Defense wants judge back
Moore's attorney asks Supreme Court to reinstate Thompson
By Sheryl Marsh
email@example.com · 340-2437
Defense attorney Sherman Powell Jr. is asking the state Supreme Court to reverse the Alabama Court of Criminal Appeals' decision to order Morgan County Circuit Judge Glenn Thompson out of the Karen Tipton murder case.
Powell filed a petition Friday with the high court, alleging that evidence was withheld and destroyed and that Thompson was the one official who insisted on obeying the law.
The Court of Criminal Appeals ordered Thompson to remove himself earlier this month. Its ruling stated that Assistant Attorney General Don Valeska, who prosecuted Daniel Wade Moore in 2002, had showed that if Thompson remained on the case, it would present an appearance of impropriety.
"After considering the long and tortured history in this case as well as the clear animosity between the judge and the prosecutor, we believe that it would be difficult, if not impossible for Judge Thompson to divorce himself from the previous proceedings in this case," the appeals court's ruling stated.
Powell, who represents Moore, focuses his petition to the Supreme Court on an FBI report. He says Valeska and Assistant Attorney General Will Dill withheld it during Moore's first trial in the death of Tipton, a Decatur doctor's wife.
Powell accuses Valeska and Dill, as well as Decatur police investigators, of committing ethics and criminal violations.
"Their flagrant disregard for the law has only been matched by the personal egotism at seeking to force out of the case the one public official who sought to make everyone obey the law while the other public officials, the prosecuting attorneys and investigators had consistently and continuously violated court orders, professional ethical standards and the criminal Code of Alabama," Powell's petition states.
A jury convicted Moore of capital murder and recommended life without parole. Powell notes in the petition that Thompson sentenced Moore to death instead.
"The fact is that the findings Judge Thompson has made and all the matters referred to by the court reflect matters, findings, misbehaviors and conduct engaged in by the prosecutor throughout the trial and pre-trial proceedings," the petition states.
"At no point did they impair or impact upon Judge Thompson's rulings at trial stage. Indeed, Judge Thompson, notwithstanding the misconduct of the prosecutors as was demonstrated throughout the trial, imposed a death penalty on Daniel Wade Moore."
Before appealing to the Court of Criminal Appeals, Valeska asked Thompson to recuse himself, stating that he was biased against the state and had commented inappropriately about its evidence.
Thompson denied Valeska's petition and later, in a response to Valeska's appeal, said he never made inappropriate comments about state evidence.
Powell states in his petition to the Supreme Court that Valeska and Dill will be witnesses in Moore's new trial, which is set for July 30.
"There is no question that spoliation of evidence has occurred," the petition states. "Some of that evidence was in the hands of the prosecutors, in addition to the investigators."
Powell said the prosecutors and investigators would be required to testify about "the destruction of evidence in this criminal case."
He questions why Valeska is still in the case if the state is concerned about the appearance of impropriety.
"Why is the prosecuting attorney who is now a fact witness to spoliation of evidence continuing in this case except for his personal lust for vindication by causing the recusal of the trial judge who would not let the prosecutor and the investigator violate the law?" Powell asks in the petition.
Powell said his appeal would not interfere with Moore's new trial going forth in July.
"A petition does not stay the proceedings in circuit court," said Powell. "It should not delay any progress at the local level because there has been no stay placed on the case."
After sentencing Moore to death, Thompson later granted a defense motion to give him a new trial. In February 2005, Thompson dismissed the charges against Moore, citing double jeopardy and stating that he couldn't get a fair trial. The appellate court reversed that decision and ordered Thompson to reinstate the charges. The appellate court upheld a new trial for Moore.
Police developed Moore as a suspect after learning that he told an uncle that he was in Tipton's home March 12, 1999, when a friend of his stabbed her to death. He later recanted the statement, saying he made it up because he feared going back to jail. He had been in jail for theft.
Dill said Tuesday that the state will get another conviction for Moore. He said Powell's attack is a smoke screen.
"They're attacking us because the evidence in this case is so strong," Dill said. "His (Moore's) confession proves that he did it. The mountains of evidence that we presented in the first trial and that we will introduce again in this trial prove that Daniel Wade Moore killed Karen Tipton.
"This (accusations in the petition) is a common defense technique. When they can't respond to concrete evidence, then they attack the prosecution."
Dill said he believes that the appeals court ruling will stay intact.
"We are confident that that opinion will stand," he said. "They're going to lose like they did the first time — no ifs, ands or buts about it."
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