10/12/06 — State appeals Levon Jones case

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State appeals Levon Jones case

By Matthew Whittle
Published in News on October 12, 2006 1:59 PM

The state has challenged a judge's decision to throw out the death sentence of a Duplin County man charged with a 1987 murder.

The state Attorney General's office filed a motion Monday asking U.S. District Court Judge Terrence Boyle to reconsider his September decision in the 13-year-old Levon Junior Jones case.

Jones, who has been on death row for nearly 13 years, was convicted in November 1993 of the 1987 murder of Duplin County resident Leamon Grady. He was convicted and sentenced based on the testimony of girlfriend Lovely Lorden, who implicated him in the Garner Chapel Road robbery and shooting three years after the fact.

Boyle threw out the sentence based on ineffective counsel, the basis of the appeal brought to the U.S. District Court for the Eastern District of North Carolina by Jones' attorneys.

The appeal claimed that Jones' original attorneys failed to perform inadequately at either the guilt-innocence or sentencing phases of his trial. Boyle agreed.

That is where the state's appeal begins, said Ken Rose of the Center for Death Penalty Litigation in Durham. Rose is currently handling Jones' defense.

"Their argument that he should not have been granted release is based on a technicality," Rose said.

In their motion to set aside the decision, the state's attorneys argue that the ineffective counsel plea made by Jones should not have been considered by Boyle -- a federal judge -- because it had not been previously introduced early enough in state court, Rose said.

"We disagree with that argument," he said. "But regardless, it's hard to believe they would be willing to sacrifice someone who may be innocent on a procedural technicality."

The state's other options would have been to either re-sentence or re-try Jones.

"Jones received two appointed attorneys that spent virtually no time or effort investigating the offense or his background," Boyle wrote in his September decision. "Counsel's deficient conduct undermines any confidence in the jury's verdicts and renders fundamentally unfair both the guilt-innocence and penalty phases of Jones' trial."

Boyle also ruled that in neither situation did Jones' counsel take the necessary steps to protect him.

They did not perform background checks on his accuser, Ms. Lorden, question her inconsistent stories or investigate the possibility of other suspects. They also did not provide the jury with mitigating evidence about his mental health status. He has since been diagnosed with mental retardation, delusional disorder and alcohol and cocaine dependence.

No timetable was given for when Boyle might give his next ruling.

"I don't know how Judge Boyle will rule, but I'm very hopeful he will deny their motion," Rose said.

If the judge does deny the motion, the state will have the option of appealing to the U.S. Court of Appeals for the 4th Circuit.

"We'll have to wait and see what the judge does, but that would be one option," Special Deputy Attorney General Valérie Spalding said.

But, despite indications by District Attorney Dewey Hudson that a denial would be appealed to the 4th Circuit Court, Ms. Spalding said that decision has not yet been made.

"There's been no appeal to the 4th Circuit at this time. That is a decision the attorney general will make," she said.

For Rose though, this motion and the possibility of an appeal is disappointing.

"The state does not contest in their motion, that there was a constitutional violation and that Mr. Jones did not receive a fair trial," he said. "I think it's gamesmanship. I think they see this as something they were about able to achieve, and they're unwilling to look hard to see if they got the right person.

"I think they don't want to re-try him because because it would be hard because they don't have any evidence. But it's hard for me to believe the state of North Carolina would place someone's life in jeopardy who may be innnocent based on a technicality."