[Deathpenalty]death penalty news----TEXAS, PENN., CALIF., LA.

[Rick Halperin]

Dec. 8


TEXAS:

WITNESS CONTENDS LEWIS IS RETARDED


A mental retardation expert testified Tuesday that a death row inmate is
mentally retarded while his attorneys contend he should not be executed.

Defense witnesses testified during the second day of Rickey Lynn Lewis'
writ of habeas corpus hearing.

The defendant was convicted and twice sentenced to die for the Sept. 17,
1990, shooting death of George Newman during a burglary. He was also found
guilty of sexually assaulting the victim's common-law wife, Connie Hilton.

In a mental retardation claim, the burden of proof is on the defense since
the state has already proven its case in the guilt/innocence phase. If
defense attorney Mike Charlton, of New Mexico, proves Lewis is mentally
retarded, his death sentence will be commuted to life in prison.

Dr. Richard Garnett, licensed counselor and mental retardation expert from
Fort Worth, testified that Lewis, 42, was mentally retarded.

He said he reviewed 1,800 pages of documents provided by the defense,
including school records, affidavits from teachers, family and friends,
and reports from doctors who examined Lewis. Garnett did not administer
any tests to the defendant and met with him for 20 minutes, he added.

Garnett said some people try to cloak their mental retardation and try to
pass themselves as normal. People with mental retardation are sometimes
able to articulate and express themselves, as Lewis did in a federal civil
hearing.

He did not believe Lewis understood what he was telling the federal judge,
he said.

Garnett said there is a general perception that mentally retarded people
are "disabled across the board" but, in reality, they can live by
themselves, hold down jobs and improve their ability to cope.

He said there is just as much variety to people with mental retardation
and their capabilities as there are with people with IQ's of 100. And some
people have learning disabilities and are not mentally retarded.

Lewis' good memory, recalling specific childhood events, does not discount
mental retardation and is not significant, he said.

Garnett said the planning of Lewis' crimes, shooting Newman and the dog
and covering Ms. Hilton's face with a towel while he raped her, as well as
selling the victims' property after the killing, was also not significant
and could be an indication of developmental changes or learning.

"The crime itself is not consistent with MR (mental retardation) because
people with MR usually wind up as victims of crime instead of as the
perpetrators," he said.

But, he added, he did not look at the facts of the crime to make his
diagnosis.

Adaptive deficits can be caused by domestic abuse or alcohol and drug
abuse by a mother before giving birth. They can also be caused postnatal
by drug or inhalant abuse, poverty or domestic abuse.

He indicated that adaptive testing could not properly be administered to
death row inmates because they are confined in a cell for 23 hours a day.

The doctor said Lewis portrayed he was goal directed in some childhood
instances, like shooting his father in order to protect his mother from
further beating. Lewis hid the shotgun shell he used during a previous
beating.

Garnett said there were several mistakes made with the scoring and testing
performed on Lewis by Dr. Susana Rosin, a psychologist hired by the state.
Her tests concluded that Lewis' IQ was 79 while doctors hired by the
defense determined his IQ was 59. He said her tests were compromised but
he could not say they were invalid.

Smith County District Attorney Matt Bingham said Lewis was moved from the
St. Louis school, for special needs children, in seventh grade because he
scored an IQ of 80.

Garnett said he was not provided with the information but would give that
test score the same weight as the test administered to Lewis in the 2nd
grade, which determined his placement at the St. Louis School.

Garnett said Lewis dropped out of an engineering school after students
picked on him.

He said it was unnecessary for him to test Lewis because of the
significant amount of information provided by defense attorneys.

DANGEROUS TESTIMONY

An inmate serving 2 life sentences in the Allred Unit in Whichita County
for murders testified on Lewis' behalf Tuesday. Four officers and two
police dogs were needed to transport the inmate, who was shackled. While
he testified, a Texas Department of Public Safety helicopter hovered over
the courthouse, the judge removed any items from the courtroom that could
be used as weapons, no one was allowed to stand while he was in court and,
during most of his testimony, there were 11 sheriff deputies in the room.

Deral Mack Couey testified that he became friends with Lewis when they
were both imprisoned in Anderson County in 1985. They were jailed together
again twice over the years.

Couey, who said he was somewhat of a "jailhouse lawyer," testified that he
explained things to Lewis, taught him legal terms and helped him prepare
written motions for civil proceedings.

He had to repeatedly explain the simplest of facts to Lewis and never
observed Lewis reading anything without having questions, he said.

Couey said he tried to "prep" and encourage Lewis for a pre-trial hearing
in federal court concerning a civil lawsuit Lewis claimed pro se.

Couey pleaded guilty to two first-degree felony murders for starting a
house fire in which two of his friends died. He said he has used various
drugs in and out of prison since he was a teenager and has been "tagged"
as a leader or member of a white supremacist gang in prison.

Couey admitted that he could be placing himself in jeopardy in the gang
for testifying for Lewis, who is black. He said he helped Lewis because he
was a caring person.

The defense told 114th District Judge Cynthia Stevens Kent to cancel bench
warrants of three inmates, indicating they would not call them to testify
as originally planned.

The writ hearing is scheduled to continue with Garnett's testimony on
Wednesday.

(source: Tyler Morning Telegraph )

**********************

Man Faces Murder Charge In Death Of Friend's Mother----Police Suspect
Robbery Was Motive


A 19-year-old man was placed behind bars Tuesday after police said that he
confessed to killing his friend's mother inside her southwest Houston
apartment, Local 2 reported.

Marcus Edward Gay was charged with capital murder Tuesday in Doris
Sergent's death.

Sergent's son found her body, beaten and stabbed, inside her apartment on
South Gessner near Braeswood Friday night.

Investigators said Gay was quickly singled out as a possible suspect
because he was reportedly at the apartment waiting for the mother's son to
return.

Police believe robbery was the motive behind the killing.

If convicted, Gay could receive the death penalty.

(source: Click2Houston.com)






PENNSYLVANIA:

Judge sets hearing Dec. 14 to set Banks' competency hearing


2 issues will be addressed when the Luzerne County Court of Common Pleas
conducts a competency hearing for mass murderer George Banks.

The first involves whether Banks, 62, is mentally sane to be put to death
by lethal injection for the 1982 shooting spree that killed 13 people,
including 5 of his own children, in Wilkes-Barre and Jenkins Township.

The 2nd involves Banks' competency to determine if he is mentally stable
to initiate clemency proceedings with the state Board of Pardons or have
someone designated on his behalf.

Attorney Albert J. Flora Jr., who has been representing Banks since 1982,
claims Banks suffers from several mental illnesses and is unable to make
rational decisions about his case. Petitions filed by Flora and the
Federal Public Defender Association of Philadelphia listed Banks' mother,
Mary Yelland, as "next friend petitioner" due to his mental state of mind.

Luzerne County President Judge Michael Conahan is set to meet with Flora
and the district attorney's office on Tuesday, Dec. 14, at 9:45 a.m. to
schedule the competency hearing.

Less than 29 hours before Banks was scheduled to die by lethal injection
at 7 p.m. on Dec. 2, the state Supreme Court granted a stay of execution.

The appellate court sent the case back to Luzerne County Court to hold a
competency hearing expeditiously in accordance with the 1986 U.S. Supreme
Court case Ford vs. Wainwright, which banned the execution of the mentally
retarded.

On Dec. 3, the state Supreme Court compelled Luzerne County Court to
consider, in context with the competency hearing, whether Banks has the
mental capacity to initiate clemency proceedings or to have someone
designated.

"We had filed a separate action with the state Supreme Court whether Mr.
Banks is competent or have someone else file for clemency," Flora said.
"The state Supreme Court had denied that direct filing."

Banks' defense lawyers also filed a clemency petition with the state
Commonwealth Court, seeking permission to have Yelland initiate clemency
proceedings despite missing the 10-day opportunity after Gov. Ed Rendell
signed Banks' death warrant on Oct. 5.

Under procedures with the state Board of Pardons, only the defendant can
file for clemency, not a 2nd party.

Banks' lawyers claimed Banks was denied access to clemency review because
he is not competent to ask for such a review.

His attorneys also claimed a seat on the Board of Pardons reserved for a
psychiatrist or psychologist is vacant. A psychiatrist or psychologist
would have the knowledge to explain to other board members about Banks'
infirmities.

On Nov 30, 2 days before Banks was scheduled to die, Commonwealth Court
Judge Bonnie Brigance Leadbetter did not rule on the clemency permission
request but issued a temporary stay of execution that was dependent upon
an appeal filed the same day to the state Supreme Court.

Banks' lawyers successfully appealed Judge Conahan's order of Nov. 29 to
the state Supreme Court. That order denied Banks' a stay of execution
under the Post Conviction Relief Act.

Coincidentally, the state Supreme Court on Nov. 30 rejected Banks'
petition for a stay of execution that claimed he is mentally ill and
should not be put to death.

"What the state courts did was send the case back to Luzerne County to
determine both issues," Flora said.

Carol Crane, spokeswoman for the district attorney's office, said
prosecutors are preparing for the competency hearing.

(source: The Citizens Voice)






CALIFORNIA:

Justice isn't about healing wounds


As the Scott Peterson case makes painfully clear, we want trials to be
held in a courtroom, not a therapist's office

Somebody call me when the Scott Peterson trial ends. How long should it
take to hand out punishment to this wife-and-baby-killer, one of the most
obviously guilty defendants of our time?

The wheels of justice are being slowed by the counterproductive custom of
victim-impact statements.

This has nothing to do with victim advocacy. We should all feel empathy
for crime victims who find their losses aggravated by the added
frustration of slogging through a system that ignores them and often
coddles defendants.

But at trial, with the matter of guilt or innocence settled, and the
matter of punishment before the jury, do we really need emotional extremes
spread so thickly by the defendant's supporters and detractors?

Most people enjoy the moments when some grieving relative gets to scream
at the monster who killed a cherished loved one. I understand; I'd like
that chance myself if I were granted a public moment to stare down whoever
killed my wife/parent/sibling. But if I were in that position, it would
not be the job of our justice system to provide me with a cathartic
release.

It is the job of our system to find and punish wrongdoers. Seeing justice
done is what should heal our wounds.

Scott Peterson has been found guilty, and he will be punished. He may get
life in prison or enjoy the relative safety of California's laughable
death penalty. But whatever happens to him, it will be decided only after
this days-long assault on our sensibilities drags to a close.

Today's witness list may well contain a girl he tipped with extra
generosity at Pro Cuts in 1988. I'm kidding, of course, but the testimony
has at times approached such irrelevancy.

Marvin Threatt, dean of students when Mr. Peterson was in high school,
said Monday the convicted murderer was eager to volunteer for charities
and was always punctual.

Well, stop right there. How wrong I've been. Sure, he murdered his
pregnant wife, snuffing out the life of his unborn son in the process, but
hey, if he made it to school on time, we may have to rethink this whole
thing.

Testimony for and against Mr. Peterson has meandered for more than a week.
At least when it began, it featured the more palatable notion of Laci
Peterson's mother lashing out at her former son-in-law from the witness
stand.

Even the sheriff's deputies wiped tears away that day, proving that the
pro-punishment angle of victim-impact statements also presents enormous
problems.

The concept is supposed to be that all this victim-impact rigmarole gives
judges and juries valuable perspective for or against a defendant as
sentencing hangs in the balance.

But the witnesses arguing to spare most defendants say things that are
often absurdly irrelevant, and those arguing to send them to death row
pose an even more uncomfortable dilemma with their heart-rending stories.

Some murder victims will leave behind a long line of articulate,
passionate grieving relatives, primed to deliver powerful performances
that could make a jury want to tie down and lethally inject the defendant
on the courtroom floor right then and there.

But what of those victims who lived more solitary or downtrodden lives,
with few or no witnesses ready to stoke the tear ducts of a courtroom
audience? Are their lives worth less? Are the people who kill vagrants to
be spared the sting of the needle for lack of hanky-grabbing memories of
missed Father's Days, birthdays and Christmases?

This is simply wrong. Juries should convict if the evidence supports it.
Sentences should be meted out on the same criteria. Victim-impact
statements might make a few people feel better, but we should derive our
satisfaction from justice properly dispensed.

That comes from cool heads focusing on the facts of each case, not from
trumped-up drama that may distract from those facts.

(source: Viewpoints; Dallas Morning News -- The Mark Davis Show airs from
9 a.m. to noon weekdays on WBAP News/Talk 820)

***************************

For Peterson jury, lives likely changed forever


They were ordinary people - including a banker, a doctor, a teacher -
engaged in the mundane activities of daily life.

Then Scott Peterson entered their world.

Out of 1,600 prospective jurors, they were selected to serve in a trial
that has riveted the nation and places one man's future in their hands.

As early as Thursday, more than six months after lawyers delivered their
opening remarks in the case, jurors in Redwood City will begin discussing
whether the Modesto fertilizer salesman should die for murdering his wife,
Laci, and unborn son, Conner, or spend the rest of his days in prison.

Whatever decision they make, their lives likely will be changed, said
lawyers, jury specialists and former jurors who have been involved in
capital cases.

"The things that we saw, and the testimony that we heard, and the decision
that we made, that's something I'm going to have to live with forever,"
said Dennis Bowman, a member of the jury that recommended the death
penalty for John Allen Muhammad, the mastermind of the sniper shootings
that terrorized the East Coast in 2002.

Bowman, 53, a hardware store clerk and bicycle mechanic in Virginia Beach,
Va., supports the death penalty and believes he and his fellow jurors made
the right decision.

"But I don't necessarily feel good that I voted to take another man's
life," he said. "I still wrestle with it. I still think about it. I dream
about it once in a while. I never would have thought I could feel this way
about serving on a jury."

Such anxiety is common among people who take part in capital cases, said
Toni Blake, a San Diego jury consultant who has been involved in 17
death-penalty trials.

"There is so much emotion, because you can't take back a death sentence,"
Blake said. "Most people have no idea how profoundly they are affected by
having to make this kind of decision, whether they believe in 'an eye for
an eye' or not."

Jurors often weep while delivering their verdicts in the penalty phases of
capital trials, Blake and others said. Headaches, gastrointestinal
distress, insomnia and other minor health problems often crop up just
before and during deliberations. One of Blake's jurors in a recent capital
case suffered from multiple sclerosis, and the stress of the trial
aggravated the condition. "They practically had to carry her out of there
when it was all over," she recalled.

"Deliberations on the death penalty are really hard on the jury," Blake
said. "There is usually a pretty good fight if the jury has been picked
correctly. They're beaten up emotionally at the end of the day."

A small percentage of people "can just dust themselves off, pick
themselves up and walk away" after serving on a capital case, said Robert
Gordon, a Dallas psychologist and lawyer who is a nationally recognized
expert on juries. "But that's pretty hard to do, especially when you're
confronted with the second jury, the jury of public opinion" in a
high-profile trial like Peterson's.

"In a case like Scott Peterson's, the jurors are definitely going to be
judged, no matter what they decide."

The 12 panelists in the Peterson case have been together since jury
selection began in March. The original panel consisted of six women and
six men, ranging from their 20s to their 60s. They included a high school
coach, a former airport security screener, a doctor and a retired utility
worker. 3 jurors have been replaced with alternates since testimony began
June 1.

The jurors have had to digest complex medical and scientific information,
and look at ghastly photos of Laci Peterson's decomposing body, which was
found in the San Francisco Bay 4 months after she disappeared from her
Modesto home on Dec. 24, 2002.

Last month, under a national media microscope, the panel convicted Scott
Peterson, 32, of murder in the deaths of his 27-year-old wife and unborn
son. Since then, the jurors have been listening to wrenching testimony
from Laci Peterson's grieving family members, and pleas from Scott
Peterson's friends and relatives to spare his life.

"It brings back memories," said Susan Schriever, 47, who sat on the jury
that found Lee Boyd Malvo guilty of being the shooter in at least one of
the 10 East Coast sniper killings, the death of Linda Franklin. "I feel
sorry for everyone involved in the Peterson trial, especially the jurors."

Schriever, a nurse from Chesapeake, Va., originally argued for death for
Malvo, who was 17 at the time of the shootings, but the panel ultimately
recommended life imprisonment. Deliberations in the penalty phase were
tense, and ultimately those who favored death "just threw in the towel,"
Schriever said.

"The testimony of the families of those victims was beyond a doubt the
saddest thing I have ever seen," she said. "It had a huge impact on me.
There were tissues beneath each juror's chair and everyone used them.
Reporters and deputies were crying.

"When we walked into that courtroom for the verdict, I just put my hands
in my face and I sobbed through the whole thing. I was devastated for the
families. I felt we had reached the wrong conclusion. Even a year later, I
feel terrible about it."

Jury selection may be the single most important part of a capital trial,
said Gordon, who has worked for prosecutors and defense lawyers in picking
panelists.

Jurors must be "death qualified," meaning that even if they oppose capital
punishment in principle they must be willing to impose it if the evidence
justifies it.

Sacramento attorney Donald Heller, a former prosecutor who now represents
criminal defendants, said the process tends to favor the state.

"You end up excluding people who have a conscientious objection to capital
punishment," but including people who are staunchly in favor of the death
penalty, he said.

"But I am absolutely a believer in the jury system, even though it's not
perfect," Heller said. "Once jurors have been sworn, they take their roles
very seriously. They usually do the right thing."

(source: Sacramento Bee)

***************************

Execution case will likely spur 'retarded' definition


2 years after the U.S. Supreme Court ruled it was unconstitutionally cruel
and unusual to execute retarded murderers, California's high court began
weighing who should live or die on the nation's largest death row.

The nation's highest court left it to the states to define what
constitutes retardation, paving the way for new laws and court challenges
in the more than 2 dozen states that did not outlaw the practice.
California lawmakers last year adopted a ban on such punishment for the
mentally infirm, but state prosecutors fear California's entire death row
population -- about 650 inmates -- may claim it is retarded unless the
court sets limits.

The issue was argued before the California Supreme Court on Tuesday as the
justices weighed the fate of a Los Angeles gang member condemned for
killing 2 rivals in 1982. State prosecutors said the defendant, Anderson
Hawthorne, who could not recite the alphabet as a school-age boy, is close
to being retarded but should die in what has become the state's 1st
test-case that is expected to set ground rules for condemned inmates who
claim they should be spared.

Deputy Attorney General Robert Henry urged the 7 justices to rewrite
California's new law defining "mentally retarded" as a "significant
sub-average general intellectual functioning" with "deficits in adaptive
behavior." With no clear standard, he said, everybody on the nation's
largest death row will claim they are retarded.

(source: Associated Press)

******************

Contradictory Theories Draw Calif. Justices' Scorn


Bringing killers to justice is one thing, but doing so by knowingly
presenting false evidence is another.

That seemed to sum up the feelings of the California Supreme Court on
Tuesday during oral arguments in a case in which a Los Angeles County
prosecutor is accused of arguing contradictory theories in separate trials
in order to win death sentences against 2 men.

Deputy DA Steven Ipsen had argued that each of 2 former Soviet soldiers
struck the fatal hatchet blow that killed a woman in her North Hollywood
home 16 years ago.

"Is that possible -- that they both could have delivered those blows?"
Justice Ming Chin asked L.A.-based Deputy Attorney General Michael Keller,
acting as co-counsel with L.A. County Deputy DA Hyman Sisman.

Chief Justice Ronald George weighed in by saying that Ipsen won conviction
in both cases by hammering home his allegation that each man was the
actual killer.

"We're talking about the critical factor at trial," he said. "The question
is, who merits the death penalty and who doesn't?"

The case was argued in an auditorium at the Joan B. Kroc Institute of
Peace & Justice during a special session honoring the 50th anniversary of
the University of San Diego School of Law. Security at the institute was
tight, with a heavy police presence, a metal detector and bomb-sniffing
dogs.

More than 1,000 high school and college students watched the argument
either in person, by video in adjacent rooms or in classrooms via the
California Channel. What the kids heard were arguments concerning an
especially grisly killing -- one that Justice Marvin Baxter called "a
horrendous murder, as bad as any I've ever seen."

The case centered on Peter Sakarias and Tauno Waidla, who were sentenced
to death for murdering Viivi Piirisild, an Estonian-American woman who had
tried to help the two young men adjust to life in the United States after
they escaped the Soviet Army. The relationship eventually soured, and
Sakarias and Waidla ambushed Piirisild at her home. She died from several
stab wounds and three chopping wounds from a hatchet. There was testimony
that the life-ending blow cut off the top of her head.

At the 1st of 2 separate court trials, Ipsen, who's also a State Bar
governor, argued that Waidla struck the death blow with the hatchet during
the initial attack in the woman's living room. But in a subsequent trial,
he argued that Sakarias had inflicted the mortal wound after dragging the
victim into her bedroom.

After an evidentiary hearing ordered by the Supreme Court, a Los Angeles
County Superior Court judge found that Ipsen had deliberately -- and
inappropriately -- argued inconsistent theories in order to secure death
sentences in both cases.

The AG's and DA's offices have argued that prosecutors are entitled to
rely on mutually exclusive theories at related trials as long as both are
consistent with the physical evidence and the prosecutor doesn't have
reason to believe either is untrue. It was impossible, they argued
Tuesday, for Ipsen to really know exactly who dealt the final murderous
hit.

That logic didn't fare well on Tuesday. "If something's impossible," Chief
Justice George asked, "is that the equivalent of knowing something is
false?"

Justice Kathryn Mickle Werdegar asked whether a prosecutor is "authorized
to manipulate the evidence at each trial?"

According to court records, Ipsen had left out evidence at the second
trial that might have helped Sakarias. But Deputy AG Keller said there is
a distinction between omitting evidence and presenting false evidence.

Justice Carlos Moreno asked what the prosecutor would have done if the
trials hadn't been held separately. Keller said he should have focused on
the most culpable defendant, but sought the death penalty for both because
each had a hand in the crime.

"So," Moreno asked, "why couldn't he have argued that in the separate
trials?"

Keller and Deputy DA Sisman seemed cornered at every move. When Sisman
noted that Waidla was tried separately because of security concerns about
Sakarias, the chief justice said Ipsen apparently "took advantage" of the
separate trials to present inconsistent facts.

When Sisman indicated that Ipsen had engaged in "hyperbole" by referring
to an actual death blow -- something that was unknowable in fact --
Justice Chin pointed out that prosecutors still tried to saddle both men
with the murder. "You see nothing wrong with that?" he asked.

The court's reaction, however, doesn't necessarily mean that both men will
get new trials or reduced sentences. The inconsistent theory didn't arise
until the second trial, Justice Joyce Kennard told L.A.-based federal
Public Defender Sean Kennedy, who represented Waidla, so the court could
reach different conclusions for each man.

Sakarias was represented by San Francisco lawyer Cliff Gardner.

The cases are In re Sakarias, S082299, and In re Waidla, S102401. The
court has 90 days in which to rule.

Later in the day, the high court tackled a case that has gone from a
scintillating fight over a man and woman's e-mail attack against their
former employer to a soul-draining discussion over a narrow issue
regarding appellate procedure.

Michelangelo Delfino, who was fired from Varian Medical Systems in 1998,
and his friend Mary Day, who resigned 2 months later, were sued after
posting dozens of negative Internet messages about Varian and some of its
executives. Delfino and Day eventually filed an anti-SLAPP motion --
strategic lawsuit against public participation -- claiming that the
company was trying to impede their speech.

The trial court denied the motion, as did the appeal court. A jury later
awarded Varian $775,000.

Delfino and Day argued that the judgment couldn't stand, claiming that
their first appeal of the denial of their anti-SLAPP motion should have
stayed all proceedings. San Jose's 6th District Court of Appeal disagreed,
despite a 2002 2nd District decision - Mattel v. Luce, Forward, Hamilton &
Scripps, 99 Cal.App.4th 1179 - saying just the opposite.

On Tuesday, Joyce Kennard was the only justice who posed multiple
questions. She seemed to have problems with the 6th District ruling,
pointing out that the plain language of the anti-SLAPP statute seems to
imply an automatic stay of all trial court proceedings when an anti-SLAPP
motion is appealed.

Menlo Park lawyer Lynne Hermle, who represented Varian, argued that such a
ruling would result in reams of frivolous appeals aimed at simply stalling
the process. She also argued that the state Legislature originally
included an automatic stay in the anti-SLAPP statute, but pulled it before
putting the statute into law.

"That," she said, "is the clear statement of the legislative intent."

Delfino and Day were represented by Jeremy Rosen, of Encino's Horvitz &
Levy. The case is Varian Medical Systems v. Delfino, S121400.

(source: The Recorder)






LOUISIANA:

Jailed judge facing new accusation----Bodenheimer to be questioned on
alleged misconduct as DA


Former Judge Ronald Bodenheimer, who is serving time in a federal prison
in Alabama, will return to a Jefferson Parish courtroom to be questioned
about allegations of misconduct in a murder case he prosecuted in 1994.

The case landed a Kenner man on death row and earned Bodenheimer a hefty
commission representing the victim's family in an insurance claim.

Manuel Ortiz, 46, is seeking a new trial based on alleged prosecutorial
misconduct by Bodenheimer and a woman's claim that her boyfriend confessed
to the crime on his death bed.

Bodenheimer prosecuted Ortiz in the deaths of his wife, Tracie Williams
Ortiz, and her friend Cheryl Mallory. The 2 women were killed in 1992 at a
Kenner condominium complex.

Bodenheimer was sentenced this year to 46 months in prison on federal
racketeering charges stemming from crimes while he was a state judge. His
attorney says Bodenheimer will return to Gretna, but will take the Fifth
Amendment, which protects him against self-incrimination.

Manuel Ortiz's defense attorney, Nick Trenticosta, said Bodenhiemer is
guilty of prosecutorial misconduct because he represented Tracie Williams
Ortiz's family in a settlement with New York Life, earning fees of
$225,000. That conflict gave Bodenheimer a special interest in obtaining a
conviction against Ortiz, Trenticosta said.

Bodenheimer's attorney, Eddie Castaing, objected to bringing Bodenheimer
to the 24th Judicial District Court, saying Bodenheimer is still suffering
ill health from a heart attack in July and triple-bypass surgery in
August.

However, retired Judge Jerome Winsberg ordered Jefferson Parish deputies
to drive to Montgomery, Ala., today and bring him to the hearing. Winsberg
said it may be Wednesday before Bodenheimer takes the stand because of the
distance from Montgomery.

Trenticosta said he wants to show that Bodenheimer made a special effort
to keep witness Carlos Saavedra out of jail so that Saavedra could testify
against Ortiz, although the FBI wanted to book Saavedra with murder in an
unrelated case.

During the trial in 1994, Saavedra testified that Ortiz had offered him
$70,000 to kill Williams Ortiz, who was heavily insured. Saavedra
testified that he told Ortiz he wanted to bring a third man in on the
crime, who Saavedra said would have been an undercover agent. But he said
Ortiz balked, saying he would find someone else to do the killing. Ortiz
was in his native El Salvador at the time of the murders.

If Bodenheimer refuses to answer questions, "his silence" about his
actions during the Ortiz trial should provide "a favorable inference" that
prosecutorial misconduct was committed, Trenticosta said.

A woman who said she lived with Saavedra in Honduras from 1997 until his
death in 2000 said Saavedra told her a few days before he died of heart,
kidney and diabetes problems that he had killed two American women. He
said he committed the crime because he wanted "vengeance" against Ortiz,
who had cheated him in a business deal.

"I know he was telling me the truth because he was crying," said the
woman, who identified herself as an attorney and who testified through an
interpreter under an assumed name.

She also said Saavedra told her he was paid to testify against Ortiz.
Under cross-examination by prosecutor Terry Boudreaux, the woman said she
didn't know if the money was for the testimony or for expenses incurred in
getting to the trial.

"And you told no one about this until Mr. Ortiz's attorneys showed up?"
Boudreaux asked. "Si," she replied.

Although Saavedra was a "good husband," putting her through law school, he
was involved with Honduran army death squads that dealt with political
dissenters, she said.

Winsberg was appointed by the state Supreme Court to preside over the
hearing because the 24th Judicial District's judges recused themselves
from hearing the matter involving their former colleague.

The hearing will resume today at 10 a.m.

(source: Times-Picayune)