- The Washington Times - Friday, September 14, 2007

HUNTSVILLE, Texas (AP) — A judge spared a convicted double-murderer who was to die yesterday, after the prosecutor’s office discovered evidence that they said had been withheld from the condemned man’s attorneys.

A second polygraph test given to a co-defendant of Joseph Lave came to light within the past few days and reflects on the man’s credibility, said Mike Ware, special assistant in the Dallas County district attorney’s conviction integrity unit.

Prosecutors say several attorneys who are no longer with the district attorney’s office misled the court by saying that the evidence did not exist, Mr. Ware said. He declined to discuss the polygraph results in detail.

Lave’s lawyers had been requesting the information for years, and Mr. Ware said it appeared that the two previous district attorneys failed to turn it over. Craig Watkins became Dallas County district attorney in January.

Lave was one of three robbers involved in the beating and slashing deaths of Justin Marquart and Frederick Banzaf, both 18, at a Richardson sporting goods store on the night before Thanksgiving in 1992.

In an order signed late Wednesday, a state district judge agreed with Mr. Watkins’ request to stop the execution.

The execution was the second canceled in two weeks. On Aug. 30, Gov. Rick Perry spared Kenneth Foster after the Texas Board of Pardons and Paroles recommended that his sentence be commuted to life. Mr. Perry said he objected to Foster being tried with a co-defendant.

Lave was convicted and condemned under a Texas law that makes a co-defendant equally culpable even if he wasn’t the actual killer. One of Lave’s trial lawyers has argued that one of the other robbers killed the pair.

“We’re gratified with the action of the district attorney’s office,” said Lave lawyer David Botsford.

Mr. Marquart and Mr. Banzaf had been bound with duct tape, beaten with the claw end of a hammer and had their throats slit with a knife, leaving them nearly decapitated. Evidence showed the assailants left the store after about a half-hour with almost $3,000 and dozens of shoes, warm-up suits, rifles and shotguns.

A third employee at the store survived a similar attack, called 911 and named a co-worker as one of the assailants.

That man, James Langston, 26, was fatally shot by police outside his Dallas apartment about five hours later as he tried to use his truck to run over an officer.

Inside Langston’s boot, police found a business card from the sporting goods store with the name and telephone number of another robber, Timothy Bates, scribbled on the back.

Bates implicated Lave and agreed to cooperate with prosecutors in exchange for a life prison term, but he refused defense requests to testify at Lave’s trial.

Lave’s lawyers had appealed to the U.S. Supreme Court to stop the execution, arguing that his trial attorneys were unable to challenge damaging statements attributed to Bates because they came from a police officer who interviewed Bates and not from Bates himself.

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