[Deathpenalty]death penalty news----S.C., PENN., CALIF., KY.
rhalperi at mail.smu.edu
Thu Dec 30 10:44:46 CST 2004
Newspaper Argues Against Judge's Request
A newspaper asked a federal judge Tuesday to throw out a request that it
investigate whether a staffer got a phone call from a juror during the
death penalty trial of an escaped convict.
Media "are not to be annexed as investigators," The Greenville News
attorney Jay Bender told Judge Joe Anderson.
Defense attorneys for Branden Basham, convicted last month of the kidnap
and slaying of victim Alice Donovan, think a conversation between a juror
and reporter should warrant a new trial, and want a newspaper
representative to testify about the phone call.
Jury forewoman Cynthia Wilson already testified she had a lengthy
conversation with a television station employee. According to phone
records, the paper was one of five news organizations contacted by Wilson
before Basham was sentenced to die for his role in Donovan's death.
Basham was convicted before Wilson made the calls.
Besides contacting several TV stations and the (Spartanburg)
Herald-Journal, Wilson called other jurors during different stages of the
trial, defense attorney Greg Harris said. Some calls came on days when
Basham acted disruptively in court, he said.
Basham was not in court Tuesday because he refused to wear a monitoring
device, a marshal testified.
Basham and Chadrick Fulks, who also was sentenced to death in the case,
escaped from a Kentucky jail in November 2002 and went on a 2-week crime
spree through several states. Both men also are charged in the death of
West Virginia college student Samantha Burns.
Prosecutors have argued Basham shouldn't get a new trial because Wilson
contacted the media to ask why they weren't covering the trial. There's no
evidence she was influenced by the conversations with the media or other
jurors, whom she probably befriended during the trial that spanned several
months, assistant U.S. Attorney Scott Schools said.
"We've really turned this mole hill into a mountain," Schools said.
The judge didn't say when he would rule.
(source: Associated Press)
Murderer avoids death penalty
Michael Heberlig folded his hands, bowed his head and closed his eyes,
praying softly for a moment Monday as he sat alone at a table in a
Cumberland County Courtroom.
Minutes later, he stood before Judge Edgar Bayley and pleaded guilty to
shooting 33-year-old Lathan Spencer 8 times over a $400 cocaine-related
debt he couldn't pay him on Oct. 28, 2003.
"I'm truly sorry," the 35-year-old Shippensburg man said. He shook his
head and began to sob, unable to continue speaking.
Assistant Public Defender H. Anthony Adams finished for his client,
stating, "He was under the influence and using cocaine heavily at the time
(of the murder). ... Now he realizes the severity of what he's done. It
has harmed not only (Spencer's family), but also his own family."
Heberlig has a wife and two young children. Spencer, who lived near Mt.
Holly Springs, also had two young children and a fiancee.
The men met at a Penn Township park-and-ride lot off Route 233 to discuss
Heberlig's debt. Spencer brought an additional $3,600 worth of cocaine,
which was gone after the murder.
Heberlig confessed in a Nov. 24, 2003, interview with Pennsylvania State
Police that he shot Spencer and took the drugs.
After unsuccessful attempts to get the cocaine robbery charge dropped and
to suppress evidence from the confession, Heberlig agreed to plead guilty
under the condition that he would be sentenced to 20- to 40 years in a
state correctional institution.
Originally, he was charged with 1st-degree murder as well as criminal
homicide, burglary, robbery, theft by unlawful taking and receiving stolen
property. The state was seeking the death penalty.
Chief Deputy District Attorney Jaime Keating said the DA's office studied
sentences in a number of previous drug-related death cases before offering
the plea agreement.
"We came up with what we feel was fair to the victim and to the
defendant," he said. "At least Heberlig will be able to see his children,
albeit through prison bars. Lathan Spencer got the death penalty for a
drug deal, and his children will grow up without a father."
Stolen weapons used
Court documents say Heberlig told Trooper Douglas Howell and Cpl. George
Cronin he was afraid Spencer would kill him or his family if he didn't
kill Spencer first.
Heberlig owed him $400 for a quarter-ounce of cocaine but did not have the
He said he shot Spencer while the two sat inside Spencer's van at about 1
p.m., then Spencer tumbled into the lot. Heberlig took the cocaine, ran to
his own vehicle and began to drive away.
When he realized Spencer was still moving, Heberlig told police, he pulled
alongside him and shot him again to ensure he would not survive and report
Keating said Monday that Spencer was shot 6 times with a .44-caliber
pistol and 2 more times with a .223 rifle. The weapons were stolen from
residences in Southampton and Penn townships.
Spencer's wounds, categorized as "rabidly lethal," included a shot to the
left arm that indicated he was lying on the ground, holding his arm up
defensively, Keating said.
He was also shot in the back of the head.
A passerby found Spencer dead in the lot at 1:15 p.m. that day alongside
his van, which was still running.
Suppression efforts fail
Spencer's then-fiancee, Michelle Webster, testified in a habeas corpus
hearing Oct. 21 that she tried to convince him not to leave their home as
he weighed 36 grams of cocaine for Heberlig hours before his death. An
ounce consists of about 28 grams.
"I thought that was just too much for one person to be buying n it didn't
sound right. I thought he was being set up," she said.
Heberlig maintained his innocence during that hearing as Adams argued
there was no proof his client stole the cocaine.
The drug robbery made the circumstances of the murder "aggravating," which
meant the commonwealth could seek a death penalty against Heberlig.
State police Trooper Gregory McCombs testified then that a sample of
Heberlig's blood tested positive for the presence of cocaine 2 days after
McCombs said he obtained cellular phone records for a phone he was told
Heberlig used on the day Spencer died, and there were calls to Spencer's
cellular phone on those records.
In a separate suppression of evidence hearing, Adams said state police had
not provided Heberlig with the proper Miranda warnings about his right to
have an attorney present before interviewing him. Consequently, Adams
said, transcripts of the interview - including his confession - should be
Keating said the testimonies proved the charges, and Bayley issued an
opinion denying both of Adams' arguments Nov. 22.
In addition to the prison sentence, Heberlig was ordered to pay a $50,000
fine and $17,518 in restitution costs.
When court was adjourned, Heberlig shuffled out of the courtroom with
shackles on his hands and feet.
Flanked by officials from the Cumberland County sheriff's office, he did
not look up as he walked past more than a dozen relatives n including his
parents n who sat watching in the front row.
The family hugged one another and some wept after he left.
(source: The Sentinel)
Test results again tie Cooper to slayings
In what has become a familiar refrain, the results of new scientific tests
don't support Death Row inmate Kevin Cooper's claim that police framed him
for the 1983 hatchet murders of four people in Chino Hills.
It is the 3rd time science has failed Cooper since February, when a
federal appeals court stayed his execution just hours before he was to die
and ordered his long-standing protests of innocence examined.
"Every single test we have done has come back concluding that Kevin Cooper
was there and committed the murders,' said Nathan Barankin, spokesman for
Attorney General Bill Lockyer. "And every time the evidence comes up
pointing to his guilt (his lawyers) have to come up with some other theory
on how he didn't do it.'
The Attorney General's Office on Tuesday released results from the most
recent DNA tests on a blood stained T-shirt found near the crime scene.
Cooper claims police planted his blood on the shirt to frame him for the
murders of Doug and Peggy Ryen, their 11-year- old daughter, Jessica, and
10- year-old houseguest, Christopher Hughes.
All 4 were hacked to death inside the Ryen family home 2 days after Cooper
escaped from the nearby California Institution for Men state prison.
Traces of the victims' blood are also on the shirt.
A faint smear was tested at Cooper's request earlier this year for the
chemical EDTA, a crime lab preservative used by police. An expert chosen
by Cooper found no significant levels of the chemical, suggesting that
blood on the shirt did not come from a test tube.
That same smear was then tested for DNA to confirm it came from Cooper and
not the victims.
The results, released Tuesday, included Cooper is as a possible donor of
the DNA and excluded all of the victims.
The DNA profile of the smear is found randomly in the general population
in 1 in 46,000 blacks, 1 in 14,000 whites and 1 in 5,900 western
Hispanics. Cooper is black.
"We've now looked at the stain, it's his, and it doesn't show planted
blood,' Deputy Attorney General Holly Wilkens said. "What more do you
Prosecutors did not present the T-shirt as evidence in Cooper's trial.
They consider the planting theory absurd because, if true, police would
have planted the blood in the mid-1980s, before DNA technology existed.
Cooper's legal team on Tuesday vowed to continue their fight to prove
Cooper innocent. They downplayed the significance of the DNA results and
insisted more tests need be performed.
"No reliable conclusions can be made at this time from the testing just
completed,' the attorneys said in a written statement.
They want more tests done on the smear to confirm it is blood, and they
want additional DNA tests performed on non- stained areas of the shirt to
check for background levels of DNA.
The 9th U.S. Circuit Court of Appeals stayed Cooper's execution Feb. 9.
The justices wanted the T-shirt tested for EDTA, and hairs in the victims'
hands tested for DNA, to see if they could have been pulled from the head
of an attacker other than Cooper.
The hairs, tested in August, all appeared to have come from the heads of
Unlike at trial, Cooper bears the burden in these appeals of proving his
He has failed to meet that burden, prosecutors said.
"The 9th Circuit's order was based on (Cooper's) assertion that these two
simple, easy tests could be done and would conclusively establish whether
Kevin Cooper is innocent or not,' Barankin said. "Obviously, we've had
more than 2 simple tests and the overwhelming weight of the evidence
continues to point to Cooper's guilt.'
U.S. District Court Judge Marilyn Huff has given both sides until Jan. 7
to request additional testing.
Huff has appeared skeptical of Cooper's claims throughout months of
hearings in U.S. District Court in San Diego, and she hinted during
several hearings that she wants to wrap up the case by year's end.
If she denies Cooper's appeals, he is unlikely to face execution anytime
He would again appeal to the 9th Circuit court, and then to the U.S.
Such appeals are likely to take one to two years to complete.
"The name of the game for Kevin Cooper is stalling us out as long as
possible,' Barankin said. "The only thing we can do is keep presenting the
facts and the science to the court and hope justice will be done.'
(source: Pasadena Star News)
Kentucky Governor's Execution Order Draws Fire
The Hippocratic Oath doctors swear to save lives, not end them. But one
doctor accused of doing just that also happens to be the governor of
Kentucky, and a lawmaker willing to sign execution orders on death row
"There is a distinct difference between acting as a physician for a
patient and acting as a governor for the people of the commonwealth of
Kentucky," Gov. Ernie Fletcher, a former family physician and U.S.
congressman elected to the state's highest office last year, told FOX
Last month, Fletcher signed the death warrant for 51-year-old Thomas Clyde
Bowling, who was convicted in 1990 of killing a couple outside their dry
cleaning store in Lexington, Ky. Death penalty opponents, including
Amnesty International and the American Civil Liberties Union, protested
the governor, arguing that the case against Bowling had flaws and that he
is mentally retarded. The U.S. Supreme Court ruled in June 2002 that
executing people with mental retardation is unconstitutional. Kentucky
already had the prohibition on the books when the court ruled.
But opponents to Bowling's execution also made the appeal that signing
paperwork resulting in death violates Fletcher's oath as a doctor.
"The basic Hippocratic Oath is 'do no harm,' and execution does
irreparable harm," said Dr. Stewart Urbach at the University of
Fletcher said he was simply fulfilling his responsibility as governor.
"I felt the jurors made a sound decision, and I wanted to recognize they
made a sound decision and acknowledge that by signing the death warrant,"
Now, a group of doctors has asked the state medical board to investigate
whether Fletcher violated the rules of the Kentucky Medical Association,
which licensed Fletcher. The state guidelines are in sync with guidelines
from the American Medical Association, which say that physicians shouldn't
participate in executions. The AMA defines an execution as anything that
assists or contributes to the death of a condemned prisoner.
"That is a direct violation of Kentucky law as well as the AMA ethics code
and Kentucky medical Association ethics code," said Dr. Steven Lippman at
the University of Louisville.
Bowling's November execution date was stayed by two courts, including the
Kentucky Supreme Court, which is still considering a claim from Bowling's
attorney that her client is mentally retarded and therefore his sentence
should be commuted.
Meanwhile, officials at the Kentucky Medical Association say the KMA's
board will rule on Fletcher's license early next year. Fletcher said he's
not worried about the outcome.
"I think reason will rule here, and I feel we have acted in a very
reasonable way," he said.
(source: Fox News)
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