Experts say Baldwin prosecutors likely to try Stephen Nodine again on murder, stalking charges

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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Nodine on trial: Five key moments that helped shape the outcome of murder, stalking charges

Published: Wednesday, December 22, 2010, 5:30 AM

BAY MINETTE, Ala. — In any high-stakes trial that lasts two weeks, there are bound to be turning points or dramatic moments that leave an indelible mark.

Here are five from the trial of former Mobile County Commissioner Stephen Nodine, which resulted in a Monday conviction for improper use of his government-issued truck and a hung jury on charges of murder and stalking in the death of Angel Downs:

• Stepehen nodine is here.” Those words, which Downs wrote via text message to her sister in Georgia, served as a chilling accusation directed straight at the defendant.

It was as if Downs were testifying from the grave, prosecutors suggested.

Jurors saw the text projected onto the wall of Baldwin County Circuit Judge Charles Partin’s courtroom. District Attorney Judy Newcomb argued that the misspelled name and lack of punctuation — in contrast to other text messages that day — showed that the victim was frantically trying to get the message out.

Downs’ sister, Susan Bloodworth, testified that the victim sent the text message in response to a question about what was happening outside the victim’s Gulf Shores home. According to Bloodworth, Downs had called asking whether she should shoot an intruder in the head, chest or legs.

• Dueling forensics. The key question of the trial was whether Downs was shot by somebody else or shot herself. The medical examiner who conducted the autopsy, Dr. Eugene Hart, ruled the manner of death inconclusive.

But he testified that it was consistent with suicide and told jurors that he held to that opinion even after law enforcement investigators asked him to re-examine the body.

An expert witness hired by the state, Dr. James Downs, sat on the courtroom floor and demonstrated that he thought the victim was sitting on her driveway, her legs crossed or bent, leaning toward the left as a gun was pressed to her right temple.

After the victim collapsed, Dr. Downs said, someone moved her body, leaving drag marks. During an intense cross-examination by defense attorney Dennis Knizley, Dr. Downs testified that he was not saying his re-enactment was definitely the way the shooting happened. He told jurors that it was one way it could have happened.

• Nodine’s explanations. Nodine told Baldwin County sheriff’s investigators several different reasons why he was headed home after spending the day of May 9 at Pensacola Beach with Downs, with whom he had had a long affair. Newcomb used all of them to accuse him of inconsistency.

At various points in a long interview with investigators, Nodine said he needed to get home because it was Mother’s Day, because he had work related to the BP PLC oil spill, because he had not been home all day and because he wanted to watch a Yankees-Red Sox game.

Nodine also told authorities that he realized he had forgotten his wallet at Downs’ home and called three times as he was returning to retrieve it. He told investigators that he reached Downs on the third try, according to testimony.

In fact, according to cell phone records, the longest call was the first call, lasting 20 seconds. Another call lasted just four seconds while the other two went to voicemail, according to testimony.

• Strange couple. Throughout the trial, prosecutors tried to prove that Nodine was stalking Downs, and they put on witnesses who testified about seeing Nodine throw an object at her, yell at her and bang on her door and window.

But defense lawyers countered with testimony that Nodine and Downs spent time with each other as recently as the week before her death. Jurors also saw a photo taken that day of a shirtless Nodine, sitting in a beach chair, holding her hand.

Trial observers strained to understand why Downs stayed with a married man for six often-tumultuous years. Perhaps harder to understand was how Nodine managed to spend holidays like Mother’s Day and Easter with his girlfriend — including, according to testimony, taking his teenage son on sleepovers at her house — without his wife taking action.

• Newcomb’s O.J. moment. Several law enforcement officials and Dr. Downs testified about the great significance of Angel Downs’ hair at the scene, which appeared to be pulled straight back from her head like a fan.

The prosecution witnesses pointed to the hair as evidence that the killer had partially staged the scene.

But Knizley pointed out that the lead investigator never mentioned the hair in his report, and a retired Alabama medical examiner testified that the hair position was not significant. Under cross-examination from Newcomb, Dr. James Lauridson testified that the victim’s hair easily could have ended up in that position.

Newcomb tried to challenge that assertion with a dramatic courtroom re-enactment. She kneeled down and flung herself backward, her head hitting a pillow she had placed on the floor.

But in doing so, the prosecutor’s own hair flared up and back in front of a stunned courtroom.

“When you first came down on the pillow, your hair fanned out,” Lauridson testified.

The maneuver called to mind prosecutor Christopher Darden’s famous request that O.J. Simpson put on a pair of bloodstained gloves in his 1995 murder trial. It backfired when Simpson could not get the gloves over his hands, prompting defense lawyer Johnnie Cochran’s memorable line, “If it doesn’t fit, you must acquit.”

(Staff Reporter Katherine Sayre contributed to this report.)

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