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Howard lawyers dispute charges

January 13, 2001

Howard lawyers dispute charges



By BOB PARTLOW / Staff Writer


MARTINSBURG, W.Va. - With the trial of Sara Howard on charges she murdered her three young children three weeks away, defense attorneys have filed an appeal with the state Supreme Court to have the charges dismissed.

The attorneys argue in their legal document filed with the court that the prosecutor has lost her ability to prove murder against Howard because she can't prove gasoline was used to set the fire at 211 E. Liberty St. on Nov. 13, 1999.

Howard is charged with setting the fire, then leaving the house by an upstairs window in a room where her 3-year-old twins Brandi and Corey were sleeping. Her 4-year-old son Mason was sleeping in another room. All three died within a week of the fire of smoke inhalation.

When Howard was indicted for the murders in May 2000, Berkeley County Prosecuting Attorney Pamela Games-Neely told grand jurors evidence tested by the state crime laboratory and an independent lab showed gasoline was present in the fire debris. An independent expert later said there was no gasoline present.

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In the absence of the gasoline, the charges should be dropped and the prosecutor should seek other charges if she wants, the attorneys wrote the court. She has charged Howard with three counts of first degree murder, three counts of felony murder, one count of arson and three counts of child neglect resulting in death.

"The state has declined to use its prosecutorial discretion to dismiss the indictments and seek new indictments from a grand jury on whatever reliable evidence remains," they wrote in their brief to the court.

In November, Circuit Court Judge David Sanders said the information presented to the grand jury was based on "a reasonable mistake" in the reading of the scientific evidence. Since the grand jury does not have the final say, all evidence would be weighed by a trial jury, he said.

"The court does not want to substitute itself as a finder of fact," he said.

His decision is being appealed.

Games-Neely said she intends to proceed with the case.

"This is just a change of science," she said.

The scientific tests still have some unexplained results that she is trying to resolve, she said. She still believes the fire was deliberately set, even if no "accelerant" such as gasoline was present.

"You don't have to have an accelerant to have arson," she said.

In November, Assistant Prosecutor Hassam Rasheed told Sanders defense attorneys must show that prosecutors deliberately misled the grand jurors in order to dismiss the indictment.

But Howard's attorneys argued that deliberately misleading the grand jury and mistakenly giving them erroneous evidence produces the same result.

"Taint caused by falsely manufactured evidence and taint caused by scientific evidence have precisely the same effect on an indictment or verdict - a violation of due process and the right to an informed and unbiased grand ... jury," the attorneys wrote the court.

Attorneys argue there is no case law that addresses the question of erroneous information presented to a grand jury. That's why the court must rule, they said.

"There are many, many cases on point on this issue," Games-Neely said.

They support her position to proceed, she said.

Defense attorneys said a guilty verdict on these charges would be subject to strong legal challenge.

"There is a high probability that the trial will be completely reversed if the error is not corrected in advance," they wrote.

The court has not yet decided whether to hear the appeal. The trial is scheduled to begin Feb. 6.

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