By Janine Anderson
Journal Times | Posted: Tuesday, December 2, 2008 12:00 am
RACINE - A man convicted of shooting would-be thieves in the back, killing one, will get another chance to argue his actions were justified.
Judge Charles Constantine ordered a new trial for Adrial White, 33, of Racine, saying that White's trial attorney, Robert D'Arruda, was constitutionally ineffective.
Ruth Stickles, White's fiancée, cried when the judge said he deserved a new trial. So did his sister Edwina White, who has been the family's public voice since he was accused of the Jan. 18, 2006 crime.
Edwina White addressed reporters after the hearing ended Tuesday afternoon.
"God told me he is coming home," she said. "God is good. Joy. Excitement. He's gonna be home."
The judge's ruling does not mean White will be released, but his family has a chance to get him out of jail this week, as the court has scheduled a bond hearing Thursday. In 2006, his bond was set at $250,000 cash.
Adrial White has never denied that he fired the gun, but said he shot in self-defense, which could justify the use of deadly force. He allegedly fired a gun at Christopher "Eric" Carbajal, Enrico Serra Jr., and Phillip Jardina when he caught them trying to steal a speaker box from the trunk of his fiancee's car.
At trial, White said he felt threatened, and fired the gun at the trio. All three were struck in the back. Carbajal was killed, Serra injured, and bullets passed through Jardina's clothing.
New trial does not mean innocence
At Tuesday's hearing Constantine called the courtroom a "universe unto itself," a place governed by laws that must be applied by jurors in specific ways.
In this case, jurors spent a week in November 2006 listening to testimony and convicted White of homicide and attempted homicide. "One of the most visual images (from the trial), and I will carry it with me to my grave, is when (the medical examiner) was testifying as to how Christopher Carbajal was killed," Constantine said. "They had the mannequins on the floor, the life-sized mannequins with the little sticks of wood showing the bullet trajectory, and the jurors standing up in the box and leaning over, rapt with attention."
The state's case, to a large extent, rested on that testimony, Constantine said, in which the medical examiner said Carbajal was face down on the ground when shot. The only way for the defense to have attacked that evidence, he said, would have been by consulting with an expert or hiring one to testify, something D'Arruda did not do.
The absence of such an expert led to Tuesday's finding that the original defense attorney was constitutionally ineffective, judge said. A constitutionally ineffective defense attorney is grounds for a new trial.
Though Constantine ordered a new trial, he was careful to state that his ruling does not mean he believes White is innocent of the charges.
"I have no opinion whether he is guilty or innocent and it is not for me to determine," Constantine said. "The law is clear in this state. You cannot shoot people to protect property, alright? That has nothing to do with this. (A defendant) is entitled to have efficient representation. Because (D'Arruda) did not hire an expert, he did not meet that standard."
Preparing to go forward
White's new attorney, Mark Richards, said the judge's ruling sets White's family up to explore their options. He has yet to be retained as trial counsel, Richards said, though that is a possibility.
"We're happy with the outcome," he said. "We thought we had proved that (D'Arruda) was ineffective. It was very clear there were things he clearly did not do and the doctor was the biggest one but not the only one."
D'Arruda never even discussed hiring an expert with the White family, Richards said, and "it was a case you had to have an expert."
Racine County District Attorney Michael Nieskes said they will review the judge's written and oral statements to decide whether or not to appeal this ruling.
"The evidence has not in essence changed," he said. "What the judge ruled is the attorney Adrial and his family hired for Adrial was ineffective."
The state disagrees with that ruling, Nieskes said, but they may not have any grounds to challenge it. Only if they find a clear legal issue would they be able to appeal the ruling for a new trial, he said.
Nieskes believes the law regarding the crime is on their side, and while they are reviewing appeal options, they are preparing for trial.
"Now he's again presumed innocent, there'll be another jury and he'll have another trial," Nieskes said.
With Constantine's ruling, the case reverts back to its earliest point. White is again facing three charges: a first-degree intentional homicide charge for killing Carbajal and two attempted first-degree intentional homicide charges for shooting Serra and nearly shooting Jardina.
D'Arruda did not immediately return a phone call seeking comment.
The state said they would be ready to proceed with the new trial on Feb. 3; the defense said they need more time. A status conference has been set for 8:30 a.m. Monday.