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Attorney for man charged in 2006 slaying seeks dismissal on grounds of double jeopardy

Previously, a mistrial was declared in case of man charged in Washington Gardens complex shooting

June 06, 2013|By DON AINES | dona@herald-mail.com

The tables were turned Thursday in Washington County Circuit Court when a judge, attorneys and court officials took the witness stand in a hearing in which the attorney for an accused killer is seeking to have the case dismissed due to double jeopardy.

On Feb. 20, Circuit Judge John H. McDowell declared a mistrial in the case of Joshua Edwards, charged with first-degree murder in the July 23, 2006, shooting death of Jackson A. Rodriguez in an apartment in the Washington Gardens complex in Hagerstown.

Edwards, 25, fled to New York and then to England, where he fought extradition back to Washington County for more than five years.

Edwards’ attorney, Carl Somerlock, told presiding retired Judge Diane Leasure of the 5th Judicial District that he wants the case dismissed on the grounds of double jeopardy, under which a person cannot be tried twice for the same crime.

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The defense is seeking to stop Edwards from being retried, contending that McDowell had prior knowledge of a possible conflict of interest before the trial began, and thus should have resolved that issue first rather than declaring a mistrial in the midst of the proceedings.

McDowell declared a mistrial during the second day of Edwards’ trial in February, saying at the time it had been brought to his attention that Kimberly Duckfield, a prosecution witness, had been represented by Edwards’ defense attorney, Bernard W. Semler II, in a civil custody case in 2011-12.

Court reporter Dee Del Popolo testified Thursday that she brought Semler’s representation of Duckfield to McDowell’s attention late on the trial’s first day on Feb. 19.

“A year ago (Semler) was advocating very strongly for her,” Del Popolo testified.

However, in his opening statement in the Edwards case, Semler characterized her negatively, Del Popolo testified.

McDowell testified he was assigned the Edwards case about two weeks before the trial was to begin, replacing another circuit court judge. He testified that in conference in the judge’s chambers around Feb. 11, 2013, Semler mentioned Duckfield’s custody case to him.

“It wasn’t just a passing comment, was it?” Somerlock asked McDowell.

“Yes it was,” McDowell testified.

After his Feb. 19 conversation with Del Popolo, McDowell testified that he reviewed his notes on the Duckfield case on the morning of Feb. 20 before the trial resumed.

On Feb. 20, Duckfield was taken into court outside the presence of the jury and told McDowell she had shared information about her background with Semler when he represented her, according to a courtroom recording from that date.

McDowell advised Edwards that he had found there was an “irretrievable conflict” in Semler’s earlier representation of Duckfield and said he could ask for a mistrial, the recording said.

Edwards said on the recording that he wanted to keep Semler as his counsel and asked for a continuance to allow time to find an attorney solely for the purpose of cross-examining Duckfield, the recording said.

Edwards also asked on the recording if he could cross-examine Duckfield.

McDowell declared a mistrial, saying a jury was already hearing the case, and it would take too much time to prepare another attorney on the facts of the case to conduct a cross-examination.

“I did not believe there was a conflict of interest,” Semler testified.

He testified that he had taken over Edwards’ case from another attorney in September 2012, and prior to trial, had informed Washington County Deputy State’s Attorney Joseph Michael that he had represented Duckfield in the custody matter.

Differing accounts

Semler recalled the Feb. 11 chambers conference differently, testifying it was McDowell who first remembered Duckfield’s custody case.

McDowell told him at the conference that he did not believe Semler’s prior representation of Duckfield constituted a conflict of interest, Semler testified.

Assistant State’s Attorney Gina Cirincion, the state’s co-counsel in the Edwards case, testified that Semler mentioned in the chambers conference that he had represented Duckfield. She also testified that Semler told McDowell he did not believe that was a conflict of interest and that McDowell agreed.

On the second day of the murder trial, Semler testified that he made a motion to exclude Duckfield as a witness, but McDowell denied that motion without allowing him to fully explain it.

Shortly after the mistrial was declared, Michael, who was the lead counsel for the prosecution, came up to him and took the blame for the mistrial, Semler testified.

Michael, who was called to the stand by State’s Attorney Charles Strong, testified that he told Semler: “I’m the much more experienced lawyer ... I should’ve seen this coming.”

Michael testified he meant that he should have taken “better care of the case” to make sure such issues did not arise.

Duckfield testified she had informed Michael and Victim Witness Unit Director Jill Ritter before the trial that she thought there was a conflict of interest with Semler.

Ritter testified that Duckfield had complained about Semler having represented her in the custody case, but did not use the term conflict of interest.

Somerlock told Leasure that McDowell should not have declared a mistrial and that Edwards’ request for a postponement of the jury trial to allow Edwards or another attorney to cross-examine Duckfield should have been given consideration.

Strong argued there was a “manifest necessity” for McDowell to declare a mistrial.

Striking a central witness to the case “is not realistic,” he said.

Leasure did not issue a decision, telling the attorneys she might do so within a week or so.”

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