Three Arkansas teenagers charged with the death of Kevin Thornton of Juneau will be tried individually.
Hot Spring County Circuit Court Judge Ed Koon has ordered the case be severed.
Kevin Thornton was visiting the Malvern area in July 2011, when he was allegedly assaulted by the boys, then ages 16 and 17. He died of his injuries a week later.
Richard Whybark, Timothy Norwood, and Clinton Ross were originally charged in adult criminal court with second degree murder in a single case. According to Judge Koon’s order, the prosecution intends to introduce as evidence at trial some out-of-court statements made by the youth.
Koon’s order maintains that prejudice is likely to result from admission of even redacted statements in a joint trial. He says the defendants’ out-of-court interviews contain damaging statements against each other, and if one defendant chooses to testify, the others may be compelled to testify.
Several of those statements are at the heart of defense motions to keep them from being introduced as evidence at trial. Koon took oral arguments on the motions on July 26, but he has not yet ruled.
Malvern, Arkansas journalist Steve Good was in the courtroom that day. He says Norwood’s attorney, Gregory Crain, revealed that his client could neither read nor write.
“That he was basically functionally illiterate; had been taking special resource classes through the time that he had been in school,” Good says.
Norwood turned 18 years old last week.
When he was taken into custody a year ago, he was interviewed by Hot Spring County Sheriff’s Deputy James Tallent. Court documents indicate – and Tallent testified in court – that Norwood waived his right to remain silent, and both he and his mother signed a form allowing the interrogation.
“The testimony from Sgt. James Tallent was that he wrote the statement for Norwood because Norwood could not write,” Good says “and that he read the statement to Norwood in the presence of his mother, who signed the waiver form to allow him to talk to them to start with.”
According to Good, Crain tried to convince the court that Norwood did not understand what the police officer had written, though he had signed the statement.
Attorney Phyllis Lemons argued that Richard Whybark’s original statement to investigators also should not be allowed in court, because a legal guardian was not present at the time it was made.
During his interview a year ago, Whybark waived his rights and agreed to answer questions. A court document indicates the interview was recorded and witnessed by his “mother.” It was, in fact, his stepmother. Attorney Lemons argued in court that she did not have the legal right to sign the document.
“They’re making a motion to suppress based on the fact that that was his stepmother who had never legally adopted him,” Good says. “His father was not present and neither was his birth mother, who lives in Heber Springs, which is approximately, I would say, 110 miles or so.”
Another statement – which Good says has drawn a lot of “public outrage” in Malvern – indicates that Whybark and Norwood laughed when they heard Kevin Thornton had died. Both attorneys Lemons and Crain argued the statement should not be allowed as evidence at trial.
Good says a Hot Spring County Detention Center deputy jailer, Amy Martin, testified in court that on July 27, 2011 she notified the boys at 1 p.m. that their charges would be upgraded from aggravated assault to second degree murder, based on Thornton’s death.
“The issue with this is that he was not officially pronounced dead until 3:32 p.m. Also, she testified on cross examination from Crain that they were cutting up and laughing prior to that. They also continued cutting up and laughing and she stated under oath in a response to Crain’s question that she did not hear what they were laughing about and had no knowledge of what they were laughing about,” Good says.
Judge Koon is expected to rule soon on the motions to suppress the various statements. A tentative trial date has been sent for the last three days of the month.
Whybark and Norwood have been released to their parents. The court has said it would allow Clinton Ross to be released upon receipt of $40,000 in bond, or $15,000 with electronic monitoring.
Late last month, Judge Koon denied a motion to transfer the case to juvenile court, so the boys will definitely be tried as adults.
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