Friday, March 31, 2006
Kevin Mayhood

Coroner's later opinion
wins man murder retrial

Nearly nine years after a coroner changed his testimony that was used to convict a Columbus man of murder, the defendant who was sentenced to death has been granted a new trial.

But that doesn't mean Mark E. Burke is about to walk out of the Ohio State Penitentiary in Youngstown.

Franklin County Prosecutor Ron O'Brien said he is researching the decision and still could appeal.

Further complicating matters, Common Pleas Judge Dale A. Crawford said he has set aside the death penalty and granted Burke a new trial on one count of aggravated murder, but it's not clear what to do with a second conviction of aggravated murder that was combined with the first.

Burke, now 45, was found guilty of killing William McBride, a 72-year-old Northeast Side widower. McBride was stabbed repeatedly and found dead, clad only in his pajamas, in his yard on Thanksgiving 1989.

Burke and his cousin James Tanner were charged. Relatives testified the pair had joked about killing someone in a robbery. McBride's belongings were found in their homes.

At trial, each of the men blamed the other for the stabbing.

It is unclear how Crawford's ruling will affect Tanner, who was convicted of aggravated murder and sentenced to life in prison. Tanner, 44, is at the Ross Correctional Institution.

Crawford ruled this week that Burke should get a new trial because former deputy Coroner Keith Norton changed his opinion on key evidence in the case.

In 1990, Norton testified at Burke's trial that five shallow wounds on McBride's chest were at least an hour older than seven deeper stab wounds.

He said the five wounds could have been caused by the men prodding him with a knife to scare him. An autopsy showed that McBride died of a heart attack, likely brought on by the deeper wounds.

The prosecution argued that the lapse between the infliction of the five wounds and the seven showed the cousins had plenty of time to reconsider killing McBride but didn't.

But Norton had concerns about the case and started to review the evidence again. In 1997, Norton testified that he changed his mind after conferring with more-senior coroners and gaining more experience.

He said that what he thought was some healing of the shallow wounds was instead the crinkling of McBride's skin because he was an older man.

Norton said those five wounds likely came from McBride crawling over a fence in his yard, perhaps trying to escape his attackers.

At trial, Burke testified that he watched his cousin stab McBride, but he couldn't explain the shallow wounds.

Norton's new evidence was used in a motion that asked Crawford to set aside the sentence. He declined, as did the Franklin County Court of Appeals. Burke's attorney, Carol Wright, then filed a motion for a new trial.

Crawford denied that as well, but the court of appeals ruled he should listen to Norton's new opinion.

In November, Norton, now a coroner in Missouri, returned and told Crawford what he now believed about the wounds.

Crawford said Norton's new testimony that the fence could have caused some of the injuries might have swayed a jury into finding Burke's testimony more credible.

In 1990, the jury found Burke guilty of two aggravated murder counts, one with prior calculation and the other with the intent of concealing a felony because Burke and Tanner had robbed McBride.

The jury recommended death for Burke on both counts. But then-Common Pleas Judge William Millard merged the two counts and asked the prosecution on which charge he should sentence Burke.

Wright said yesterday that because the two counts were merged, she thinks Crawford can't now pull out the second count and apply the sentence only to it.