Death penalty cases to be mediated

Prosecutors and defense attorneys will attempt settle two upcoming Daviess County murder trials, where both defendants face the possibility of the death penalty.

Both Arnettt B. Baines, 36, and Cylar L. Shemwell, 37, of Owensboro will have their cases mediated next month.

Baines and Shemwell were charged with murder and first-degree assault in the Jan. 17, 2019 fatal shootings of three men at a home on Audubon Avenue.

Jay Michael Sowders, Christopher Carie and Robert D. Smith were all shot in the head during the incident, which was captured on the home’s security camera system.

A fourth person in the home, Carmen Vanegas, was also shot during the incident, but survived.

The cases will be mediated by retired Circuit Judge Phillip Patton. Mediation is a process where the appointed judge meets with both sides in the case, gives an opinion on how the jury would interpret the evidence at trial, and recommends a plea agreement. The parties are not bound by the judge’s recommendation.

Baines’ case will be mediated on May 7, and Patton will mediate Shemwell’s case on May 14. If the parties cannot agree on a settlement, Shemwell will go to trial in early June.

Baines’ trial is set for August.

The parties discussed mediation Friday during a hearing on motions in Shemwell’s case, including a motion to exclude jurors from considering the death penalty.

Leigh Jackson, lead attorney for the local public defender law office, argued Shemwell should not be considered for capital punishment because video from the incident shows Shemwell sitting and watching while a person alleged to be Baines shoots the three men in the head.

“Shown in the video is someone other than Mr. Shemwell shooting Jay Sowders, Robert Smith and Christopher Carie,” Jackson said. Shemwell, Jackson said, was “present” but had lived at the house.

Shemwell was not “an active participant,” Jackson said.

“There is no legal obligation on Mr. Shemwell’s part to report these crimes and there’s no legal obligation on Mr. Shemwell to stop these crimes,” Jackson said.

The death penalty is reserved for the most severe crimes, Jackson said.

“We know Mr. Shemwell didn’t shoot anybody,” Jackson said.

There was also no evidence Shemwell and Baines had planned the shooting, Jackson said.

If evidence shows that Shemwell intended for the shootings to take place, Circuit Judge Tom Castlen said it could allow jurors to consider the death penalty.

Jurors could infer Shemwell’s intent based on his actions around the time of the incident, Castlen said.

While Shemwell watched the shootings, Jackson contested the assertion that Shemwell was sitting in a way that blocked the door and prevented Sowders, Smith and Carie from escaping.

Based on the video of Shemwell sitting and watching the shootings, Castlen said jurors could make a decision about whether or not they believe Shemwell was complicit.

Castlen denied the defense motion, meaning Shemwell still faces the possibility of the death penalty for now. There will be at least one other opportunity for the defense to throw out the death penalty during the trial, after the prosecution has presented evidence and rested its case.

One more hearing before trial was scheduled Friday, a hearing to determine how much video footage of the shooting and its aftermath will be shown to jurors.

“If we settle by mediation, it (the issue) will be moot,” Jackson said.

“Let’s assume we won’t” settle, Castlen said, scheduling the hearing on the video for May 20.

Jury orientation begins in mid-May. A list of questions Castlen presented Friday for jurors includes how much pretrial publicity they’ve seen about the case, thoughts on race, their willingness to consider aggravating or mitigating circumstances, and if they can consider a higher range of punishment, including the death penalty.

About 40 jurors have already been excused from the jury pool, due to hardships, Castlen said. Both trials are expected to last weeks.