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Murder conviction in '02 to get review

Though the state’s appeals court and a U.S. District Court upheld the 2002 murder conviction of Troy Shaw, the U.S. 7th Circuit Court of Appeals said the case deserves another look.

In an opinion filed this week overturning a ruling by the U.S. District Court in the Southern District of Indiana, the 7th Circuit found that the public defender in charge of Shaw’s appeal fell below the minimal constitutional requirement for legal effectiveness.

Because Gregory Miller failed to raise the issue of whether Allen County prosecutors should have been allowed to charge Shaw for the murder in the June 2000 death of Brett King when they did, the judges on the 7th Circuit ruled that the case needs to be reconsidered by either the federal court in Indianapolis or the state’s court of appeals.

At issue is how courts interpreted rules governing when prosecutors could change the charges against a defendant. Shaw is arguing that prosecutors waited too long to file the murder charge against him – in December 2001, six months after he was charged with aggravated battery.

But when Miller handled Shaw’s appeal, he argued there was not sufficient evidence to support a murder conviction.

Such an argument is “dead on arrival,” according to the federal appeals court.

In June 2000, the 33-year-old King was found dead outside the Valu Lodge motel, 3527 Coliseum Blvd. W., his head submerged in water in a rain-swollen ditch. Shaw, from Findlay, Ohio, was one of a group of traveling magazine salesmen who were staying at the motel that night. When they arrived at the motel after a trip to Cedar Point, King was found inside one of the rooms, lying on a bed. Someone confronted King and chased him outside where he was beaten to death.

Five men were charged in connection with King’s death – Shaw; Benjamin Brooks, of Tennessee; John Eric Werczynski, of Virginia; Steven Johnson, of West Virginia; and Kristopher D. Starling, of Tennessee.

They were charged with crimes ranging from aiding in a battery to involuntary manslaughter to murder.

Prosecutors initially charged Shaw with aggravated battery, but in December 2001, citing new evidence, upped the charge to murder. Allen Superior Court Magistrate Robert Schmoll allowed the change in the charge, over the objections of Shaw’s trial attorney, Nikos Nakos. Schmoll did grant a delay in the case, postponing the trial until February 2002.

Shaw maintained his innocence throughout the court case. But witnesses told the jury they saw Shaw kick King’s head “like a football.”

Ultimately convicted, Shaw was sentenced to 60 years in prison for the crime. According to court records, the charge of aggravated battery was later dismissed.

In December 2002, Miller filed an appeal on behalf of Shaw, arguing that the state did not have enough evidence to support the murder charge. The appellate court rejected that argument and upheld Shaw’s conviction in June 2003.

Shaw unsuccessfully sought to have Allen Superior Court Judge John Surbeck review his case in 2004 and change the outcome, and four years later that request was also denied.

Shaw appealed that decision, as well.

When the case stalled at the appellate court, Shaw filed a petition for a writ of habeas corpus in federal court, asking a federal judge to determine whether the Indiana courts violated his constitutional rights. U.S. District Judge Jane E. Magnus-Stinson denied his request. Federal courts cannot make a determination about the laws in a particular state, but they can rule on whether constitutional rights were violated.

Shaw then appealed again, this time to the 7th Circuit Court of Appeals.

In a ruling issued Wednesday, the higher court ordered the federal court to review Shaw’s case, unless the Indiana Court of Appeals grants his request for another hearing on his case.

The 7th Circuit ruled that Miller’s failure to argue about the timeliness of the additional, and much more serious, charge of murder did prejudice Shaw. Had Miller not argued about the evidence, and instead about the timeframe, Shaw’s appeal could have stood a “reasonable chance of success,” Appeals Court Judge Diane Wood wrote.

Wood wrote that “a competent lawyer in Indiana would have recognized that there was a state statute under which relief for his client was possible and would have pursued that theory on appeal.”

A message left for Miller seeking comment was not returned Friday.

The office of Indiana Attorney General Gregory Zoeller is reviewing the decision of the panel and is exploring the strength of the attorney general’s opportunities for either a rehearing or further appeal, according to spokesman Bryan Corbin.

rgreen@jg.net

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