Luck Out

The state's mistake means a convicted killer goes free - at least for now

Convicted murderer Jasper McMurtrey III says he feels "like Rip van Winkle winning the PowerBall."

McMurtrey was released from Arizona's death row just before Christmas, the result of an unusual legal snafu that has the state and a federal judge pointing fingers at each other.

Now, state prosecutors contend U.S. District Court Judge William Fremming Nielsen was wrong to release McMurtrey more than two decades after his 1981 conviction on murder charges.

But Nielsen says it's the Arizona Attorney General's Office's fault for not acting in a timely fashion either to seek a stay of a March 2003 ruling that granted McMurtrey a new trial or to move forward with a new trial.

"As far as I know, this is the first time this has happened in Arizona," says Kent Cattani, an assistant attorney general who oversees death-penalty appeals.

Since his release from custody December 23, the 52-year-old Texas native has been living with his new wife in Tucson as prosecutors and the appellate courts figure what to do next.

No one, including McMurtrey, is saying he didn't shoot two men to death and wound another in an August 1979 clash at Tucson's now-defunct Ranch House Bar, a biker hangout. Trial testimony showed McMurtrey had been passing through Tucson on his way to a job as an oil-field welder in California.

According to court records, McMurtrey didn't rob his victims, nor did he commit the crimes in a "cruel, heinous or depraved" manner. He claimed self-defense, a lack of premeditation and insanity.

McMurtrey rejected a plea bargain that would have meant his possible release from prison after serving 21 years, and a Pima County jury convicted him of two first-degree murder counts and a third count of attempted murder.

Judge Jack Arnold sent him to death row, unconvinced of any relevant mental illness in the case (McMurtrey had a history of mental problems, and was taking a stew of psychotropic medications at the time of his trial).

But the federal judge, Nielsen, agreed with McMurtrey's longtime appellate attorney, Natman Schaye, writing in a 53-page ruling that "substantial evidence before the [1981] trial court raised a reasonable doubt as to [McMurtrey's] competency to stand trial and that [his attorney] provided ineffective assistance with respect to this issue."

The AG's Office appealed that ruling to the 9th Circuit Court of Appeals last summer, but neglected to ask for a stay of the order for a new trial within the allotted 180 days. Assistant attorney general Jack Roberts did ask for the stay last October, but only after McMurtrey's attorneys made note of the legal gaffe and asked Nielsen to dismiss the murder case, or to order McMurtrey's immediate release.

In turn, Nielsen ordered prosecutors to tell him at a December 10 hearing why he shouldn't hold them in contempt for not going to trial within 180 days as ordered, and why he shouldn't release McMurtrey from custody.

At that hearing, the state presented no witnesses or testimony, and prosecutor Roberts said the failure to file for a stay had been "inadvertent."

McMurtrey's team presented four witnesses at the hearing, including a Department of Corrections officer who spoke highly of the inmate, and McMurtrey himself.

One day after that hearing, December 11, Judge Nielsen ordered McMurtrey's release from custody, writing that the inmate's "answers were responsive, thoughtful and candid. It is apparent to the court that [McMurtrey] has matured over the past two decades and that his character is not as it was at the time of the killing of this case."

The judge decided not to hold the AG's Office in contempt, saying prosecutors hadn't messed up intentionally. He also declined to dismiss the murder charges against McMurtrey.

Rick Unklesbay, chief criminal deputy for the Pima County Attorney's Office, says he hopes to re-prosecute McMurtrey if the 9th Circuit upholds Nielsen's order for a new trial.

"But I'm well aware that the case is old and that witnesses may be hard to find and all," Unklesbay says.

Unklesbay says he attended the December 10 hearing, and agrees that McMurtrey did a fine job on the stand.

Kent Cattani concedes his office committed a "procedural glitch" by failing to file the proper paperwork, but adds that "we ended up in the same place as we would have even if we had filed it because the judge made it clear that he didn't agree with our analysis about the impropriety of releasing McMurtrey."

Cattani says the McMurtrey situation "is frustrating from my perspective because the state of the law allows for such a lengthy appeals process. I mean, this has been going on for more than two decades now."

But Natman Schaye counters that "this was a real screw-up by the Attorney General's Office, and it clearly had a bearing on the judge's ruling, which was the right one."

As for McMurtrey, Schaye says, "I consider him a very good person at this point in his life. In fact, I think he's far less dangerous than most of the people I drink with."

A Pima County Superior Court judge instructed McMurtrey not to leave that county without permission, which the longtime inmate says is fine with him.

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