From clemency to legal limbo

In a situation one attorney calls ""the weirdest I've ever seen,'' a woman released from prison last year may face a new murder trial.

By SUE CARLTON

© St. Petersburg Times, published August 18, 1999

TAMPA -- Last December, prison inmate Kathleen Weiand got the Christmas present of her life.

Granted executive clemency as a battered spouse in the 1994 murder of her husband, she was released from prison and sent to a residential treatment center. She hopes to be home before her daughter starts kindergarten in a few weeks.

End of the legal story?

Not so fast.

The Florida Supreme Court has ruled on an important issue in her case and reversed her conviction.

The high court's decision, which strengthens the rights of battered spouses, also makes for a perplexing circumstance for Weiand: After being released from prison with a signed order from the governor, she could now face another murder trial.

"She is the first person this has ever happened to," said Weiand's trial attorney, Mina Morgan, who called the situation "the weirdest I've ever seen."

From the start, Weiand's case was controversial.

Prosecutors painted her as a hard-drinking woman who came home the night of Jan. 23, 1994, to her husband, Todd, 26, and their infant daughter. In a violent fight, they said, she broke two knife blades trying to hack her way into the bathroom after him and later shot him through a bedroom door.

But Weiand said that she went after her husband only after he had choked her into unconsciousness and that she grabbed the gun to defend herself. Her attorneys said Weiand suffered from battered spouse syndrome, a psychological condition in which a person believes it is kill or be killed.

Originally charged with first-degree murder, Weiand was convicted in 1995 of second-degree murder and sentenced to 18 years in prison.

As she began serving her term, the 2nd District Court of Appeal affirmed her conviction but asked the Florida Supreme Court to consider an important legal question in the case regarding self-defense. The issue was whether the jury should have been read an instruction related to the "castle doctrine," as in "a man's home is his castle."

Simply put, it means that a person attacked at home does not have to retreat and that she can stand her ground and meet force with force to prevent serious injury or death. For years, the court had upheld the use of deadly force inside a person's own home in self-defense but said the "no-retreat" privilege did not apply when one spouse killed another.

While that issue brewed, things were happening elsewhere for Weiand. She sought clemency from the state's highest elected officials as a battered woman, and in an order signed Dec. 23, then-Gov. Buddy McKay commuted her sentence to time served.

After nearly four years in prison, she was released along with five other women. As part of a clemency contract, Weiand agreed to be under parole supervision for three years, including up to a year in a women's residential treatment program, and to undergo counseling. She was sent to a program in Orlando and took a job as a telemarketer.

Given the situation, Weiand tried to dismiss the pending appeal of her conviction. But the Supreme Court had other ideas, saying there was an issue "of great public importance" to be decided in her case.

Three months after her release from prison, the Supreme Court had its ruling. Reversing its own longtime doctrine, the court said people do not have to retreat from danger inside their own homes, regardless of whether the danger comes from a spouse.

The decision strengthened the self-defense rights of battered spouses. It also left Weiand's case in limbo.

Because of the Supreme Court's ruling, the appeals court reversed Weiand's conviction and ordered a new trial "as may be appropriate in light of the intervening executive clemency order." That phrase left lawyers puzzling as to exactly what was supposed to happen next.

Currently, attorneys are awaiting a decision by the appeals court on another request by Weiand to end her appeal.

As local prosecutors see it, Weiand now is technically a person charged with a crime awaiting trial, not a convicted felon obligated to comply with the terms of her parole supervision.

"We clearly want her to be an adjudicated felon and to be under some form of supervision," said Hillsborough prosecutor Karen Stanley. "We want to be in at least the same position as when she was granted clemency."

Prosecutors would not comment on the possibility of a plea deal, such as an agreement that would include keeping a conviction on her record.

Warren Weiand, father of the victim, Todd Weiand, said recently from his home in Wisconsin that Florida's justice system has left him frustrated. Weiand, a mechanic, has followed the case closely and said he believes she "basically got away with murder."

His choice, given the muddled legal situation?

"I'd like to see her retried and the same sentence handed down," he said. "And this time, no clemency."

Morgan, Weiand's trial attorney, said Weiand was recently granted permission to continue her parole at home in Wisconsin. Her daughter, who was swinging in her infant seat in the living room the night of the shooting, lives there with relatives and is about to start school.

Weiand, who turns 32 this week, expects to be with her daughter by the end of the month. Meanwhile, attorneys wait.

"It's going to be a case of precedent," Morgan said. ". . . Can she be forced to be retried on a case when she has entered a (clemency) contract and done everything she was supposed to do? "Nobody really understands this one," she said.

© St. Petersburg Times. All rights reserved.