Post by SoulTrainOz on Jun 14, 2006 21:38:23 GMT -5
An attorney for a Fayette County man charged with homicide wants a judgeto block prosecutors from seeking the death penalty.
James W. VanDivner, 57, formerly of Point Marion, is charged with fatally shooting his ex-girlfriend, Michelle Cable, 41, at her Grindstone, Jefferson Township, home in July 2004.
District Attorney Nancy Vernon has said she will ask for the death penalty if jurors convict VanDivner of 1st-degree murder.
Judge John F. Wagner Jr. entered an order Tuesday to schedule a hearing for Aug. 29.
In a motion filed last week, defense attorney Dianne H. Zerega said prosecutors failed at the August 2004 preliminary hearing to establish a case for the aggravated factors alleged for a possible death sentence. Zerega is handling the potential penalty phase of the case, while the public defender's office is serving as VanDivner's counsel.
Zerega's argument is similar to a motion filed by attorney Mark Mehalov in April on behalf of Edward A. Belch, 45, of McClellandtown, German Township. Belch is accused of ramming his truck into a motorcycle ridden by his ex-girlfriend, Terri Gresko, and Thomas D. Myers in May 2005.
Vernon also intends to argue for the death penalty if Belch is convicted of first-degree murder in the double-homicide case. The motion in that case is pending before Judge Steve P. Leskinen.
As part of the justification in the VanDivner case, prosecutors have argued that the defendant had a significant history of felony convictions involving the use or threat of violence against Cable.
Zerega contends the state's attorneys cannot add an element or an offense to a case that already has been held for court. VanDivner is facing trial for criminal homicide and the attempted homicide of Cable's son, William, who survived a gunshot wound to his neck.
"The Pennsylvania death penalty statute presumes that life is the
appropriate penalty, that death is an enhanced penalty, and that any factors which increase the penalty are elements of the offense that must be pleaded and established in the normal course," Zerega said in the motion.
Wagner approved Zerega's motion to hire a Pittsburgh psychiatrist at the county's expense to evaluate VanDivner.
Lawson Bernstein, of the University of Pittsburgh School of Medicine, will be paid $2,500 to complete an evaluation. The judge's order noted that Bernstein also might be called to testify at trial.
Zerega has estimated that cost at another $2,500.
(source: Tribune-Review)
James W. VanDivner, 57, formerly of Point Marion, is charged with fatally shooting his ex-girlfriend, Michelle Cable, 41, at her Grindstone, Jefferson Township, home in July 2004.
District Attorney Nancy Vernon has said she will ask for the death penalty if jurors convict VanDivner of 1st-degree murder.
Judge John F. Wagner Jr. entered an order Tuesday to schedule a hearing for Aug. 29.
In a motion filed last week, defense attorney Dianne H. Zerega said prosecutors failed at the August 2004 preliminary hearing to establish a case for the aggravated factors alleged for a possible death sentence. Zerega is handling the potential penalty phase of the case, while the public defender's office is serving as VanDivner's counsel.
Zerega's argument is similar to a motion filed by attorney Mark Mehalov in April on behalf of Edward A. Belch, 45, of McClellandtown, German Township. Belch is accused of ramming his truck into a motorcycle ridden by his ex-girlfriend, Terri Gresko, and Thomas D. Myers in May 2005.
Vernon also intends to argue for the death penalty if Belch is convicted of first-degree murder in the double-homicide case. The motion in that case is pending before Judge Steve P. Leskinen.
As part of the justification in the VanDivner case, prosecutors have argued that the defendant had a significant history of felony convictions involving the use or threat of violence against Cable.
Zerega contends the state's attorneys cannot add an element or an offense to a case that already has been held for court. VanDivner is facing trial for criminal homicide and the attempted homicide of Cable's son, William, who survived a gunshot wound to his neck.
"The Pennsylvania death penalty statute presumes that life is the
appropriate penalty, that death is an enhanced penalty, and that any factors which increase the penalty are elements of the offense that must be pleaded and established in the normal course," Zerega said in the motion.
Wagner approved Zerega's motion to hire a Pittsburgh psychiatrist at the county's expense to evaluate VanDivner.
Lawson Bernstein, of the University of Pittsburgh School of Medicine, will be paid $2,500 to complete an evaluation. The judge's order noted that Bernstein also might be called to testify at trial.
Zerega has estimated that cost at another $2,500.
(source: Tribune-Review)