USA - Oklahoma. Judge Gregory Frizzell has ruled that James J. Fitzgerald, 54, White, is entitled to a new sentencing trial.

Chief U.S. District Judge Gregory Frizzell has ruled that James J. Fitzgerald, 54, White, is entitled to another new sentencing trial. Fitzgerald, who has received a death sentence twice, is entitled to another new sentencing trial because he received ineffective legal assistance at his previous resentencing. Because defense counsel for Fitzgerald decided not to present expert testimony as mitigation for the defense, the jury was "left to conclude that the petitioner (Fitzgerald) was simply a calculating, violent man,'' according to a 101-page order filed recently by Judge Gregory. The resentencing jury in 2000 had no understanding of the interplay of Fitzgerald's diabetes diagnosis, his lack of family support from a young age, damage to the frontal lobe of his brain, and the impact his intoxication had on his brain function, according to Frizzell's filing. The state Attorney General's Office has filed notice of an intent to appeal the resentencing ruling to the 10th U.S. Circuit Court of Appeals. Attorneys from the Oklahoma Indigent Defense System represented Fitzgerald at his 2000 resentencing trial. For the 2nd time, a jury in 2000 sentenced Fitzgerald to die for killing William Russell, 22, a store clerk, during a robbery on July 16, 1994. Guilt was never an issue at that resentencing, where the other punishment options were life in prison with or without parole. The sole issue to be decided by jurors at the 2000 retrial was an appropriate punishment for the murder, and the jury imposed death. Another jury in 1996 had also imposed a death sentence after finding Fitzgerald guilty of 1st-degree murder. The state Court of Criminal Appeals affirmed the conviction in 1998 but overturned the sentence, finding multiple errors in the original sentencing. A surveillance video indicated that Fitzgerald fired a semiautomatic rifle into the store.