New sentencing denied by judge

Death-row inmate claimed earlier counsel inadequate

A federal judge on Tuesday refused to reopen deathrow inmate Danny Lee’s claim that he is entitled to a new sentencing hearing because his lawyers in his 1999 murder and racketeering trial didn’t adequately represent him.

Lee, of Yukon, Okla., was convicted in 1999 along with Chevie Kehoe of Colville, Wash., of three counts of murder in aid of racketeering, among other charges, for the 1996 deaths of Tilly gun dealer Bill Mueller; his wife, Nancy Mueller; and her 8-year-old daughter, Sarah Powell.

The family members had been missing for several weeks when their bodies were found in the Illinois Bayou near Russellville. They had plastic bags tightly duct-taped around their heads and had been thrown into the water attached to heavy rocks to prevent them from surfacing.

On Jan. 31, U.S. District Judge Leon Holmes, to whom the case was assigned after the retirement of the trial judge, U.S. District Judge G. Thomas Eisele, heard about two hours of oral arguments from Lee’s newest attorneys in Delaware and an attorney with the U.S. Justice Department.

Lee contended that his trial attorneys and other attorneys who represented him in earlier post-conviction proceedings deprived him of his rights by failing to adequately challenge testimony thatprosecutors elicited from a defense witness during the trial’s penalty phase.

The testimony that Lee was a psychopath who could prove dangerous to others in prison was among the reasons jurors cited for sentencing him to death after they had, in a separate hearing, sentenced Kehoe to life in prison.

Lee’s latest petition argued that a psychological test discussed during his sentencing phase, and used by prosecutors to persuade jurors that he was a psychopath who would present a danger to others behind bars, has since been deemed “junk science.”

Lee had previously raised the issue of ineffective assistance of counsel, which the government argued prevented him from bringing a second petition without authorization from the 8th U.S.Circuit Court of Appeals, based in St. Louis.

His newest attorneys argued that they weren’t reasserting a claim that had already been raised. They said they were instead asserting his previous lawyers’ deficiency to allow previously “foreclosed” evidence to be presented.

But in an 11-page order filed Tuesday, Holmes agreed with the government, saying Lee’s request for relief constituted “a second or successive habeas petition” under the claim of ineffectiveness of counsel, “for which Lee needs but has not obtained authorization from the Eighth Circuit.”

Northwest Arkansas, Pages 18 on 03/23/2014

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