MONTGOMERY — The Alabama Court of Criminal Appeals heard oral arguments Monday in the case of William Kuenzel, 53, now on death row for a 1987 murder in Sylacauga.
"Mr. Kuenzel did not get a fair trial," Kuenzel's lawyer, David Kochman, told appeals court judges. "What happened here is horrific."
Kuenzel, a Goodwater resident, was convicted in 1988 for the November 1987 murder of Linda Jean Offord, a convenience store worker who was found dying of a gunshot wound by a co-worker during a late-night shift change. A co-defendant in the case, Harvey Venn, told a jury he waited in his car while Kuenzel entered the store and shot Offord. The two men were roommates at the time of the shooting.
Another witness said she saw both Venn and Kuenzel in the store shortly before the shooting as she rode past as a passenger in a car on Goodwater Highway.
Police later found a 16-gauge shotgun shell in a garbage can outside the house that Venn and Kuenzel shared. Offord was shot with a 16-gauge shotgun.
Kuenzel's supporters have long claimed his innocence, citing a lack of physical evidence in the case. Blood was found on Venn's pants after the murder, but no blood was found on Kuenzel's clothing. Grand jury transcripts, acquired by Kuenzel's lawyers, show that April Harris, the 16-year-old who placed Kuenzel at the scene of the shooting, told the grand jury she "couldn't make them out for sure whether it was Harvey Venn and William Kuenzel or not."
Those transcripts, first revealed in a federal court case in 2010, sparked Kuenzel's current appeal.
"This is a weak case, based on accomplice testimony," Kochman said of the original conviction.
Before the appeals court Monday, Kochman argued that the revelation of new information re-started the clock on Kuenzel's appeals and supported the idea that Kuenzel's initial trial was not fair.
Clay Crenshaw, chief capital litigator for the Alabama attorney general's office, said Harris made only "slight variations" in her grand jury testimony.
"Her grand jury testimony was more equivocal than her trial testimony," Crenshaw said. He said a recorded statement Harris made during the investigation was clear, as was her testimony at trial.
Crenshaw noted that Kuenzel himself pleaded guilty to perjury for a plot to hire fellow inmate to provide him with an an alibi. He said Kuenzel also claimed he had sex with a married woman named on the night of the murder, a claim that fell apart when a witness for Kuenzel, a cousin of the woman in question, recanted her testimony. Crenshaw said Kuenzel still claims he was with someone with the same first name on the night of the murder. Kochman said Kuenzel’s legal team has searched for the woman and has been unable to find her.
"The second attempt at perjury is even worse and is continuing to this day," Crenshaw said.
Kochman said Kuenzel's perjury plea "is a horrible thing for our case," but he said Kuenzel's actions are "not inconsistent with innocence." He said Kuenzel's family (Kuenzel's mother was also accused in perjury case) were acting in desperation.
Crenshaw said shotgun shell wadding found with Offord's body was from the same manufacturer as a shell found in Kuenzel's garbage can, and that the shell in the garbage can was found to have come from a gun Kuenzel borrowed from his stepfather.
Kochman said jurors at the 1988 trial did not know that Venn had also borrowed a 16-gauge shotgun from someone else before the murder. He said notes from investigators show that Venn originally claimed to be with a different person, a friend named David Pope, on the night of the murder.
Crenshaw said that when police first arrived to question Venn and Kuenzel after the murder, they found a notebook, on a table in the home that Kuenzel and Venn shared, containing notes consistent with Venn's original story. Kuenzel refused to submit a handwriting sample that would be used to see if his writing matched the writing in the notebook, Crenshaw said.
"Venn testified that Kuenzel had asked him what he was telling investigators," Crenshaw said. Those questions and Kuenzel's refusal to supply a handwriting sample "reflect a consciousness of guilt," Crenshaw said.
Kochman said there was no evidence to support Venn's court testimony. That testimony placed Venn in a car outside the store while Kuenzel went to and shot Offord.
"Venn has the victim's blood splattered on his pants," Kochman said. "No one can explain that."
Kuenzel's fate may come down to a matter of legal procedure. Crenshaw argued that Kuenzel missed a deadline to appeal based on grand jury testimony that came to light in 2010; Kochman said Kuenzel's lawyers waited until the end of a federal court case to file at the state level, and that judges could allow the appeal to go on.
Judges asked Kochman repeatedly to show how the case falls within the jurisdiction of the state appeals court.
"Let's say that all of us, our hearts are with you," said Judge Sam Welch. "Aren't we mandated by our duty to follow the rules that exist?"
Welch acted as presiding judge of the five-judge panel; presiding Judge Mary Becker Windom recused herself from the case.
The judges recessed after more than an hour of arguments, and it's not clear when they'll rule.
Kuenzel would be dead already if not for the intervention of appellate courts. He was scheduled for execution in March, but the execution was stayed until his state-level appeal is decided. In federal court proceedings last month, the Alabama attorney general's office declared it wouldn't oppose any motions for a stay of execution until the United States Supreme Court rules on the constitutionality of Oklahoma's execution protocol.
A ruling in the Oklahoma case is expected by the end of June.