A Winston-Salem man convicted of fatally shooting two men in 2004 will get a new sentencing hearing but his murder convictions will be upheld, a Forsyth County judge ruled last week.
Franklin Bowden Jr., 31, is serving a minimum of about 36 years in prison. In 2006, he pleaded guilty to two counts of second-degree murder and other charges related to the fatal shootings of Gerardo Santiago-Arias and Michael Monte Jordan. Forsyth County prosecutors alleged that Bowden, who was 15 at the time of his arrest, shot both men to death in separate incidents two weeks apart and robbed them. Santiago-Arias was shot five times and was found in the woods at Happy Hills Garden in March 2004. Jordan was shot in the neck in April 2004.
At the time he pleaded guilty, his case was headed to trial. If convicted of first-degree murder in both cases, he faced a sentence of life in prison without the possibility of parole. In court papers, Bowden alleged that his attorneys, Lisa Costner and Jerry Jordan, met with him for only 2.6 hours over a two-year period, failed to pursue a self-defense claim and misrepresented a plea deal that he thought would guarantee at least 13 years in prison. He also accused Jordan of being openly hostile toward him and using profanity.
Bowden argued that Costner and Jordan were so ineffective in their legal representation that his murder convictions should be overturned.
Judge David Hall of Forsyth Superior Court disagreed in his ruling issued on Aug. 9, about three weeks after he presided over a two-day hearing about the case. He also had previously held another hearing in January 2018.
Don D. Carter, Bowden’s attorney, said Hall considered everything and made a fair decision. He said he was hoping for a different outcome, but he understands Hall’s ruling. Carter said that when attorneys are dealing with a defendant who was as young as Bowden was, there should be more attention paid to the case.
In the most recent hearing, Bowden took the stand and said he would never have taken a plea deal if his attorneys had not convinced him that he would be guaranteed a sentence of 13 years to 16 years.
His father, Franklin Bowden Sr., testified at the January 2018 hearing that a man, who was later identified as an investigator hired by Jordan and Costner, had visited him at Forsyth County Jail and asked him to persuade his son to take the plea deal. Bowden Sr. said the man told him that his son would be guaranteed at least 13 years in prison.
But Hall said that based on his review of the evidence and court documents, it is more likely that Bowden got the idea that he might get 13 years to 16 years from a hearing about two months before the plea in which Bowden sought unsuccessfully to get Costner and Jordan removed as his attorneys.
Misrepresenting a plea deal would be a substantial violation of the Rules of Professional Conduct for attorneys, Hall said. He said that he found nothing in the file, exhibits or witness testimony that “reveals any benefit that would inure to attorneys Costner and Jordan ... for making a false misrepresentation of such magnitude, especially when each attorney knew at the time that a Superior Court judge would review the plea arrangement in open court within the next few days.”
Hall also determined that the plea deal offered by prosecutors that Bowden ultimately accepted was “substantially more advantageous than any plea arrangement previously offered the defendant.”
Jordan and Costner both testified — Jordan in January 2018 and Costner in the hearings last month — and they both said they recalled very little from their representation. They both denied they provided ineffective assistance of counsel, and Costner disputed numbers that indicated that she and Jordan had spent under three hours with Bowden. Jordan acknowledged in his testimony that he did use profanity against Bowden and that he could have spent more time with Bowden.
Hall said in his ruling that Jordan was unprofessional in his behavior toward Bowden. Jordan said Wednesday that he has not read Hall’s ruling but believes it to be fair.
“I have no problems with it,” he said.
Costner could not immediately be reached for comment.
In the hearing last month, Bowden’s attorney, Don D. Carter, repeatedly asked Costner why she did not pursue a self-defense claim in the case but instead filed a notice of an alibi defense. She said she didn’t recall but said it would be her general practice to not pursue a self-defense claim if she didn’t have permission from her client. Carter pointed to witness statements that indicated that Jordan pulled a gun, arguing that there was a self-defense claim in at least one of the murders.
But Hall noted Bowden’s testimony last month during which Bowden kept invoking the Fifth Amendment right against self-incrimination. Hall said in his ruling that Bowden signed a sworn affidavit for the purposes of his appeal in which he implied that he killed the two men. Bowden, he said, refused to answer questions from prosecutors about whether he killed either man in self-defense.
It was reasonable, Hall said, that Costner and Jordan knew that Bowden would likely be convicted of first-degree murder in a trial under what is known as the felony murder rule. Under state law, a defendant can be convicted of first-degree murder if that person also committed another felony, such as robbery, at the same time.
“The defendant refused to concede facts and circumstances that this Court finds by the greater weight of the evidence to be true, and the defendant’s demeanor and response to direct and cross-examination demonstrated an exaggerated self-interest and lack of candor,” Hall said.
But Hall did find that Costner and Jordan did fail to obtain school records from Parkland High School that might have led to a lenient sentence. The records indicate that Bowden took “Learning Disabled” classes and had a low grade point average. Hall said the failure to get those records could have been due to insufficient research or Costner and Jordan trying to negotiate a plea deal in the few days before trial.
He also said that Forsyth County prosecutors failed to summarize facts or gave limited facts in two other related charges. Hall said because his school records were not presented in court and there was insufficient factual basis in at least two of the charges, Bowden should get a new sentencing hearing.
A new sentencing hearing has not yet been set.