Convicted mother wants new trial
The Washington woman convicted of killing her newborn girl and stuffing the body in a garbage bag a decade ago wants a new trial after her new attorney argued the previous defense team chose an “unwinnable strategy” in the case.
Attorney David DiCarlo argued Friday morning during a post-conviction relief hearing that Jessica Rizor did not have proper representation when her defense attorney, Bob Brady, advised her to reject a plea deal for third-degree murder that would have sent her to prison for 5 1/2 to 30 years.
Brady instead chose to go to trial in March 2008, pushing a “diminished mental capacity” defense that Washington County Judge John DiSalle ultimately ruled could not be admitted during testimony. She was convicted of first-degree murder in the Nov. 26, 2004, killing of her newborn daughter inside her Washington home and was sentenced to life in prison without parole.
Rizor, 37, who is serving a life sentence at State Correction Institute-Muncy in Lycoming County, did not attend Friday’s hearing before DiSalle, but more than a dozen of her family members were in the courtroom.
DiCarlo said Rizor’s defense had no “winning strategy” and should have advised her to take the plea bargain when it became clear her mental well-being at the time of the killing would not be taken into account.
“Is there a winnable strategy?” DiSalle asked in a somewhat testy exchange between the two.
Rizor claims Brady told her if they went to trial, she would win and never spend time in state prison. DiCarlo questioned how her lawyer could make that statement knowing he had a “losing case,” and questioned why Brady never pushed her to take the plea bargain. DiCarlo said Brady admitted to him he made a mistake by going to trial and is willing to testify he provided ineffective counsel.
“I think Bob had a duty of telling her how the trial was going to unfold. She was shocked when the trial ended,” DiCarlo said. “This is about denying this woman a fair trial. She should’ve never gone to trial.”
Another complaint by DiCarlo is the defense did not call witnesses who would have testified Rizor never appeared to be pregnant before the killing. That would bolster Rizor’s claim she did not know she was pregnant until she gave birth.
DiSalle responded that, even with those witnesses, neither they nor anyone else could testify to exactly what happened when Rizor placed her newborn in a garbage bag while at her home. Rizor claimed the baby was stillborn, but pathology reports showed the baby was alive at birth and died by suffocating in the garbage bag.
“The crime is not not knowing you are pregnant,” DiSalle said. “It’s what you did after the baby was born.”
But DiCarlo argued Rizor’s claim she did not know she was pregnant is key to the defense and a possible lesser conviction of third-degree murder because it would show she was not preparing for months to kill the child upon giving birth.
“She had a baby, and then she panicked,” DiCarlo said, acknowledging the baby was born alive and Rizor killed her.
Assistant District Attorney Jerry Moschetta said the transcripts from the trial show that Brady defended Rizor adequately, but the evidence was too overwhelming for the jury not to convict her. She also was convicted of concealing a death and abuse of a corpse.
“What I hear is that Ms. Rizor is very unhappy with the outcome, and she disagrees with the strategy,” Moschetta said. “The way I read it is that he did everything he could.”
The state Superior and Supreme courts both rejected Rizor’s appeals, so the post-conviction relief hearing is the next option for her to receive a new trial. DiSalle now must decide whether Rizor and Brady can testify about the lawyer’s representation and legal advice, or if the judge will simply reject or grant her push for a new trial. It is not known when DiSalle will make his ruling.