By Philip Jankowski

Killeen Daily Herald

BELTON - The new lawyer for a Fort Hood soldier convicted in the slaying of a homeless man said he will appeal for a new trial for his client, claiming 23-year-old Jared Lee Bottorff's representation during trial was incompetent.

Judge Fancy Jezek of the 426th District Court denied the motion for a new trial by Bottorff's new attorney Jack Holmes after Holmes grilled Bottorff's previous counsel, which represented him during his October trial.

Holmes said he would appeal the decision to a higher court.

Holmes was Bottorff's original attorney before the Bottorff family retained attorney Carlos Garcia on a belief that Holmes was not spending enough time on the case. Attorney John Niland offered his services pro bono, Niland testified.

Holmes repeatedly asked Bottorff's former counsel about their defense strategy, which attempted to frame the August 2009 killing of 36-year-old Dan Smith Jr. as an act of self-defense. Bottorff was convicted of the murder and sentenced to 35 years in prison Oct. 11.

During the trial, the prosecution labeled Smith's murder as a "thrill kill" committed to sate Bottorff's cold-blooded desires.

Holmes criticized Bottorff's previous counsel for not bringing any evidence of post-traumatic stress disorder in front of the court in during any phase of the trial.

"PTSD played a part to Jared's actions that day, but that wasn't the main contributor to his actions," Garcia said.

Garcia and Niland both testified they agreed to pursue a self-defense strategy because it was most consistent with statements made by Bottorff to his friends who witnessed the shooting and later to police.

However, Holmes took issue with the defense's refusal to use the report of Dr. Jerry Mungadze, a licensed therapist hired by Holmes before Bottorff fired him.

Garcia and Niland both defended their position, stating Mungadze had suspect credentials, was loosely connected to exorcism research and had inconsistencies between the two reports he submitted to Holmes and the district attorney's office.

"A prosecutor would have a field day with (Mungadze)," Garcia testified.

Had Homes not submitted Mungadze's report to the district attorney's office, he would have likely been used as a witness, Garcia.

"So it was my fault?" Holmes asked.

Garcia replied yes.

Holmes continued to press the issue, asking Garcia multiple times why he did not consider hiring another expert to analyze Bottorff's mental state. Garcia testified cost played an issue and said he assumed the court would not pay for a second expert.

Holmes also called to the stand James Kreimeyer, one of the longest practicing defense attorneys in Bell County.

Kreimeyer testified he would have used the PTSD evidence at least in the punishment phase of the trial, where jurors hear testimony to decide the level of sentence a guilty verdict warrants.

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