Judge denies appeal in death of slain 2-year-old Hopwood boy
A Hopwood man’s federal appeal in the death of a 2-year-old boy was denied.
More than three years after Franklin Weimer, 42, filed the appeal, U.S. District Judge Joy Flowers Conti found that Weimer’s trial attorney was not ineffective. Weimer, convicted of third-degree murder, claimed his attorney should have asked his 2002 trial be delayed so a defense expert could examine a table.
Weimer, serving 22½ to 45 years in prison for the Jan. 24, 1998 death of Zachary Johnson, claimed he was swinging Johnson around, and the toddler hit his head on a table leg. A prosecution expert testified Johnson, the son of Weimer’s then-girlfriend, was beaten to death.
Using photographs, Weimer’s expert Dr. Wayne Ross testified he could not match the injuries to Johnson’s head to the pattern of grooves and carvings on the table legs.
During a post-conviction hearing in Fayette County Court, Ross testified that even if he had seen the table, it would not have changed his opinion.
“It is clear that the failure of (Weimer’s) counsel at his 2002 criminal trial to seek a continuance so that Dr. Ross could examine the table prior to his testimony, as well as the lack of the table as a visual aid, did not impair Dr. Ross’s ability to demonstrate his theory to such a degree that confidence is undermined in the outcome,” Conti wrote. “The expert’s testimony is premised on (Weimer’s) version of events. His opinion is only helpful if the jury believes the multiple, devastating wounds were produced by accident.
“Even if the expert had examined the table and provided the same opinion … there is no reasonable probability of a different result.”
Filed in 2008, the appeal took three years to resolve.
In a lengthy footnote, Conti took county prosecutors to task for submitting a legal brief that had “no real legal arguments” to counter Weimer’s contention, and for submitting records that were “so poorly organized as to appear to be the result of the scanning of a pile of random documents related to (Weimer’s) underlying criminal cases.”
Conti noted that documents associated with the case were scanned in the incorrect order.
“In order to adjudicate this case properly, this court was forced to comb through roughly 3,600 pages of exhibits provided by (prosecutors), and create an index cataloging which exhibit on the docket contained which documents from the state court record. This undertaking was not a trivial matter, and it unnecessarily and unacceptably delayed the resolution of this case,” Conti wrote.