Pease's death a suicide.
"The prosecutor's actions affected her basic right to have an indictment considered by a grand jury free of prejudice and her right to have a fair trial because of this failure to disclose evidence," said Gray, her attorney.
"Prosecutors are required to disclose exculpatory evidence whether they are ordered to do so or not."
Gray got involved in the case after the first trial and was one of the lawyers who handled the first appeal. He thought the case was over, but two more indictments would follow.
The second indictment was obtained by different prosecutors, who ultimately asked for its dismissal after learning about the hidden medical examiner's report.
Later, McAfee, by then no longer in office, was appointed special prosecutor and obtained a third indictment. Pease was tried on that indictment and again convicted in 2001.
Pease won the first round with the appeals court, McAfee the second. Now, it will be up to the Supreme Court to make a final decision.
Pease, now a grandmother and a college student, is free on bond while she waits for the verdict.
"I've been fighting for my life from the day I got away from my husband," she said in an interview last year. "How can anybody have a life?"
The Pease case wasn't the only one involving McAfee to make the Center for Public Integrity's list of bad prosecutions. He also was cited for his involvement in the prosecution of Joe Douglas Kilgore in the early 1990s.
Kilgore, of Abingdon, was arrested in 1990 and charged with capital murder in an alleged killing-for-hire plot that led to the death of Richard Allen Jones, a Bristol coal hauler who was shot in 1985 while he sat in his coal truck in Coeburn.
The case against Kilgore ultimately was dismissed and never prosecuted because some of the evidence was suppressed based on McAfee's actions, according to court records. McAfee took part in the investigation of Kilgore after having been disqualified from it.
Efforts to reach McAfee for comment on the center's report were unsuccessful.
A third Southwest Virginia case, out of Smyth County, also was cited in the report.
On the Tennessee side of the state line, three cases from Sullivan County made the list of mishandled prosecutions.
District Attorney General Greeley Wells objected to their inclusion.
In the case of Guy William Rush, the state appeals court found prosecutors did nothing wrong, rejecting the Bristol Tennessee man's claim that they withheld evidence, Wells said. Rush's initial felony conviction was overturned, but based on a mistake made by the judge, Wells said.
Rush later pleaded guilty to a misdemeanor and received probation for stabbing his former wife outside a Bristol Tennessee bar in 1995.
In the case of William Francis Sills, the appeals court said an assistant prosecutor made an improper comment to a jury but ruled that the error was harmless, Wells said. Sills, formerly of Nashville, is serving life in prison for killing a Bristol cabbie in 1986.
Only one of the three cases was reversed based on a prosecutor's mistake, and in that case, the defendant ended up pleading guilty after the case was remanded, Wells said. That case involved a man convicted of raping his daughters.
The man's conviction was overturned because the appeals court said a prosecutor improperly subpoenaed the man's family members just to keep them out of the courtroom.
But Wells said he does not believe any of the three cases included in the center's report involved "misconduct."
"Prosecutorial misconduct by connotation means you did something wrong and you intended to do it," Wells said. "There's a difference between doing that and making a mistake. There is no such thing as a perfect trial."
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