Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: THURSDAY, August 24, 1995 TAG: 9508240084
SECTION: VIRGINIA PAGE: C-1 EDITION: METRO
SOURCE: TODD JACKSON STAFF WRITER
DATELINE: ROCKY MOUNT LENGTH: Medium
Franklin County Circuit Judge B.A. Davis III disqualified himself from the retrial this week.
Martinsville attorney Benjamin Gardner was appointed as a special prosecutor in the case, and the retrial was moved from Franklin County to Pittsylvania County because of publicity that Dehart's lawyer, Tom Blaylock of Roanoke, called "excessive."
DeHart, who is free on bond pending the outcome of his new trial, was found guilty in 1992 of the second-degree murder of Effie Rakes. He was sentenced to 27 years in prison for murder and two related charges.
Rakes, 81, was found shot to death on the kitchen floor of her remote Shooting Creek home in June 1991. Prosecutors said Rakes caught DeHart trying to molest her invalid daughter.
In a Wednesday ruling, Davis wrote that he was disqualifying himself for reasons he had stated earlier in court. He didn't elaborate.
During DeHart's bond hearing in June, Davis said that before he was appointed as a judge years ago, he was the lawyer for DeHart's father in a moonshining case.
DeHart said at that hearing that he had no objection to Davis' presiding over the retrial.
However, Franklin County Commonwealth's Attorney Cliff Hapgood later filed a motion asking Davis to remove himself.
Davis' representation of DeHart's father is not the only issue on which he could have based his decision to disqualify himself. Members of his family have played a prominent role in the case.
Davis' son, Drew Davis of Bedford, and his cousin, Bill Davis of Rocky Mount, were DeHart's attorneys during his 1992 trial.
Because his son and cousin were involved, Davis did not preside over DeHart's first trial, either.
Davis also requested this week that the Virginia Supreme Court remove his son-in-law, William Alexander, a Circuit Court judge in Pittsylvania County, from consideration as judge for the retrial because he conducted DeHart's preliminary hearing three years ago.
On Gardner's appointment as a special prosecutor, Hapgood said he has no problem accepting additional help in this case.
Rakes' children - who are paying Gardner - asked that he be allowed to participate in the retrial, Hapgood said.
"I think they're just trying to do the best thing they can do for their mother," he said.
David Melesco was a special prosecutor with Hapgood during DeHart's 1992 trial. Melesco is now a Franklin County judge.
The change of venue was not unexpected.
Davis said during DeHart's bond hearing that he planned to move the trial to Pittsylvania County.
Blaylock has expressed doubt that an unbiased jury can be impaneled in Pittsylvania, which borders Franklin.
DeHart's trial is set for Nov. 13.
The retrial was ordered by the state Court of Appeals in October based on what the court believes was a violation of DeHart's rights: A possibly biased person was included in the required juror pool for his trial, although the woman was struck by the prosecution and never served on the jury that convicted him.
Hapgood, with Gardner's help, must now round up the witnesses and information used in the 1992 trial and try to present the same case again, knowing that DeHart can receive no additional prison time.
"That's the fun part about all of this," Hapgood said.
by CNB