Defense attorney: Change in charge could help convict Rachel Poole’s alleged attacker

Updated: Friday, February 7 2014, 09:37 PM MST
Defense attorney: Change in charge could help convict Rachel Poole’s alleged attacker story image

By: Bill Melugin   EL PASO, Texas – A local defense attorney believes prosecutors have eased their burden of proof in the case of a vicious stabbing attack against a pregnant military spouse by changing her alleged attacker’s charge.

“It does ease the burden of proof, and I think it gives them more credibility, they're both first-degree felonies, which carries the same imprisonment, which is 5-99 years to life, and a $10,000 fine,” said Joe Spencer, an El Paso defense attorney who has been involved in numerous high profile trials.

As KFOX14 was the first to report, during an arraignment hearing on Thursday, Rachel Poole learned that Corey Moss, the man who allegedly broke into her home while she was nine months pregnant and stabbed her repeatedly while on a video chat with her overseas military husband, had his charge of attempted capital murder changed to burglary of habitation with intent to commit a felony.

Spencer believes it would have been difficult for the prosecution to convict with the attempted capital murder charge.

"Capital murder would require at least the killing of two individuals, so if it's an attempted capital murder, that would mean it was a specific intent to take the life of two separate individuals,” Spencer said. “I think any murder is heinous, but I think they would have to prove there's a specific intent to kill the second person which would have been the unborn fetus, I think that would be very difficult that that was the specific intent to end the life of an unborn child."
 
Spencer was asked if he was at all surprised that prosecutors didn’t elect to charge Moss with attempted murder.
 
"I don't know the facts and circumstances of all the case so it's difficult for me to try and second guess, at first blush with the little that I know, I would've thought there might have been enough for an attempted murder charge,” Spencer said.
 
Spencer pointed out that the grand jury may have sent back a different indictment than what prosecutors had initially pushed for.
 
When KFOX14 spoke exclusively with Rachel Poole on Thursday, she was confused and in disbelief about the change in the charge. She worried about the perception of a burglary charge rather than an attempted murder charge affecting the way jurors would sentence her alleged attacker, but Spencer says he doesn’t think that will be an issue.
 
“I don't think it will, because they're both first-degree felonies, and I believe jurors in El Paso will render an appropriate punishment based on the facts of the case, whether it's charged as a burglary with intent to commit an aggravated assault, or whether or not it's an aggravated assault, or it's an attempted murder,” Spencer said.
 
KFOX14 asked Spencer how much of an effect Poole’s pregnancy at the time of the attack would weigh on the minds of the jury.
 
"Oh, I think it'll play considerably,” Spencer said. “I think there are certain classes of individuals that there's just an automatic sympathy for the elderly, youth children, and I just think inherently, with every pregnant female, especially during their third trimester, there's just a sense of sympathy."
 
Spencer couldn’t speculate as to how many years he believes Moss could potentially see behind bars, but he said the system will work it out because jurors will have the ultimate decision in his penalty.
 
KFOX14 asked Spencer how a client can be defended when he has already confessed to the crime, which police say, Moss did.
 
“I haven't seen the confession, and I don't know what he said in the confession, we don't know what the defendant’s state of mind was at the time of the offense. I've just gone through a case that's very similar to that, where there was a confession, but the state of mind was very much at issue," Spencer said.
 
With not only national media, but global media keying in on the story of Rachel Poole and Corey Moss, KFOX14 asked Spencer if the defense  has any grounds to ask for the trial to be moved from El Paso.
 
"It's really difficult to get a change of venue,” Spencer said. “You have to show that it's not possible to select a fair jury in El Paso. As many high profile cases as I've done, my experience has been a lot of the jurors have heard about the case, but have not yet formed an opinion, there's nothing wrong with hearing about the case, the only problem comes if you've already formed an opinion,” Spencer said.

 

Defense attorney: Change in charge could help convict Rachel Poole’s alleged attacker
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