[Deathpenalty] death penalty news-----TEXAS, VA., OHIO, USA, IND., FLA.

[Rick Halperin]

Dec. 23



TEXAS:

Death by Technicality?----Supreme Court should review Texas case


When you read the federal ruling in Marvin Lee Wilson's death penalty
appeal - the one that kept the convicted Texas killer on a path toward
execution - you find yourself agreeing that Mr. Wilson should lose his
right to appeal his sentence. The reasoning sounds so logical and well
crafted, especially the part about the man's lawyer missing a
congressionally approved deadline for appeals.

But step back from the legal technicalities and consider the whole picture
and you might well react this way: "My God, they're talking about this
man's life. Because his lawyer missed a filing deadline - and for complex
reasons at that - this mentally retarded man's going to die."

That appears to be the situation for Mr. Wilson, who murdered a man in
Beaumont 13 years ago. So we're counting on the U.S. Supreme Court
reconsidering the ruling handed down by a panel of judges from the 5th
U.S. Circuit Court of Appeals.

There's no doubt the lawyer missed the deadline, but that was because he
was waiting on a ruling from a state court. Texas has a "2-forum" rule
that prohibits simultaneous appeals, so the attorney was doing what he
thought he had to do. (The Texas Court of Criminal Appeals didn't turn
down Mr. Wilson's state appeal until Nov. 10, 2004, which gave the
prisoner and his attorney exactly two days to file in federal court.)

The appellate panel, mind you, doesn't really contest Mr. Wilson's
retardation. It even said Mr. Wilson's attorney has made a "prima facie
showing of mental retardation."

In other words, the court acknowledges there's a valid reason to think Mr.
Wilson shows signs of mental retardation. Tests show him having an IQ
below the 70-75 score often cited as proof of mental retardation.

The Supreme Court previously ruled states can't put to death mentally
retarded offenders. Surely that should include mentally retarded offenders
whose lawyer got caught in a procedural trap.

(source: Editorial, Dallas Morning News)

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

AT THE COURTHOUSE----Study questions jury gag orders; Professor says
findings indicate concerns invalid


After a jury failed to reach a verdict in the Vioxx product-liability
trial last week, U.S. District Judge Eldon Fallon met with jurors and
warned them against speaking with media.

"He came in and thanked us and asked us to leave whatever was said in the
jury room," said one of the jurors, who asked to remain unidentified.

The judge's request may seem reasonable, but it is part of a trend toward
greater secrecy in the federal courts that alarms First Amendment
advocates.

"There is no question that there are more restrictions coming down," said
Lucy Dalglish, executive director of the Reporter's Committee on Freedom
of the Press. "There is rampant secrecy in both federal and state
courtrooms."

In March, U.S. District Judge Vanessa Gilmore of Houston issued a gag
order to jurors after they failed to reach a verdict on 20 of 58 counts in
the death-penalty trial of Tyrone Williams, the truck driver accused in
the deaths of 19 undocumented immigrants. "I don't want any coverage of
deliberations of jurors in the media," Gilmore told the jury that found
Williams guilty of transporting illegal immigrants but spared him the
death penalty.

Neither Fallon's nor Gilmore's orders were challenged, but the U.S.
Supreme Court let stand the New Jersey Supreme Court's decision in 2003
allowing a gag order following a mistrial.

The Vioxx and Williams cases are expected to be retried. The rationale for
gag orders in such cases is that future jurors could be influenced by
comments from jurors who failed to reach a verdict.

But a local lawyer and academic who has studied that and other reasons for
silencing jurors disputes the concerns.

Few analyses seen

Nicole Casarez, a communications professor at the University of St.
Thomas, says jury gag orders are based almost entirely on speculation
because there have been few efforts to analyze the effects of juror
interviews.

After reviewing academic criticisms of juror interviews, Casarez designed
a study.

Scholars theorized that jurors' knowledge that they may be interviewed
after a verdict could affect their deliberations, Casarez found. Academics
also speculated the interviews could violate juror privacy or that jurors
might reveal negative information on fellow jurors.

"My study blows that out of the water," Casarez said.

Casarez's study, published in 2003, tested the criticisms by interviewing
761 jurors questioned by the Houston Chronicle over 15 years.

The study, Examining the Evidence: Post-Verdict Interviews and the Jury
System, found only one instance where a juror's comment might have
influenced a retrial by aiding prosecutors and found no evidence that jury
deliberations were affected by the prospect of media interviews.

"In none of these articles did jurors reveal personal, private or
potentially embarrassing information about panelists who were identified
by name," Casarez wrote.

Nevertheless, courts have OK'd tighter restrictions without evidence that
interviews have the ill effects some scholars predict, Casarez said.

Austin media attorney David Donaldson says that in doing so judges are
violating jurors' free speech rights and depriving the public of insights
into how the jurors reached their decision.

(source: Houston Chronicle)






VIRGINIA:

Death penalty sought in case


In Sprignfield, a Virginia prosecutor said she will seek the death penalty
if there is a guilty verdict in a murder-for-hire case against Ivan
Teleguz, who was convicted on Dec. 14 in federal court here on gun-running
charges.

Teleguz, 27, was charged in the murder case 6 months after his arraignment
here on firearms possession and trafficking charges, court records show. A
jury convicted Teleguz on the gun charges after a 2-week trial and just
over three hours of deliberations. Teleguz, formerly of Gladstone, Ore.,
will be sentenced on April 18.

Teleguz is accused of hiring a man to kill his ex-girlfriend - found in
2001 in her Virginia apartment stabbed to death, said Marsha L. Garst, the
commonwealth attorney for the state.

The 21-month-old son of victim Stephanie Sipe and Teleguz was found
unharmed in the bathroom when police responded, Garst said. The child had
been there for more than 24 hours.

Michael Hetrick of Pennsylvania testified in a hearing that Teleguz paid
him $2,500 to kill the woman because Teleguz did not want to pay child
support, according to Garst.

Teleguz is charged with capital murder for hire as an accessory before the
fact and may face the death penalty if convicted. The case is scheduled
for trial Feb. 6 in Harrisonburg, Va.

Hetrick told prosecutors Teleguz drove him and Edwin Gilkes of
Pennsylvania to Virginia and pointed out Sipes' apartment. Before leaving,
he told the men to wait long enough to allow him to return to Pennsylvania
and establish an alibi, Garst said.

During an interview this week, Garst said U.S. Deputy Marshal Michael
Nelson of Springfield was instrumental in helping authorities in Virginia
build their case against Teleguz.

"Mike Nelson has been, in a word, spectacular in his ability to help us
find leads," Garst said.

Nelson acted on a tip from an informant who told him that he had met a man
who said he killed Sipes and lived near a Pennsylvania jail. Nelson
collected Teleguz's cell phone records and discovered a number of calls to
Gilkes, who lived next to Lancaster County Jail, around the time of the
murder. The informant picked Gilkes out of a series of mug shots.

Nelson forwarded his information to Virginia authorities.

"Investigators in Virginia always thought Teleguz was a suspect, but it
was a bloody crime scene tested for DNA, and it always came back that he
wasn't present," Nelson said.

In the local gun-running case, Teleguz - arrested as he dropped off his
teen wife at the high school she attended in Oregon - was convicted after
four co-defendants pleaded guilty. They sold 25 guns, including assault
weapons and rifles fitted with bayonets, to an FBI informant in 2001 and
2002 in Springfield and West Springfield.

Those guns were laid out across a table at the FBI office in Springfield
yesterday, many with obliterated serial numbers and menacing accessories,
such as a grenade launcher. They hailed from Romania, Yugoslavia and other
corners of the world, said law enforcement officials from the U.S. Bureau
of Alcohol, Tobacco and Firearms.

Teleguz, a Ukrainian native, was implicated in a probe of Russian and
Eurasian organized crime in Greater Springfield that began in 2001.

Others who pleaded guilty in the ring were Michael Quickel, of
Pennsylvania, who testified against Teleguz at trial; Andrey Buynovskiy,
23, of Springfield; Roman Zhirnov, 34, of Springfield; and Alexei Safanov,
27, of Ware. For Quickel, the rest pleaded guilty just days before
Teleguz's trial to various gun charges and await sentencing.

Local FBI supervisor Michael G. O'Reilly said, "These men thought these
guns were headed to the streets of Springfield."

(source: The Republican)

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

DNA test could show executed man innocent


Virginia Gov. Mark Warner plans to order DNA tests that reportedly could
show a man executed for rape and murder in 1992 was innocent.

If the tests, which Warner is expected to order before he leaves office in
mid-January, clear Roger Coleman, death penalty opponents say it would be
the 1st time an executed convict is scientifically shown to be innocent.

"The final argument (of death penalty advocates) is that no innocent
person has been executed," Richard Dieter, director of the Death Penalty
Information Center, a Washington group that seeks to end capital
punishment, told USA Today.

"If you find an innocent man who has been executed, that's a final nail
through that," Dieter said.

Forensic Science Associates of Richmond, Calif., performed DNA analysis
before Coleman's execution, using a now-obsolete technique that could not
exclude Coleman or say definitely that he did it.

(source: United Press International)






OHIO:

Appeals panel denies death row inmate's motion for new hearing


In Cincinnati, a federal appeals court has denied a death row inmate's
motion for a new hearing on evidence that his attorneys say was
fraudulently withheld at trial.

John Spirko, 59, has been sentenced to die by injection for the 1982
killing of Betty Jane Mottinger, 48, the postmistress in Elgin in
northwest Ohio. On Sept. 6, U.S. District Judge James Carr denied Spirko's
request for a new evidentiary hearing, saying there was no reason to
believe investigators fraudulently hid evidence from Spirko's attorneys.

A 3-judge panel of the 6th U.S. Circuit Court of Appeals unanimously
denied Spirko's motion Thursday, saying that the district court
"thoroughly and persuasively demonstrated that there was no fraud" on the
federal court. Spirko attorney Thomas Hill had argued that fraud was
committed on the court at trial when the state continued to stand behind a
theory that Spirko committed the crime with his friend, Delaney Gibson.

The state knew that investigator Paul Hartman had decided before Spirko's
trial that Gibson was innocent and also knew prosecutors planned to
dismiss the case against him, Hill said.

Gibson was convicted of an unrelated murder and served time in prison in
Kentucky from 1983 to 2001. Prosecutors dropped the indictment against him
in Mottinger's death.

"We are obviously disappointed, and we are evaluating our legal options,"
Hill said Friday, adding that he was hopeful that DNA tests would prove
his client's innocence.

Attorney General Jim Petro was pleased the appeals court denied a new
hearing.

"The court's actions also reinforce an important message that Mr. Spirko's
case has undergone several thorough and even-handed reviews by respected
legal authorities who have come to the same conclusion," Petro said in a
statement Friday.

Spirko was to die Nov. 15, but Gov. Bob Taft granted a 60-day reprieve to
allow DNA testing on items found on or near Mottinger's body.

No physical evidence tied Spirko to the murder. He was convicted based
largely on his statements to police and an eyewitness who had claimed to
see Gibson at the post office.

Prosecutors have argued that Spirko convicted himself by telling
investigators details of the slaying. Spirko's attorneys have said he got
some of the details from the media and some were supplied or suggested to
him by investigators.

Mottinger was abducted and repeatedly stabbed, then wrapped in a tarp and
dumped in a field. Spirko's attorneys have requested that the tarp and
duct tape around the body be tested along with a cinder block found near
the body.

(source: Associated Press)

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

Supreme Court is asked to reconsider Richey case


Kenneth Richey's attorneys planned to ask the U.S. Supreme Court last
night to reconsider a November decision reinstating his murder conviction
and death sentence while sending part of his appeal back to a lower court.

Boston attorney Ken Parsigian argues that the issue sent back to the 6th
U.S. Circuit Court of Appeals - whether Richey's lawyers were ineffective
during his trial - had been settled in February.

A 6th Circuit panel wrote in a 2-1 decision that a "competent arson
expert" would have all but demolished the state's scientific evidence."

"There's no need to send this back to the 6th Circuit," Mr. Parsigian
said. "The state expressly waived it."

Richey, a British-U.S. citizen, was convicted in the 1986 arson murder of
2-year-old Cynthia Collins of Columbus Grove. He remains on death row at
the Mansfield Correctional Institution.

On Nov. 28, the Supreme Court overturned a 6th Circuit ruling that gave
Putnam County Prosecutor Gary Lammers 90 days to retry Richey, 41, or set
him free.

The court found that, under Ohio law, it didn't matter that the girl was
not Richey's intended victim but, rather, his ex-girlfriend and lover in
the apartment below.

Ohio Attorney General Jim Petro's office declined comment on the latest
move of Richey's lawyers.

Mr. Parsigian has maintained that the ineffective-counsel issue was the
stronger of the 2 issues and should alone be enough to win Richey a new
trial.

(source: Toledo Blade)






USA:

Dealing With Jurors' Expertise----Litigators debate special instructions
on how and when jurors can rely on their professional expertise


As blanket occupational exemptions for jury duty become a relic,
litigators are split on whether there's a need for specific jury
instructions to keep jurors from relying on their expertise in evidentiary
matters.

One court system -- New York's -- instructs professionals to keep their
expertise outside jury rooms. No other court currently singles out
professional jury-deliberation conduct in jury instructions.

The issue is pressing enough that jury researchers are completing a
research project that will recommend several jury instructions to let
jurors know how they can use and not abuse juror expertise, rather than
simply admonish them to pretend they are blank slates.

Automatic exemptions from jury service for certain professionals have been
removed from most state and federal courts over the last several years as
a way to ensure that juries are drawn from more representative
cross-sections of communities. Courts have found that it increases the
number of people available for jury service and spreads out both the
educational value and the burdens of jury service, which may include time,
expense and lost income.

POLICING VIOLATORS

Litigators disagree on the latitude professionals should be given.

Roger Crane, a litigator in Nixon Peabody's New York office, said the
instruction gives New York jurors permission to police violators.

"If a juror has applicable professional expertise and uses that expertise
to make a new point in deliberations -- which may be wrong -- there is no
ability by either side to respond to it," Crane said. "The result is that
you have a verdict based on one juror's conclusion -- not 12."

He noted that New York's jury instruction "warns the other jurors to guard
against somebody making an argument in support of a position based on
their own particular expertise.

"As a practical matter, the jury instruction is the weapon the judge is
giving the other jurors to blunt such arguments: 'The judge has said
you're not supposed to do that. if you keep doing it we'll report you.'
That's a powerful tool," Crane said.

But Alan Klein, a litigator at Philadelphia's Duane Morris whose practice
is now mainly products liability defense, does not want jurors with
occupational expertise to be singled out in a jury instruction.

"The general instruction about being fair and impartial and weighing the
evidence against their life experiences is enough. I like having an
intelligent jury. I've never attributed a verdict -- win or lose -- to a
juror going over appropriate bounds."

'A SOCIETAL BALANCE'

Ira Raphaelson, a litigator in the Washington office of O'Melveny & Myers,
said that "[w]e need to struggle to find a societal balance between the
interests of having professionals serve on juries and the dangers that ...
[they] may hijack the jury process with misinformation.

"Hopefully, judges can instruct jurors in a meaningful way that just
because a doctor is sitting on a malpractice case doesn't mean that the
doctor's evaluation of the facts should be given more deference than any
other jurors, while at the same time not giving the doctor's view of the
facts less deference than any other juror," Raphaelson said.

Few appeals courts have attempted to draw a line that defines the limits
of experience jurors are allowed to bring to deliberations.

In 2000, New York's highest court overturned a conviction for criminally
negligent homicide because two nurses on the jury shared their
professional opinions about the effects of blood loss, a disputed material
fact that had been the subject of expert testimony.

The New York Court of Appeals, in finding juror misconduct, said that
"Other jurors are likely to defer to the ... expertise and evaluations by
professional jurors, over and above their own everyday experiences,
judgment and the adduced proofs at trial."

The court acknowledged the conundrum faced by professionals: separating
life experience from expertise, and that "the personal mental processes"
of jurors would not be subject to impeachment. However, it held that "the
substitution of [jurors'] own professional opinions becomes fatal when
shared with other jurors." People v. Maragh, 94 N.Y.2d 569.

At the behest of the Maragh court, both the New York state civil and
criminal jury commissions drafted instructions that differentiated between
ordinary and professional opinions.

Civil: "[Y]ou may not communicate any personal professional expertise."

Criminal: "[I]t would be wrong for you to rely on that special expertise
to inject ... a fact not in evidence, or an opinion that could not be
drawn ... without that special expertise."

Judge Leonard B. Austin of the Nassau County, N.Y., Supreme Court
commercial division who is a member of the state civil jury commission,
presided over a business dissolution case in which the lawyers allowed an
accountant to sit on the jury.

"Why they left the accountant on I'll never know, but the lawyers were
quite satisfied," Austin said. He added that if he were a juror, he'd try,
but he's not sure if he could separate his professional knowledge from
evidence he had heard in a business case.

IN SEARCH OF A BETTER WAY

Most jurors would find the New York mandate to separate professional from
other experience impossible, said Shari Seidman Diamond, a professor at
Northwestern University School of Law who is a specialist in juror
conduct.

Diamond, a senior research fellow at the American Bar Foundation who is
conducting a study on the role of professionals in jury rooms, has been
the lead researcher in several studies that have mined data from
videotapes of 50 real voir dires, civil jury trials and deliberations in
Pima County, Ariz., from 1998 to 2001, as well as questionnaires given
jurors and judges after the trials.

Diamond is currently looking at the tapes to observe the interplay of
occupational and work expertise on those deliberations, and has found that
22 percent of the jurors had occupational or work experience backgrounds
that related to evidence in their trials.

"Jurors are told they're supposed to use their experience and common sense
-- that may include their professional training," said Diamond.

"Even if we say 'Forget your professional knowledge,' jurors couldn't do
it and I don't think it's desirable," Diamond added. "The question is
where the boundaries are. We can't ask them to do things that are
psychologically impossible -- we ask them to do enough mental gymnastics.

"I think we can do better than we do now [in most state and federal
courts], which is not to tell them anything," said Diamond, who expects
that at the study's conclusion she will recommend an alternative approach:
instructing jurors how to deal more realistically with juror expertise and
experience.

NOT A PROBLEM

California's high court saw its first occupational juror misconduct case
in 1990, but found the error harmless.

In a capital case, a law enforcement officer told his fellow jurors that
just because there was no evidence presented in the trial's penalty phase
that the defendant had a juvenile record didn't mean he didn't have one,
because juvenile records are sealed.

In fact, the court said, as a matter of law, juvenile records are not
sealed for penalty-phase purposes. People v. Marshall, 50 Cal. 3d 907.

California has never adopted an instruction on juror expertise.

Wisconsin Circuit Court Judge Gary Carlson said jurors are told that they
"may take into account their experiences in the affairs of life." He takes
that to include anything they might know, including any particular
expertise.

"Lawyers who allow a juror with professional expertise on a jury in a case
that involves that expertise ought to have to live with the results," said
Carlson.

"I would not give a special jury instruction because I would not want to
single out a juror. 'Juror X, you may know things, but forget about them.'
You'd be highlighting the issue," he said. "That juror may now feel
compelled to bend over backwards one way or another.

"We don't want idiots ... . We want intelligent jurors who deduce facts
and come to conclusions from everything they've come to know in life:
background, knowledge, experience. I don't think we expect professional
people to do any less. Why would we?"

Carlson differentiates between weighing the credibility of testimony
they've heard and giving testimony.

"The trajectory of a bullet, for example, bouncing off this organ and
that. 'You're a doctor,' a juror might say to another. 'Is that the way it
works?' 'No,' the doctor says. 'The spleen's on this side, not that side.
It couldn't happen that way.' That's a credibility issue," Carlson said by
way of example.

In post-verdict discussions in a medical malpractice case, a juror who was
an emergency medical technician volunteered to other researchers that he
knew from his medical experience that the defendant doctor had caused a
permanent limp by his improper treatment of a fracture.

"But what if his knowledge had come from a personal experience, say that
his brother had had?" asked Tom Munsterman, the director of the Center for
Jury Studies of the National Center for State Courts. "Could he have used
his experience in that circumstance?"

Munsterman suggested that the fix might lie in allowing jurors to ask
questions, which more and more courts allow.

"The EMT could have asked the expert why the doctor had chosen that course
of treatment," he said.

In addition, Munsterman said, research has shown that juries are "very
good at self-policing," deciding whether a particular discussion is
allowed.

LAWYERS ON JURIES

Oregon has never had occupational exemptions, said Clatsop County District
Attorney Joshua Marquis, who co-chairs the capital litigation committee of
the National District Attorneys Association and is the association's vice
president. That's fine with him.

"We want representatives of the community, not just retirees, government
employees and people who work for huge corporations. We pay such crap," he
said. He likes doctors, EMTs and nurses in particular.

"They tend to be practical people who know bullshit when they see it,"
said Marquis.

But he eschews lawyers who "cannot resist the temptation to insert
themselves as litigators, especially if they weren't litigators."

He noted that the only murder case he'd ever lost had a lawyer on the
jury.

"They're terrible jurors -- I should hit myself in the face with a stick
if I ever let a lawyer on a jury again."

Marquis said he doesn't see how a jury instruction on the use of expertise
would effect a cure.

(source: National Law Journal)

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

'Double jeopardy' protection


How many times can a prosecutor haul you into court and put you on trial
for the same traffic ticket? Until he wins?

How much punishment is enough?

What did the Framers of our Constitution mean when they said that no
person could be twice put "in jeopardy of life or limb"?

Such was the fervor to break from England and create a wholly new kind of
representative government, the Colonists were willing to risk being drawn
and quartered. The penalty for treason was explicitly spelled out in
Blackstone's Commentaries on the Laws of England, which was the Bible of
every Colonial lawyer and judge:

1. That the offender be drawn (dragged) to the gallows, and not be carried
or walk.

2. That he be hanged by the neck, and then cut down alive.

3. That his entrails be taken out, and burned, while he is yet alive.

4. That his head be cut off.

5. That his body be divided into 4 parts.

6. That his head and quarters be at the king's disposal.

The words "life or limb," then, meant just what they say. Punishments were
often gruesome. When the Constitutional Convention met in Philadelphia in
the summer of 1787, the new states still adhered to the laws of England as
they had stood on July 4, 1776. Almost all felonies still carried the
death penalty, and it is easy to believe that the drafters meant literally
that no person ought to "be twice put in jeopardy of life or limb" for the
same crime.

That proposal became known as the Double Jeopardy Clause, and it is found
in the Fifth Amendment to the U.S. Constitution - within our Bill of
Rights.

But the clause has come to mean more - so much more that the U.S. Supreme
Court has revisited it time and time again. As then-Associate Justice
William Rehnquist observed more than two decades ago, "While the Clause
itself simply states that no person shall 'be subject for the same offense
to be twice put in jeopardy of life or limb,' the decisional law in the
area is a veritable Sargasso Sea," challenging "the most intrepid judicial
navigator."

But underlying the myriad interpretations of the clause are its three
basic prohibitions:

It protects against a 2nd prosecution for the same offense after
acquittal.

It protects against a second prosecution for the same offense after
conviction.

And, perhaps most important, it protects against multiple punishments for
the same crime.

Common law had established that a person could not be tried twice for the
same crime. If the 1st trial ended in acquittal, the plea autrefois acquit
- already acquitted - would bar a second indictment. Likewise, if the
first trial ended in a conviction, the plea autrefois convict barred a
second prosecution. What the Framers did was make these common-law
pleadings an irrevocable constitutional right.

It follows that if a person can be tried only once for a crime, he can be
punished only once for it also. In the days when the usual sentence for a
felony was hanging, the problem of a convict being punished twice did not
often arise. But the concept existed in common law, probably for
misdemeanors, which were often punished by fine or forfeiture.

Long before the Revolutionary War, the prohibition against double
punishment was summed up in Lord Coke's maxim "Nemo debet bis puniri pro
uno delicto" ("No one can be twice punished for the same crime").

Nearly a century after the Constitutional Convention, the Supreme Court
declared the prohibition against double punishment a constitutional right
deriving from the Fifth Amendment. In an 1873 case, Ex Parte Lange, the
high court heard the case of a man who had been convicted of the petty
offense of stealing some empty U.S. mailbags for his own use (a federal
misdemeanor).

The federal theft statute prescribed a punishment of up to a year
imprisonment or a fine of up to $200. The judge sentenced Lange to a year
in jail and a $200 fine.

The "or" turned out to be important. Lange paid his fine and was taken
into custody by the U.S. marshal, only to immediately file for a writ of
habeas corpus declaring that, having paid the fine, he was being held
unlawfully.

The court agreed, stating, "It is very clearly the spirit of the (Double
Jeopardy Clause) to prevent a second punishment under judicial proceedings
for the same crime, so far as the common law gave that protection" -
emphasizing the word spirit. Ex Parte Lange was also the first Supreme
Court case that explicitly held that the Double Jeopardy Clause covers
misdemeanors.

It was not until 1969 that the Supreme Court found it necessary to hold
that the Fifth Amendment's Double Jeopardy Clause applied also to the
states through the 14th Amendment. John Benton was convicted at trial of
burglary but acquitted of larceny by the jury. He appealed and won a new
trial - at which he was convicted of both the burglary and the same
larceny for which he had once been acquitted.

In Benton v. Maryland, the Supreme Court reversed Benton's larceny
conviction, holding that he could not be tried a second time for a crime
for which he had been found not guilty. In ruling thus, the court held
that the Fifth Amendment's Double Jeopardy Clause applied to state crimes
also.

As we celebrate the Bill of Rights this month, we can be thankful to the
Framers, who crafted an enduring and resilient plan of self-government
unlike any the world had ever seen, for infusing fairness in our
criminal-justice system.

(source: The Daily Press - Jack King is director of public affairs and a
staff attorney for the National Association of Criminal Defense Lawyers)



INDIANA:

Judge limits cops in triple-killing case


In Rockville, a judge has issued a permanent order requiring authorities
to contact the defense attorneys for a man accused of killing his wife and
her 2 daughters before they conduct any interviews with him.

Chad A. Cottrell, who appeared Thursday in Parke Circuit Court for a
hearing, remains jailed on 3 counts of murder for the October attack.

Defense attorney Eric Koselke argued that information obtained by
investigators from Cottrell could violate his constitutional rights.

Judge Sam Swaim granted a preliminary order last week and issued a
permanent one on Thursday.

Prosecutors are seeking the death penalty for Cottrell in the killings of
his wife, Trisha Cottrell, 29, and her daughters, Brittany Williams, 12,
and Victoria Williams, 10, in the family's rural home about 20 miles
northeast of Terre Haute.

He has pleaded not guilty to the charges, but while being led into the
courthouse last month Cottrell said his wife "got what she deserved."

Swaim did not make an immediate ruling on a defense motion for a gag order
to prevent prosecutors and police officials from discussing the case with
reporters.

The judge did grant a defense request to delay a pretrial conference that
was scheduled for Jan. 3, rescheduling the hearing for Jan. 12.

(source: Indianapolis Star)






FLORIDA:

2 murders bring death sentence----Chip Carter gets life for a 3rd killing


Whether by execution or old age, Chip Carter of Jacksonville will likely
die in a Florida prison.

Carter, born Pinkney W. Carter 51 years ago, was convicted of 3 counts of
1st-degree murder after a jury trial in September.

A jilted lover, Carter was found guilty of going to the Arlington home of
his ex-girlfriend, Liz Reed, shortly after midnight July 23, 2002, and
killing Reed, 35, her new boyfriend, Glenn Pafford, 49, and Reed's
16-year-old daughter, Courtney Smith.

All were shot with a .22-caliber rifle Carter said he took to the home to
get answers from Reed about their breakup. Reed and Pafford died
instantly, and Smith died later in a hospital.

Circuit Judge Lance M. Day on Thursday sentenced Carter to death for
killing Reed and Pafford and to life in prison without parole for killing
Smith as had been recommended by the jury at the sentencing phase of
Carter's trial. Day said the sentences were to run consecutively.

Carter sat clothed in orange jail scrubs with his wrists and ankles
shackled and showed no emotion for nearly an hour as Day read his
sentence, enumerating mitigating and aggravating circumstances and
concluding that the aggravating circumstances of Carter's crime outweighed
the mitigating ones.

When Carter first entered the courtroom, he told Day, "I was responsible
for these deaths physically, but I was not responsible mentally for them."

Public Defender Bill White, who sat with Carter, argued that the future of
Florida's death penalty is in question because it is the only state in the
union with a death penalty that does not require a unanimous jury
recommendation. In Carter's case, the jury voted 9 to 3 for death for
killing Pafford and 8 to 4 for death for killing Reed.

Reading his sentencing order, Day called the killings "cold, calculated
and premeditated murder." He noted Carter staked out Reed's home on
several occasions weeks before the murders.

After the murders, Carter fled Jacksonville, traveling through several
states before ditching the murder weapon in the Rio Grande and swimming to
Mexico, where he was arrested for entering the country illegally. He was
released by Mexican authorities after paying a fine and then disappeared.

Carter was finally arrested Jan. 6, 2004, near Paducah, Ky., where he was
working as a roofer under the alias of Rodney Vonthun. He had been picked
up earlier for being drunk in public and was released the next day. But an
alert Kentucky state trooper later recognized his photo on an FBI wanted
poster in another police station.

For relatives of the victims, hearing the death sentences imposed Thursday
-- the 1st Day has imposed in 9 years as a circuit judge -- brought a
sense of closure.

"I'm relieved," said Cora Pafford, 83, Glenn Pafford's mother. "I have
waited a long time to hear this. He took three innocent lives for no
reason. We've cried many a tear."

Pafford's daughter, Kristy Pafford, said, "I'm glad it's over -- finally.
It's been too long."

The parents and grandparents of Reed and Smith, Kay and John Null, said
the death sentences brought a sense of relief to them.

"We will have a happy and joyous Christmas," Kay Null said.

But first the Nulls are going to Panama City where Reed and Smith are
buried.

"We are going to visit Liz and Courtney in the cemetery and give them the
good news," Kay Null said.

(source: The Florida Times-Union)