May 18, 2012 Source : http://theadvocate.com

Todd Wessinger must receive a third federal court hearing on his push to overturn his death sentence after being convicted of murdering two workers at a Baton Rouge restaurant in 1995.

U.S. District Judge James J. Brady scheduled the hearing for Dec. 13, according to court documents filed Wednesday.

In February, Brady denied Wessinger, 44, a new trial. The judge ruled that “overwhelming” state court evidence supported Wessinger’s conviction on charges that he murdered 27-year-old Stephanie Guzzardo and 46-year-old David Breakwell at the since-closed Calendar’s restaurant on Perkins Road.

In April, however, Brady took additional defense motions under consideration and indefinitely blocked Wessinger’s scheduled May 9 execution.

On Wednesday, Brady rejected four of Wessinger’s latest five claims of state court errors.

But the judge ruled that Wessinger’s claim of “ineffective assistance of counsel at the penalty phase of the trial” is “deserving of further proceedings.”

By limiting his latest ruling to the penalty phase of Wessinger’s trial, Brady signaled his future decision would either support or overturn the jury’s imposition of the death penalty. The murder conviction stands.

Brady noted that an on-point ruling by the 5th U.S. Circuit Court of Appeals — which governs federal court decisions in Louisiana, Texas and Mississippi — shows new claims of mental illness, low intelligence and childhood abuse can be raised at sentencing and on appeal.

The judge noted the 5th Circuit’s decision only applies to defense evidence on federal appeal that is “significantly different and stronger” than defense evidence presented to state courts.

But Brady added Wessinger cannot win a new sentencing hearing unless he can show his defense attorney’s failure to present new evidence of his claimed mental problems at sentencing was so significant that “he might not have received the death penalty.”

In April, defense attorneys argued Wessinger suffered childhood seizures and physical and emotional abuse, developed substance addictions and was traumatized by the deaths of his children prior to the murders of Guzzardo and Breakwell.

Those arguments were presented by appellate attorneys Danalynn Recer, of The Gulf Region Advocacy Center in Houston; Soren Gisleson, of New Orleans; and Federal Public Defender Rebecca Hudsmith, of Lafayette.

Assistant District Attorneys Dale R. Lee and J. Christine Chapman argued against Wessinger’s stay of execution.

Chapman and Lee told Brady the families of Guzzardo and Breakwell “have endured years of uncertainty and appeals. They undoubtedly endure harm each day that the lawful sentence of the court is not carried out, and they are clearly entitled to finality and closure.”

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