Judge stops execution in Richardson slayings

11:46 AM CDT on Thursday, September 13, 2007
Associated Press

HUNTSVILLE, Texas -- The scheduled Thursday night execution of a Texas prisoner for his part in the slaying of two workers during a robbery was stopped after the Dallas County district attorney's office asked that the execution order be withdrawn.

Joseph Lave, 42, would have been the 25th inmate given lethal injection in Texas, the nation's busiest death penalty state.

In an order signed late Wednesday, a state district judge in Dallas agreed with the request from District Attorney Craig Watkins, Texas Department of Criminal Justice spokeswoman Michelle Lyons said Thursday.

Lave was convicted of being one of three robbers involved in the beating and slashing deaths of Justin Marquart and Frederick Banzaf, both 18, on the night before Thanksgiving in 1992.

Execution of man convicted in Richardson slayings halted

12:22 PM CDT on Thursday, September 13, 2007
From Staff and Wire Reports

Joseph Lave HUNTSVILLE, Texas - A judge spared a condemned double-murderer from his scheduled Thursday execution at the request of the Dallas County prosecutor whose office sent him to death row.

Joseph Lave, 42, would have been the 25th inmate given lethal injection in the nation's busiest death penalty state.

In an order signed late Wednesday, a state district judge agreed with the request to stop the execution from Dallas County District Attorney Craig Watkins, Texas Department of Criminal Justice spokeswoman Michelle Lyons said Thursday. Watkins, who took office in January, wasn't the district attorney when Lave was sentenced to die.

Lave was convicted of being one of three robbers involved in the beating and slashing deaths of Justin Marquart and Frederick Banzaf, both 18, at a Richardson sporting goods store on the night before Thanksgiving in 1992.

An official with the Dallas County district attorney�s office said Craig Watkins asked the execution to be halted because Joseph Lave�s appellate attorney may not have been given all the relevant information about the case.

Mr. Lave�s attorney was not given the details of a second polygraph by the co-defendant, Timothy Bates. The attorney requested the information for the previous district attorney�s administration and it was not handed over. The official did not know why.

The official said the district attorney�s office asked for stay �out of an abundance of caution.�

The district attorney�s office is now also trying to determine whether the details of Mr. Bates� second polygraph was given to Mr. Lave�s original trial attorney, Richard Franklin.

The execution was the second one canceled in the past two weeks. On Aug. 30, Kenneth Foster was spared by Gov. Rick Perry after the Texas Board of Pardons and Paroles recommended his sentence be commuted to life. Perry said he objected to Foster being tried with a co-defendant.

Like Foster, Lave was convicted and condemned under the Texas law of parties, which makes a co-defendant equally culpable even if he wasn't the actual killer. One of Lave's trial lawyers has argued one of the other three defendants killed the pair.

"We're gratified with the action of the district attorney's office," said David Botsford, one of Lave's lawyers. He deferred all other comment to the prosecutor's office, which didn't immediately respond to requests Thursday for more details.

In the Lave case, Marquart and Banzaf had been bound with duct tape, beaten with the claw end of a hammer and had their throats slit with a knife, leaving them nearly decapitated.

"Probably the worst crime scene I've ever seen," former Dallas County Assistant District Attorney Dan Hagood said this week. "Their heads were caved in."

Evidence showed the assailants left after about a half-hour with almost $3,000 and dozens of shoes, warm-up suits, rifles and shotguns.

Miraculously, a third employee at the store, assistant manager Angie King, then 22, survived a similar attack and was able to call 911 and name a co-worker as one of the assailants.

That man, James Langston, 26, was fatally shot by police outside his Dallas apartment about five hours later as he tried to use his truck to run over an officer seeking to question him. His death led to the arrests of his two companions, Timothy Bates, then 27, and Lave, a former parcel service delivery driver.

Lave's lawyers had appealed to the U.S. Supreme Court to stop the execution, arguing his trial attorneys were unable to challenge damaging statements attributed to Bates because they came from a police officer who interviewed Bates and not from Bates himself.

They also contended new procedures under a Supreme Court ruling -- made after Lave's conviction -- wouldn't allow such testimony now and should be retroactive. The justices are set to consider arguments in a similar case from Minnesota next month. Lave's lawyers wanted his punishment delayed at least until the high court rules in that case.

Bates accepted a plea bargain and agreed to cooperate with prosecutors in exchange for a life prison term. He refused defense requests to testify at Lave's trial. Bates had led authorities to a pond 75 miles away in Hopkins County where divers recovered the knife used in the throat slashings.

"I don't think he should have gotten death when the other guy didn't," said Richard Franklin, Lave's trial lawyer. "They were just about equally guilty. But that's not the way ultimately it all worked out."

A commutation request to the board was rejected Tuesday in a 7-0 vote.

Unlike Foster, Lave was tried alone -- twice -- in Dallas County.

In the first case, he was offered a plea deal related to Banzhaf's slaying.

"He wouldn't take it," said Hagood, who prosecuted the case and won a conviction and life sentence. "I resolved we'd try for life in the first case. ... I told him up front, the next time it would be for death."

In the second case, related to Marquart's killing, jurors convicted him and decided he should die.

King was among the prosecution witnesses, identifying the robbers as Bates and Langston, who had worked at the store for about a year.

Detectives believed Langston made a copy of a store key, allowing him and his companions to enter. Inside Langston's boot, police found a business card from the sporting goods store with Bates' name and telephone number scribbled on the back.

When investigators found Bates, he implicated Lave. Lave had a 1985 conviction for cocaine possession and was described by witnesses at his trial as a hustler who carried a gun. He surrendered in Houston to Dallas authorities four days after the slayings.

Was that the robbery/murder at the Oshmans sporting goods store in Richardson Square Mall? I went to high school right around the corner from there (long before this happened!) and I remember being shocked by it.

What difference would the results of a polygraph make since it is not admissible?

I think it was called Herman's World of Sports, 1718 E. Beltline in Richardson, per his inmate sheet.

[This message was edited by JohnR on 09-14-07 at .]

latest rehash of story: Lave execution postponed

From the last story, it does not sound as if the information was exculpatory, even under the most liberal application of the law. A polygraph is not admissible as evidence at trial. The defense attorney already was challenging the credibility of the testimony. The existence of the polygraph, which the trial lawyer seems to concede he knew about, could not make him try any harder during cross-examination.

"I think I had that information, but I'm not sure specifically what form it took," Mr. Franklin [Lave's trial attorney] said. "It wouldn't have changed the way we did anything because we didn't believe Bates was telling the truth anyway."