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Supreme Court upholds reversal of murder charge

CHRIS DORST | Gazette file photo
On Friday, the West Virginia Supreme Court upheld a lower court’s decision vacating the murder conviction of Davie Lee Hurt (shown here in a 2011 photo). Although Hurt could still face another trial, he said he’s confident he wouldn’t be found guilty a second time.

On Friday afternoon, Davie Lee Hurt got a notification sent to his cell phone that the West Virginia Supreme Court had unanimously sided with a lower court’s ruling and vacated his 1998 murder conviction.

“It’s a blessing,” Hurt said in a telephone interview.

On Monday afternoon, Mercer County Prosecuting Attorney Scott Ash had Hurt’s files spread out across his desk.

“We could retry him,” Ash said. “It would go back to the pretrial stage and the indictment would stand from 1998 — and it would start all over again.” The prosecutor said he would decide by June 13 whether to retry Hurt.

After spending 13 years in prison, Hurt was released in 2011 after Circuit Judge Joseph Pomponio Jr. overturned his conviction on the grounds of ineffective counsel and an unreliable witness.

Hurt, now 35, was convicted of first-degree murder in 1998 and sentenced to life in prison for the 1995 robbery and shooting death of Fred Thomas Lester, a gas station attendant at Rich Oil in Bluefield.

In their decision, justices wrote that Hurt probably would have been found innocent if not for the numerous errors committed by his attorney during trial.

In 1995, police arrested Hurt in connection to Lester’s slaying and robbery after another juvenile admitted shooting Lester in the back of the head and named Hurt as an accomplice.

Hurt has maintained that he was talking to his pregnant girlfriend at about 3 a.m. on Aug. 21, 1995, the time of Lester’s death. Justices wrote that his attorney never bothered to find evidence to corroborate Hurt’s alibi. That attorney also never contacted his girlfriend’s parents who could have testified their daughter was on the phone with Hurt.

At his first trial in Mercer County, jurors couldn’t reach a unanimous verdict. They were 10-2 in favor of his acquittal.

“In light of Mr. Hurt’s near-acquittal by a Mercer County jury, it is reasonable to believe that had Trial Counsel investigated and presented to the Pocahontas County jury evidence — both testimonial and physical — to corroborate Mr. Hurt’s alibi, the corroborated alibi would have persuaded the Pocahontas jury of Mr. Hurt’s innocence,” the Supreme Court’s decision states.

His lawyer at the time, Tracy Lusk, asked for the next trial to be moved elsewhere because of the publicity it generated. The West Virginia Supreme Court agreed, and chose Pocahontas County. Lusk was disbarred in 2002 over unrelated matters.

Hurt is black, the murder victim was white, and he was convicted by an all-white jury in Pocahontas County. The county has a black population of less than 1 percent, and is the seat of the National Alliance, a white-supremacist group, the Supreme Court noted in its decision.

“How do you go to trial and have a hung jury in the community in which the crime actually transpired to a different community with a white supremacist outfit and all of a sudden, everybody wants you to be guilty?” Hurt said Monday.

Hurt’s lawyer at trial should have objected to the trial being held in Pocahontas County and should have asked if any of the jurors were members of the National Alliance or a similar organization.

The judge who overturned Hurt’s conviction also did so because the man who implicated him in the slaying and robbery was an unreliable witness. The Supreme Court agreed.

Like Hurt, Michael Hopkins was 17 when he admitted to shooting Lester and named Hurt as an accomplice. Hopkins pleaded guilty to second-degree murder and, as part of his plea agreement, testified against Hurt in his two trials.

In 1999, though, Hopkins said Hurt had nothing to do with the crime. Hopkins signed two affidavits and wrote a letter to the judge who oversaw Hurt’s second trial, admitting that he lied about Hurt’s involvement.

In one of his recantations, Hopkins said police gave him Hurt’s name.

The Supreme Court wrote in its decision, that, “It makes perfect sense that Bluefield Police officers would press Mr. Hopkins to accuse Mr. Hurt.”

The year before the robbery, Hurt and his family settled a lawsuit against the Bluefield Police Department that claimed police brutality toward Hurt and his cousin, who were 14 at the time. The same police officers involved in the lawsuit also were involved in the investigation of the robbery and slaying of Lester.

Hopkins was released on probation in the early 2000s, after 10 years in prison. During Hurt’s hearing in 2011, Hopkins again took the witness stand - and again changed his story. He said he had never given an affidavit or written letters to the judge — all of which is in the record.

That caused the judge to find that he wasn’t a credible witness. The Supreme Court agreed.

Hurt wants people to know that he’s innocent — especially in his hometown. He’s in Sacramento, California — 15 minutes from the ocean — after finding out after being released that people in Bluefield still looked at him as if he is a murderer.

“I don’t feel comfortable in the environment in which I’m from,” he said.

While in Mount Olive, West Virginia’s maximum security prison, Hurt says he spent most of his time in the law library.

“When you go to prison, everyone is innocent. Being in the law library, making 20 cents an hour, I got pretty good at looking up case law,” he said. “Nothing pissed me off more than to see someone in there that has charges they’re guilty of trying to get out of it — if you do the crime, do the time — don’t clog up the printer and the courts.”

Ash said Monday he was trying to familiarize himself with Hurt’s case, as he wasn’t the prosecutor when it was first tried in 1998.

“I’m trying to make a determination whether we have enough to go and retry the case or whether we’re going to have to concede, but if we can we will retry it,” he said.

Hurt said the years he spent researching every detail of his case is what makes him OK with the fact that he might have to go through another trial.

“I know my case really well — that’s all I have, that’s all I’ve known,” Hurt said. “If the prosecutor wants to retry me, go for it. If God is with me, who can be against me?”

Reach Kate White at or 304-348-1723.

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