DATE: Wednesday, March 19, 1997             TAG: 9703190556

SECTION: LOCAL                   PAGE: B5   EDITION: FINAL 

SOURCE: BY LAURA LaFAY,STAFF WRITER

DATELINE: WASHINGTON                        LENGTH:   78 lines

SUPREME COURT HEARS ARGUMENTS IN O'DELL APPEAL JUSTICES ARE EXPECTED TO RULE BY SUMMER; THE CONVICTED KILLER COULD WIN A NEW TRIAL.

As Italian officials gazed on uncomprehendingly and a handful of death penalty opponents demonstrated outside, the U.S. Supreme Court on Tuesday heard arguments in the case of condemned Virginia Beach murderer Joseph Roger O'Dell III.

The case, which is in its 11th year of litigation, has generated much publicity in Italy in part because O'Dell claims he has evidence of innocence. That evidence, however, has been dismissed as unpersuasive by the three courts that have considered it.

O'Dell's current claim - that he should have been permitted to tell the jury at his 1988 trial that his criminal history rendered him ineligible for parole - was the issue before the court Tuesday.

O'Dell - who represented himself at trial - wanted to tell the jurors who sentenced him about his parole ineligibility in response to a prosecutor's assertion that ``he causes trouble every time he gets out on the streets.''

But Virginia Beach Circuit Judge H. Calvin Spain denied the request. At the time, Virginia law decreed that juries could not hear information about parole.

In 1994, however, the Supreme Court ruled that the Constitution's due process clause entitles defendants in capital cases to tell jurors they are ineligible for parole.

Arguments Tuesday centered on whether that decision constitutes a new rule under the law.

If the justices decide it is a ``new'' rule, it cannot be retroactively applied to the O'Dell case. If they decide it is not a new rule, the justices will be saying that the state of the law in 1988 was such that the Constitutional principle had already been established.

To that end, O'Dell's lawyer, Paul S. Smith of New York, argued Tuesday that Spain should have known at the time of trial that due process requires defendants to be able to rebut and explain evidence brought forth by the prosecution in an effort to procure the death penalty.

``You have someone who the prosecution is presenting as a terrifying individual, a night stalker who could get out,'' said Smith, referring to O'Dell's sentencing. ``It's only fair to let him rebut that. It was an obvious violation of due process in 1988.''

Arguing for Virginia, Assistant Attorney General Katherine P. Baldwin maintained that the holding does constitute a new rule, and that Spain adhered to the requirements of the law at the time.

``The (decision) in O'Dell was made in good faith according to existing precedent,'' said Baldwin. ``Virginia should be allowed to carry out the sentence in this case.''

O'Dell, 55, has spent 11 years on Virginia's death row for the 1985 rape and murder of Helen Schartner, a 44-year-old Virginia Beach woman.

Both lawyers in the Supreme Court appeal faced rapid-fire questioning from the justices.

The tone of those questions - especially from Justices Sandra Day O'Connor and Anthony M. Kennedy - did not auger well for O'Dell, court watchers said.

The court's conservatives - Clarence Thomas, William H. Rehnquist and Antonin Scalia - are expected to side with Virginia while at least a few of the more moderate justices - John Paul Stevens, Stephen Breyer, Ruth Bader Ginsburg and David H. Souter - are predicted to side with O'Dell.

If that theory holds true, Kennedy and O'Connor could swing the vote.

A decision in the case is expected by summer. If the court rules in O'Dell's favor, he could get a new sentencing. If not, his execution date will be set.

``This is a difficult case on which the court appears to be closely divided,'' said Michelle Brace, a lawyer for O'Dell.

Italian officials who have taken up O'Dell's cause attended the arguments and spoke afterward to reporters assembled in front of the court building. They were accompanied by Smith and Lori Urs, O'Dell's girlfriend and most vociferous defender.

``We have not studied the case in terms of journalistic news,'' Lucianio Nero, head of Italy's Campaign for Joseph O'Dell, told reporters.

``We have studied the - Lori? How is it in English?''

``Court documentation,'' Urs told him.

``We have studied the court documentation,'' said Nero. KEYWORDS: DEATH ROW CAPITAL PUNISHMENT VIRGINIA

APPEAL MURDER RAPE

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