ILNews

Jury undecided so judge orders death

Michael W. Hoskins
January 1, 2008
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An Evansville judge has handed down the first death sentence since Indiana lawmakers changed the jury's role six years ago. The sentence also is likely the first execution order resulting from a penalty-phase hung jury since 1993.

The execution of Daniel Ray Wilkes is set for Jan. 25, 2009, but that will likely be delayed for years by appeals and could have potential to reach the Supreme Court of the United States as an issue of first impression about whether a death sentence can follow a hung jury, as well as whether a judge has the power to base an execution decision on the jury's finding in the guilt phase.

The appellate wheels delving into those legal issues come from Friday's hearing in Evansville, where Vanderburgh Circuit Judge Carl Heldt issued a death sentence for Wilkes. He'd been convicted in December 2007 on three counts of murder for the April 2006 killings of an Evansville mother and her two daughters, ages 13 and 8. While jurors agreed on the guilt phase of the trial, they came back deadlocked 11-1 on the penalty Wilkes should face for the crimes. Judge Heldt took on that task.

A judge has not gone through this since the change, according to Clark County Prosecutor Steve Stewart, who tracks death penalty cases and runs a Web site on those cases at http://www.clarkprosecutor.org/html/death/death.htm.

U.S. Supreme Court rulings in Apprendi v. New Jersey, 530 U.S. 466 (2000), and Ring v. Arizona, 536 U.S. 584 (2002), held the Sixth Amendment requires a jury to find aggravating factors necessary for imposing the death penalty in capital cases.

Indiana lawmakers made the changes following the Ring ruling. Judges now need to follow a jury's sentencing recommendation, unlike before when judges only needed to consider that recommendation and could enter a different penalty.

Other states require a judge to sentence a defendant to life in prison without parole if a jury can't reach a unanimous death penalty verdict. But in Indiana, that decision is up to a judge.

In Wilkes' case, the issue centered on whether Judge Heldt could rely on the juror's sealed verdicts in the 11-1 deadlock, Stewart said. The judge unsealed those verdicts and announced in court that jurors had unanimously found the existence of aggravators, and that the aggravators outweighed the mitigators, Stewart said. They just couldn't agree on whether the death penalty was appropriate, he said.

Judge Heldt said in court that state law is clear that the court can't consider a jury's indecision, Stewart said.

"The judge also personally found, based on the evidence, that there were aggravators beyond reasonable doubt and the death penalty was appropriate," Stewart said. "Of course, we've got some obvious appealable issues here on the defendant's part, and a first-impression issue at least following Ring v. Arizona."

Stewart said he believes Indiana caselaw is strong enough to uphold the sentence, especially with a three-year-old decision in Holmes v. State, 820 N.E.2d 136 (Ind. 2005), which involved a hung jury from 1993. The court held that because Indianapolis man Eric Holmes was convicted of two intentional murders and robbery, the aggravators of multiple murders and intentional felony murder were proven beyond a reasonable doubt and no violation of Apprendi occurred.

"We're on pretty solid ground here," Stewart said. "But they always go to federal court on habeas grounds. Whether the SCOTUS would grant cert is always the question. But I don't know of any case in the country that would be on that point right now. If it's still unanswered by the time it gets to that level, they could take it."
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  1. Bob Leonard killed two people named Jennifer and Dion Longworth. There were no Smiths involved.

  2. Being on this journey from the beginning has convinced me the justice system really doesn't care about the welfare of the child. The trial court judge knew the child belonged with the mother. The father having total disregard for the rules of the court. Not only did this cost the mother and child valuable time together but thousands in legal fees. When the child was with the father the mother paid her child support. When the child was finally with the right parent somehow the father got away without having to pay one penny of child support. He had to be in control. Since he withheld all information regarding the child's welfare he put her in harms way. Mother took the child to the doctor when she got sick and was totally embarrassed she knew nothing regarding the medical information especially the allergies, The mother texted the father (from the doctors office) and he replied call his attorney. To me this doesn't seem like a concerned father. Seeing the child upset when she had to go back to the father. What upset me the most was finding out the child sleeps with him. Sometimes in the nude. Maybe I don't understand all the rules of the law but I thought this was also morally wrong. A concerned parent would allow the child to finish the school year. Say goodbye to her friends. It saddens me to know the child will not have contact with the sisters, aunts, uncles and the 87 year old grandfather. He didn't allow it before. Only the mother is allowed to talk to the child. I don't think now will be any different. I hope the decision the courts made would've been the same one if this was a member of their family. Someday this child will end up in therapy if allowed to remain with the father.

  3. Ok attorney Straw ... if that be a good idea ... And I am not saying it is ... but if it were ... would that be ripe prior to her suffering an embarrassing remand from the Seventh? Seems more than a tad premature here soldier. One putting on the armor should not boast liked one taking it off.

  4. The judge thinks that she is so cute to deny jurisdiction, but without jurisdiction, she loses her immunity. She did not give me any due process hearing or any discovery, like the Middlesex case provided for that lawyer. Because she has refused to protect me and she has no immunity because she rejected jurisdiction, I am now suing her in her district.

  5. Sam Bradbury was never a resident of Lafayette he lived in rural Tippecanoe County, Thats an error.

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