Jury selection is under way in the trial of the man charged with killing Providence police Detective Sgt. James L. Allen last year.

01:00 AM EDT on Wednesday, June 7, 2006

BY GREGORY SMITH
Journal Staff Writer

PROVIDENCE -- Esteban Carpio is going to argue that he is innocent by reason of insanity even if the state can prove that he shot to death Providence police Detective Sgt. James L. Allen.

Superior Court Judge Robert D. Krause made that announcement yesterday to potential jurors at the outset of Carpio's murder trial. Carpio's lawyers previously had said only that they might mount a defense that Carpio was insane or suffering diminished mental capacity at the time of Allen's slaying in April 2005.

The insanity defense sets up a two-part trial with differing burdens of proof. In the first phase, the state needs to prove Carpio is guilty of four charges beyond a reasonable doubt. Krause reminded potential jurors that Carpio is presumed innocent and the state must prove otherwise.

In the second phase, Krause explained, the burden of proof shifts to the defense in its argument that Carpio cannot be held legally responsible for any of the alleged crimes.

By a preponderance of the evidence, the defense must be able to show that if Carpio killed Allen, Carpio did not appreciate the wrongfulness of his action because of mental disease or defect.

A preponderance of the evidence is a lesser standard than beyond a reasonable doubt. Robert L. Sheketoff, Carpio's lawyer, told potential jurors that the phrase means "more likely than not."

"This is going to be a very difficult case in many ways," Sheketoff told them. It evokes strong emotions, involves an alleged murder, has a local police officer as the victim, and sits at the controversial intersection of psychiatry and the law, he said.

Before jury selection began, members of the prosecution and defense teams introduced themselves to the potential jurors. Sheketoff had his expressionless client stand up at the defense table, turn and face them for a few moments.

In a pronounced contrast to early court proceedings in his case, when Carpio wore an orange prison jumpsuit and was forced to have his mouth covered in order to prevent him from spitting on his guards, he appeared before the potential jurors without restraints, attired in a white shirt with blue pinstripes, bone-colored trousers and white sneakers.

Carpio is charged with murder and discharging a firearm while committing a crime of violence, death resulting, in Allen's slaying on April 16, 2005. He also is charged with two counts of assault in the stabbing of an 83-year-old woman.

After being identified as a suspect in the stabbing, Carpio was brought to police headquarters for questioning by Allen. When the two were alone in a conference room in the detective bureau, according to a police account, Allen was shot and killed with his own gun.

Sheketoff asked in several different ways whether any potential juror would have trouble considering the case -- impartially or at all -- because of "difficult" factors he ticked off, among others. In response to questions such as those, a number of potential jurors appeared hesitant, and the judge privately conferred with them and the lawyers.

Beginning with a jury pool of 80 people, the judge had tentatively seated 14 members of a 16-member jury by the end of the day. Twelve will decide the case, with four alternates ready to fill any vacancy.

Krause dismissed 12 potential jurors for cause, and the lineup remained very fluid, as both the prosecution and defense apparently had yet to exercise any of their eight peremptory challenges. A peremptory challenge allows a lawyer to dismiss someone without stating a reason.

Among those excused were a retired Cumberland police officer, a woman who said she had been a crime victim three times, including a mugging in Boston, and a woman who said she had been the head teller at a Providence bank but was fired after a holdup. Krause did not disclose the reasons for excusing them.

Before yesterday's court session at the Licht Judicial Complex downtown, jurors had to privately respond in writing to questionnaires designed to test their capability to consider the case impartially. The questions varied from whether an individual has any training in psychology, psychiatry or sociology, to their opinion of news coverage of the case, to the television shows they watch regularly.

Sheketoff and Assistant Attorney General Paul F. Daly Jr., the prosecutor, asked them follow-up questions openly and in private conferences at the judge's bench yesterday.

Krause barred news photographers from the courtroom during the jury-selection process. Judges generally order photographers not to take pictures of jurors but allow photographers into the courtroom, at least at the beginning of jury selection, to take pictures of other trial participants.

gsmith@projo.com / (401) 277-7334