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Man Seeks Third Trial on Murder Charges

November 14, 1991

PHILADELPHIA (AP) _ A man convicted of killing two people during a second trial wants a third trial, charging the judge in the case gave poor instructions to the jury.

A three-judge panel of the 3rd U.S. Circuit Court of Appeals ruled 2-1 in July that Gary Rock of Fayetteville deserved another trial on two murder, four attempted murder and two aggravated assault charges.

The full 3rd Circuit agreed to rehear the case at the request of Franklin County District Attorney John Nelson.

After the new argument Wednesday before 10 members of the court - only Judge William Hutchinson excused himself - it took the case under advisement.

Rock had first been convicted in 1978 of the July 2, 1977, shootings of two men who responded to a fire at his home.

That conviction was overturned because of ineffective assistance from his first lawyer, and he was convicted again in 1985.

Rock is serving two consecutive life terms for the murders of Fayetteville Fire Chief James Cutchall and neighbor Wilbur Brookens. He also was found guilty of attempting to kill other firefighters and neighbors.

Rock’s lawyer, David Rudovsky of Philadelphia, said the verdict in the second trial was illegal because Common Pleas Judge John Keller erred in his instructions to the jury by implying that Rock, if found sane, had an intent to kill.

″That was wrong,″ Rudovsky told the 10 judges. ″There was error here because the judge’s charge was clearly unconstitutional since it shifted the burden of proof from the prosecution to the defense.

″Mr. Rock never intended to kill in this case. He didn’t act with criminal intent. That’s why the judge’s instructions are critical, and why we allege they were improper, requiring a new trial.″

Nelson disagreed, and declined to concede that the judge erred.

″We believe the jury had a choice even though there are portions in the instructions that are contradictory,″ the district attorney argued.

″The judge made it clear to the jury that it wouldn’t consider intent to kill until it decided whether Rock was sane, and had the capacity to form the intent to kill.

″There was overwhelming evidence of his sanity. He knew what he did was wrong. How could the jury find anything else but that Rock had the intent to kill. He didn’t fire at random. He aimed deliberately, and shot one man in the middle of his chest. ... I can’t imagine a clearer case of first-degree murder if the man is sane.″

Judge Carol Los Mansmann asked Nelson, ″If it was so clear (as to guilt) why did it take so long for the jury to reach a verdict?″

Nelson replied: ″I don’t know. But I think they took a lot of time to determine a decision on sanity. It was a close case on sanity.″