Ledger photo / TIM GULLA Ernest Riddle said nothing during a Wednesday afternoon hearing in Anderson County while his defense attorneys, Jeffrey Bloom and Diana Holt, argued he should be released from prison after 23 years. ANDERSON — Saying nothing and often just staring forward with an expressionless face, Ernest Riddle was back in court Wednesday as his defense attorneys argued that long-ago errors by prosecutors, alleged lies by witnesses, hidden evidence and the passage of time meant he could never receive a fair trial — back in 1986, now, nor in the future.

Riddle originally was convicted and sentenced to death for the Aug. 8, 1985 murder of Abby Sue Mullinax inside her home at 205 Concord Ave. in Gaffney. Riddle and his brother Jason had been accused of breaking into the grandmother's home for a burglary. When Mullinax awoke to investigate a noise, and screamed when she saw intruders, Ernest Riddle allegedly killed her with a knife he found in her kitchen.

However, Ernest Riddle's death sentence was twice overturned during subsequent appeals, and twice reinstated during subsequent retrials, before a 2006 South Carolina Supreme Court ruling overturned his conviction altogether in a sometimes harshly-worded opinion that took prosecutors to task for past actions.

Riddle's attorneys now are trying to head off another retrial by asking the court to toss the charges on numerous Constitutional grounds and release him from custody after 23 years of imprisonment, much of it spent on death row.

Circuit Judge Cordell Maddox Jr. heard close to two hours of arguments Wednesday afternoon without issuing any rulings from the bench. The judge indicated it's very likely that before he makes a ruling he will hold a second hearing during which the state's once star witnesses — Riddle's brothers Jason and Bruce — will be called to testify once again regardless of their reported refusal to do so.

Among key defense contentions is that Riddle's original defense team never was told by prosecutors that Jason Riddle had given two different statements about the 1985 crime that called his story into question, or that Jason Riddle had walked police through the crime scene just a few days before Ernest Riddle's 1986 trial. Those problems were magnified even more, defense attorney Jeffrey Bloom argued, when prosecutors allowed Jason Riddle to testify he had given only one statement and allowed that information to carry forward to subsequent retrials.

"Its not like he got the time wrong or the sun was in his eyes," Bloom said in court. "These were out and out lies."

He claimed prosecutors also hid that Bruce Riddle had implicated his brother in return for reward money, and that he was romantically linked to another state witness.

The defense team also claims prosecutors hid the fact that bloodhounds called to the crime scene in 1985 led police in a completely different direction than Jason claimed he and his brother had traveled the night of the murder, and that the trail pointed in the direction of other suspects.

"(Prosecutors) did it because they didn't want to lose," Bloom argued.

Jason, who could be paroled from a life sentence next year for his involvement, and Bruce Riddle have since recanted their previous testimony against their brother and refused to testify again, the defense attorneys argued. They may be called at a second hearing in their brother's case, though. Judge Maddox said he would hold a conference call with the attorneys next week to schedule a second hearing about the brothers' testimony to consider whether or not prosecutors can use transcripts of the brothers' previous testimony at Riddle's retrial.

Seventh Circuit Solicitor Trey Gowdy, who still was in college when Riddle was first tried, acknowledged in court that errors were made by his predecessors.

However, he pointed out that none of the South Carolina Supreme Court rulings, including the latest that overturned the conviction, ever went so far as to grant what defense attorneys now are seeking — dismissal of the charges or prohibitions against prosecutors from seeking the death penalty.

Moreover, he said evidence remains that "Mr. Riddle had motive and opportunity" to kill Mullinax and that he engaged in conduct that was conscious of guilt after the murder. "None of that had anything to with (the testimony of) Jason Riddle," he said.

And various courts have recognized that recanted testimony of family members doesn't mean the original testimony was flawed, he said. "The potential for collusion and recanting of testimony is almost irresistible (when codefendant are related)," he argued.

Whatever happened during the original trial, Gowdy asked the court to consider a bigger picture. "It is Mr. Riddle's right to a fair trial," he said. "But there is another family involved that had nothing to do with any of this," he said while pointing towards the Mullinax family.

Bloom indicated he was sympathetic, but only to a point.

"I concur with the Solicitor the Mullinax family should not have to go through this," he said. "(But) It doesn't justify the state getting a fourth bite at the apple."

Judge Maddox, who listened intently to both sides, indicated he would take great pains to ensure a proper decision in a 23-year-old case that has already resulted in four South Carolina Supreme Court decisions, that latest of which was called Riddle IV (4).

"This is an unusual case and I don't want there to be a Riddle V (5)," he said.

Due to the legal issues being tackled, Judge Maddox said it appeared unlikely that Riddle's retrial could be scheduled this fall as planned. He told the attorneys he would speak with court administrators to review possible trial dates in February 2009.

A retrial could last two to three weeks.

If the court isn't inclined to dismiss the case, Bloom and attorney Diana Holt argued the court should at least stop prosecutors from seeking the death penalty.

"We submit that given the passage of more than 20 years, diminished memories, deceased witnesses and the loss of exculpatory evidence, there's no way (Riddle) can get a fair trial," Bloom said. "It would make a sentencing proceeding false and, forgive me for repeating myself, inherently unreliable."

A restrictive order customarily placed on attorneys in these types of cases bars them from discussing the case outside the courtroom.