Wake District Attorney Colon Willoughby will not seek the death penalty in the arsenic murder trial of Ann Miller Kontz, he told a Superior Court judge Tuesday.

Kontz is charged with first-degree murder in the poisoning death of her first husband, Eric Miller. She has pleaded not guilty and has been held without bail pending the prosecutor's decision on whether to seek the death penalty if she is found guilty.

Willoughby's decision opens the door for Kontz to be released while awaiting trial. A bond hearing will take place by Dec. 13, said Wake Superior Court Judge Donald Stephens.

Since the Dec. 2, 2000, death of Eric Miller, Kontz has moved from Raleigh to Wilmington and married a Christian rock guitarist.

Looking pale and weak, she entered the courthouse Tuesday for the hearing. Her blond hair was unkempt, and she wore a blue jumpsuit and a plastic wristband issued at the Wake County jail. She waved and smiled through tears at her parents, Dan and Nancy Brier, and at her husband, Paul Kontz, who was with his mother.

Eric Miller's parents, Verus and Doris Miller of Cambridge City, Ind., sat one row behind the Briers with retired Raleigh police Lt. Chris Morgan, who led the investigation in the case.

Willoughby told Stephens: "We've reviewed the evidence. The state does not intend to seek the death penalty in this case."

Stephens asked him why.

"There could be evidence which could be considered aggravating circumstances, but I have made the decision not to seek the death penalty based on my review of the evidence," Willoughby said.

As the hearing ended, Kontz waved and mouthed a silent "I love you" to her parents before she left the courtroom, again in tears, but this time smiling.

Her parents declined to comment outside the courtroom. Defense Attorney Wade Smith said Willoughby's choice was a relief.

"It was a tense moment for us," Smith said. "It means that the trial will be less intense, and our blood pressure will not suffer as greatly as it would otherwise."

A medical examiner's report said that Eric Miller, 30, received at least one dose of arsenic in the spring or summer of 2000, before several large doses killed him.

After his death, investigators said Ann Miller had had an affair with a co-worker named Derril H. Willard Jr. when she and Willard worked at GlaxoSmithKline. Investigators said that both had access to an arsenic compound at their workplace.

Willard killed himself

Willard, 37, killed himself with a gunshot to the head after police searched his home. He left a wife and a daughter who was then 3.

Eric and Ann Miller's daughter, Clare, now 4, has been in the care of a sister of Ann Miller Kontz in Wilmington since her arrest in September.

Willoughby announced his decision not to seek the death penalty in the same courtroom where minutes earlier he delivered his closing argument in the case of Matthew Grant, who is charged with the shotgun slaying of Wake Sheriff Deputy Mark Tucker. Grant could face the death penalty if convicted.

To seek the death penalty under North Carolina law, prosecutors must prove that a murder was committed amid one or more of a list of 11 aggravating circumstances. If the crime was "heinous, atrocious or cruel," or if it was committed during commission of a felony, for example, the killer can be eligible for the death penalty.

In explaining his decision after the hearing, Willoughby said that he conferred with Miller's family and consulted with several senior Wake County prosecutors about how a jury would evaluate the evidence. He would not discuss the evidence.

Not a likely candidate

Defense attorneys not involved in the case suggested several reasons for Willoughby's decision.

Raleigh lawyer Johnnie Gaskins said that the aggravating factors would be hard to prove and that Ann Miller Kontz is not a likely candidate for the death penalty because she was apparently a law-abiding citizen before and after Miller's death. If a prosecutor thinks a jury is unlikely to return a verdict of death, it is to his benefit not to seek it, Gaskins said.

During jury selection in death penalty cases, prosecutors and defense lawyers can each challenge 14 potential jurors without giving a reason. In a case that is unlikely to produce a death penalty, that gives an advantage to defense lawyers, who can focus on finding a sympathetic jury without worrying about their feelings toward the death penalty, Gaskins said. In a non-death-penalty case, each side can challenge only six potential jurors without reason.

Chapel Hill lawyer David Rudolf said that, while poisoning a sick man could be considered cruel, it is growing more difficult to obtain death verdicts in any type of case, especially one based on circumstantial evidence.

"Particularly where the circumstantial evidence is not, apparently, very strong -- since it took them this long to get an indictment -- it would be difficult to get the jury to sentence someone to death," Rudolf said.