Metropolitan News-Enterprise


Thursday, September 8, 2011


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Ninth Circuit Overturns Death Sentence, Says Prosecutors Knew Witness Was Lying




The Ninth U.S. Circuit Court of Appeals yesterday overturned the death sentence of an Idaho man convicted of brutally slaying a former coworker, saying the defendant suffered prejudice because the state allowed a jailhouse informant to lie on the witness stand.

The ruling requires that Lacey Mark Sivak be resentenced to prison, or given a new penalty trial.

Sivak was sentenced to death for the 1981 murder of Dixie Wilson at the Baird Oil gas station in Garden City, just north of Boise. Wilson was repeatedly shot and stabbed, and

Sivak and Randall Bainbridge both admitted being present when Wilson was killed, with each blaming the other. Prosecutors said one motive was robbery, and that Sivak also held a grudge against Wilson.

One witness suggested an additional motive—that Bainbridge was sexually attracted to Wilson, a theory that prosecutors pursued at Bainbridge’s separate trial.

Prosecutors called several inmate witnesses who claimed to have heard Sivak confess while in jail awaiting trial. One of them, Jimmy Leytham, said Sivak admitted to shooting Wilson because “he holds grudges against people” and “he used to work at the place” and Wilson had “fired him.”

Cases Dismissed

Leytham acknowledged that after he testified at the preliminary hearing, two criminal charges—one in the county where he was being tried, and one in another county—were dismissed. He said he did not know whether prosecutors were involved in those dismissals.

Another inmate witness, Duane Grierson, said that Sivak implicated both himself and Bainbridge as having participated in the robbery, murder, and sexual assault of Wilson. On cross-examination, Grierson testified that prosecutors had promised that if he “testified in court in certain murder cases,” he would not receive state prison time.

He later wrote to Sivak’s sentencing judge that he was “a chronic liar,” and “lying was a way of life” for him.

Under Idaho law at the time, sentencing was conducted entirely by the judge.

‘Brutal Savage Slaying’

While the defense argued that Sivak should be spared because he was active in church and had a difficult childhood, and because his guilt was not disproportionate to that of Bainbridge, who had received a life sentence, the judge found that Sivak “actively participated in the brutal savage slaying and sexually molesting [sic] of a woman while at the same time butchering her alive,”and imposed the death penalty.

The Idaho Supreme Court affirmed the sentence. But defense attorneys, while conducting discovery in support of their federal habeas corpus petition, discovered letters in the prosecutors’ files suggesting that Leytham had actively sought their assistance, not only in getting his pending charges dismissed but also in seeking parole release and cash assistance once he got out.

One letter was from the prosecutor in Ada County, where the murder was tried, to the prosecutor in a neighboring county, asking that the charge in the latter county, one of escape from the local jail, stating that “justice will be served” if that charge was dismissed.

Idaho’s Chief U.S. District Judge, B. Lynn Winmill, denied the writ petition.

Right Violated

But Judge Milan D. Smith Jr. said prosecutors violated the defendant’s right to a fair trial by failing to disclose exculpatory evidence prior to trial and by allowing false testimony during trial.

The letters that were subsequently discovered in the prosecutors’ files, Smith explained, constituted Brady material because they were “classic examples of impeachment evidence” that were deliberately suppressed by the prosecution.

The letters also established that prosecutors knew Leytham was lying when he said he had not sought help from prosecutors and did not know whether they were involved in the dismissals of his pending cases, Smith said. He also lied when he claimed that a he had taken a trip to Kansas for “personal reasons,” when in fact he had gone there to testify at another murder trial and had asked the Idaho prosecutor to help him convince Kansas authorities to provide him with cash, the appellate jurist wrote.

Defendant Guilty

The constitutional violations were harmless, Smith concluded, as to the question of guilt. “Although the evidence of Sivak’s guilt was not quite as ‘overwhelming’ as the State repeatedly contends in its brief,” the judge explained, any reasonable trier of fact would have found either that Sivak killed Wilson in the course of a robbery or abetted Bainbridge in doing so, either of which would have been sufficient for a conviction.

But since Idaho law requires that at least  one aggravating circumstance be sufficient in and of itself to outweigh the totality of the mitigating circumstances in order for the death penalty to be imposed, it is at least possible the judge would have imposed a life sentence if he knew that Leynham, like Grierson, was not a credible witness.

The opinion was joined by Chief Judge Alex Kozinski and Judge Sidney Thomas.

The case is Sivak v. Hardison, 08-99006.


Copyright 2011, Metropolitan News Company