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Defense in Sherry Arnold case wants venue change

Defendant wants to avoid death penalty


BILLINGS (AP) — Defense attorneys for one of two men charged in the killing of a Montana high school teacher said Tuesday that they've asked a state judge to rule their client ineligible for the death penalty because he is mentally disabled and to relocate his trial.

Twenty-four-year-old Michael Keith Spell faces charges including deliberate homicide in the January 2012 kidnapping and murder of Sherry Arnold, a popular teacher in the small Bakken oil patch town of Sidney.

Spell and Lester Van Waters Jr., both of Colorado, have pleaded not guilty to charges they grabbed Arnold from a street while she was on her morning jog, killed her and buried her body in a North Dakota field.

Prosecutors have said they intend to seek the death penalty against both men.

But Spell's defense attorney, Al Avignone, said he has asked the court to rule his client ineligible for execution under a 2002 U.S. Supreme Court ruling. In that case justices reversed the death sentence of Daryl Atkins, a Virginia man convicted of murder, on the grounds that executing the "mentally retarded" violated the Constitution's prohibition against cruel and unusual punishment.

If the court sides with Avignone, Spell still would face a potential life sentence and a minimum of 10 years in prison if convicted of deliberate homicide. He's also charged with attempted kidnapping, which carries a maximum sentence of 10 years.

Avignone declined to discuss the details of Spell's disabilities, but said his client has been examined by a mental health professional and found to meet the court's definition of mentally disabled. That includes having an IQ of 75 or lower and being incapable of normal mental functions.

"We're talking about everyday skills, living skills, ability to drive a car, make change, hold a job and be able to learn skills," Avignone said.

Spell told a judge in an initial court appearance last year that he cannot read. His father has said Spell had less education than a kindergartner.

He had travelled with Waters to the oil fields of Montana and North Dakota looking for work. Court documents, however, allege the Arnold abduction came just days after the pair left Colorado and after both suspects had smoked crack cocaine during the journey.

Prosecutors have until Aug. 21 to respond to the motion from Avignone and fellow defense attorney Lisa Banick, which was filed under seal.

Sidney Mayor Brett Smelser declined to address the latest developments in the case but said the community was looking for "full closure."

"We just want to see it over as quick as possible," said Smelser, a friend of Arnold's family. "I speak for both the family and the community. The longer it's prolonged, the longer the wait is out here."

Richland County Attorney Mike Weber, who is prosecuting the case, did not immediately respond to telephone messages seeking comment.

Spell's trial is set for Jan. 6 before state District Judge Richard Simonton.

The defense has asked for those proceedings to be moved to Bozeman, saying the venue change is necessary to get a fair hearing. Widespread "inflammatory" news coverage of Arnold's killing, combined with her popularity in the community, left potential jurors biased, Avignone said.

The attorneys said they conducted a survey that showed more than three-quarters of potential jurors in the 7th Judicial District believe Spell is guilty. That includes Sidney and several surrounding counties.

"There is no indication that the community passions about this case and Mr. Spell have or will diminish before the trial date in this matter," Avignone and Banick wrote.

They cited numerous comments posted with newspaper articles about the case in which readers called for "Old West Justice" and for the suspects to "hang from the nearest tree." They asked for the trial to be moved to Gallatin County because the case received less publicity in the Bozeman area. Gallatin officials already had agreed to reserve a courtroom for the trial, they said.

In a separate motion, Spell's attorneys want to exclude statements about his involvement that were cited in the criminal complaint filed against him and Waters. Because of Spell's mental disabilities, the attorneys said, Spell was unable to understand that he was waiving his constitutional rights when he told investigators about his role in Arnold's slaying.

Waters' trial is set to begin Nov. 4. Court officials said Tuesday they have not received a change of venue request in his case. His attorney did not immediately return a message seeking comment.


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