Wade attorneys dispute reasons for execution

An Anchorage jury acquitted Wade in 2003 of killing Della Brown but prosecutors still included her death as cause for the death penalty, stating in court papers that "he raped and murdered Della Brown."

Wade's defense team sharply disputes that and other "aggravating factors" cited by prosecutors.

Wade now is accused of torturing and killing his Sand Lake neighbor, Mindy Schloss, whose body was found in a patch of Wasilla woods in September 2007. His trial is scheduled to begin in March in Fairbanks.

If he's convicted of a capital crime connected to her killing -- he's charged with carjacking and using a firearm, both capital offenses under federal law when connected to a death -- the same federal jury would then hear evidence in a penalty phase. Aggravating factors put forward by the prosecution must outweigh any mitigating factors in Wade's defense. Jurors must be unanimous on the question of whether he would be put to death.

The defense now is trying to limit what evidence goes before jurors in a penalty phase, should it get to that. In a series of motions and memorandums filed this week in U.S. District Court, the defense argued that various factors listed by prosecutors are irrelevant, unreliable or unfair.

Prosecutors haven't yet responded and in complex cases like this often seek extra time.

The defense is challenging assertions about:

• Prior conduct. A state court jury already has decided there wasn't evidence Wade killed Brown, and no physical evidence tied him to the scene, Seattle defense lawyer Gilbert Levy argued in a new court filing. Witnesses who said Wade confessed to them are lying crooks, Levy wrote.

"The Government's presentation of the Della Brown evidence and Defendant's response thereto will result in a trial within a trial, likely to last as long, if not longer, than trial of the crime alleged in the indictment," the defense argues.

• Whether Wade is a violent sexual offender. He's never been convicted of a sex crime, and there's no evidence Schloss was sexually assaulted, Seattle defense lawyer Suzanne Lee Elliott wrote in court papers.

"Thus, this allegation is simply an effort to inflame the jury against Wade based upon speculation and innuendo," Elliott wrote.

• Potential for rehabilitation. Irrelevant, the defense says. If Wade is convicted of killing Schloss and doesn't get the death penalty, he'll spend the rest of his life in federal prison, the defense says.

• Future danger. Prosecutors contend Wade "violently killed two women" so he would continue to be a danger. But the defense says Brown's killing can't be pinned on Wade. At any rate, the only future danger posed by Wade would be to other inmates, not the public, the defense says.

Find Lisa Demer online at adn.com/contact/ldemer or call 257-4390.