Pa. judge rejects death-penalty challenge


YORK, Pa. - A Pennsylvania judge rejected yesterday one of several arguments by lawyers for retired Loyola College professor Donald B. Hofler that prosecutors should be barred from seeking the death penalty against him if he is convicted in the April shooting deaths of his estranged wife and her son.

Ruling on perhaps the most technical of several motions seeking to prevent the prosecution from pursuing the death penalty, Judge Stephen P. Linebaugh found that the assistant district attorneys handling Hofler's first-degree murder case filed notice of their intent to seek a death sentence properly and within the appropriate time.

Defense attorneys have argued in court filings that prosecutors also incorrectly interpreted the "aggravating circumstances" - that Hofler, who is accused of fatally shooting Rita Hofler and her 17-year-old son, Kevin Gehring, "knowingly created a grave risk of death to another person" - that would qualify the case as one in which the death penalty is a sentencing option.

Lawyers also debated at a pre-trial hearing yesterday the admissibility of statements that Hofler, 70, made to state police, paramedics and hospital personnel in the wake of his arrest April 25, after the victims were found fatally shot at Hofler's home in Shrewsbury Township, just north of the Mason-Dixon Line.

Pennsylvania State Police have said Hofler confessed to the shootings in an interview at York Hospital, where he was taken after troopers entered his house and found the educator semiconscious, having taken 100 tablets of Valium in an apparent suicide attempt.

Defense attorneys filed a notice in September alerting prosecutors that they intend to argue that the cumulative effects of Hofler's prescription medication, alcohol consumption and a distraught mental state left him "mentally infirm" at the time of the shootings.

Appearing in court yesterday in an orange York County Prison jacket and pants and with his right arm in a sling, Hofler did not address the judge but occasionally whispered to his attorneys. He has been held without bail since his arrest.

An authority on the history of the English alphabet, Hofler taught reading teachers at Loyola College for 27 years and was named professor emeritus when he retired in 2000.

Rita Hofler, 48, a Harford County elementary school teacher, met him when she took his reading class at Loyola. The two married in February 1989.

Last spring, Rita Hofler filed for divorce and moved in with another man, devastating her husband, according to court documents.

In a series of digital voice recordings that police found in Hofler's house and that prosecutors played during a preliminary hearing in May, Hofler discussed his funeral arrangements, his lack of desire to live and his plan to kill his estranged wife and her son, if he happened to accompany his mother to Hofler's house.

Both prosecutors and defense attorneys are seeking to have suppressed any statements Hofler made to police, paramedics or medical staff at York Hospital in the days after his arrest. They have made their requests, however, for different reasons.

Prosecutor Timothy J. Barker argued that Hofler's comments cannot be introduced during the trial unless Hofler testifies to them or they are brought in by the defense to show his mental infirmity.

But defense attorney Thomas L. Kearney III said in an interview after yesterday's hearing that the medications, alcohol and Hofler's mental state left him incapable of waiving his Miranda rights.

"Based on what our experts are telling us, this guy didn't have a clue of what he was doing and saying," Kearney said. "The legal term is that his statements were not made knowingly, voluntarily or intelligently."

No trial date has been set.

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