Decision delayed in Welton retrial motion

PALMER — Suzette Welton will have to wait to find out whether she will receive a new trial.

Welton, 44, was convicted in 2002 of first-degree murder after her 14-year-old son Samuel died in a fire at their Wasilla home.

Prosecutors at the time said Welton drugged Samuel and another son, Jeremiah, with sleeping pills then started the fire. Welton professed innocence at every turn. She appealed her convicted and lost. Now, she’s asking Superior Court Judge Eric Smith to grant a new trial, claiming her attorneys did a substandard job defending her.

After hearing arguments Tuesday, Judge Smith set a deadline of May 9 for both sides to submit more paperwork. After the deadline, the judge will consider the evidence and, eventually, decide whether Welton’s first-degree murder conviction will stand or if she will have a new trial.

Michael Smith, Welton’s attorney, argued Tuesday that it isn’t so much that her attorneys — George Davenport and Gregory Heath, who is now a District Court Judge in Palmer — a were bad lawyers. In fact, he conceded to Palmer District Attorney Roman Kalytiak’s description of the pair as experienced, seasoned litigators who prepared thoroughly for the trial.

“Our focus is not on the amount of work that they did, but on the work that they missed,” Michael Smith said. “In a close case, little things matter.”

“There’s no right to error-free representation,” Kalytiak said, pointing out that it is up to Welton’s attorney to prove the errors would have resulted in an acquittal.

“Did they do a consistently substandard job or did they make one or two errors?” Kalytiak asked. He argued it was the latter.

Tuesday, Michael Smith focused on three aspects of Heath and Davenport’s case.

First, he claims they left Welton believing she had no right to testify at trial — a right guaranteed by the U.S. Constitution. Second, they did not point out Jeremiah’s interview with a state investigator in which he said he used sleeping pills recreationally. That evidence would have given the defense an alternate explanation for how traces of drugs turned up in tests of Jeremiah’s sweat. Third, Welton’s former attorneys allegedly left the jury bewildered, offering multiple theories for what caused the fire instead of settling on one.

Kalytiak has argued in previous hearings that presenting multiple theories is a common defense. He said Heath decided not to flag the drug use evidence in order to avoid tipping his hand as he had a surprise witness lined up who would testify to first-hand knowledge of Jeremiah’s alleged drug use.

As to whether Welton felt she didn’t have a right to testify at trial, Kalytiak called three witnesses who worked on her defense to get their impressions.

Defense investigator Michelle Lutz testified that Welton vacillated at times between wanting to testify and not wanting to. Ultimately, she said, Welton left the decision up to her attorneys.

Heath said that, contrary to what Welton and her new attorney have alleged, he in no way bullied or coerced her into not testifying. That’s not to say he didn’t inform her of his opinion — that her testimony would be a bad idea, Heath testified. It would have opened the door to incriminating evidence about previous fires and other events in Welton’s past he had fought successfully to have excluded from trial.

Kalytiak asked Heath if he was sure that when Welton decided not to testify she knew she had that right.

“Yes, and I still believe it was the right decision,” Heath said.

Michael Smith argued that the barrage of advice from her attorneys against testifying left Welton believing she did not have the right to decide to go against their wishes.

Contact Andrew Wellner at andrew.wellner@frontiersman.