SPOKANE -- Kevin Hilton deserves a third trial because the defense did not get to present evidence that a different person killed his Richland landlords in 2002, his lawyer argued Tuesday.
"There is no question that two people, Larry and Josephine Ulrich, were murdered. The only question is who murdered them," Lenell Nussbaum of Seattle told a three-judge panel of the Washington state Court of Appeals.
Hilton's constitutional right to due process was violated when his trial lawyers were prevented from putting on a proper defense, she contended.
The defense claims the victim's daughter, Lisa Ulrich, was responsible for killing her parents and that Hilton was set up.
Hilton, now 53, rented a Mahan Avenue duplex from the couple for about six years. He twice has been found guilty of two counts of aggravated first-degree murder.
"The jury would have considered the evidence in a completely different light would it have heard the defense theory of the case," Nussbaum argued.
Deputy Prosecutor Terry Bloor pointed out that the state never said the defense couldn't argue that somebody else committed the crime. A prosecution motion granted early in the now 9-year-old case said that the defense could not name a specific person because it fell under "third-party perpetrator evidence" and there was nothing to support those claims, he said.
"The defense would have to show there was a trail of facts clearly pointing to another person. In this case, there just isn't. ... There was just nothing to show that there was a trail of evidence leading to her," Bloor told the judges.
Still, trial lawyers Peter Connick and Kevin Holt were given leeway to present evidence implicating Lisa Ulrich as a third-party perpetrator and to ask about her whereabouts at the time of the killings, her shoe size, whether she had her own key to her parents' house and if she got an inheritance, he said.
"The evidence that was allowed in this trial was virtually everything that the defendant wanted," Bloor said.
He added that the court only restricted testimony on two issues: the specific amount of inheritance Lisa and sister Jennifer received as heirs and that Lisa Ulrich, after asking a neighbor to dial 911, herself called Prosecutor Andy Miller immediately after finding her parents dead in their Thayer Drive home.
Josephine, 67, and Larry, 72, were killed March 20, 2002.
Hilton owed $3,475 in rent and penalties to his landlords and was unemployed, except for odd jobs he did on the computer or in property maintenance for the Ulriches. Prosecutors said at the trial that Hilton became desperate when the Ulriches served him with a three-day notice to pay up or move out.
A receipt found in Larry Ulrich's hand was made out to Hilton for $3,475. Jurors cited it as key evidence in their decision.
Hilton testified that aside from himself, only Josephine and Larry knew the exact amount, and he could not explain the receipt. But he also said he never received the eviction notice and, in fact, had reached an agreement with the Ulriches to pay $2,000 plus interest within six months and to work off the balance.
Defense attorneys argued that the receipt was planted because Hilton didn't have that kind of money at the time to make such a payment.
Hilton has remained adamant that he is innocent and at sentencing expressed sympathy for the deaths.
This is Nussbaum's second time representing Hilton before the appeals court. She was successful in getting his first conviction overturned because of invalid search warrants at Hilton's rental house.
That led to a second trial, which was moved to Asotin County because of extensive Tri-City media coverage. Evidence seized in the searches at Hilton's Mahan Avenue home could not be used in the second trial.
Hilton again was convicted in February 2008 after a five-week trial. The jury took seven hours to return the verdicts.
Hilton is serving a life sentence in the Washington State Penitentiary in Walla Walla.
Judge William Acey, of the Hells Canyon Circuit Court, didn't have an option in giving Hilton a lighter term because the convictions included aggravating factors that the Ulriches were killed as part of a common plan.
Hilton was not brought from prison to attend the Tuesday hearing, but he had nine supporters in the Spokane courtroom. Lisa and Jennifer Ulrich also were there, along with Richland police Capt. Al Wehner, who was the lead investigator.
Nussbaum filed a 176-page appeal, followed by a supplemental 30-page brief. She wrote about 19 "assignments of error," but Tuesday focused on whether Hilton's "most fundamental of constitutional rights" was violated when all evidence that another person committed these murders was excluded at trial.
The two attorneys argued for 31 minutes Tuesday.
Judges Kevin M. Korsmo, Stephen M. Brown and Laurel H. Siddoway could take four to six months to release their opinion.
-- Kristin M. Kraemer: 509-582-1531; firstname.lastname@example.org