Fourth District Judge George E. Ballif has taken under advisement final oral arguments on whether convicted murderer George Wesley Hamilton should get another trial on charges that he murdered a Southern Utah State College student Aug. 1, 1985.
"I'll rethink a few things, and I'll have a decision before long," Ballif said following Friday's hearing.Ballif must decide whether jury misconduct during Hamilton's August 1987 murder trial is sufficient to merit a new trial. Last June, the Utah Supreme Court ordered him to determine whether Hamilton deserves a new trial on grounds that a juror brought a prejudicial newspaper article about the case into jury deliberations. The jury subsequently convicted Hamilton, who is serving five years to life in the Utah State Prison.
On Friday, defense counsel Fred Metos, joined by co-defense counsel Ron Yengich, said the article in question provided the jury with direct evidence tying Hamilton to the murder. Hamilton was convicted on circumstantial evidence.
The article quoted Robert Bott, a second suspect in Sant's murder, as saying Hamilton killed Sant. Bott and Hamilton originally were to be tried together, but murder charges against Bott were dismissed for lack of evidence. Bott was dropped as a witness because prosecutors decided his testimony was unreliable.
After believing he had been granted immunity from prosecution, Bott retracted earlier denials of involvement in the slaying and confessed to sexually abusing Sant and mutilating her body after Hamilton killed her.
The other seven jurors refused to look at the article, Metos said, but the juror who brought the article to deliberations obviously read it and probably was influenced by it.
During the trial, Ballif repeatedly admonished the eight jurors not to read newspaper stories or watch television reports about the proceedings.
"The state cannot meet the burden of overcoming this prejudice," Metos said. "It's an article that should not have been written in the course of the trial."
Metos said he believes Hamilton was denied a fair and impartial verdict. "This does have constitutional implications," he said.
Metos said the state has to prove to the court's satisfaction that the article "was harmless beyond a reasonable doubt."
Dave Thompson, special deputy counsel for the state, said the state admits juror error. But he said the article in question wasn't necessary prejudicial to the verdict because of the strength of circumstantial evidence upon which Hamilton was convicted.
"There's no doubt the defendant was guilty," he said. "There's a serious question whether the Supreme Court would uphold serious error in such cases."
The case already is on appeal before the high court, which will review Ballif's decision should he decide not to grant a new trial. If the case must be retried, Millard County Attorney Warren Peterson said he doesn't want to wait on several years of appeals before doing so.
"The county hopes there is not a new trial. We're disappointed with the jury misconduct," Peterson said. But, he added, "As for Judge Ballif, he's in a very difficult position. He could rule either way and have a sound legal basis."
Sant, a Southern Utah State College student, disappeared Aug. 1, 1985, while hitchhiking from Cedar City to Fillmore to attend a funeral. A road crew found her mutilated torso about two weeks later in a shallow grave off an I-15 exit near Cove Fort.