DALLAS (AP) — A Texas appeals court granted a new trial for a convicted double murderer who has spent more than 25 years in prison even though one of the dying victims told a paramedic that a different man was the killer.
The ruling comes roughly three weeks before Billy Frederick Allen becomes eligible for parole, forcing Dallas County prosecutors to decide whether to retry a man who has already served his time or drop the case.
The Court of Criminal Appeals on Wednesday ordered a new trial for Allen but stopped short of declaring his innocence. The court ruled that Allen received ineffective assistance from his trial lawyer, who did not learn of the paramedic's story until after his client was convicted.
Allen was convicted of the 1983 murders of Raven Lashbrook and James Sewell.
"We're pleased he got a new trial," said Roy Greenwood, an Austin lawyer who has handled Allen's appeals. "We're just sorry the court didn't reach the ultimate decision of his actual innocence."
Allen is "on track for release on or after March 1," said Jason Clark, a spokesman with the Texas Department of Criminal Justice. A Dallas County assistant district attorney said Thursday that prosecutors have not yet decided how to proceed.
"We hope when the case goes back to Dallas County, they will dismiss the case and allow Mr. Allen to live out the rest of his life," Greenwood said.
Allen, 63, was convicted of double murder in 1983 and received concurrent 99-year sentences.
When University Park police arrived at the crime scene, they found Sewell "gagged, handcuffed and covered with blood," according to court papers. Lashbrook's body was found nearby in a car. Police dusting for fingerprints discovered a palm print on the roof of the car that they later connected to Allen, who had a lengthy criminal record that included convictions for burglary, robbery and drug possession.
Sewell died later at a Dallas hospital, but not before telling one of the responding officers that Billy Allen was one of the attackers. Sewell's accusation was not on the original police report and came as a surprise to Allen's lawyer at trial, Greenwood said.
Allen was convicted because of the murder victim's identification and the palm print, Greenwood said. Jurors disregarded the defense's explanation of the palm print: that the men knew one another and visited frequently because Allen sold gold scraps to Sewell.
Allen's original attorney, J. Stephen Cooper, did not immediately return a message left Thursday morning by The Associated Press.
According to the appeals court ruling this week, Cooper's investigator tracked down other witnesses from the crime scene after the trial. One was a paramedic who treated Sewell. The paramedic agreed that Sewell identified his killer by full name, but that it wasn't Billy Frederick Allen. Instead, it was a Billy Allen with a different middle name.
The paramedic has said in numerous affidavits that Sewell identified the killer by his full name "at least five or six times" and testified under oath that there was no possibility he misheard the dying man.
The Associated Press is not fully identifying the Billy Allen named by the paramedic because he has not been charged in the case. He does, however have an extensive criminal record. Court papers also say that this Billy Allen "was well-acquainted with Sewell, that he was also seen in possession of some of the property stolen from the victims the night of their murder and that he had even admitted to some people that he was the one responsible for Sewell's murder."
The appeals court faulted Cooper this week on several counts, including a failure to raise the newly discovered evidence from the paramedic in a motion for a new trial.
In a concurring opinion, Judge Tom Price wrote that he believes Allen is innocent and that "no rational juror ... could fail to harbor a reasonable doubt" regarding Allen's guilt.
Copyright 2009 The Associated Press.
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