[Deathpenalty]death penalty news----ALA., OHIO, VA.
rhalperi at mail.smu.edu
Mon Apr 18 16:24:32 CDT 2005
Appeals court to review Epps murder----James Barber case to go before
panel in Birmingham
The Alabama Court of Criminal Appeals will hear oral arguments in
Birmingham this week in the case of convicted murderer James Barber of
The 5-judge panel will convene at 10:30 a.m. Thursday in Samford
University's Leslie Wright Auditorium. The event is sponsored by the
Birmingham Bar Foundation and Cumberland School of Law. The public is
invited to see how the court functions.
The oral arguments will last about an hour allowing the prosecutor - an
attorney general - and a defense attorney to present both sides. Barber
will not appear in court.
The panel will review Barber's December 2003 conviction on the charge of
capital murder in the death of 75-year-old Dorothy "Dottie" Epps.
A jury voted unanimously to convict Barber on the charge of capital murder
for an intentional killing during a robbery. With a vote of 11-1, the same
jury recommended the death penalty.
During a sentencing hearing Jan. 9, 2004, Circuit Judge Loyd H. Little Jr.
said Epps' death was shockingly evil, vile and cruel. He sentenced Barber
to death. The evidence of defensive wounds on her hands and arms showed
she tried to protect herself from a cruel and violent attack, he said.
Barber had been involved in a long-term relationship with the victim's
daughter, Elizabeth Epps, and he had been doing some painting work at
Dottie Epps' home.
On May 22, 2001, Dottie Epps' body was found by a friend in her home in
Harvest. Dr. Joseph Embry, a former state medical examiner who performed
the autopsy, testified Epps had 19 head wounds, 7 skull fractures, broken
ribs, a broken bone in her left forearm and a bruised heart. She died of
blunt-force trauma, and her wounds were consistent with a hammer, he said.
The murder weapon was never found.
Barber, in a 3rd statement to police, confessed to killing Dottie Epps,
saying he did so because he needed money to buy drugs. But, he later
recanted the statement.
At the sentencing hearing, Barber again denied killing Epps.
The Court of Criminal Appeals has exclusive appellate jurisdiction of all
criminal cases, including all post-conviction orders. The court has
authority over all trial courts exercising jurisdiction in criminal
proceedings. Judgments of the court of criminal appeals may be reviewed by
the Alabama Supreme Court.
The court is composed of Presiding Judge H.W. "Bucky" McMillan and Judges
Sue Bell Cobb, Pamela Willis Baschab, Greg Shaw and A. Kelli Wise.
(source: Hunstville Times)
Court reaffirms rejection of conviction for U.S.-British citizen
In Cincinnati, a federal appeals court has reaffirmed its decision to
throw out the conviction and death penalty of a man with dual U.S.-British
citizenship found guilty of killing a 2-year-old girl in an apartment
The 6th U.S. Circuit Court of Appeals on Friday rejected the request of
Ohio Attorney General Jim Petro for a full-court rehearing of the case.
Petro appealed a Jan. 25 ruling by a three-judge panel, which ruled 2-1
that Kenneth T. Richey received incompetent legal counsel at his trial.
The judges ordered Ohio to retry Richey within 90 days or release him.
The appeals court did not say how many of its 13 judges voted against
rehearing the case.
Ohio's only remaining appeal option now would be to ask the U.S. Supreme
Court to review the case.
Kim Norris, a spokeswoman for Petro in Columbus, said on Monday that Petro
disagreed with the ruling and will decide how to proceed after reviewing
Richey was convicted of killing Cynthia Collins. She died in 1986 in the
fire that started in the apartment where she lived, above his
Prosecutors said Richey, 40, intended to kill his ex-girlfriend but ended
up killing the child in the fire in the northwest Ohio town of Columbus
Richey maintained that he did not start the fire, although he acknowledged
being so intoxicated that night that he did not remember everything that
In the 6th Circuit ruling from January, the court said Richey's lawyers
hired an unqualified expert to investigate the fire and said trial court
records suggest a competent expert would have "all but demolished" the
state's forensic evidence.
The case received wide attention in Great Britain, where filmmakers
produced two documentaries questioning Richey's guilt. British citizens
and politicians wrote thousands of letters to news organizations and
government offices to protest his conviction.
(source: Associated Press)
Students, professors examine death penalty
Robin Lovitt seems like your stereotypical "nice guy." Optimistic,
friendly, intelligent, soft-spoken, talkative - those who have met him
usually refer to him as likeable, noting how quickly he puts people at
So at ease that the Notre Dame students who met and spoke with him at
Virginia's Sussex State Prison almost forgot he was on death row.
"We were all really struck - he's such a nice guy," senior Shane Lowenberg
said. "If we hadn't known his situation, we would have never guessed he
was a convicted murderer."
In spring 2004, Lowenberg met with Lovitt through Professor Tom
Kellenberg's Capital Punishment Litigation course in Notre Dame's
Washington Program. 5 years ago, Kellenberg brought the case to Kirkland &
Ellis, a D.C. law firm headed by double Domer Tom Yannucci.
Lovitt's case has since become a pro bono project costing more than $2
million and involving more than a dozen lawyers, including public luminary
Kenneth Starr, famous for his work during the Clinton-Lewinsky scandal and
current dean of the law school at Pepperdine University.
During Lovitt's last round of appeals, the U.S. Court of Appeals for the
4th Circuit upheld his sentence on death row. The story, though, started
over 6 years ago in Arlington, Virginia.
The night of Nov. 18, 1998, Lovitt, then 35, went into Champion Billiards
Sports Caf on Shirlington Rd. in Arlington, according to a March 14
Washington Post article. A day out of a detoxification program, the Post
said, longtime drug addict Lovitt bought and smoked crack before entering
the pool hall sometime after 3 a.m.
Lovitt said he told night manager Clayton Dicks he was hungry, according
to a police statement obtained by the Washington Post. After Lovitt ate
and went to the bathroom, he came out and saw another man in a fight with
Dicks. He went back into the bathroom, attempting to avoid the scene.
Lovitt's statement to police said that when he reemerged from the
bathroom, the man had left and Dicks was dead. He grabbed $200 from the
cash register and fled.
"With a track record like mine, would you call for help? The first thing I
thought was I better get the [expletive] out of here ... The stupidest
thing I could have done was grab the cash register, 'cause if I hadn't, I
wouldn't be here now," Lovitt said in the police statement.
At Lovitt's 1999 trial, prosecutors said Lovitt entered the pool hall to
steal money but was confronted by Dicks who then stabbed Lovitt with a
pair of scissors six times, the Post article said. One of the 2 customers
who came in and called 911 testified of being 80 % sure Lovitt was the
assailant at his original trial.
One of Lovitt's cellmates testified to Lovitt's confession - although
lawyers at Kirkland and Ellis say Lovitt has always maintained his
Lovitt never took the stand, but one of his sisters did testify, Starr
said. However, her testimony proved damaging to Lovitt - something Starr
believes could have been avoided.
"At his original trial in Arlington Circuit Court, it is undisputed that
his 2 defense lawyers didn't investigate his family background," Starr
said. "The Supreme Court says you must do that, unless there's a powerful
argument not to."
The U.S. Court of Appeals for the 4th Circuit said Lovitt's original
lawyers - who were court-appointed - might have intentionally avoided
thorough research into their client's background, afraid of uncovering
potentially detrimental information.
Starr said after the guilt phase of the original trial, the defense
lawyers talked to one of Lovitt's sisters for five minutes during the
jury's deliberation - an inadequate measure that only scratched the
surface of Lovitt's history and ended up hurting his case, Starr said.
However, Lovitt's defense team considered another aspect of the case to be
a greater travesty - the destruction of the scissors by a court clerk in
"A fair trial is guaranteed by the due process clause of the Fourteenth
Amendment," Starr said. "The idea of due process is fundamental fairness.
To fail to turn over evidence that could be favorable to the defendant is
a Brady violation."
This type of violation, established in the 1963 Brady v. Maryland Supreme
Court case, occurs when the government fails to disclose material
The scissors were originally tested. DNA from the victim was found, but
tests were inconclusive regarding the perpetrator's DNA. Lovitt's lawyers
say further testing could have been done on the scissors that may have
supported their client's plea of innocence.
But the U.S Court of Appeals for the 4th Circuit said the clerk's
destruction of the evidence was not in "bad faith," as cited in an April 7
Washington Post article.
"The court is not justifying the destruction of evidence, but emphasizing
that the prosecution didn't do it," Starr said.
Bridget O'Connor, Notre Dame class of 2000 and a lawyer at Kirkland and
Ellis, said the evidence destruction in Lovitt's case was "unprecedented"
and violated both Virginia laws and clerk office policies.
"In fact, 2 deputy clerks begged the senior clerk not to destroy the
evidence because it was from a capital case, contained DNA and because the
defendant had not been executed," O'Connor said. "There has never been any
reasonable explanation why these laws and policies were ignored, or why
the clerk refused to listen to the pleas of his fellow clerks."
While O'Connor acknowledged the Court did not defend the evidence
destruction, the action greatly impacted Lovitt's case.
"Destroying the evidence has manifestly deprived Mr. Lovitt of any
meaningful opportunity to test his conviction on habeas," she said.
Kellenberg said in a just system, the evidence destruction should be a
convincing factor in removing Lovitt from death row.
"Given the fact that the Commonwealth of Virginia has destroyed all the
evidence in his case available to exonerate him, including valuable DNA
evidence, in violation of the state's own laws and regulations, it would
be a terrible injustice to put this man to death," Kellenberg said.
Notre Dame students in the Washington Program helped with research for
Lovitt's case, studying his court proceedings and contacting family
members to get information about his background.
But students focused on the experience of visiting Lovitt in prison,
something they all say they will never forget.
During these past 5 years, close to 40 Notre Dame students have visited
Lovitt, said Kellenberg, who estimates he has visited Lovitt approximately
20 times. Each semester, 4 students spend 2 hours with Lovitt discussing
much more than the case.
"The pinnacle of the experience was meeting with Robin," senior Lucia
Lowenberg described his group's arrival at Sussex State Prison, a "huge
facility in the middle of nowhere" where the group went through an
extensive security check of metal detectors and pat-downs, having
submitted names for a background check a month earlier.
After going through "a series of what seemed like 10 to 12 doors," each
door closing before the next one opened, Lowenberg entered the general
public's recreation area. He recalls inmates on the other sides of the
fences yelling the entire time, making especially obscene comments to
Lowenberg's apprehension grew upon entering the meeting room - a converted
cell much different from the room that he had expected with a glass
separation and a telephone.
"The guard announced that D.C. psycho killer John Allen Mohammad was [just
caught and] in the cell next to us," Lowenberg said. "That was weird."
Lovitt entered the room wearing foot shackles and handcuffs, the handcuffs
being removed per Kellenberg's request.
"We just started talking, introduced ourselves," Lowenberg said. "He
basically said nothing's off the table, ask whatever. That was pretty
Lowenberg said Lovitt, a big Notre Dame football fan, greatly enjoyed the
company and liked to hear news from the outside world.
"He, first of all, is amazing," junior Christin O'Brien said. "He's so
interested in what you're doing."
O'Brien, who met Lovitt during fall 2004, said the two hours "flew by."
She remembers being am-azed at Lovitt's optimism, how he talked about
moving south and getting a dog once he got out.
Junior Ryan Finlen, who was with O'Brien during fall 2004, said for Lovitt
"it was not 'if' but 'when.'"
Lowenberg agreed, commenting on Lovitt's faith in the system.
"He won't believe they would execute somebody who's innocent," he said.
Students took special notice of Lovitt's lucidity, noting how he read all
his court proceedings, made cards for visitors and fellow inmates and
served as the unofficial death row barber.
"You would have thought being on death row would have messed with his
head," Lowenberg said. "But he said, 'There are a lot of crazy guys
"It was really hard when we walked out seeing them handcuff him again,
knowing where he was going, to a jail awaiting death," Lowenberg said.
Reaction to the decision
"I was disappointed, but I was not shocked in light of the questioning at
oral argument," Starr said. "I was obviously hopeful the court would be
concerned by one or more of the arguments."
Starr said the decision to uphold Lovitt's death sentence represented
inherent problems in the U.S. justice system.
"This is a very grim reminder of the frailties of our system and the need
to be vigilant that the death penalty system operates with profound
fairness," he said.
Yannucci echoed Starr's determination.
"We're prepared to exhaust every avenue we can," he said. "We feel very
bad for the victim in this case but we're committed as lawyers to make
sure Robin Lovitt gets the best and most effective legal defense he can
against the death penalty."
After hearing of the Court's decision, students were disillusioned.
"This final decision in Robin's long journey of legal proceedings
highlights the deep flaws in our justice system," Rajec said. "When the
courts are willing to uphold, over and over again, a decision to put
someone to death in light of evidence that calls into question the
absolute certainty of his guilt, you have to wonder how it is possible
that the death penalty - the ultimate, irreversible punishment - continues
to be an accepted feature of justice in our nation."
While Finlen acknowledged one positive side of Lovitt's case, he also saw
"On one hand, I suppose the fact that a poor, 41-year-old, African
American man on death row is receiving top-notch legal assistance through
multi-appeals speaks very highly of our system's commitment to equal
protection under the law," he said. "However, I don't see much virtue in
putting Robin to death with only a weak case built on circumstance as
What comes next
"We are filing a petition for rehearing in the Fourth Circuit Court,"
Starr said. "This is another step in the process, and we're marching on."
While Starr would not comment on clemency, Kirkland and Ellis said they
were preparing to submit petitions to Governor Mark Warner.
"Kirkland and Ellis will continue to pursue all available channels for
relief," O'Connor said. "In a death penalty case, this would typically
include a petition for rehearing and for rehearing en banc before the
Fourth Circuit Court of Appeals, a petition for certiorari before the
United States Supreme Court, and a petition for clemency before the
Governor of Virginia."
Both Yannucci and Kellenberg said they were grateful for letters to
Governor Warner written by University President Father Edward Malloy and
president emeritus Father Hesburgh.
Regarding the degree to which prominent members of the Notre Dame
community could influence the case, Yannucci said he thought letters from
Malloy and Hesburgh could help the clemency petition.
"They're widely respected national figures," Yannucci said, "We don't want
to presume what Governor Warner's going to do, but we think this is a
strong case for clemency."
Students said both Malloy and Hesburgh seemed very willing to help in
whatever way possible and agreed to write letters to Governor Warner.
(source: The Observer)
More information about the DeathPenalty