Lawyers for killer of Broward Sheriff's deputy ask judges for new trial

By Vanessa Blum

South Florida Sun Sentinel

3:56 PM EDT, April 15, 2009

MIAMI

For 40 minutes Wednesday morning, three black-robed federal judges revisited one of the most painful episodes in Broward Sheriff's Office history: a bungled 2004 raid that led to the shooting death of a deputy.

It will now be up to the judges to decide if confessed killer Kenneth Wilk, who was found guilty in 2007 of first-degree murder, deserves a new trial.

The judges are considering whether Wilk, 47, received a fair chance to argue he acted in self-defense when he shot Deputy Todd Fatta and Sgt. Angelo Cedeño, who were at his home executing a federal warrant in a child pornography investigation.

Fatta died, while Cedeno was wounded.

Though the legal arguments were brief and focused on technical questions, they touched on old emotions around the high-profile case.

Defense lawyers Bill Matthewman and Rafael Rodriguez recounted Wilk's version of events--that he was surprised by officers who broke into his Fort Lauderdale home on the morning of Aug. 19, 2004 and fired thinking they were intruders.

Assistant U.S. Attorney E.J. Yera said the shooting was no accident: Wilk, whose online profile listed "hunting cops" as a hobby, knew police would be coming and readied for attack by placing guns throughout his home, Yera said.

Wilk has never denied he killed Fatta. His appeal centers on the federal district court's handling of evidence and legal instructions related to his claim of self-defense.

Specifically, defense attorneys argued they should have been permitted to reveal the slain deputy had steroids in his system and that police procedures were not followed during the raid.

U.S. District Judge James Cohn barred that evidence at trial, saying it would confuse and distract jurors.

Defense lawyers also say Cohn gave jurors a flawed explanation of self-defense that helped prosecutors.

The visiting judges from the 11th Circuit Court of Appeals in Atlanta have the power to overturn Wilk's conviction and order a new trial.

However, U.S. Circuit Judge Charles Wilson reminded attorneys the bar is a high one.

"If I were the district judge, I might have let you put the evidence on," Wilson said. "But the standard of review is abuse of discretion."

Wilson said Fatta's apparent steroid use would have been more relevant if the deputy, not Wilk, had fired the first shot. The judge also noted that Wilk "had every opportunity" to explain his version of events on the witness stand.

"The jury had before it what happened that day," echoed U.S. Circuit Judge Stanley Birch Jr. "They understood what his defense was."

Birch said evidence the Sheriff's Office's failed to follow proper procedures during the raid would have bolstered the defense case.

Rounding out the panel was U.S. Circuit Judge Joel Durbina.

Wilk, who is serving a life sentence at a federal prison in Tucson, Ariz, did not attend the hearing. The 11th Circuit is not expected to issue a ruling for several months.

Vanessa Blum can be reached at vblum@SunSentinel.com or 954-356-4605.