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Federal prosecutors have revealed they will seek a second death sentence for a New Orleans man convicted of killing an off-duty deputy during a botched Algiers bank robbery seven years ago.

Federal prosecutors have decided to seek the death penalty again for John Wayne Johnson, who killed a deputy in the course of a botched robbery of the former Iberia Bank in Algiers.
Prosecutors also are considering whether to appeal a judge's ruling barring them from seeking death for another man awaiting trial for the same crime.

Both issues stem from the death of Lt. Sidney Zaffuto, 50, an Orleans Parish Criminal Sheriff's Office deputy who died from a gunshot wound in January 2004, when three unusually old bank robbers walked into the Gen. de Gaulle Drive bank branch where the officer was working an off-duty detail. The botched robbery turned into a gunfight. Zaffuto was fatally wounded by a bullet that ricocheted off his pistol and struck him in the chest.

Lt. Sidney Zaffuto Photo on Right

John Wayne Johnson, 60, fired the fatal shot and has never denied responsibility for Zaffuto's death. A federal jury convicted him in May 2009 and recommended the death sentence. But U.S. District Judge Helen "Ginger" Berrigan tossed out the punishment last year on grounds that she and prosecutors made too many errors during the penalty phase, meaning Johnson didn't get a fair trial.

Berrigan left Johnson's conviction alone, and she ordered a retrial only on the question of punishment. Federal prosecutors were mum about their response until Oct. 4, when they notified Berrigan in writing that they have rejected Johnson's attorneys' request to let him serve life in prison.

"The United States will continue to seek the death penalty in this case," Richard Burns of the Justice Department's Capital Case Unit wrote.

Separately, Berrigan, appointed by President Bill Clinton, barred prosecutors in June from seeking a death penalty for alleged Johnson cohort Joseph Smith, 60, who is awaiting trial. She found Smith's IQ is below 70, meaning legally he is mildly mentally retarded and thus cannot be executed under a 2002 U.S. Supreme Court decision.

Prosecutors argued that Smith, a Navy veteran, is not retarded. They have indicated they might appeal.

"We were pleased with the ruling, and it was one she made after four long days of evidentiary hearings," said Dane Ciolino, one of Smith's attorneys. "If appealed, we expect that it will stand."

Johnson's attorneys, meanwhile, asked federal prosecutors in July to not seek death a second time. Even before Johnson's trial, his attorneys argued he was willing to spend the rest of his life in prison. They say he suffers several ailments, including diabetes and Hepatitis C, and doesn't have a long life expectancy.

"All of us continue to express deep remorse for the loss of Officer Zaffuto, to the entire Zaffuto family," said Ben Cohen, one of Johnson's attorneys. "It is something that John knows he will live with for the rest of his life. I still believe that this case carries none of the hallmarks of what would be a federal capital trial -- no treason, no terrorism, no gangland massacres; a ricochet bullet during a bungled bank robbery."

Berrigan found in tossing out Johnson's punishment two years ago that she did not believe the circumstances around the botched robbery match "the horrific circumstances of many other capital cases."

The third suspect, Herbert Jones Jr., pleaded guilty and was sentenced to 25 years in prison for testimony against Johnson and Smith. He provided videotaped testimony accusing Johnson of participating in the botched robbery and of other crimes. Jones, 63, died in 2009.

Johnson's attorneys want to know whether Attorney General Eric Holder approved the death penalty decision, but prosecutors won't say, records show. In arguing to let Johnson serve life in prison, the defense attorneys have alleged that the federal government disproportionately seeks death penalties against minorities. Johnson is a black man and Zaffuto was a white man.

In arguing for the death penalty two years ago, prosecutors painted Johnson as a lifelong criminal and presented evidence alleging he killed a restaurant owner during a 1974 armed robbery in Marrero.
The retrial had been set for February, but at Johnson's attorney's request, the matter has been postponed without a set date, records show.