06/25/2004

By SUSAN SKILES LUKE  / Associated Press

An Illinois appeals court has thrown out the first-degree murder conviction of a woman in the 1997 stabbing death of her 10-year-old son.

The 5th District Appellate Court ruled Thursday that Julie Rea-Harper didn't get a fair trial in March 2002 when a Wayne County jury convicted her of killing her son, Joel Kirkpatrick, in his bed while he slept. Harper was sentenced to 65 years in prison.

Texas serial killer Tommy Lynn Sells confessed to the killing in a book released the summer of 2002, but the judges said they didn't consider the confession, called bogus by prosecutors, when weighing their decision.

Instead, the court said the trial judge shouldn't have allowed a special prosecutor to try the case over defense objections.

Sells was sent to Texas death row for a 1999 slaying in Del Rio. The victim was 13-year-old Kaylene Harris.

Authorities have said they believe Sells is also responsible for killings in Missouri, Illinois, Oklahoma, Kentucky, Tennessee, West Virginia, Arizona and Nevada.

Sells in September pleaded guilty to capital murder in the 1999 death of nine-year-old Mary Bea Perez of San Antonio. Perez was strangled during an outdoor festival. Texas prosecutors waived the death penalty in exchange for the plea and Sells got a life prison sentence.

Special prosecutor Ed Parkinson, a lawyer in the State's Attorneys Appellate Prosecutor's Office, had not been sworn in as an assistant state's attorney before questioning the grand jury or calling witnesses at trial, the court said.

The court also ruled state law at the time didn't allow the agency to assist with murder trials, although the law has been changed since the trial to give the office greater latitude.

"The trial court erred in allowing an attorney from the appellate prosecutor's office to prosecute the case," the court said.

"The defendant had a right to be prosecuted by someone with proper prosecutorial authority, a personal privilege she did not waive," Judges Terrence Hopkins, Richard Goldenhersh and Melissa Chapman wrote in the 13-page order.

One of Harper's lawyers, Allen Wolf of Orion, Mich., was jubilant. "I can say without a doubt justice has been done," he said.

He said he would soon ask the 5th District to release Rea-Harper from the Dwight Correctional Center on bond.

The 35-year-old was studying educational psychology at the University of Indiana when she was arrested in 2000.

Police say she savagely stabbed her only child in the middle of the night as he slept in her home. She had recently lost custody of him to her former husband, Len Kirkpatrick, in a bitter court battle.

Harper told police she wrestled with a masked intruder who attacked her son and got away.

But prosecutors told the jury there were no signs of a struggle in Harper's Lawrenceville home, and no signs from outside someone had entered the house.

Stephen Norris, deputy director of the appellate prosecutor's office for the 5th District, said the office has long assisted with murder trials when asked by local prosecutors.

Usually this has gone untested, he said, but a handful of judges who read the law strictly have challenged their work over the years, ruling the law empowering the office doesn't list murder among the charges with which they can assist.

But because the law has been changed since the 2002 trial, Norris expects his office will assist with any retrial, he said.

Lawrence County State's Attorney Todd Reitz, who will decide whether to retry Harper, did not return several telephone messages left at his office Friday by The Associated Press.

It wasn't immediately clear why Reitz asked Parkinson to join the case. Calling in outside help is a common practice in counties with sparse populations and infrequent murder cases. The southeastern county's population is 15,000.

A legion of Harper's friends and family, including her second husband, Mark Harper, have been working for her exoneration ever since she was convicted.

Rob Warden, director of Northwestern University's Center for Wrongful Convictions, which worked on the appeal, said Harper would be aided in any new trial by new evidence that has surfaced since her first one, including Sells' confession.