Metropolitan News-Enterprise


Tuesday, August 21, 2001


Page 1


State Supreme Court Upholds Death Sentence, Rejects Claim Jury Was Tainted by Publicity


By a MetNews Staff Writer


A former trucker and Vietnam veteran who claimed that voices drove him to kill an airman and rape and beat the man’s girlfriend was properly convicted and sentenced to death for their murders, the state Supreme Court ruled yesterday.

In a 6-0 ruling, the high court rejected claims that Ward Francis Weaver Jr.’s mental condition rendered the death penalty inappropriate.

Kern Superior Court Judge William A. Stone, who sentenced Weaver to death in 1985, appropriately considered Weaver’s long history of mental illness as a mitigating factor, Justice Kathryn M. Werdegar wrote for the high court. But Stone, since elevated to the Fifth District Court of Appeal, committed no error in concluding that factors in aggravation outweighed that concern, Werdegar said.

“In this case, defendant picked up a young couple stranded on the highway by car trouble, killed the young man in a sneak attack with a metal pipe, kidnapped and raped his female companion more than once (by his own admission) over the course of several hours, and then killed her as well,” the justice explained. “He had previously attempted to kidnap a woman by striking her on the head with a baseball bat.  A few months after his capital crimes, he picked up another young couple hitchhiking, directed an acquaintance to kill the male (although the victim miraculously survived) and committed forcible sex crimes on his 15-year-old female abductee.”

Weaver, admitted killing Robert Don Radford, 18, and Barbara Levoy, 23. He said he bashed Radford’s head 11 times with a metal pipe because he wanted to have sex with Levoy after he encountered the young couple along Highway 58 east of Tehachapi.

The victims’ car had broken down and Weaver stopped and offered them a ride.

But Weaver told jurors he didn’t want to hurt the pair. He said he felt he had no choice but to hit Radford and have sex with Levoy because the voices, which he had been hearing for many years, told him to.

He claimed he only wanted to knock Radford out, not kill him. He was surprised the man died, he said, because he had previously used the same type of weapon to hit a man and that person didn’t die.

He also claimed he never intended to kill Levoy, but that she bit him and he reacted by strangling her in a rage.

Jurors found Weaver guilty of two murders and of kidnapping Levoy, found that special-circumstance allegations of multiple-murder and kidnap-murder were true, rejected Weaver’s insanity defense—which included claims of schizophrenia and war-related post-traumatic stress disorder—in a second phase of the trial, and delivered a death penalty verdict.

On appeal, Weaver’s lawyers argued that pretrial publicity in Bakersfield had tainted the verdict. In addition to attacking the sentence, they claimed that his trial lawyers had rendered ineffective assistance by not arguing diminished capacity in the guilt phase, and that jurors had been biased and inattentive during the sanity phase.

In rejecting the pretrial publicity contention, Werdegar acknowledged that there had been 12 pretrial articles on the case in the leading local newspaper, the Bakersfield Californian. But she also pointed out that the last article appeared 16 months before the trial, that most of the reporting was factual—although two of the articles contained inaccurate and potentially inflammatory reporting—and that there was no showing the jury pool had been affected.

Werdegar also concluded that Weaver’s trial counsel—David and Donalee Huffman—made a reasonable tactical decision to forego a diminished-capacity defense.

The Huffmans said they didn’t argue diminished capacity because it would have been inconsistent with what they believed to be a better defense, lack of intent to kill. While the results were obviously disappointing, the lawyers said, they made what they believed to be the right call at the time.

Werdegar said the husband-and-wife defense team acted within the scope of reasonable representation. While there was a good deal of evidence to support a diminished capacity defense, the justice said, defense counsel had good reason to believe that using it would undercut the claim that Weaver didn’t intend to kill, which he had contended from the time he was arrested.

The justice also rejected the argument that the brief length of juror deliberation in the penalty phase—42 minutes, after six weeks of both expert and lay testimony—showed that jurors weren’t paying attention or were biased.

“It is sheer speculation whether the rapidity of the jury’s decision was the result of bias, inattention, weakness of defendant’s case or strength of the state’s case,” Werdegar wrote. “We also find the alleged laughter and inattention of some jurors an insufficient basis on which to conclude the trial court abused its discretion in denying a separate sanity jury.”

The case is People v. Weaver, 01 S.O.S. 4205.


Copyright 2001, Metropolitan News Company