State won’t seek death for Comer

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By Deidre Wilson

The 8th Judicial District Attorney’s Office filed a notice last week that they will no longer seek capital punishment if Joshua Adam Comer is convicted of first-degree murder in the 2014 death of 3-year-old Gabriella Orton.

In a hearing on Friday, 8th Judicial District Attorney General Jared Effler said, “I believe that this notice succinctly sets forth the justification why this decision is required by the facts and circumstances of this case as well as the law of the state of Tennessee and of the United States of America. I would also add to that, your honor, as district attorneys, we are often required to make decisions that aren’t popular with some of our constituents. In other words, doing what our oath and the law requires of us is not always politically expedient. While I’m acutely aware that today’s decision will not sit well with some members of the public, I simply cannot and will not seek the death penalty in a case where it is not supported by law and the facts of that particular case.

“Politics should never enter into the decision to seek capital punishment, and, as long as I’m district attorney general, they will not.

“I would add that this decision should in no way be interpreted as my wavering in support of the death penalty. It is simply not appropriate in this case.”

In the notice, the district attorney’s office notes that they received the final autopsy and cause of death for Gabriella Orton on Feb. 15, 2015.

The autopsy was performed by Dr. Christopher Lochmueller at the East Tennessee Forensic Center on June 11, 2014.

Comer and Amber Leann Orton, Gabriella’s mother, were charged in a joint indictment on June 24, 2014, two weeks after the toddler’s death.

Comer was charged with first-degree murder and accused of causing the girl’s death through physical abuse.

Amber Orton was charged with child neglect.

Three days later, on June 27, 2014, former District Attorney General Lori Phillips-Jones filed a notice to seek capital punishment.

Effler was elected as district attorney general on Aug. 7, 2014, and he took office on Sept. 1, 2014.

The notice states, “Since the indictment in this case, the State has continued its investigation and received a multitude of evidence, and hundreds of pages of documents have been received that were not in the prosecutor’s possession at the time the notice to seek Capital Punishment was filed.”

The notice also says a key witness for the State is now deceased, and no prior testimony from the witness would be admissible at trial.

The notice also outlines the office’s current policy regarding capital punishment, which is as follows:

“Some cases of First Degree Murder are subject to capital punishment under the statutes of Tennessee. If there are statutory aggravating circumstances which outweigh mitigating circumstances in the case from the evidence, the office will consult with the family and close associates of the victim and ‘staff’ the issue of whether or not to seek the ultimate punishment. ‘Staffing’ consists of a meeting of the District Attorney General and Assistant District Attorneys familiar with the case to discuss whether or not the ultimate punishment would be justified under the law and the crime is one of the ‘worst of the worst.’ The ultimate decision of whether or not to seek the death sentence rests with the District Attorney General.

“Staff members who have objections to the death penalty due to religious, philosophical or other considerations need not participate in the aforesaid process. (Such objections are not a bar to employment in this office.)”

The notice says this case was “staffed,” in accordance with this policy and “with knowledge of the final autopsy report and hundreds of pages of documents that were not in the possession of the former District Attorney General when she filed the original notice to seek the capital punishment.”

When Criminal Court Judge E. Shayne Sexton asked if the defense had any response during Friday’s hearing, John Eldridge, one of the attorneys representing Comer, said, “Only, good decision. Thank you.”

Prosecutors also announced openly for the first time during the hearing that Amber Orton would likely testify during Comer’s trial, which is scheduled to begin Oct. 2.

“We have put Mr. Comer’s defense team on notice and would also like to make it part of the record today and advise the court that we expect at this time Ms. Orton to testify as a State’s witness in this case,” Effler said.

In January, prosecutors and attorneys for Comer and Amber Orton agreed to a severance, which means they will be tried separately.

Comer will be tried first. His trial is scheduled to begin on Oct. 2.

Sexton said the announcement means they will likely not need the full two weeks set aside to try the case.

“With the announcement here today, I suspect jury selection will not be nearly the herculean task that it normally would be,” Sexton said.

If convicted, Comer would face an automatic life sentence, which, Effler said during Friday’s hearing, means he would have to serve 51 calendar years before being considered for release.