Rick Halperin
2017-04-01 12:38:59 UTC
April 1
TEXAS:
As execution looms, juror in Hurst Putt-Putt murder hopes to change law
When Sven Berger looked around at the other jurors in the deliberation room
during a 2008 capital murder trial, he knew that the majority wanted the death
penalty. He also knew he didn't.
But he voted for it anyway. It's a decision he still regrets, and one he says
he wouldn't have made if the law had been clearly explained in that Tarrant
County courtroom.
He'd sat in the courtroom and listened to how Paul Storey, the 22-year-old
defendant in an ill-fitting suit, and another man had robbed Putt-Putt in Hurst
and fatally shot the assistant manager, 28-ear-old Jonas Cherry. Berger knew
Storey was guilty, he said in a recent Texas Tribune interview, but in his gut,
he didn't believe the man would be a future danger to society, a requirement in
issuing the death penalty in Texas.
What Berger didn't realize - in part because of the language in the jury
instructions - was that his vote alone could have blocked the jury from handing
down a death sentence and given Storey life in prison without the possibility
of parole.
Thinking that he'd have to convince most of his fellow jurors to spare Storey
from execution, he didn't fight as the jury deliberated, Berger said. When the
life-or-death questions went around the table, he answered like everyone else.
Now, with Storey's execution set for April 12, Berger and at least 2 state
lawmakers are hoping to change jury instructions in death penalty cases.
"The judge instructed us that any vote that would impose a life sentence would
require a consensus of 10 or more jurors," Berger wrote in a letter to the
Senate Criminal Justice Committee last week. "With the vast majority of the
other jurors in the room ... voicing their vote for death, I seriously doubted
I could persuade 1, let alone 9 other jurors, to vote to incarcerate Mr. Storey
for the remainder of his life, and I switched my vote."
'I was shocked'
To hand down a death sentence in Texas, the jury's decision must be unanimous.
If even 1 juror disagrees, the trial automatically results in a sentence of
life without parole. But the jury instructions don't say that, and, under state
law, no judge or lawyer can tell jurors that either.
Instead, deliberations in a trial's sentencing phase focus not on death versus
life, but on 3 specific questions the jury must answer: is the defendant likely
to be a future danger to society? If the defendant wasn't the actual killer,
did he or she intend to kill someone or anticipate death? And, if the answer is
yes to the previous questions, is there any mitigating evidence - like an
intellectual disability - that the jury thinks warrants the lesser sentence of
life without parole?
To issue a death sentence, the jury must unanimously answer "yes" to the first
2 questions and "no" to the last question. But, the instructions state, to
answer "no" to the first 2 questions or "yes" to the last, 10 or more jurors
must agree.
What those complicated instructions don't say is that a single juror can
deadlock the jury on any of the 3 questions, eliminating death as an option and
triggering an automatic life without parole sentence.
Berger didn't get the distinction.
"I'm appalled that Texas' capital jury instructions misled jurors about the
implications of their vote, and find it unconscionable that men and women like
me, with the power of life and death, are told that they must act only as a
single group, and that their individual voice doesn't matter," Berger wrote in
his letter.
He's not the only one upset. Democratic Sen. Eddie Lucio, Jr. of Brownsville
and Rep. Abel Herrero of Robstown filed bills in the Texas Legislature to
strike the language that says ten or more jurors must agree to answer against
the death penalty, and also remove a sentence that bars judges or lawyers from
telling jurors what their votes mean. And Republican Rep. John Smithee, of
Amarillo, has since signed on to Herrero's bill as a co-author. Senate Bill
1616 and House Bill 3054 have both been referred to committee.
"I was shocked to learn that the instructions in place actually lie to jurors
who are tasked with quite literally making a life or death decision," Lucio
told the Tribune, saying religious advocates first informed him of the current
jury instructions.
'A guessing game'
The bills might not make much headway in a Republican-dominated legislature
that tends to avoid anything that could affect the death penalty. Though no
opposition has come forward yet (neither bill has even been granted a hearing),
prosecutors would likely fight it if it gained traction.
"In a death penalty case, the jury's job in sentencing is to answer the special
questions required by the law, not decide the ultimate sentence. This bill
informs them of the effect of their vote and basically encourages any hold-out
jurors to try to hang the jury on sentencing," said Shannon Edmonds, Director
of Governmental Relations for the Texas District and County Attorneys
Association.
District attorneys from the state's 5 biggest counties - Harris, Dallas,
Tarrant, Bexar and Travis - all either declined to comment or did not respond
to requests for comment on the bills.
The issue has been introduced at the Texas Capitol before. In 2011, state Rep.
Armando Walle filed a bill almost identical to the current ones. It never made
it out of the House Criminal Jurisprudence Committee after a lackluster
hearing, with only 1 person testifying for the bill.
Regardless, Herrero said, the change is necessary and he is optimistic about
the current bills' chances.
"We're talking about life and death decisions being made by jurors, and it
shouldn't be determined by a guessing game," he said.
Advocates hope the increased awareness with cases like Storey's will give the
issue more of a boost this year. Amanda Marzullo, interim executive director
for Texas Defender Services, said she hopes to have Berger and another juror
who has changed her mind testify if either bill is granted a committee hearing.
"It wasn't really pushed [in 2011]," Marzullo said. "This is the 1st time the
legislature's really had a conversation about fairness to jurors in capital
sentencing."
'I feel terrible'
Berger said he has been haunted by the death sentence he helped impose since an
appellate attorney came to him months later and showed him evidence of Storey's
mental impairments. According to one psychologist, Storey had an IQ of 81. This
cemented what he already thought but was unwilling to fight for at trial - that
Storey wasn't likely to be a future danger.
Berger wrote an affidavit in 2010 stating that had he known about Storey's
mental status, he would have fought against the death penalty at trial,
specifically on the future dangerousness question. Despite his statement,
Storey's sentence was upheld by the appeals court.
Berger said the experience has turned him from a supporter of capital
punishment to an opponent.
"I've certainly been educated about what goes into death penalty cases and the
results .... It's just astonishing to me how often trials are wrong. So that by
itself would change my mind. I still believe there are bad people in the world,
but no, I'm against the death penalty," Berger said.
Now, Storey's court appeals have all been exhausted. Last week, the parents of
Storey's victim, Jonas Cherry, wrote a letter asking the state and local
authorities to commute his sentence.
More likely, Storey will be led to the execution chamber on April 12 and become
the 5th person executed by Texas this year.
"I feel terrible. I think about it a lot, actually ... especially with the
execution looming," Berger said. "It's something that you know is going to
happen, but it's so far away you can kind of push it to the back of your head
... And then all of a sudden, there's this date attached to Paul."
(source: star-telegram.com)
********************
Texas Can No Longer Fabricate Its Own Medical Standards To Justify Executions
In a 5-3 decision, the U.S. Supreme Court on Tuesday concluded that current
medical standards must be considered when determining whether a defendant
facing the death penalty is intellectually disabled and thus barred from
execution under the Eighth Amendment.
The ruling was a strong rebuke, particularly to the state of Texas, which has
long based such determinations on outdated science in concert with a set of
subjective - if not simply stereotyping - standards that were largely based on
a fictional character.
The high court's decision also means that Texas inmate Bobby James Moore, who
was originally sent to death row in 1980, will again have a chance to prove
that he is ineligible for the death penalty. Moore's lawyers say that his
cognitive disabilities are so great that to execute him would violate the
constitutional ban on cruel and unusual punishments.
"The Supreme Court has sensibly directed Texas courts to be informed by the
medical community's current diagnostic framework before imposing our society's
gravest sentence," said Moore's attorney, Cliff Stone.
Moore was 20 years old in 1980 when he was involved with 2 others in the
botched robbery of the Birdsall Super Market in Houston that ended with the
shooting death of a 70-year-old store clerk. Less than 3 months later Moore was
sentenced to death for his role in the crime.
His case has been plagued from the start. Moore's trial attorneys floated a
fake alibi defense and failed to present exculpatory evidence that suggested
the shooting was accidental. A federal judge found the misconduct so egregious
that he ordered that Moore be resentenced. But Moore's attorneys still failed
to do any investigation that might have mitigated their client's culpability -
at a hearing they presented nothing about his childhood abuse or his serious
learning deficits, evidence that could have convinced a jury to spare his life
- and in February 2001 Moore was again sentenced to die.
Just over a year later the Supreme Court ruled in Atkins v. Virginia that while
"mentally retarded persons who meet the law's requirements for criminal
responsibility should be tried and punished when they commit crimes," as
Justice John Paul Stevens wrote for the majority, because of their
"disabilities in areas of reasoning, judgment, and control of their impulses
... they do not act with the same level of moral culpability that characterizes
the most serious adult criminal conduct." And such impairments "can jeopardize
the reliability and fairness of capital proceedings." Noting that a number of
states already barred the practice, the court ruled that death must be taken
off the table for the intellectually disabled.
But the court did not tell the states how to determine intellectual disability
when making decisions about who should face capital punishment, which has led
to some problems, notably in Texas.
Despite the court's ruling in Atkins, Texas lawmakers have repeatedly failed to
pass a statute that would codify that decision and outline the steps needed for
courts to determine disability. Into that void walked the state's highest
criminal tribunal, the Court of Criminal Appeals. In a 2004 case involving a
man named Jose Garcia Briseno, the court concluded that where legislators had
failed to act, it had no choice but to impose some order.
"This Court must now deal with a significant number of pending habeas corpus
applications claiming that the death row inmate suffers from mental retardation
and thus is exempt from execution," the court wrote. "Recognizing that 'justice
delayed is justice denied' to the inmate, to the victims and their families,
and to society at large, we must act during this legislative interregnum to
provide the bench and bar with temporary judicial guidelines in addressing
Atkins claims."
What the court came up with was a multi-pronged analysis for lower courts to
use when considering appeals based on a claim of intellectual disability. While
the court said the clinical definitions laid out by the American Association on
Mental Retardation - now known as the American Association on Intellectual and
Developmental Disabilities - must be considered, there was also an open
question as to how to determine the "level and degree of mental retardation at
which a consensus of Texas citizens would agree that a person should be
exempted from the death penalty." To determine a cutoff level - where
individuals with higher functioning would theoretically still be eligible for
death - the court turned not directly to experts in the field, but instead
cobbled together a set of standards based in part on the deficits demonstrated
by the fictional character Lennie Small from John Steinbeck's "Of Mice and
Men."
In other words, the CCA crafted a set of criteria that included things
"professionals would never use" to determine intellectual disability in order
to ensure that some individuals who may be clinically disabled would
nonetheless still be eligible for the death penalty, said Jordan Steiker, a
professor of law at the University of Texas at Austin. The move was "pretty
much in direct defiance of what the Supreme Court had held."
Under the court's criteria, Briseno, who had been convicted of killing a county
sheriff, did not qualify as intellectually deficient and his death sentence was
upheld. After additional legal wrangling, nearly 10 years later Briseno's
sentence was reduced to life in prison.
Moore filed an appeal claiming that he was intellectually disabled not long
after the Supreme Court handed down its Atkins decision, but it was not
considered until 2014, when a district court judge held an evidentiary hearing
on the matter. Ruling in Moore's favor, the judge concluded that under the most
current medical standards Moore was ineligible for execution. The court
recommended that his sentence be vacated.
The CCA overruled that decision, however, finding that the judge had not
adhered to its Briseno standard - in part because in Moore's case the court had
used the updated, 2011 clinical standards employed by the AAIDD and not the
1992 standards the CCA had relied upon. "Although the mental-health fields and
opinions of mental-health experts inform the factual decision, they do not
determine whether an individual is exempt from execution," the court wrote.
In Moore's case the court essentially ignored his serious, lifelong deficits -
he failed the 1st grade twice and every grade thereafter until he dropped out
in the ninth grade; he had to be drilled daily by teachers in order to
understand concepts such as days of the week, months of the year and how to
tell time - in favor of what they determined showed he was higher functioning -
including that he mowed lawns for money and knew how to play pool and dominoes.
It is with the CCA's conclusions that the Supreme Court has disagreed. Writing
for the court, Justice Ruth Bader Ginsburg noted that in a 2014 ruling in a
Florida case that also affirmed its Atkins decision, the court had instructed
that decisions about who is intellectually disabled should be "informed by the
views of medical experts," which "cannot sensibly be read to give courts leave
to diminish the force of the medical community's consensus," as the CCA had
done in denying Moore's appeal.
Further, she wrote that the additional standards the court had devised in
Briseno - those making up the so-called Lennie Standard - "are an invention of
the CCA untied to any acknowledged source." Refusing to rely on information
from the medical community and employing these fictionalized standards creates
an "unacceptable" risk that an intellectually disabled person would be
executed.
Moore's case now moves back to the CCA for further consideration; whether he
will they will agree outright that he should be resentenced to life in prison
is unclear. The court's ruling could also prompt additional appeals by other
Texas death row inmates whose claims of intellectual disability have been
denied under the CCA's unconstitutional Briseno standard.
Notably, there was at least 1 judge on the CCA, Elsa Alcala, who anticipated
that the court's standard was not sufficient to pass constitutional muster.
"This Court is required to uphold the federal Constitution as it has been
interpreted by the Supreme Court," she wrote in a lengthy dissent in Moore's
case. "Doing what we have always done simply because the Legislature has not
told us to do it otherwise is not the right answer."
(source: theintercept.com)
PENNSYLVANIA:
Death penalty sought for man charged in teen's dismemberment
Prosecutors plan to seek the death penalty against a Pennsylvania man charged
along with his girlfriend in the rape, death and dismemberment of her
14-year-old adopted daughter.
Bucks County prosecutors made the announcement Friday, when 44-year-old Jacob
Sullivan waived his formal arraignment on homicide, rape, kidnapping and other
charges in the death of Grace Packer in July.
Prosecutors say 42-year-old Sara Packer watched Sullivan act out a rape-murder
fantasy they shared. Prosecutors say the couple stored Grace's body in cat
litter for months, then hacked it up and dumped it in a remote area where
hunters found it in October.
Prosecutors had already signaled their intention to seek the death penalty
against Sara Packer. She has pleaded not guilty to the charges.
Their trial has been scheduled for March 2018.
(source: Associated Press)
************
Could boyfriend face death penalty in Grace Packer homicide?
As he appears before a Bucks County judge today, Jacob Sullivan will learn
whether he might face capital punishment in Grace Packer homicide.
In his alleged confession, Jacob Sullivan admitted raping 14-year-old Grace
Packer while the teen's mother, Sara Packer, watched.
Police say Sullivan also admitted squeezing the life out of Grace in a stifling
hot Richland Township attic, where prosecutors say the couple left Grace to
die.
The details of the killing, which prosecutors allege was the culmination of a
long-planned rape and murder fantasy Sara Packer and Sullivan shared, were
enough for Bucks County prosecutors to put the death penalty on the table for
Sara Packer, a former adoption supervisor for Northampton County's Division of
Children, Youth and Families.
As he appears before a Bucks County judge today, Sullivan will learn whether he
too might face capital punishment.
Sullivan, 44, is charged with homicide, rape, kidnapping, abuse of a corpse and
more than a dozen other offenses in connection with Grace's death in July 2016.
His arraignment before Judge Diane Gibbons today will be his 1st court
appearance since his arrest in January.
Police say Sullivan confessed, first to hospital staff at the Horsham Clinic,
where he and Sara Packer were treated following failed suicide attempts Dec.
30, then to police. Hospital staff told police that Sullivan also talked to
others, as they "witnessed an emotional encounter between Sullivan and his
family" at his bedside.
Sullivan even seemed to be confessing to reporters as he was hauled before a
judge the night of his arrest, saying "I'm sorry" to members of the press
attending his arraignment.
Whether Sullivan's apparent cooperation will sway prosecutors to keep the death
penalty off the table remains to be seen. Today's hearing is the deadline for
prosecutors to outline aggravating factors in Sulivan's case, facts that
elevate a homicide to a capital case.
(source: Morning Call)
GEORGIA:
DA will seek death penalty in Peacock case
District Attorney Brad Shealy and his office are seeking the death penalty in
the case against Jeffrey Peacock.
Shealy announced the update in the case Friday morning.
His office expects to file the notice of intent Monday.
"This tragic case clearly meets the statutory requirements for imposition of
the death penalty as set forth in the Georgia code. I will be assisting Senior
Assistant District Attorney Jim Prine of our Thomasville office, who will be
the lead counsel," said Shealy.
Peacock has been in the Colquitt County Jail since May of 2016, accused of
killing his 5 friends.
He was indicted last week, facing with 14 charges, including malice murder.
(source: WALB news)
FLORIDA:
Orme death sentence vacated, new sentencing hearing ordered----The Supreme
Court of Florida has vacated the death sentence for Roderick Orme, and ordered
a new sentencing hearing. Orme was convicted and sentenced to death for the
1992 robbery, rape and strangulation of Lisa Redd at Lee's Motel in Panama
City.
The Supreme Court of Florida has overturned the death sentence for a Panama
City man convicted of strangling a nurse in a motel in 1992.
In a 10 page opinion released Thursday, SCOFLA vacated the death sentence for
Roderick Orme. The justices ruled 6-0 that because a jury didn't unanimously
recommend or impose the death sentence, Orme is entitled to a new penalty
phase, or sentencing hearing.
A jury found him guilty in February of 1993 and recommended death by a vote of
7-5. A re-setencing jury recommended death for Orme 11-1 in July of 2007.
SCOFLA's ruling comes following an October 2016 United States Supreme Court
ruling finding Florida's death penalty unconstitutional unless a jury
recommends death unanimously.
Orme was convicted in February of 1993 of the March 3, 1992, rape, robbery and
strangulation death of Lisa Redd at Lee's Motel in Panama City.
Orme, a drug addict, had called Redd after he experienced a "bad high" because
he knew Redd was a nurse. When Redd came to his room, she found Orme with a
crack pipe and knocked it out of his hands. She also put several pieces of
crack in the toilet.
Police say Orme then raped her, stole her jewelry, beat her severely, and
strangled her.
He was caught after locking himself out of the room. He showed up the next day
at a detox center where he had previously been treated. At the detox center he
was unable to respond to questions but was able to write "LEE'S MOT RM15." When
the motel owner went to room 15, that's when Redd's body was discovered.
A semen sample from Redd's underpants matched Orme's DNA.
Orme's underpants had blood that matched the victim's. Orme's fingerprints were
found in the motel room. His wallet was found in the victim's car, which was
parked outside the motel.
A new re-sentencing hearing date has not been set for Orme.
(source: WJHG news)
LOUISIANA:
Lawmaker seeks to end death penalty in Louisiana
A Baton Rouge lawmaker is calling for the end of the death penalty in Louisiana
for 1st degree murder and 1st degree rape offenses committed after July 31st.
Republican Senator Dan Claitor says the death penalty cheapens life, which
degrades society. He says his Catholic religion teaches everyone's life is
sacred from conception to natural death.
"Many victims say that their faith would not allow for them to support the
death penalty even though they have been a victim and their family member has
been a victim."
The last person to be put to death was Gerald Bordelon in 2010. Currently,
Louisiana does not have the drugs needed to perform a lethal injection. Claitor
says locking up offenders for the rest of their life is a better punishment
than the death penalty. He says if signed into law, this bill would not affect
inmates on death row at the present time.
"They have avenues for appeal, they could have their sentences communed by the
governor."
Claitor says Louisiana spends a tremendous amount of money on the lethal
injection drug and the death penalty is not reducing murders in the state. He
expects he'll receive a lot of support because the death penalty is a costly
case to prosecute.
"I think that you will be surprised with the mix of people that are interested
in doing away with this costly process that doesn't yield any results."
(source: WWL news)
***********************
Bury the death penalty in Louisiana? Lawmakers file bills aimed to do just that
2 former law enforcement officials filed legislation to do away with death
penalty in Louisiana.
Democratic state Rep. Terry Landry, of New Iberia and a former superintendent
of the Louisiana State Police, and Republican state Sen. Dan Claitor, of Baton
Rouge and former prosecutor, filed separate, but nearly identical, bills. Both
would end capital punishment for murders committed after Aug. 1, if either
passes both chambers of the Legislature and is signed by the governor.
Louisiana has 73 men and 1 woman awaiting execution on death row in the
Louisiana State Penitentiary at Angola. The legislation would not overturn
their sentences.
But the state has no executions scheduled and no lethal chemicals on hand to
carry out the sentence, according to the state Department of Corrections.
The last execution in Louisiana was of Gerald Bordelon in January 2010 and he
volunteered. The longest serving inmate on death row, Michael Perry, has been
awaiting execution for 32 years.
The Louisiana Legislature convenes on April 10.
(source: The Advocate)
OHIO:
New report: More Ohio death row prisoners exonerated or removed than executed
A death sentence doesn't always mean death in Ohio. In fact, executions
resulted from less than 1 of 5 such sentences since 1981, when the state
reinstated capital punishment.
Over the same period, more convicted killers were exonerated or removed from
death row by judges (75) than were executed (53).
Another 27 men died in prison from disease or suicide, and 19 received
gubernatorial commutations, wiping out their death sentence.
The 2016 volume of Attorney General Mike DeWine's "Capital Crimes Annual
Report," released on Friday, said there have been 328 death sentences handed
down in Ohio since 1981. Less than 20 % of those people have been put to death,
although 25 executions are scheduled through February 2020. Ohio's death row
currently houses 138 men and 1 woman. 4 people were added to death row last
year.
The real question is whether the state will proceed with 6 executions set for
this year, beginning with child killer Ronald Phillips of Summit County,
scheduled to be lethally injected May 10. Phillips was sentenced to death for
beating, raping and murdering his girlfriend's 3-year-old daughter in 1993.
The state had trouble until recently acquiring sufficient supplies of drugs to
proceed with executions. Now, although prison officials have procured a drug
supply, the process is stalled in the federal courts because of an appeal filed
on behalf of several death row inmates. Phillips' case was 1 of 8 executions
delayed by Gov. John Kasich on Feb. 10 because of the continuing litigation.
Ohio hasn't had an execution since Jan. 16, 2014, when Dennis McGuire choked,
gasped and struggled against his restraints for much of the 26 minutes it took
for him to die. Midazolam was 1 of the drugs used to execute McGuire.
The state now plans to use either a single dose of thiopental sodium or a
single dose of pentobarbital. The alternative is to use a 3-drug combination of
midazolam, to render the prisoner unconscious, followed by 1 of 3 paralytic
drugs, vecuronium bromide, pancuronium bromide or rocuronium bromide, with a
final drug, potassium chloride, to stop the heart.
DeWine's report showed there were 19 commutations by 4 governors, including 5
by Kasich; 9 inmates were ruled ineligible for execution because of
intellectual disability; and 4 are pending re-trial or re-sentencing.
The report said the average age of the 53 executed inmates was 45.7 years.
There were 19 blacks and 34 whites put to death since 1999, all males. Those
executed spent an average of about 17 years on death row.
Of 85 victims of those executed, 66 were adults and 19 were children; 1/3 were
black and 2/3 white or other races. There were 42 males and 43 females
murdered, the report said.
Ohioans to Stop Executions issued a statement in response to the capital crimes
report, saying the death penalty "continues to decline in nearly every
measurable way."
"Ohioans accept that capital punishment is coming to an end," said Kevin
Werner, executive director of the organization. "Our state and county coffers
will welcome the cost savings and more sound public policy. The real question
is how many more years will we tolerate the enormous costs, the bias, and the
risk of executing innocent."
(source: Columbus Dispatch)
********************
Death Penalty Pursued Against Sex Offender For Murder of Ohio State Senior
Franklin County prosecutor Ron O'Brien will pursue the death penalty against
Brian Golsby, the man accused of kidnapping, raping and murdering Ohio State
University senior Reagan Tokes in early February.
The Franklin County grand jury returned an indictment against Brian Golsby.
Golsby will be charged with aggravated murder, including 4 death penalty
specifications for rape, robbery, kidnapping and avoiding detention or
apprehension.
"He abducted [Tokes], drove around in her car for a couple hours with her,
raped her and then executed her with 2 gunshot wounds to the head," O'Brien
says. "It's just a terrible terrible case."
Golsby is also accused of committing some street robberies in the German
Village area from January 23 to February 7, the day before the murder,
approaching people with a gun or a knife.
O'Brien says Golsby is a career criminal who was patrolling the streets in
search of a vulnerable victim to rob.
"He was basically patrolling the streets looking for a vulnerable victim to
rob, and Ms. Tokes just happened to be at the wrong place at the wrong time,"
O'Brien says.
Golsby will be arraigned Monday.
(source: WOSU news)
_______________________________________________
A service courtesy of Washburn University School of Law www.washburnlaw.edu
DeathPenalty mailing list
***@lists.washlaw.edu
http://lists.washlaw.edu/mailman/listinfo/deathpenalty
Unsubscribe: http://lists.washlaw.edu/mailman/options/deathpenalty
TEXAS:
As execution looms, juror in Hurst Putt-Putt murder hopes to change law
When Sven Berger looked around at the other jurors in the deliberation room
during a 2008 capital murder trial, he knew that the majority wanted the death
penalty. He also knew he didn't.
But he voted for it anyway. It's a decision he still regrets, and one he says
he wouldn't have made if the law had been clearly explained in that Tarrant
County courtroom.
He'd sat in the courtroom and listened to how Paul Storey, the 22-year-old
defendant in an ill-fitting suit, and another man had robbed Putt-Putt in Hurst
and fatally shot the assistant manager, 28-ear-old Jonas Cherry. Berger knew
Storey was guilty, he said in a recent Texas Tribune interview, but in his gut,
he didn't believe the man would be a future danger to society, a requirement in
issuing the death penalty in Texas.
What Berger didn't realize - in part because of the language in the jury
instructions - was that his vote alone could have blocked the jury from handing
down a death sentence and given Storey life in prison without the possibility
of parole.
Thinking that he'd have to convince most of his fellow jurors to spare Storey
from execution, he didn't fight as the jury deliberated, Berger said. When the
life-or-death questions went around the table, he answered like everyone else.
Now, with Storey's execution set for April 12, Berger and at least 2 state
lawmakers are hoping to change jury instructions in death penalty cases.
"The judge instructed us that any vote that would impose a life sentence would
require a consensus of 10 or more jurors," Berger wrote in a letter to the
Senate Criminal Justice Committee last week. "With the vast majority of the
other jurors in the room ... voicing their vote for death, I seriously doubted
I could persuade 1, let alone 9 other jurors, to vote to incarcerate Mr. Storey
for the remainder of his life, and I switched my vote."
'I was shocked'
To hand down a death sentence in Texas, the jury's decision must be unanimous.
If even 1 juror disagrees, the trial automatically results in a sentence of
life without parole. But the jury instructions don't say that, and, under state
law, no judge or lawyer can tell jurors that either.
Instead, deliberations in a trial's sentencing phase focus not on death versus
life, but on 3 specific questions the jury must answer: is the defendant likely
to be a future danger to society? If the defendant wasn't the actual killer,
did he or she intend to kill someone or anticipate death? And, if the answer is
yes to the previous questions, is there any mitigating evidence - like an
intellectual disability - that the jury thinks warrants the lesser sentence of
life without parole?
To issue a death sentence, the jury must unanimously answer "yes" to the first
2 questions and "no" to the last question. But, the instructions state, to
answer "no" to the first 2 questions or "yes" to the last, 10 or more jurors
must agree.
What those complicated instructions don't say is that a single juror can
deadlock the jury on any of the 3 questions, eliminating death as an option and
triggering an automatic life without parole sentence.
Berger didn't get the distinction.
"I'm appalled that Texas' capital jury instructions misled jurors about the
implications of their vote, and find it unconscionable that men and women like
me, with the power of life and death, are told that they must act only as a
single group, and that their individual voice doesn't matter," Berger wrote in
his letter.
He's not the only one upset. Democratic Sen. Eddie Lucio, Jr. of Brownsville
and Rep. Abel Herrero of Robstown filed bills in the Texas Legislature to
strike the language that says ten or more jurors must agree to answer against
the death penalty, and also remove a sentence that bars judges or lawyers from
telling jurors what their votes mean. And Republican Rep. John Smithee, of
Amarillo, has since signed on to Herrero's bill as a co-author. Senate Bill
1616 and House Bill 3054 have both been referred to committee.
"I was shocked to learn that the instructions in place actually lie to jurors
who are tasked with quite literally making a life or death decision," Lucio
told the Tribune, saying religious advocates first informed him of the current
jury instructions.
'A guessing game'
The bills might not make much headway in a Republican-dominated legislature
that tends to avoid anything that could affect the death penalty. Though no
opposition has come forward yet (neither bill has even been granted a hearing),
prosecutors would likely fight it if it gained traction.
"In a death penalty case, the jury's job in sentencing is to answer the special
questions required by the law, not decide the ultimate sentence. This bill
informs them of the effect of their vote and basically encourages any hold-out
jurors to try to hang the jury on sentencing," said Shannon Edmonds, Director
of Governmental Relations for the Texas District and County Attorneys
Association.
District attorneys from the state's 5 biggest counties - Harris, Dallas,
Tarrant, Bexar and Travis - all either declined to comment or did not respond
to requests for comment on the bills.
The issue has been introduced at the Texas Capitol before. In 2011, state Rep.
Armando Walle filed a bill almost identical to the current ones. It never made
it out of the House Criminal Jurisprudence Committee after a lackluster
hearing, with only 1 person testifying for the bill.
Regardless, Herrero said, the change is necessary and he is optimistic about
the current bills' chances.
"We're talking about life and death decisions being made by jurors, and it
shouldn't be determined by a guessing game," he said.
Advocates hope the increased awareness with cases like Storey's will give the
issue more of a boost this year. Amanda Marzullo, interim executive director
for Texas Defender Services, said she hopes to have Berger and another juror
who has changed her mind testify if either bill is granted a committee hearing.
"It wasn't really pushed [in 2011]," Marzullo said. "This is the 1st time the
legislature's really had a conversation about fairness to jurors in capital
sentencing."
'I feel terrible'
Berger said he has been haunted by the death sentence he helped impose since an
appellate attorney came to him months later and showed him evidence of Storey's
mental impairments. According to one psychologist, Storey had an IQ of 81. This
cemented what he already thought but was unwilling to fight for at trial - that
Storey wasn't likely to be a future danger.
Berger wrote an affidavit in 2010 stating that had he known about Storey's
mental status, he would have fought against the death penalty at trial,
specifically on the future dangerousness question. Despite his statement,
Storey's sentence was upheld by the appeals court.
Berger said the experience has turned him from a supporter of capital
punishment to an opponent.
"I've certainly been educated about what goes into death penalty cases and the
results .... It's just astonishing to me how often trials are wrong. So that by
itself would change my mind. I still believe there are bad people in the world,
but no, I'm against the death penalty," Berger said.
Now, Storey's court appeals have all been exhausted. Last week, the parents of
Storey's victim, Jonas Cherry, wrote a letter asking the state and local
authorities to commute his sentence.
More likely, Storey will be led to the execution chamber on April 12 and become
the 5th person executed by Texas this year.
"I feel terrible. I think about it a lot, actually ... especially with the
execution looming," Berger said. "It's something that you know is going to
happen, but it's so far away you can kind of push it to the back of your head
... And then all of a sudden, there's this date attached to Paul."
(source: star-telegram.com)
********************
Texas Can No Longer Fabricate Its Own Medical Standards To Justify Executions
In a 5-3 decision, the U.S. Supreme Court on Tuesday concluded that current
medical standards must be considered when determining whether a defendant
facing the death penalty is intellectually disabled and thus barred from
execution under the Eighth Amendment.
The ruling was a strong rebuke, particularly to the state of Texas, which has
long based such determinations on outdated science in concert with a set of
subjective - if not simply stereotyping - standards that were largely based on
a fictional character.
The high court's decision also means that Texas inmate Bobby James Moore, who
was originally sent to death row in 1980, will again have a chance to prove
that he is ineligible for the death penalty. Moore's lawyers say that his
cognitive disabilities are so great that to execute him would violate the
constitutional ban on cruel and unusual punishments.
"The Supreme Court has sensibly directed Texas courts to be informed by the
medical community's current diagnostic framework before imposing our society's
gravest sentence," said Moore's attorney, Cliff Stone.
Moore was 20 years old in 1980 when he was involved with 2 others in the
botched robbery of the Birdsall Super Market in Houston that ended with the
shooting death of a 70-year-old store clerk. Less than 3 months later Moore was
sentenced to death for his role in the crime.
His case has been plagued from the start. Moore's trial attorneys floated a
fake alibi defense and failed to present exculpatory evidence that suggested
the shooting was accidental. A federal judge found the misconduct so egregious
that he ordered that Moore be resentenced. But Moore's attorneys still failed
to do any investigation that might have mitigated their client's culpability -
at a hearing they presented nothing about his childhood abuse or his serious
learning deficits, evidence that could have convinced a jury to spare his life
- and in February 2001 Moore was again sentenced to die.
Just over a year later the Supreme Court ruled in Atkins v. Virginia that while
"mentally retarded persons who meet the law's requirements for criminal
responsibility should be tried and punished when they commit crimes," as
Justice John Paul Stevens wrote for the majority, because of their
"disabilities in areas of reasoning, judgment, and control of their impulses
... they do not act with the same level of moral culpability that characterizes
the most serious adult criminal conduct." And such impairments "can jeopardize
the reliability and fairness of capital proceedings." Noting that a number of
states already barred the practice, the court ruled that death must be taken
off the table for the intellectually disabled.
But the court did not tell the states how to determine intellectual disability
when making decisions about who should face capital punishment, which has led
to some problems, notably in Texas.
Despite the court's ruling in Atkins, Texas lawmakers have repeatedly failed to
pass a statute that would codify that decision and outline the steps needed for
courts to determine disability. Into that void walked the state's highest
criminal tribunal, the Court of Criminal Appeals. In a 2004 case involving a
man named Jose Garcia Briseno, the court concluded that where legislators had
failed to act, it had no choice but to impose some order.
"This Court must now deal with a significant number of pending habeas corpus
applications claiming that the death row inmate suffers from mental retardation
and thus is exempt from execution," the court wrote. "Recognizing that 'justice
delayed is justice denied' to the inmate, to the victims and their families,
and to society at large, we must act during this legislative interregnum to
provide the bench and bar with temporary judicial guidelines in addressing
Atkins claims."
What the court came up with was a multi-pronged analysis for lower courts to
use when considering appeals based on a claim of intellectual disability. While
the court said the clinical definitions laid out by the American Association on
Mental Retardation - now known as the American Association on Intellectual and
Developmental Disabilities - must be considered, there was also an open
question as to how to determine the "level and degree of mental retardation at
which a consensus of Texas citizens would agree that a person should be
exempted from the death penalty." To determine a cutoff level - where
individuals with higher functioning would theoretically still be eligible for
death - the court turned not directly to experts in the field, but instead
cobbled together a set of standards based in part on the deficits demonstrated
by the fictional character Lennie Small from John Steinbeck's "Of Mice and
Men."
In other words, the CCA crafted a set of criteria that included things
"professionals would never use" to determine intellectual disability in order
to ensure that some individuals who may be clinically disabled would
nonetheless still be eligible for the death penalty, said Jordan Steiker, a
professor of law at the University of Texas at Austin. The move was "pretty
much in direct defiance of what the Supreme Court had held."
Under the court's criteria, Briseno, who had been convicted of killing a county
sheriff, did not qualify as intellectually deficient and his death sentence was
upheld. After additional legal wrangling, nearly 10 years later Briseno's
sentence was reduced to life in prison.
Moore filed an appeal claiming that he was intellectually disabled not long
after the Supreme Court handed down its Atkins decision, but it was not
considered until 2014, when a district court judge held an evidentiary hearing
on the matter. Ruling in Moore's favor, the judge concluded that under the most
current medical standards Moore was ineligible for execution. The court
recommended that his sentence be vacated.
The CCA overruled that decision, however, finding that the judge had not
adhered to its Briseno standard - in part because in Moore's case the court had
used the updated, 2011 clinical standards employed by the AAIDD and not the
1992 standards the CCA had relied upon. "Although the mental-health fields and
opinions of mental-health experts inform the factual decision, they do not
determine whether an individual is exempt from execution," the court wrote.
In Moore's case the court essentially ignored his serious, lifelong deficits -
he failed the 1st grade twice and every grade thereafter until he dropped out
in the ninth grade; he had to be drilled daily by teachers in order to
understand concepts such as days of the week, months of the year and how to
tell time - in favor of what they determined showed he was higher functioning -
including that he mowed lawns for money and knew how to play pool and dominoes.
It is with the CCA's conclusions that the Supreme Court has disagreed. Writing
for the court, Justice Ruth Bader Ginsburg noted that in a 2014 ruling in a
Florida case that also affirmed its Atkins decision, the court had instructed
that decisions about who is intellectually disabled should be "informed by the
views of medical experts," which "cannot sensibly be read to give courts leave
to diminish the force of the medical community's consensus," as the CCA had
done in denying Moore's appeal.
Further, she wrote that the additional standards the court had devised in
Briseno - those making up the so-called Lennie Standard - "are an invention of
the CCA untied to any acknowledged source." Refusing to rely on information
from the medical community and employing these fictionalized standards creates
an "unacceptable" risk that an intellectually disabled person would be
executed.
Moore's case now moves back to the CCA for further consideration; whether he
will they will agree outright that he should be resentenced to life in prison
is unclear. The court's ruling could also prompt additional appeals by other
Texas death row inmates whose claims of intellectual disability have been
denied under the CCA's unconstitutional Briseno standard.
Notably, there was at least 1 judge on the CCA, Elsa Alcala, who anticipated
that the court's standard was not sufficient to pass constitutional muster.
"This Court is required to uphold the federal Constitution as it has been
interpreted by the Supreme Court," she wrote in a lengthy dissent in Moore's
case. "Doing what we have always done simply because the Legislature has not
told us to do it otherwise is not the right answer."
(source: theintercept.com)
PENNSYLVANIA:
Death penalty sought for man charged in teen's dismemberment
Prosecutors plan to seek the death penalty against a Pennsylvania man charged
along with his girlfriend in the rape, death and dismemberment of her
14-year-old adopted daughter.
Bucks County prosecutors made the announcement Friday, when 44-year-old Jacob
Sullivan waived his formal arraignment on homicide, rape, kidnapping and other
charges in the death of Grace Packer in July.
Prosecutors say 42-year-old Sara Packer watched Sullivan act out a rape-murder
fantasy they shared. Prosecutors say the couple stored Grace's body in cat
litter for months, then hacked it up and dumped it in a remote area where
hunters found it in October.
Prosecutors had already signaled their intention to seek the death penalty
against Sara Packer. She has pleaded not guilty to the charges.
Their trial has been scheduled for March 2018.
(source: Associated Press)
************
Could boyfriend face death penalty in Grace Packer homicide?
As he appears before a Bucks County judge today, Jacob Sullivan will learn
whether he might face capital punishment in Grace Packer homicide.
In his alleged confession, Jacob Sullivan admitted raping 14-year-old Grace
Packer while the teen's mother, Sara Packer, watched.
Police say Sullivan also admitted squeezing the life out of Grace in a stifling
hot Richland Township attic, where prosecutors say the couple left Grace to
die.
The details of the killing, which prosecutors allege was the culmination of a
long-planned rape and murder fantasy Sara Packer and Sullivan shared, were
enough for Bucks County prosecutors to put the death penalty on the table for
Sara Packer, a former adoption supervisor for Northampton County's Division of
Children, Youth and Families.
As he appears before a Bucks County judge today, Sullivan will learn whether he
too might face capital punishment.
Sullivan, 44, is charged with homicide, rape, kidnapping, abuse of a corpse and
more than a dozen other offenses in connection with Grace's death in July 2016.
His arraignment before Judge Diane Gibbons today will be his 1st court
appearance since his arrest in January.
Police say Sullivan confessed, first to hospital staff at the Horsham Clinic,
where he and Sara Packer were treated following failed suicide attempts Dec.
30, then to police. Hospital staff told police that Sullivan also talked to
others, as they "witnessed an emotional encounter between Sullivan and his
family" at his bedside.
Sullivan even seemed to be confessing to reporters as he was hauled before a
judge the night of his arrest, saying "I'm sorry" to members of the press
attending his arraignment.
Whether Sullivan's apparent cooperation will sway prosecutors to keep the death
penalty off the table remains to be seen. Today's hearing is the deadline for
prosecutors to outline aggravating factors in Sulivan's case, facts that
elevate a homicide to a capital case.
(source: Morning Call)
GEORGIA:
DA will seek death penalty in Peacock case
District Attorney Brad Shealy and his office are seeking the death penalty in
the case against Jeffrey Peacock.
Shealy announced the update in the case Friday morning.
His office expects to file the notice of intent Monday.
"This tragic case clearly meets the statutory requirements for imposition of
the death penalty as set forth in the Georgia code. I will be assisting Senior
Assistant District Attorney Jim Prine of our Thomasville office, who will be
the lead counsel," said Shealy.
Peacock has been in the Colquitt County Jail since May of 2016, accused of
killing his 5 friends.
He was indicted last week, facing with 14 charges, including malice murder.
(source: WALB news)
FLORIDA:
Orme death sentence vacated, new sentencing hearing ordered----The Supreme
Court of Florida has vacated the death sentence for Roderick Orme, and ordered
a new sentencing hearing. Orme was convicted and sentenced to death for the
1992 robbery, rape and strangulation of Lisa Redd at Lee's Motel in Panama
City.
The Supreme Court of Florida has overturned the death sentence for a Panama
City man convicted of strangling a nurse in a motel in 1992.
In a 10 page opinion released Thursday, SCOFLA vacated the death sentence for
Roderick Orme. The justices ruled 6-0 that because a jury didn't unanimously
recommend or impose the death sentence, Orme is entitled to a new penalty
phase, or sentencing hearing.
A jury found him guilty in February of 1993 and recommended death by a vote of
7-5. A re-setencing jury recommended death for Orme 11-1 in July of 2007.
SCOFLA's ruling comes following an October 2016 United States Supreme Court
ruling finding Florida's death penalty unconstitutional unless a jury
recommends death unanimously.
Orme was convicted in February of 1993 of the March 3, 1992, rape, robbery and
strangulation death of Lisa Redd at Lee's Motel in Panama City.
Orme, a drug addict, had called Redd after he experienced a "bad high" because
he knew Redd was a nurse. When Redd came to his room, she found Orme with a
crack pipe and knocked it out of his hands. She also put several pieces of
crack in the toilet.
Police say Orme then raped her, stole her jewelry, beat her severely, and
strangled her.
He was caught after locking himself out of the room. He showed up the next day
at a detox center where he had previously been treated. At the detox center he
was unable to respond to questions but was able to write "LEE'S MOT RM15." When
the motel owner went to room 15, that's when Redd's body was discovered.
A semen sample from Redd's underpants matched Orme's DNA.
Orme's underpants had blood that matched the victim's. Orme's fingerprints were
found in the motel room. His wallet was found in the victim's car, which was
parked outside the motel.
A new re-sentencing hearing date has not been set for Orme.
(source: WJHG news)
LOUISIANA:
Lawmaker seeks to end death penalty in Louisiana
A Baton Rouge lawmaker is calling for the end of the death penalty in Louisiana
for 1st degree murder and 1st degree rape offenses committed after July 31st.
Republican Senator Dan Claitor says the death penalty cheapens life, which
degrades society. He says his Catholic religion teaches everyone's life is
sacred from conception to natural death.
"Many victims say that their faith would not allow for them to support the
death penalty even though they have been a victim and their family member has
been a victim."
The last person to be put to death was Gerald Bordelon in 2010. Currently,
Louisiana does not have the drugs needed to perform a lethal injection. Claitor
says locking up offenders for the rest of their life is a better punishment
than the death penalty. He says if signed into law, this bill would not affect
inmates on death row at the present time.
"They have avenues for appeal, they could have their sentences communed by the
governor."
Claitor says Louisiana spends a tremendous amount of money on the lethal
injection drug and the death penalty is not reducing murders in the state. He
expects he'll receive a lot of support because the death penalty is a costly
case to prosecute.
"I think that you will be surprised with the mix of people that are interested
in doing away with this costly process that doesn't yield any results."
(source: WWL news)
***********************
Bury the death penalty in Louisiana? Lawmakers file bills aimed to do just that
2 former law enforcement officials filed legislation to do away with death
penalty in Louisiana.
Democratic state Rep. Terry Landry, of New Iberia and a former superintendent
of the Louisiana State Police, and Republican state Sen. Dan Claitor, of Baton
Rouge and former prosecutor, filed separate, but nearly identical, bills. Both
would end capital punishment for murders committed after Aug. 1, if either
passes both chambers of the Legislature and is signed by the governor.
Louisiana has 73 men and 1 woman awaiting execution on death row in the
Louisiana State Penitentiary at Angola. The legislation would not overturn
their sentences.
But the state has no executions scheduled and no lethal chemicals on hand to
carry out the sentence, according to the state Department of Corrections.
The last execution in Louisiana was of Gerald Bordelon in January 2010 and he
volunteered. The longest serving inmate on death row, Michael Perry, has been
awaiting execution for 32 years.
The Louisiana Legislature convenes on April 10.
(source: The Advocate)
OHIO:
New report: More Ohio death row prisoners exonerated or removed than executed
A death sentence doesn't always mean death in Ohio. In fact, executions
resulted from less than 1 of 5 such sentences since 1981, when the state
reinstated capital punishment.
Over the same period, more convicted killers were exonerated or removed from
death row by judges (75) than were executed (53).
Another 27 men died in prison from disease or suicide, and 19 received
gubernatorial commutations, wiping out their death sentence.
The 2016 volume of Attorney General Mike DeWine's "Capital Crimes Annual
Report," released on Friday, said there have been 328 death sentences handed
down in Ohio since 1981. Less than 20 % of those people have been put to death,
although 25 executions are scheduled through February 2020. Ohio's death row
currently houses 138 men and 1 woman. 4 people were added to death row last
year.
The real question is whether the state will proceed with 6 executions set for
this year, beginning with child killer Ronald Phillips of Summit County,
scheduled to be lethally injected May 10. Phillips was sentenced to death for
beating, raping and murdering his girlfriend's 3-year-old daughter in 1993.
The state had trouble until recently acquiring sufficient supplies of drugs to
proceed with executions. Now, although prison officials have procured a drug
supply, the process is stalled in the federal courts because of an appeal filed
on behalf of several death row inmates. Phillips' case was 1 of 8 executions
delayed by Gov. John Kasich on Feb. 10 because of the continuing litigation.
Ohio hasn't had an execution since Jan. 16, 2014, when Dennis McGuire choked,
gasped and struggled against his restraints for much of the 26 minutes it took
for him to die. Midazolam was 1 of the drugs used to execute McGuire.
The state now plans to use either a single dose of thiopental sodium or a
single dose of pentobarbital. The alternative is to use a 3-drug combination of
midazolam, to render the prisoner unconscious, followed by 1 of 3 paralytic
drugs, vecuronium bromide, pancuronium bromide or rocuronium bromide, with a
final drug, potassium chloride, to stop the heart.
DeWine's report showed there were 19 commutations by 4 governors, including 5
by Kasich; 9 inmates were ruled ineligible for execution because of
intellectual disability; and 4 are pending re-trial or re-sentencing.
The report said the average age of the 53 executed inmates was 45.7 years.
There were 19 blacks and 34 whites put to death since 1999, all males. Those
executed spent an average of about 17 years on death row.
Of 85 victims of those executed, 66 were adults and 19 were children; 1/3 were
black and 2/3 white or other races. There were 42 males and 43 females
murdered, the report said.
Ohioans to Stop Executions issued a statement in response to the capital crimes
report, saying the death penalty "continues to decline in nearly every
measurable way."
"Ohioans accept that capital punishment is coming to an end," said Kevin
Werner, executive director of the organization. "Our state and county coffers
will welcome the cost savings and more sound public policy. The real question
is how many more years will we tolerate the enormous costs, the bias, and the
risk of executing innocent."
(source: Columbus Dispatch)
********************
Death Penalty Pursued Against Sex Offender For Murder of Ohio State Senior
Franklin County prosecutor Ron O'Brien will pursue the death penalty against
Brian Golsby, the man accused of kidnapping, raping and murdering Ohio State
University senior Reagan Tokes in early February.
The Franklin County grand jury returned an indictment against Brian Golsby.
Golsby will be charged with aggravated murder, including 4 death penalty
specifications for rape, robbery, kidnapping and avoiding detention or
apprehension.
"He abducted [Tokes], drove around in her car for a couple hours with her,
raped her and then executed her with 2 gunshot wounds to the head," O'Brien
says. "It's just a terrible terrible case."
Golsby is also accused of committing some street robberies in the German
Village area from January 23 to February 7, the day before the murder,
approaching people with a gun or a knife.
O'Brien says Golsby is a career criminal who was patrolling the streets in
search of a vulnerable victim to rob.
"He was basically patrolling the streets looking for a vulnerable victim to
rob, and Ms. Tokes just happened to be at the wrong place at the wrong time,"
O'Brien says.
Golsby will be arraigned Monday.
(source: WOSU news)
_______________________________________________
A service courtesy of Washburn University School of Law www.washburnlaw.edu
DeathPenalty mailing list
***@lists.washlaw.edu
http://lists.washlaw.edu/mailman/listinfo/deathpenalty
Unsubscribe: http://lists.washlaw.edu/mailman/options/deathpenalty