U.S. judge considers killer’s bid for rehearing

Sunday, February 2, 2014

U.S. District Judge Leon Holmes heard about two hours’ worth of oral arguments Friday on whether federal death-row inmate Danny Lee is entitled to a new sentencing hearing because of testimony at his trial claiming he was a psychopath and could pose a danger to others in prison unless sentenced to death.

Lee contends that attorneys who represented him during his 1999 trial in Little Rock, and other attorneys who represented him in post-conviction proceedings, both failed to adequately challenge the testimony that federal prosecutors elicited from a defense witness, psychologist Dr. Mark Cunningham.

Lee of Yukon, Okla., and Chevie Kehoe of Colville, Wash., both now 40, were jointly convicted in 1999 of racketeering and murder in aid of racketeering for carrying out a cross-country crime rampage that included the deaths of a Pope County family.

Prosecutors said the men were white supremacists on a mission to establish a whites-only nation in the Pacific northwest with the aid of a large cache of weapons, ammunition and cash stolen from Bill Mueller, a Pope County gun dealer who shared many of their anti- government sentiments.

The men’s joint trial,followed by separate sentencing hearings, took place before U.S. District Judge G. Thomas Eisele, who has since retired, prompting transfer of the case to Holmes.

Eisele initially threw out Lee’s death sentence, agreeing that on hindsight, he shouldn’t have allowed the government’s cross-examination of Cunningham to go as far as it did, and saying the testimony was prejudicial and deprived Lee of a fair sentencing hearing. Eisele was later overturned by the 8th U.S. Circuit Court of Appeals, which said a considerable amount of leeway was allowed during death-penalty sentencing hearings and that Eisele was right to permit the testimony. The 8th Circuit ordered the death sentence reinstated.

Kehoe is serving life without parole. He was considered the leader of the operation andsuffocated Mueller’s 8-year-old stepdaughter after Lee couldn’t do it, according to the testimony of Kehoe’s mother who cited the men’s confessions to her.

Jurors weighed aggravating and mitigating factors to decide between life or death for each defendant. They found in Kehoe’s case that mitigating factors - such as kindness, intelligence and artistic ability that he displayed before he was forcibly indoctrinated by his parents - outweighed aggravating factors that they also found were proved - such as that the murders were committed for financial gain and that the child was a particularly vulnerable victim.

Unlike Kehoe, Lee had a criminal record that included his involvement in an earlier murder in which he severely beat a man and forced him down a manhole into a storm sewer, then handed a knife to his cousin who repeatedly stabbed the man and slit his throat. Jurors also heard testimony from a female jailer who said Lee had a quick temper and had threatened during his trial to kill her for not letting him out of his cell to talk to his lawyer.

Although defense attorneys called Cunningham to the stand during the trial to testify about Lee’s psychological trauma growing up, the psychologist acknowledged during cross-examination by prosecutors that Lee presented a serious risk to the community and went on to discuss his history of violence and impulsiveness. Prosecutors also were able to elicit testimony about Lee being a psychopath.

Lee’s attorneys objected at the time, and Eisele later wrote that he should have stopped the testimony before it went too far.

Lee’s latest attorneys contend that a psychological test discussed at trial, and used by prosecutors to persuade jurors thatLee was a psychopath who would remain forever dangerous to other prisoners, has since been deemed “junk science.”

Defense attorney Karl Schwartz of Wilmington, Del., is asking Holmes to issue an “indicative ruling” that if the 8th Circuit remands Lee’s case to the district court level, Holmes would grant Lee’s request for a new sentencing hearing.

But attorney John Pellettieri, representing the Department of Justice, argued Friday that Holmes no longer has jurisdiction of the case, and even if he did, the issue has already been litigated, and the law restricts the number of times a death-row inmate can raise the issue, with Lee having used up his chances already.

Schwartz argued, “We are not reasserting a claim. We are asserting prior counsel’s deficiency - so evidence that was [previously] foreclosed can be presented.”

“We urge the court to give Mr. Lee a chance” Schwartz said.

Lee wasn’t present at Friday’s hearing, and Holmes told attorneys after hearing the arguments that he would take the matter under advisement. Holmes said he planned to study the matter and will issue a ruling “in due course,” but that he didn’t know how long it would take.

Northwest Arkansas, Pages 13 on 02/02/2014