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High court orders retrial for '98 murder suspect

by The Associated Press | March 3, 2011 at 9:38 a.m. | Updated March 3, 2011 at 12:59 p.m.

— A man sentenced to death for killing a northeast Arkansas family of four more than a decade ago should get a new trial, the Arkansas Supreme Court ruled Thursday.

The court also said the prosecutor who handled the case should be investigated for possible misconduct.

Billy Dale Green, 54, was convicted in 2004 in the 1998 slayings in Randolph County, a trial that included testimony from his son, Charles Wade “Chad” Green, 35, who said he watched his father commit the killings, apparently motivated by stolen marijuana.

Chad Green testified that his father shot Carl Elliott because he’d taken the plants from him. He said his father beat Elliott’s wife and young son, Lisa and Gregory, until they died. He testified his father kept the other child, Felicia, alive for a couple of days until he took her into a wooded area and didn’t bring her back. The girl’s bones were found three years later along a riverbank.

Billy Dale Green’s conviction was overturned in 2006 by the state Supreme Court, which found Circuit Judge Harold S. Erwin allowed prejudicial testimony and should have declared a mistrial at two separate points.

Lawyers for the suspect learned that his son had given a completely different account of the killings in an interview with his own lawyer’s investigator and the prosecutor had a copy of the transcript. In that interview, Chad Green said he was the one who killed the family. But Prosecutor Henry Boyce didn’t turn over the transcript to the defense, later explaining it was a “slip up” that he’d forgotten about the document and that he didn’t think it was relevant. The son accepted a 20-year sentence in exchange for his testimony.

Justices didn’t conclude whether the omission was intentional.

“We refer this matter to the Committee on Professional Conduct to determine whether any disciplinary action is warranted,” Justice Jim Gunter wrote, referring to the panel that disciplines lawyers.

Boyce has said he confronted Chad Green about the interview and the son reverted to his original account of the killings, keeping his plea deal intact. He didn’t comment Thursday, except to issue a release that said the state “looks forward to the retrial of this case.”

Billy Dale Green was granted a new trial before his new lawyers learned of the transcript. They argued that the charges should be thrown out because of misconduct by Boyce and on grounds that another trial would constitute double jeopardy. In the decision Thursday, the high court said that a new trial was the proper remedy in a case when evidence has been withheld from the defense.

Chad Green has since said he would no longer cooperate with prosecutors. His plea deal was revoked, his sentence was vacated and he is awaiting trial on four counts of capital murder just like his father.

Both of the Greens are in prison on unrelated charges. Billy Dale Green is serving life for drug offenses, and Chad Green is serving 20 years at the Cummins Unit for rape and terroristic threatening, according to prison records.

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