BY BEN L. KAUFMAN
The Cincinnati Enquirer
Tony Martel Powell -- who threw 7-year-old Trina Dukes out a fourth-floor Over-the-Rhine window when his attempted rape was interrupted -- won a new 90-day stay of execution Monday.
U.S. District Judge Herman J. Weber said at least two issues warranted consideration by the U.S. Court of Appeals for the 6th Circuit in Cincinnati:
Did Judge William Morrissey of Hamilton County Common Pleas Court improperly limit court-appointed psychological - psychiatric help when defense attorneys said organic brain damage might have fatally affected Mr. Powell's reasoning?
Were defense lawyers Shannon Smith and Louis H. Bolce so ineffective that Mr. Powell's right to a fair trial was violated?
Those issues "deserve encouragement," Judge Weber said, even if he refused to rule on them and overturn Mr. Powell's conviction and sentence.
Judge Weber's ruling was a vital initial victory in Mr. Powell's federal appeal. Had Judge Weber found Mr. Powell's challenge to be frivolous, the prisoner would have had a much harder time pursuing his federal appeal.
The case began July 29, 1986.
Prosecutors said Mr. Powell took Trina into a building on West Liberty Street, forced her to undress and ignored her cries that she wanted to go home.
Meanwhile, Trina's playmates told relatives where Trina had gone. When Robert Dukes went to the building and called her name, Trina answered.
Prosecutors said Mr. Powell muffled her cries with his hand, and, when Mr. Dukes ran up the stairs, Mr. Powell threw the naked child out the window.
Trina Dukes died the next day.
Mr. Powell, then 19, was convicted of aggravated murder during a kidnapping and aggravated murder during an attempted rape.
Mr. Powell exhausted his state appeals in 1994 and was to die on Jan. 5, 1995.
Judge Weber granted the initial stay on Dec. 30, 1994, to allow Mr. Powell's public defenders to craft his federal appeal. The latest stay gives them time to ask the 6th Circuit to intervene.
