Motions heard in Phillips case

Published 12:00 am Monday, November 3, 2003

Bobby O'Lee Phillips was back in Covington County Tuesday afternoon for a preliminary hearing that involved the filing of several motions in the Covington County Circuit Court.

Phillips will be standing trial for capital murder in the death of Paul LeMaster last November. The alleged murder took place a few days after Phillips and three others escaped from the Covington County Jail. Michael D. Barbaree and Charles D. Meeks were both captured shortly after the jail break, but Phillips, along with Oscar Roy Doster remained at large for several days before being apprehended in Texas.

Phillips' attorneys, Greg Albritton and David Baker filed 13 motions on their defendant's behalf in the court of Circuit Judge Lex Short.

The motions filed include:

1. Motion to declare the Alabama Capitol Sentencing process unconstitutional and to bar imposition of the death penalty.

2. Motion to bar imposition of the death penalty where the jury's role and factual determinations are deemed advisory.

3. Motion to dismiss the indictment on the grounds that the failure to specify the aggravating circumstances on which a death sentence may be imposed violates the fifth, sixth, eighth, and fourteenth amendments and state law.

4. Motion to apply heightened standard of review and care in this case because the state is seeking the death penalty.

5. Motion for discovery of Grand Jury transcripts, exhibits and other documentation of the Grand Jury proceedings and list of Grand Jury members.

6. Motion to dismiss the indictment on grounds that the Grand Jury was improperly impaneled.

7. Motion for discovery of prosecution files, records, and information necessary to a fair trial.

8. Motion to reveal the identity of informants and reveal any deals, promises or inducements.

9. Motion to inspect, examine, and test all physical evidence.

10. Motion for deposition of state expert witnesses and request for production of documents.

11. Motion for production of negatives.

12. Motion to allow the defendant to view the scene of the crime with his attorneys.

13. Motion to allow access to client.

Among the most highly discussed motions were the ones involving access to Phillips by his defense team and the motion to allow the defendant to view the scene of the crime.

The motion to allow access is related to the motion to allow viewing of the crime scene in a way. Phillips' team wish to have Phillips housed closer to Covington County, either in the Covington County Jail or a neighboring jail for three to four days, in order to meet with him and enable him to visit the scenes of the alleged crimes. Phillips is currently being held at the Kilby State Correctional Facility in Montgomery.

Those two motions saw Sheriff Anthony Clark called to the stand and be questioned by Albritton and Baker regarding housing Phillips locally or in another facility. Those motions were also objected to by Covington County, represented by attorney Ben Bowden.

Bowden pointed out that Phillips was a state prisoner and was a state prisoner awaiting transfer to a state facility at the time of his alleged escape.

Bowden said the shear nature of the case required Phillips to be incarcerated at a higher level of security than is available at the Covington County Jail - which is a moderate security level facility.

"Phillips is a state prisoner, if he stays here, he'll lose his space at Kilby," Bowden said. "He is a dangerous defendant who has already escaped."

Albritton objected to that statement.

"It appears my client has already been judged," he said. "Those statements are made on accusations. The County is claiming that he needs to be housed at Kilby. That's a public statement. We've asked that we be given three days to have access to our client."

Bowden countered the objection saying that Phillips has been classified by correctional officers as a person who requires additional security measures.

Albritton countered back that Phillips convictions - 10 counts of burglary in the third degree - are Class 3 felonies, and are not considered security risks.

Baker said the defense team was viewing the county's objection as a motion to keep from housing Phillips as an attempt to "preclude (the defense) from seeing the client."

Clark took the stand and was questioned by Baker regarding the security of the jail. He was asked if inmates routinely escaped the jail.

"No," Clark said. "But, we are overcrowded, and Mr. Phillips should have been gone from the jail before this happened."

Bowden questioned Clark regarding state prisoner's losing their bed in a state facility.

"There are several instances when a state prisoners have lost their spot in a state prison" after being gone from it for extended periods of time, Clark said.

No ruling was made on the motion, but is expected in the next few weeks.

The State also filed two motions.

1. Specific request for discovery, to-wit: Taking of DNA sample from defendant.

2. Petition for mental examination and for commitment for mental examination.

Both sides agreed to those motions, as well as the other motions with minimal objections, with some of the motions being moot points as the requests were already in compliance.

As for the motion requesting the names of the Grand Jury, the State objected, citing Alabama's Grand Jury Secrecy Act and that the names and addresses are not available to involved parties. However, the ages, race and gender of jurors are.

In the State's motion for testing for DNA, it was noted by Greg Gambril, chief assistant district attorney, that the State had received notification of the presence of DNA samples in evidence.

No objection was received on the DNA motion.

The State filed the mental testing motion because a prior examination of Phillips indicated the presence of a bi-polar disorder, but the State feels it did not come into play in the alleged homicide.

No date has been set for the ruling on the pending motions, and no trial date has been set.