[Deathpenalty]death penalty news----CALIF., US MIL., N.Y., N.J.

[Rick Halperin]

Feb. 11


CALIFORNIA:

Inmates Can Appeal Based on Their IQ----State justices define mental
disability, giving dozens on death row a chance for life terms.

The California Supreme Court cleared the way Thursday for dozens of
condemned prisoners to escape their death sentences on the grounds they
are mentally retarded, defining the disability more flexibly than
prosecutors had wanted.

Prosecutors, who fear a flood of petitions from death-row inmates, wanted
the court to define retardation using a specific IQ level. They suggested
70 on a scale on which the average is 100. The court declined.

"IQ tests are insufficiently precise to utilize a fixed cutoff in this
context," Justice Janice Rogers Brown wrote for the court.

Instead, the justices said, inmates could get hearings to challenge their
death sentences as long as a qualified expert says they are retarded.

At the hearings, inmates can have their death sentences reduced to life in
prison without parole if a judge decides it is more likely than not that
they have "significantly subaverage general intellectual functioning" and
behavioral and practical disabilities that began before the age of 18.

Mental retardation is "a question of fact," Brown wrote. "It is not
measured according to a fixed intelligence score or a specific - behavior
deficiency, but rather constitutes an assessment of the individual's
overall capacity."

Evidence about the defendant's crimes may be considered only if relevant
to the question of his mental capability, the court said.

In 2002 the U.S. Supreme Court ruled that executing mentally retarded
people would violate the Constitution's ban on "cruel and unusual"
punishment. But the high court left to the states the job of deciding how
to define retardation.

30 of the state's 640 death-row inmates now say they are mentally
retarded, and many more are expected to make similar claims as their court
appeals progress.

The 7-0 ruling was a victory for Anderson Hawthorne Jr., 44, who was
sentenced to death for killing two rival gang members in Los Angeles in
1982.

Hawthorne will now have a hearing on his mental fitness in Los Angeles
County Superior Court.

In giving Hawthorne a hearing on his claim, the court cited the
declaration of a neuropsychologist who said Hawthorne was "one of the most
profoundly impaired individuals that I have seen in a forensic
population."

As a child, Hawthorne was a slow learner who had trouble with basic
reading, writing and arithmetic and problems communicating with others,
the court noted.

Hawthorne "has met the threshold showing of mental retardation," Brown
wrote.

Deputy Federal Public Defender Harry Simon, Hawthorne's lawyer, called the
ruling "the best realistic outcome possible."

Hawthorne, whose IQ has been measured by various tests from 71 to 86, also
is challenging his conviction in federal court. "I believe if he had a
fair trial, he never would have been convicted," Simon said.

Senior Assistant Atty. Gen. Dane Gillette, capital case coordinator for
the state, called the court's decision "reasonable."

So far, the state has challenged all but 2 of the 30 pending claims of
mental retardation. State officials now will reassess their challenges to
decide whether to continue to fight hearings in all the other cases,
Gillette said.

Even though the court refused to establish an IQ cutoff, intelligence
scores will still be relevant, Gillette said. A claim that "someone who
has an IQ of 90 is retarded is going to have little credibility," he said.

2 of the court's 7 justices, Ming Chin and Joyce L. Kennard, wrote a
separate opinion to stress that point.

"A person whose IQ score is over 75 is very likely not mentally retarded,"
Chin wrote. "In many, perhaps most, cases," an inmate will not be
considered retarded without an IQ score "at or below the 70-75 range."

Charles Hobson, a lawyer with the Criminal Justice Legal Foundation, an
advocacy group that works on behalf of crime victims, said allowing a
condemned inmate to get a hearing based on just one qualified expert may
lead to too many cases going to court.

"You will find more cases, and that is a potential problem," he said.
"There will be a lot of work to be done."

Still, he said, the decision should resolve claims of mental retardation
relatively quickly because federal courts and the California Supreme Court
will have to give great weight to the trial judge's determination if it is
challenged.

"Death-row inmates making a claim of mental retardation should not be
dancing in their cells as a result of today's decision," Hobson said.

The court's standard is similar to the one adopted by the Legislature 2
years ago for inmates awaiting trial on death penalty charges.

A new defendant may ask either a judge or a jury to determine whether he
or she is retarded. The state high court left it only to judges to make
the decision for prisoners already condemned.

The state's definition of mental retardation closely mirrors that of the
American Assn. on Mental Retardation. The group says a person is mentally
retarded if he or she has subaverage intellectual functioning, usually
shown by an IQ score of 75 or below, along with evidence of inappropriate
behavior, including significant limitations in conceptual, social or
practical skills, before the age of 18.

(source: Los Angeles Times)






US MILITARY:

Marine faces death penalty for killing 2 terror suspects----'What's he
supposed to do, wait until he's standing in the inferno?'


A U.S. Marine charged with premeditated murder for shooting 2 Iraqis may
face the death penalty, although one of the men he shot appeared to be
preparing to attack the Marines or detonate nearby explosives, says the
Marine's attorney.

Second Lieutenant Ilario G. Pantano was charged Feb. 1 in connection with
the April 15, 2004, shooting incident, according to a Marine Corps
statement released yesterday.

Maj. Gen. Richard Huck, commanding general of the 2nd Marine Division,
convened an investigation to determine if the 33-year-old Pantano should
stand trial, but no further details were released.

But Charles Gittens, Pantano's civilian attorney, said Pantano has "made
it pretty firmly clear that he is not guilty," according to a Reuters
report.

The Marine platoon Pantano commanded had been tasked with searching a
suspected terrorist hide-out south of Baghdad last April. After finding
weapons, ammunition and bomb-making material in the building, they
observed 2 men fleeing in a sport utility vehicle, Gittens said, according
to the wire report.

Upon shooting out the vehicle's tires to stop it, the Marines took the two
Iraqi men into custody, ordering them to search for booby traps and secret
compartments in the vehicle by ripping out its interior and seats, Gittens
told Reuters.

Then, according to Gittens, one of the suspects turned suddenly toward
Pantano "as if to attack." When Pantano ordered them to stop, they kept
moving toward him, Gittens said.

"He (Pantano) thought he was in danger and he fired and he killed them and
that's what we do to terrorists who don't listen to orders. ... It's a
combat situation, kill or be killed," the attorney told Reuters.

Fearing the 2 suspects may have been attempting to detonate explosives
remotely, Pantano shot them, Gittens said.

"What's he supposed to do, wait until he's standing in the inferno?" the
attorney added.

After the incident, Pantano served three more months in Iraq when he
returned to Camp Lejeune at the end of his tour of duty.

Possible outcomes to the case, say Marine investigators, are that Pantano
could be court-martialed, disciplined administratively, or have the
charges dropped.

Pantano's is not the 1st controversial case of the U.S. military
prosecuting its own soldiers in Iraq for what many consider to be just
doing their jobs under difficult and dangerous circumstances.

In 2003, Lt. Col. Allen B. West, under threat of an attack, took charge of
the interrogation of an Iraqi policeman, Yahya Jhodri Hamoody, determined
to flush out information as he warned subordinates "it could get ugly."
Threatening to kill the Iraqi if he didn't talk, West fired a pistol near
the policeman's head, not harming him - but scaring him.

The frightened policeman then immediately disclosed the information,
leading to the arrest of 2 Iraqis last August and cessation of attacks on
West's 4th Infantry Division battalion.

But Army prosecutors said West's actions had violated the Uniform Code of
Military Justice and charged him with aggravated assault. Although he
faced a wide range of possible outcomes - from no disciplinary action to a
sentence of up to 8 years in prison - in the end he was fined $5,000.

At a hearing in late 2003, West was asked by his defense attorney if he
would do it again.

"If it's about the lives of my men and their safety, I'd go through hell
with a gasoline can," he said.

Merry Pantano, the accused Marine's mother, has created a website titled
"Defend the Defenders" to tell her son's story and raise money for his
defense.

"Who is my son?" she asks on the website:

He is a young, intelligent, charismatic Marine officer and all that that
entails. And yet he is incomprehensibly charged with heinous crimes
related to a dangerous military operation that took place in "the triangle
of death" just south of Baghdad.

It was during the peak of insurgent violence in mid April of 2004, with
hundreds of fellow Marines and soldiers being killed and wounded
throughout the "Sunni Triangle." Terrorists, captured while trying to
recover a vehicle used in an earlier attack on the Marines, had given
detailed information about a supply of weapons and terrorist hideout that
my son and his platoon were hastily dispatched to search. Their search
revealed weapons, ammunition, mortar equipment, bomb-making material and 2
fleeing terrorists.

In an ensuing search of the terrorists' vehicle, my son, concerned for his
safety and the safety of his men shot them both in self defense and then
disabled their vehicle so it could not be used in further attacks. He and
his men went on to fight with distinction and honor in Falluja and the
surrounding areas and, when possible, aided in the reconstruction effort.
Months later, the government began an investigation that only now, 10
months after the fact, alleges an evil intent which is at polar opposite
of my son's character and principles.

(source: WorldNetDaily)






NEW YORK:

State Legislature May Not Clear Up Death Penalty Confusion


It's looking more and more like the state Legislature won't vote on the
death penalty this year.

Last year, the Supreme Court said the sentencing guidelines were
unconstitutional. Ever since, prosecutors have been left in limbo.

District Attorney Mike Green was hoping the Assembly would take action on
this issue. A few weeks ago, he even testified at one of the hearings they
held. But now, it's looking like there will be no quick fix to the
problem. Many lawmakers feel that since the issue is so divisive, they
should take their time considering whether to even have a death penalty on
the books. But in the meantime, the state is paying 13 million a year to
fund a capital defenders office.

Green says, "there are costs every way you turn and the only way to
justify those costs is if we have a death penalty that works." Assemblyman
Joe Morelle says, "since we have this moment lets step back, let's look at
it, let's look at all the issues relating to capital punishment and then
make some judgments."

(source: WROC TV News)






NEW JERSEY:

Prosecutor to seek execution for man who dismembered grandmother


Prosecutors plan to seek the death penalty for a man accused of killing
and dismembering his 87-year-old grandmother and his longtime girlfriend.

Rosario "Russell" Miraglia, 32, is accused of murder in the June 8 deaths
of Julia Miraglia and 31-year-old Leigh Martinez, who were killed in the
Ocean Township home they shared. Both were decapitated and their hands and
feet cut off with a meat cleaver, according to authorities.

A death penalty review committee in the Monmouth County prosecutor's
office that examined the evidence in the killings decided to seek
Miraglia's execution based on the brutal nature of the slayings and
because Miraglia allegedly killed his grandmother in a bid to escape
detection for killing Martinez, according to First Assistant Prosecutor
Robert Honecker.

A medical examiner found that Martinez died from stab wounds and was
dismembered after death; Miraglia died as the result of decapitation.

Miraglia, whose last known address was a drug rehabilitation center,
called police to report the killings after a relative knocked at the door
of his grandmother's home and he answered the door covered in blood.

"He was on a mission, directed from God, to commit these homicides. That
was the alleged motive," said Honecker, who said he expects an insanity
defense if the case goes to trial. No trial date has been set.

Miraglia's attorney, public defender Jeffrey Coghlan, told the Asbury Park
Press a psychologist and psychiatrist have evaluated Miraglia and declared
him to be paranoid-schizophrenic.

(source: Newsday)