[Deathpenalty] death penalty news----PENN., USA
rhalperi at mail.smu.edu
Wed Jun 14 18:08:19 UTC 2006
Defense tries to block death penalty
An attorney for a Fayette County man charged with homicide wants a judge
to block prosecutors from seeking the death penalty.
James W. VanDivner, 57, formerly of Point Marion, is charged with fatally
shooting his ex-girlfriend, Michelle Cable, 41, at her Grindstone,
Jefferson Township, home in July 2004.
District Attorney Nancy Vernon has said she will ask for the death penalty
if jurors convict VanDivner of 1st-degree murder.
Judge John F. Wagner Jr. entered an order Tuesday to schedule a hearing
for Aug. 29.
In a motion filed last week, defense attorney Dianne H. Zerega said
prosecutors failed at the August 2004 preliminary hearing to establish a
case for the aggravated factors alleged for a possible death sentence.
Zerega is handling the potential penalty phase of the case, while the
public defender's office is serving as VanDivner's counsel.
Zerega's argument is similar to a motion filed by attorney Mark Mehalov in
April on behalf of Edward A. Belch, 45, of McClellandtown, German
Township. Belch is accused of ramming his truck into a motorcycle ridden
by his ex-girlfriend, Terri Gresko, and Thomas D. Myers in May 2005.
Vernon also intends to argue for the death penalty if Belch is convicted
of first-degree murder in the double-homicide case. The motion in that
case is pending before Judge Steve P. Leskinen.
As part of the justification in the VanDivner case, prosecutors have
argued that the defendant had a significant history of felony convictions
involving the use or threat of violence against Cable.
Zerega contends the state's attorneys cannot add an element or an offense
to a case that already has been held for court. VanDivner is facing trial
for criminal homicide and the attempted homicide of Cable's son, William,
who survived a gunshot wound to his neck.
"The Pennsylvania death penalty statute presumes that life is the
appropriate penalty, that death is an enhanced penalty, and that any
factors which increase the penalty are elements of the offense that must
be pleaded and established in the normal course," Zerega said in the
Wagner approved Zerega's motion to hire a Pittsburgh psychiatrist at the
county's expense to evaluate VanDivner.
Lawson Bernstein, of the University of Pittsburgh School of Medicine, will
be paid $2,500 to complete an evaluation. The judge's order noted that
Bernstein also might be called to testify at trial.
Zerega has estimated that cost at another $2,500.
High court cautious about death penalty----In 2 narrow rulings, death-row
The U.S. Supreme Court took a cautious and narrow approach in two cases
handed down Monday that were, in different ways, related to debates about
the death penalty.
In Hill v. McDonough, it allowed a convicted murderer in Florida to use a
civil-rights law to challenge the state's method of execution, which is
In House v. Bell, Warden, it allowed a Tennessee death-row prisoner to
reopen his case on the basis of DNA evidence not available at the time of
Although written by Justice Anthony Kennedy, the opinions reflect what
seems to be the early tendency of the court under new Chief Justice John
Roberts - ruling narrowly so as to minimize the number of arguably
divisive 5-4 decisions.
In allowing Mr. Hill to pursue his claim - made widely and perhaps
buttressed by a 2005 article in the respected but not infallible British
medical journal Lancet - that the particular method employed by Florida
might cause unnecessary pain and thus violate the constitutional ban on
"cruel and unusual punishment," a unanimous court chose not to tip its
hand on that issue either way. Let the lower courts develop more factual
and scientific information, it seemed to be signaling, and then we'll
handle it, especially if there is disagreement among circuits.
We have long thought it was bizarre, if a state is going to take
somebody's life, to insist it be done without inflicting pain. There's a
case for striving for the least inhumane method, but the finality is the
significant fact here.
Thus the court's equally narrow and procedural ruling in the House case is
also welcome. Mr. House was convicted of a murder that took place 20 years
ago, but DNA evidence unavailable then showed the semen in the victim was
not his. Other problems with the evidence were uncovered, so many that
Justice Kennedy ruled Mr. House had met the stringent test of it being
"more likely that no reasonable juror would have found petitioner guilty
beyond a reasonable doubt." He will get a new trial.
That sounds like a reasonable standard for the use of DNA technology that
was not available when some people on death row were tried. It is morally
reprehensible to execute a person wrongfully, but DNA evidence is likely
to prove conclusive in a limited number of cases.
(source: Orange County Register)
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