Originally created 06/21/05

Dead man's testimony debated at high court

ATLANTA - The Georgia Supreme Court on Monday considered whether it was legal for Augusta prosecutors to borrow witness testimony from one trial and use it during another case to convict a murder suspect.

The case stems from the 2000 shooting death of Ritchard Lewis, whom prosecutors said was killed in downtown Augusta when three men attempted to rob him and an acquaintance.

Haskell Donnell Johnson was the first of the three men indicted in Mr. Lewis' death to be brought before a jury. During his trial, prosecutors presented James O'Bryant, who testified that he saw Mr. Johnson shoot Mr. Lewis.

Mr. O'Bryant also identified Derek Lashawn Willingham as another gunman present during the crime. A Richmond County jury later convicted Mr. Willingham of murder.

However, Mr. O'Bryant died before Mr. Willingham's trial, so the judge in the second case allowed a police investigator to read Mr. O'Bryant's testimony to the jury seated for Mr. Willingham's trial.

Randolph Frails, the attorney representing Mr. Willingham on appeal, argued Monday before the state's highest court that allowing Mr. O'Bryant's testimony was illegal.

"We feel that because of this testimony, Mr. Willingham was not afforded a fair trial," Mr. Frails said.

He said no one involved in Mr. Willingham's defense was able to cross-examine Mr. O'Bryant.

Charles R. Sheppard, the assistant district attorney for the Augusta Judicial Circuit, told the Georgia Supreme Court's seven justices that it was appropriate to borrow testimony from the first trial because Mr. O'Bryant was "rigorously" cross-examined by the defense attorney representing Mr. Johnson.

"He pointed out the weaknesses and inconsistencies of (Mr. O'Bryant's) testimony to the jury," Mr. Sheppard said of the defense counsel from the first trial.

Justice Carol Hunstein told Mr. Sheppard she saw why the state is fighting to justify its use of Mr. O'Bryant's testimony to convict Mr. Willingham.

"You don't have a lot of evidence without it," Justice Hunstein said of the state's case against Mr. Willingham.

Still, Mr. Sheppard argued that the jury in Mr. Willingham's case wasn't improperly influenced by hearing Mr. O'Bryant's testimony after his death.

The court gave no indication Monday as to when it would hand down a verdict.

Reach Brian Basinger at (404) 681-1701 or brian.basinger@morris.com.


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