Larissa Schuster's attorney requests new trial

Larissa Schuster's defense attorney has filed a motion for a new trial, claiming the judge who presided over Schuster's trial did not provide jurors with important instructions that could have led to an acquittal and improperly removed a juror.

Attorney Roger Nuttall's legal motion, filed late Friday, may be his final chance to raise questions about whether the trial was conducted properly before Schuster is sentenced. Over the past four months, he has filed motions with the Fresno County Superior Court and the California 5th District Court of Appeal that delayed Schuster's sentencing. But it appears that the sentencing will go forward May 16 unless Nuttall's motion is granted.

Motions for a new trial are routine and often denied by judges, but Nuttall has said that his arguments carry significant weight. He already has won a few legal battles since Schuster was convicted in December.

If nothing else, the motion helps lay the groundwork for a future appeal.

Schuster, 47, is the former Clovis biochemist who was found guilty of first-degree murder by a Los Angeles County jury for killing her husband, Timothy, in July 2003 and sealing his body in a barrel of acid. She faces a sentence of life in prison without the possibility of parole.

James Fagone, one of Schuster's former lab employees, also was convicted of the murder. During his 2006 trial, he testified that Schuster came up with the plan to kill her husband and he was dragged into the plot. But Fagone was not allowed to testify in Schuster's trial, and the prosecution was forced to argue that Schuster may have assisted Fagone rather than being the mastermind behind the murder.

Nuttall's motion says that Judge Wayne Ellison should have instructed the jury that Schuster could only be found guilty of murder if the jury also found that Fagone specifically intended to kill Timothy Schuster, and that Larissa Schuster shared that intent. Nuttall said there was no evidence presented in Schuster's trial that showed Fagone had any intent to kill Timothy Schuster.

"Fagone's friends testified that he only wanted to commit a burglary," the motion says.

W. Scott Quinlan, a veteran Fresno defense attorney who has no connection to the Schuster case, said Nuttall's argument is an uphill battle. He said Nuttall will have to show that there was absolutely no evidence -- circumstantial or otherwise -- that indicated Fagone and Schuster had an intent to kill.

But Quinlan said Nuttall may have more success with a second argument he makes in his motion.

Nuttall contends that Ellison made the wrong decision when he removed a juror from the panel just days before closing arguments in the two-month trial.

At the time, some jurors told Ellison that a fellow juror said she did not believe some of the testimony in the trial. Ellison ruled that the juror had violated his instructions not to form an opinion on the testimony before deliberations began. He removed the juror without allowing her to explain her actions.

When an investigator from Nuttall's office later talked to the juror, she denied ever saying that she didn't believe some of the testimony.

"That could be something that should have been fleshed out," Quinlan said. "This is the kind of thing where there could be a claim of error if the judge did not seek an inquiry from this juror -- in other words, get her side of the story."