Judge considers setting aside guilty verdict in Mobile murder case

Published: Nov. 23, 2022 at 3:47 PM CST
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MOBILE, Ala. (WALA) - A jury convicted David Cordero-Hernandez last month of murder, but the judge who presided over the trial is mulling a request to throw out the conviction.

Judge Edward McDermott, a retired jurist who presided over the trial because the full-time judge was suspended at the time, heard arguments Tuesday about the defense requestion that he set aside the jury’s verdict and either acquit Cordero-Hernandez or order a new trial. He postponed the defendant’s sentencing hearing and said he would take the defense request under consideration.

Defense attorney Dom Soto argued in a hearing Tuesday that the evidence overwhelmingly supports his client’s innocence. He said co-defendant Marcos Oslan and two women exonerated Cordero-Hernandez.

“I don’t know what transpired in the jury room,” he told the judge. “But I think you trusted the jury to follow the law, and they did not.”

Mobile County Assistant District Attorney Lauren Walsh argued that Soto made the same arguments when he rested his case and asked the judge to dismiss the charge then.

“Nothing has changed from the defense resting ‘til today,” she said.

The jury found Cordero-Hernandez, 35, guilty of murder in the December 2019 shooting, stabbing and beating of Tracie Dennis. Prosecutors alleged that the murder stemmed from a dispute over money and that while Oslan fired the shots, Cordero-Hernandez helped him carry it out.

Police discovered the body buried in Cordero-Hernandez’s backyard and five days after the slaying, authorities in Jacksonville, Florida, tracked him down along with Oslan and two women. Prosecutors argued that the defendant’s flight was evidence of his guilt. Walsh also argued that the 140-pound Oslan would have needed help to subdue the 6-foot-tall victim.

“There is absolutely no way that Marcos Oslan did this by himself,” she said

Defense lawyers routinely ask judges to set aside verdicts. Typically, judges quickly reject those requests. In this case, though, McDermott set a hearing and asked the prosecutor pointed questions about the evidence. After the jury rendered its verdict, the judge drew the ire of the District Attorney’s Office when he let the defendant remain free on bail.

Soto told FOX10 News that he is encouraged by those developments.

“It happened in his home, in David’s home,” he said outside the courtroom. “Other than that, there’s nothing – there’s nothing – there’s no there, there. I mean, you know, where’s the beef?”

In court, Soto argued that prosecutors did not present sufficient evidence. The only person present during the murder who testified was the defendant, himself. The jury did hear statements that Oslan and the two women gave to police, and Soto noted that none of them implicated his client.

In addition, Soto said, another witness was present whom police never questioned. Police said they were unable to locate him. Soto later did find the man, but he said by the time the trial arrived, that witness was in federal custody and had been “whisked away” to a federal prison.

McDermott threw out a corpse abuse charge during the trial but allowed the murder charge to go to the jury. Soto said the judge should have thrown out both charges.

“With all due respect, it was an error to let it go to the jury,” Soto said during Tuesday’s hearing.

Walsh acknowledged that the witness statements did not implicate Cordero-Hernandez, but the prosecutor disputed Soto’s characterization that they “exonerated” the defendant. She urged the judge to respect the jury’s verdict, which she pointed out the jurors reached after just an hour and a half of deliberation. She said the jury could draw inferences form the defendant’s own, contradictory testimony.

“The defendant told three different stories just from that stand about what he heard and saw,” he said. “They were all different from what he initially told police.”

McDermott asked Walsh if prosecutors had tried to cut Oslan a deal in exchange for his testimony. She said that they had but that he had refused because he was afraid for his family. The judge asked why prosecutors did not compel Oslan to testify.

“Don’t you think the jury would have liked to hear his testimony?” he asked.

Walsh responded that from past experience, it is likely Oslan would not have said anything if called to the stand and that the testimony would not have been “helpful.”

The judge also questioned why police did not try harder to find the fifth witness. He pointed to a police detective’s testimony that drove by the man’s house but that there were no cars at the residence.

“He didn’t bother to go up and knock on the door?” the judge asked.

Answered Walsh: “We don’t always get to have all of the witnesses we want in these cases. We went with the evidence we had, which was quite strong.”

Soto told FOX10 News that judges have a duty to intervene if prosecutors fail to meet their burden. He said the facts of this “horrible murder” were difficult to confront – a victim who was hogtied, stabbed seven times and shot.

“The problem with a murder case is that you have these horrible pictures, and you have these horrible facts. And you have a young man that’s been put down in the prime of his life,” he said. “And that’s, you know, it’s hard to overcome that kind of emotional impact when they keep presenting these pictures of these terrible things that happened to this young man.”

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