Rick Halperin
2017-09-05 13:00:38 UTC
Sept. 5
FLORIDA----impending execution
Thoughts From Man Set To Be Executed Next In Florida
Michael Lambrix is set to be executed on Oct. 5.
He was next in line to be executed when a U.S. Supreme Court decision threw
Florida's death penalty into limbo. He was 1 of 2 death row inmates who had
active death warrants for a year and a half. Mark Asay, the other inmate, was
executed on Aug. 24, breaking the hiatus.
Lambrix was one of the subjects of a WLRN documentary, Cell 1, which looked
into why the death penalty was put on hold for such a long time and what effect
that has on people on death row, their families and victims' families.
A few days before Asay's execution, Lambrix wrote a letter to WLRN. He raised
concerns about the new lethal injection protocol that would be used to execute
Asay, saying he feared it would cause some pain. But, Lambrix said, the
tradition of using a lethal injection protocol that appears as if the inmate is
falling asleep makes it easier for the Department of Corrections to continue
executing inmates.
Asay was executed using a drug - etomidate - that had never before been used in
an execution in the U.S. He did not present any signs to suggest that the drug
worked any differently than the old protocol.
In his letter to WLRN, Lambrix predicted he would be next. Read more of his
thoughts below:
Lambrix was convicted of the 1983 murders of Aleisha Bryant and Clarence Moore
Jr. in Glades County. In a warrant for Lambrix's execution, Gov. Rick Scott
wrote that Lambrix "lured Moore outside and viciously attacked him with a tire
iron, repeatedly hitting him in the head and fracturing his skull. Lambrix then
called Bryant to come outside where he attacked her, kicking her in the head
and strangling her."
In a 2016 interview with WLRN, Lambrix denied he murdered either of them. He
claimed he saw Moore strangling Bryant and in an attempt to save her, Lambrix
hit Moore in the head with a tire iron.
"I'm fighting to prove my innocence and be free," Lambrix said.
This is the 3rd time in 30 years he has been moved to Death Watch to await his
execution.
(source: WLRN news)
***********************
Damas trial begins Tuesday with new judge
Jury selection is set to begin Tuesday in the 1st-degree murder trial of Mesac
Damas.
Damas, 41, is accused of killing his wife and 5 children in their North Naples
home in September 2009. Collier County Sheriff Kevin Rambosk once called it
"the most horrific and violent event" in county history.
Jury selection is expected to take the entire week because of the notoriety of
the case and the additional requirements of selecting a jury in a possible
death penalty case.
Prosecutors and defense lawyers will need to whittle down a pool of about 400
prospective jurors to 12.
More: Collier judge exits family-killing case; Mesac Damas trial still set for
Tuesday
The nearly 8-year-old case will not be delayed by a last-minute judge swap.
Collier Circuit Judge Fred Hardt withdrew from the case Friday, finding that a
defense motion calling on him to recuse himself was "legally sufficient."
Circuit Judge Christine Greider will replace Hardt. She will be the 4th judge
to oversee Damas' case.
Damas said during June and July hearings that he wanted to plead guilty, avoid
trial and be put to death. He asked Hardt for permission to dismiss his
court-appointed attorneys and represent himself, a request the judge denied.
But at 2 August hearings, when given the opportunity to change his plea, Damas
refused to speak or acknowledge the judge, instead sitting silently with his
head down.
The trial - both guilt and sentencing phases - is expected to take a month
after the jury is selected.
(source: Naples Daily News)
OHIO:
Beacon Journal editorial board: Are they 'most deserving of execution'?
Ohio plans to execute Gary Otte next week. He will be the 2nd man put to death
since the state resumed lethal injections after a hiatus of more than 3 years.
In 1992, Otte killed 2 people during armed robberies on consecutive days in
Parma. The parole board denied his bid for clemency earlier this year,
explaining: "The totality of his upbringing ... suggests ... Otte consciously
rejected the law-abiding, pro-social paths available to him."
And yet the story is more complicated, as a study released last week by the
Fair Punishment Project at the Harvard Law School shows. Otte suffered from
chronic depression, began abusing drugs and alcohol at age 10, first attempted
suicide at 15. He committed the murders at 20, or nearly as a juvenile.
Research shows the brain still developing at that point. Which is part of why
the Supreme Court has barred executing juveniles.
The idea isn't to diminish in any way the horrible crimes of Otte. The
reasonable question raised by the study is whether he should be executed. The
report reminds that the high court restricts the death penalty to those "whose
extreme culpability makes them 'the most deserving of execution.'"
The study looks at the backgrounds of the next 26 men scheduled for execution
in Ohio, the dates now going into 2022. It finds the men "among the most
impaired and traumatized among us."
At least 17 faced severe childhood trauma. 6 appear afflicted with mental
illness, with 11 showing evidence of "intellectual disability, borderline
intellectual disability, or a cognitive impairment." 3 committed their crimes
before reaching age 21.
Consider Archie Dixon, who was 20 when he and an accomplice robbed, kidnapped
and buried alive a man, leaving him to die. The crime was ghastly. So was the
upbringing Dixon faced, neglect, physical violence and sexual abuse, the
evidence suggesting incest. A caseworker cited the Dixon family as one of the
worst he ever had experienced.
The study notes that Dixon's attorneys failed to present this mitigating
evidence during the penalty phase of the trial.
David Sneed robbed and killed a man in Canton. At the time, he suffered from a
severe manic bipolar disorder and a "schizo-affective disorder involving
hallucinations and delusions." A psychiatrist described him as "psychotic" and
"assaultive." Sneed suffers from cognitive troubles and repeated episodes of
physical and sexual abuse.
Legislation proposed at the Statehouse rightly would exempt from the death
penalty those diagnosed with such mental illnesses at the time of the offense.
The study catalogues the many horrors and "devastating impairments." Again, the
purpose isn't to somehow explain away the crimes. The men should be held
accountable and serve prison sentences such as life without parole.
Do they qualify as the worst of the worst in view of the trauma, illness and
cognitive complications? The report asks Ohioans to think about that question
and what it says about them that the state will put these men to death.
(source: Akron Beacon Journal Editorial Board)
**********************************
Condemned Ohio killer of 2 wants September execution delayed
A condemned killer scheduled to die in less than a month is challenging Ohio's
lethal injection method as well as the constitutionality of the state's death
penalty law.
Death row inmate Gary Otte is also waiting to see whether Gov. John Kasich will
spare him by granting clemency.
Otte was sentenced to die for the Feb. 12, 1992, killing of Robert Wasikowski
and the Feb. 13, 1992, killing of Sharon Kostura. Both slayings took place in
Parma in suburban Cleveland.
Authorities say Otte asked to come inside Wasikowski's apartment to use the
phone and then shot the 61-year-old and stole about $400.
The next day, Otte forced his way into the apartment of the 45-year-old Kostura
in the same building, shot her, then stole $45 and her car keys.
In federal court, Otte's attorneys argue that the state hasn't shown it can
ensure inmates are rendered so deeply unconscious during lethal injection that
they won't suffer serious pain.
The lawyers say observations by an expert witness during an Ohio execution last
month showed executioners didn't carry out a "sufficient consciousness check"
after the first drug, midazolam, was administered.
"As the situation stands now, because of the inadequate and unreliable
consciousness checks, there is a sure or very likely significant and
substantial risk that Mr. Otte will suffer pain during the execution," his
attorneys said.
Otte, 45, is scheduled to die Sept. 13. The state is expected to oppose the
request.
In a separate appeal, Otte is asking a Cleveland-area judge to declare the
death penalty unconstitutional in his case because he was under 21 at the time
of the crime. He also wants a delay while he argues the point.
Otte's attorneys base their request on a ruling this month by a Kentucky court,
which said executing inmates under 21 at the time of their crime amounts to
cruel and unusual punishment. The U.S. Supreme Court has previously outlawed
the execution of anyone under 18 at the time of the crime.
As "the result of Mr. Otte's youth, immaturity, and under-developed mind, he is
not an offender with the type of extreme moral culpability" deserving of
execution, his attorneys wrote in a filing with Cuyahoga County court this
week.
Ronald Phillips, a convicted child killer from Akron who was 19 at the time of
his crime, unsuccessfully argued the same point in federal court earlier this
summer. Phillips was executed July 26.
Cuyahoga County prosecutors say Otte purposely waited until just weeks before
his execution to make his argument, knowing a delay would be necessary. He
could have raised the issue years earlier, they say.
"The untimeliness of Otte's last-minute claim alone warrants denial of his
request for a stay," Christopher Schroeder, assistant Cuyahoga County
prosecuting attorney, said in a Tuesday court filing.
The Ohio Parole Board in February denied Otte's clemency request. A spokesman
for Kasich, a Republican, said there wasn't a date yet for the governor's
decision.
(source: WHIO news)
ARKANSAS:
Judge to determine whether to suppress murder suspect's statements
A Faulkner County circuit judge will review statements a murder suspect made
following his arrest last year before determining whether to admit the
statements as evidence during trial.
During a motion hearing, Circuit Judge Charles "Ed" Clawson Jr. denied Scotty
Ray Gardner's request to remove the death penalty from the table.
Katherine S. Streett, one of Gardner's attorneys, said the death penalty was a
cruel and unusual punishment and asked Clawson to strike it from options given
to the jury.
Chief Deputy Prosecuting Attorney Carol Crews said prosecutors stood by their
decision and asked Clawson to continue to allow them to seek the death penalty
in the capital murder case against Gardner.
Gardner, 56, is accused of killing Susan "Heather" Stubbs on March 6, 2016,
after a hotel clerk found her lying facedown in Room 114 of Days Inn on Oak
Street. When police arrived, she was found strangled to death from a cord.
Among several motions addressed Monday was a motion to suppress statements
Gardner made following his arrest last year.
Thomas Scott Brisendine said Gardner's statements should not be allowed as
evidence because a Conway Police Department detective "continued asking
questions after [Gardner] requested a lawyer."
Sgt. Melissa Smith questioned Gardner following his arrest at the Garland
County Sheriff's Office and, upon Gardner's request for a 2nd conversation with
Smith, at the Faulkner County Detention Center Unit II.
Smith said she does not feel she impeded on Gardener's rights, noting she
stopped all questions pertaining to Gardner's guilt in Stubbs' death after he
mentioned wanting a lawyer.
Brisendine said all statements Gardner made during this interview should be
thrown out as far as evidence exposed to the jury during trial because Smith
continued speaking with Gardner after his request.
Smith said she was within her rights regarding the questions she asked Gardner
following his request for an attorney because her questions dealt with how to
contact other individuals Gardner said could be linked to Stubbs' death.
"The point is to ask to find out if there are more people to talk to," she
said.
Clawson said he would review the recordings and make a ruling by Sept. 16.
He also requested prosecutors determine whether they plan to call any victim
impact witnesses to the stand and how many. The defense has requested the state
not call an excessive number of those affected by Stubbs' death to the stand.
Crews said she does not anticipate calling more than 1 victim impact witness to
the stand.
(source: Log Cabin Democrat)
COLORADO:
Attorney general may have exceeded power in death penalty prosecution----Jack
Roth was ousted from prosecuting Miguel Contreras-Perez. That same week, he was
no longer employed by Attorney General Cynthia Coffman's office.
Colorado Attorney General Cynthia Coffman's office is facing accusations that
it overstepped its power in a death penalty case.
One of Coffman's top aides, Assistant Attorney General Jack Roth, gave a speech
in November 2016 claiming responsibility for the decision to seek capital
punishment against a man being prosecuted for a prison guard's murder, despite
strong urging from the guard's family not to "go death." The decision reflected
the wishes of the Department of Corrections, which has paid about $1 million to
prosecute the case.
Under state law, it's the locally elected district attorney - not the attorney
general, nor the prison system - who must decide whether seek the death
penalty.
In late July, lawyers for the defendant, Miguel Contreras-Perez included a
video of Roth's speech public in a motion arguing that the prosecution's
"inflammatory conduct" was reason for the judge to strike the death penalty.
That same week, Roth was thrown off the case by the Crowley County DA and was
no longer employed by Coffman.
An attorney general's spokeswoman confirmed Roth is no longer on staff, but
cited a gag order on the case and the need for confidentiality in personnel
matters when saying Coffman wasn't available to comment.
For his part, Roth hasn't responded to several inquiries from The Colorado
Independent about his departure and his Nov. 8, 2016 remarks about the case to
students at the University of Colorado in Colorado Springs' School of Public
Affairs.
Contreras-Perez, 38, had been serving 35 years to life for the rape of a
teenager when he was accused of fatally stabbing Mary Ricard, a corrections
officer at the Arkansas Valley Correctional Facility, with a kitchen knife in
2012. He's also being prosecuted for the attempted murder of another
corrections officer who survived after her throat was slashed in the same
incident.
The 16th Judicial District Attorney sought help from a special unit in the
Attorney General's office that works specifically on capital cases. Roth was
one of the heads of that unit and was working on the case as a specially
sworn-in Crowley County DA at the time of his speech.
Roth struck a casual tone with the room full of college students, peppering his
lecture with expletives, murder scene details, and macho anecdotes. His Power
Point - complete with cop-show style heavy metal and images he called his
"I-love-me slides" - detailed his volunteer work as a police reserve officer.
"I was a cop while I was a lawyer, which means that I was your worst nightmare.
I was a lawyer with a gun. And a Taser. But I got both sides of it. I was on
both sides of the fire. I was a prosecutor and a cop. I pulled my gun many
times while I was a cop. I had to be Tased in order to be certified. They
called it 'riding the lightning.' I would recommend - that's a lot of fun."
Roth boasted about his experience being choked as a reserve officer training in
the police academy, and chuckled about his subsequent volunteer work choking
rookies.
"I get to do it," he said.
He called himself "twisted." He showed a slide that likened himself to a shark.
And he reminisced about his boyhood when he said he'd "climb up to the roof of
our house with a towel taped around my neck as a superhero cape and jump off
the roof. Because I thought I could fly. I was a superhero."
Roth approached his topic - the law of death penalty prosecutions - with the
same swagger.
"This is gonna be a little graphic. Death always is. If that bothers you,
tough. I don't care," he quipped, to some uncomfortable laughter in his
audience.
And, when describing the arduous back and forth entailed with litigating
capital prosecutions, he said, "Now you may want to say that this is a game.
Sometimes it seems like a game when I'm dealing with defense attorneys."
In 2 court filings on July 31, Contreras-Perez's defense team took legal
objection to Roth's comments about the case.
One of the motions says Roth disclosed confidential information in a case that
has been sealed by the judge.
"He went far beyond what a prosecutor is allowed to say," says defense attorney
David Lane, noting those comments could deprive his client a fair trial.
The other motion takes issue with Roth's comments that seeking death was his
call.
"Do you agree with my decision to file death on Contreras-Perez?" Roth had
asked the class.
"What if I told you in my Perez case, Mary Ricard's family does not want the
death penalty? They are very, very religious and they believe that killing is
only in God's hands. They don't want the death penalty. But I'm still going
forward with it. Why? Well, I can tell you my reason is that I'm looking out
for every other corrections officer out there. He's already serving 35 to life.
If I don't go death penalty on him, what's that say to every other corrections
officer out there? Your life doesn't mean anything? Does that make for some
uncomfortable meetings with the Ricard family? Little bit."
The 2nd motion seeks to prohibit the government from seeking Contreras-Perez's
death on grounds that he's unfairly being prosecuted by 2 government agencies -
the DA's and attorney general's offices - at once on the same case. "The
attorney general has no authority to prosecute a case simultaneously with, or
instead of, the district attorney," it reads.
The motion noted that the Department of Corrections (DOC) is a client of the
Attorney General???s office, and that it had "paid well over $900,000 towards
the prosecution of this case" as of the beginning of 2017 under an arrangement
whereby rural counties in which prisons have been built receive DOC money to
prosecute cases stemming from those prisons.
"It is apparent that the Department of Corrections and the Attorney General's
office are running the show: making the decision to seek death, ignoring the
opposition of the victim's family, paying hundreds of thousands of dollars for
the death prosecution, and directly deploying lawyers in furtherance of their
quest for death," the motion reads.
Jim Bullock, the 16th Judicial District Attorney hasn't responded to inquiries
from The Colorado Independent about Roth's ouster from the case
A hearing on possible sanctions against the prosecution is scheduled Tuesday
morning in Ordway.
It's unclear how Roth's comments may also affect several other pending cases
that he discussed during his lecture.
The surfacing of Roth's speech isn't the 1st time the conduct of Attorney
General's special death penalty unit has been questioned.
In 2008, the unit and the 18th Judicial District were sanctioned for allowing
Roth's colleague, Daniel Edwards, to help prosecute a case against an accused
prison murderer whom Edwards had represented 6 years earlier as a defense
attorney in private practice. "Mr. Edwards has literally switched sides,"
Lincoln County District Judge Stanley Brinkley wrote when ordering the state
and local prosecutors off the case and ordering a special prosecutor.
State lawmakers also have raised eyebrows about the AG's death penalty squad,
which was formed in 1994 as the Capital Crimes Unit and is now called the
Violent Crimes Assistance Team (VCAT). The unit was created to support rural
district attorneys in complex death penalty cases that their staffs may be too
small or inexperienced to handle alone. But a legislative report from 2015 says
that by 2009 "unit attorneys became much more active participants in
prosecutions, including actually trying cases as the lead attorneys." The
report also found there have been times the unit has worked on more cases in
metro Denver than in rural areas.
In advising lawmakers not to grant the unit budget increases, a legislative
analyst wrote that, "With no statute defining the role and function of the VCAT
the General Assembly's intended role for the unit remains unclear."
Lane is among several members of the criminal defense community who say the
unit's involvement and zeal in capital cases need to be questioned.
"What you have here is the DOC-paid players from the AG's death squad coming in
and pressuring the local DAs into seeking the death penalty in order to justify
their own existence."
(source: coloradoindependent.com)
CALIFORNIA:
Justice or vengeance? Kern prosecutor, public defender on the future of death
penalty in California
A recent California Supreme Court ruling could lead to executions resuming in
months, and the county's top prosecutor and a high-ranking public defender
spoke this week about whether the decision will in fact speed up the death
penalty process and what benefits, if any, that will have.
The ruling, filed Aug. 24, upholds much of Proposition 66, passed by voters
last year to speed up death penalty appeals. The decision becomes final 30 days
after it has been filed.
According to the California Department of Corrections and Rehabilitation, there
are currently 746 inmates on death row, 27 from Kern County. The number has
increased steadily since 1978.
But with the court's ruling, Kern County District Attorney Lisa Green said,
executions could resume in 6 to 9 months. She said there are 17 cases in
California - none from Kern County - where condemned inmates have exhausted
their appeals.
She said it's her understanding that "very soon" dates will be set for judges
to start scheduling executions.
Speeding up the process, Green said, is important for the families of victims
who continue to suffer as 1st years then decades pass without them receiving
the justice they expected. She said she's been in touch with some of the next
of kin in death penalty cases, and seen firsthand their frustration.
Green said she read an email by Marc Klaas, father of murder victim Polly
Klaas, whose killing played a role in politicians passing California's "3
strikes" law, about the relief he felt when Proposition 66 passed.
"The emotion was really raw in the email, and well over 20 years have passed
since his daughter was killed," Green said. "People whose loved ones have been
killed are grateful there are people to take up the cause."
In its ruling, the court found Proposition 66's 5-year deadline for direct
appeals - automatic appeals given to everyone sentenced to death - to be
advisory, not mandatory. Green, however, said she doesn't think 5 years is too
fast for a direct appeal.
"Obviously, that's a lifetime if you consider the victims' families and what
they've had to go through," she said.
She stressed the process would not be expedited to the point where issues
couldn't be litigated or defendants' rights are violated, but it would stop the
"feet-dragging" on the part of attorneys who continually want to delay the
process.
And after direct appeals, there are other appeals that can be filed. It's not
the end of the process.
As an example for the need of an expedited process, Green used Vincent
Brothers, the notorious Kern County killer who murdered 5 family members, to
illustrate her point.
Sentenced to death in 2007, the responsive brief in Brothers' direct appeal was
completed just this year, and a ruling will likely be issued next year. That
would mean 11 years will have passed for his direct appeal to be heard.
"That's too long, and so that was one of the moving forces captured by the
initiative," Green said.
But Dominic Eyherabide, the county's chief assistant public defender, said that
while Proposition 66's intent was to streamline the system, what it will do is
actually create more agencies and bureaucracies.
"Since when do you solve a government bureaucracy problem by creating more
bureaucracy?" he said. "They've just introduced more levels of review."
Eyherabide said people can legislate something, but it doesn't mean it's going
to be translated into an effective or workable system.
He cited Associate Justice Goodwin Liu's concurring opinion on the ruling.
Liu wrote, in part, "The realities of California's postconviction death penalty
process mean that without a radical reorganization of this court's functions, a
restructuring of the role of lower courts beyond what Proposition 66 provides,
and a significant infusion of resources from the Legislature, the 5-year time
limit is not remotely close to realistic."
Given the way the system works, Eyherabide said, the writ attorney will have a
year, maybe 2, to review the entire case and all documentation in preparing a
petition within the Proposition 66 timeline.
The only way to accomplish that would be to pay writ attorneys so well that
each can work just on one case for the entire year, Eyherabide said.
The ruling will also put more work on trial judges, Eyherabide said, noting the
court upheld the mandate that trial courts can hear some appeals in connection
with inmates over whose trials they presided.
He said if there's a positive to the ruling, it's that maybe there will be more
talking and brainstorming between public defenders and writ attorneys.
But he said the ruling initiates a likely complicated and costly process that
does nothing to protect the general public since anyone sitting on death row
isn't going anywhere.
"This is about vengeance," Eyherabide said. "So we're going to spend millions
and millions to implement this just for that."
(source: bakersfield.com)
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FLORIDA----impending execution
Thoughts From Man Set To Be Executed Next In Florida
Michael Lambrix is set to be executed on Oct. 5.
He was next in line to be executed when a U.S. Supreme Court decision threw
Florida's death penalty into limbo. He was 1 of 2 death row inmates who had
active death warrants for a year and a half. Mark Asay, the other inmate, was
executed on Aug. 24, breaking the hiatus.
Lambrix was one of the subjects of a WLRN documentary, Cell 1, which looked
into why the death penalty was put on hold for such a long time and what effect
that has on people on death row, their families and victims' families.
A few days before Asay's execution, Lambrix wrote a letter to WLRN. He raised
concerns about the new lethal injection protocol that would be used to execute
Asay, saying he feared it would cause some pain. But, Lambrix said, the
tradition of using a lethal injection protocol that appears as if the inmate is
falling asleep makes it easier for the Department of Corrections to continue
executing inmates.
Asay was executed using a drug - etomidate - that had never before been used in
an execution in the U.S. He did not present any signs to suggest that the drug
worked any differently than the old protocol.
In his letter to WLRN, Lambrix predicted he would be next. Read more of his
thoughts below:
Lambrix was convicted of the 1983 murders of Aleisha Bryant and Clarence Moore
Jr. in Glades County. In a warrant for Lambrix's execution, Gov. Rick Scott
wrote that Lambrix "lured Moore outside and viciously attacked him with a tire
iron, repeatedly hitting him in the head and fracturing his skull. Lambrix then
called Bryant to come outside where he attacked her, kicking her in the head
and strangling her."
In a 2016 interview with WLRN, Lambrix denied he murdered either of them. He
claimed he saw Moore strangling Bryant and in an attempt to save her, Lambrix
hit Moore in the head with a tire iron.
"I'm fighting to prove my innocence and be free," Lambrix said.
This is the 3rd time in 30 years he has been moved to Death Watch to await his
execution.
(source: WLRN news)
***********************
Damas trial begins Tuesday with new judge
Jury selection is set to begin Tuesday in the 1st-degree murder trial of Mesac
Damas.
Damas, 41, is accused of killing his wife and 5 children in their North Naples
home in September 2009. Collier County Sheriff Kevin Rambosk once called it
"the most horrific and violent event" in county history.
Jury selection is expected to take the entire week because of the notoriety of
the case and the additional requirements of selecting a jury in a possible
death penalty case.
Prosecutors and defense lawyers will need to whittle down a pool of about 400
prospective jurors to 12.
More: Collier judge exits family-killing case; Mesac Damas trial still set for
Tuesday
The nearly 8-year-old case will not be delayed by a last-minute judge swap.
Collier Circuit Judge Fred Hardt withdrew from the case Friday, finding that a
defense motion calling on him to recuse himself was "legally sufficient."
Circuit Judge Christine Greider will replace Hardt. She will be the 4th judge
to oversee Damas' case.
Damas said during June and July hearings that he wanted to plead guilty, avoid
trial and be put to death. He asked Hardt for permission to dismiss his
court-appointed attorneys and represent himself, a request the judge denied.
But at 2 August hearings, when given the opportunity to change his plea, Damas
refused to speak or acknowledge the judge, instead sitting silently with his
head down.
The trial - both guilt and sentencing phases - is expected to take a month
after the jury is selected.
(source: Naples Daily News)
OHIO:
Beacon Journal editorial board: Are they 'most deserving of execution'?
Ohio plans to execute Gary Otte next week. He will be the 2nd man put to death
since the state resumed lethal injections after a hiatus of more than 3 years.
In 1992, Otte killed 2 people during armed robberies on consecutive days in
Parma. The parole board denied his bid for clemency earlier this year,
explaining: "The totality of his upbringing ... suggests ... Otte consciously
rejected the law-abiding, pro-social paths available to him."
And yet the story is more complicated, as a study released last week by the
Fair Punishment Project at the Harvard Law School shows. Otte suffered from
chronic depression, began abusing drugs and alcohol at age 10, first attempted
suicide at 15. He committed the murders at 20, or nearly as a juvenile.
Research shows the brain still developing at that point. Which is part of why
the Supreme Court has barred executing juveniles.
The idea isn't to diminish in any way the horrible crimes of Otte. The
reasonable question raised by the study is whether he should be executed. The
report reminds that the high court restricts the death penalty to those "whose
extreme culpability makes them 'the most deserving of execution.'"
The study looks at the backgrounds of the next 26 men scheduled for execution
in Ohio, the dates now going into 2022. It finds the men "among the most
impaired and traumatized among us."
At least 17 faced severe childhood trauma. 6 appear afflicted with mental
illness, with 11 showing evidence of "intellectual disability, borderline
intellectual disability, or a cognitive impairment." 3 committed their crimes
before reaching age 21.
Consider Archie Dixon, who was 20 when he and an accomplice robbed, kidnapped
and buried alive a man, leaving him to die. The crime was ghastly. So was the
upbringing Dixon faced, neglect, physical violence and sexual abuse, the
evidence suggesting incest. A caseworker cited the Dixon family as one of the
worst he ever had experienced.
The study notes that Dixon's attorneys failed to present this mitigating
evidence during the penalty phase of the trial.
David Sneed robbed and killed a man in Canton. At the time, he suffered from a
severe manic bipolar disorder and a "schizo-affective disorder involving
hallucinations and delusions." A psychiatrist described him as "psychotic" and
"assaultive." Sneed suffers from cognitive troubles and repeated episodes of
physical and sexual abuse.
Legislation proposed at the Statehouse rightly would exempt from the death
penalty those diagnosed with such mental illnesses at the time of the offense.
The study catalogues the many horrors and "devastating impairments." Again, the
purpose isn't to somehow explain away the crimes. The men should be held
accountable and serve prison sentences such as life without parole.
Do they qualify as the worst of the worst in view of the trauma, illness and
cognitive complications? The report asks Ohioans to think about that question
and what it says about them that the state will put these men to death.
(source: Akron Beacon Journal Editorial Board)
**********************************
Condemned Ohio killer of 2 wants September execution delayed
A condemned killer scheduled to die in less than a month is challenging Ohio's
lethal injection method as well as the constitutionality of the state's death
penalty law.
Death row inmate Gary Otte is also waiting to see whether Gov. John Kasich will
spare him by granting clemency.
Otte was sentenced to die for the Feb. 12, 1992, killing of Robert Wasikowski
and the Feb. 13, 1992, killing of Sharon Kostura. Both slayings took place in
Parma in suburban Cleveland.
Authorities say Otte asked to come inside Wasikowski's apartment to use the
phone and then shot the 61-year-old and stole about $400.
The next day, Otte forced his way into the apartment of the 45-year-old Kostura
in the same building, shot her, then stole $45 and her car keys.
In federal court, Otte's attorneys argue that the state hasn't shown it can
ensure inmates are rendered so deeply unconscious during lethal injection that
they won't suffer serious pain.
The lawyers say observations by an expert witness during an Ohio execution last
month showed executioners didn't carry out a "sufficient consciousness check"
after the first drug, midazolam, was administered.
"As the situation stands now, because of the inadequate and unreliable
consciousness checks, there is a sure or very likely significant and
substantial risk that Mr. Otte will suffer pain during the execution," his
attorneys said.
Otte, 45, is scheduled to die Sept. 13. The state is expected to oppose the
request.
In a separate appeal, Otte is asking a Cleveland-area judge to declare the
death penalty unconstitutional in his case because he was under 21 at the time
of the crime. He also wants a delay while he argues the point.
Otte's attorneys base their request on a ruling this month by a Kentucky court,
which said executing inmates under 21 at the time of their crime amounts to
cruel and unusual punishment. The U.S. Supreme Court has previously outlawed
the execution of anyone under 18 at the time of the crime.
As "the result of Mr. Otte's youth, immaturity, and under-developed mind, he is
not an offender with the type of extreme moral culpability" deserving of
execution, his attorneys wrote in a filing with Cuyahoga County court this
week.
Ronald Phillips, a convicted child killer from Akron who was 19 at the time of
his crime, unsuccessfully argued the same point in federal court earlier this
summer. Phillips was executed July 26.
Cuyahoga County prosecutors say Otte purposely waited until just weeks before
his execution to make his argument, knowing a delay would be necessary. He
could have raised the issue years earlier, they say.
"The untimeliness of Otte's last-minute claim alone warrants denial of his
request for a stay," Christopher Schroeder, assistant Cuyahoga County
prosecuting attorney, said in a Tuesday court filing.
The Ohio Parole Board in February denied Otte's clemency request. A spokesman
for Kasich, a Republican, said there wasn't a date yet for the governor's
decision.
(source: WHIO news)
ARKANSAS:
Judge to determine whether to suppress murder suspect's statements
A Faulkner County circuit judge will review statements a murder suspect made
following his arrest last year before determining whether to admit the
statements as evidence during trial.
During a motion hearing, Circuit Judge Charles "Ed" Clawson Jr. denied Scotty
Ray Gardner's request to remove the death penalty from the table.
Katherine S. Streett, one of Gardner's attorneys, said the death penalty was a
cruel and unusual punishment and asked Clawson to strike it from options given
to the jury.
Chief Deputy Prosecuting Attorney Carol Crews said prosecutors stood by their
decision and asked Clawson to continue to allow them to seek the death penalty
in the capital murder case against Gardner.
Gardner, 56, is accused of killing Susan "Heather" Stubbs on March 6, 2016,
after a hotel clerk found her lying facedown in Room 114 of Days Inn on Oak
Street. When police arrived, she was found strangled to death from a cord.
Among several motions addressed Monday was a motion to suppress statements
Gardner made following his arrest last year.
Thomas Scott Brisendine said Gardner's statements should not be allowed as
evidence because a Conway Police Department detective "continued asking
questions after [Gardner] requested a lawyer."
Sgt. Melissa Smith questioned Gardner following his arrest at the Garland
County Sheriff's Office and, upon Gardner's request for a 2nd conversation with
Smith, at the Faulkner County Detention Center Unit II.
Smith said she does not feel she impeded on Gardener's rights, noting she
stopped all questions pertaining to Gardner's guilt in Stubbs' death after he
mentioned wanting a lawyer.
Brisendine said all statements Gardner made during this interview should be
thrown out as far as evidence exposed to the jury during trial because Smith
continued speaking with Gardner after his request.
Smith said she was within her rights regarding the questions she asked Gardner
following his request for an attorney because her questions dealt with how to
contact other individuals Gardner said could be linked to Stubbs' death.
"The point is to ask to find out if there are more people to talk to," she
said.
Clawson said he would review the recordings and make a ruling by Sept. 16.
He also requested prosecutors determine whether they plan to call any victim
impact witnesses to the stand and how many. The defense has requested the state
not call an excessive number of those affected by Stubbs' death to the stand.
Crews said she does not anticipate calling more than 1 victim impact witness to
the stand.
(source: Log Cabin Democrat)
COLORADO:
Attorney general may have exceeded power in death penalty prosecution----Jack
Roth was ousted from prosecuting Miguel Contreras-Perez. That same week, he was
no longer employed by Attorney General Cynthia Coffman's office.
Colorado Attorney General Cynthia Coffman's office is facing accusations that
it overstepped its power in a death penalty case.
One of Coffman's top aides, Assistant Attorney General Jack Roth, gave a speech
in November 2016 claiming responsibility for the decision to seek capital
punishment against a man being prosecuted for a prison guard's murder, despite
strong urging from the guard's family not to "go death." The decision reflected
the wishes of the Department of Corrections, which has paid about $1 million to
prosecute the case.
Under state law, it's the locally elected district attorney - not the attorney
general, nor the prison system - who must decide whether seek the death
penalty.
In late July, lawyers for the defendant, Miguel Contreras-Perez included a
video of Roth's speech public in a motion arguing that the prosecution's
"inflammatory conduct" was reason for the judge to strike the death penalty.
That same week, Roth was thrown off the case by the Crowley County DA and was
no longer employed by Coffman.
An attorney general's spokeswoman confirmed Roth is no longer on staff, but
cited a gag order on the case and the need for confidentiality in personnel
matters when saying Coffman wasn't available to comment.
For his part, Roth hasn't responded to several inquiries from The Colorado
Independent about his departure and his Nov. 8, 2016 remarks about the case to
students at the University of Colorado in Colorado Springs' School of Public
Affairs.
Contreras-Perez, 38, had been serving 35 years to life for the rape of a
teenager when he was accused of fatally stabbing Mary Ricard, a corrections
officer at the Arkansas Valley Correctional Facility, with a kitchen knife in
2012. He's also being prosecuted for the attempted murder of another
corrections officer who survived after her throat was slashed in the same
incident.
The 16th Judicial District Attorney sought help from a special unit in the
Attorney General's office that works specifically on capital cases. Roth was
one of the heads of that unit and was working on the case as a specially
sworn-in Crowley County DA at the time of his speech.
Roth struck a casual tone with the room full of college students, peppering his
lecture with expletives, murder scene details, and macho anecdotes. His Power
Point - complete with cop-show style heavy metal and images he called his
"I-love-me slides" - detailed his volunteer work as a police reserve officer.
"I was a cop while I was a lawyer, which means that I was your worst nightmare.
I was a lawyer with a gun. And a Taser. But I got both sides of it. I was on
both sides of the fire. I was a prosecutor and a cop. I pulled my gun many
times while I was a cop. I had to be Tased in order to be certified. They
called it 'riding the lightning.' I would recommend - that's a lot of fun."
Roth boasted about his experience being choked as a reserve officer training in
the police academy, and chuckled about his subsequent volunteer work choking
rookies.
"I get to do it," he said.
He called himself "twisted." He showed a slide that likened himself to a shark.
And he reminisced about his boyhood when he said he'd "climb up to the roof of
our house with a towel taped around my neck as a superhero cape and jump off
the roof. Because I thought I could fly. I was a superhero."
Roth approached his topic - the law of death penalty prosecutions - with the
same swagger.
"This is gonna be a little graphic. Death always is. If that bothers you,
tough. I don't care," he quipped, to some uncomfortable laughter in his
audience.
And, when describing the arduous back and forth entailed with litigating
capital prosecutions, he said, "Now you may want to say that this is a game.
Sometimes it seems like a game when I'm dealing with defense attorneys."
In 2 court filings on July 31, Contreras-Perez's defense team took legal
objection to Roth's comments about the case.
One of the motions says Roth disclosed confidential information in a case that
has been sealed by the judge.
"He went far beyond what a prosecutor is allowed to say," says defense attorney
David Lane, noting those comments could deprive his client a fair trial.
The other motion takes issue with Roth's comments that seeking death was his
call.
"Do you agree with my decision to file death on Contreras-Perez?" Roth had
asked the class.
"What if I told you in my Perez case, Mary Ricard's family does not want the
death penalty? They are very, very religious and they believe that killing is
only in God's hands. They don't want the death penalty. But I'm still going
forward with it. Why? Well, I can tell you my reason is that I'm looking out
for every other corrections officer out there. He's already serving 35 to life.
If I don't go death penalty on him, what's that say to every other corrections
officer out there? Your life doesn't mean anything? Does that make for some
uncomfortable meetings with the Ricard family? Little bit."
The 2nd motion seeks to prohibit the government from seeking Contreras-Perez's
death on grounds that he's unfairly being prosecuted by 2 government agencies -
the DA's and attorney general's offices - at once on the same case. "The
attorney general has no authority to prosecute a case simultaneously with, or
instead of, the district attorney," it reads.
The motion noted that the Department of Corrections (DOC) is a client of the
Attorney General???s office, and that it had "paid well over $900,000 towards
the prosecution of this case" as of the beginning of 2017 under an arrangement
whereby rural counties in which prisons have been built receive DOC money to
prosecute cases stemming from those prisons.
"It is apparent that the Department of Corrections and the Attorney General's
office are running the show: making the decision to seek death, ignoring the
opposition of the victim's family, paying hundreds of thousands of dollars for
the death prosecution, and directly deploying lawyers in furtherance of their
quest for death," the motion reads.
Jim Bullock, the 16th Judicial District Attorney hasn't responded to inquiries
from The Colorado Independent about Roth's ouster from the case
A hearing on possible sanctions against the prosecution is scheduled Tuesday
morning in Ordway.
It's unclear how Roth's comments may also affect several other pending cases
that he discussed during his lecture.
The surfacing of Roth's speech isn't the 1st time the conduct of Attorney
General's special death penalty unit has been questioned.
In 2008, the unit and the 18th Judicial District were sanctioned for allowing
Roth's colleague, Daniel Edwards, to help prosecute a case against an accused
prison murderer whom Edwards had represented 6 years earlier as a defense
attorney in private practice. "Mr. Edwards has literally switched sides,"
Lincoln County District Judge Stanley Brinkley wrote when ordering the state
and local prosecutors off the case and ordering a special prosecutor.
State lawmakers also have raised eyebrows about the AG's death penalty squad,
which was formed in 1994 as the Capital Crimes Unit and is now called the
Violent Crimes Assistance Team (VCAT). The unit was created to support rural
district attorneys in complex death penalty cases that their staffs may be too
small or inexperienced to handle alone. But a legislative report from 2015 says
that by 2009 "unit attorneys became much more active participants in
prosecutions, including actually trying cases as the lead attorneys." The
report also found there have been times the unit has worked on more cases in
metro Denver than in rural areas.
In advising lawmakers not to grant the unit budget increases, a legislative
analyst wrote that, "With no statute defining the role and function of the VCAT
the General Assembly's intended role for the unit remains unclear."
Lane is among several members of the criminal defense community who say the
unit's involvement and zeal in capital cases need to be questioned.
"What you have here is the DOC-paid players from the AG's death squad coming in
and pressuring the local DAs into seeking the death penalty in order to justify
their own existence."
(source: coloradoindependent.com)
CALIFORNIA:
Justice or vengeance? Kern prosecutor, public defender on the future of death
penalty in California
A recent California Supreme Court ruling could lead to executions resuming in
months, and the county's top prosecutor and a high-ranking public defender
spoke this week about whether the decision will in fact speed up the death
penalty process and what benefits, if any, that will have.
The ruling, filed Aug. 24, upholds much of Proposition 66, passed by voters
last year to speed up death penalty appeals. The decision becomes final 30 days
after it has been filed.
According to the California Department of Corrections and Rehabilitation, there
are currently 746 inmates on death row, 27 from Kern County. The number has
increased steadily since 1978.
But with the court's ruling, Kern County District Attorney Lisa Green said,
executions could resume in 6 to 9 months. She said there are 17 cases in
California - none from Kern County - where condemned inmates have exhausted
their appeals.
She said it's her understanding that "very soon" dates will be set for judges
to start scheduling executions.
Speeding up the process, Green said, is important for the families of victims
who continue to suffer as 1st years then decades pass without them receiving
the justice they expected. She said she's been in touch with some of the next
of kin in death penalty cases, and seen firsthand their frustration.
Green said she read an email by Marc Klaas, father of murder victim Polly
Klaas, whose killing played a role in politicians passing California's "3
strikes" law, about the relief he felt when Proposition 66 passed.
"The emotion was really raw in the email, and well over 20 years have passed
since his daughter was killed," Green said. "People whose loved ones have been
killed are grateful there are people to take up the cause."
In its ruling, the court found Proposition 66's 5-year deadline for direct
appeals - automatic appeals given to everyone sentenced to death - to be
advisory, not mandatory. Green, however, said she doesn't think 5 years is too
fast for a direct appeal.
"Obviously, that's a lifetime if you consider the victims' families and what
they've had to go through," she said.
She stressed the process would not be expedited to the point where issues
couldn't be litigated or defendants' rights are violated, but it would stop the
"feet-dragging" on the part of attorneys who continually want to delay the
process.
And after direct appeals, there are other appeals that can be filed. It's not
the end of the process.
As an example for the need of an expedited process, Green used Vincent
Brothers, the notorious Kern County killer who murdered 5 family members, to
illustrate her point.
Sentenced to death in 2007, the responsive brief in Brothers' direct appeal was
completed just this year, and a ruling will likely be issued next year. That
would mean 11 years will have passed for his direct appeal to be heard.
"That's too long, and so that was one of the moving forces captured by the
initiative," Green said.
But Dominic Eyherabide, the county's chief assistant public defender, said that
while Proposition 66's intent was to streamline the system, what it will do is
actually create more agencies and bureaucracies.
"Since when do you solve a government bureaucracy problem by creating more
bureaucracy?" he said. "They've just introduced more levels of review."
Eyherabide said people can legislate something, but it doesn't mean it's going
to be translated into an effective or workable system.
He cited Associate Justice Goodwin Liu's concurring opinion on the ruling.
Liu wrote, in part, "The realities of California's postconviction death penalty
process mean that without a radical reorganization of this court's functions, a
restructuring of the role of lower courts beyond what Proposition 66 provides,
and a significant infusion of resources from the Legislature, the 5-year time
limit is not remotely close to realistic."
Given the way the system works, Eyherabide said, the writ attorney will have a
year, maybe 2, to review the entire case and all documentation in preparing a
petition within the Proposition 66 timeline.
The only way to accomplish that would be to pay writ attorneys so well that
each can work just on one case for the entire year, Eyherabide said.
The ruling will also put more work on trial judges, Eyherabide said, noting the
court upheld the mandate that trial courts can hear some appeals in connection
with inmates over whose trials they presided.
He said if there's a positive to the ruling, it's that maybe there will be more
talking and brainstorming between public defenders and writ attorneys.
But he said the ruling initiates a likely complicated and costly process that
does nothing to protect the general public since anyone sitting on death row
isn't going anywhere.
"This is about vengeance," Eyherabide said. "So we're going to spend millions
and millions to implement this just for that."
(source: bakersfield.com)
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