Monday, April 03, 2000
Murder defense to focus on memo
BY TOM O'NEILL
The Cincinnati Enquirer
The memo was buried in the police paperwork about William Zuern, who was an inmate in 1984 when he buried a sharpened bucket handle in the heart of a Hamilton County jailer.
Written by another jail deputy, the memo was not given to Mr. Zuern's defense attorney, even though it might have cast doubt on Mr. Zuern's intent when he killed 26-year-old Phillip Pence at the now-closed Camp Washington jail.
His new attorney, Lawrence Greger of Dayton, said Sunday that the memo will be the focus of his attempt to get his client off death row.
On Friday, Chief U.S. District Judge Walter Rice opened the door by overturning his conviction and sentence and ordering a new trial. Mr. Zuern confessed.
Mr. Greger said Sunday his goal is a reduced sentence for Mr. Zuern, not an acquittal. He said that “if the state would agree to change to life sentence,” he'd agree to it.
“We were tickled to death to see it for the first time,” Mr. Greger said of the memo, discovered three years ago during appeals. In it, Deputy Kenneth Schweinefus alerted superiors to Mr. Zuern's death threat the previous day against another inmate.
Mr. Greger said the memo was the kind of evidence that prosecutors are required to share with defense attorneys.
Mr. Greger said it supports the position that Mr. Zuern thought he was killing someone else when Mr. Pence entered his cell to check for weapons. That's vital because capital punishment requires an intent to kill Mr. Pence, not just anyone.
Judge Rice also set aside the death sentence of Rhett DePew, who was convicted of killing a woman, her sister and daughter in Oxford.
Both cases are from 1984 and Sunday, Chris Davey, spokesman for the Ohio attorney general, indicated the state would challenge Judge Rice's rulings in the U.S. Court of Appeals for the 6th Circuit.
In the DePew ruling, Judge Rice commuted the death penalty to life in prison, faulting
Butler County Prosecutor John Holcomb for prejudicial comments that “removed the scales of justice from the courtroom entirely” at the sentencing stage of the trial.
The cases of Mr. Zuern and Mr. DePew have several parallels:
Both confessed.
Both are on death row in Mansfield Correctional Institution.
Both hope to have their sentences reduced from death to life in prison.
Community Correctional Institution (CCI) had a maximum-security section in which Mr. Zuern, now 41, was being held in connection with the murder of Gregory Earls, a Lower Price Hill police informant.
In June 1984, jail officer Pence went to Mr. Zuern's cell to check for weapons. As he walked in, he was stabbed in the heart.
After being convicted in Mr. Pence's murder, Mr. Zuern pleaded guilty to Mr. Earls' slaying and was sentenced to life imprisonment in that case.
“The issue of prior calculation would be front and center,” Mr. Greger said of his appeal strategy. “The theory (of the original defense) should have been, absolutely, in the dark, at the time of the search, who was it coming at him? He had to know that to form calculation.”
Mr. DePew killed Teresa Jones, 27, her daughter Aubrey, 7, and sister, Elizabeth Burton, 12, and torched their Oxford home to conceal the crime.
Mr. Holcomb expressed shock that the issue is coming up 16 years after the trial and called the appeals proc ess “a charade.”
“This guy butchered three girls with a trench knife,” he said, and his comments at sentencing “didn't have anything to do with the substance of the case.”
It was a sentiment that resonated all the way to the McGonigle, Butler County home of Madge Burton, whose two daughters and granddaughter were Mr. DePew's victims.
“He should have been put to death many years ago,” Mrs. Burton said. “You never, it never gets easy. You never get over burying your child and grandchild. But the feelings of the victim are set aside.”
The Associated Press contributed to this report.
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