May 29, 2012 Source : http://triblive.com

Attorneys for a Fayette County man on death row for the 2004 slaying of his former girlfriend say they have found witnesses who contradict the testimony of a key prosecution witness.

The discovery is just one reason James W. VanDivner deserves a new trial or sentencing hearing, according to a petition filed by his attorney, Brent Peck of Uniontown.

In 2007, VanDivner, 63, was found guilty of the July 5, 2004, shooting death of his former girlfriend, Michelle Cable, 41, outside her home in Grindstone. VanDivner also shot Cable’s teenage son, Billy, who survived a bullet wound to his spine.

VanDivner received the death penalty.

“That issue is phenomenal; the eight witnesses we interviewed who were there, who said (Jessica Cable) was not,” Peck said.

Jessica Cable, who is the victim’s daughter, testified at trial she saw VanDivner grab her mother’s hair, shoot her at close range and tell her, “There, you (expletive), I said I was going to kill you and smile and walk away,” according to Peck’s filing.

Peck and his wife, Mariah Balling-Peck, also an attorney, on Tuesday said they spoke with eight witnesses who indicated Jessica Cable was not present when her mother was shot.

The witnesses, none of whom were called to testify at trial, told the attorneys Jessica Cable arrived shortly after the shooting, according to the petition.

In addition, the Pecks said they found a retired school administrator who backs up earlier defense claims that VanDivner likely was diagnosed with mental retardation prior to age 18.

By law, such individuals cannot be sentenced to death, Brent Peck said.

VanDivner attended special-education classes while enrolled in the Frazier School District, according to the Pecks.

At trial, prosecutors said the placement resulted from behavioral issues, and was not based on tests for mental retardation.

Although the school has no records of any intelligence tests being given to VanDivner, Brent Peck said he has found a retired administrator who indicated only students with an IQ of 75 or less were placed in special-education classes.

Behavioral problems were not taken into consideration, according to the former administrator, Peck said.

“Their argument he was in special education because of behavioral issues was completely unfounded and completely off the wall,” Brent Peck said.

With the mental retardation threshold pegged at 70, plus or minus 5, VanDivner would have fallen into that category as a child, Brent Peck said.

A hearing has not yet been scheduled on the petition. VanDivner is on death row at the State Correctional Institution in Greene County.

In June 2010, former Gov. Ed Rendell had signed an execution warrant for VanDivner, but a stay was issued.