Judge to rule on competency of killer, request for new lawyers

Judge to rule on competency of killer, request for new lawyers

October 16th, 2012 by Todd South in News

Marlon Duane Kiser waits during a court recess during his 2003 trial at the Hamilton County-Chattanooga Courts Building, where he faced charges in the 2001 slaying of Hamilton County Sheriff's Office Deputy Donald Bond.

Photo by Angela Lewis/Times Free Press.

More than two years after his scheduled execution date, Marlon Duane Kiser wants to fire his appointed attorneys and get new lawyers to continue his death penalty appeal.

Kiser, 42, has been sentenced to death for the killing of Hamilton County Deputy Donald Bond early on Sept. 6, 2001.

Investigators testified in his 2003 trial that Kiser shot Bond multiple times with a high-powered assault rifle when the deputy caught him trying to set fire to a fruit stand on East Brainerd Road.

Criminal Court Judge Don Poole moved a hearing date for Kiser to Oct. 29 after receiving requests from his current attorneys asking to be dismissed from the case.

Kiser claims that he was set up and his roommate, Michael Chattin, killed Bond because he believed the deputy was seeing his estranged wife, according to court documents.

Chattin died on Dec. 3, 2011.

Kiser's post-conviction efforts halted his execution scheduled in May 2010. A new date will not be set until his appeal is completed, said an Administrative Office of the Courts official.

Appointed attorneys Rick Haberman, with the Michigan office of the American Civil Liberties Union, and Autumn Gentry, a private practice attorney in Nashville, had raised several appeal arguments in filings over the past two years. Many of the claims were for ineffective assistance of counsel, focusing on decisions made by his trial attorneys -- private attorney Paul Cross and public defenders Karla Gothard and Mary Ann Green.

Gothard and Green were removed from the original appeal at Kiser's request.

Cross and Howell Clements were appointed to represent him on his initial appeals following the trial, which were unsuccessful. Gentry and Haberman began working on the case in 2009, according to court documents.

In a July hearing, Kiser told Poole that he disagreed with some of the filings by Gentry and Haberman and wanted new attorneys. The pair argued that Kiser was not competent to make the decision and that he may not have been competent during his trial.

A death penalty trial has two phases. The first phase is a trial on the case in which the jury determines guilt. If found guilty, the defendant then goes through the sentencing phase in which prosecutors offer evidence to influence a jury to put the defendant to death while defense attorneys present "mitigation evidence" intended to show factors they hope will lead a jury to a sentence other than death.

The competency question delayed any further movement on Kiser's case as Poole ordered a psychiatric evaluation be performed.

Vanderbilt University law professor Christopher Slobogin, who directs the school's criminal justice program and has researched the death penalty, said competency claims in death penalty cases are more common during the trial than in appeals and are rarely granted after conviction.

The issue during the competency evaluation this summer, Slobogin said, was "whether he is competent to continue the appeal process."

The results of the competency evaluation are sealed, and Haberman declined to comment on the outcome of Kiser's evaluation.

Prosecutor Neal Pinkston declined to comment on an ongoing case.

Contact staff writer Todd South at 423-757-6347 or tsouth@timesfreepress.com.