Supreme Court refuses to review Oklahoma death row case

<br>WASHINGTON (AP) _ An Oklahoma murderer sentenced to death by a jury fearful that he might one day be freed from prison will get a chance to avoid execution, after the Supreme Court refused Tuesday

Tuesday, November 13th 2001, 12:00 am

By: News On 6

WASHINGTON (AP) _ An Oklahoma murderer sentenced to death by a jury fearful that he might one day be freed from prison will get a chance to avoid execution, after the Supreme Court refused Tuesday to intervene.

Oklahoma officials and a criminal justice group said the case could prompt more federal appeals from state death row inmates.

The Supreme Court declined, without comment, to consider reinstating Mark David Johnson's death sentence. An appeals court had overturned it.

Jurors considering the sentence had sent the judge a note, ``We need to know! Is life without parole firm _ does it mean he can never be paroled?''

``It is inappropriate for you to consider the question asked,'' the judge told the jury, which then sentenced Johnson to death.

State courts turned down Johnson's appeal, but the 10th U.S. Circuit Court of Appeals threw out the death sentence and said the judge should have instead repeated to jurors that their options were the death sentence, life in prison or life in prison without parole.

``The 10th Circuit's decision provides a needless windfall to the worst of society's offenders,'' Oklahoma Attorney General Drew Edmonson told the Supreme Court in filings. ``Nothing the trial judge said skewed the true meaning of the life without parole sentencing option.''

Johnson's attorney said the judge misled the jury and implied that jurors were only recommending a sentence.

Johnson and another man were convicted of beating a mentally ill neighbor with a baseball bat and setting him on fire with gasoline in 1991. The other man was sentenced to life in prison without parole in the death of Billy Wayne Webb.

The Supreme Court has endorsed full disclosure for juries in the past, under certain circumstances. Justices ruled in 1994 that South Carolina juries should be told in some cases that a life in prison option means just that _ the defendant will spend his life in prison without parole.

In a follow-up case this past spring, the court ruled that a South Carolina jury was not given enough information in a murder trial. In that case, jurors had asked the judge whether there was ``any remote chance'' that a defendant might be eligible for parole. The judge told the jurors that ``parole eligibility or ineligibility is not for your consideration.''

Oklahoma said the latest case ``illustrates the fine line trial judges in capital cases must walk when responding to juror inquiries about the meaning of life imprisonment without parole.''

The appeals court said that the judge ``did more than give a non-responsive answer. It told the jury that parole eligibility could not be considered when plainly it could be.''

The California-based Criminal Justice Legal Foundation said that ruling ``threatens to open up yet another fertile field of federal constitutional challenges to matters that have always been questions of state law.''

Foundation attorney Kent S. Scheidegger told the court that judges' instructions to juries ``will have to be parsed and second-guessed'' in multiple rounds of appeals.

The Supreme Court refused to review other arguments Johnson raised, but also refused to stop his second sentencing, scheduled for Dec. 10.