Man guilty in stepson's death seeks new trial

His lawyer didn't use defense option, latest attorney says

April 02, 2002|By Lisa Goldberg | Lisa Goldberg,SUN STAFF

A former state trooper convicted of killing his stepson five years ago deserves a new trial - or at least a new sentencing - because his trial lawyer did not pursue a defense that could have saved him from a murder conviction, the trooper's new lawyer argued yesterday.

But prosecutors countered during the daylong hearing that the trial lawyer purposely did not offer the defense at the request of his client, James Milton Harding Jr., who hoped to win an acquittal without delving into his mental deficiencies.

"He did not want mental capacity to become an issue and affect his chances of employment down the road," prosecutor Cindy L. Johnson said in Howard County Circuit Court.

A Howard County jury convicted Harding of second-degree murder in December 1997 in the fatal shooting of his 23-year-old stepson, Marine Cpl. Andre Boone nine months earlier. Harding is serving a 25-year prison sentence.

Yesterday's proceeding gave Harding and his new attorney, Henry L. Belsky, a chance to argue that the 44-year-old Columbia man was denied his constitutional right to a fair trial because his trial lawyer's representation was "ineffective."

Judge Dennis M. Sweeney did not rule on Harding's request for a new trial yesterday. It was unclear when he would issue his ruling.

Harding suffered career-ending brain damage during an on-the-job accident in 1993, damage that causes him to process information and to react differently than the average person, Belsky said yesterday.

As such, he would have been a perfect candidate for an "imperfect self-defense" argument, a defense that would have allowed a jury to find him guilty of manslaughter instead of murder by arguing that Harding was in fear of his life in a situation a "reasonable" person would not find threatening, Belsky said.

Medical experts said Harding had could not have formed the criminal intent needed for a murder conviction, but that theory was never offered, Belsky said.

Harding's trial lawyer, Anthony B. Covington, argued at trial that his client had acted according to the more traditional definition of self-defense - that he was rationally in fear of his life.

Harding testified at trial that he fired his shotgun to scare Boone during a fight with Boone. He testified that his stepson was the aggressor and threatened to burn down his Goodin Circle home.

Yesterday, Covington testified that he felt an "imperfect" self-defense argument was tailor-made for Harding's case because of Harding's brain damage. Harding suffered a severe decline in his IQ and a loss of short-term memory and ability to process events as a result of being hit by a car while working as a trooper, according to testimony.

But Harding insisted he did not want a defense that would result in a conviction, Covington said.

"He felt he acted in self-defense ... and he wanted an acquittal," he said.

Harding disagreed yesterday, testifying that Covington never advised him about the possibility of offering an "imperfect" self-defense theory. Belsky noted that there was no written or recorded evidence that Covington advised Harding of his options.

Covington was the second attorney to represent Harding. Harding dismissed his first attorney, Michael O. Ramsey, when Ramsey became concerned after his client had behaved unusually during a motions hearing and insisted that he be evaluated by a mental health professional, according to testimony.

Covington testified yesterday that he had no such concerns. Based on his observations and the reports he had seen, "nothing made me think he was not competent to stand trial," he said, adding that the defense Harding wanted was reasonable based on the evidence.

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