State takes case to highest court

BOISE – In less than a week, Idaho will ask the U.S. Supreme Court for help keeping a convicted murderer behind bars.

If the request is turned down, it will be up to rural Idaho County to decide the fate of Mark Henry Lankford: Freedom, or a costly repeat of the 1983 trial that sent him to death row.

Neither prospect is desirable to county residents, said county clerk Rose Gehring. A repeat of the murder trial is expected to cost as much as $1 million, she said – not exactly money the county just has lying around for a rainy day.

“I don’t believe in budgeting for a murder trial,” Gehring said. “If we have to put half a million into the trial, do we have to lay people off in another department? All for a possible murder trial? That would short our county tremendously.”

And then there’s the matter of tracking down anyone who testified in the original trial. The forensic pathologist from the original trial has since died, said Idaho County Commissioner Randy Doman.

“Several of the key players are no longer available,” Doman said. “We either don’t know where they are or we can’t reach them because they’re on the other side of the veil.”

There were no eye witnesses to the crime, some witnesses who testified that they saw Lankford in the area still live in the region. Most of the evidence remains in the Idaho County Courthouse.

Lankford wouldn’t win any popularity contests in the area: Back in 1983, the case shocked the conservative sensibilities of the rural county, and made headlines across the state.

Idaho County Prosecutor, Kirk MacDonald – who did not return calls – will make the decision on whether to hold a new trial, Doman said.

“I think he’s weighing all the options. I feel sorry for him – it’s not an easy decision,” Doman said.

Meanwhile, the commissioners are hearing suggestions for another kind of “justice” from local residents, he said.

“I get lots of advice from the locals. They say give him back his cowboy boots and t-shirt and turn him loose in the Clearwater where the crime took place, and they’ll take care of it,” Doman said. “Or, they say let the wolves have him. The unfair thing is that the perpetrators of the crime and the victims of the crime are all from Texas, just passing through Idaho County, and the 15,000-plus residents here had to pay for it. Now they may make us pay again.”

Lankford and his brother, Bryan Lankford, were both convicted of the murders of a young Texas couple who were camping in the northern Idaho wilderness. U.S. Marine Capt. Robert Bravence, 27, and his wife, Cheryl, 25, were beaten to death near the Clearwater River, and each brother blamed the other for the crime.

But Bryan testified against his brother, and while Mark Lankford was sent to death row, Bryan was given life in prison without parole.

Now Mark Lankford’s potential release hinges on a 9th U.S. Circuit Court opinion handed down in January. The appellate court found that although federal law would have allowed Bryan Lankford’s uncorroborated testimony against his brother, Idaho law forbids it – and that meant that Mark Lankford’s trial lawyer Gregory FitzMaurice denied his client the right to effective counsel when he told the jury they could consider the testimony.

Lankford’s attorney, Andrew Parnes of Ketchum, is optimistic that the nation’s highest court will either refuse to consider the state’s petition or simply uphold the lower court’s ruling.

“It was a three-to-zero decision in the 9th Circuit,” Parnes noted. When the state asked for an en banc hearing – where all of the judges in the 9th Circuit would have considered the case – the entire circuit refused, Parnes said.

Deputy Attorney General LaMont Anderson, meanwhile, is hoping the U.S. Supreme Court will simply tell the 9th Circuit to reconsider its ruling.

“There are multiple ways to be convicted of first-degree murder,” Anderson said. “One is premeditated murder, another is felony murder.”

In felony murder, prosecutors must simply prove that someone was killed during the commission of a felony. Anderson believes that Mark Lankford would have been convicted even without his brother’s testimony, so even if the jury considering that uncorroborated account of the murder led to Lankford’s conviction, no real harm was done.

“I think they’ve raised that argument before, and it’s been rejected,” at the lower court level, Parnes said. “But, I’ll have to see it.”