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September 2, 2010

Murder trial still looms

Law professor: Appellate court ordered release within 120 days, not trial

By Christina M. Wright The Herald Bulletin

ANDERSON, Ind. — Just because he walked free from the walls of prison Thursday does not mean that Walter Goudy is free from the same murder charges that led to his 15-year incarceration.

Appointed special prosecutor Barry Brown, of Bloomington, used language in the release motion that leaves both options of retrial open. But, even if Brown should decide against refiling charges, the former Madison County prosecutor who initially filed the case in 1995 swore Thursday that he would.

“I have to make the same pledge as I did the last time the case was dismissed (in 1994): if I’m elected, I’ll refile the case,” said Rodney Cummings, who is running against incumbent Thomas Broderick Jr. in November.

Goudy was convicted in 1995 of gunning down Marvin McCloud outside of the former Oasis Tavern, and sentenced to 110 years in prison.

The U.S. Seventh Circuit Court of Appeals, in Chicago, reversed the conviction in May.

“... we conclude that the Court of Appeals of Indiana unreasonably applied federal law when it determined that prior statements of identification by witnesses the government suppressed did not create a reasonable probability of a different result in Goudy’s trial,” said the court in a 15-page ruling.

The court ordered the Madison County court to either retry Goudy in 120 days or to release him, but that doesn’t mean that no retrial in 120 days equals no retrial ever.

“They’re saying you can retry him again, as long as you don’t make the same mistakes,” said Robert Weisberg, a law professor at the Stanford Criminal Justice Center in California. “They’re just saying, ‘you can’t hold him in jail while you fiddle-faddle around making a decision.”

Cummings is close to the Goudy case. He was the lead detective at the Anderson Police Department who investigated the shooting. After the prosecutor at the time, William Lawler, decided not to file murder charges against Goudy, Cummings filed the charges when he took office.

He said he didn’t excuse his office from the case because “I was too scared no one would try it because it was such a tough case.”

Brown, the special prosecutor who received the case Aug. 27, did not return repeated phone calls Wednesday and Thursday.

But, in a motion to release Goudy filed on Wednesday, Brown left his options open on whether to refile charges against Goudy.

He argued that the state’s window to retry Goudy in 120 days had expired on Aug. 31, and Goudy “should be released pending the initiation of the trial process, if any.”

Contact Christina M. Wright, 640-4883, christina.wright@heraldbulletin.com.

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