ROANOKE TIMES
Copyright (c) 1996, Roanoke Times
DATE: Friday, May 17, 1996 TAG: 9605170075
SECTION: VIRGINIA PAGE: B-1 EDITION: NEW RIVER VALLEY
DATELINE: CHRISTIANSBURG
SOURCE: KATHY LOAN STAFF WRITER
MEMO: NOTE: Shorter version ran in Metro edition.
The attorney who replaced Blacksburg lawyer Joe Painter as counsel for one of three men charged with killing a Virginia Tech student says Painter "was actively sabotaging" Mark Anthony Lilly's defense.
Brian Scheid, a Giles County lawyer who joined Lilly's defense team after Painter was dismissed from the case in February, asked Montgomery County Circuit Judge Ray Grubbs Thursday to have Painter subpoenaed to testify about his actions.
Scheid has filed motions to dismiss the charges against Lilly or move the case from Montgomery County, on the grounds that Painter's actions compromised Lilly's right to a fair trial. Painter's testimony is needed in putting forth those motions, Scheid told Grubbs.
Because the rules of the Supreme Court of Virginia state that defense attorneys can be subpoenaed only by prosecuting attorneys, Scheid is asking Grubbs to direct the commonwealth's attorney's office to do so. A hearing on the request must be held before the subpoena can be issued.
Alexander V. DeFilippis, 22, was found dead Dec. 5 in Montgomery County's Whitethorne community. Benjamin L. Lilly, 28, Mark Lilly, 20, and 19-year-old Gary Wayne Barker were each charged with murder.
Scheid is particularly concerned about unspecified comments Painter is alleged to have made about taping conversations without Mark Lilly's consent and a letter to the editor from Painter that was published in the April 28 New River Current. The Current is a daily publication of The Roanoke Times.
The letter refers to attending a memorial service for DeFilippis and speaks of "the shock and the horror of the event" that carried over to the service, Scheid said. That "does indicate a predisposition" against Lilly, who was still Painter's client when the service was held, Scheid said.
Painter's dismissal before a preliminary hearing Feb. 19 came after Mark Lilly wrote a letter to a judge requesting Painter's removal, said Pete Theodore, who also represents Lilly.
"We truly believe that the actions that led to Mr. Painter's dismissal ... indicate that he was actively sabotaging Mark Lilly's defense," Scheid said.
Scheid had asked Painter to attend Thursday's hearing, but he declined. His lawyer, Tom Kratman, was there but did not participate in the discussion.
Painter's actions have caused Lilly's case irreparable damage, Scheid told the judge.
After the hearing, Kratman discounted Scheid's arguments.
"There is no correlation between Joe's prior representation and the feeling any human being would have" about a murder, Kratman said. "The letter postdates representation by 21/2 months." Scheid's arguments would imply that "it's wrong for ... a criminal defense attorney to object to violent crime," he said.
Grubbs took the motion to have Painter subpoenaed under advisement, but did agree to continue Mark Lilly's trial - which was to have started June 4 - until the matter could be resolved.
Gary Barker's trial is scheduled for June 11 and 12. Ben Lilly's trial is set for the week of June 17.
Authorities say statements given by Mark Lilly and Barker point to Ben Lilly as the one who fired the shots that killed DeFilippis. Ben Lilly faces the death penalty if convicted of being the gunman.
Besides murder charges, Ben and Mark Lilly and Barker each face charges of abduction, robbery, carjacking and four counts of using a firearm to commit the felonies. Ben Lilly also is charged with possessing a firearm after being convicted of a felony.
The three men also face charges of robbing two Giles County convenience stores after DeFilippis was killed.
LENGTH: Medium: 70 linesby CNB