May 21, 2008 By Jennifer Harr 3 min read

The attorneys representing convicted murderer and death-row inmate Mark David Breakiron have filed a response to the commonwealth’s contention that there is no evidence to overturn the Hopwood man’s conviction. Attorney Stuart Lev, who represents Breakiron, said in a filing that prosecutors erred in not turning over evidence that could have made jurors question the credibility of commonwealth witness Ellis Price.

Price testified he wrote a letter to former district attorney and now judge, Gerald R. Solomon, offering information against Breakiron in the 1987 beating death of Saundra Martin, 24, of McClellandtown.

Breakiron, 46, beat and stabbed Martin at the former Shenanigan’s Bar on Route 21 in German Township.

Following the trial, Breakiron was sentenced to die by lethal injection, and he remains on death row.

While state prosecutors, who are handling the appeal, have contended that they turned over all pertinent information to the defense, Breakiron’s lawyers are asking a federal judge to order a new trial because they do not believe that is so.

Lev wrote in the filing that Price offered Solomon testimony for sentencing benefits and other considerations for him and his brother, Robert Price. Those potential benefits should have been turned over to Breakiron’s trial attorney, Lev argued in the filing last week in federal court in Pittsburgh.

The U.S. Constitution requires that prosecutors disclose evidence that is favorable and material to the defense, Lev wrote.

“Favorable evidence includes impeachment evidence as well as evidence that exculpates the accused,” the filing stated.

Impeachment evidence is used to challenge the credibility of a witness.

“Ellis Price’s letters to the Fayette County district attorney seeking benefits in return for his testimony were impeachment evidence, even if no benefits were ever provided,” Lev wrote. “The letters who Price’s self-serving motivation for coming forward, and demonstrate his hope that testimony against Mr. Breakiron might lead to favorable treatment for him and/or his brother.”

State prosecutors noted that no one in the county district attorney’s office remembered receiving the letters, but Lev argued that testimony in the cases “leaves little doubt” that they were received.

Lev noted that a few days after the letters were received, a state police trooper went to the county prison to interview Ellis Price about Martin’s death.

All of that could have altered how the jury judged Ellis Price’s motivation to come forward, Lev argued.

The attorney further argued that prosecutors failed to disclose that Price was a suspect in an assault, though prosecutors have argued that it didn’t need to be disclosed because Price didn’t know he was a suspect.

Lev argued that Price’s brother was interviewed as a suspect in that assault, so Ellis Price “had every reason to curry favor with the prosecution in order to avoid, or minimize, his prosecution for those offenses.”

Without the evidence, Lev wrote, Breakiron’s trial lawyer “lacked the means to effectively challenge Price’s credibility or demonstrate his motivation and bias.

“Imagine how different, and how much more effective, counsel’s cross-examination of Price would have been had counsel been able to show the jury that Price was motivated to make his allegations by the hope of receiving favorable treatment for himself and his brother, that Price had reason to curry favor because of the existence of a pending investigation that could have led to his arrest, conviction and imprisonment, that Price had a non-final conviction for attempted homicide, to accurately portray Price’s criminal record …,” Lev wrote.

He indicated that could have changed how the jury viewed Price’s credibility.

U.S. District Judge Nora Barry Fischer will rule on the claims of Breakiron’s counsel at a later date.