Published: Wednesday, December 22, 2010, 5:30 AM
BAY MINETTE, Ala. — A Baldwin County judge Tuesday set a new trial date for former Mobile County Commissioner Stephen Nodine on murder and stalking charges, but it will be up to the new district attorney to decide if the state moves forward.
A jury on Monday convicted Nodine of a misdemeanor ethics violation but could not reach a unanimous verdict on charges that he stalked and killed his girlfriend, Angel Downs.
Circuit Judge Charles Partin scheduled the possible retrial for Feb. 28. Hallie Dixon, who defeated Baldwin County District Attorney Judy Newcomb in the Republican primary, will take office next month.
Newcomb said Monday that she believes the new administration should try the case again. Dixon said that she wants a chance to review the case and talk to Downs’ family before making a decision.
The Feb. 28 date keeps the case in the system but is not a hard date. Either side could request a delay. Since Newcomb prosecuted the case herself, several experts suggested, Dixon would need more than two months to put a new case together.
Jurors have said they split 9-3 in favor of conviction, which experts said is an important factor in a decision to retry a case.
“I’d say if it was a 9-3 split the other way, I’d go home,” said Mobile County District Attorney John Tyson Jr.
Tyson, who leaves office next month, said he believes it is likely Baldwin prosecutors will give it another try. The split, the strength of the evidence and the type of crime are all factors to consider, he said.
“The more serious the charge, the more seriously you have to take a look at the evidence, and the more seriously you have to think about the decision to do it or not,” he said.
Dixon said that deadlocked juries sometimes can spur plea bargains. But defense attorney Dennis Knizley said his client has maintained his innocence from the beginning and that a plea deal has been “off the table” from the start.
Dixon said that in any case that ends with a deadlocked jury, she will re-evaluate the entire case to gauge how likely it is that a second trial will end in conviction. How the first jury divided is a factor, she said.
“It’s not a mathematical equation by any means,” she said. “But in a general sense, I think it does affect the likelihood of success in the future.”
If there is a second trial, Knizley said Tuesday, he anticipates asking that it be moved to another jurisdiction. Although Knizley did not ask for a change of venue before the first trial, he said media coverage would make it extremely difficult to get a fair jury.
“There was absolute saturation during the trial, including the Twitter,” he said, referring to blow-by-blow accounts provided by TV reporters through the social networking site.
Since prosecutors are elected, outside influences sometimes can enter the decision to retry a high-profile case, some said.
“Politics can be a factor,” said. Deborah Young, a former federal prosecutor who followed the Nodine case. “And public opinion can be a factor.”
Young, who now teaches at Samford University’s Cumberland School of Law in Birmingham, said part of a prosecutor’s decision springs from how strong he or she feels the case is.
“Prosecutors always retry a case when they’re surprised by the result,” she said.
Experts said a second trial gives both sides an opportunity to address shortcomings exposed by the first trial. Which side benefits more? Experts said that depends on the case.
“Often, only the prosecutor puts on real evidence,” said Young.
Others said the prosecutors usually have less knowledge about the defense strategy than vice versa before the first trial, which means prosecutors have the upper hand in a retrial.
“Conventional wisdom is that a hung jury is a victory for the defense because there’s no conviction,” said Don Cochran, a Cumberland professor who previously worked as a state and federal prosecutor in Jefferson County. “I never really viewed it that way as a prosecutor.”
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