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Federal judge denies convicted killer's request for new trial

Shawn Foucher • Jul 31, 2010 at 3:10 AM


A federal judge has denied convicted killer DeWitt McDonald's request for a new trial, effectively closing the book on allegations that Erie County Prosecutor Kevin Baxter had forced a trial witness into a sexual relationship years ago.

U.S. Northern District Judge Jack Zouhary on Friday denied McDonald's petition for a writ of habeas corpus, a move that ends McDonald's chance at a new trial.

McDonald was convicted of murder in the 1994 death of Vivian Johnson, who died from a gunshot wound to the neck in what authorities described as a drive-by shooting gone awry.

McDonald, in prison since 1995, has proclaimed his innocence for years.

In November, federal magistrate Judge Vernelis Armstrong said McDonald should be granted a new trial based on a woman's disputed claim that Baxter, prosecutor in the case, had a sexual relationship with her when she was a key witness in the case.

The woman, Sandusky resident Krista Harris, had accused Baxter of coercing her to provide false testimony against McDonald, but she did not adhere to that claim consistently.

Harris claimed Baxter coerced her into a non-consensual sexual relationship, but she didn't adhere to that claim consistently, either.

Baxter has vehemently denied the allegations, and late last year he called Armstrong's recommendation for a new trial "an aberration" that "makes no sense."

Armstrong said McDonald's trial was "fundamentally unfair" because Baxter didn't disclose the alleged relationship with Harris.

Zouhary called together a day-long hearing on June 29, where Harris, police and others in the case submitted oral testimonies. He held the hearing specifically to determine Harris' credibility.

At the hearing, however, Harris clammed up and said repeatedly she could not recall any past allegations or events involving Baxter.

Harris was convicted in 2001 of stealing tens of thousands of dollars from a relative. She appealed her case and landed a new trial, but was convicted a second time as well.

She served a total of five years in prison for theft charges.

In a ruling delivered Friday, Zouhary said the circumstances surrounding Harris' allegations against Baxter amount to a "classic 'he said, she said' case."

"The evidence undermining the reliability of Harris' new allegations is considerable," Zouhary wrote.

He said Harris made the allegations against Baxter while facing theft charges, and she was represented by Elsebeth Baumgartner, "an attorney known to fabricate accusations against public officials."

Zouhary also concluded that Harris offered three different accounts of McDonald's whereabouts on the night Johnson was shot, and he pointed out that Harris is now "unable, or unwilling, to recall any details whatsoever about her allegations against Baxter or her role in (McDonald's) trial."

On Friday, Baxter said he was always confident Zouhary would review the facts and make a just decision.

"I'm pleased but not surprised," Baxter said. "I figured at the end of the day Judge Zouhary was going to make the right decision."

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