Stephen J. Lee, Forum News Service, Published February 25 2014
Man serving life sentence for Cooperstown murder asks for new trial
But a state prosecutor said Wacht, who is working as his own attorney from the state prison in Bismarck, hasn’t provided enough information yet to win a hearing.
Wacht, now 33, was sentenced in August 2012 to life in prison for shooting Kurt Johnson, a North Dakota State University transportation researcher, in the forehead shortly after they had been drinking together in a Cooperstown bar on New Year’s Eve 2010.
Johnson, 54, last was seen alive being helped into Wacht’s van that night outside the bar, according to trial testimony.
Within five days, Johnson’s severed head was found in the basement crawl space of Wacht’s rented home in Cooperstown, as were bloody items elsewhere in the house. Wacht, who had moved to Cooperstown from California only months before, was arrested.
Wacht denied the charge and didn’t testify at his trial in April 2012. Johnson’s body hasn’t been found.
Last July 18, the North Dakota Supreme Court filed its denial of Wacht’s direct appeal in which he argued there wasn’t enough probable cause for investigators to search his home and van, and that his attorney was ineffective.
In his new petition for post-conviction relief, which is a civil action separate from his direct appeal, Wacht sued the state, arguing again that his trial lawyer, Steve Mottinger, was ineffective.
Wacht said Mottinger did not “take appropriate actions to remove a family member of the victim from the jury,” or “argue effectively against the use of undocumented evidence,” according to his handwritten petition dated Feb. 15. The Supreme Court had ruled the evidence against Wacht was “overwhelming.”
But Wacht added a new wrinkle in this month’s petition: “new evidence has been obtained that shows a key state witness fabricated testimony.”
Wacht wrote that “several sworn affidavits have been obtained by people who lived with the state witness before and during the trial which show that said witness’ testimony was false/fabricated. This information was not available at the time of trial and was not heard by the jury.”
His conviction and/or his sentence should be overturned and he should get a new trial, Wacht argued.
Lack of evidence
Jonathan Byers, an assistant attorney general for North Dakota who assisted in prosecuting Wacht at trial, argued that Wacht failed to give enough specifics in his petition, including the identities of the prosecution witness or those who provided the new affidavits.
Earlier this month state District Judge John Paulson granted Wacht an extension until Feb. 28 to file a more “concise statement” of his grounds for post-conviction relief according to state rules and in line with Byers’ response.
Wacht’s former attorney is considered one of the most experienced and best criminal defense attorneys in the state, said Robin Huseby, who directs the state’s public defender program.
For this post-conviction relief stage, Wacht was assigned a new attorney, Mark Blumer of Fargo, but Wacht apparently filed his own petition.
Wacht told the court he had trouble reaching Blumer, so he filed his own motion on Jan. 22 to have state District Judge James Hovey of New Rockford, who presided at his trial and sentenced him, removed from hearing this stage of his appeal. Paulson then was assigned to the civil case.