New sentence — yet again — for Boise killer

Lacey Sivak, formerly on death row in a 1981 slaying, could get life in prison.

jsowell@idahostatesman.comAugust 26, 2013 

Lacey Mark Sivak

FILE PHOTO

  • Judge disappointed by witnesses' lies

    Retired Fourth District Ada County Judge Robert Newhouse presided over Lacey Sivak’s murder trial and sentenced him to death four times between 1981 and 1992 — with each sentence later overturned.

    In 2011, the 9th U.S. Circuit Court of Appeals threw out the fourth sentence because two jailhouse informants lied about receiving help with their legal troubles in exchange for testifying against Sivak.

    The appeals court said Newhouse might have viewed the testimony by Jimmy Leytham and Duane Grierson — who said Sivak confessed to killing Wilson — in a different light had he known they lied under oath.

    “I certainly would have,” Newhouse, 78, said Friday during a phone interview from his home in Henderson, Nev. “I didn’t know anything about that at the time. As far as I knew, they were telling the truth.”

    He said he was disappointed to learn vital information had been withheld from him and the defense.

    “If there was fraud, that should have been investigated,” Newhouse said.

    The judge, who retired in 1999 after 20 years on the bench and who also sent killer Thomas Creech to death row, said he grew frustrated with having Sivak’s case return again and again.

    “The state is wasting a lot of money. It’s been over 30 years since he was first convicted,” Newhouse said.

Not all of the witnesses are still alive. Critical testimony at the original trial was marred by a lie.

One constant after 30 years is that Lacey Mark Sivak, now 54, is guilty of murder and burglary. This week, an Ada County judge will decide what could be Sivak’s final punishment.

The story begins with Dixie Bell Wilson heading to work.

Wilson left her home on Lilly Drive, off North Five Mile Road in Boise at 6:20 a.m. on April 6, 1981. She drove 15 minutes to reach her job as a cashier at a Phillips 66 gas station on West Chinden Boulevard, near East 37th Street, in Garden City.

The station owned by Baird Oil didn’t open until 7 a.m., but Wilson turned on the pumps early and a customer filled his tank and paid for his purchase at 6:45. Inside the gas station office, the customer saw two men with Wilson; she did not speak to him and the customer later described the atmosphere inside the office as “tense.”

Fifteen minutes later, another customer found Wilson crumpled and gasping for air on the floor of the back room of the station. Wilson’s face was bloodied and she was surrounded by a pool of blood. Her blouse had been pulled up. The company determined that $385 in cash and checks was missing from the station.

Wilson had been shot five times in the face and head and stabbed 20 times around her head, neck and shoulders. She died that day in the hospital emergency room.

Sivak — one of the two men convicted of killing Wilson and of burglarizing the gas station — returns to Fourth District Court on Monday to be sentenced for a fifth time. Three times, the Idaho Supreme Court overturned his death sentence on technical grounds. Two years ago, the 9th U.S. Circuit Court of Appeals ruled that the sentencing judge should have been told that two jailhouse informants who testified against Sivak lied about receiving preferential treatment in their own criminal cases.

This time, prosecutors will seek a life sentence for Sivak. It would match the sentence given in 1981 to co-defendant Randall Wayne Bainbridge, the other man seen in the gas station office with Wilson. Judge Ron Wilper will make the decision after a sentencing hearing that is expected to take less than a week.

1981 TESTIMONY

In the 32 years since Wilson was killed, several witnesses who testified at the 1981 trial have died. Prosecutors and defense attorneys will be able to introduce those witnesses’ testimony into evidence through written transcripts.

Witnesses expected to testify in person this week include retired Ada County Coroner Mike Johnson and Vaughn Killeen, who was then a prosecution investigator and who later served for 20 years as Ada County sheriff.

Roger Bourne, the chief deputy Ada County prosecutor who is handling the case, has declined comment. Likewise, defense attorneys Robert Chastain and Deborah Kristal have not commented publicly on this latest hearing.

Johnson said he is willing to discuss the case, but not ahead of his testimony.

Sivak, who had turned 22 three days before the murder at the gas station, and Bainbridge, then 25, both admitted being present when Wilson was killed. Each blamed the other for the murder.

Sivak had been fired for stealing cash from the gas station. In a complaint to a supervisor, Sivak accused Wilson of altering his daily cash report to make it appear that his deposits were short, according to court documents. The supervisor grew tired of the conflict between the two, and Sivak was terminated.

He continued to frequent the station and warned other workers to be wary of Wilson. Six weeks after he was fired, Sivak stole a .22-caliber pistol, an extra cylinder and a small derringer from a hardware store where his mother worked.

Police later recovered the two guns and cylinder and determined that Wilson was shot with bullets from the .22. Sivak’s fingerprint was found on the gun’s barrel.

SPECIAL TREATMENT

Jail inmate Jimmy Leytham testified at trial that Sivak confessed to having shot and stabbed Wilson. Leytham said Sivak told him he had held a grudge against her.

Leytham denied receiving a benefit for testifying, even though he admitted pending burglary and escape charges against him were dismissed. He testified against Sivak and Bainbridge, and in a separate case, a man accused of murder in Kansas.

Former Ada County Prosecutor Jim Harris wrote a letter to the head of the Idaho state parole board asking that Leytham be given additional consideration for parole based on his testimony in the three cases. Killeen, in his role as investigator, wrote a letter summarizing the prosecution’s plan to seek dismissal of two pending charges against Leytham and a reduction in sentence and parole in other cases in exchange for his testimony.

Judge Robert Newhouse oversaw Sivak’s murder trial and his past four sentencings — sending him each time to death row. But the 9th Circuit concluded that Newhouse would have discounted Leytham’s testimony if the judge had known that Leytham lied when he said he wasn’t given special treatment, and when he said he didn’t know whether the prosecution was involved in his charges being dismissed.

“Sivak simply did not receive a trial that resulted in a (sentence) worthy of confidence,” 9th Circuit Judge Milan Smith wrote in the court’s Sept. 7, 2011, decision.

A second inmate, Duane Grierson, also testified he didn’t have a deal and didn’t expect any leniency when he sentenced. Later, he wrote to his sentencing judge that he was told he could stay out of prison and have his sentence served at a county jail. He also told the judge that he was a “chronic liar” and that “lying was a way of life” for him.

In tossing out Sivak’s death sentence, the 9th Circuit judges slammed the Ada County prosecutors for withholding information. The appeals court also expressed concern that Sivak was given a death sentence while Bainbridge received a life sentence, when they were equally culpable.

Judge disappointed by witnesses' lies

Retired Fourth District Ada County Judge Robert Newhouse presided over Lacey Sivak’s murder trial and sentenced him to death four times between 1981 and 1992 — with each sentence later overturned.

In 2011, the 9th U.S. Circuit Court of Appeals threw out the fourth sentence because two jailhouse informants lied about receiving help with their legal troubles in exchange for testifying against Sivak.

The appeals court said Newhouse might have viewed the testimony by Jimmy Leytham and Duane Grierson — who said Sivak confessed to killing Wilson — in a different light had he known they lied under oath.

“I certainly would have,” Newhouse, 78, said Friday during a phone interview from his home in Henderson, Nev. “I didn’t know anything about that at the time. As far as I knew, they were telling the truth.”

He said he was disappointed to learn vital information had been withheld from him and the defense.

“If there was fraud, that should have been investigated,” Newhouse said.

The judge, who retired in 1999 after 20 years on the bench and who also sent killer Thomas Creech to death row, said he grew frustrated with having Sivak’s case return again and again.

“The state is wasting a lot of money. It’s been over 30 years since he was first convicted,” Newhouse said.

John Sowell: 377-6423, Twitter: @IDS_Sowell

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