Defense: Gun misfired in Indy officer's shooting

INDIANAPOLIS (AP) - Attorneys for a man charged with killing an Indianapolis police officer say he shouldn't face the death penalty because his gun discharged accidentally.

Defense attorneys say in court documents that Thomas Hardy didn't intend to shoot Officer David Moore in January 2011, The Indianapolis Star reports.

Prosecutors are seeking the death penalty against 61-year-old Hardy, who was on parole at the time of the killing. Hardy faces a murder charge in connection with the shooting of Moore during a morning traffic stop. Moore died three days later.

In a motion seeking to dismiss the death penalty as a punishment option, Hardy's lawyers said the gun used to kill Moore has misfired in three out of four laboratory tests.

"Basically, when you pull the slide back, it fires and keeps firing," said Ray Casanova, one of Hardy's attorneys. "It shoots when it isn't supposed to and goes from a semiautomatic to an automatic."

Prosecutors say Hardy fired seven shots at Moore, striking him at least four times. Prosecutors said Hardy was given the gun the night before the shooting in exchange for crack cocaine.

"It's the kind of gun you'd expect to get for crack," defense attorney Monica Foster said. "It's rusty and dirty and not in the best shape."

Denise Robinson, head of the prosecutor's homicide division, told the Star that the misfiring of the gun in the lab doesn't mean it misfired when Hardy used it.

"Yes, it was a street gun," she said. "But it's not likely that a misfiring gun hits someone in the head, the chest, like this did. Somebody had to pull the trigger to make it fire seven times."

Defense attorneys also are challenging the truthfulness of a witness who told police Hardy admitted to her that he shot Moore because he didn't want to go back to prison. The attorneys argue that questions about the gun and the witness's statement make Hardy ineligible for the death penalty.

Authorities say Hardy hid out at the witness's home after the shooting, now knowing she was a paid informant for Indianapolis police and federal agents. The whole time Hardy was there, the witness was texting IMPD and an agent for the Bureau of Alcohol, Tobacco, Firearms and Explosives, Foster said.

She said police paid the witness, who has a lengthy criminal record, $500 for the information on Hardy.

"That makes you really question her motive when she says Hardy made certain statements to her," Foster said.

Robinson said the witness was honest when she led police to Hardy.

"She gave truthful information that day that was verified and corroborated," Robinson said. "That was information about where Hardy was, what he was wearing and where he hid the gun."

If defense lawyers can show Hardy didn't mean to shoot Moore, they could argue for a lesser charge such as manslaughter, which would make Hardy ineligible for the death penalty.

Hearings on the defense motions are scheduled for March 21 and 22. Hardy's trial is scheduled for Oct. 1 in Marion Superior Court.