Defense motion could delay homicide trial
On July 5, 2004, state police allege, an angry James VanDivner went to his estranged girlfriend’s house. He shot her son, and as she tried to get away, he shot her behind the left ear. Michelle Cable died, and her son, Billy, has a bullet lodged in his spine as a result of the shooting.
VanDivner, 55, of Point Marion could face the death penalty if jurors convict him of first-degree, or premeditated, murder. Jury selection is scheduled to begin Monday.
But a motion from VanDivner’s attorney, Leonard Sweeney, could hinder the start of the case, and whether the trial goes forward will not be determined until Monday, according to an official from the Fayette County district attorney’s office.
Sweeney, in a motion filed late Thursday, asked a county judge to reconsider having the county pay for defense experts in the case. If Judge Steve P. Leskinen does not, Sweeney asked the jurist to stay the trial so he can appeal Leskinen’s denial to the state Superior Court.
Sweeney, privately retained by VanDivner’s family, has made three separate motions, requesting funds from the county coffers to pay for defense witnesses. Leskinen, on Aug. 12, refused to grant payment, in part because Sweeney is privately retained.
Had the county’s public defender’s office represented VanDivner as an indigent defendant, the county would have paid for expert witnesses. Although VanDivner’s family, and not VanDivner himself, is paying for Sweeney’s services, Leskinen noted that it was not up to the county to pay expert fees for a defendant with a privately retained attorney.
In his latest motion to get the fees paid, Sweeney indicated that VanDivner is entitled to public funds for experts and “is being discriminated against due to his financial situation.”
Sweeney, according to the motion, wants the county to pay for the cost of physiological and/or psychiatric witnesses, and experts in ballistics and forensics.
Such experts are typical in death penalty trials, sometimes to offer reasons why the crimes were committed and other times to bolster possible defenses. In Fayette County’s last death penalty trial, a psychiatrist testified that Mark D. Edwards Jr. had diminished brain capacity and could not appreciate what he was doing when he shot a family of four, killing three and an unborn fetus.
Jurors in that case sentenced him to death by lethal injection.
In VanDivner’s case, police allege he called Michelle Cable, 41, at her Grindstone home and threatened her before he went to the 100 E. Second St. house to shoot her.
When Billy Cable, 18 at the time, asked VanDivner what he was doing at the home, VanDivner pulled out a gun and fired several shots, police allege. One of those shots hit Billy Cable in the neck, police said, and as Michelle Cable tried to run away through the hedges near the home, VanDivner grabbed her and shot her.
Jessica Cable, Michelle Cable’s daughter, testified at a preliminary hearing that VanDivner laughed after he shot her mother.
VanDivner eluded police for two days after the shooting, hiding out in a wooded area near Beallsville, Washington County, police believe. After police caught up with him, VanDivner reportedly said that he would have killed himself if he knew Cable died. He also indicated he was going to plead guilty to the homicide to avoid a potential death sentence, police said.
VanDivner faces charges of criminal homicide, attempted homicide and aggravated assault.