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January 13, 2010

A gambling man

After 15 years, confessed killer Michael Jennings might finally get his day before a jury

At the age of 14, Michael Jennings watched his cousin die from a shotgun blast to the chest.

Nine days later, the teenager encountered the suspected triggerman, Toriano Oldham, along with a friend, Frederick Crook, both 20 years old.

Words were exchanged, and witnesses later reported the pair taunted young Jennings about the death of his cousin.

In response, Jennings threatened to retrieve a gun from the home of his uncle, his guardian at the time. It was a common threat the boy made when being harassed, but one he never followed through with — that is until the evening of May 26, 1994.

The middle school student with a history of severe depression ran to his uncle’s nearby apartment. A few minutes later, he returned to the courtyard outside the Sheppard Square housing complex armed with a Tech 9 semi-automatic weapon.

By that time, a small crowd had gathered to watch the altercation unfold. Standing among the onlookers, Jennings’ uncle encouraged him to fire, saying, “Do what you gotta do,” and “Smoke ‘em,” according to witnesses.

Any remaining hesitation disappeared when his cousin’s alleged killer essentially dared him to shoot, reportedly boasting, “You think I’m scared of that gun? My mom always told me if you pull a gun on a nigger you supposed to kill ‘em.”

Then came a spray of gunfire. Both Oldham and Crook were shot multiple times and died at the scene.

With the help of his uncle, Jennings evaded police for eight months. First he fled to Florida, then to San Diego where he ultimately was captured and extradited back to Louisville. His uncle never was charged in connection with the shooting or his nephew’s subsequent escape.

The boy’s grandmother scraped together enough cash to hire private defense attorney Fred Radolovich, declining the services of a public defender.

It’s a decision Jennings would later regret.

After allowing his juvenile client’s case to be transferred to adult court, Radolovich allegedly warned Jennings that he could be sentenced to death, when in fact state law precluded the execution of a defendant whose crime was committed while under the age of 16.

Following the advice of his lawyer, Jennings hastily accepted a plea deal and landed in prison, facing a life sentence with the possibility of parole in 12 years. (The Parole Board rejected his request for release in 2007 and deferred his next hearing until 2015.) Jennings has spent 15 years fighting to prove Radolovich — who has since surrendered his law license due to misconduct in an unrelated case — was grossly incompetent and that his guilty plea should be thrown out as a result.

It now looks as though Jennings will finally get his wish, but prosecutors have warned that he could end up with an even harsher sentence as a result — life without the chance of parole for 25 years.

Although state courts repeatedly denied the claim, last month, U.S. District Judge Charles R. Simpson III granted his appeal, giving prosecutors 120 days to retry Jennings or set him free.

“It is plausible that the only thing that kept Jennings from taking a risk at trial was that he thought that he would be risking life and not merely his liberty,” Judge Simpson wrote in his Dec. 22 ruling. “Ever since he learned of Radolovich’s mistakes, shortly after he entered prison, Jennings has sought to withdraw his plea and go to trial, arguing that this is what he would have done in the first place had he been properly advised.”

The judge further points out that had Jennings gone to trial, the combination of his history of hospitalization for depression and witnessing the murder of his cousin could have provided a plausible defense of extreme emotional disturbance. If proven, such a defense would have reduced the murder charges he faced to voluntary manslaughter.

On Monday, Jennings appeared in Jefferson County Circuit Court alongside Sheila Seadler, the public defender appointed to represent him. Prior to that hearing, Seadler told LEO Weekly she believes her client’s case was improperly transferred out of juvenile court in 1995. “I question whether the adult court actually has jurisdiction. A juvenile needs to understand what is occurring,” she said. “We take special steps, as we should when we represent kids, to make sure they understand what is going on, to make sure they know what they’re giving up by going to adult court.”

During the hearing, Seadler briefly outlined her belief that adult court might not be the proper venue for her client’s case. Upon learning the defendant is now 30 years old, Judge Charles L. Cunningham Jr. quickly retorted, “Well, I don’t think juvenile court wants him.”

A representative from the Jefferson County Commonwealth’s Attorney’s Office was not present for that hearing, meaning a trial date could not be set.

In a brief refuting the federal court’s recent findings, the state Attorney General’s Office — on behalf of the commonwealth’s attorney’s office — makes it clear prosecutors will seek an even harsher penalty if the case goes to trial.

“We’re relatively confident that we are going to retry him, but the case must be reviewed to make sure we can go forward,” said Stephen Tedder, spokesman for the commonwealth’s attorney’s office. “We are reviewing the case file and looking for witnesses. That’s where we’re at right now.”