FARGO - A man found guilty of murder more than two decades ago could get a new trial if a Cass County judge believes an expert witness who testified Reginald Tweed's post-conviction relief lawyer didn't do his job.
Tweed often turned to wave and smile at several of his family members seated in the gallery during his hearing Monday in Cass County District Court, where his attorney argued that Tweed's former attorney provided ineffective counsel.
Tweed, who is serving a life sentence, was convicted in 1991 for the killing of 32-year-old Terry Dorff in April 1991. Dorff was struck five times in the head with a 17-pound rock, hog-tied and left lying on his stomach on a waterbed in his south Fargo apartment.
Tweed and a friend, David Sumner, who both lived in Moorhead, had gone to Dorff's apartment to drink beer after the three men met at a Fargo adult bookstore. Tweed told authorities he began to hit Dorff after Dorff made sexual advances.
Sumner also was charged in the murder, but was acquitted after Tweed refused to testify against him.
Mandan, N.D.-based criminal defense attorney Thomas Tuntland testified as an expert witness that Tweed's then-attorney, Brian Nelson, failed to interview Sumner and two other witnesses. Tuntland said the two witnesses would have provided evidence that could have provided reasonable doubt in a new trial.
"Lawyers who do post-conviction relief work perform fairly dismally," Tuntland said on the stand. "It's not exciting, it doesn't draw our attention, and it tends to get shuffled to the side."
Tuntland said that if not for Nelson's errors, the North Dakota Supreme Court might have granted Tweed post-conviction relief the first time around.
Tweed twice filed a lawsuit for post-conviction relief, asking District Court Judge Frank Racek to grant him a new trial or to vacate his conviction. He was denied both times.
In an opinion filed Dec. 13, 2011, the state Supreme Court concluded that Racek properly dismissed Tweed's claims of new evidence, ineffective trial counsel and prosecutorial misconduct.
However, the high court said Racek erred in dismissing Tweed's claim that his post-conviction counsel was ineffective. In the opinion, the justices said, "It may have been possible for Tweed to prove a claim for which relief could be granted."
Cass County prosecutors argued before Racek on Monday that there was nothing specific Sumner or the other witnesses had to say that would have exonerated Tweed in a jury's eyes.
"If two people commit a murder, one pleads the fifth, that exonerates the other - is that what you're saying?" asked prosecutor Reid Brady on cross-examination of Tuntland. Tuntland said it did.
Nelson said after the hearing he didn't feel he failed in his duties toward Tweed, and that he had not "shuffled to the side" his post-conviction cases.
He said that in 2008 and 2009, when he was handling Tweed's case, he didn't feel he could interview Sumner because Sumner would have said things that implicated Tweed as Dorff's killer.
"If I had won, I would have been a hero," Nelson said. "The way it is now ..."
Racek took the case under advisement and will rule at a later date.
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