Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: SUNDAY, July 30, 1995 TAG: 9507310086
SECTION: VIRGINIA PAGE: A1 EDITION: METRO
SOURCE: LAURENCE HAMMACK STAFF WRITER
DATELINE: LENGTH: Long
Seventeen years ago, a young Roanoke lawyer stood before a jury and made an impassioned plea for his client's life.
Clifford Weckstein characterized capital punishment as barbaric, comparing it to Roman emperors watching life-or-death struggles play out in the coliseum below them.
"Thumbs up for life, and thumbs down for death," Weckstein told a jury that was considering whether his client should die in the electric chair for the robbery and murder of a Roanoke businessman.
This week, Weckstein will play a different role in a capital murder case.
As the presiding judge in the trial of mass-murder defendant Robert M. May, Weckstein will be called upon to make the same life-or-death decision that he so adamantly decried earlier in his career.
On Friday, May told the court that he would not contest the charge that he killed five people. When his trial resumes Monday, his fate will be in the hands of a sentencing judge instead of a jury.
This will be the first time that Weckstein has been asked to impose the death sentence in his eight years on the Roanoke Circuit Court bench. And if he rules that May should die for shooting three men and two women during a drunken New Year's Eve party, it will be just the second death sentence from a Roanoke judge or jury since capital punishment was reinstated in Virginia in 1977.
Since then, the only person in Roanoke to receive a death sentence was Weckstein's client, 17 years ago.
After a Roanoke jury condemned Major Henry Johnson to death in 1978 for robbing and killing his landlord, Weckstein appealed the case and had the death sentence overturned by the Virginia Supreme Court. A second sentencing in Alexandria ended with the jury deadlocked between life and death, leaving a judge to impose a life sentence.
When Weckstein became a judge in 1987, a newspaper reporter asked him what the biggest thrill of his legal career had been up until then. Weckstein cited the Johnson case, although he added that saving a man from death row was more of a relief than a thrill.
"I wouldn't use the word thrill," he said at the time. "There is no feeling comparable to representing someone who has been sentenced to death, knowing that on your shoulders rests the burden of trying to prevent the ultimate punishment."
How Weckstein will react to the burden of passing judgment in Roanoke's worst mass murder since 1973 has been the subject of much speculation in recent weeks - and much agonizing by May and his attorneys as they weighed their options between the judge or a jury.
But as lawyers are quick to point out, what someone said as a trial advocate may have little bearing on what he or she might do as a judge.
Weckstein said last week that he could not comment "on this or any other case before me as a judge."
However, he added that "what a lawyer argues as an advocate for a client is not necessarily - and should never be construed to be - an expression of the lawyer's personal opinions or beliefs."
\ One step from death
May had confessed to the crimes from the beginning. His no-contest plea was tantamount to a guilty plea, and was entered with no assurance by prosecutors that they would not seek the death penalty.
Some lawyers say that pleading guilty to capital murder, without a plea agreement to avoid the death sentence, is a risk too high to take.
"We don't advise it," said William Geimer, a law professor at Washington and Lee University who heads the Virginia Capital Case Clearing House, which assists defense lawyers in preparing for capital murder trials. "In fact, we very strongly advise against it."
Of the cases that Geimer was familiar with in which defendants pleaded guilty and were sentenced by judges, he said, the majority have received a death sentence.
"By pleading guilty, you're just one step away from the electric chair, or lethal injection," Roanoke lawyer Jonathan Rogers said.
Rogers represents Larry Stout, a death-row inmate awaiting execution for the murder and robbery of a prominent merchant in Staunton five years ago.
In a petition pending in U.S. District Court in Roanoke, Rogers claims that Stout's previous lawyer made a fatal mistake when he allowed him to plead guilty to capital murder.
Three witnesses - Tony Anderson and Jonathan Apgar, Roanoke lawyers with experience in capital murder cases, and Charlottesville lawyer Lloyd Snook - have testified in the case that the decision amounted to "ineffective assistance of counsel," a legal claim that Stout hopes will overturn his death sentence.
Stout's lawyer, Public Defender William Bobbitt, was reportedly concerned that by pleading not guilty and facing a jury, Stout surely would receive a death sentence in a community outraged by the crime.
Rogers does not dismiss that concern - "There is a strong drum beat of the public to extract very harsh justice these days," he said - but noted in court records that Bobbitt made no request for a change of venue.
The lawyers who testified in the Stout case are not the only ones who said they would be wary of having a client plead guilty to capital murder.
"I'd be scared to do it," said Tom Blaylock, who has handled capital murder cases as both a defense attorney and Roanoke County commonwealth's attorney. By pleading guilty, he said "you have then put your client's fate in the hands of one person; whereas, if you go before a jury, you have 12 chances at a life sentence, instead of just one."
Pleading guilty also eliminates the "lingering doubt" possibility that could help a defendant, Rogers said.
For example, May has said he shot in self-defense after a gun was pulled on him during a drunken argument at a party in an Old Southwest Roanoke apartment. Even if a jury heard that claim and rejected it, the theory goes, some lingering doubt in the mind of a juror might carry over to the sentencing phase and result in a life sentence instead of death.
A guilty plea also precludes most avenues of appeal. Despite that, some defendants insist on pleading guilty to capital murder.
In some cases, Rogers said, defense lawyers may get a subtle hint from a judge - a statement made during pre-trial hearings or in an off-the-record conversation - indicating that he or she would not impose the death sentence in a particular case.
If that is the case, he said, a guilty plea could be a wise decision.
"Knowing Ray to be a good lawyer, I think he has a good reason to believe that May will not get the death penalty [by pleading guilty], or he wouldn't do it," Rogers said.
May's attorneys, Public Defender Ray Leven and Assistant Public Defender Roger Dalton, have declined to discuss the case.
\ A different role
Major Johnson was not the only capital murder defendant that Weckstein represented before he became a judge.
In 1983, he implored a Botetourt County jury to spare the life of a man convicted of beating a Roanoke waitress to death and dumping her body in the Jefferson National Forest.
In his closing argument, Weckstein described in detail how electrodes would be strapped to his client's ankles, wrists and forehead if the jury sentenced him to death.
"I beg you not to do that," he told the jury. After deliberating less than half an hour, the jury heeded Weckstein's plea and sentenced James Edward Manetta to life in prison.
But once again, some lawyers believe that what Weckstein said as a trial lawyer does not necessarily reflect what he might do as a judge.
"That was his role in those particular cases, but now he has a different role," Blaylock said.
Still, Weckstein's background as a defense lawyer has been a part of the behind-the-scenes trial strategy and discussions that have preceded May's trial.
Defense lawyers and prosecutors describe Weckstein as a judge with such a broad knowledge of the law that some say he is destined for the state Supreme Court, and as a sentencer who is fair, but not reluctant to impose tough punishment when it is called for.
And there have been some tough punishments during Weckstein's tenure - a life sentence for a 17-year-old boy who pleaded guilty to a drug-related killing; life plus 50 years for a man who admitted killing and robbing a neighbor; 80 years in prison for a man who repeatedly raped his granddaughter.
Some lawyers say that whatever the sentence from Weckstein, it is always a reflection of the crime rather than the judge's personal feelings.
Anderson, the lawyer who testified in the Stout case, said Weckstein is "so good at being a judge that he is one of the few people who can literally remove his personal preferences and observations from a case, and look at it totally impartially."
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