Law professor: Pittman case likely to plea bargain rather than go to new trial

By Andrew Dys - adys@heraldonline.com

CHESTER --

Now that a judge has ordered a new trial for Christopher Pittman, three professors at South Carolina law schools say it is likely that he will seek a plea deal rather than face another trial.

Pittman's former lawyers unsuccessfully argued in a 2005 trial that anti-depressants caused Pittman to shoot his grandparents to death in Chester County in 2001 when he was 12.

Despite the so-called "Zoloft defense," Pittman was convicted of double-murder and sentenced to 30 years in prison. Those convictions were overturned this week after a judge ruled Pittman's lawyers made mistakes during the trial - including not seeking a plea deal forcefully.

The state Attorney General's office has vowed to appeal the overturned convictions.

But Miller Shealy, a professor at the Charleston School of Law, said the chance that the order would be reversed on appeal is a "toss-up." Barring a reversal, Shealy and other experts say the case probably will end up as a plea negotiation.

Trial gives no guarantees

Kenneth Gaines, an expert in criminal law at the University of South Carolina law school, said the order granting a new trial opens the door for Pittman to seek a plea deal and avoid another trial.

There would be no guarantee with another trial, Gaines said, that Pittman would be sentenced to the minimum of 30 years if found guilty. The maximum sentence for murder in South Carolina is life in prison.

If Pittman gambles again at going to trial, Gaines said, he could get a harsher sentence.

The lack of success of the "Zoloft defense" that Pittman's lawyers used in 2005, the fact that Pittman is now a grown man who would appear before a jury in the trial not as a child but as a 6-foot-2-inch man, and that Pittman is accused of committing the crimes and covering up the killings by burning down the home and falsely accusing a non-existent black intruder should make a potential plea deal appealing, he said.

"Although an order for a new trial means they start over, that doesn't mean the defendant has to go to trial," Gaines said. "He can either go back and plead or ask for a trial. This case is ripe for a plea deal."

Pittman's new lawyer, Seth Farber of New York, declined to comment on what strategy he will use concerning Pittman's defense on double murder charges.

Doug Barfield, the prosecutor for Chester County, also has declined to comment on what might happen next - if the case ends up in his hands.

It is unclear whether the case would revert to Chester County's solicitor's office for prosecution, or to the prosecutor's office in Richland County, which handled the case in 2005 after the Chester prosecutor at the time became ill.

The 2005 trial was held in Charleston because both prosecutors and defense lawyers said finding a jury in Chester after so much pre-trial publicity in the case would have been difficult.

But there is no guarantee that the case would again be moved out of Chester.

The case will probably end up back in Chester - at least at first, Shealy said. A plea deal could be appealing to both the defense and prosecution, he said, because cases tend to get tougher for both sides involved as time passes.

Prosecutors in 2005 never tendered a plea offer. Pittman's lawyers refused to consider anything that would imprison him past age 21, and the prosecutors didn't want to consider anything that would end with a sentence of less than 30 years, court documents show.

But the judge in that trial held a meeting during the trial that asked both sides to consider voluntary manslaughter as a potential plea, with the judge deciding sentence.

Voluntary manslaughter carries a sentence of two to 30 years that can include parole eligibility after 85 percent of the sentence - but sentencing is left up to the judge's discretion. A murder conviction has a mandatory, no-parole sentence of 30 years.

All eggs in 'Zoloft basket'

The verdicts were overturned after Pittman sued his former lawyers, claiming they botched the case.

On Tuesday, a judge agreed, ordering the guilty verdicts thrown out in the deaths of Joe and Joy Pittman because Pittman's lawyers in 2005 did not tell a court-appointed guardian ad litem that a potential plea deal could potentially be worked out.