‘Uncommon’ legal questions arise in Wendy Howard trial

But then defense attorney Tony Lidgett said during the hearing Howard has actually been acquitted of every charge, and prosecutors cannot relitigate the same facts. He then entered a “once in jeopardy plea” and Friday’s hearing concluded.

Lidgett’s response stems from various decisions made by attorneys and Kern County Superior Court Judge Charles Brehmer during trial and when instructing jurors about the case. These moves are uncommon and unique, said local defense attorneys.

“I’ve never seen it done before,” defense attorney Mark Anthony Raimondo said of Howard’s trial.

THE CASE

Howard was in a relationship with Pitts during which he strangled her, beat her and attempted to rape her, she previously testified in her own defense.

But she escaped, and didn’t encounter him again until 14 years later in 2019. That’s when she found out that their daughter, Bayley Frost, suffered sexual abuse from her father in her mid-teens.

The Tehachapi Police Department launched an investigation into Frost’s allegations about her father. They told Howard and her family to act nonchalant around Pitts to ensure he remained unaware of their investigation.

Pitts, who lived on the same street as Howard in Tehachapi, asked June 5, 2019 if he could bring his grandson to her house to play with her children. Howard said yes.

Prior to Pitts arriving, Howard testified, she learned about another victim who also endured sexual abuse by Pitts.

Howard and Frost discussed confronting Pitts with the evidence of his molestation of Frost, and Howard put a gun in her waistband. She met him outside, and eventually shot him.

Chief Deputy District Attorney Eric Smith said Howard’s anger at Pitts bubbled and overwhelmed before she shot Pitts. He showed text messages of her emotions prior to Pitts dying, and said she wanted to exact justice upon the man who abused her.

Howard testified she shot Pitts because she feared him after enduring abuse at his hands. She also testified she wanted to protect her children who were close by.

Jurors, after the 10-day trial, acquitted Howard on Oct. 21 of involuntary manslaughter in addition to first- and second-degree murder. However, jurors had two options when weighing voluntary manslaughter: they could find her guilty of that charge done in imperfect self-defense, or done in the heat of passion.

Seven jurors thought her guilty of voluntary manslaughter in the heat of passion, while five sought an acquittal. She was acquitted of voluntary manslaughter in imperfect self-defense.

A gag order bars attorneys from speaking on the case.

LEGAL PROCEDURE

It’s very uncommon for jurors to be allowed to weigh separately the components of voluntary manslaughter, local defense attorneys not involved in this case said.

Typically, jurors will consider voluntary manslaughter as one charge. But Brehmer dividing the charge is something defense attorney Raimondo has never seen.

”It doesn’t come up often,” agreed local defense attorney Jared Thompson.

The dual charge is what enabled Howard’s defense attorney, Lidgett, to enter a once in jeopardy plea.

Lidgett said during Friday’s hearing he’s been talking with defense attorneys and appellate lawyers about this case and Howard has been acquitted of voluntary manslaughter. That’s because jurors already returned with a not guilty verdict on that charge, and therefore the DA shouldn’t be able to relitigate the same facts, defense attorneys said.

A once in jeopardy plea stems from the U.S. Constitution and California Constitution, Raimondo said. It’s to ensure that defendants cannot be retried on the same charges when they’ve been acquitted of them, attorneys explained. Exceptions to this rule could happen if there’s jury tampering or bribery.

“It’s a very, very complicated issue,” Raimondo said.

A motions date was set for Feb. 21 for Lidgett to argue how a once in jeopardy plea should stick in this case. Brehmer said during the hearing the attorneys had an “extensive” conversation about a resolution to the case, but couldn’t come up with one. He didn’t address the issue further.

Lidgett could request the appellate court to step in if Brehmer denies the motion. He could argue how an open plea sticks to this case and 5th District Court of Appeal judges could vacate the trial court’s decision based on this argument, Thompson said.

If an appeal is filed, a trial wouldn’t happen until a decision is handed down.

But Raimondo also doesn’t see the DA trying to retry Howard for voluntary manslaughter — Howard could get on the stand and say the killing was planned, he said.

“The DA spends her whole career trying to prove people did not act in the heat of passion,” Raimondo said. “It would be very, very difficult for them to argue in the heat of passion.”