death penalty news----TEXAS, DEL., USA, OHIO, FLA., N.C., OKLA.
rhalperi at mail.smu.edu
Mon Jan 30 16:12:07 CST 2006
Houston man set to die for double slaying
Prison inmate Jaime Elizalde Jr. readily admits his presence at a Houston
cantina was a violation of his parole, but he insists he had nothing to do
with the shooting deaths of two men there that night.
A Harris County jury, however, decided Elizalde was the gunman and should
be put to death for the 1994 slayings of Juan Saenz Guajardo, 29, and
Marcos Sanchez Vasquez, 33. He's set for lethal injection Tuesday at the
Huntsville Unit of the Texas Department of Criminal Justice.
Elizalde's execution would be the second this year in the state. 3 more
inmates have death dates in February.
"I was in the wrong place at the wrong time," Elizalde, 34, said in a
recent interview on death row outside Livingston. "I know it sounds like a
cliche, but it's the truth. The 2 men got killed, but I had nothing to do
Lawyers for the condemned prisoner were arguing in the courts that he
could be mentally retarded and ineligible for execution. The Texas Court
of Criminal Appeals rejected the claim Monday.
Attorneys also were challenging the lethal injection method as
unconstitutional, saying it caused pain and made his execution cruel and
unusual punishment. A federal district judge denied the appeal, sending
the case to the federal appeals courts.
The U.S. Supreme Court, in a Florida case, last week stopped an execution
and said it would review the lethal drug issue. Then days later, in an
Indiana case, the high court rejected a similar appeal and the prisoner
"Sometimes there is a rhyme or reason for when they grant relief,
sometimes there's not," said Philip Wischkaemper, one of Elizalde's
attorneys. "We're just going to have to see."
At the time of the killings, Elizalde had been on parole about 8 months
after serving almost four years of a 10-year term for cocaine possession
and auto theft, a conviction he picked up at age 17.
Jurors at his capital murder trial were told of his leadership in the
prison gang the Mexican Mafia and heard evidence of his involvement in
assaults while in prison, including the stabbing of another inmate.
"I've never considered myself a saint," Elizalde said. "I'm not a violent
person, but I will defend myself if pushed."
The owner of the bar and a family acquaintance of one victim, both
familiar with Elizalde, identified him as the gunman.
"It's not like they were two people who didn't know him," said Bill
Hawkins, the Harris County assistant district attorney who prosecuted the
Elizalde's father, who also was at the bar, was arrested in the case and
jailed for some 2 years before he was released because of insufficient
Authorities said the shooting culminated an argument the father had with
one of the victims a few days earlier. The younger Elizalde said he saw
several men leave after his father went outside to make a phone call, then
"I was worried more about my dad," he said. "I thought he was the one who
Elizalde was set to die in November but received a reprieve after
confessing to another killing that landed someone else in prison. He also
said the man convicted of that slaying was responsible for the two
killings that earned him a spot on death row.
When a judge called on him two weeks ago to testify about the other case,
he took the Fifth Amendment and refused to answer questions.
Besides the court appeals, Karen Parker, a San Francisco-based lawyer with
the Association of Humanitarian Lawyers, has filed a petition with the
Organization of American States to pressure Texas and the U.S. stop
The execution would be a violation of human rights laws the U.S. is
"trying to force other countries to comply with," she said.
On the Net:
Texas Department of Criminal Justice execution schedule:
Jaime Elizalde Jr.:
(source : Associated Press)
Case of slain teacher hits a snag----David Temple's trial in wife's death
is put on hold by witness problems
A former high school coach who was set to go on trial today, accused of
killing his pregnant wife more than seven years ago in their Katy home,
will have to wait until later this year to learn his fate.
David Mark Temple's highly anticipated murder trial is expected to draw
the attention of national news programs amid inevitable comparisons to the
widely publicized Laci Peterson case in California.
But the trial has been put on hold, possibly until late summer and perhaps
even next year, because of problems with a state witness who was supposed
to testify about gunshot residue evidence.
Attorneys on both sides could not comment on the delay because of a gag
Temple, 37, now living in Richmond, was arrested in November 2004 and
accused of killing his wife, Belinda. The 30-year-old Katy High School
teacher was found shot to death in their home on Jan. 11, 1999.
Harris County sheriff's detectives said Belinda Temple, 8 months pregnant
with the couple's second child, was hit in the back of her head by a
shotgun blast, apparently while on her knees in the master bedroom closet.
David Temple claimed he arrived home to find a partially open back door
with a broken window pane. He told detectives he found his pregnant wife
balled up on the floor of the closet upstairs.
But detectives said signs of a burglary at the house appeared staged. They
said gunshot residue was found on his jacket in the master bedroom, his
shirt in the downstairs utility room and one of his tennis shoes, found
outside the home.
In an arrest affidavit, detectives also cited an affair Temple had with a
co-worker in the days before his wife's death. He and that woman - Alief
Independent School District teacher Heather Scott Temple - are now
>From the day of his arrest, Temple's attorneys have said they were eager
to go to trial in hopes of clearing his name. Over their objections,
however, state District Judge William Harmon this month granted
prosecutors' request to delay the trial.
Prosecutors asked for more time because an FBI forensic scientist who was
expected to testify about the gunshot residue was transferred to another
division recently and is no longer certified to testify or perform lab
tests on such evidence, court papers show.
Another FBI employee - the agency's only analyst certified to work with
gunshot residue cases - will not be available for the trial because she is
due to give birth in February and will be on leave for 6 months, according
to court documents. Even after she returns, she must be recertified before
she can perform tests or give testimony.
Temple's attorney, Dick DeGuerin, opposed the trial's delay, saying the
residue analysis is unreliable and should not be admitted as evidence,
since it was tested by an FBI employee who no longer is certified.
DeGuerin also cited speedy-trial concerns, contending that prosecutors
have not made diligent efforts to summon that employee to testify.
Although DeGuerin lost his bid to move ahead with the trial, Judge Harmon
last week granted his request for a defense expert to witness any
additional gunshot residue tests that may be conducted.
The delay is the latest twist in a case that has been fraught with
surprises and difficulties.
Last year, a Texas inmate claimed in an affidavit that he heard someone
else confess to Temple's slaying. Prosecutors later sought unsuccessfully
to recuse Harmon as presiding judge after he gave an affidavit defending
prosecutor Kelly Siegler when the inmate filed a State Bar grievance
against her. The grievance was dismissed.
Defense attorneys also complained that prosecutors were not making all of
the evidence available to them.
Prosecutors have given notice that they will offer evidence of David
Temple's past troubles, including a 1984 incident in which he was accused
of pointing a shotgun at his brother, Darren. The brother has proclaimed
Temple's innocence in the murder case on national TV.
Prosecutors also plan to bring up Temple's 1987 conviction for vehicle
burglary during his days as a Katy High School football hero; an incident
of vandalism and theft targeting a former girlfriend in 1987; and his
fight with another player during an intramural co-ed basketball game at
Stephen F. Austin State University in 1991, court papers show.
Meanwhile, defense attorneys have issued subpoenas for the attendance and
disciplinary records of several former Katy High School students; records
of any students who met with Belinda Temple on the day of her death; and
the names, addresses and phone numbers of any meter readers who may have
worked in the Temples' subdivision or at their home on the day of the
(source: Houston Chronicle)
Capano appeals murder conviction, wants new trial
Thomas Capano filed an appeal with the U.S. District Court today seeking a
new trial on charges he murdered Anne Marie Fahey.
In the 7-page document, Capano argues his conviction should be overturned
because the trial judge did not allow the jury to consider lesser-included
charges at his 1999 trial. Capano attorney Joseph Bernstein charges this
violated Capano's right to due process and runs contrary to previous
Supreme Court rulings.
Earlier this year, the Delaware Supreme Court overturned Capanos death
Today's filing was expected and all the issues raised in the petition were
made by Capano's attorneys in state-level appeals.
"We've already litigated those issues so it is safe to assume our position
wont change," said Assistant U.S. Attorney Ferris Wharton, who prosecuted
Capano at the original trial.
Bernstein also argues in todays filing that it was improper for the trial
judge to allow hearsay statements by Fahey, to include evidence of other
"bad acts" by Capano and to allow prosecutors to question Capano about why
he invoked his right to remain silent after his arrest.
The "habeas corpus" petition also argues Capano had ineffective trial
counsel because his "dream team" of attorneys did not raise the above
issues at trial.
Finally, the petition argues state prosecutors should not be allowed to
re-try the penalty phase of Capano's case, exposing him to the possible
re-imposition of the death penalty. Bernstein argues that to allow the
state to do so would violate the ban on double jeopardy.
Wharton said prosecutors have not yet made a decision on if they will seek
the death penalty a 2nd time or have the judge impose a sentence of life
(source: The News Journal)
Let's go back to guillotine . . .
Recently, while I was scanning the national headlines on my computer's
home page, I came across one of the many controversial stories about
lethal injection. I was intrigued at how today's society had complicated
this procedure into a scientific experiment. Now, my personal opinions on
capital punishment aside, can we not find a simpler way to execute a
Although death by toxic gas, firing squad, electrocution and hanging are
all still practiced in the United States, I shall aim my attack at the
most commonly used and perhaps most overcomplicated method of modern
execution, lethal injection. I happen to be one of an estimated 22 percent
of Americans suffering from "aichmophobia," or a fear of needles, and can
think of nothing more terrifying than having an inexperienced orderly
inject an IV in my arm. Upon further research, I realized that people have
a skewed view of this painful practice.
The first misconception exists with the expertise of the administrator of
the fatal prick. Most of these "professionals" are nothing but prison
orderlies with minimal medical training beyond first aid. Due to
medical-ethics policies, trained doctors cannot participate in any of the
execution procedures. This results in poor implementation of the various
needles used, often improperly injected into a muscle or an undersize
vein, causing pain for its victim. In cases of such improper practice, the
lethal toxins can take over a half-hour to properly take effect, causing
great physical and mental strain on the prisoner.
In my pondering, I formulated an improvement upon our system. To my
understanding, billions of people have met their deaths in human history,
and less than 1 percent of those fell under the category of lethal
injection. I believe many problems in our capital-punishment procedure can
be solved with the use of the effective method of the guillotine. This
popular instrument of execution is most commonly associated with the
French Revolution, but was used in various parts of the world until 1877,
when its last assignment was carried out.
It's estimated that the guillotine was used for nearly 600 years. Why?
Because it was efficient. The guillotine is an all-too-appropriate machine
for the task it's designed to complete. It is a cheap, re-useable, easily
operated and nearly flawless in completing its objective. As has been
proven to me by various early-morning infomercials in the area of kitchen
appliances, we now have the technology to produce sharper blades. Such
technology would be useful in avoiding the much publicized "accidents"
involved with the original machine, in which total decapitation did not
occur. It is my belief that due to the speed of the blade drop and
immediate severing of the spinal cord, the prisoner would suffer an
instant and then have a painless death. This process would also eliminate
the several minutes of helplessness that occur during our current
procedures after the drug is injected and the irreversible sequence of
events is put into play.
Some people are quick to point out flaws in my point of view. One of the
most common arguments lies with the gruesome nature of such a practice. It
is my belief that death, being the highest form of punishment that can be
sentenced by our government, should be as simple and painless for the
condemned as possible. Another objection people have is about what the
witnesses must view and the extensive cleanup. Death is not a spectator
sport and should not be adjusted for the entertainment value of others. As
for the cleanup, I have witnessed far gorier scenes on prime-time episodes
of "CSI." The truth is that there are many professions in which such
violent and bloody scenes are all too common. Those who are immune to the
graphic nature of the practice would handle such situations.
The truth is that in today's society, murder by the court has been deemed
acceptable. I find the current means inhumane and brutal. Once one is
sentenced, the manner in which the punishment is carried out should result
in as little suffering for its victim as possible. It is my firm belief
that in a country where lethal injection, electrocution, gassing, firing
squad and hanging are all acceptable and practiced forms of capital
punishment, in the event a more appropriate solution is presented, i.e.
the guillotine, it must be considered as an alternative. It is my belief
that for the sake of the prisoner, who is the only one whose care and
comfort should be considered, such a choice should be presented. Although
the view of capital punishment will never be unanimously supported, maybe
we can agree on a more decent execution of this practice.
(source: Fort Wayne News Sentinel - By Josh Cocks, a staff writer for the
Leo High School Lion's Tale)
Its not our problem, is it? -- a simple observation
One of you 2 is going to hang for this. Since you're the nigger, you're
This is not the climax of an overly-dramatic made-for-television movie.
Nor is it an irrelevant memory confined to the pages of a history book.
Instead, these were the very real and horrifying words of a Texas police
officer. They were directed at Clarence Brandley, an innocent black man
sentenced to death.
They offer the truest glimpse of the discrimination within our society
that has infected our justice system. After 10 years of community outrage
and protest, Brandley would escape his legal lynching. In 1990 Brandley
became one of the lucky few, a group of 122 people exonerated prior to
execution in the United States since 1973.
Its a terrible irony that there would ever be a circumstance under which a
man who had been stripped of 10 years of his life would be considered
"lucky." But the reality is that Brandley has regained some semblance of a
life while there remain innocent individuals still waiting in the shadow
of their impending death.
I've imagined myself in Brandleys position - to be in a situation where
every day offers only another opportunity to think about societys
Whatever your beliefs regarding the effectiveness or righteousness of the
death penalty, it is an indisputable truth that innocent individuals are
being put to death.
Advocates justify the spilling of innocent blood as an unavoidable,
unintentional consequence of human fallibility. In recent years, however,
study after study has revealed that the execution of innocents is about as
intentional as murder can be.
>From the illegal misconduct of district attorneys to the abusive
investigative tactics of police departments to the racially-based
selection of jurors, racial discrimination is poisoning the justice system
at every level.
Statistically, being black is more of an aggravating factor than "causing
great fear, harm or pain" or "committing a murder with another felony,"
and just behind "murder with torture" (see www.deathpenaltyinfo.org). In
Philadelphia, a black man convicted of the same crime as a white man is
3.9 times more likely to receive a death sentence.
Compounding the problem, and an injustice in and of itself, is the
inherent discrimination of a system that refuses to pay reasonable
compensation for public defenders. The justice system, instead, provides
the least-qualified, most reprimanded attorneys to defend the poor.
How telling is it that when a black man can afford the best the system has
to offer, we call it the "trial of the century?" But when a
court-appointed attorney fails to do any pre-trial investigation and is,
therefore, unable to tell the jury that another man has already confessed
to his clients alleged crimes, we disregard it as an aberration. Ronald
Williamson spent 11 years on death row for that "aberration."
When Johnny Cochran tells the jury "if it doesn't fit, you must acquit,"
we scoff at the possibility that a black man is going to get away with
murdering a white woman.
But when a poor man can't afford the eloquence and legal maneuvering of
the "Dream Team" when, instead, he is provided with an attorney who offers
no mitigating evidence at a sentencing hearing and closes with the 26-word
argument, "You are an extremely intelligent jury. You've got that mans
life in your hands. You can take it or not. That's all I have to say" -
there is no public outrage.
Jesus Romero was sentenced to death at that hearing and executed in 1992.
And when a wealthy black man is found innocent of murder, we speak of
injustice and question the integrity of the system. But there is no outcry
when Aden Harrison, Jr., a young black man, is forced to put his life in
the hands of a court-appointed attorney who served for 18 years as an
Imperial Wizard of the Ku Klux Klan.
With a reality this surreal-for these injustices and hundreds more-why
aren't we asking questions?
Because weve determined that theres only one question worth asking: "Why
should we change a system that discriminates in our favor?" The answer to
this question has for decades now provided the leaders of North Carolina
the motive for delaying at every turn even the admission of the
possibility that the death penalty may be discriminatory.
And isn't that a valid motive?
I mean, I can certainly understand their perspective.
My Duke education will undoubtedly grant me financial security.
So why should I give a damn about the death penalty?
This is Brandleys problem. This is Williamson and Harrison's problem. This
is - scratch that - was Jesus Romeros problem. It's not mine, and it's not
(source: The Chronicle -- Daniel Bowes is a Trinity junior. His column
runs every other Monday----Duke University, North Carolina)
Clemency board rejects mercy for killer of 2 women
The Ohio Parole Board on Monday voted against granting clemency to a
condemned killer scheduled to die Feb. 7 for raping and killing 2 women 20
The board voted unanimously against mercy for Glenn Benner, 43, who had
not sought clemency.
Benner was convicted of kidnapping, raping and murdering Cynthia Sedgwick,
26, in August 1985 in woods at the Blossom Music Center near Akron where
she had attended a concert. He also was convicted of raping and murdering
a friend, 21-year-old Trina Bowser, in Akron in January 1986.
Benner also was convicted of raping and trying to kill 2 other women in
the months between the killings, but not sentenced to death in those
The board said there was no doubt about Benner's guilt and no
circumstances in his life that would outweigh the seriousness of what he
"Benner committed heinous crimes against innocent female victims," the
Gov. Bob Taft can accept the recommendation or change the sentence to life
in prison without parole.
Benner has said he didn't seek clemency because the process doesn't take
into consideration whether inmates have changed while incarcerated. He
added that he didn't want to cause the families of his victims further
If executed, Benner would become the 20th man put to death in Ohio since
1999, when Ohio resumed carrying out executions.
(source: Associated Press)
Federal court denies Rutherford appeal, another pending
Convicted murderer Arthur D. Rutherford lost a federal appeal Monday, one
day before his scheduled execution, but he had another pending, one of his
If that fails, the Vietnam veteran will appeal to the U.S. Supreme Court,
which last week stayed the execution of another Florida death row inmate
on an issue Rutherford also has raised, that the state's lethal injection
procedure is cruel and unusual punishment.
"We're just waiting to see what happens," attorney Linda McDermott said.
The 56-year-old carpenter was convicted of killing and robbing Stella
Salamon in 1985 at her home in Milton, where he had done repair work for
her. She had been strangled or asphyxiated and her body was found in a
The U.S. Supreme Court granted a last-minute stay of execution to Clarence
Hill last week so the justices can determine whether the 11th U.S. Circuit
Court of Appeals in Atlanta erred by denying him a chance to appeal the
lethal injection claim.
The 11th Circuit was taking another look at the issue in Rutherford's
Hill, 48, of Mobile, Ala., had fatally shot a Pensacola police officer
during a 1982 bank robbery. He was strapped into a gurney with intravenous
lines attached to his arm Tuesday when Justice Anthony M. Kennedy granted
a temporary stay. The full court the next day extended the stay to give
lawyers time to present their arguments.
Gov. Jeb Bush, speaking in Tampa, said Monday that he hopes the court
doesn't wait until the last-minute to spare Rutherford.
"I hope they don't do it while the guy's on the gurney. There's got to be
a little better system. It was very frustrating, I'm sure, for all parties
.... when there was a delay and then a stay. Hopefully the courts can make
these decisions a little bit earlier in the day," Bush said.
Attorneys for the 2 inmates contend that a cocktail of 3 chemicals used by
Florida and several other states can cause excruciating pain. A study
published in The Lancet medical journal last year by a University of Miami
researcher found that a painkiller is likely to wear off before a 2nd
chemical causes the inmate to suffer a heart attack. The 3rd chemical
paralyzes the inmate so he cannot react to or express the pain, according
to the study.
The Florida Supreme Court refused to grant Hill or Rutherford a trial
court hearing to present evidence on the issue, concluding that the study
was inconclusive. The state justices Friday also rejected Rutherford's
claim that new evidence might exonerate him. His lawyers had argued a key
prosecution witness with a history of mental problems had changed her
story at least twice since the trial. In one version she told a former
housemate, now in prison, that she had killed the victim, but she later
denied making such an admission. (source: Associated Press)
Students Call for Death Penalty Moratorium
Some UNC-Chapel Hill students are joining calls for a moratorium on the
death penalty in North Carolina.
A handful of members of the student organization Campaign to End the Death
Penalty held a rally outside the State Capital in Raleigh this morning.
They want Governor Mike Easley to stop executions for 2 years.
"A majority of North Carolinians support this issue. Even those that
support the death penalty are willing to say, look, let's halt
executions," said the group's Ryan Presley. "Let's look at the problems
with fairness, costs, racial disparity. Let's look at these issues, and
after 2 years of analysis, let's go from there."
The students shot a documentary to help advance their cause. After the
rally, the delivered the video to the governor's office.
(source: ABC News)
Lone tribe has death penalty
When a Cache man was implicated in the death of his girlfriend in January
2005, prosecutors indicated he could face the death penalty.
No such comments were made in August after a Fort Cobb father was arrested
in the deaths of his 3 children.
The difference was a realization the death penalty is not an option in
most murder cases that end up in federal court because they happened on
Only one of 562 recognized tribes -- the Sac and Fox Nation of Oklahoma --
opted to allow the death penalty when the government modified the list of
crimes punishable by death in 1994.
That means life in prison is the harshest punishment for Jon Kent Red Elk
and Dean Robert Payne if they are convicted of 1st-degree murder.
Red Elk of Cache is charged with 1st-degree murder after the January 2005
death of his girlfriend on Comanche Nation land. He contends he only
helped her commit suicide.
He is awaiting trial as the 10th U.S. Circuit Court of Appeals considers
an evidentiary issue in his case.
Payne, a member of the Comanche Nation, told authorities he planned to
kill his children and then himself because he was upset over marital
problems. He survived his suicide attempt and faces murder charges in
federal court in Oklahoma City.
His attorney has indicated he will pursue an insanity defense at his
February trial. His case is in federal court because the crime was on
"Under the law, the death penalty is not an option" in such cases, Justice
Department spokesman John Nowacki said.
States take action
Since 1976, when the Supreme Court ruled the death penalty was
constitutional, 38 states and the federal government have authorized its
use in certain criminal cases, according to Justice Department records.
Congress modified the government's list of crimes punishable by death in
1994, opening the door for Indian tribes to opt in, as well.
Former Sac and Fox treasurer Truman Carter said it was a simple decision
for the tribe, which historically has been strict about law and order. It
was the 1st tribe to establish a full police department and court system.
Carter said the number of violent crimes on Indian land was rising when
the death penalty discussion began more than a decade ago. He said Sac and
Fox leaders unanimously passed a resolution to allow the death penalty for
murders committed on its land, which occupies part of Lincoln, Payne and
"We wanted that sanction, the death penalty, to be an option," said
Carter, a Shawnee attorney who specializes in federal Indian law.
Other tribes have not followed suit.
Caddo Nation Chairwoman LaRue Martin said she doesn't remember the tribe
considering the death penalty, likely because there weren't any crimes on
tribal land to spur such talk.
Martin said there still appears to be no interest in allowing the death
penalty, even after 3 children who were members of the Caddo Nation were
killed by their father.
Most tribes refused to consider the death penalty because their members
believe the punishment is imposed more often on Indians.
Attorney Ken Bellmard, who has worked for more than a dozen tribes, said
most tribes had discussions about the death penalty when Congress made it
available to them in 1994 but never really considered it.
Melissa Tatum, a professor at the University of Tulsa's Native American
Law Center, said tribes balked because a disproportionate number of
American Indians are already tried in federal court.
Federal courts have jurisdiction in prosecuting most serious crimes that
occur on Indian land, so more Indians end up there.
"Most tribes don't view the death penalty as appropriate, given those
circumstances," she said.
Tribes historically vary on whether to allow the death penalty, Tatum
said, but there is not any cultural objection to it.
Many formerly had some form of capital punishment.
She said there are several documented instances from the 1800s when the
Muscogee (Creek) Nation executed people convicted of larceny for the third
Others chose less harsh methods of punishing members guilty of serious
(source: The Oklahoman)
More information about the DeathPenalty