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Wednesday, September 09, 2009

Ind. Decisions - "Man convicted in 1982 slaying to be retried"

"The wheels of justice grind exceedingly slow ..."

Dave Stafford reports today in the Anderson Herald Bulletin:

ANDERSON — An Anderson man who has spent nearly 26 years on death row will be retried after court sent the long-appealed case back to Madison County.

Mark Allen Wisehart, 45, was convicted of murder and sentenced to death in 1983 in the killing of Marjorie Johnson in her Anderson home.

The 7th U.S. Circuit Court of Appeals in Chicago ruled in 2005 that a jury might have been prejudiced by comments that Wisehart had been offered a polygraph test. The Indiana Attorney General’s office had appealed the case to the U.S. Supreme Court, but justices refused to reconsider reinstating Wisehart’s conviction and sentence.

In May, the case was remanded for a new trial in Madison County, and subsequently was assigned to Superior Court 1 Judge Dennis Carroll.

No court date has been set. Jeff Lockwood and Eric Koselke last month were appointed to defend Wisehart. Koselke filed a sealed request for the court to approve funds to hire an investigator, but the court has not acted on the motion.

Attorneys representing Wisehart and prosecutors could not be reached for comment Tuesday.

Wisehart was convicted in Madison Superior Court 3 before Judge Thomas Newman, who still presides.

Along with the capital conviction for murder, Wisehart also was convicted of robbery, burglary and theft. He was accused of breaking into Johnson’s home, beating and stabbing her to death, and taking $14.

Wisehart was living at the Christian Center in Anderson at the time of Johnson’s killing. He is the longest-serving of the 17 prisoners on Indiana’s death row in Michigan City.

Looking back in the ILB files, I found two stories from early 2006.

This entry from March 28, 2006, quotes from 7th Circuit's March 23, 2005 opinion in the case of Wisehart v. Davis. Judge Posner writes:

Back in 1994 it would have been relatively easy to call the juror as a witness and ask her to explain her reaction to learning about the polygraph test, though she might have forgotten because the trial had been conducted in 1983. It will be all the more difficult today to reconstruct an incident now more than twenty years in the past. But it was the state’s burden, given the juror’s affidavit, to present evidence that the jury’s deliberations had not been poisoned by the reference to Wisehart’s having been given a polygraph test.
The entry also quotes from a March 28, 2006 AP story:
WASHINGTON -- The U.S. Supreme Court refused yesterday to consider reinstating the conviction and death sentence of a man who spent more than 20 years on Indiana's death row.

The 7th Circuit U.S. Court of Appeals in Chicago last year overturned the 1983 murder conviction of Mark Allen Wisehart of Anderson. It ruled that a trial judge should have taken steps to determine whether one juror's knowledge of a polygraph test had tainted the verdict.

The state attorney general's office had appealed to the U.S. Supreme Court, but the justices declined without comment to review the case.

This entry from March 29, 2006 quotes from a story by Charles Wilson of the AP. Here are some snippits -- the story is exploring "what may happen now?"
A decade-old affidavit that was key to overturning an Indiana death row inmate's murder conviction could be used to reinstate that sentence if prosecutors can prove the juror who signed it was misled. * * *

Madison County Prosecutor Rodney Cummings said Wednesday he would recommend the state attorney general's office pursue the hearing to determine if jurors were biased. * * *

During a postconviction relief hearing in 1994, attorneys presented an affidavit signed by one of the jurors saying that when she reported for jury duty she was told court would not be held that day because Wisehart was scheduled to take a polygraph test. The juror was not called to testify at the hearing.

Wisehart then appealed, but the Indiana Supreme Court said he had not shown any evidence that a single juror's knowledge of the polygraph test had swayed the entire jury.

However, the 7th U.S. Circuit Court of Appeals last year set aside Wisehart's conviction, saying the judge should have done more to investigate possible jury bias. The U.S. Supreme Court on Monday declined to hear the case. * * *

The Indiana Attorney General's office has 30 days in which to decide a course of action, said spokeswoman Staci Schneider. She said the office would consult Cummings before making a decision.

A fact-finding hearing would cause much less delay than trying to mount a new murder trial 20 years after the crime, Cummings said. If the judge decided the affidavit was invalid, Wisehart's attorneys likely would file another appeal and the case would again go before the state and federal courts.

Posted by Marcia Oddi on September 9, 2009 11:23 AM
Posted to Ind. (7th Cir.) Decisions | Ind. Sup.Ct. Decisions