[Deathpenalty]death penalty news----MO., KY., FLA.

[Rick Halperin]

Nov. 24


MISSOURI:

Death-row case overturned -- Man convicted of killing black college
student to receive new trial


A Joplin man won reversal of his death sentence Tuesday when the Missouri
Supreme Court ruled that his trial lawyers failed to adequately question
conflicting testimony on whether the slaying was premeditated.

Gary Black, 49, will get a new trial in the 1998 slaying of college
student Jason Johnson. The court said Black's public defenders failed to
adequately challenge prosecution witnesses who gave testimony at the trial
that conflicted with statements they gave Joplin police during their
investigation at the time of the stabbing.

The prosecution contended that the attack was racially motivated,
instigated when Black's girlfriend told Black that Johnson, a black man,
made a pass at her. Based on the accounts of witnesses who were friends of
Johnson's, it was alleged that Black followed Johnson for more than a mile
and stabbed him without provocation.

Black contended that he stabbed Johnson after Johnson mouthed at him and
hit him with a beer bottle. Black contended he did not intend for Johnson
to die.

Johnson, of St. Louis, died Oct. 5, 1998, 3 days after the stabbing that
severed a jugular vein and damaged a carotid artery. He was a football
player at Missouri Southern State University.

"It's all in God's hands as it was before," said Johnson's mother, Charlee
Johnson, of her reaction Tuesday night to the decision. "All we can do is
go through it again if that's what it takes," she said by telephone when
contacted at her St. Louis home.

Jasper County Prosecutor Dean Dankelson said Tuesday that the court
overturned Black's conviction on an issue of ineffective representation, a
standard review that people convicted of crimes by a jury are entitled to
receive.

"This is the 2nd appeal of the case," said Dankelson. "The court affirmed
the verdict on the direct appeal. The direct appeal concerns issues of
evidence that were addressed at the trial.

"The 2nd appeal is on whether the defense attorneys were effective in
representing the defendant. It has nothing to do with the work done by the
police or prosecution."

According to trial testimony, Black's girlfriend, Tammy Lawson, stood in
line in front of Johnson at a convenience store at Fourth Street and St.
Louis Avenue shortly before the stabbing. When she came out of the store,
she pointed Johnson out to Black and said that Johnson had made a lewd
suggestion to her while in line.

Johnson got in a pickup truck driven by a friend, and they drove toward
downtown Joplin. Black followed them.

Three witnesses testified at the trial that Johnson was stabbed while
sitting in the truck when the driver stopped at the intersection of Fifth
Street and Joplin Avenue to talk to some women. Those witnesses said
Johnson did not get out of the truck. But, 2 of those witnesses had given
police statements shortly after the stabbing in which they said they saw
Johnson get out of the truck, mouth something at Black and hit Black in
the head or arm. In those earlier statements, they had told police that it
was after Johnson got back in the truck that they noticed Johnson was
bleeding from the neck.

Johnson's friends also testified that he had had only two or three beers
before the stabbing. Johnson's blood-alcohol level once he reached the
hospital was 0.29 %, which the Supreme Court justices said was a high
enough level that the defense should have challenged the witnesses on
their testimony about the quantity Johnson had consumed. Defense attorneys
at the trial did not question contradictory statements the friends gave
about how long Johnson had been drinking, according to the court opinion.

The opinion also said Black's lawyers did not bring out a statement made
to police that Johnson had instigated a quarrel with someone else earlier
in the night.

Two witnesses who were standing on the street and were not among Johnson's
friends told police that Johnson, as Black had contended, got out of the
truck and approached Black, shouting and throwing or hitting Black with a
beer bottle.

Black contended that he stabbed at Johnson after Johnson had hit or
stabbed him in the arm with a broken beer bottle.

In the court opinion, the justices said the contrasts in the testimony
warranted more effort by the defense. The court, in the opinion written by
Justice Laura Denvir Stith, said: "Here, counsel's failures went to the
key issue of deliberation. The record in this case shows that the jury was
focused on that issue."

Dankelson said the court uses a 2-part test to determine whether defense
lawyers provide ineffective representation.

"One is that the work is defective, and the second part is that the defect
was not just an error (that had no impact on the jury's decision) but a
substantial error," he said. The courts weigh whether the errors might
have led jurors to make incorrect conclusions on which they based their
verdict.

Black was represented at trial by Valerie Leftwich. Attempts to find a
telephone listing for her Tuesday night were unsuccessful.

When cases are appealed, the attorney general's staff represents the
state. Scott Holste, a spokesman for Attorney General Jay Nixon, said he
did not have any statistics on how many death-penalty cases are overturned
in Missouri, or how frequent or rare it is for capital cases to be
reversed because of errors by defense attorneys.

"I can't quantify that or give a generalization," said Holste. "This is a
case where the case was upheld on direct appeal."

The Department of Corrections did not immediately have figures available
on the number of death-row cases that have been overturned, according to
spokesman Wanda Feeney.

Dankelson said it will be several weeks before Tuesday's court decision is
final. If it is not further appealed, the state's high court will send the
local court an order to hold a new trial.

(source: Joplin Globe)






KENTUCKY:

2 courts block Bowling execution----Mental condition, method questioned


2 courts yesterday blocked the scheduled Nov. 30 execution of
double-murderer Thomas Clyde Bowling Jr.

The Kentucky Supreme Court said it wants to rule on whether more
examination is needed into claims by Bowling's lawyer that he is mentally
retarded and therefore cannot be executed under Kentucky law and a U.S.
Supreme Court ruling.

Earlier in the day, Franklin Circuit Judge Roger Crittenden ordered the
execution to be put off until he rules on whether the specific lethal
injection process Kentucky uses is constitutional.

Bowling, 51, was convicted in 1990 of fatally shooting Edward Earley, 25,
and his wife, Tina, 22, as they arrived to open a family dry-cleaning
business in Lexington.

Lawyers for the state and Bowling said the orders mean the execution
cannot be carried out Nov. 30. The attorney general's office filed an
appeal with the Supreme Court on Crittenden's ruling. No date for a
hearing on the appeal was set.

Bowling's father, Thomas Clyde Bowling Sr., attended the court hearings
and said before the high court ruled that he was naturally pleased with
the Franklin circuit order.

"I do hope one of those judges will give us a break here," Bowling said in
an interview.

Mental competence

On the issue of whether Thomas Bowling is mentally retarded, Susan
Balliet, a lawyer with the office of Public Advocacy, told the high court
there is strong evidence of that.

At the age of 14, Bowling was shown to have an IQ of 74, and he was held
back in the second grade, and again in the ninth grade, at which point he
dropped out of school, she said.

Balliet asked the court for an order sending the case back to the trial
court for an evidentiary hearing to establish whether Bowling is retarded.

Ian Sonego, an assistant attorney general, said the Fayette Circuit Court
ruled Bowling competent to stand trial. In preparation for that trial,
Sonego said, Bowling was given 2 different tests and shown to have an IQ
of 86 on one and 87 on the other.

Balliet said that an IQ test administered when a person is 14 is more
accurate. And she said that such tests have a five-point margin of error.

She said Kentucky law bans execution of a person with an IQ of 70 or
below. And she said a U.S. Supreme Court ruling of two year ago allows the
blocking of executions of persons with IQs somewhat higher than 70.

Bowling's father said he could not hear arguments made by lawyers in the
Supreme Court.

"I don't know exactly what 'mental retarded' means, but he never did well
in school work," he said.

Lethal injection

On the issue of how the state carries out lethal injections, Crittenden
said, in a five-page order, that questions raised by Bowling's lawyers
deserved further examination.

"The public interest is best served when the Commonwealth presents and
explains its position on the manner and means," he said in the order.

Ted Shouse, a lawyer with the state Department of Public Advocacy, raised
questions about the length of time an injection took in 1999 to kill Eddie
Lee Harper, the 1st person Kentucky executed by the method under a law
passed in 1998.

He said drugs to put Harper under anesthesia may have worn off before the
administration of drugs to kill him, which cause excruciating pain.

Shouse said Bowling's defense team has been unable to learn from the
Department of Corrections other details of the execution procedure.

Crittenden granted a temporary injunction to stay the execution until he
could rule on the merits of the case.

Similar challenges

The Kentucky case is one of many challenges to lethal injections that have
been raised in courts in other states, according to Richard Dieter,
executive director of the Washington-based Death Penalty Information
Center, which does not take a position on executions.

"Virtually every inmate facing execution is raising this - in Texas, North
Carolina, Tennessee, Virginia and Ohio," he said. In most cases, higher
courts allowed the executions to proceed, he said.

New Jersey in February suspended all lethal-injection executions pending a
review of the medical regulations governing such procedures.

David Elliot, spokesman for the National Coalition to Abolish the Death
Penalty, based in Washington, said the Kentucky decision should not be a
surprise.

"The fact of matter is, there's no easy way to kill a person, whether you
are talking about the gas chamber, electrocution or lethal injection," he
said. "It's fundamentally impossible to kill a person nicely."

Under normal medical practice, anesthesiologists closely tend patients who
are given drugs to put them to sleep, Elliot said. During an execution,
the drugs are not administered by a doctor, and the inmates are not
closely monitored, he said.

Lawyers push cases

Pierce Whites, deputy attorney general, said he is confident Bowling will
be executed.

"We will continue to work diligently to see that the sentence imposed by
the jury is carried out," he said.

Ernie Lewis, director of the state office of Public Advocacy, which
represents Bowling, said he is pleased with the court orders, "The court
saw that both issues are important."

Fayette Commonwealth Attorney Ray Larson, who prosecuted Bowling, said he
feels strongly the execution should be carried out.

"Twelve members of our community in Fayette County made up a jury, they
found him guilty of both of those murders, and they sentenced him to
death. There you go," Larson said. He said of the Earley family members,
"They want this to be over."

Bowling, 80, of Lexington, said he visited his son at the Kentucky State
Penitentiary in Eddyville on Saturday.

"It's amazing. He puts on a happy face as far as when we're visiting. He
likes to crack jokes. I don't know if he realizes what's happening,"
Bowling said.

(source: Courier-Journal)






FLORIDA:

Attorneys seek new trial for man


In Vero Beach, a county inmate testified Tuesday that a former boyfriend,
who died last year, confessed to a 1990 murder that sent another man to
death row.

Lisa Ann Grone, 33, said an ex-boyfriend showed her a newspaper article
more than 1 1/2 years ago and confessed to shooting and killing a
30-year-old Sebastian convenience store clerk on July 3, 1990, after an
apparent armed robbery went sour.

Former Sebastian resident Rodney Tyrone Lowe, 34, is on death row for the
murder.

"He (her boyfriend) said it was so long ago...everything was taken care
of. There was no concern," said Grone, who is in jail awaiting an
arraignment for allegedly violating her probation for a recent fraud
conviction. "I didn't tell anyone because I felt it was none of my
business. We never talked about it again."

Lowe's attorneys from Capital Collateral Regional Counsel - a state agency
that represents death-row inmates - motioned Tuesday to re-evaluate their
client's sentence and will ask Circuit Judge Robert A. Hawley for a
retrial because of the new testimony.

However, prosecutors said Grone's depiction of what her former boyfriend
told her conflicted with evidence recovered at the murder scene.

"Grone's testimony is just not reliable," said prosecutor Leslie Campbell,
of the State Attorney's Office, adding Grone's statements also conflicted
with what others confessed to police.

Grone told attorneys about the confession after she had become cellmates
earlier this year with Lisa Miller, who also previously testified in the
Lowe case.

Miller claimed she heard the same man Grone accused of pulling the trigger
previously confessed to the murder.

Lowe was found guilty of killing Donna Burnell, of Palm Bay, at the Nu
Pack Market on County Road 512 in Sebastian and has been on Florida's
death row since 1991.

The Florida Supreme Court upheld a jury's 9-3 vote in favor of the
conviction and death sentence in 1994.

Hawley is expected to deliver his ruling at the end of January.

(source: TCPalm.com)