ATHENS — Limestone County District Attorney Brian Jones said today he will retry the Ardmore man convicted of fatally shooting his nephew at a party in 2009 if the Alabama Supreme Court will not review the case.
The Alabama Court of Criminal Appeals reversed the murder conviction of 41-year-old Keith Daniel George Friday. The ruling was filed by the Appellate Court late Friday night heading into the Labor Day weekend.
The court opined the shooting could have been self-defense under Alabama's stand-your-ground law enacted in 2006, and that the jury should have been allowed to decide that.
"The court based its decision on witness, Jason Martin, who was chewed up on cross-examination," Jones said today. "They based it on his testimony and disregarded other witnesses. This was not a self-defense case but, in the opinion, they take issue with that."
Attorney Garry Clem defended Keith in the September 2012 trial that resulted in Keith's now-reversed conviction. Circuit Judge James Woodroof Jr. presided at the trial and sentenced Keith to 50 years in prison.
Keith will now be eligible for release on bail as he was before the 2012 trial, Jones said.
Keith was convicted in the fatal shooting of his nephew, Rusty George, 26, of Ardmore, on March 16, 2009. Rusty was shot twice in the right thigh and once in the chest just after midnight at a home on Third Street in Ardmore, where friends had gathered for a barbecue and drinking. (Although the Appellate Court cited testimony that Keith was allegedly trying to stop Rusty from getting into his pickup truck to drive home because he believed he had been drinking, more than one witness at the trial said Keith did not want Rusty to leave in the pickup because Keith had sold it to him and had not yet received full payment.)
The Appellate Court ruled the trial court gave outdated instructions to the jury regarding self-defense.
The ruling stated: "The Circuit Court's jury instructions regarding the duty to retreat was an incorrect statement of the law and should not have been given."
The Appellate Court wrote that the Circuit Court should have instructed the jury in accordance with 13A-3-23 (b) of the Alabama Code of 1975 as amended. Jones had argued that instructing jurors in accordance with the above law would have been "misleading and confusing," according to the ruling.
"The Circuit Court's improper self-defense jury instruction was not harmless because the jury could have rejected Keith's defense of self-defense based on the State's evidence indicating that he could have retreated."
"The shooting was not self-defense," Jones said. "The Appellate Court cited one witness who was contradicted by several other witnesses who said Keith was the aggressor that he had gotten a gun and that Rusty had dropped the stick and was backing up across the road and into a lot with Keith pursuing him when he was shot."
According to state law, a person not engaged in unlawful activity, and in a place where he or she has a right to be, has no duty to retreat and has the right to stand his or her ground.
Jones noted that George fired three shots and witnesses said he was preparing to fire another when Rusty was already on the ground.
In the ruling, the Appellate Court wrote, "Due to Russell's (Rusty's) continued aggression, Keith fired an initial shot. Although the evidence indicated that Russell was shot three times, Keith testified that he remembered firing only one shot."
During the trial, the defense objected to the jury instructions citing the stand-your-ground law. Woodroof did not reinstruct the jury.
Jones said he will call the Attorney General's office Tuesday and ask its Appeals Division to ask the Alabama Supreme Court to review the Appellate Court's decision. The Attorney General's office typically handles such appeals, Jones said.
The state's High Court can either accept or decline to review the case.
Jones believes the Supreme Court may review the case since stand-your-ground cases have been an issue in Alabama and other states.