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Professor's 2nd trial in shooting proceeds

| Wednesday, Sept. 15, 2004

An Allegheny County judge on Tuesday denied a defense attorney's request to drop all charges against Edward Constant II, a former Carnegie Mellon University professor accused of trying to shoot two Mt. Lebanon police officers.

Attorney Paul Messing had argued that a second attempted homicide trial for Constant would constitute double jeopardy, the legal term for unconstitutionally trying a defendant twice for the same crime.

Common Pleas Judge David R. Cashman also rejected Messing's request that the judge testify whether he is biased against Constant, 61, of Mt. Lebanon, and Cashman refused to recuse himself from the second trial.

A jury April 2 convicted Constant of two counts each of attempted homicide and aggravated assault for shooting a police officer wearing a bulletproof vest and firing at another officer during a domestic dispute at Constant's home on May 26, 2002.

Cashman sentenced Constant to 14 1/2 to 29 years in prison on June 24.

Common Pleas Judge Donna Jo McDaniel overturned the conviction July 20 after a juror alleged that a member of Cashman's staff had improperly participated in jury deliberations.

Juror Patricia Clark told McDaniel that some jurors had opposed convicting Constant of attempted homicide when Cashman's tipstaff, or aide, Mary Feeney, intervened to help jurors determine whether Constant intended to kill the police officers.

To be convicted of attempted homicide, a defendant must show an intent to kill.

Clark testified during the hearing before McDaniel that Feeney gave jurors a hypothetical situation in which someone involved in an argument pointed a gun at several jurors. Then Feeney asked jurors what the gun-holder's intent would be.

A juror said maybe the intent would be to kill them.

"I am not sure if (Feeney) said yes or if she shook her head, but my feeling was that was the right answer to the question," Clark told McDaniel.

At least one juror told McDaniel the example did not sway the verdict, but McDaniel ordered a new trial. Cashman kept the case.

Messing argued that Cashman has shown his bias against Constant by publicly supporting Feeney, including in media interviews in which he pledged Feeney would be on duty during Constant's second trial.

Cashman said there is no evidence he has any bias. He said judges cannot abandon a case every time a lawyer dislikes a ruling or objects to procedures. "If you do that, you're abandoning your responsibilities," he said.

Messing then tried to call the judge to the witness stand.

Feeney, who invoked her Fifth Amendment right to remain silent, declined Messing's request to testify. Her lawyer, Patrick Thomassey, could not be reached for comment.

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