Welton seeking new trial

PALMER — A Palmer judge may decide this week whether a new trial is warranted in the case of Suzette Welton, 44, convicted in 2002 of murder and sentenced to 99 years in prison for a house fire that killed her 14-year-old son.

Welton was the subject of a seven-week trial during which prosecutors argued she took out life insurance policies on both her sons prior to the fire. The day of the fire she slipped them sleeping pills then torched their Mulchatna Drive home, prosecutors said.

In two days of arguments this past week before Superior Court Judge Eric Smith, Welton’s attorney, Michael Smith, told his reasons for believing Welton was poorly represented at her trial and during her appeal.

Smith called as an expert Paul Maslakowski, head of Palmer’s office of public advocacy, who testified that, in his view, Welton’s trial attorneys George Davenport and Gregory Heath, now a Palmer District Court Judge, erred in four major ways.

First, they presented multiple theories as to what happened in the house when it burned down, Maslakowski hypothesized. They argued the son who died, Samuel, or another son, Jeremiah, could have been playing with fire. Or, they could have been playing with fire together. One or the other of them could have been depressed and wanted to die. Or, it could have been an accident.

In Maslakowski’s view, multiple theories confuse juries.

Second, he said Heath and Davenport didn’t prepare Welton to testify. Even though they believed she wouldn’t, he said it always makes sense to prepare, because the decision, in the end, is the defendant’s.

Third, Maslakowski said his attorneys didn’t cross examine Jeremiah Welton regarding an interview he had with Leonard Wallner, then an Alaska State Troopers investigator based in Palmer, who is now a trooper sergeant based in Anchorage. In that interview, Jeremiah said he sometimes took sleeping pills recreationally, something that would have given another explanation for the sleeping medications later found in his sweat and in drinking glasses at the home and used as evidence against Welton.

Fourth, Maslakowski argued Heath and Davenport often tag-teamed during trial, with one leaving to talk to upcoming witnesses or do other work while the other stayed in the courtroom. That left the jury with the impression they weren’t entirely focused on the trial.

Assistant District Attorney Roman Kalytiak, who more often than not works in opposition to defense attorneys, in this instance played the role of defending the work of Heath and Davenport.

“Boy, it seems to me that you’re setting a very high bar for defense attorneys in Alaska,” Kalytiak told Maslakowski.

Maslakowski noted that mistakes can be made. Attorneys don’t have to be perfect, but, in this instance, the defense fell below the minimum standard.

On his side, Kalytiak said Heath and Davenport had years of experience in the criminal defense field and spent years preparing for Welton’s trial.

He pointed out, apropos of the contention that lawyers should never leave the courtroom, that Alaska has limited resources and perhaps it might make more sense for an attorney to spend quality time with a witness than to stay in court and listen to testimony he’s sure his partner can handle.

What’s the point of working in teams if you aren’t allowed to engage in that kind of tag-teaming? he asked.

Maslakowski said he believes it is a lawyer’s job to do all that work prior to trial so as not to have to leave while trial is in progress.

Kalytiak said that had Welton testified, it would have been disastrous. Prosecutors would have a chance to confront her and bring up evidence she may have started fires before, evidence that was otherwise inadmissible.

Eric Smith interjected to offer Maslakowski a different concept of the defense, gleaned from Heath’s testimony.

“Mr. Heath said he thought he had one theory, and it’s that we don’t know what happened and they can’t prove it,” Judge Smith said.

The other theories Maslakowski identified, Judge Smith said while quoting Heath, were used not to explain what happened in the house, but to show the jury that nobody knew what happened.

Maslakowski said he didn’t agree.

Michael Smith questioned Joe Josephson, who wrote Weylon’s appeal, which focused on one point — that prosecutors had not presented enough evidence to convict Welton.

There was no direct evidence linking Welton to the crime. There was evidence — such as a receipt from Carrs showing Welton bought gas cans and sleeping pills — but none that she was the one to administer the drugs or pour gasoline around the house.

Michael Smith asked Josephson if he’d considered including other points: that the venue for the trial (Palmer) should have been changed to allow for a less-biased jury to be selected or that a tape showing Jeremiah Welton may have used marijuana recreationally wasn’t allowed into evidence.

Josephson said he felt appeals with multiple points were often distracting to judges and didn’t allow them to focus on the central issue.

Judge Smith is set to hear further arguments Tuesday. The end result will be a decision from him as to whether Welton will stand trial a second time.

Contact Andrew Wellner at andrew.wellner@frontiers-man.com or 352-2270.