Those are some of the latest twists in the bizarre case that began February 23, 1991, when Willoughby returned from an outing with his children to find his wife bludgeoned to death in the vacation house they had rented in Mexico ("Turning Tale," Laura Laughlin, October 19, 2000).
Willoughby, 61, is asking a Maricopa County Superior Court judge to set bail before his retrial.
Convicted of murdering his wife in cahoots with his gender-bending lover, Yesenia Patino (reports variously refer to Patino as a hermaphrodite or transsexual), Willoughby spent seven years on death row before winning a new trial in 1999 because of bad representation by his lawyer.
He had been held without bond because his was a death-penalty case. But now, attorney Alan Simpson argues the only aggravating factor that made the case a capital one -- the finding that Trish Willoughby was murdered for monetary gain -- no longer applies. A motion seeking "reasonable bail" contends that the judge who overturned Willoughby's conviction cast doubts on whether Willoughby knew his wife had taken out a $1 million life insurance policy shortly before her death.
Judge J.D. Howe ruled that Willoughby's original lawyer could have blocked inadmissable, damning testimony about his prior knowledge of the policy. And he chastised the attorney for not presenting evidence that Willoughby did not know about the policy.
Without that aggravating circumstance, the case is no longer a capital offense and bail must be set, Simpson says.
Judge Frank Galati will hear arguments February 23.
Also pending is a defense motion to exhume the body of Trish Willoughby (for a second time) to inspect a love note placed inside the coffin by her husband. Defense attorneys believe it could help prove Dan Willoughby's innocence.
Willoughby's retrial has been delayed until May, because of a shuffling of attorneys. The state Attorney General's Office has swapped murder trials with the Coconino County Attorney's Office. After the Flagstaff office was sued by the wife of a policeman slain last summer, prosecutors decided to step down from the criminal case. So attorneys Dave Roesma and Mike Lessler will try Willoughby while assistant attorney general David Powell (the lead prosecutor in the Phoenix case) will head north to prosecute Eric Michael Clark.
Defense doors have also been revolving. Michael Black and Stephen Kunkle have been removed and Richard Gierloff has been hired to assist Simpson.
