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As protesters continue to rally to 'Free Billy,' judge said new trial unlikely

Posted at 4:54 PM, Sep 28, 2020
and last updated 2020-09-28 21:44:06-04

CINCINNATI — William Pennington's family said he is serving time in prison for a murder he didn't commit and protesters plan to rally to "free Billy" for a second time on Oct. 9 on his behalf.

Judge Charles Kubicki, who presided over Pennington's trial, said he's heard the protesters and has been reviewing how Pennington wound up in prison 10 years ago, but he believes a new trial is unlikely.

"I don't want to see an innocent person in jail or prison," said Kubicki. "Likewise, certainly don't want to see a guilty person free and able to go back on the streets and able to commit horrible crimes."

He has denied the protesters and families requests for a new trial and said the evidence against Pennington was strong.

"There were mountains of evidence against Mr. Pennington," Kubicki said.

Pennington’s case began in Oct. 2010 – police arrested him for robbing two pizza delivery drivers. Documents show officers traced the phone number that ordered the pizzas and found Pennington.

Judge Kubicki said one of those drivers picked Pennington out of a photo lineup.

Police said Antonio Smith was working at Richie's restaurant on Oct. 30, 2010, when two people tried to rob the business; Smith was shot to death as he held his hands up in a surrender position, a moment that surveillance video released by police showed.

“They found the boxes of the pizzas that he had ordered at his place with evidence, fingerprints that showed that he had handled the boxes," said Kubicki. "They also found the wallet and identification and credit cards of one of the drivers."

Police also said they matched Pennington's shoe to a print left on the counter of the restaurant during the robbery, down to the wear and tear of the soles.

"The shoe prints themselves were as good as a fingerprint," said Kubicki.

Pennington was ultimately indicted for 13 counts tied to the robbery and sentenced to life in prison.

One of the main reasons Kubicki said he believes a new trial will be unlikely is that Pennington opted out of a jury trial and took a plea deal that allowed him to avoid the possibility of life in prison without parole.

"This is a situation where I feel like justice has been served," said Kubicki. "It was an agreed sentence and Mr. Pennington took responsibility. Mr. Pennington apologized, which was not necessary, and most people don't apologize."

Kubicki said Pennington must show there’s new evidence to correct a manifest injustice.

Taylor Pennington, Billy's wife, said one of the men who tipped police off to Pennington has admitted he lied when he implicated her husband. But Kubicki said that's not enough.

"What Mr. Pennington is relying on in his motion to withdraw his guilty plea wasn't evidence that was going to be used against him," he said.

Taylor said the protests for her husband's chance at a new trial will continue; She said she believes that if the case was tried again, jurors would have enough reasonable doubt to find him innocent.

"All we're asking is the opportunity to prove his innocence in court," she said.

WCPO reached out to the Smith's family for comment on efforts to retry his murder case, but have yet not heard back.

"As I'm advocating for Billy, I never want to be insensitive to the fact that there was a life lost," said Taylor. "My heart goes out to them and Billy's heart goes out to the family. I guess the best way to say this is that they didn't get justice either."

Pennington is eligible for parole in 8 years