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Judges hear appeal in UAlbany student murder case

Reported by: Katherine Underwood

Videographer: B. Flynn
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Updated: 10/09/2012 7:41 pm
The parents of slain UAlbany student Richard Bailey sat in a state appellate court room in Albany Tuesday afternoon.

Jim and Lisa Bailey were there through convicted murderer Devon Callicutt's trial back in 2010 and his sentencing last year.

On Tuesday, four years after their son was killed, they had to relive that night again as they listened to the reasons why the man convicted of killing their son should get a new trial.

Callicutt is serving life in prison for murdering Bailey on an October night back in 2008. On Tuesday, Callicutt's attorney, Paul Connolly, filed a 152-page appeal.

At the hearing, Connolly had ten minutes to argue his case in front of a panel of five judges.

“The defendant intended to cause serious physical injury to the victim but not to cause death,” Connolly said.

The attorney said the jury should have been able to consider a manslaughter offense as a lesser included charge, saying that while Callicutt admitted to shooting Bailey in the head, he didn't mean to kill him.

“There is evidence the victim was running from the shooter, there is evidence the victim was lower than the shooter,” Connolly argued. “When you get to get into this shooter’s mind, how do you know that he intended to kill, how do you know that he didn't just intend to cause an injury, it happens very quickly.”

Connolly went on to argue that a portion of a letter Callicutt wrote to friends while in jail shouldn't have been admissible evidence because, in it, Callicutt referred to information about a police interview that was not allowed at trial.

“Through the means of this letter the police were able to completely get around the illegal police conduct of September 11 and got that into evidence despite the suppression order,” Connolly said.

Albany County Assistant District Attorney Steven Sharp had ten minutes to respond to Connolly’s arguments.

“The defendant wasn’t forced to write letters, he didn’t do it because the police told him to,” Sharp said. “It was a spontaneous undertaking of his own, in his prison cell, writing those letters to his friends.”

Sharp spent most of his response time regarding Callicutt's intent.

“When this defendant put a gun to the head of a victim and fired that right there is intent to kill no interpretation otherwise that that was what his intent was,” Sharp said.

The District Attorney's office says it is confident the appeal will be denied.

A decision could take up to eight weeks.

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