Attorneys for a Viola man accused of murder want the trial moved on the grounds he cannot get a fair trial in Fulton County.
61-year old Richard T. Gordon was arrested Sept. 3, 2009 in connection with the shooting death of his neighbor, 32-year-old Joseph L. Clifton.
Gordon had been involved in an ongoing dispute with Clifton over Clifton's decision to put a locked gate on the road leading to his home. Gordon and another nearby resident claimed Clifton had illegally blocked a public road that they had the right to access.
Gordon has been confined to the Izard County Jail since his arrest and his trial is scheduled for Sept. 21 at Salem.
But, Monday, the deadline for pre-trial motions by the defense, brought three motions.
First, defense attorneys James Petty of Searcy and Jeff Rosenzweig of Little Rock asked for a change of venue.
According to the attorneys, the prominence of Clifton, the rarity of homicide cases in Fulton County and the small population of the county, make it "impossible to empanel a jury able to set aside what they have heard and try the case impartially."
Another defense motion requests that all statements obtained from Gordon's wife, Gayle, be excluded from the trial because of marital privilege.
Under Arkansas law, an accused in a criminal case can use marital privilege to prevent his spouse from testifying as to any confidential conversations between them.
Gayle Gordon has made a number of damaging statements to investigators including claims that her husband told her he had shot Clifton, that Gordon had threatened Clifton and his family and said he would handle the ongoing dispute with the family if the sheriff did not.
Finally, the defense attorneys want to stop a three-year-old child from testifying at trial and to exclude from trial any statements the child made to police or counselors.
The boy was in the vehicle with his father when Gordon allegedly met them on a tractor and shot and killed Clifton.
According to the defense,
"The child is not competent to testify as a witness because he does not comprehend the oath and is too young to competently and accurately express himself."
The defense also claims "no person should be permitted to testify as to what the child told them about the incident" on the grounds such testimony would violate Gordon's right to confront witnesses against him.
Under a schedule set by Circuit Judge Tim Weaver, prosecutors have until July 12 to respond to the defense motions. Then, Judge Weaver will hold an Aug. 16 hearing on the pre-trial motions before making a decision on them.
The main activity in the murder case since Gordon's arrest has been a mental competency evaluation which the defense requested for Gordon.
Results of the evaluation, which are in the court case file, reveal that Gordon suffers from alcohol abuse, an anxiety disorder and a personality disorder.
Despite mental issues, the evaluation concludes that Gordon did not have "a mental defect" at the time of the shooting which would excuse his actions.
The mental evaluation also states that Gordon has "the capacity to understand the proceedings against him...and assist in his defense." The mental evaluation includes Gordon's statement that "Clifton was going to shoot him and he reached for a rifle" causing Gordon to open fire in self defense.
During the evaluation, Gordon's wife, Gayle, was quoted as saying Gordon told her he shot Clifton "graveyard dead" and "Joe Clifton had begged him not to shoot him but he had done it anyway."
If the change of venue request is upheld by Judge Weaver, the defense requests the trial be moved to another county in the 16th Judicial District.
That would mean one of four counties to the south of Fulton would be chosen to hear the trial: Izard, Stone, Independence or Cleburne.