- Associated Press - Tuesday, August 26, 2014

IOWA CITY, Iowa (AP) - The death penalty retrial for an Iowa woman convicted of helping kill five people in 1993 will be broader than the trial judge wanted, a federal appeals court ruled Monday.

Jurors will first decide whether Johnson is eligible for the death penalty, and, if so, whether that punishment should be imposed in each death, the 8th U.S. Circuit Court of Appeals ruled. The retrial is scheduled for March.

The 2-1 ruling is a victory for federal prosecutors because it allows them to present evidence that would have been excluded in the narrower retrial previously ordered by U.S. District Judge Mark Bennett.

Johnson was sentenced to death in 2005 for her role in the slayings of three adults and two children in northern Iowa in 1993, becoming the first woman to land on federal death row in decades. Prosecutors say she helped her boyfriend, methamphetamine kingpin Dustin Honken, carry out the killings to thwart a federal investigation into their drug enterprise. Honken was convicted separately and is on death row.

The five bodies were found in shallow graves near Mason City.

Johnson remains convicted and imprisoned. But Bennett ordered her a new sentencing hearing in 2012, saying that her defense was inadequate during that phase of the trial. In particular, the judge said her attorneys failed to present evidence about Johnson’s mental state that may have convinced jurors to spare her life.

Bennett had ruled that the original finding that Johnson was eligible for the death penalty would stand, and the new jury would only need to consider whether that was the appropriate punishment for each count.

Prosecutors appealed. They said that approach would have prevented them from presenting evidence that Johnson planned and premeditated the murders - an aggravating factor that jurors rejected as to four of the five victims.

Appeals Court Judges Roger Wollman and Lavenski Smith joined Monday’s ruling, finding that the new jury cannot be bound by the original finding on Johnson’s eligibility for the death penalty. Doing so would contradict the procedure envisioned in federal law, they said.

“The new jury must determine for itself whether the government has proved the statutory aggravating factors alleged in the notice of intent to seek death penalty,” Wollman wrote.

Dissenting Judge Kermit Bye said the ruling was troubling because “in effect, it vacates an errorless jury decision.”

“With today’s opinion, the government gets a second bite at the apple - a chance to retry Johnson for death eligibility regarding the substantial planning and premeditation of the other four murders,” he wrote.

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