Ann Miller Kontz probably won't be tried in her husband's arsenic-poisoning death until January 2006 because one of her lawyers also represents one of the men accused in the N.C. State tailgate killings.

Raleigh lawyer Joseph B. Cheshire V represents both Kontz, who is accused in the December 2000 death of Eric Miller, and Timothy Johnson, who is charged with shooting two men to death at the Labor Day weekend tailgate party.

On Tuesday, Wake prosecutors said they will seek the death penalty against Johnson, 22, and his brother, Tony, 20. The two are charged with murder in the deaths of Kevin M. McMann of Chicago and 2nd Lt. Brett Johnson Harman, a Camp Lejeune Marine from Park Ridge, Ill. McMann and Harman, both 23, were shot to death in a tailgate area outside an NCSU football game.

Timothy Johnson's trial has been scheduled to start the week of July 4; his younger brother's trial has been scheduled for Oct. 17.

Wake Senior Resident Superior Court Judge Donald W. Stephens said the Johnson case takes precedence over the Kontz case because it is a death penalty case and the Johnson brothers have been in jail longer. Prosecutors are not seeking the death penalty against Kontz, who is being held in jail with bail set at $3 million. The Johnson brothers were arrested Sept. 5. Kontz has been in jail since Sept. 27.

Therefore, Stephens said, Kontz will wait longer for trial. "It's unlikely we'll be able to schedule [the Kontz case] for trial any earlier than January 2006," he said during an all-day hearing to schedule trials in murder cases.

A more specific trial date for Kontz probably will be decided the week of Feb. 7, the next time prosecutors, defense lawyers and Stephens meet to schedule murder trials.

The tailgate shootings

On Tuesday, Wake Assistant District Attorney Susan Spurlin did not indicate what evidence exists to support a death sentence for either Johnson brother.

McMann and Harman were childhood friends. They met several other friends in Raleigh for a weekend of fun before Harman was to be sent to the Middle East.

Investigators say an altercation started when Tony Johnson drove a 1996 Chrysler sedan recklessly through the tailgate area off Trinity Road, hitting a young girl in the leg and running into several cars.

A crowd went after the brothers, pulling them out of the car, investigators told the victims' relatives. But Harman and McCann intervened and helped Tony Johnson get back in the car to leave, the relatives say investigators told them. A half hour later, the Johnson brothers came back with a gun, investigators say.

One of the Johnson brothers tried to attack McCann with a broken beer bottle, investigators told family. Harman tried to intervene and was shot in the neck, investigators said; then McCann tackled the shooter and was shot.

Spurlin has said she will try the Johnsons first on armed robbery charges related to a home invasion in August. Police charged the Johnson brothers and three others in a robbery Aug. 23 at 2100 Mariner Circle in Raleigh. Police said the heist was revenge for the theft of $1,000 and cocaine from Timothy Johnson's apartment. On that night, police say, armed robbers stole drugs, $600, seven guns, car keys and cell phones.

If the Johnson brothers are convicted of armed robbery, Spurlin can use that to support the death penalty in the murder cases. Under state law, a person is eligible for a death sentence if he has a prior violent felony conviction.

The arsenic death

Kontz, 33, is accused of first-degree murder in the death of her first husband, a pediatric AIDS researcher. Investigators say Eric Miller received several doses of arsenic starting in summer 2000, and when he was in the hospital for treatment of an illness that turned out to be arsenic poisoning. He died of cardiac arrest Dec. 2, 2000.

Investigators say that Kontz had access to arsenic at GlaxoSmithKline, where she worked, and that she was having an affair with a co-worker, Derril Willard. On Friday during another hearing, it became public that Willard told a Raleigh lawyer that Kontz admitted to him that she used a syringe to put poison into her husband's IV at the hospital.