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Pool shooting trial continues, but with limitations

ALBANY, Ga. -- After three lengthy days of jury selection and motion hearings, it appeared Thursday that the trial of three men accused of shooting a man at a popular city pool was finally ready to start.

They almost made it through opening statements.

Chief Dougherty Superior Court Judge Willie Lockette removed the jury from the courtroom following an objection by Chief Assistant District Attorney Heather Lanier who said that Defense Attorney Jim Finklestein violated the rules of discovery by telling jurors that his client, Tchywaskie Jones, was at home alone with his child at the time of the shooting in the middle of his opening statement.

The objection was based on Lanier's assertion that Finklestein was obligated under the rules of discovery to give notice to prosecutors if he intended to use an alibi defense so that prosecutors would have time to investigate the alibi contentions independently of the defense, and that Finklestein had told them that he was not planning to use the defense as a part of his case in earlier hearings.

Finklestein countered, saying that he believed the rule in question applied only to alibi witnesses and that since his client was alone there was no need to give notice and that the state wasn't prejudiced or harmed by his failure to do so. He further said that the state could have simply read Jones' statement to police in which he states that he was at home at the time of the shooting.

After back and forth debating before Lockette, Lanier asked that the court find Finklestein in contempt for telling the state one thing and doing another and said that the only remedy to the situation that would suffice would likely be declaation of a mistrial.

Lockette dismissed the jury until 8:29 a.m. today, but asked court officers to return to court during the early afternoon to hear his decision on the issues that had been brought up.

Upon his return, Lockette told attorneys that the plausible and practical course of action was to limit the testimony of the defendant to generalities about his whereabouts during the shooting if he chooses to exercise his right to testify.

The order was given over concerns of Finklestein, who said that he was concerned that the order infringes on this client's 4th and 6th Amendment rights to due process and free testimony.

Additionally, prosecutors asked that the court limit the testimony of the mother of Jones' child as to Jones' alibi just before the shooting.

Finklestein said that he would agree to that if the state stipulated they would do the same for one of their witnesses, Darrell Jones, who is set to testify that he saw a car pull into the parking lot of the pool with Jones it in minutes before the shooting.

When Assistant District Attorney Matt Breedon balked at the motion, Finklestein told the court that the district attorney's office was simply interested in winning than merely finding justice.

"The problem is that the state doesn't want any evidence of innocence to be presented here," Finklestein said. "They're more interested in winning the case than finding the truth."

Breedon fired back, calling Finklestein's statements "personal, baseless accusations," before Lockette stepped in an ordered all of the attorneys to keep their arguments rooted in legal premise rather than mere accusations.

After hearing concerns from both sides, Lockette agreed that the witness could testify, but before she does, the state can question her outside of the presence of the jury.

The court also ruled that the forensic scientist that the state used to match shell casings found at the scene to a gun they believed was used during the shooting does not have to be questioned by attorneys outside of the jury in what is known as a Harper hearing.

Arguing that the practice of matching the tool marks guns leave on shell casings to the particular weapon was a pseudo-science and had accounted for possibility of error, Finklestein and defense attorney Leisa Terry both filed a motion for the Harper hearing to determine the validity of the tests.

After researching the case law, Lockette ruled that the defense would have sufficient opportunity through cross-examination in front of the jury to question the expert without having to have a Harper hearing.

Finklestein raised exception to note that the defense in the case on which higher courts have based their ruling on did not object and so therefore it was waived by the appellate court.'

Jones, Dabkowski Luke and Jerry Lee Harris are all on trial for their alleged roles in the shooting of Donald Winchester at the Carver Pool July 16, 2009, in what prosecutors believe was a gang-related incident.

Co-defendant Brandon Taylor has entered an Alford plea -- a plea to accept sentencing for charges without admitting guilt to them -- and has been sentenced to 10 years on probation on the gang participation charge. Special conditions of his probation include staying away from other known street gang members.