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Wesson lawyers ask for retrial, cite orders to jury
Defense lawyers want Judge R.L. Putnam to grant Marcus Wesson a new trial or reduce his death sentence to life in prison, according to Fresno County Superior Court documents made public Tuesday.
In a 17-page legal motion, lawyers Peter Jones and Garrick Byers said Putnam didn’t give a fair recitation of the law when he instructed the jury before it began deliberations.
Specifically, Putnam committed three instructional errors regarding conspiracy, implied malice second-degree murder and duress, the lawyers said.
Putnam will rule on the motion on July 27, when Wesson is scheduled to be formally sentenced. Prosecutor Lisa Gamoian is expected to file a rebuttal to the defense motion before the July 27 hearing.
State law says a jury’s verdict for a death sentence is the imposed penalty, and the trial judge must uphold it, unless he or she finds the verdict is contrary to the law or the evidence. Wesson, 58, received a death sentence on June 29 after being convicted of slaying nine of his children inside his Fresno home on March 12, 2004. He also was found guilty of 14 counts of sexually abusing his daughters and nieces.
In finding Wesson guilty of nine counts of first-degree murder, the jury concluded that he didn’t pull the trigger, but aided and abetted in the slayings and/or was part of a murder conspiracy.
During the trial, Putnam, Gamoian and Wesson’s lawyers argued over jury instructions in a hearing held outside the presences of the jury and the public.
The defense motion contends Putnam read an instruction to the jury that the prosecution wanted regarding conspiracy, but failed to read an additional conspiracy instruction requested by Wesson’s lawyers.
The extra instruction would have told jurors that if a conspirator commits an act “outside the scope of the conspiracy,” then the co-conspirator should not be held accountable, the motion says.
Defense lawyers contend there was sufficient evidence to suggest that Wesson’s daughter, Sebhrenah, fatally shot her eight siblings and then herself without any direction from her father.
The lawyers contend Putnam committed another error when he read only the instruction of expressed malice second-degree murder. The defense wanted him to also read implied malice second-degree murder.
Generally, expressed malice second-degree murder is when a defendant voices an intent to kill, but lacks the premeditation and deliberation needed for a first-degree conviction. Implied malice second degree murder generally means a defendant’s actions or language are willful and show a reckless disregard for human life.
During the trial, witnesses said Wesson preached a murder-suicide pact that would be carried out if a government agency, such as Child Protective Services, came to split up his family. The witnesses’ accounts were similar to the events on March 12, 2004.
The defense motion says Wesson’s preaching took place “5 years to 10 years or more” before the victims were slain. In addition, evidence indicated that “Sebhrenah likely commenced killing the children long before any discussion of calling CPS occurred and before any officers [which the defendant had been asking for] had even arrived,” the motion says.
If Putnam had read the implied malice instruction, jurors might have convicted Wesson of second-degree murder, which would have disqualified him for the death penalty, the defense lawyers said.
Lastly, the lawyers contend Putnam crafted his own instruction for the legal meaning of duress, instead of relying on the one outlined in the California Jury Instructions manual. The prosecution also wanted the standard instruction, the motion said. The duress instruction applied only to the sex charges.
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