[Deathpenalty]death penalty news----ARK., ARIZ., S.C., CALIF.

[Rick Halperin]

Dec. 18


ARKANSAS:

Court rules against death-row retrial


A divided Arkansas Supreme Court ruled 4-3 Thursday not to reopen the case
of an allegedly mentally retarded man who was convicted in 1999 of raping
and murdering a North Little Rock security guard and sentenced to death.

Andrew R. Engrams attorneys asked that the case be reopened in light of a
2002 decision from the U.S. Supreme Court declaring the execution of
mentally retarded inmates "cruel and unusual punishment," a violation of
the Eighth Amendment. Engrams attorneys claim that he is mentally
retarded.

In declining the request, the Supreme Court ruled that Engram should have
raised the issue during his trial, citing Arkansas Code Annotated 5-4-618,
which bars the death penalty for mentally retarded defendants.

Instead, the court found Engrams attorneys never asked for a ruling on
whether he was mentally retarded. "Since it was Engrams burden to do so,
he should have obtained a ruling on his mental retardation issue from the
trial court before his trial ever started," Justice Tom Glaze wrote for
the majority. "Instead, Engram never pursued the mental retardation issue,
likely for the reason that there was no evidence offered to support such a
defense."

Writing in dissent, Justice Robert Brown said Pulaski County Circuit Judge
John Plegge, who has since retired, should have ruled on whether Engram
was retarded and said the case should be remanded back to the trial court
for an answer.

Brown cited a section of A. C. A. 5-4-618 that states "the court shall
determine if the defendant is mentally retarded" after the issue has been
raised.

Justice Ray Thornton also dissented in Thursdays ruling, citing a previous
state court finding that defendants could raise questions for the first
time on appeal if the trial court failed to bring "a matter essential to
its consideration of the death penalty itself."

Plegge did hold a hearing in March 1998 to determine if Engram was
competent to stand trial, but he did not address whether Engram was
mentally retarded.

At that hearing, a forensic psychologist testified that Engrams IQ was
between 76 and 86, well above the mental retardation threshold of 65. The
psychologist testified that he did not believe Engram was retarded, and
Plegge ruled Engram competent to stand trial.

Engrams attorneys did not present evidence at the time showing that he was
mentally retarded.

Engram was convicted in the June 5, 1997, slaying of Laurie White, a
26-year-old security guard assigned to watch over tents put up in the
parking lot of North Little Rocks McCain Mall.

Co-workers discovered her body hanging in one of those tents with an
electrical cord around her neck, her throat slashed. Semen and pubic hair
found at the scene were later traced to Engram.

Already considered a habitual offender and convicted of an earlier murder
in 1976, Engram was sentenced to die by lethal injection. He is one of 40
inmates on Arkansass death row.

Thursdays ruling was the state Supreme Courts 2nd on Engram. The 1st,
issued in 2000, affirmed his conviction and led his attorneys to bring the
case before a federal judge, asking that his sentence be dismissed. As
part of those proceedings, Engrams attorneys asked Chief U.S. District
Judge Susan Webber Wright to consider vacating the sentence in light of
the U.S. Supreme Courts 2002 ruling.

However, Wright noted that the question had not been raised in state court
- a requirement before she could consider it - and instructed the
attorneys to bring the question before the Arkansas Supreme Court.

In issuing that order, Wright noted that "a substantial possibility
exists" that the Supreme Court would reopen the case.

In declining Engrams request, the Supreme Court opened the door for
Engrams attorneys to bring the case back before Wright. "Were obviously
pleased," said Matt DeCample, a spokesman for the Arkansas attorney
generals office, which argued against reopening the case.

In asking that Engrams case be reopened, attorneys for the federal public
defenders office compared it to that of another death row inmate, whose
case was reopened in 2003 after the discovery of an error by the jury.

The Supreme Court, however, found little in common between that case and
Engrams. Instead of trying to correct an earlier mistake, Engrams
attorneys are trying to raise an argument that wasnt raised at trial,
Glaze concluded. "The fact that the [U. S] Supreme Court has subsequently
spoken on the constitutionality of the issue does not change the fact the
he could - and should - have attempted to avail himself of [state law] at
trial," Glaze wrote.

Justices Betty Dickey, Annabelle Clinton Imber and Jim Hannah agreed.

In the dissent, Brown argued the case should be reopened only to consider
whether Engram is indeed mentally retarded, saying that the state was
"eschewing" its responsibility to determine the matter.

Brown said his dissent is not based on Engrams arguments, but merely on
the courts failure to comply with state law requiring the trial judge to
rule on the mental retardation question. Justice Donald Corbin agreed with
Brown.

Thorntons dissent was based on a 1980 state Supreme Court decision that
created the rules for when defendants can raise questions not initially
raised at trial. Because the trial judge failed to rule on whether Engram
was mentally retarded, Thornton contended that ruling applied, and the
case should be reopened.

At the Arkansas Supreme Court, the case is CR99-928, Andrew R. Engram v.
State of Arkansas.

(source: Arkansas Democrat-Gazette)






ARIZONA:

DNA expert testifies death row inmate cannot be ruled out in case


A prosecution DNA expert said Friday that Bobby Lee Tankersley, who is on
death row for the 1991 murder of a Yuma woman, could not be eliminated as
the source of DNA evidence taken from the scene of the crime.

Tankersley was convicted in 1993 for the murder of 65-year-old Thelma
Younkin in the Post Park Motel in Yuma. The current hearing in Yuma County
Superior Court about DNA evidence is about whether to grant Tankersley a
new trial.

Virginia Smart, supervisory criminalist for the Mesa Police Department,
testified that her review of the two DNA analyses that had been done in
the case did not exclude Tankersley as a suspect.

"My conclusion was that ...I could not eliminate Tankersley from any of
the samples," Smart said.

During cross-examination, defense attorney Jennifer Sparks went point by
point through Smith's report, showing many examples where her client's DNA
was totally absent.

Smart said these examples occurred because the DNA sites that were
captured were mixtures of different DNA contributors. Some of the sites
from which samples were taken included Younkin's face, a bite mark, an
oxygen tube and cigarette butts.

Younkin was raped and strangled with her oxygen tube in her motel room,
where she was living.

Smart said there were also locations where DNA swabs were taken and
Younkin's DNA did not appear in the analysis.

Handling each DNA case consistently is a point of emphasis for her agency,
Smart said.

She said the analysis done by the defense's DNA expert, Anjali Swienton,
was inconsistent in that it eliminated Tankersley because his DNA was not
present when the same swabs showed that the victim's DNA was also not
present.

"It's not unreasonable to require someone to be on their own sample," she
said.

Smart said that because the samples taken were mixtures, those samples
cannot be used to conclusively exclude Tankersley. She said the exclusion
of Tankersley is especially difficult in this case because his DNA and
that of Younkin are so similar.

Prior to Smart taking the stand, Sparks objected to her being allowed to
testify, saying her testimony would be based on assumptions and cumulative
to evidence already offered by the prosecution. Judge Thomas Thode
overruled that objection.

Thode was the judge for Tankersley's trial in 1993. Tankersley appeared in
court Friday in a red jumpsuit.

The hearing will continue at 8:30 a.m. Monday. The defense will call a
witness who will testify by telephone. Assistant Attorney General John
Todd, the prosecutor for the case, is also scheduled to appear by
telephone.

(source: Yuma Sun)






SOUTH CAROLINA----re: volunteer

Death row inmate waives his appeals----Man who killed 4 says he is ready
to be executed


A man sentenced to die for fatally shooting 4 former co-workers at an
Aiken County plant in September 1997 will be allowed to give up his
appeals and go to the death chamber.

2 state psychiatrists and 1 hired by the defense all testified Friday that
Arthur Hastings Wise understands his crime and is able to help his
attorneys, which are tests to determine whether he is competent to waive
his appeal.

At the end of the daylong hearing, Circuit Judge Thomas Cooper asked Wise
whether he was sure he wanted to go to the death chamber.

"I wish to proceed with my execution," Wise said quietly.

Cooper then ruled Wise could waive his appeal.

Wise's execution still could be months away, though. Defense psychiatrist
Dr. Donna Schwartz-Watts was asked to evaluate Wise within a week of his
execution.

"I don't think anyone knows what effects an impending execution will have"
on Wise's competency, she said.

Cooper said he wasn't sure whether the state Supreme Court allows him to
order that. The judge asked both attorneys to write briefs on the matter
by Jan. 15. Until then, Cooper will not formally issue his ruling.

Once Cooper releases his ruling, the justices will review it. If they
approve, Wise's execution could take place within a month or so, Assistant
Attorney General Creighton Waters said.

Wise, 50, has said he wanted to go to the death chamber since shortly
after he was convicted in February 2001. He was within weeks of dying by
lethal injection in June when the state Supreme Court stopped his
execution because Wises lawyer said he wanted to appeal and Wise wrote a
letter to the court saying he wanted to die.

That dispute triggered Friday's competency hearing.

Wises lawyer, Robert Dudek, didn't have much to work with after the
psychiatrists ruled Wise was competent and the inmate asked to die.

So Dudek asked Cooper not to grant Wises request because Wise has said he
wanted to plead guilty instead of going to trial and his attorneys told
him that was impossible.

"A person should not be allowed to be determined competent for his own
execution when he was so misadvised," Dudek said.

Waters relied on the conclusions from the psychiatrists. "All 3 of the
experts we've had here today have found him competent," he said.

Wise killed 4 co-workers and injured 3 others during a Sept. 15, 1997,
attack at the R.E. Phelon lawnmower ignition plant.

Wise, who had been fired from his job as an assembly line worker 6 weeks
earlier, picked out his targets and looked for people he thought had been
given jobs he wanted or who helped to get him fired, prosecutors said.

At his 2001 trial, Wise told his lawyers he wanted to take responsibility
for the killings. He refused to let them call 13 family and friends in an
attempt to get a life sentence instead of death.

A year later, Wise wrote the attorney general's office asking for help to
hasten his execution.

The psychiatrists testified Wise always has been a religious man and
thinks he should face just punishment for the killings.

When police found Wise, he had swallowed a mix of bug spray and sleeping
pills, but psychiatrist Richard Frierson said Wise is no longer suicidal
even though he wants to be executed.

Frierson agreed with Coopers assessment that Wise was like a patient with
cancer who decides he would rather give up chemotherapy than continue to
fight the disease.

Wise just wants to carry out the wishes of the jury, the doctor said.

If the jury had voted to spare his life, "Mr. Wise would not want to die,"
Frierson said. "He would be content to serve out his life sentence in
prison."


(source: Associated Press)






CALIFORNIA:

A Civilized Society and the Death Penalty


Other than meting out an ounce of revenge, I ask you, how does the death
penalty and mob mentality that followed the death sentencing phase of the
Scott Peterson case ("Jurors Say Scott Peterson Should Die for 2 Murders,"
Dec. 14) serve to advance what we perceive as a civilized society? It
seems to me we are no different from the person perpetrating murder.
Dennis Berman----Huntington Beach

****

Re "Slow Ride to the Death Chamber," editorial, Dec. 15: So what if it
costs more to condemn Peterson to a death sentence that might never take
place than a life sentence. Isn't it worth the extra cost to deliver the
message to him that, despite what his mother said, his life isn't worth
saving? Peterson might not be executed, but for as long as he does live,
he'll have to live with that knowledge.

Stacey Rain Strickler----Los Angeles

****

The death penalty is wrong for 3 reasons. First, it is bad philosophy:
Killing a killer to prove killing is wrong does not make sense. Second, it
is bad politics: America's standing in the international community is
hampered because most civilized nations no longer permit the death
penalty. And it is not practical: It costs more to execute defendants than
to imprison them. The death penalty is bad morals, politics and economics.

Kenneth Michael White----Attorney, Upland

****

The trouble with the death penalty is that, as long as it is available,
anything less than that seems to imply that the crime was less bad as
well. Jurors and the public are not often going to be willing to make that
concession.

Ehrhardt Lang----Lompoc

(source: Letters to the Editor, Los Angeles Times)

**********************

Death Penalty Cases Challenge Bay Area Juries

For the 1st time in decades, Bay Area juries have handed down the death
penalty 3 times in 1 week.

The 1st happened on Monday for Scott Peterson for killing his wife and
unborn son. Tuesday an Alameda County jury went with the death penalty for
the so-called sausage king, Stewart Alexander for killing 3 meat
inspectors 4 years ago. And Friday 5 death sentences were handed down in
Contra Costa County for Glen Helzer.

The San Francisco Chronicle reports Saturday that death sentences have
actually been decreasing in California and nationally.

The jury foreman whose panel gave Helzer 5 death penalty sentences says
he's actually against capital punishment.

KCBS reporter Bob Melrose says the foreman has described the deliberations
as very difficult but in the end, San Ramon attorney Bernie Rose voted
with the others to give Glen Helzer the death penalty, 5 times.

Helzer admitted killing 5 people in summer of 2000 as part of an extortion
plot.

Rose says he's opposed to capital punishment but the law has to be
followed. "I feel that the death penalty and I've come to this conclusion,
is state sanctioned revenge and I don't think that any civilized society
should abide by it. But again we apply the law as it was given to us and I
believe it was a just and fair decision," Rose said.

(source: KCBS News)

****************************

Week of death penalties not necessarily a trend -- Capital punishment
declining in state, legal experts say


3 death penalty verdicts in one week are certainly rare, but aren't
necessarily evidence that juries are becoming more willing to impose the
ultimate penalty, legal experts said Friday.

"Death penalty verdicts have been down in California this year and for a
couple of years and there's no indication that's turning around," said
professor Franklin Zimring, director of the Earl Warren Legal Institute at
the University of California, Berkeley, Boalt Hall School of Law.

"We don't know whether this is a burp or a national indicator, but for my
money, I would vote burp," Zimring said.

A Contra Costa County jury on Friday said Glenn Taylor Helzer should be
executed for killing 5 people in 2000, the 3rd in a string of death
penalty verdicts throughout the Bay Area this week.

On Monday a San Mateo County jury said Scott Peterson should die for the
murder of his wife, Laci, and an Alameda County jury on Tuesday
recommended the death penalty for Stuart Alexander, a sausage maker who
gunned down 3 meat inspectors in his San Leandro factory in 2000.

Each man awaits formal sentencing by a judge, but it is highly unlikely a
judge would overturn the juries' recommendations.

In some ways, the law of averages may have played a role in the juries'
verdicts this week. Santa Clara University law school professor Ellen
Kreitzberg said prosecutors are asking for the death penalty in fewer and
fewer instances and generally in only the most severe cases.

If anything, the juries' verdicts this week reflect the severity of the
cases before them, she said.

"It could be that these are just 3 of the worst cases of the decade," said
Kreitzberg, a director of the law school's death penalty college, a
training program that teaches lawyers how to handle death penalty cases.

Kreitzberg noted that the nation is still deeply conflicted over the death
penalty. Coincidentally on Friday, she said, the Kansas Supreme Court
threw out that state's 1994 death penalty law, saying it was crafted in a
way that gave prosecutors an unfair advantage.

It's hard to say, too, whether media coverage of the Peterson verdict may
have swayed subsequent juries' votes, Kreitzberg and Zimring said.

"There's nothing impossible in relation to saturation media coverage and
its impact on non-sequestered juries," Zimring said.

(source: Daily Review)