OGDEN — Death row candidate Doug Lovell’s public defenders are trying to remove the judge in the case, accusing him of bias.
The lawyers seek to disqualify 2nd District Judge Michael Lyon from sitting for Lovell’s coming trial for the 27-year-old murder of Joyce Yost, of South Ogden. Lovell was once sentenced to death for her killing after describing how he did it on the stand.
“In a case where the stakes are at their highest, the risk is too great to have the proceedings presided over by a judge who appears to want what the victims want: Lovell dead,” reads the motion.
As per normal policy, Lyon has transferred the motion filed by Michael Bouwhuis and Sean Young to another judge for review, senior 2nd District Judge W. Brent West. The motion canceled a Friday hearing on defense funding requests for the hiring of experts and other issues.
Lovell, 54, got off death row in July 2010 after almost 17 years there when the Utah Supreme Court ruled he could withdraw his guilty plea to Yost’s murder, citing technical errors when the plea was entered in 1993.
According to the disqualification motion filed this week: In April 2006, as part of an unrelated appeals process, Lovell sought to clarify testimony he had given at a hearing in November 2005. Lovell asked Judge Lyon to let him take the stand again.
Among issues at the April 2006 hearing was whether it was clear in the record that Lovell did not have his lawyer present with him during each of the numerous visits to Ogden Valley for the five-week search he led officials on in 1993. He sought unsuccessfully to locate the site where he had buried Yost eight years earlier.
Finding her remains was a condition of his plea bargain for which prosecutors were willing to forego the death penalty. When no sign of Yost was recovered, the Weber County Attorney’s Office asked for the death penalty, and Judge Stanton Taylor, since retired, opted for execution instead of life in prison.
At the April 28, 2006, hearing, Lyon denied Lovell; with his remarks included in a transcript that is part of the disqualification motion:
“And my concern is that Mr. Lovell is sitting in his prison cell, pouring over the transcripts, looking at everything that he could have said or wanted to say, and now he wants to say more. And there, potentially, is no end to any of this.
“I mean this could go on ad infinitum, as he just continues to look for something that he can hang his hat on in this case.
“And I have a responsibility to bring this case to some closure. I don’t want to cut off any substantive right, but there is a point where you just say what you need to say and when you’re through, you sit down and you let the chips fall where they will.”
A few minutes later in the same hearing, Lyon elaborated in similar remarks, according to the transcript:
“This could go on forever and I’m just not going to permit you to clarify your testimony. I’m just not. It’s over. I’ll hear motions that are before the court today. We’re just not going to keep dragging this on. There has to be some closure for the victims in this case.”
Such concern for the victims “reveals not only a level of frustration on the judge’s part, but also a desire to bring about the victim’s family’s wishes,” claims the motion.
It argues that the family’s desire that Lovell be put to death is well known to the judge from family members’ remarks in the media over the many years of the case going through the courts.
“It is understandable that the victim’s surviving family members would have such an emotional investment in the case,” reads the motion. “It is the court’s job, on the other hand, to remain professional and dispassionate.”
The motion argues that judges have an enormous influence on juries during a trial, so “it is imperative that judges avoid even the appearance of partiality. ... Even small behavioral clues that are given unintentionally by a judge can easily influence a jury.”
Lovell’s case is unusual because he actually took the stand at his 1993 sentencing hearing and openly described how and why he killed Joyce Yost in 1985.
He remains in prison for Yost’s rape that same year, the murder committed to keep her from testifying at trial about the rape. He is serving a term of 15 years to life for the rape, convicted despite her disappearance.