03/31/2006

Psychologist: Pa. man on death row for police killing was brain-damaged

By JOE MANDAK
Associated Press Writer

PHILADELPHIA- A Haitian man on death row for killing a city police officer was brain-damaged from his traumatic childhood and did not fully appreciate "the criminality or wrongfulness of his conduct," a neuropsychologist testified Thursday.

But the brother of slain Officer Robert Hayes had a different view of Thursday's appeal hearing for convicted killer Borgela Philistin Jr.

"I should be watching an execution. I shouldn't be watching this," said Richard Hayes, 50. "It's a waste of taxpayer money. This is a cold-blooded killer. He ruined two families. (His execution) would be the happiest day in my life."

Forensic neuropsychologist Jonathan Mack testified Thursday that he examined Philistin on death row two years ago. Mack said Philistin suffered from post-traumatic stress disorder due to his upbringing in Haiti and was "to some degree not in control of his actions" on the night in June 1993 when he shot Hayes and Officer John Marynowitz.

Judge John J. Poserina Jr. must decide whether that is true, and, if so, whether Philistin deserves a new trial or resentencing.

Philistin, 32, was convicted in 1995 of first-degree murder in Hayes' death and aggravated assault for shooting Marynowitz, who remains partially paralyzed in a wheelchair and carries large scars on his head from his wounds.

Prosecutors say Philistin was carrying about 1.5 ounces (42 grams) of cocaine when police pulled over an unlicensed taxi because its turn signal was flashing but the car did not turn.

Philistin, who was riding in the taxi, does not deny grabbing Marynowitz's weapon and shooting both officers. He has maintained he did not purposely aim at them, did not mean to kill anyone and that he panicked because he thought police would shoot him.

A jury took just two hours to return with the death penalty, but that was not formally imposed until 1998 because the trial judge died before formally signing off on that sentence.

Pennsylvania Gov. Ed Rendell signed a death warrant in 2002 after the U.S. Supreme Court refused to hear Philistin's appeal that the jury that sentenced him had been prejudiced by loud cheers from police officers who filled the courtroom when he was convicted. Philistin was granted a stay of execution later that year when new attorneys filed the habeas corpus petition now being heard in Common Pleas Court.

Philistin's attorneys contend he did not get a fair trial because his former attorney had not presented evidence of diminished mental capacity that could have spared him the first-degree murder conviction and the death penalty.

They said the trial attorney should have presented evidence about Philistin's troubled upbringing in Haiti, where he supposedly witnessed brutality by law enforcement, lived in poverty and was physically abused by his mother.

Philistin's attorneys, Nick Gimbel and Gita Rothschild, declined to comment about the case outside the courtroom.

Marynowitz and his wife attended the hearing but also declined comment, as did Hayes' widow.

Assistant District Attorney Tracey Kavanagh said prosecutors will present their own psychological expert, likely on Friday or Monday. Other witnesses will testify to other issues when the hearing resumes later next month.

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