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Last-minute strategy aims for Bundy stay

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Last-minute strategy aims for Bundy stay


Serial murderers
Supreme Court
Bundy, Ted


Mello argues that there is a good case for a potential stay of execution for Bundy.


Finkel, David


St. Petersburg Times


HIST 298, University of Mary Washington


Monday, January 23, 1989


The materials in this online collection are held by Special Collections, Simpson Library, University of Mary Washington and are available for educational use. For this purpose only, you may reproduce materials without prior permission on the condition that you provide attribution of the source.







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Even as Ted Bundy spent much of the weekend confessing to unsolved murders, lawyers trying to keep him from the electric chair grew more hopeful that they can win a last-minute stay of execution from the U.S. Supreme Court.
The reason for their optimism: a new, yet-to-be-aired issue for appeal that centers on whether a judge said the right things to a jury almost a decade ago when Bundy was on trial for killing 12-year-old Kimberly Leach in Lake City.
Bundy, who is schedules to be executed Tuesday for the murder of Miss Leach, reportedly confessed over the weekend to killing at least nine young women. Those confessions stopped for a time Sunday, however, as the appeal that will be submitted this morning to the U.S. Supreme Court took shape. Additionally, Bundy called off an interview with reporters scheduled for today at noon.
The issue that has surfaced—somewhat technical in nature—has to do with whether the judge overseeing the Leach trial conveyed to jurors how important their opinion would be to him when he decided Bundy’s sentence. Though a jury only advises a judge in capital cases on what it thinks is a proper sentence, the U.S. Supreme Court has ruled that death sentences can be thrown out on appeal if jurors have been led to believe their role isn’t significant.
In the Leach trial, says at least one of the lawyers trying to keep Bundy alive, that’s exactly what happened. Michael Mello, a Vermont law professor who has been offering advice to Bundy’s team of lawyers in Florida, said Sunday that a review of the trial transcript shows that Judge Wallace M. Jopling repeatedly told jurors they would be making a “recommendation only” on the question of life or death and that “the judge has the final say.” Because of such comments, Mello said, there has been a growing hope among Bundy’s lawyers that Bundy could get a stay.
“I’m optimistic,” Mello said. “This claim is shaping into a very powerful claim.”
Gary Printy, a Florida assistant attorney general who has worked on the Bundy case, said he didn’t think Bundy would get very far with the appeal. “I wouldn’t hold my breath for Ted,” he said.
However, Mello pointed out that the court has stayed two executions in Florida because of questions similar to the ones Bundy will attempt to raise today.
The background of the appeal is this:
In 1985, in a case called Caldwell vs. Mississippi, the Supreme Court ruled that convicted murderer Bobby Caldwell, who had been sentenced to death, was entitled to a new sentencing hearing because the judge and prosecutor had told jurors their decision on life or death would be “automatically reviewable.”
The danger of such comments, the Supreme Court said in its opinion, is that the jury could “minimize the importance of its role.”
Elaborating, the court went on to say, “Even when a sentencing jury is unconvinced that death is the appropriate punishment, it might nevertheless wish to ‘send a message’ of extreme disapproval for the defendant’s acts. This desire might make the jury receptive to the prosecutor’s assurance that it can err (in recommending death) because the error can be corrected on appeal. A defendant might then be executed, although no sentence had ever determined that death was the appropriate sentence.”
Since the court’s decision was issued in June 1985, several Florida death row inmates have received stays of execution on the basis of what are known as “Caldwell claims,” and one inmate whose claim failed has been executed.
One of the inmates who got a stay, Aubrey Adams, was on his third death warrant when the Supreme Court stopped his execution about 12 hours before he was to die in 1986. Te court, which heard arguments in Adams’ case in November, is expected to decide soon whether jurors were adversely affected when the judge said to them: “The final decision as to what punishment shall be imposed rests solely upon the judge of this court.”
“That’s what jurors were told in the Leach trial, and it is one reason Bundy’s lawyers are hopeful.
As late as Friday afternoon, the lawyers were anything but hopeful. Some were already wrestling with the notion that Bundy likely would be executed.
Over the weekend, Mello said, lawyers who undertook the task of reading a transcript of the Leach trial found instance after instance of what they interpret as improper statements to jurors from both the judge and prosecutors.
In one instance, Mello said, a prosecutor asked the juror who would later be foreman, “Do you understand that the judge would have ultimate responsibility?”
In another instance, Mello said, a juror asked if she would be deciding whether Bundy would be sentenced to death, and Jopling replied, “No, ma’am. The jury renders and advisory opinion…the judge has the final say so.”
In a third instance, according to Mello, Jopling told jurors, “The law places the awesome burden on the judge to decide the final penalty.”
“It’s the combination,” Mello said, explaining why such statements might be important nine years after the conclusion of the Leach trial. “It’s the totality of the contents.”
Asked whether in light of Bundy’s reported confessions such an appeal was making a mockery of the legal system, Mello said no.
“When (jurors) aren’t told about their role, there’s a greater likelihood the jury will come back and recommend death. That’s the constitutional evil. That’s what the Caldwell decision is all about,” Mello said. “You may not think it’s a big deal, but the U.S. Supreme Court in Caldwell said it’s a very big deal.
“Maybe we’ll get blown out of the Supreme Court on this, but the Supreme Court knows the issue, and Bundy’s got the issue.”

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Ian Scott Wilson




Finkel, David, “Last-minute strategy aims for Bundy stay,” HIST298, accessed June 20, 2018, http://hist298.umwhistory.org/items/show/124.