[Deathpenalty]death penalty news-----TEXAS, USA, IND., N.C.
rhalperi at mail.smu.edu
Tue Jan 24 16:51:50 CST 2006
Killer faces Wednesday death date----Latest appeals rejected in case where
Marion Butler Dudley ferried drugs from a southwest Houston home to his
Tuscaloosa, Ala.-based operation for almost a year until a violent day in
1992 when he decided to eliminate the middlemen.
In June of that year, Dudley, Antonia Lamone Dunson and Arthur "Squirt"
Brown arranged to buy 3 kilograms of cocaine from their drug contact
Rachel Tovar, according to trial testimony and subsequent court records.
Prosecutors said that Dudley, known as "Red," had already made it known he
wanted to cut out Tovar and her estranged husband, Jose G. Tovar Jr.
The drug buy, prosecutors said, was a ruse.
On June 20, Dudley, Dunson and Brown tied up the Tovars and 4 other
people. The group included Rachel Tovar's son, 17-year-old Frank Farias,
and his pregnant 19-year-old girlfriend, Jessica Quinones, and 2 friends
of the Tovars who had the bad luck of stopping by at the wrong time.
Minutes before the 6 were shot, Dudley told Jose Tovar, "You stupid
Mexican, I never did like you."
The gunmen likely never imagined 2 of their victims would survive.
Barring a last-minute reprieve, Dudley, 33, will be put to death Wednesday
for the slayings of Jose Tovar, 32, Farias, Quinones and neighbor Audrey
The Court of Criminal Appeals has denied his latest appeal, but his
attorney has petitioned the U.S. Supreme Court.
Arthur Brown, 35, no relation to Audrey Brown, also is on death row.
Dunson, 33, is serving a life sentence.
Dudley declined the Chronicle's request to be interviewed for this
article. If the sentence is carried out, he would be the 1st man executed
in Texas this year.
Dudley's business dealings with the Tovars began about eight months before
the murders, according to court documents. Rachel Tovar typically sold him
anywhere from one-half to 2 kilograms of cocaine, at a cost of $22,500 per
kilo. At one point, Dudley argued with Rachel Tovar about wanting to deal
directly with her and her husband's supplier.
Taken to bedroom
On that June evening, when Rachel Tovar returned to her home after
visiting a neighbor, she was greeted by Dunson, armed with a pistol. He
escorted her to a bedroom, where her husband was kneeling, hands behind
his head with a revolver pointed at him. She was taken into another room
where her son, his girlfriend and Audrey Brown were also being held.
Brown, who had stopped by the home, began to cry and asked to leave, but
was denied. Quinones, almost at full term, felt faint and lay back on the
"You stupid (expletive)," Dudley said, "don't you go into labor on me."
Frank Farias yelled, "Why don't you all take whatever you want and just
leave." Dunson attempted to strike him, but his mother, Rachel, blocked
Arthur Brown left the room and returned with strips from a bedsheet to tie
Rachel Tovar could hear Dudley warning her husband: "There better not be
any more money in the house." She yelled in reply that some money was
stored in a top bedroom dresser, but the admission failed to quell the
Nicholas Cortes, who once lived with the family, stopped by the home and
was forced inside. He was robbed of the $20 on him and was also tied up.
Although shot, Rachel Tovar regained consciousness some time later only to
find her husband dead on the floor. Cortes, who was on a bed, asked her if
the gunmen had left. Rachel told him they had. She stumbled over to her
son and tried to revive him. Quinones, on the floor in the bathroom, was
struggling to breathe. Rachel Tovar staggered to a neighbor's home and
Jose Tovar, Quinones and Farias all were found dead by police, while
Audrey Brown died later at a hospital. Cortes and Rachel Tovar recovered
from their wounds.
The gunmen fled after being identified by Rachel Tovar, who picked them
out from police mugshots. Dudley and Dunson were captured while hiding in
a mobile home in North Carolina. They had $30,000 on them. Arthur Brown
was later arrested in Tuscaloosa.
In his appeals, Dudley argued that his trial attorneys R. Christopher
Goldsmith and Connie Williams failed to request a lesser charge of
robbery. Goldsmith maintained, in a court filing, that evidence did not
exist to support the lesser crime.
Denied a plea
In another appellate claim, Dudley argued that the mention of his flight
from authorities was improper to include in the jury charge.
The Court of Criminal Appeals on Friday denied a plea filed by Dudley's
attorney, Ken McLean, that raises the claim that prosecutors withheld a
possible deal with a crucial witness. McLean said he found an undated,
unsigned letter to Alabama's parole board requesting that the witness'
parole date be moved up.
The witness, Jasper Finney, was serving two 15-year sentences in an
Alabama prison. The letter, according to court documents, states that
without the testimony, "I may not have received the death penalty against
McLean said Dudley's defense attorneys were not told of any deal. If such
a deal had been made, Finney could have been questioned about the deal
during the trial, which may have led jurors to question his reliability.
Assistant District Attorney Ann Lee Dulevitz, of Harris County's appellate
division, argues in response that the letter is not typed on official
She wrote that Jane Waters, the assistant district attorney who prosecuted
the case, "has no independent recollection of writing or sending a letter"
to Alabama's parole board on Finney's behalf. Other witnesses provided
similar testimony as Finney about Dudley's drug dealings and other crimes,
the response states.
"I think he's making an effort," Dulevitz said of McLean's filing. "And
this is the only thing he's found that he can contest."
(source: Houston Chronicle)
TEXAS COALITION TO ABOLISH THE DEATH PENALTY PRESS RELEASE
TEXAS COALITION TO ABOLISH THE DEATH PENALTY TO CONVENE ANNUAL CONFERENCE
IN SAN ANTONIO:
EVENT COMES AS COLLOSAL MISTAKES SURROUNDING TEXAS' DEATH PENALTY SCHEME
Jan. 25, 2006 - The Texas Coalition to Abolish the Death Penalty will host
its annual conference Saturday, Jan. 28 at the San Antonio Marriott
Northwest, 3233 NW Loop 410.
The TCADP will be convening at a time when new questions have been raised
about the execution of Ruben Cantu of San Antonio, about the fallibility
of the Houston Police Department crime lab; and about whether the state of
Texas continues to execute people who are severely mentally retarded,
despite Supreme Court edict, and continues to execute people with severe
mental illness and who are possibly innocent.
"The time has come to have no executions, no exceptions, and no excuses,"
said TCADP President Rick Halperin. "In Texas, we have put to death people
who were severely mentally ill, mentally retarded, juveniles and even
people who were innocent of the crimes for which they were convicted.
Almost 2 billion in tax dollars have been spent to perpetuate the system
and yet the public is no less safe, our schools remain underfunded, too
many Texans still lack opportunities to achieve and crime - because of so
many factors - continues to be a problem. It's high time we took a
smart-on-crime approach to making our streets, our communities and our
families safer. The death penalty does nothing to address this."
Newsmaker events at Saturday's TCADP conference:
***A keynote luncheon presentation by David Dow, distinguished professor
at the University of Houston Law Center. Dow heads the Texas Innocence
Project, represents a number of people on Texas' death row and is author
of the award-winning book, "Executed on a Technicality: Lethal Injustice
on America's Death Row." Dow's talk will take place in the Marriott at
***A panel discussion on "Faith Viewpoints on the Death Penalty. Panelists
include Rev. Marty Elsner, S.J., Pastor of Our Lady of Guadalupe Catholic
Church; Rev. Ann Helmke, Lutheran minister and the animating director of
the peaceCENTER in San Antonio; Imam O. Adib Shakir, Resident Imam, Masjid
Bilal Ibn Ra'bab of San Antonio; and Ms. Barbie Gorelick, co-founder of
theTri-Faith Dialogue of San Antonio and recipient of the Imagineer Award
from the Mind Science Foundation. The panel discussion will begin at 3:15
p.m. in the Atrium Room at the Marriott.
***A first-ever film festival, scheduled at 6:30 p.m. at the peaceCenter,
1443 St. Mary's. The festival, entitled "Love & Death Film Festival," will
feature the U.S. premiere of two new films about the death penalty. Both
filmmakers will be on hand to discuss their work. The first film, "Thou
Shall Not Kill," features interviews with three Texas inmates condemned to
death as well as the former Texas death house chaplain and the former
warden of the Walls Unit, where executions are carried out. The second
film, "Step by Step: A Journey of Hope," features the chronicling of the
emotional journey of hope with family members who oppose the death penalty
as they trekked through the state of Texas and spoke out against
executions in Texas last fall.
Statement of Senator Russ Feingold On the Nomination of Judge Samuel
Alito, Jr. to the United States Supreme Court
January 24, 2006
Mr. Chairman, Justice O'Connor's retirement in July touched off a period
of intense and important work in this Committee. Just over 6 months later,
that work seems finally to be coming to a close, at least for now. I want
to commend you for the thorough and fair process you have overseen. The
nominees have been treated fairly, and both sides on the Committee have
been treated fairly as well. I want to thank you for that.
Supreme Court nominations truly are among the most important
responsibilities of this committee and the Senate. I have given the
nominations the President has sent to us in the past 6 months serious and
The scrutiny to be applied to a President's nominee to the Supreme Court
is the highest of any nomination. I have voted for executive branch
appointees, and even for Court of Appeals nominees, whom I would not
necessarily vote to put on the Supreme Court.
The Supreme Court, alone among our courts, has the power to revisit and
reverse its precedents, and so I believe that anyone who sits on that
Court must not have a pre-set agenda to reverse precedents with which he
or she disagrees and must recognize and appreciate the awesome power and
responsibility of the Court to do justice when other branches of
government infringe on or ignore the freedoms and rights of all citizens.
This is not a new standard Mr. Chairman. It is the same standard I applied
to the nomination of Chief Justice Roberts. In that case, after careful
consideration, I decided to vote in favor of the nomination. In the case
of Judge Samuel Alito, after the same careful consideration, I must vote
Judge Alito has an impressive background and a very capable legal mind,
but I have grave concerns about how he would rule on cases involving the
application of the Bill of Rights in a time of war. Some of the most
important cases that the Supreme Court will consider in the coming years
will involve the government's conduct of the fight against terrorism. It
is critical that we have a strong and independent Supreme Court to
evaluate these issues and to safeguard the rights and freedoms of
Americans in the face of enormous pressures.
Confronted with an executive branch that has jealously claimed every
possible authority that it can, and then some, the Supreme Court must
continue to assert its constitutional role as a critical check on
executive power. Just how "critical" that check is has been made clear
over the past few weeks, as Americans have learned that the President
thinks his executive power permits him to violate explicit criminal
statutes by spying on Americans without a court order.
With the executive and the legislature at loggerheads, we may well need
the Supreme Court to have the final word in this matter. In times of
constitutional crisis, the Supreme Court can tell the executive it has
gone too far, and require it to obey the law. Yet Judge Alito's record and
testimony strongly suggest that he would do what he has done for much of
his 15 years on the bench: defer to the executive branch in case after
case at the expense of individual rights.
Although he has not decided cases dealing with the Bill of Rights in
wartime, he has a very long record on the bench of ruling in favor of the
government and against individuals in a variety of contexts. Indeed, Mr.
Chairman, this is an important distinction between Judge Alito and Chief
Justice Roberts. Our new Chief Justice had a very limited judicial record
before his nomination. Judge Alito has an extensive record. There is no
better evidence of what kind of Justice he will be on the Supreme Court
than his record as a Court of Appeals judge. He told us that himself.
A whole series of analyses by law professors and news organizations has
shown that Judge Alito is very deferential toward the government, and one
detailed analysis by the Washington Post concluded that he is more
deferential than his Third Circuit colleagues and even than
Republican-appointed appeals judges nationwide. This vividly demonstrates
the concern I have about this nomination. Judge Alito is not simply a
conservative judge appointed by a conservative President. His record is
that of a jurist with a clear inclination to rule in favor of the
government and against individual rights.
In particular, Judge Alito's record in Fourth Amendment cases shows a
recurring pattern. In almost every Fourth Amendment case in which Judge
Alito wrote an opinion, he either found no constitutional violation or
argued that the violation should not prevent the illegally obtained
evidence from being used. In more than a dozen dissents in criminal or
Fourth Amendment cases, not once did Judge Alito argue for greater
protection of individual rights than the majority.
In one case that he was asked about on several occasions at his hearing,
Judge Alito, in dissent, argued that the strip search of a 10-year old
girl and her mother passed constitutional muster, even though they were
not suspected of any crime or specifically mentioned in the search
warrant. Judge Alito's answers to questions at the hearing about this case
only reinforced concerns identified by outside scholars that he seems to
ignore the serious interests of privacy and personal dignity protected by
the Fourth Amendment and instead relies on technical readings of warrants
so that he can authorize the government action.
Cases challenging government power comprise nearly half of the current
Supreme Court's docket. A Supreme Court Justice should protect individual
freedoms against government intrusion where justified, and, specifically,
should appreciate that the Fourth Amendment serves to limit government
power. As Yale Law School Professor Ronald Sullivan testified:
In the United States, perhaps no right is more sacred - more worthy of
vigilant protection - than the right of each and every individual to be
free from government interference without the 'unquestionable' authority
of the law. Judge Alito . . . shows an inadequate consideration for the
important values that underwrite these norms of individual liberty - the
very norms upon which this constitutional democracy relies for its
sustenance. . . . [T]his Senate's decision on whether to consent to Judge
Alito's nomination will profoundly impact how liberty is realized in the
At the hearing, I and many other Senators repeatedly asked Judge Alito
whether the President can violate a clear statutory prohibition, such as
the Foreign Intelligence Surveillance Act and the ban on torture. He never
answered the question. He returned again and again to a formulaic response
that told us nothing at all: he said that the President must follow the
Constitution and must follow the laws that are consistent with the
Constitution. Mr. Chairman, any first-year law student could tell you
that. That kind of stock phrase, which Judge Alito repeated over and over,
tells us absolutely nothing about his view of whether the President can,
consistent with the Constitution, violate a criminal law.
Judge Alito did point to Justice Jackson's three-part analysis in
Youngstown. That is an appropriate framework, but merely citing Youngstown
doesn't tell you anything about how he would apply that framework. Even
when presented with the alarming hypothetical of whether a President can
authorize a murder in the United States, Judge Alito would say no more.
These practiced and opaque responses gave me no reassurance about Judge
Alito's views on these issues. What troubled me even more was that he
repeatedly, and in some cases gratuitously, raised issues of
justiciability and the political question doctrine - that is, he seemed to
question whether the courts can even weigh in on these serious legal
battles between the legislature and the executive. Although he said he
thought the courts could address questions involving individual rights,
Judge Alito's instinct in discussing these historic issues was to focus on
whether the courts even had a role to play. It wasn't to talk about the
gravity of the issues at stake for our system of government, but to
question whether he as a judge could even participate in the resolution of
such critical constitutional conflicts.
Mr. Chairman, I found that very disturbing, and it has played a
significant role in my decision to vote against him. Judge Alito's record
and his testimony have led me to conclude that his impulse to defer to the
executive branch would make him a dangerous addition to the Supreme Court
at a time when cases involving executive overreaching in the name of
fighting terrorism are likely to be such an important part of the Court's
I am also concerned about Judge Alito's record and testimony on cases
involving the death penalty. The Supreme Court plays a crucial role in
death penalty cases. Judge Alito participated in five death penalty cases
that resulted in split panels, and in every single one of those he voted
against the death row inmate. A Washington Post analysis found that he
ruled against defendants and for the government in death penalty cases
significantly more often than other judges. And his testimony gave me no
reason to believe that he will approach these cases any differently as a
Supreme Court Justice.
To be blunt, Mr. Chairman, I found Judge Alito's answers to questions
about the death penalty to be chilling. He focused almost entirely on
procedures and deference to state courts, and didn't appear to recognize
the extremely weighty constitutional and legal rights involved in any case
where a person's life is at stake.
I was particularly troubled by his refusal to say that an individual who
went through a procedurally perfect trial, but was later proven innocent,
had a constitutional right not to be executed. The Constitution states
that no one in this country will be deprived of life without due process
of law. It is hard to even imagine how any process that would allow the
execution of someone who is known to be innocent could satisfy that
requirement of our Bill of Rights. I pressed Judge Alito on this topic but
rather than answering the question directly or acknowledging how horrific
the idea of executing an innocent person is, or even pointing to the House
v. Bell case currently pending in the Supreme Court on a related issue,
Judge Alito mechanically laid out the procedures a person would have to
follow in state and federal court to raise an innocence claim, and the
procedural barriers the person would have to surmount.
Judge Alito's record and response suggest that he analyzes death penalty
appeals as a series of procedural hurdles that inmates must overcome,
rather than as a critical backstop to prevent grave miscarriages of
justice. The Supreme Court plays a very unique role in death penalty
cases, and Judge Alito left me with no assurance that he would be able to
review these cases without a weight on the scale in favor of the
One important question that I had about Judge Alito was his view on the
role of precedent and stare decisis in our legal system. At his hearing,
while restating the doctrine of stare decisis, Judge Alito repeatedly
qualified his answers with the comment that stare decisis is not an
"inexorable command." While this is most certainly true, his insistence on
qualifying his answers with this formulation was troubling. Combined with
a judicial record in which fellow judges have criticized his application
of precedent in several cases, Judge Alito's record and testimony do not
give me the same comfort I had with Chief Justice Roberts that he has the
respect for and deference to precedent that I would like to see in a
Supreme Court Justice.
With respect to reproductive rights, Judge Alito said that he would look
at any case with an "open mind." That promise, however, is not reassuring
given his prior denunciations of Roe, his legal work to undermine Roe, and
his failure to disavow the strong legal views he had expressed in the
1980s when given the opportunity at his hearing. In his 1985 Justice
Department job application, Judge Alito wrote that he believed that the
Constitution does not protect a right to abortion, and, as an Assistant to
the Solicitor General, he wrote a memo advocating a strategy for the
Reagan Administration to chip away at Roe v. Wade, with the ultimate goal
of overturning that decision. Since he refused to say that he changed his
mind, despite numerous chances, one can only think that he still believes
what he said in 1985. And his opinions as a Third Circuit judge raise a
legitimate concern that he will, if given the opportunity, be inclined to
narrow reproductive rights.
Mr. Chairman, I want also to say a brief word about ethics. The Vanguard
case could have been disposed of fairly easily if Judge Alito had only
admitted his mistake up front. Under questioning, Judge Alito finally
admitted that there is no evidence that he followed through on his 1990
promise to the Committee to recuse himself from any cases involving
Vanguard. He also said that some of the explanations that he and his
supporters gave for his failure to recuse from the Vanguard case in 2002--
such as a "computer glitch" or the fact that his promise to the Committee
was somehow time-limited -- were not in fact the true reasons that he
failed to recuse himself from the 2002 case.
While I am not basing my vote on this matter, it continues to trouble me.
First, it is not clear to me that Judge Alito took his 1990 promise to the
Committee seriously. Second, Judge Alito failed to clear up the
inconsistent explanations before or at the outset of his hearing, even
after documents revealed that those explanations were implausible and even
though he knew that they were not the real reasons that he failed to
recuse himself in 2002.
The concept of recusal, which recognizes that from time to time the public
might reasonably believe that judges' biases or interests may cast doubt
on the integrity of a judicial decision, is part of ensuring due process
and protecting the public's confidence in the integrity of our system of
justice. Despite numerous other reports of Judge Alito's honesty and
integrity, I am not satisfied that he appreciates the importance of
His written answer to my question about how he would analyze recusal
motions related to the Third Circuit judges who testified on his behalf
raises concerns about his approach to conflicts of interest. Judge Alito
wrote that he thinks Supreme Court Justices have "less latitude to err on
the side of recusal" than other judges, because recusal could lead to
evenly divided decisions. But when Congress amended the federal recusal
law in 1974, it specifically removed any so-called "duty to sit" in favor
of a general standard requiring recusal if there is a reasonable basis for
doubting the judge's impartiality. The purpose of that change was to
enhance public confidence in the impartiality and fairness of the judicial
system. In my view, Supreme Court Justices should have no more latitude in
interpreting ethics rules than other judges; indeed, the recusal statute
specifically applies to Supreme Court Justices.
I would argue that treating recusal issues seriously is even more
important for Supreme Court Justices since they are solely responsible for
their recusal decisions. There is no judicial review of their decisions,
no formal procedure for the full Court review of such decisions, and, when
a Justice improperly participates, a tainted constitutional decision
cannot be undone. That is why it is so important to have Justices who
adhere to the highest ethical standards. Judge Alito repeatedly told us
that he seeks to carry out his duties in accordance with both the letter
and spirit of all applicable rules of ethics and canons of conduct. He
wrote in a letter to the Chairman "my personal practice is to recuse
myself when any possible question might arise." Unfortunately, his
description of how he would handle recusal motions as a Supreme Court
Justice does not seem consistent with those statements.
Mr. Chairman, it gives me no pleasure or satisfaction to vote against a
nominee to the Supreme Court. If confirmed, he may well serve for over 20
years. I would very much like to have confidence that this new Justice,
who plainly has a keen legal mind, would be the kind of impartial,
objective, and wise Justice that our nation needs. But I do not, so I will
vote No. Thank you Mr. Chairman.
(source: Sen. Russ Feingold)
'King Kong of Kokomo' faces execution
The Indiana Parole Board voted unanimously Monday to recommend against
clemency for Marvin Bieghler, the self-professed "King Kong of Kokomo"
sentenced to death for the execution-style slayings of a Howard County
couple in 1981.
Barring a last-minute reprieve from Gov. Mitch Daniels or the courts,
Bieghler, 58, is scheduled to die by lethal injection at the Indiana State
Prison in Michigan City early Friday.
Bieghler, an admitted marijuana dealer, was convicted of killing Tommy
Miller, 20, and Kimberly Jane Miller, 19, whose bodies were found Dec. 11,
1981, in their mobile home near Russiaville. Tommy Miller had been shot
six times and his pregnant wife 3 times.
Authorities contended he killed the couple because he believed Tommy
Miller had told police about his operation moving marijuana from Florida
to the Kokomo area and also felt Miller owed him a drug debt.
"By his own testimony, Mr. Bieghler stated he was the 'King Kong of
Kokomo' in the drug business," Valerie Parker, vice chairwoman of the
Parole Board, said, reading her letter to Daniels recommending against
Board Chairman Raymond Rizzo acknowledged Bieghler was convicted largely
on circumstantial evidence, as the condemned prisoner's attorney had
argued during the clemency hearing earlier in the day.
"What we have is a convicted double killer, scheduled for execution in
less than 96 hours, who also lacks evidence proving his innocence, woven
deeply into a sordid saga of marijuana by the bale, money by the
cooler-full, guns of every type, and a seemingly endless parade of felons,
all of whom seem eager to drop a dime on each other," Rizzo said.
Bieghler had dropped a dime on each of the victims' bodies, according to
court records, to send a message to that he would not tolerate informants.
Authorities have said Miller was not an informant.
Bieghler told the Parole Board Friday that he was innocent and wanted
Daniels to commute his sentence to time served, but that if not granted
his freedom, he wanted to die.
"If I can't get out, then let's get at it," he said. "I'm not in here
begging for my life.
I'm not going to do life without parole for something I didn't do."
Bieghler's attorney, Brent Westerfeld, asked the board to recommend
clemency as it had in the case of another death row inmate, Darnell
Williams, in 2004. Former Gov. Joe Kernan commuted Williams' sentence to
life in prison without the possibility of parole.
Others implicated in Bieghler's drug operation cut deals with prosecutors
in exchange for the testimony that wound up convicting his client,
"The evidence against Marvin was never strong," Westerfeld said. "Police
pressured (one witness) to get a story. They made a deal to get a story."
Kimberly Jane Miller's brother, John Wright of Greentown, choked back
tears as he testified during Monday's hearing.
"Our family pleads with this board and Governor Daniels to go through with
and uphold this death penalty," Wright said.
The Parole Board also heard the reading of a letter from Tommy Miller's
mother, Priscilla Hodges, in which she lamented losing the opportunity to
be a grandmother to the slain couple's unborn child.
"This entire family has been victimized by what Marvin Bieghler did for
over 20 years," Hodges wrote.
The Parole Board has recommended clemency in a capital case just once
since the death penalty was reinstated in Indiana in 1977. Board members
unanimously recommended clemency for Williams in 2004, saying his case had
too many unresolved questions.
Daniels commuted the death sentence of Arthur Baird II to life without
parole last August. Baird's lawyers argued that he was mentally ill, but
the state Parole Board voted 3-1 to recommend that the execution be
It was not clear when Daniels would decide whether to grant clemency to
Bieghler. Daniels spokeswoman Jane Jankowski said the governor had
received a briefing on the case and was reviewing the information.
5 people have been executed since Daniels took office in January 2005.
(source: Associated Press)
Judge spares killer----Death row inmate mentally retarded; McLaughlin was
convicted of killing 3 people.
A federal judge has removed a Bladen County man from the state's death row
because he is mentally retarded, ruling that he should not be executed for
murdering 3 people in 1984.Elton O. McLaughlin, 55, is the 12th death row
inmate in North Carolina spared because he was found to be mentally
retarded. But his case comes with a twist.
In 2001, the legislature outlawed the death penalty for the mentally
retarded. Defendants are considered retarded if they score 70 or less on
an IQ test and show poor life skills before age 18. State law also
requires that the IQ test be "individually administered by a licensed
psychologist or psychiatrist."
In McLaughlin's case, some disputed the validity of a test he took at age
It showed he had an IQ of 70, but it was given by a teacher.
The state's lawyers argued that the IQ test wasn't properly administered
and therefore could not be used as proof that he was mentally retarded. In
June 2003, Bladen County Superior Court Judge James F. Ammons Jr. sided
with the state, finding no credible evidence that McLaughlin scored an IQ
of 70 or less.
Ammons quoted the N.C. Supreme Court's description of McLaughlin as a
cold, calculating contract killer.
But U.S. District Judge Terrence W. Boyle noted that what state law
requires was not possible in the segregated Bladen County school that
McLaughlin attended in the 1960s. The school did not have psychologists to
administer IQ tests.
To require such conditions now under state law is unfair, Boyle reasoned
in his order Jan. 13.
"Where, as in this case, the absence of such a test has been shown to be
the result of illegal segregation of the public schools, imposing such a
requirement" is inconsistent with a U.S. Supreme Court decision in 2002,
The court's ruling in Atkins v. Virginia outlawed the execution of people
who are mentally retarded but let states set their own standards for
Boyle concluded that McLaughlin "has shown by a preponderance of the
evidence that he is mentally retarded." He ordered that McLaughlin's death
sentences be vacated and that he serve the rest of his life in prison.
The state's lawyers have not decided whether to appeal.
"It is absolutely a correct ruling based on both the law and the
evidence," said McLaughlin's lawyer, Jonathan E. Broun with the Center for
Death Penalty Litigation in Durham. "Elton McLaughlin was the type of
defendant that both Atkins and the North Carolina statute are supposed to
Broun and Chapel Hill lawyer J. Kirk Osborn represent McLaughlin. They say
McLaughlin didn't start school until he was 8 years old and was identified
as a special-needs student. He reads at a sixth-grade level and does math
at a 3rd-grade level.
On IQ tests over the years, McLaughlin has scored between 68 and 76, his
Murder for hire
McLaughlin was sentenced to death for a murder-for-hire plot to kill James
Elwell Worley, whose wife, Shelia Worley, wanted him dead. McLaughlin also
was sentenced to death for later murdering Shelia Worley because she
failed to pay him $3,000 and talked to police. At the same time,
McLaughlin killed Worley's 4-year-old daughter, Psoma Baggett.
Eddie Carson Robinson, McLaughlin's co-defendant in all three killings,
also has raised a mental retardation claim on appeal but has not had a
McLaughlin and Robinson are the only two death row inmates prosecuted by
Gov. Mike Easley, the former district attorney in Bladen, Brunswick and
Columbus counties. An Easley spokeswoman said it would be inappropriate
for the governor to comment on the ruling.
Bladen County District Attorney Rex Gore said 2 juries agreed that
McLaughlin should die for the crimes based on the nature of the killings,
the number of victims and McLaughlin's prior conviction of involuntary
manslaughter for killing another man.
"My main concern with this ruling is how it will affect other mental
retardation claims in North Carolina," Gore said. "It appears to me at
least to call into question the method we are using to determine mental
(source: News Observer)
More information about the DeathPenalty