Defense lays paths for appeal

Arguments against death could include prejudice

By Josh Verges

Throughout the pretrial proceedings, jury selection and trial of convicted murderer Daphne Wright, her lawyers paved several avenues for appeal.

A former prosecutor said their best chance for a retrial could be the autopsy photos of Darlene VanderGiesen’s dismembered body, which a higher court could decide “inflamed the passions” of jurors and should not have been admitted.

Jeff Masten, former Lincoln County State’s Attorney, said the photos might help the state get a death sentence but also could help the defense get a retrial on appeal.

“It’s really skating on thin ice,” he said.

The same jury that convicted the 43-year-old Sioux Falls woman should decide next week whether to recommend life in prison or death by injection.

If Wright gets death, the sentence is automatically appealed to the South Dakota Supreme Court. Even if the jury chooses life in prison, Masten said an appeal of the guilty verdict is a sure thing.

Passion and prejudice are two factors the Supreme Court could find arbitrarily led to the decision for death.

If the case reaches the justices, they also would examine whether the evidence supports the state’s claim of an “outrageously or wantonly vile, horrible or inhuman” crime, considering whether torture, depravity or aggravated battery to the victim exist. They also would decide if death is an excessive penalty when compared to what defendants have received in similar cases.

Nationally, the average death row inmate waits about 11 years before being executed because the appeals process can take decades to exhaust.

After the state Supreme Court reviews death sentence cases, they become less predictable.

The only successful appeal of a death row case is Donald Moeller, said Chris Hutton, a University of South Dakota law professor.

Moeller was convicted in Lincoln County for the 1990 rape and murder of Becky O’Connell, 9, of Sioux Falls. The state Supreme Court reversed his conviction and death sentence in 1996. Justices ruled that errors such as the introduction of prior conduct occurred at the trial, Hutton said.

Moeller was tried, convicted and sentenced to death again in 1997 by a Pennington County jury.

Wright’s case could draw similarities to death row inmates Elijah Page and Briley Piper if the interpretation of evidence supporting a vile, horrible or inhuman crime becomes an issue, Hutton said. Such interpretation became an arguing point in Page’s and Piper’s cases, and justices will use that as a precedent, she said.

“Some of the way the court views conduct in the statute would inform their analysis in the Wright case,” Hutton said.

One South Dakota case – that of Charles Rhines – is an example of how long it can take to exhaust the appeals process. Rhines was convicted in Pennington County for the 1992 murder of Donnivan Schaeffer, 22, during a Rapid City doughnut shop heist.

His case is the first to go through the appeals process, starting in 1996, Hutton said.

“His is taking a long time because issues being raised are the first” heard by the Supreme Court, she said.

One of his lawyers, Roberto Lange, has said Rhines’ case is probably the most complicated procedurally of the state’s death-row cases.

Hutton said Rhines’ case has gone to the U.S. Supreme Court to decide which issues he could raise. Other topics covered by his appeals include whether his constitutional rights were violated at his trial and sentencing and whether he was deprived of an impartial jury.

Wright’s being black, deaf and a lesbian accused of killing a white woman has brought extra attention to the case and has given her lawyers more routes for fighting the death penalty.

A defense motion filed in January charged that Minnehaha County State’s Attorney Dave Nelson’s decision to seek the death penalty is discriminatory because of race, sexual orientation and/or disability. Wright has no significant criminal history, unlike many other killers for whom Nelson has not pursued death, the defense said.

Judge Brad Zell is expected to rule on that and other motions Monday.

As jury selection came to an end, Zell denied the defense’s request for a mistrial declaration based on a near all-white jury pool. Masten called those complaints “baloney” and said appellate courts agree.

The defense also has complained about the judge’s impromptu statements to jurors, Nelson’s cross-examination about the plastic bag found over the victim’s head and even an editorial cartoon that might have been in view of jurors during opening statements.

With so much evidence pointing her way, the guilt phase of Wright’s trial has been “basically a run-up” to the death penalty arguments and following appeals, Masten said.

“The real trial is next week,” he said.

(( Source: Argus Leader ))

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