ROANOKE TIMES
Copyright (c) 1996, Roanoke Times
DATE: Sunday, February 18, 1996 TAG: 9602190061
SECTION: VIRGINIA PAGE: A-1 EDITION: METRO
DATELINE: CHRISTIANSBURG
SOURCE: KATHY LOAN STAFF WRITER
When Benjamin Lilly appears in court Monday on charges of carjacking and murdering a Virginia Tech student, one question will be on the minds of many people: Why was someone with Lilly's criminal record free that December night?
When 22-year-old Alexander DeFilippis was killed Dec. 5, Lilly was free on bond, awaiting trial on two felony charges filed against him in October.
DeFilippis was abducted as he waited for a friend outside a convenience store in the Hethwood community of Blacksburg. Police say he was carjacked, robbed, then killed - his body left near railroad tracks in a remote section of Montgomery County.
Lilly, 27, and his brother, Mark Anthony Lilly, 20, both of Riner; and Gary Wayne Barker, 19, of the Merrimac community have been charged with capital murder, robbery, carjacking, abduction and related firearm offenses. They also face charges of robbery and using a firearm in Giles County, where two convenience stores were robbed shortly after DeFilippis was abducted.
Authorities say Mark Lilly and Barker have called Ben Lilly the trigger man in DeFilippis' killing.
"[Ben] Lilly is not the trigger man," his lawyer, Max Jenkins, said Friday. "We will be able to prove it."
Court officials say Lilly's release on bond last fall after being charged with attempted breaking and entering and possessing a firearm was not a lapse in the system.
Even though Lilly was recently paroled and on probation for felonies, he had not been found guilty of the new charges, court officials say.
Like most defendants accused but not yet convicted of a crime, he was legally entitled to a reasonable bond.
Lilly's name was familiar to New River Valley law enforcement officers long before Dec. 5. Court records show an array of misdemeanor charges against him dating from 1988, including drunk in public, destruction of property and assault and battery.
Lilly was born in West Virginia, dropped out of school after the eighth grade and moved to Montgomery County with his family about eight years ago, according to court documents. He has been unemployed much of his adult life, according to documents requesting court-appointed attorneys.
His felony convictions include forging and uttering stolen checks in Pulaski County and breaking into a convenience store and stealing cigarettes and food in Montgomery County. A conviction for malicious wounding - for smashing a wine bottle into his girlfriend's face - was his only conviction for serious violence. In Radford, he received a suspended eight-year prison sentence for stealing copper wiring.
Skip Schwab, an assistant commonwealth's attorney for Montgomery County, says his office did object to bond for Lilly last fall after his latest criminal charges.
``We didn't want him out.''
But, Schwab added, ``at that time, Ben was entitled to a setting of the bail. There wasn't anything to indicate ... an unreasonable danger. ... Nor did it appear he would be a flight risk.''
The risk of violence and flight are factors that magistrates and judges consider when deciding whether to release someone on bond.
``In hindsight, he was an unreasonable danger,'' Schwab said.
The judge set bail at $25,000.
``He's entitled to bond, and that was a high bond,'' General District Judge John Quigley said.
Judges and magistrates also consider the alleged crime, the defendant's criminal record and financial situation in determining a ``reasonable'' bond.
Lilly presented himself as indigent, Schwab says, and the $25,000 bond was considered high for someone in his financial situation. Lilly even indicated he could not meet that bond, Schwab says.
With that size bond, court officials thought ``that he'd stay right where he was,'' Schwab said.
But Lilly did make bond - by paying $2,500, 10 percent of the bond, to a bail bondsman.
Lilly could have faced being returned to prison for violating his probation - by allegedly committing a new crime.
But judges generally wait until a defendant has a court hearing on a new charge before deciding whether to order him back to prison for violating probation, says Bobby Arnold, chief probation and parole officer for the 28th District, based in Radford.
Lilly had a preliminary hearing on the two new felony charges set for Nov. 28, one week before DeFilippis was killed. But the hearing was continued to a later date, according to court records, as frequently happens in the court system.
Arnold says Lilly's supervising probation officer was keeping tabs on Lilly and was aware of the pending charges. In all, it appeared that Lilly ``was doing reasonably well,'' Arnold said.
Lilly indicated on paperwork used to determine whether someone qualifies for court-appointed attorney that he was working for a greenhouse company. Pulaski records show he had started paying restitution for the forged checks.
Probation officers determine how often a probationer will have to meet with them, file reports about their job searches and home life, and meet other conditions. People on probation come to circuit court four times a year so their probation officers can update judges on their progress.
Ben Lilly's younger brother, Mark Lilly, and Barker, the third defendant, have shorter histories in the courts. They had misdemeanor convictions and were awaiting trial on felony charges when DeFilippis was killed.
In Montgomery County, Mark Lilly had been charged with breaking and entering and grand larceny and has been found guilty of possessing marijuana and several traffic traffic charges.
Barker was on bond awaiting trial on five charges, according to court records, including the attempted robbery of a woman's purse, grand larceny and an appeal of an assault-and-battery conviction. In the past year, he had been convicted of reckless handling of a firearm, destruction of property and petty larceny, all misdemeanors.
While people may, in hindsight, question why the three men, particularly Ben Lilly, were free on bond, Schwab says the men's previous records gave no clue that authorities would see them back in court charged with murder.
DeFilippis' murder had no rhyme or reason, the assistant prosecutor says.
``Not every burglar is a murderer," Schwab said. "In this case, it wasn't about burglary, it was about getting a ride home."
WHAT HAPPENS NEXT
The three suspects will have a preliminary hearing Monday on charges related to the killing of Alexander DeFilippis.
Each faces eight charges in Montgomery County: capital murder, carjacking, abduction, robbery, and four counts of using a firearm to commit the offenses.
The three also will have a preliminary hearing on robbery and firearms charges filed in Giles County after two convenience stores were robbed shortly after DeFilippis was killed.
The preliminary hearing starts at 8 a.m. in Montgomery County General District.
In a preliminary hearing, a General District Court judge determines whether there is sufficient evidence to send the case to a grand jury to consider for indictment. After defendants are indicted, a trial is scheduled in Circuit Court.
LENGTH: Long : 133 lines ILLUSTRATION: PHOTO: File/1995. Benjamin Lilly\Charged in slaying. color.by CNB