Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: TUESDAY, August 1, 1995 TAG: 9508010084
SECTION: VIRGINIA PAGE: A-1 EDITION: METRO
SOURCE: KATHY LOAN STAFF WRITER
DATELINE: LENGTH: Medium
Convicted capital murderer Larry Allen Stout should be allowed to withdraw his guilty plea and get a new trial in the fatal 1987 knifing of a Staunton dry cleaner, a federal judge ruled Monday.
U.S. District Judge James C. Turk overturned Stout's death sentence, but upheld the life sentence he was given for robbing Jacqueline Kooshian, who operated Trimble's Cleaners.
Stout's case is similar to Roanoke murderer Robert M. May's in this regard: Both men entered pleas that allowed them to avoid a jury trial and, instead, put their fate in the hands of a judge.
But there is a crucial difference: While May pleaded no contest - acknowledging there is enough evidence to convict him but not admitting guilt - Stout simply pleaded guilty to capital murder. By doing so, he, in effect, admitted the killing of Kooshian was premeditated - even though he has insisted all along that it wasn't.
Stout's lawyer shouldn't have let him do that, Turk ruled.
Stout's case was the third time in 13 months that Turk has overturned a death sentence. Last summer, he overturned the capital murder convictions of Lem Tuggle Jr. and Walter Correll Jr.
Tuggle was sentenced to die in 1984 for raping and killing a Smyth County woman. Correll was given the death penalty in 1986 for robbing and murdering a man in Franklin County.
A federal appeals court later overruled Turk's decision on Tuggle; a September execution date has been set.
"Oh, for God's sake," responded Staunton Commonwealth's Attorney Raymond Robertson when told of Turk's decision Monday night. "That's ridiculous. ... What in the hell's wrong with these federal judges?
"I'm shocked and terribly distraught. I think it's a terrible decision. ... It's very unfortunate. I think the decision misses the mark. I think it's not reflective of what happened."
Art Strickland of Roanoke, Stout's attorney for this habeas corpus petition, said it is likely that the state attorney general's office will appeal Turk's ruling to the 4th U.S. Circuit Court of Appeals.
If there is no appeal, or the state loses the appeal, Stout will be allowed to withdraw his guilty plea and have a new trial.
"Which means he pleads not guilty, and I'll take this case. I would love to try this case," Strickland said Monday.
Robertson said he hopes the attorney general's office does win on appeal and avoids a retrial, because one of the state's witnesses is dead and another cannot be found.
"It is quite likely if this case is to be tried again, the commonwealth would have lost substantial evidence," Robertson said.
Robertson said prosecutors of death penalty cases ought to be sought for comment when federal judges review defendants' petitions.
"The people that are making the arguments now don't have the benefit of having been there," Robertson said.
"I think it's wrong, I think it's not fair, and I think it's a shame."
In a 22-page decision, Turk ruled that Stout's court-appointed lawyer, Public Defender Bill Bobbitt, gave ineffective counsel to his client in two areas.
While Stout's trial lawyer may have rightly decided to have Stout plead guilty before a judge instead of risking a jury trial, Turk wrote that Bobbitt should have considered what's known as an "Alford plea" for his client, who maintains he did not mean to kill the woman when he robbed her business.
Defendants can make an Alford plea when they believe they are innocent but acknowledge there is enough evidence to convict them.
"Stout contended throughout that the slashing was accidental, the result of his reflexive pushing during the scuffle at Trimble's," Turk wrote. "Given [Stout's] version of the killing, instructing Stout to admit guilt to the element of premediation verged on a breach of [the lawyer's] duty."
Further, Turk ruled that there was plenty of information that might have been used to persuade the judge to give Stout a life sentence instead of the death penalty, but Stout's lawyer used little of it during the sentencing phase.
There was "overwhelming" evidence available that Stout has lived a hard life, including "the stigmatization of being a child of mixed race among a family of whites," having alcoholic parents and having a father who forced him to work in migrant labor camps at an early age and who sexually abused him, Turk wrote.
Bobbitt testified at a hearing that he didn't call a doctor who would have testified about Stout's history for fear that the doctor would say Stout suffered from an antisocial personality disorder that would predispose him to future violent acts.
by CNB