Court Orders Retrial In 1986 Murder Case -- Man's Death Sentence Overturned 2 Years Ago

Two years ago, the family of Tracy Parker was upset when a federal judge overturned the death sentence of the man convicted of her 1986 rape and murder.

That disappointment turned to devastation yesterday when the 9th U.S. Circuit Court of Appeals took Brian Keith Lord's appeal a step further, ruling his trial attorneys did a shoddy job and ordering that he receive a new trial.

"I can't stand it; I can't stand it," Parker's mother, Barbara Parker-Waaga, said, weeping. "We're left to deal with this, and do you know how we do that? We go to the cemetery. We wonder what Tracy would have been like at 29."

The unanimous three-member panel of the appellate court said Lord's attorneys made a mistake by failing to present at trial the testimony of three boys who told police they saw Parker alive the day after police say Lord killed her.

Prosecutors also were disappointed at the ruling and were weighing their appeal options. They acknowledged the difficulties of retrying a 13-year-old murder case.

"We haven't decided what we'll do, other than we will certainly be seeking some sort of relief before we accept this as our fate," said Randy Sutton, a deputy prosecutor in Kitsap County, where Parker was killed. "We're not real happy."

Prosecutors have two weeks to decide their next step: Ask the three-judge panel for a hearing, seek consideration by the full 9th Circuit Court of Appeals or appeal the ruling to the U.S. Supreme Court.

The ruling marks the third time in five years a man sent to Washington's death row has had his conviction overturned. A federal judge threw out Lord's death sentence in 1997 - the seventh death penalty thrown out in the past eight years.

The image of Lord walking free haunts Parker-Waaga, who said she can barely stand to think Lord might be celebrating yesterday's victory in his prison cell in Walla Walla.

"To think of him over there laughing and jumping up and down just destroys me," she said.

Peter Camiel, Lord's appeals attorney, said Lord should be happy: The ruling was tough and to the point. It was unanimous. And it was written by Judge Alex Kozinski, a conservative appointed to the 9th Circuit by Ronald Reagan.

"It's a very strong opinion by a very strong judge," Camiel said. "That should help us on appeal."

Kozinski found that Lord's trial lawyers - Mark Yelish, Ron Ness and Judith Mandel - failed to provide an adequate defense at his 1987 trial. Three dozen issues were raised on appeal, but the judges found only one mattered: His lawyers did not call three witnesses - all acquaintances of the girl - "who, if believed, would have cleared Lord of the murder."

Lord, a carpenter, was accused of raping and bludgeoning Parker the evening of Sept. 16, 1986. The 16-year-old disappeared after riding a horse at a neighbor's home where Lord had been working.

Her body was found in a ditch two weeks later, and Lord was arrested. He denied killing her.

The case was based almost exclusively on circumstantial evidence and was troubled from the beginning. A forensic scientist mishandled the hammer police thought to be the murder weapon and then lied about his mistake.

Lord - who had killed a friend's mother in California when he was 14 - had no alibi and had acted strangely the day the girl turned up missing. He was several hours late to a dinner party and had a fresh wound on his arm. Earlier, he had gone to his brother's house, shirtless in chilly weather, and washed the bed of his pickup. Two jail inmates said he confessed.

A jury convicted him and sentenced him to death. That sentence was overturned two years ago when a federal judge determined prosecutors were inappropriately allowed to question Lord. U.S. District Judge Barbara Rothstein, however, refused to reverse Lord's conviction.

Both sides appealed. The state asked that the death penalty be reinstated, and Camiel asked for the conviction to be thrown out.

But the 9th Circuit focused only on the statements of the boys, who said they saw her walking alone along a Poulsbo road Sept. 17 - the day after prosecutors said she was killed.

The boys were interviewed by police and defense investigators but never by the defense lawyers.

"What did defense counsel do with these witnesses? Nothing at all," the ruling said.

And that testimony, the appeals panel held, "could have given Lord a formidable defense: The victim was seen walking around well after the time Lord was supposed to have killed her."

Those statements, the judges said, "were probably the strongest evidence of Lord's innocence that trial counsel could have offered."

"We cannot say that the government's case was so strong that the testimony of these three witnesses could not have raised a reasonable doubt in the minds of the jurors," they concluded.

Mike Carter's phone message number is 206-464-3706. His e-mail address is: mcarter@seattletimes.com