A recent motion to vacate Daniel Lewis Lee's 1999 conviction and death sentence in the 1996 slayings of a Pope County family should be dismissed for jurisdictional reasons, attorneys for the U.S. Department of Justice argued in a 53-page response filed Monday.
Lee, now 45, of Yukon, Okla., was convicted alongside Chevie Kehoe, also now 45, of Colville, Wash., on numerous charges related to a cross-country crime rampage that federal prosecutors said was aimed at promoting and financing the establishment of a whites-only nation in the Pacific Northwest.
The most significant convictions were for three counts each of murder in aid of racketeering, related to the slayings on Jan. 11, 1996, of gun dealer Bill Mueller, 53; his wife, Nancy, 28; and her 8-year-old daughter, Sarah Powell, who lived in the small community of Tilly near the Pope/Searcy county line.
In a two-month trial held in a federal courtroom in Little Rock, prosecutors said Kehoe and Lee targeted the Muellers to steal about $30,000 in weapons and about $50,000 in cash that Mueller, who didn't believe in banks, kept on the property. A jury found that Kehoe and Lee, dressed as federal agents, surprised the Muellers in their home and forced each of them to place plastic trash bags over their heads. The men then used stun-guns to render each victim helpless, and sealed the bags with duct tape to asphyxiate them.
The bodies, each of which had been taped to large rocks, eventually surfaced in the nearby Illinois Bayou.
In September, two assistant federal public defenders in Maryland who are part of the Federal Capital Habeas Project filed a motion asserting that Lee's death sentence should be vacated because his constitutional rights were violated when prosecutors failed to disclose pretrial statements by one of the witnesses in the trial's guilt phase, and failed to turn over documents that would have helped Lee during the penalty phase.
Whether the attorneys can try to prove those points hinges on whether their motion is considered a new claim or another in a series of previous failed efforts to win Lee a new trial or sentencing phase.
The Anti-terrorism and Effective Death Penalty Act of 1996 imposed stricter limitations on the filing of successive efforts and requires any motion considered "second or successive" to be given clearance to proceed by the U.S. Court of Appeals after it certifies that the motion presents newly discovered evidence that would have convinced a jury of the defendant's innocence or a new rule of constitutional law that applies retroactively to the case.
The question now before U.S. District Judge Leon Holmes, who took over the case after the retirement of the trial judge, the late U.S. District Judge G. Thomas Eisele, is whether the latest motion constitutes an exception that would allow it to proceed without review by the appeals court.
Holmes allowed the government to file a brief addressing only the jurisdictional issues for now. Only if he decides he has jurisdiction will the government be required to respond to the heart of the new motion.
John Pellettieri, an appellate attorney for the Justice Department, argued that the latest motion filed on Lee's behalf is a second or successive motion that must satisfy the gate-keeping provisions.
Lee's attorneys argued otherwise, saying they didn't become aware of the facts giving rise to the claim until recently. But Pellettieri argued that Lee must demonstrate that any newly discovered evidence, if proved, would be sufficient to assure that a jury couldn't have found Lee guilty.
Here, he said, "There is no reasonable probability that the evidence Lee claims the government unlawfully suppressed ... would have produced a different result at Lee's trial, either at the guilt or penalty phases."
In separate sentencing hearings in 1999, jurors sentenced Kehoe, the leader, to life in prison without parole, after finding that defense attorneys presented enough mitigating factors to outweigh aggravating factors presented by prosecutors in support of a death sentence. They then sentenced Lee to death after prosecutors proved there were more aggravating factors than mitigating factors, particularly concerning whether Lee would pose a danger in the future to the lives and safety of others.
Defense attorneys now focus on the testimony of a prosecution witness, James Wanker, who told jurors during the guilt phase that Lee once told him that when he "went south," he "wrapped up" and "taped" some people and "threw them in the swamp." The attorneys say Wanker recently revealed that prosecutors wouldn't let him say that he considered Lee's remarks "empty bragging."
"According to Wanker, Lee 'would spout off about different fights and crazy situations that were not true just to look tough and try to fit in,' and Lee was 'a braggart and ... would try to claim responsibility for criminal actions in order to fit in with the Kehoes,'" Pellettieri wrote.
But he said it doesn't matter because Wanker did make clear at trial that he didn't believe Lee's statements, telling jurors that he thought Lee was "just talking."
In any event, Pellettieri argued, "Wanker's personal opinion at the time of trial about whether Lee was merely posturing or admitting to murder would have been of little if any relevance to the jury's determination of Lee's guilt."
He said Wanker's testimony was a small part of the evidence presented and was only mentioned briefly in closing arguments.
As for the Oklahoma documents, in which a state-court judge found there wasn't enough evidence to try Lee for first-degree murder in the death of another man years earlier, Pellettieri argued that jurors didn't need to see it because prosecutors never told them that Lee was lucky to have been able to plead guilty to robbery instead of murder in that case. He recited testimony during Lee's sentencing phase in which a prosecutor made it clear that Lee's cousin was the only one accused of killing the man after Lee beat the man and provided his cousin with a knife.
Metro on 11/28/2018