After 20 years on death row, he's free

Plea deal releases him after '81 convictions tossed due to competence, defense issues
2009-06-30T00:00:00Z After 20 years on death row, he's freeBy Kim Smith ARIZONA DAILY STAR Arizona Daily Star
June 30, 2009 12:00 am  • 

A 57-year-old Tucson man who spent more than 20 years on death row before having his conviction overturned entered a plea agreement with prosecutors Monday and is a free man.

Jasper McMurtrey pleaded guilty to second-degree murder and manslaughter in the 1979 deaths of Albert Hughes and Barry Collins.

In Pima County Superior Court, Judge John Leonardo sentenced him to 21 years on the murder charge and a concurrent 10-year sentence on the manslaughter charge and gave him credit for time served.

According to court documents, McMurtrey, Hughes and Collins were in a Tucson bar arguing about how tough they were. They arm-wrestled, bit and chewed glass, and showed off Harley-Davidson tattoos.

McMurtrey left the bar, returned with a revolver, killed Hughes and Collins, and wounded a third man.

During his 1981 trial, McMurtrey's lawyers argued self-defense and insanity.

McMurtrey's convictions were overturned in March 2003 after U.S. District Judge Fremming Nielsen found questions about McMurtrey's competence during the trial as well as ineffective assistance from his attorneys at that time.

The Arizona Attorney General's Office appealed but failed to address McMurtrey's right to a new trial within 180 days.

The 9th U.S. Circuit Court of Appeals allowed prosecutors to appeal Nielsen's ruling after all, but as a sanction for missing the original deadline released McMurtrey from prison.

The 9th Circuit ultimately upheld Nielsen's ruling and granted McMurtrey a new trial.

Rick Unklesbay, chief trial counsel for the Pima County Attorney's Office, said McMurtrey was allowed to enter a plea agreement for two reasons.

The majority of the witnesses in the cases have died, Unklesbay said, and doctors would have had to try to determine McMurtrey's mental status 30 years ago.

If doctors had ruled McMurtrey was incompetent at the time of the slayings, Unklesbay said he would not have been allowed to use trial transcripts outlining McMurtrey's and the dead witnesses' accounts of what happened that day.

The transcripts would be inadmissible because McMurtrey, if incompetent back then, was unable to assist in his defense at the time of the trial and incompetent to testify, Unklesbay said.

Leonardo could not have given McMurtrey any more than 21 years on the murder charge because that was the maximum sentence at the time of the slayings, Unklesbay said.

The manslaughter charge could have been run consecutively, but the judge opted not to do so because McMurtrey has remained out of trouble since his release from prison five years ago, Unklesbay said. The defendant also has health issues.

McMurtrey has been living in South Carolina, but he has been monitored by Pretrial Services the entire time.

Contact reporter Kim Smith at 573-4241 or kimsmith@azstarnet.com.

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