By KIM SMITH DEDAM
---- — ELIZABETHTOWN — In Essex County Court, David Lang admitted killing his brother in a plea that reduces a charge of second-degree murder to first-degree manslaughter.
The deal was struck on Wednesday morning, just weeks before Lang, 71, was set to go to trial on July 8.
The lesser charge carries a minimum of five years and a maximum of 25 years in prison.
But Judge Richard B. Meyer conditionally committed to a sentence of no less than 10 years and no more than 15 in the plea deal.
Conditionally means that the final sentence will depend on the final pre-sentencing report. David Lang has no prior convictions, according to the prosecution.
He had been indicted on Aug. 13, 2012, by an Essex County grand jury on charges of second-degree murder and possession of a weapon.
Lang pleaded not guilty at that time.
SHOT IN HEAD
He shot his brother Russell Lang in the head on June 19, 2012, at the farmhouse they shared at 325 Lake Road in Crown Point, where they had been living together for decades.
The two men had been arguing that day, and at least one of them was drinking bourbon. After firing the .22-caliber rifle, David called 911.
The younger brother, 63, was found in the driveway and was taken to Moses-Ludington Hospital in Ticonderoga in critical condition.
Flown to Fletcher Allen Health Care in Burlington, he died on June 20.
David was brought into court Wednesday wearing a jail uniform, secured by handcuffs and shuffling with ankle chains.
Essex County District Attorney Kristy Sprague told the court she had witnesses prepared to testify at trial.
Public Defender Brandon Boutelle sought an adjournment, pending evidence he said would prove the older brother was intoxicated when the shooting occurred.
The attorneys discussed the timeline on Wednesday morning.
David, his hair neatly trimmed, sat next to Boutelle and listened as the attorney described to Judge Richard B. Meyer what evidence and expert testimony was needed before trial.
Boutelle said he planned an intoxication defense based on a blood test his office had ordered some hours after David was arrested.
He said the results indicated David had a blood alcohol content of 0.18 hours after the shooting.
Meyer asked Boutelle about his foundation for entering the blood-test results, which requires firm evidence of factors including the number of drinks, the time period considered, the lapse of time and any food eaten.
“Bourbon is one of those beverages that has different alcohol percentages depending on the brand,” the judge said.
PLEA DEAL ACCEPTED
Boutelle indicated he would likely ask the defendant to take the stand.
Earlier attempts for a plea agreement were rejected, Sprague told the court, sticking to her case.
The initial charge had been attempted murder, but when Russell died at the hospital, the district attorney upped it to second-degree murder.
Russell had been shot from a distance within 100 feet, according to police statements made last summer.
Sprague said the case looked to prove David had shot his brother with .22 rifle equipped with a scope.
“I don’t see giving a 10-year sentence on a murder” is fair in this case, she said.
At about that point, David leaned over and whispered to his attorney.
The two asked for a brief recess, and when they returned to the courtroom about 20 minutes later, Boutelle said his client would accept the lesser manslaughter charge with a determinate 10-to-15-year sentence.
Sprague agreed to go forward with the plea agreement.
The District Attorney said she will advocate for 15 years at sentencing.
“With a conditional commitment (in the plea agreement), it’s giving the defendant the assurance that the sentence is not going to go less than 10, and I can get 15. I think 15 years is fair — plus five years’ supervision when he gets out, that’s 20 years,” Sprague said after court on Wednesday.
WAIVED APPEAL RIGHT
At that point, Meyer asked the court officer to remove David’s handcuffs.
Asked if he could stand, the defendant said “yes.”
Meyer went through an extensive list of implications that come with an admission of guilt.
First-degree manslaughter is a Class B violent felony, he told the defendant.
And in pleading guilty, he said, David was, in effect, giving up his rights to a speedy trial, to a trial by jury, to testify on his own behalf and for the prosecution to prove guilt beyond a reasonable doubt, along with several other rights.
In each instance, David told the judge he understood the conditions of the guilty plea.
Admission of guilt enters a conviction in the court, Meyer said, the same as if a jury had found David guilty.
“Appeal rights are not automatically given up because a defendant pleads guilty,” the judge said.
But David also waived his right to an appeal.
Sentencing was scheduled for 3:45 p.m. Aug. 8, pending a pre-sentencing report.
Email Kim Smith Dedam: email@example.com