July 26 MISSOURI----re: federal death penalty trial FORMER CO-DEFENDANT TO TESTIFY IN CASE INVOLVING KILLING OF WITNESS----Death penalty sought in retrial A man is charged with hiring hit men to kill a federal witness in a rare and complex federal death penalty case that opened Monday in Kansas City. Among key evidence against Xavier Lightfoot will be testimony from former co-defendant Cornelius Peoples. Both men were previously convicted and sentenced to life for planning the murder of John Wayne Hogsett. Those 1999 convictions were overturned on appeal, and prosecutors announced they would seek the death penalty on both men at retrial. Peoples pleaded guilty last year and agreed to testify against Lightfoot. In exchange, prosecutors agreed on a sentencing range of 15 to 25 years. Hogsett, who lived as a woman under the name Jovan Ross, was helping the FBI in an investigation of robberies of a credit union and jewelry stores. He was shot to death June 8, 1998, in a Kansas City house he had shared with Lightfoot. Lightfoot is charged in U.S. District Court with conspiracy to rob a credit union in Nebraska, conspiracy to murder a federal witness and murder of a federal witness. Prosecutor Mike Warner told jurors that testimony from Peoples and others would show that Lightfoot conspired to murder Hogsett, who became a key witness against him in the credit union robbery. Lightfoot was arrested for the robbery in December 1997 and remained jailed near Leavenworth. A few months later, Warner said, Lightfoot asked Peoples to visit him, and Lightfoot told Peoples he would plead guilty to the robbery and turn in Peoples and others involved, "unless his witness problem is taken care of." A series of tapes of profane recorded phone conversations between Lightfoot and Peoples will show the 2 men planning Hogsetts murder, Warner said. Defense lawyer Charles Rogers countered that the tapes prove nothing and that the government's case hangs on the word of Peoples, a felon who got a sweetheart deal for his testimony. "Your job is to evaluate his credibility," Rogers told jurors. Since the 1st trial, 3 other men have been convicted in the case. Carl Haskell was sentenced to life for killing Hogsett. Curtis Barfield was acquitted of murdering Hogsett but was sentenced to 5 years for conspiring to murder a federal witness. Anthony Hunter pleaded guilty to witness tampering and was sentenced to 15 years. Lightfoot is an unusual federal case, experts said, in that he once escaped the death penalty with a life sentence and now faces execution at retrial. In the 1st 1999 trial, prosecutors sought the death penalty for Lightfoot and Peoples. After jurors were unable to unanimously agree on whether Lightfoot should be sentenced to death, prosecutors withdrew the death penalty option for Peoples, and both men were sentenced to life. At the time, it was unclear whether federal law allowed prosecutors to again seek death if such life sentences were overturned on appeal, said Kent Gipson, an adjunct law professor at the University of Missouri-Kansas City. About 3 years ago, he said, a U.S. Supreme court decision made it clear that federal prosecutors can seek execution on retrials after original jurors deadlocked on the death penalty. Gipson said the Lightfoot case was probably the 1st federal death penalty trial triggered by that ruling. Now those convicted of murder have to think hard about appealing a life sentence, he said. "Appeal and you put your life in jeopardy." ------------------ First glance - A recent U.S. Supreme Court decision made it clear that federal prosecutors can seek execution on retrials even after original jurors deadlocked on the death penalty. - Xavier Lightfoots case, which opened Monday, is thought to be the first federal death penalty trial triggered by that ruling. (source: Kansas City Star) ILLINOIS: Another bizarre court date for ex-death row inmate Freed death row inmate Aaron Patterson, before a federal jury Monday, tackled his own attorney and the two fell onto and injured his 2nd defense attorney as he accused the 2 of framing him. Jurors and observers were ushered out of the courtroom, as U.S. Marshals subdued Patterson, on trial for new drug and weapon charges. Until last Thursday, Patterson had been banished from court because of repeated outbursts. He was allowed back after promising to behave. On Monday, as an attorney for Patterson co-defendant Mark Mannie questioned a witness, Patterson said he wanted his attorneys off his case. A judge denied Patterson's requests to represent himself. Then, arms outstretched, Patterson jumped onto attorney Paul Camarena and the 2 fell onto Patterson's 2nd attorney, Tommy Brewer, according to courtroom observers. Brewer's ankle was injured. Mannie's attorney, Thomas Leinenweber, asked for a mistrial, saying the jury was tainted. One juror was dismissed after questioning. The trial later resumed without Patterson, and the public was banned the rest of the day. Camarena and Brewer blamed Patterson's outburst on his previous attorney, Demitrus Evans, who they say told Patterson they're trying to throw his trial. They said Evans violated a court order by refusing to turn over legal material and told Patterson that Brewer, a onetime FBI agent, was still working for the government. Evans was kicked off the case after she twice stormed out of court in the middle of proceedings. 'Hideous slander' alleged A steaming U.S. District Judge Rebecca Pallmeyer called Evans to a hearing late Monday and verbally rebuked her. She stopped short of holding Evans in contempt but ordered her to immediately return to her office, accompanied by U.S. Marshals, and turn over "every shred" of paper related to Patterson's case. Evans said her remarks about Brewer stemmed from his describing himself as the "head agent" on Patterson's case. At that, Pallmeyer erupted, saying the suggestion that a defense counsel is in cahoots with the government is "hideous slander." Patterson in 2003 was pardoned for a double murder and freed after 17 years in prison -- 13 of them on death row -- after then-Gov. George Ryan cleared death row. Mannie's mother, Earline Mannie, who watched Patterson erupt Monday, said she supports Patterson. But if she could, she would tell him: "Just sit down and be still. Whatever justice is, just wait on it." (source: CHicago Sun-Times) ********************** Birkett's zeal is questionable in Nicarico case It's time for DuPage County to declare victory in the Nicarico case and end this 22-year nightmare. Indications are that, any day, we'll see a grand jury indictment of Brian Dugan, 48, in the 1983 abduction, rape and murder of 10-year-old Jeanine Nicarico of Naperville--a crime to which he has offered to plead guilty in exchange for a life term without parole. He's already serving two such sentences at Pontiac Correctional Center for other sex killings, so his offer isn't particularly impressive. Still, DuPage State's Atty. Joseph Birkett should take it and announce that justice has, at last, been done. Instead, he appears determined to lead a costly and possibly futile effort to take Dugan's life before the Grim Reaper beats him to it. After the indictment would almost certainly come many, many months of legal ground-pawing as attorneys for Dugan file motions and continuances while making their way through the estimated 175,000 pages of documentary evidence that it already has taken DuPage officials nearly 3 years to process. After that will come a trial and, assuming Dugan is convicted and sentenced to death, numerous appeals. The entire process is luxuriously expensive. A 1993 Duke University study found it costs $2.2 million more to execute a prisoner than it does to lock him up for life; a 1992 calculation by the Dallas Morning News found that Texas spends an average of $2.3 million per execution, 3 times the cost of keeping a prisoner in maximum security for 40 years. And a 2003 Kansas Department of Corrections audit found that median death penalty cases cost $1.26 million compared with $740,000 for non-death penalty cases. DuPage County already has spent untold millions since 1983 investigating, re-investigating, trying and re-trying and re-re-trying other figures in this case, which has already seen 6 criminal trials and 2 civil actions. Since November 2002, when Birkett's office announced that modern DNA testing had established with "scientific certainty" that Dugan raped Jeanine, the county has devoted considerable (though still somewhat mysterious) resources to the preparation of an air-tight case against Dugan. I won't argue that Dugan deserves any mercy. The indictment will allege that he discovered Jeanine home sick from school while looking to commit a weekday burglary, kicked in the door, grabbed her and took her to a remote location where he sexually assaulted and bludgeoned her. No corner of hell will be hot enough for him. But Birkett is throwing good money after bad. Before the January 2000 moratorium on the death penalty in Illinois, the shortest time between conviction and execution for the 10 convicts who pursued all their appeals was 13 years; the average was 15 years. So even if a future governor lifts the moratorium, not a sure thing, Dugan will likely be in his mid- to late-60s before he faces a trip to the gallows. If he's still alive. National Center for Health Statistics tables show that average life expectancy for white men born in the mid-'50s is roughly 68; life expectancy for prisoners is 64, according to a ballpark estimate by the Texas Criminal Justice Policy Council. For no practical purpose other than the chance to shave a few pathetic years off an evil man's life, Birkett appears willing to spend an untold fortune in taxpayer dollars and preparing for a sensational trial that's bound to rip the scab off a civic wound that a plea bargain would begin to heal. This objection is not about the death penalty. It's about an excess of symbolism and a lack of substance. It's about directing scarce resources where they can make a difference instead of where they can make a point. I pressed him on this issue Monday during a meeting he had with Tribune editors, reporters and members of the editorial board. He asked that all his remarks during that meeting be kept secret until Dugan is indicted, and of course I'll respect that request. But in the hallway afterward I asked him for an on-the-record response to the suggestion that this zeal for capital justice is wasteful and futile. "I respectfully disagree with you. We're pursuing this case for the right reasons," was all he would say. Fair enough. Respectful disagreements all around. (source: Column, Eric Zorn, Chicago Tribune) OHIO: U.S. magistrate to hear claims of unfair trial ---- Conviction fought in child slaying Jeffrey Wogenstahl will get a chance later this year to prove that prosecutors cheated him out of a fair trial when he was convicted in 1993 of killing 10-year-old Amber Garrett. A federal magistrate has agreed to hear evidence in December about Wogenstahl's claims that prosecutors mishandled his case, hid evidence and allowed a witness to give false testimony. Prosecutors, though, say Wogenstahl's lawyers are wasting time on irrelevant issues to spare Wogenstahl a death sentence. They also argue that Wogenstahl's own appeals have brought to light evidence that further implicates him in Garrett's beating and stabbing death in 1991. Most important, they say, is a DNA test on a speck of blood found in Wogenstahl's car. Although requested by Wogenstahl, the DNA test came back as a match for Garrett's blood. "All doubt, if you even had any in the first place, is removed with this," Hamilton County Prosecutor Joe Deters said of the DNA test. "The issue now isn't whether he did it or not." But U.S. District Court Magistrate Michael Merz decided last week to consider the issues raised by Wogenstahl at an evidentiary hearing in December. "It's important because it's our opportunity to persuade the court that his constitutional rights were violated," said Timothy Payne, one of Wogenstahl's lawyers. "We think the evidence of misconduct is very strong." Wogenstahl claims prosecutors withheld forensic reports from his trial lawyers and failed to disclose evidence that a key witness had lied about using drugs. He also claims his own lawyers failed to prepare a key witness, which led to testimony that hurt his case. If Merz agrees that the evidence supports Wogenstahl's claims - and that it prevented him from getting a fair trial - he could recommend that a federal judge grant the death row inmate a new trial. State appeals courts, including the Ohio Supreme Court, have upheld Wogenstahl's conviction, but they also have criticized prosecutors' conduct. In 1996, the Supreme Court said prosecutors made inappropriate comments during closing arguments when they encouraged jurors to imagine what Garrett was thinking as she died. Deters, who tried the case, said Wogenstahl's claims do not change what he and at least one state appeals court have described as "overwhelming" evidence of guilt. He noted that the DNA test, which was done at Wogenstahl's request in 2001, concluded that there was no better than a one in 30 trillion chance that the blood in Wogenstahl's car came from someone other than Garrett or a relative. "He kidnapped and murdered a 10-year-old girl," Deters said. "And here we stand in 2005, and the prosecution is on trial. It really is outrageous." Wogenstahl was accused of abducting Garrett from her home after tricking her brother, who was baby-sitting, into leaving. Prosecutors say he later beat and stabbed the girl in the front seat of his car and dumped her body. Payne said he has concerns about the DNA testing process and whether the evidence tested was planted or contaminated. He also argues that the prosecution's conduct raises doubts about the fairness of the entire trial. "If the prosecutor is not playing by the rules," Payne said, "it really taints the integrity of the whole process." (source: Cincinnati Enquirer)
