[Deathpenalty]death penalty news------TEXAS, CALIF., ARIZ., KY.

[Rick Halperin]

Nov. 29


TEXAS----impending (female) execution

Woman faces execution, but not without a fight----Questions raised about
the quality of her defense and crime lab methods


Frances Newton, convicted of killing her husband and 2 young children in
April 1987, has maintained her innocence.

It was Frances Newton who first called 911 to report that her husband and
two children had been killed, summoning sheriff's investigators to a
bloody crime scene at her north Harris County apartment.

Authorities found her husband on a couch, shot in the head. Her son and
daughter were in their beds, each shot in the chest.

Initially, police had no suspects. But 13 days later, Newton was arrested
and charged with capital murder in the April 9, 1987, deaths of Adrian
Newton, 23; their son, Alton, 7; and daughter, Farah, 2.

"I was so scared and confused. Not only was my family dead, but then
they're charging me with murder," Newton, now 39, recalled recently,
seated in a visitor's stall at the women's death row at the Mountain View
Unit in Gatesville.

After nearly 17 years of claiming innocence, Newton is scheduled to
receive a lethal injection Wednesday. She would be the third woman
executed in Texas since the state resumed capital punishment in 1982.

Prosecutors said Newton killed her family because she wanted to collect a
$100,000 life insurance payment.

Questions have been raised, however, about the quality of her legal
defense and the reliability of forensic testing by the Houston Police
Department crime lab, both of which have come under scrutiny in recent
years, her attorneys said.

Newton does not claim to know who killed her family. But she says it may
have been a drug dealer she knew only as Charlie, who was trying to
collect a debt from her husband, a longtime drug addict.

State and federal judges have repeatedly rejected her claims that her case
was never fully investigated because her lawyers failed to provide
effective legal representation.

Court-appointed lawyer

Newton could not afford to hire an attorney. The attorney appointed to
handle her 1988 trial was longtime Harris County defense lawyer Ron Mock.

Mock has seen 16 clients sent to death row and frequently has been accused
of doing shoddy work on capital cases, court records show. Newton said
that, in the months leading up to the trial, Mock rarely spoke with her
about her case.

In a court hearing shortly before the trial, Mock said he had not filed
any motions, spoken with any witnesses or submitted a list of possible
witnesses to subpoena.

Catherine Coulter, the attorney appointed to work with Mock, signed an
affidavit last week agreeing with Newton's attorneys that she and Mock
provided ineffective legal assistance.

For example, she said, Mock told her he had thoroughly investigated the
physical and scientific evidence in the case, but later admitted he had
not.

"It is extraordinarily difficult to effectively represent someone when
your co-counsel is not being truthful," Coulter stated in her affidavit.

The document will be attached to Newton's final appeal, which is pending
before the state Court of Criminal Appeals. Newton also has a clemency
petition pending before the state Board of Pardons and Paroles.

'Tired' attorney

Mock said in a recent interview that he felt professionally burned out at
the time of Newton's trial and was not enthusiastic about her case.

"I did 19 capital cases and I was tired," he said earlier this year. "I
didn't want that case. (Judge) Charlie Hearn asked me to take it."

The case was an uphill battle, Mock recalled.

"I had nothing, really, to work with other than Frances' saying that she
did not do it."

Mock has been barred from accepting court-appointed capital cases since
2001, when state legislators enacted landmark reforms in the way indigent
legal defense is handled in Texas.

Fears about poor legal representation for capital defendants helped lead
to adoption of the Fair Defense Act, which raised the standards for
lawyers on death-penalty cases and increased the resources available for
their investigations.

Ballistics tests questioned

In Newton's case, prosecutors said the murder weapon was a .25-caliber
automatic pistol that was found in a blue bag in an abandoned house near
her apartment.

Newton's cousin told authorities that she saw Newton hide the gun in the
house.

Newton explained that she had found the unfamiliar gun at home and removed
it as a safety precaution. Her husband sometimes carried a weapon and she
did not want him to get into trouble, she said.

Newton's attorneys recently questioned the ballistics tests on the gun.
The tests were conducted by the Houston Police Department crime lab, which
suspended DNA testing in December 2002 because of problems including an
undertrained staff, shoddy scientific technique and conditions ripe for
evidence contamination.

Court records show that tests also found traces of possible gunpowder on
the dress Newton wore. But her attorneys say that may have been garden
manure, which, like gunpowder, has nitrates and can trigger a false
positive test result.

Initial tests on Newton's hands on the night of the crime found no
evidence that she had fired a gun, court records show.

Prosecutors have opposed requests for new testing on the dress, despite
new technology that could differentiate between gunpowder and manure.

Unresolved issues

Several days after the slayings, an anonymous caller reported seeing an
unfamiliar black man in a red truck outside the Newtons' apartment on the
night of the killings. The tip included a license plate number registered
to a local man, but the tip was not investigated, Newton's attorneys said.

Newton's cousin said Newton appeared surprised and distraught when they
returned from shopping and found the bodies. They immediately called
police, the cousin said.

Other aspects of the crime, including chronology placing Newton with
relatives about the time of the murders, suggests she was wrongly
convicted, said attorney John LaGrappe, who began representing her several
months ago.

"At no point in the past 18 years has anyone investigated whether Frances
Newton is telling the truth. Not the police, not the Harris County
prosecutors, not Frances' lawyers," LaGrappe said. "This was flawed from
the beginning and she has never received a fair day in court."

Roe Wilson, the Harris County prosecutor who has opposed Newton's appeals,
said all of her claims were reviewed by numerous state and federal courts.
There is no reason to believe Newton did not kill her family, she said.

"They are just rehashing and re-arguing old evidence," Wilson said. "The
only thing unusual about this case is that Frances Newton is a female.

"The fact of the matter is that women don't get a free pass on capital
murder. They are just as subject to the law as men are."

(source: Houston Chronicle)

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

It's All in the Execution


In display cases topped with razor wire, the Texas Prison Museum has a
billy club, a ball and chain and an authentic "Death Row" baseball cap. It
also has nasty-looking knives made by inmates, a Thompson submachine gun
used by guards, and a photo gallery of prison gang tattoos.

The museum contains a jail cell, where visitors can pay $3 and get their
picture taken wearing a striped prison uniform. Best of all, it has "Ol'
Sparky," the oak electric chair in which 361 Texas felons were executed
between 1924 and 1964.

What the museum does not have -- at least on this drizzly fall Thursday --
is visitors. The place attracted 23,000 paying customers last year, but
right now there's not a single tourist.

"We have some really good days and some days like this," says Jim Willett,
the museum's director.

Dressed in bluejeans and a blue shirt, Willett is standing in the gift
shop, where visitors can buy key chains made by inmates or a T-shirt that
says, "PEN STATE: 5-Year, 10-Year, 20-Year and Lifetime Degrees."

Attendance peaks in summer, Willett says, when American families are on
vacation and looking for roadside fun. But winter days sometimes get busy,
too, especially when schools bring busloads of students, some as young as
10.

"They find it neat, looking at all the guns and the electric chair," says
Willett. "Of course, kids that age, they all want to get in the cell and
see what it's like. They seem to enjoy themselves."

Willett, 55, is a friendly, gray-haired fellow who speaks in a Texas drawl
and emphasizes his strongest opinions with "gosh" and "golly." He's
uniquely qualified for his job: He worked in Texas prisons for 30 years,
ending his career as warden of "the Walls," the Huntsville Unit prison
where Texas executes murderers. In 3 years, Willett presided over 89
executions -- more than any living American.

"We did 40 in one year," he says. "That set a record."

That was in 2000, when George W. Bush was governor of the state that
executes more convicts than any other, about 1/3 of the executions in the
country. Willett retired early in 2001. But hanging around the house bored
him, so he volunteered at the museum, then housed in an old bank downtown.

In 2002, the museum moved to its fancy new quarters out on Interstate 45:
a red brick building designed to resemble a prison, complete with a fake
guard tower manned by a fake guard holding a fake rifle. A few months
later, the museum's board named Willett director.

"It's been fun," he says. "I enjoy it."

His favorite display is the collection of weapons seized from prisoners
over the years. It includes brass knuckles made from razor blades, a
shotgun made out of pipes, and a blackjack made by a prisoner who scraped
lead paint off the prison walls, painstakingly squeezing it into a tight,
heavy ball about the size of a plum and tying it inside a sock.

"Most people spend more time looking at that exhibit than anything else,"
Willett says.

The other crowd-pleaser is, of course, Ol' Sparky, the main attraction in
a capital punishment exhibit called "Riding the Thunderbolt." It's a
simple, solid, straight-back oak chair -- except for the leather straps at
the ankles and wrists and the wires that were hooked to a prisoner's head
and left foot, sending 1,800 volts of electricity through the body.

There's a low glass wall in front of Ol' Sparky and a sign warning
visitors not to sit in it, but some folks just can't resist.

"Last March, we had a school of kids here, about 12 years old," Willett
says. "I told them, 'There are two things you can't do. Don't get on the
top bunk in the cell and don't get over the rail where the electric chair
is.' Well, one group, they kept messin' with this little girl, saying, 'Go
ahead and do it, go ahead and do it.' And she jumps over the rail and
she's gonna sit down in the chair when suddenly the alarm goes off. And
she's scared to death and she runs into the Plexiglas and breaks it into
about 10 pieces. Miraculously, she didn't get cut."

Right near Ol' Sparky is a display of the prosaic plastic needles and
tubes that Texas now uses to kill killers. A label identifies the first
device as "used to administer sodium thiopental, which sedated the
inmate." The second was "used to administer pancuronium bromide, which
collapsed the inmate's diaphragm and lungs." The third administered
"potassium chloride, which caused the inmate's heart to stop."

Willett is intimately familiar with those devices, more than he'd like to
be. He loves the Walls, but he never liked performing executions.

"I didn't get any enjoyment out of it," he says softly.

Execution days had a rhythm all their own, he recalls. In the early
afternoon, the condemned man would arrive from death row, located in a
prison about 40 miles away. Willett would greet the inmate and chat for a
while. In midafternoon, the inmate would get his last meal.

"The prison system says you can have anything you want as long as we've
got it," Willett says, "so if you order oysters, you're not gonna get
oysters. But if they want four or five different things, they get all
that. And they get a good dessert. They get plenty of food. And a lot of
them will say, 'Gosh, it was hot off the grill.' And it is. There's no
standing in line waiting to get your meal like they normally do."

At 6 p.m., Willett would escort the inmate into the death chamber. It's a
teal green room with a cross-shaped gurney. As witnesses watch from two
adjoining rooms -- one for the inmate's family, one for the victim's
family -- the inmate is strapped to the gurney, face up, and IVs are
inserted into his arms. Willett would pull a microphone to the inmate's
lips so he could utter his last words. Then Willett would take off his
glasses -- his signal to the executioner to start the flow of lethal
chemicals.

The last words of some inmates were more memorable than others, Willett
says.

"Probably the most humorous one that happened: I had a little black guy
lay up there one night," he says. "He did a beautiful job of apologizing
to the family of the victim. And then he apologized to his family for all
he had put them through. Then he said, 'Okay, warden, let's go ahead with
it.' But before I could give the signal to the executioner, he said, 'One
more thing -- how about those Dallas Cowboys!' I thought, 'My gosh, where
did this come from? And what place does it have in here?' I used to be a
Cowboys fan, but I don't know what he was thinking."

Then there was Jonathan Nobles, an employee of the Central Texas Crime
Prevention Association who stabbed 2 women to death in 1986. Twelve years
later, on his execution day, Nobles asked if he could sing "Silent Night"
as the poisons were pumped into his veins.

"The chaplain came to me and said, 'He wants to sing "Silent Night" while
the stuff's being put in.' And I said, 'Gosh dang it, what if I tell him
no? If he wants to sing, he's gonna sing. What can we do to him? We're
gonna kill him anyway.' It's not much of a last thing to be asking, from a
fella that's fixin' to die. . . . So we get in there that night and we get
to that point and I give the signal to the executioner and this guy starts
singing. And right then it dawns on me: The news media is gonna think we
cut him off right in the middle of it. And, you know, he sings two or
three lines and he's out. . . . And that's exactly what happened: They all
said, 'How come you cut him off while he was singing?'"

Watching the families of victims as they witnessed the executions, Willett
concluded that they usually came away disappointed.

"I don't think those victims' families got everything they thought they'd
get when they came to see that guy die," he says. "It's like at Christmas
when you're expecting something and then you actually get it and it isn't
as neat as you thought it was when you were waiting for it. They have the
same kind of thing happen to them. It doesn't do for them what they
thought it would do."

After each execution, Willett would sit at a computer in his bedroom,
recording his memories of the person he'd helped to kill. He did it
because he felt it would be wrong to forget even the lowest of murderers.
He used those writings as the basis for his memoir, "Warden," which will
be published in February by a small Texas outfit called Bright Sky Press.

"A lot of the time -- most of the time, I guess -- the guy you saw laying
on the gurney, the guy I was talking to that afternoon, didn't appear to
be at all the guy who committed that crime 10 years ago," Willett says. "A
simple example of that is a guy who's messed up on dope out there for a
while and doin' all these crazy things and he commits this horrible crime
and now he's down here on death row for 10 years and he's dried out and
his real personality comes out. Some of those guys got great personality.
Some of them are joking and fun that last day. I had one who kept my
officers in stitches all afternoon the day he was there, telling them
jokes and just being funny. It's probably a way to get through the day for
a person like that."

Willett says he never lost any sleep over the executions. He didn't have
any nightmares, either. But sometimes, when he was doing a lot of
executions -- 2 or 3 a week for a few weeks running -- his wife would tell
him that he was getting cranky with the kids.

"At one particular time," he recalls, "we did a whole bunch in a two-week
period, and she told me, 'You're getting kinda short with all of us.'"

Despite his lack of enthusiasm about executions, Willett says he's not
sure whether he'd end the death penalty if he had the power.

"I don't know," he says. "I think probably the government has the right to
do them if the people choose. And the people of Texas just overwhelmingly
-- like 82 percent -- say they're for it. I think it might have something
to do with that Wild West image. That kind of carries over today with
people saying, 'There are certain things where if you do them, we're just
gonna put you to death.' And they do."

While Willett has been telling stories, about a half-dozen visitors have
arrived, paying their $4 and wandering through the museum.

In the gift shop, a young man is thumbing through a cookbook called "Meals
to Die For," by Brian D. Price, a former inmate who cooked last meals for
nearly 200 condemned men before leaving prison and becoming a Christian
radio personality. The book contains 44 recipes, including "Old Sparky's
Genuine Convict Chili" as well as "Hangman's Hamburger Steak" and "Uh-Oh,
I'm Dead Meat-Loaf."

Out among the exhibits, Emily Arnold, 20, and Mark Briley, 21, are
studying a display case devoted to Bonnie and Clyde, the famous
Depression-era bank robbers.

The case contains a pistol that once belonged to Bonnie Parker and a photo
of Clyde Barrow sitting dead in the bullet-riddled car in which the two
outlaws met their death, ambushed by lawmen in a scene later made famous
in the Warren Beatty movie. There's also a letter that Barrow wrote while
in the Walls and sent to auto magnate Henry Ford:

"Dear Sir, While I still have got breath in my lungs, I want to tell you
what a dandy car you make. I have drove Fords exclusively when I could get
away with one."

Arnold and Briley are theater majors at Midwestern State University in
Wichita Falls, Tex. They've come to Huntsville for a theater festival and
decided to visit the museum.

"Huntsville is famous for its prisons," says Briley, "and we had some time
-- "

"So we wanted to check it out," says Arnold.

They're both enjoying the museum -- "it's pretty intense," says Arnold --
but they disagree about which exhibit is best.

"Ol' Sparky," says Arnold. "Seeing Ol' Sparky and knowing so many people
died in it."

"I like all the stuff the prisoners made out of things they could find,"
Briley says. "That paint ball -- they scraped lead paint off the wall and
made a ball of it and put it in a sock and hit people. It's like, what's
that expression? Necessity is -- "

"Necessity is the mother of invention," Arnold says.

(source: Washington Post)





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

States' criminal justice shocks


It is unbelievable what one reads about Texas' criminal justice system and
the executions that are taking place in Texas.

And it seems even more incredible to me that none of our elected officials
are taking any issue with the situation.

The attorneys who represent indigent defendants are appointed to take the
case by the courts. This is shameful.

And no one should be derisive about a person being indigent because if the
majority of us were to go through a protracted and expensive court trial,
many of us could end up indigent, too.

If I were the judge in such a case, I would refuse to make such an
appointment on the grounds that it was a conflict of interest in my role
as a judge.

In Illinois, the governor put a moratorium on all executions until the
problems with its judicial system were thoroughly investigated and
solutions explored.

This was only after it had been shown that many of those who had been
sentenced to be executed were actually innocent.

It is the advent of sophisticated DNA analysis that has permitted this
kind of examination.

Texas should also declare a moratorium. This state should stand as a
champion for justice, but, so far, it cannot make that claim.

And lest readers think they have nothing to do with the question of
capital punishment, they should think again.

When voters cast their ballots in the last election, they acted to
preserve the status quo on executions because we were all given a choice.

In the next election, look closely at every candidate running for office,
and if he or she has taken no stand on capital punishment and the death
penalty in Texas, ask them to.

Local elected officials, state legislators and certainly statewide office
holders (include the governor) should have input for this situation.

GARY PETZ--Houston

(source: Letter to the Editor, Houston Chronicle)

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

Sister Helen Prejean, author of "Dead Man Walking: An Eye Witness Account
of the Death Penalty in the U.S.," will discuss the death penalty and its
abolition Thursday as the inaugural presentation for the Joan Coffey
Lecture Series. The presentation will be held at 7:30 p.m. in the Olson
Auditorium, or Room 220, of Academic Building 4 and will be followed by a
reception and book-signing. The lecture series was founded in honor of
Joan Coffey, a beloved professor in the university's history department
who died in 2003 after a long battle with cancer.

(source: Hunstville Item)





CALIFORNIA:

Appeals Could Delay Peterson's Sentence


The jury that convicted Scott Peterson of murder reconvenes this week to
decide whether he should be executed, but the decision may not be final
for years given his numerous options for appeal.

Appeals are expected to focus on the performance of Peterson's
high-profile Los Angeles attorney, Mark Geragos, legal experts said.

"An appellate attorney would argue that Geragos was incompetent," said
Pete Kossoris, a retired Ventura County death penalty prosecutor. "One of
the things he can be criticized for was his promise of certain evidence in
his opening statement, and he never offered it."

Geragos, as with others involved in the case, remains under a
court-imposed gag order.

After a 5-month trial that became a national sensation, Peterson was
convicted Nov. 12 of first-degree murder in the death of his wife, Laci,
and 2nd-degree murder in the death of the fetus she carried. Arguments
begin Tuesday in the trial's penalty phase, in which the same jury will
decide whether he should get the death penalty or life in prison without
parole.

A celebrity lawyer who has represented such well-known clients as Winona
Ryder and Michael Jackson, Geragos will not represent Peterson once he is
sentenced.

State-appointed, publicly funded lawyers will take over, a standard
practice in California murder appeals.

The effectiveness of the defense is a bread-and-butter issue for appeal in
capital cases, experts said.

In his opening statements to jurors in June, Geragos floated a series of
explanations for the murders of Peterson's wife, Laci, and the fetus she
carried. Among them was that transients who lived in the couple's
neighborhood abducted Peterson's pregnant wife, then framed him after
learning about his alibi, which was widely circulated in the media.

Geragos never backed up his opening statements, which could have
prejudiced jurors against his client.

Peterson's possible grounds for appeal also include the dismissal of two
jurors during deliberations. One was ousted after performing her own
research on the case; the reason for removing the other juror, who was the
foreman of the panel, has not been disclosed.

Then there are the numerous hearings regarding evidence -- what was
allowed before the jury and what was excluded.

Perhaps the most damning evidence against the 32-year-old former
fertilizer salesman was the hundreds of secret recordings between Peterson
and his mistress, Amber Frey, but defense attorneys could argue that the
recordings were inflammatory and not relevant to the case.

The recordings portrayed Peterson as a liar and an uncaring husband in the
days after his wife was reported missing on Christmas Eve 2002.

Frey's testimony revealed how Peterson continued to pursue her even as
others searched for his wife. Laci Peterson's body and that of her fetus
ultimately washed ashore in San Francisco Bay, near where Peterson claims
he was fishing the day she disappeared.

Prosecutors proposed a number of motives for the murder before finally
asserting that Peterson killed his wife so he could live the life of a
freewheeling bachelor. He was carrying Viagra when he was arrested after
his wife's body was identified.

Over Geragos' objection, Alameda County Superior Court Judge Alfred A.
Delucchi allowed a manager of a satellite television company to testify
that Peterson ordered pornographic programming shortly after his wife's
disappearance.

"The jury can draw whatever inferences they want from that," Delucchi said
in admitting the manager's testimony.

Daniel Horowitz, a criminal defense attorney who is closely following the
case, said the pornography evidence should not have been admitted.

"It doesn't contribute to a criminal mind," he said. "It certainly may
have prejudiced the jury."

Other appeals are likely to detail evidence the defense was barred from
including, experts said.

The judge blocked Geragos from presenting to jurors a video made by his
defense team that showed a replica of Peterson's fishing boat tipping as
someone tries to dump a weighted object overboard. Prosecutors said
Peterson used a recently purchased aluminum boat to dispose of his wife's
body in the bay.

The trial's venue also provides a possible route for appeal.

The case was moved to Redwood City from the Peterson's hometown of
Modesto, where authorities believe the murders occurred, after a judge
concluded that an impartial jury could not be seated in the couple's
hometown.

During the 2nd month of jury selection in Redwood City, Geragos
unsuccessfully sought to move the trial to Los Angeles. He said an
impartial jury could not be found in Redwood City, a suburb of San
Francisco about 70 miles from Modesto.

(source: Associated Press)

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

High court to be in session in San Diego----State justices to hear
arguments at USD


A death-row inmate says he's mentally retarded and therefore can't be
executed. Can he?

A prosecutor uses contradictory theories of the same murder in separate
trials to convict 2 men of the crime. Is that legal?

Those are 2 of the more compelling cases for which the 7 justices of the
California Supreme Court will hear oral arguments in a special session in
San Diego next week.

On Dec. 7 and 8, the justices will sit in session at the Joan B. Kroc
Institute for Peace and Justice at the University of San Diego. The event
will be held in conjunction with the celebration of the 50th anniversary
of the USD School of Law.

The justices will hear a full calendar of cases over the 2 days. The
morning session on the 1st day will be televised statewide on the
California Channel, a public-affairs cable network reaching about 5.6
million viewers.

The session also is being billed as the largest collaborative public
education event in the state court's history. That's because teams of
lawyers and judges will be leading discussions of the cases at 15 local
high schools and USD's law school.

The session also is part of a larger goal of Chief Justice Ronald George
to make the court more accessible to residents.

George has long advocated greater access to courts and court proceedings
by the public in his 8-year tenure. The state Supreme Court, based in San
Francisco, regularly meets in Los Angeles and has in the past met in other
cities, also as part of special sessions.

But this session offers more than just an academic exercise. Decisions in
many of the cases, such as the one involving the inmate claiming mental
retardation, will have an impact on potentially scores of current
death-row inmates and affect an untold number of capital-punishment cases
in the future.

The case involves Anderson Hawthorne Jr., convicted of 2 murders in Los
Angeles in 1986 and sentenced to death. He has filed a writ of habeas
corpus, a way of challenging the constitutionality of a conviction or
punishment.

Hawthorne's lawyers say he is mentally retarded and, under a 2002 decision
by the U.S. Supreme Court, can't be executed. In that case, the federal
court ruled that it was cruel and unusual punishment to execute the
retarded - but it didn't define what mental retardation was, leaving that
to individual states.

Lawyers for Hawthorne have submitted declarations and reports from
mental-health experts, family and friends, all talking about his low IQ
and history of problems with what is called "adaptive behavior " - basic
life skills - since childhood.

His IQ has been tested as low as 71 - a score exceeded by 97 % of the
population and considered on the borderline for mental retardation. He
also has had a score as high as 86, according to documents prepared for
the arguments.

The court will have to decide three issues: what mental retardation means,
whether Hawthorne has made a good-enough case to be granted a hearing in a
lower court where he can present evidence, and how that hearing - as well
as others on similar claims in the future - should be conducted.

The state Legislature has defined "mentally retarded" as the condition of
"significantly sub-average general intellectual functioning," coupled with
"deficits in adaptive behavior" that were evident before age 18.

Prosecutors from the state Attorney General's Office are expected to argue
that Hawthorne is on the low end of normal intelligence, but not retarded.

Another case involves defendants Peter Sakarias and Tauno Waidla. Both
were convicted in 1991 by Los Angeles juries of murdering a woman 3 years
earlier. They had separate trials presided over by the same judge and
tried by the same prosecutor.

At Waidla's trial, the prosecutor argued that Waidla had inflicted the
fatal hatchet blows on the victim, and pointed to an autopsy report
concluding that marks on her back occurred when she was dragged into a
bedroom after her death.

At Sakarias' trial, the prosecutor argued that Sakarias had struck the
fatal blows, telling jurors the woman may have been alive when she was
dragged into the bedroom where Sakarias finished her off. The prosecutor
did not tell jurors about the autopsy report at that trial.

Prosecutors can present conflicting theories at different trials as long
as they do not present false evidence or try to mislead a jury. The
justices will have to decide, among other issues, if the prosecutor in
this case improperly argued inconsistent theories in order to win
convictions.

(source: San Diego Union-Tribune)






ARIZONA:

Cultural 'bias' keeps women off death row -- Andriano may join 1 facing
execution


An Ahwatukee Foothills mother is the 1st of 7 Maricopa County women to
face a potential death sentence in Arizona, where only 1 female convict
sits on death row.

A jury of nine women and three men found Wendi Andriano guilty Nov. 18 in
the October 2000 death of her husband, and will hear evidence Tuesday to
determine whether she should live or die.

Andriano, 34, will become the first woman sentenced by jurors under the
state's new death penalty statute, which requires jurors to determine
aggravating and mitigating factors, then impose a sentence.

6 other women face trials in Arizona that could land them on death row,
though some experts say it is unlikely all, if any, will end up there.

Those cases, including one where a mother and her boyfriend are accused of
beating her toddler son to death, appear to have little in common with
Andriano except for extreme violence. Still, defense attorneys are
watching the sentencing closely for clues on what it may portend for their
female clients.

"We don't know if juries are going to react differently to women," said
public defender Lynn Burns, who represents Jessica Nelson, 29, 1 of 3
defendants charged in the 2002 torture murder of Mark Mathes.

But national experts say women rarely are sentenced to death because of
cultural bias, lesser sentences for slayings of family members, a lack of
premeditation and a lack of violent criminal history.

"A lot would have to happen for all of these women to get convicted," said
Richard Dieter, executive director of the Death Penalty Information Center
in Washington, D.C. "It would be unusual for most or even any of them to
get the death penalty."

Nationally, only 1 to 2 % of death row inmates are women, though they are
charged in 12 % of homicides, he said.

2 experts see a cultural bias against executing women.

"There is a bias and it's based on a centuries-old stereotype that women
aren't violent," said Jack Levin, director of the Brudnick Center on
Violence at Northeastern University in Boston.

"In the minds of the jury and the judge, they don't believe women deserve
the death penalty."

Victor Streib, an Ohio Northern University law professor who studied women
and the death penalty, said women are more likely to kill a family member,
and domestic slayings usually draw lesser sentences than stranger
slayings.

"I don't know that the evidence is different; it's received differently by
jurors," he said. "We're really talking about how much we value a human
life. It appears we value women's lives and protecting them from harm."

Kent Cattani, chief counsel for capital litigation at the Arizona Attorney
General's Office, said women also might catch a break because jurors don't
fear them like they fear men.

"At the gut level, when we think of the worst of the worst murderers, we
think of people we are afraid of," he said. "I'm probably not afraid of
(convicted child killer) Debra Milke out on the street."

Dan Patterson, Andriano's defense attorney, may have laid a foundation for
jurors to spare her life by allowing the defendant to tell her life story
during an unusual nine days on the witness stand, he said.

Prosecutor Juan Martinez is expected to argue that Andriano deserves death
because she was financially motivated.

He also argues that the murder was cruel, heinous or depraved. Andriano
admitted striking her husband, Joe, 23 times in the back of his head with
a bar stool but told jurors she acted in self-defense because he kept
moving toward a knife.

"If you look at all the women who have killed their husbands in the past
75 years (in Arizona), what's different about this case?" Streib said.

Levin praised Martinez's strategy, however, as brilliant because he
repeatedly told jurors that Andriano was the dominant marital partner.
That may help overcome stereotypes, he said.

Many of the women in the pending death-penalty trials are accused of
committing murder with male co-defendants.

Candy Ramirez, 30, is accused with a boyfriend of beating her 19-month-
old son to death.

Nelson has 2 male co-defendants in a case that includes cutting off the
victim's finger with a bolt cutter and shooting him in the face.

Erika Kurtenbach, 27, is accused of conspiring with a man to murder a
woman found stabbed to death in an Avondale church parking lot.

Milke is the only woman on Arizona's death row. She was convicted of
conspiring with 2 men to kill her 4-year-old son in December 1989 for
insurance money.

Eva Dugan was the last woman executed in Arizona. Dugan's death on Feb.
21, 1930, was especially gruesome because she was accidentally decapitated
during her hanging.

(source; The Arizona Republie)

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

Inmate gets hearing after bite-mark evidence called into question


Thelma Younkin used an oxygen tube to help her breathe. Her killer used it
as a murder weapon.

In November 1991, the frail, 65-year-old Younkin was strangled with the
tube, bitten and raped in her room at the Post Park Motel along a grim
stretch of this desert town.

A fellow resident of the low-budget motel, Bobby Lee Tankersley, was
convicted and sent to Arizona's death row for the attack, based largely on
the testimony of a forensic dentist who said he had matched Tankersley's
teeth to bite marks on Younkin's body.

But on Monday, the same judge who sentenced Tankersley to death will hold
a hearing that promises to showcase the problems buffeting forensic
science in America's courts - from the legacy of discredited experts to
new DNA tests exposing the questionable science behind many other
disciplines, including bite-mark comparison.

Tankersley was granted Monday's hearing largely because the forensic
dentist who was key to his conviction also was at the center of perhaps
the nation's most noted case of mistaken bite-mark testimony.

Dr. Raymond Rawson's opinion helped send an innocent man, Ray Krone, to
Arizona's death row. At Krone's 1992 trial, Rawson said bite marks on a
murdered Phoenix cocktail waitress were "a very good match" to Krone's
teeth. During Krone's 1996 retrial, Rawson also testified that Krone's
teeth were "a scientific match" to a spotty pattern of blood on the
victim's bra.

Increasingly, other forensic dentists are questioning whether such
definitive declarations can be made about bite marks left in skin, let
alone based on blood patterns on clothing.

Krone, a former postal worker, spent more than a decade in prison before
DNA testing proved Rawson wrong, connecting another man to the murder and
exonerating Krone. Just last week, Krone, who had been dubbed "the
snaggletooth killer," had his teeth redone courtesy of the ABC television
show "Extreme Makeover," according to his attorney, Christopher Plourd,
who is advising Tankersley's lawyers.

State prosecutors were so concerned about the similarities in Rawson's
testimony at the two men's murder trials that on the day Krone walked free
in April 2002, they asked the Arizona Supreme Court to order new DNA tests
on evidence from the Tankersley case.

The results of those tests will be the centerpiece of the hearing
scheduled to begin Monday in the courtroom of Yuma County Superior Court
Judge Thomas Thode. But they are more ambiguous than the tests that
exonerated Krone by matching another man who is now scheduled to stand
trial next year.

Tankersley's attorneys plan to argue that the tests in his case - on
everything from the oxygen tubing used to choke Younkin to swabs of the
marks left on her body - exclude Tankersley and reveal the genetic profile
of another, unidentified man.

"We have a clear profile from a male in many of the samples that's not
Tankersley," said attorney Jennifer Sparks, who is representing him.
"That's kind of hard to explain if you're the state."

Prosecutors, however, contend that those same tests actually provide more
convincing proof of Tankersley's guilt. They also say the genetic evidence
may have been contaminated during the handling of Younkin's body after the
killing.

Younkin's grandson allegedly owed Tankersley, who was 39 at the time of
the murder, money for drugs, and Tankersley purportedly had told Younkin's
daughter before the murder that the grandson would "live to regret it" if
he did not meet with him, according to the Arizona Department of
Corrections.

"If the evidence was such that it was clear that Tankersley didn't do it,
then we wouldn't be having this hearing," said John Todd, the assistant
Arizona attorney general who initially asked for the new testing. "But
that's not the case. In the (state) criminalist's view, in fact, it looks
like it's more certain that he's the guy."

The DNA evidence in question is open to interpretation because some of the
samples indicate multiple genetic profiles. But the test results weren't
complete enough, according to Tankersley's attorneys, to run through FBI
databases that in theory could connect Younkin's murder to someone else.

Even Todd acknowledged that "with mixed samples, it's very difficult to be
absolutely conclusive" about including a suspect.

When Tankersley was put on trial in 1993, Dr. Ed Blake, a prominent DNA
analyst, testified that genetic material taken from a hair found in the
sink of Younkin's motel room was consistent with Tankersley's genetic
profile but also found in about 4 percent of the Caucasian population.

While not conceding the hair is Tankersley's, his appellate attorneys have
downplayed its significance because he knew Younkin and lived in the same
motel.

That left the state with bite-mark testimony from Rawson. He used a video
presentation, including fade-in and fade-out techniques, to convince
jurors that all of the marks on Younkin's body matched Tankersley's teeth.

But according to the motion to exonerate filed last month by Tankersley's
lawyers based on new DNA evidence, the state's other expert at trial, Dr.
Norman Sperber, "could not identify any individual characteristics of
teeth whatsoever in the marks on the neck, ear, chin, and jaw area. The
techniques of Dr. Rawson were questionable, his video presentation
misleading, and his conclusions highly dubious."

Rawson could not be reached for comment. His assistant, Linda Chapman,
said that he had retired in March from doing forensic dentistry and that
"he doesn't want to discuss the case." A prominent Nevada state legislator
as well as a dentist, Rawson lost in the Republican primary this year
partly, some observers say, because of news coverage of his role in the
Krone case.

In the Tankersley trial, the defense did not present a dental expert to
dispute Rawson's testimony.

The state made his bite-mark testimony central to its closing argument.
"This defendant, in essence, signed his name to the body of his victim,"
prosecutor Mary White told the jury.

When Thode sentenced Tankersley to death in May 1994, he cited the bite
marks as evidence that the crime was heinous and depraved.

Since then, however, other forensic dentists working with the defense have
challenged Rawson's testimony in the case. Among them are Dr. Richard
Souviron, the chief forensic odontologist for the Miami-Dade County
medical examiner's office. Souviron, who has testified for prosecutors and
defense attorneys in other cases, questioned whether all the marks on
Younkin's body were bite marks.

"She had a human bite mark on her left breast," Souviron said. But "Dr.
Rawson came up with a bite mark on the chin and the right breast," among
other places. "They were bruises. They definitely, in my opinion, were not
bite marks."

Another odontologist, Dr. Michael Bowers, who served on the examination
and credentialing committee of the American Board of Forensic Odontology,
submitted an affidavit for Tankersley's defense. In it, he reiterated his
skepticism about the entire discipline of bite-mark comparison.

"The serious deficiencies of the `science' of bite marks make its use as
an identifier of a single perpetrator a very dangerous proposition,"
Bowers wrote.

Noting the disagreement between Sperber and Rawson, Bowers added: "The
divergence of opinion between the state's own dental experts in Tankersley
is another anecdotal indicator of (the) weak reliability and foundation of
bite-mark identification."

As part of a recent series on forensic science in the courtroom, the
Chicago Tribune examined 154 criminal cases involving bite-mark evidence,
mostly murders and rapes, that reached appeals courts in state and federal
jurisdictions around the country. In more than a quarter of those cases,
the prosecution and defense offered forensic dentists who gave
diametrically opposed opinions.

The discrediting of Rawson's testimony in the Krone case is one of
numerous instances where leading practitioners of bite-mark comparison
have erred.

Monday's hearing on the Tankersley case is expected to focus less on the
marks left on Younkin's body than the DNA evidence swabbed from them.

Since Blake's testimony in Tankersley's trial, DNA technology has advanced
greatly. After Krone's exoneration, more-sophisticated tests were
performed on swabs taken from marks on Younkin's body, fingernail
clippings from her hands, the oxygen tubing and cigarette butts recovered
from the crime scene.

Just what those tests yielded is a matter of dispute. There will be at
least three interpretations - from an Arizona Department of Public Safety
analyst, private lab Orchid Cellmark and an expert appointed by the court
for Tankersley.

They have varying degrees of disagreement on whether the tests help or
hurt his argument that he is innocent.

One thing that is not in dispute: DNA from at least three people was found
on the oxygen tubing - the murder weapon - but Tankersley's genetic
profile isn't among them.

"If Mr. Tankersley was the true perpetrator of this crime, then his DNA
should have been found on the murder weapon," his attorneys wrote in their
motion to exonerate.

But Todd, the assistant attorney general, noted that Cellmark concluded
that Tankersley could not be excluded as a possible source of DNA found in
alleged bite wounds to Younkin's face and right breast.

After this week's hearing, which is expected to last a couple of days, the
judge will hold a hearing Dec. 13 to give the state a chance to respond.
Tankersley is hoping for a new trial, if not outright exoneration.

Back at the Post Park, doubts linger over whether he was responsible for
Younkin's rape and murder. The motel and the adjacent Desert Sands are all
that are left of the long skid row of places that attracted many
transients around the time she was killed.

Her former home, No. 9, is one of a dozen stucco and cinder-block rooms
filled mostly with older residents on disability who pay by the month.
Back in 1991, anybody with a little cash could have a room for $15 or $20
a night.

"There was a bunch of speed freaks around here, especially back then,"
recalled Tom Poston, a retired strawberry picker and carnival worker who
said he moved out of the Post Park a few months before Younkin was killed
but has since returned. "It could've been anybody."

(source: Chicago Tribune, Nov. 28)





KENTUCKY:

Fletcher Meets Protesters At Anti-Death Penalty Rally


Governor Ernie Fletcher had an impromptu meeting Sunday with the mother of
a death row inmate scheduled for execution later this week.

Iva Lee Bowling is the mother of death row inmate Thomas Clyde Bowling.
She met briefly with Fletcher in front of the Kentucky Governor's mansion.
She was attending an anti-death penalty rally at the Capitol.

During their face-to-face meeting, Bowling's mother told Fletcher her son
was innocent. Fletcher said: "Miss Bowling, very good to meet you," after
they were introduced. Bowling then said: "You give this a lot of
consideration because I know my son's not guilty."

Thomas Bowling was convicted in 1990 of murdering Edward and Tina Earley
and shooting their 2-year-old son outside the couple's Lexington
dry-cleaning business. Earlier this month, Fletcher set Bowling's
execution date for Tuesday.

However, last week the Kentucky Supreme Court and a lower circuit court
both temporariliy blocked Bowling's execution while cases before them are
pending.

(source: Associated Press)