Retrial poses new issues, lawyers say Death-penalty case opens debate on fairness, cost

FBI role questioned

Other defendants face similar obstacles, defenders argue

August 23, 1998|By Andrea F. Siegel | Andrea F. Siegel,SUN STAFF

The high-profile death-penalty retrial of Scotland E. Williams, which culminated in Friday's sentence of life in prison without parole for two murders, is raising critical questions that other defendants also face, defense lawyers say.

"There are issues that have come up in this case that I see as having a potential for trouble," said Nancy M. Cohen, one of Williams' three public defenders.

The biggest issue, now in a federal appellate court, has piqued the interest of defense attorneys in the state because it challenges the FBI, whose expertise local law enforcement agencies turn to routinely.

Anne Arundel authorities called the FBI on the day that prominent Washington lawyers Jose E. Trias and Julie N. Gilbert were found slain in their weekend retreat outside Annapolis.

On May 23, 1994 -- four days after Williams was arrested with Gilbert's watch and other items tying him to the crime in hand -- an FBI teletype, which the U.S. Attorney's Office gave the defense, said: "It is not believed that Williams acted alone in this crime, and investigation continues to identify any accomplices."

Defense lawyers seized on that last fall. They have been sparring with the FBI, complaining that additional documents they have seen do not say who these accomplices might be, name the agents who suspected that, or say why the FBI had the impression or abandoned it that Williams had an accomplice -- questions they claim go to getting a fair trial.

Prosecutors say that whatever the FBI believed early on is irrelevant; evidence never turned up another suspect. They dismiss this and other issues as red herrings from a defense desperately fishing for it-doesn't-know-what.

But suppose the defense could help itself by exploring those early theories and names, said attorney Domenic R. Iamele of Baltimore, president of the Maryland Criminal Defense Attorneys Association. "It is the someone else that they are focusing on who did the crime, and my client did not do it."

In a capital case, when only the trigger-man can be sentenced to death, the issue is magnified, Iamele said.

That is why public defenders wanted access to the FBI file.

"We don't know what's in the file," said assistant public defender Nancy S. Forster, who is handling the appeal. "He can't call witnesses -- how does he know who to call?"

Rules prevent chaos

But the U.S. Attorney's Office for Maryland counters that the federal government and the process for providing specific information to the defense have rules to keep order. Otherwise, agencies would constantly send workers to courts and depositions and have outsiders pick through files -- and that would result in chaos.

"I don't know if I need it, I don't know what's in there until I read it, so you've got to show it to me so I know if I need it," said Stephen M. Schenning, first assistant U.S. attorney for Maryland. "We tend to insist that procedure be followed. It doesn't work like that."

Under court rules, the defense does not get to pore over a local police department's investigative file in a case, State's Attorney Frank R. Weathersbee pointed out. Besides, Assistant State's Attorney Anne Colt Leitess scoured the FBI file and found nothing that would help the defense, he said.

Let judge decide

Names blacked out on documents the FBI gave the defense were not of secret, potential suspects, but just Williams' relatives being sought for other questioning, Leitess said.

"They never found anybody to interview," Weathersbee said.

Still, other defense lawyers say a judge, not a prosecutor likely to be biased, should be the one to privately review disputed information and to decide if anything should be given to the defense.

The FBI says that as a federal agency it is immune from Anne Arundel County Circuit Judge Pamela L. North's subpoena in February for the file. A U.S. District Court judge in Baltimore agreed. In June the public defender's office noted an appeal to the U.S. Court of Appeals for the Fourth Circuit. That court has yet to rule on a similar appeal from Baltimore over federal Drug Enforcement Administration files.

The U.S. Supreme Court has not examined similar issues on federal regulations about disclosure of files since 1951, a full decade before the justices expanded constitutional rights of defendants. That timing gives defense lawyers hope that if that they lose on appeal, they have a chance at the nation's highest court.

The money issue

Williams' nearly monthlong retrial -- the Court of Appeals overturned his first conviction and death sentence -- featured mind-boggling detail about two kinds of DNA analysis. One involved studies of the nucleus of cells, the other the newer technique of studying the mitochondria, or energy banks, of cells. What happened with both are nagging defense attorneys.

"When does it get to the point when the lawyer can't fulfill Sixth Amendment requirements because of the money issue? That's always a big issue," said Byron Warnken, associate professor at the University of Baltimore School of Law.

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