The state, in opposing Derick Hazard's bid for a new trial, says the new information cited by Hazard's lawyer isn't worth much.

01:00 AM EST on Wednesday, March 15, 2006

BY TRACY BRETON
Journal Staff Writer

NEWPORT -- Derick Hazard's quest for a new trial continued this week as lawyers for both sides presented briefs to a Superior Court judge who will decide whether the convicted murderer received inadequate representation from his lawyer at his 1998 trial.

In a brief submitted to Judge Edwin J. Gale, J. Richard Ratcliffe, a former state prosecutor, argued that lawyer Vincent J. Oddo's representation of Hazard was so deficient that Hazard should be retried.

Ratcliffe, who is now representing Hazard for free, said that it was Oddo's duty to check out Hazard's claim that he was in a car stopped by a New Jersey state police trooper only hours before David S. Andrews was gunned down in South Providence on July 18, 1996. Ratcliffe said that was Oddo's responsibility even if he only learned of the stop on the eve of trial.

Ratcliffe said that if the information -- unearthed by a Providence Journal reporter after Hazard's trial -- had been presented by Oddo, there is a "reasonable probability" that Hazard would have been acquitted.

The former prosecutor criticized Oddo -- who in 1996 had been a member of the bar for 16 years but had never tried a murder case -- for failing to check out the police-stop information. He also criticized Oddo for trying to prove Hazard's alibi -- that he was in Columbus, Ohio when Andrews was slain -- merely through family members and friends, all of whom had a stake in the outcome of the case.

"Any reasonably competent trial counsel would recognize the significance that a jury might give this fact," Ratcliffe wrote.

The police-stop evidence was "the single piece of independent, unbiased documentary evidence which might have corroborated the defense position" that Hazard was not in Rhode Island when Andrews was killed, Ratcliffe said. Oddo's failure to investigate and present the stop "was not a deliberated, strategic decision," he said. "It was one based upon an abdication of his duty of advocacy."

But Assistant Attorney General Randall White disagreed. In the state's brief, the prosecutor argued that "nothing that Mr. Oddo did, or failed to do . . . suggested even remotely a failure on his part that rendered his performance deficient, or below the standard of objective reasonableness."

In arguing against a new trial for Hazard, White said that even if the police-stop evidence had been presented, there was nothing in the trooper's patrol logs to prove that Hazard was in the car that was stopped.

The Ford Taurus stopped by the New Jersey trooper had been rented by Hazard's girlfriend, Toni Fortes (who is now his wife) for a family trip to Columbus. The New Jersey patrol log shows there were three black men in the west-bound car that was stopped in Hackensack, at 10:25 a.m. on July 18, 1996.

The trooper who stopped the car has testified that he issued a warning to Hazard's brother, Kyle Hazard, for speeding, but that he did not record the identities of the other two men. Kyle and Derick Hazard contend that the trooper never issued a written warning.

In his brief, White said that "significant issues exist which cast grave doubt on the integrity of [Hazard's] claim that he rode in the car at all with his brother on July 18, 1996." And he said that if the case were retried and Derick Hazard took the stand, he'd make such a horrible witness that he'd be convicted again.

For one thing, Derick Hazard would have to explain why he had asked his brother "to commit perjury" at previous court proceedings regarding who was driving the car when it was stopped in New Jersey, White wrote.

Hazard has been serving a life sentence for Andrews' murder since 1998. He previously lost an appeal for his conviction. But the motion that Gale is considering is the first to center on the competence and effectiveness of Oddo's representation.

In analyzing a claim of ineffective assistance of counsel, a judge must determine whether the lawyer's conduct "so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result," according to the U.S. Supreme Court.

In that case, the Supreme Court laid out the high hurdles a criminal defendant must overcome to prove ineffective counsel. It said the defendant "must show that counsel's performance was deficient" and that the deficient performance prejudiced the defense so much "as to deprive the defendant of a fair trial, a trial whose result is reliable."

In a three-day hearing last month before Gale, Oddo testified he could not recall exactly when he learned of the New Jersey police stop from the Hazards -- whether it was shortly before, during or after the trial.

Hazard said he told Oddo of the stop at his initial meeting with him in 1996, but that Oddo told him that there was nothing he could do without a ticket or exact location for the stop.

It was Oddo who first told The Journal about the New Jersey stop -- after Hazard's conviction. He said the Hazards had no money to hire a private investigator to check out their claim, and that there was no way he could, on his own, figure out what town in New Jersey the stop was made in since the Hazards were vague about where it occurred.

The Journal obtained the patrol log information about the Hackensack stop by telephoning administrative offices of the New Jersey State Police.

tbreton@projo.com / (401) 277-7362