SIMMONS CALLED UNWILLING FIGURE IN DEATHS; TRIAL NEAR END - The Buffalo News

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SIMMONS CALLED UNWILLING FIGURE IN DEATHS; TRIAL NEAR END

Theodore Simmons' apparent lack of courage in trying to prevent a friend from slaying two Buffalo Catholic priests last year doesn't make him guilty of murder, one of his attorneys told a State Supreme Court jury today.

With jury deliberations set to begin Wednesday, defense attorney George R. Blair Jr. argued that the Buffalo teen-ager was no match physically or mentally to keep Milton Jones from attacking the Rev. A. Joseph Bissonette and Monsignor David P. Herlihy in separate church robberies 11 days apart.

"He did what he did under threat of force from Milton Jones," Blair told the jury.

Jones was convicted in an earlier, separate trial and awaits sentencing in the murders.

During morning-long arguments before the jury, First Deputy District Attorney Frank J. Clark denounced Simmons as a liar and said he couldn't have been forced by Jones to take part in two identical murders days apart.

Clark urged the jury to use its common sense to reject contradictory out-of-court statements Simmons gave to police about the slayings. Clark noted that Simmons was seen by friends flashing large rolls of bills after both slayings, but never said Jones "forced" him to share in the crime proceeds.

Following final legal instructions from Justice Frederick M. Marshall, the jury Wednesday will have to decide whether Simmons voluntarily participated in the killings or was pressured into being an unwilling witness by Jones.

Simmons is charged with fatally stabbing Father Bissonette, 55, during a $200 robbery at the St. Bartholomew's Church rectory on Grider Street Feb. 24, 1987.

He is also charged with fatally stabbing Monsignor Herlihy, 74, during a $700 robbery at the St. Matthew's Church rectory on Wyoming Avenue March 7, 1987.

Both priests were bound, gagged, bludgeoned and stabbed repeatedly in the chest and heart.

Jones, 18, was convicted in January.

In closing remarks this morning, Blair conceded Simmons had given police three conflicting accounts of his involvement in the fatal attacks, but he argued that the 6-foot, 160-pound defendant, then 18, was in fear of the 6-foot-2-inch, 240-pound Jones.

Blair noted that Simmons consistently told police he didn't stab either priest, and prosecutors didn't call Jones into court to rebut Simmons' claims.

"Ask yourself what you would have done under the circumstances as he faced them," Blair told the jury.

Clark argued that Simmons kept changing his statements to police as he thought of more ways to shift the blame away from himself and onto Jones.

Simmons gave police "very dramatic" accounts of the slayings because he and Jones planned the attacks "step-by-step," Clark argued.

Citing eyewitness accounts of Simmons calmly having "chit chat" with Jones and others hours after the monsignor's slaying and flashing a lot of money and calling himself a "businessman," the prosecutor said Simmons' actions prove he was an active participant in the slayings.

"Actions speak louder than words," Clark said.

Marshall Monday afternoon agreed to let the jury consider Simmons' claim that he was forced by Jones to participate in the slayings. The judge also said he will let the jury consider first-degree manslaughter charges in addition to the murder, robbery and weapons counts lodged against Simmons.

Marshall refused to dismiss the case after the close of testimony, ruling there are "questions of fact" for the jury to decide.

Monday, Blair pressed the judge to permit deliberations on the duress claim by noting that Simmons told police here and in San Diego that Jones forced him at knifepoint to bind and gag Father Bissonette, forced him at gunpoint to bind and gag the monsignor and threatened to harm his mother.

Although Simmons "somewhat changed" his version of the two killings and his role in them three times during his talks with police, there is a "constancy" to his denial of harming either priest himself, Blair told the judge.

In statements to police, Simmons at first said he wasn't present for the Bissonette slaying and didn't know Jones planned to rob the monsignor. Then he said he looked through a window and saw Jones and Father Bissonette's body. Then he said Jones forced him at knifepoint to help in the murder of Father Bissonette and got him involved in the monsignor's slaying by threatening to hurt his mother and pointing a gun at him.

The last of the prosecution witnesses, Lawrence A. Paisley, 18, testified that hours after the monsignor's slaying Simmons flashed "a whole lot of money" to buy a can of lighter fluid, which authorities claim Simmons and Jones used to burn personal papers stolen from the monsignor.

Simmons had "20s, 50s, 10s, it was a wad of money," Paisley testified.

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