[Deathpenalty]death penalty news----TEXAS, N.C., NEV., N.J.
rhalperi at mail.smu.edu
Sat Mar 4 13:09:48 CST 2006
Appellate court orders new trial of death row inmate
A federal appeals court has ordered a new trial for a death row inmate
convicted in the slayings of a woman, her daughter and 4 grandchildren. A
3-judge panel from the 5th U.S. Circuit Court of Appeals found prosecutors
withheld 2 statements that could have swayed jurors during the trial of
"If the two statements had been revealed, the defense's approach could
have been much different and probably highly effective," Circuit Judge W.
Eugene Davis wrote in the unanimous opinion released Friday.
Graves, 40, was convicted in 1994 for the deaths of Bobbie Joyce Davis,
45; her 16-year-old daughter, Nicole; and four grandchildren between ages
4 and 9. The victims were shot, stabbed and beaten on Aug. 18, 1992 and
their home was set on fire to conceal the crime.
The only evidence linking Graves to the crime was the testimony of
co-defendant Robert Earl Carter.
On the night before the trial, Carter told then Burleson County District
Attorney Charles Sebesta: "I did it all myself, Mr. Sebesta. I did it all
myself." However, Sebesta didn't tell Graves' attorney about the
Carter implicated his wife, Theresa, as an accomplice in the deaths, but
Sebesta also failed to disclose that.
Carter also was convicted of the murders and executed in 2000. He
proclaimed Graves' innocence before his execution.
The appellate court's decision gives the Texas Attorney General's Office
180 days to appeal or schedule a new trial.
(source: Associated Press)
Death-row inmate may get a new trial----Graves deprived of key evidence,
appeals court says
Prosecutors withheld 2 statements that could have changed the minds of
jurors who convicted Anthony Graves of killing a woman and 5 children in
Burleson County 12 years ago, a federal appeals court ruled Friday.
The ruling by a e-judge panel of the 5th U.S. Circuit Court of Appeals
overturned a decision by a Galveston federal judge and ordered a new trial
for Graves, 40, who has been on death row since his conviction.
The appeals court said in a 22-page opinion that the withheld statements
could have discredited testimony by the state's key witness, Robert
Carter, who was executed for the slayings.
Although Carter's testimony convicted Graves, he proclaimed Graves'
innocence moments before his execution.
The appeals court said that Charles Sebesta, then district attorney for
Burleson and Washington counties, failed to tell Graves' lawyers that the
night before the trial, Carter said: "I did it all myself, Mr. Sebesta. I
did it all myself."
Sebesta also failed to disclose that Carter had implicated his wife,
Theresa, as an accomplice in the slayings of Bobbie Joyce Davis, 45; her
16-year-old daughter, Nicole; and 4 grandchildren between 4 and 9 years
They were shot, stabbed and beaten to death Aug. 18, 1992, and their house
doused with gasoline and burned to cover the crime.
"If the 2 statements had been revealed, the defense's approach could have
been much different and probably highly effective," Circuit Judge W.
Eugene Davis wrote in the unanimous opinion for judges Jacques L. Wiener,
Jr. and Emilio M. Garza.
The appeals court decision overturns a recommendation by U.S. Magistrate
Judge John Froeschner that was adopted by U.S. District Judge Samuel Kent.
That opinion said that Sebesta had erred by withholding the statements,
but that the 2 statements would not have changed the guilty verdict.
Graves' attorneys acknowledged that it may be some time before he gets a
The decision means that the Texas Attorney General's Office has 180 days
to appeal the decision or schedule a new trial. Attorney General's Office
spokesman Tom Kelley said the office had not yet reviewed the opinion.
Sebesta declined to comment. "I really need to take a look at it and see
what they said," he said.
The former district attorney has never wavered in his belief that Graves
One of Graves' attorneys, Roy Greenwood, said the state's chances of
getting a rehearing were slim because of the quality of the opinion.
"This one is tight and fact-filled and there are not any questions of new
law," Greenwood said."I wouldn't think in a million years they would
"I am stupendously shocked," said Graves' other attorney, Jay Burnett. "We
thought our last ditch effort would be in the Supreme Court of the United
Greenwood said that prison rules prevented him from speaking with Graves
by phone late Friday, but that a prison official had promised to relay the
information to him.
Graves' mother, Doris Curry, 58, said, "I'm so overwhelmed. I just don't
know. It's making my life so much better."
Curry said she had dreamed the night before that her son was about to be
executed, but "the doctors walked away and wouldn't do it. That was my
Students from professor Nicole Casarez's journalism class were celebrating
the news in her office at the University of St. Thomas with a bottle of
champagne. The students, participating in the University of Houston's
Innocence Network, had amassed new information in the the last 3 years
they say shows Graves is innocent.
Burnett said the state could ask for an en banc hearing, which is a
hearing by the full 5th Circuit. If they failed there, they could go to
the U.S. Supreme Court.
"The bottom line celebration will be when it gets to state district court
and they say we're not going to retry this case and it's dismissed,"
Greenwood said. "That's the true victory."
Capital murder charges filed in Heights robbery-slayings
Capital murder charges were filed against a 33-year-old man Friday in
connection with the fatal shooting of an engaged couple who had just
returned to her townhome after a Christmas party late last year.
Larry Joseph Tillman Jr., who was arrested Thursday according to court
documents, and charged with capital murder Houston police said.
Police say he robbed and then killed Amandre R. Wilson, and her fiance,
Joseph M. Liebetreu, on Dec. 22. The couple were found slain inside her
Heights-area townhome at 3915 Floyd, after they had attended a formal
Homicide investigators had said there was "a strong possibility" the
couple had been followed before the home-invasion robbery by "several
Sgt. Nate McDuell, a spokesman for the Houston Police Department, said
robbery is considered the motive in the case.
Tillman's arrest is a result of information "received from the public
through Crime Stoppers," McDuell said. Additional suspects are being
Anyone with information about the case is urged to call Crime Stoppers at
713-222-TIPS, or the HPD homicide division at 713-308-3600.
(source for both: Houston Chronicle)
Wamsley guilty in parents' slayings
In Fort Worth, a jury found Andrew Wamsley guilty of capital murder in the
deaths of his parents Friday.
Prosecutors said the 21-year-old conspired with friends to fatally shoot
and stab his parents, Rick and Suzanna Wamsley, in their Mansfield home in
December 2003 so that he could collect on their $1.65 million estate.
The sentencing phase is scheduled to begin at 10 a.m. Monday. Wamsley
faces life imprisonment or the death penalty.
In their closing arguments Friday, prosecutors said Wamsley had his
parents killed and might have gotten away with it had it not been for an
accomplice who eventually became a key witness.
The prosecution's case heavily relied on the testimony of Wamsley's friend
Susana Toledano, 21, who has admitted to shooting and stabbing Wamsley's
Toledano's hair was found in Rick Wamsley's clenched hand.
Toledano has testified that Andrew Wamsley and his girlfriend, Chelsea Lea
Richardson, 21, pressured her into shooting and stabbing the Wamsleys.
Richardson was sentenced to death in May for her role in the killings. She
is the 1st woman to receive a death sentence in Tarrant County.
During the trials of Wamsley and Richardson, Toledano detailed all of the
roles in the killings.
Toledano pleaded guilty to murder in January 2005 in the couple's deaths
in exchange for her testimony. She testified earlier this week that she
expects to receive a 30-year sentence in exchange for her testimony.
However, if she does not cooperate, she also could face a death sentence.
"I'll be honest to you, she's not the brightest person in the world,"
prosecutor Page Simpson said during closing arguments. "She's clearly not
the mastermind of this plan and without her he may have succeeded. He may
have gotten away scot-free."
Wamsley's attorney David Pearson told the jury not to trust "a liar." He
also told the jury that the state's only evidence was testimony from
someone who has admitted to her participation in the killings and is only
trying to better her possible life sentence.
"Where is the cart full of evidence that shows Andrew is guilty?" Pearson
asked. "There is none."
(source: Fort Worth Star-Telegram)
Battle over judge ballot percs up GOP primary----Holcomb, Francis overcome
Keel's petition challenge to make it a race.
2 challengers hope to unseat Texas Court of Criminal Appeals Judge Charles
Holcomb in a Republican primary that's a spicy departure from the court's
frequently bland campaigns.
The drama began in January when Holcomb was removed from the ballot after
challenger Terry Keel of Austin uncovered problems with Holcomb's
candidacy petitions. The same fate befell Robert Francis, a Dallas
district judge, after Keel challenged those petitions as well.
Francis and Holcomb appealed, losing twice before ultimately regaining the
ballot with a Texas Supreme Court decision.
Through it all, Holcomb has adopted a laid-back campaign style, doing no
active fundraising and choosing to let his incumbency speak for itself. He
estimated that regaining the ballot cost more than $20,000 in legal fees,
which will come from his own pocket.
"I had to fish or cut bait, and I felt we were right," Holcomb said.
If re-elected, Holcomb would reach mandatory retirement age 20 months into
his six-year term, requiring the governor to appoint a replacement.
Holcomb said he is running because he enjoys the job and believes he does
it well, drawing on a legal career that began in 1959.
"I don't think anyone said I'm a bad judge. It's just my opponents seem to
think that I ought to retire," Holcomb said.
Though targeting an incumbent, neither Keel nor Francis has anything
negative to say about Holcomb, reserving their barbs for each other in a
debate over qualifications.
"I've got 20 years of experience in the criminal courts and 10 years as a
trial court judge," Francis said, adding that he has prosecuted one death
penalty case and presided over 3 as judge. The 9-member Court of Criminal
Appeals handles death-penalty appeals.
The appeals court also passes judgment on the trial courts, so it needs
judges with trial-court experience, Francis said. "If someone was to say,
'Here are the qualities we would want in a judge on this bench,' I've got
them, and nobody else who can serve a full term has those."
Keel, a 5-term state representative and former Travis County sheriff, said
his varied rsum is not hurt by a lack of judicial experience.
"I think I can bring to the court a breadth of experience as a prosecutor,
defense attorney, law enforcement officer and lawmaker that the court
doesn't have," he said. "And the court sorely needs that kind of practical
Francis, Keel said, is questioning his lack of judicial experience because
"he has none of the other credentials."
Holcomb said he is content to stay beyond the fray, though he wasn't
averse to taking a swipe at Keel.
"I know Judge Francis has been a good trial judge," he said. "I know
nothing about Mr. Keel. I remember Texas Monthly rated him one of worst
legislators. Naturally, I don't have fond feelings for somebody who caused
me to spend my money like he did."
The magazine, while praising Keel's work on drug task forces, placed him
in the bottom 10 list in 2005 for killing two major bills, including a
judicial pay raise, because of what he saw as bad-faith negotiating from
Francis said the Texas Monthly list raises questions about Keel's
temperament as a judge.
Keel's responded: "People ought to hope that they get some zeal in that
court from whoever's elected and not more of the same, which is basically
what Francis is offering."
A primary runoff election will be held April 11 if no candidate gains more
than half the votes. The winner will face Libertarian Dave Howard, a Round
Rock lawyer, in November.
(source: Austin American-Statesman)
Give Yates' justice a chance
While Andrea Yates awaits her fate in the courtroom, she remains in a
state mental hospital where she receives needed medication and treatment
for a serious mental illness. This illness, which at times has included
symptoms of psychosis, was well-documented prior to the deaths of her
children. When severe mental illness results in such tragedy, justice is
best served through long-term treatment like that which Yates is currently
When Yates returns to the courtroom this month, she will face a serious
handicap to justice. Jurors in the case will likely be unaware of the
consequences of returning a verdict of not guilty by reason of insanity,
and the current penal code bars the judge from instructing them. Her
jurors may never learn that release in the case of not guilty by reason of
insanity acquittal is not automatic. In fact, the penal code is designed
to protect public safety. The court can maintain jurisdiction over the
acquitted individual for as long as the sentence would have lasted in a
guilty verdict. Additionally, before release, individuals receive expert
assessment as to their potential safety risk to the public and the
likelihood of their compliance in outpatient treatment.
In cases where serious mental illness has affected the criminal conduct of
an individual, jurors need this information in order for justice to
We all have a stake in the disposition of Andrea Yates' case: that current
scientific understanding of mental illness will prevail in our criminal
BETSY SCHWARTZ -- executive director, Mental Health Association of Greater
(source: Letter to the Editor, Houston Chronicle (March 3)
Young hearing postponed until Thursday afternoon
A 22-year-old death row inmate's appellate hearing has been postponed
until 1:30 p.m. Thursday by attorneys who still want to quiz an East Texas
couple who didn't appear during two days of the hearing this week.
Assistant District Attorneys Ralph Petty and Eric Kalenak and Fort
Stockton defense lawyer Ori White asked 238th District Court Judge John
Hyde for the continuance Friday, saying the testimony of defense witnesses
Darnell and Patricia McCoy of Longview is relevant to Clinton Lee "Clint"
Young was convicted of capital murder two years ago in Hyde's court and
given the death penalty for shooting Doyle Douglas of Ore City and Samuel
Petrey of Eastland during a November 2001 carjacking spree.
The Texas Court of Criminal Appeals last September rejected Young's broad
appeal on 34 alleged points of error and Hyde is conducting the habeas
corpus appeal to which he is entitled in the court of origin on any
possible major trial errors or constitutional violations to bring the
legality of his detention into question.
If unsuccessful here, Young may appeal to the 5th U.S. Circuit Court of
Appeals in New Orleans or the U.S. Supreme Court in Washington.
Young's brother Dano of Alvarado testified Thursday that an Austin private
investigator took him on a two-day crack cocaine and drinking spree last
summer to get him to sign an affidavit accusing their father of childhood
However, Dano Young recanted the statement and said his father William of
Irving had never committed such abuse. The elder Young also took the stand
to deny the allegations.
Hyde said the attorneys would decide if investigator Lisa Milstein is
summoned to testify next week.
(source: Midland Reporter-Telegram)
Lawsuit says executions offend Christians
A judge says that a Cary man who sued North Carolina, claiming that
executions offend Christians, has until Monday to file more information
before a decision is made on the lawsuit.
In his lawsuit, Jim French says that state executions violate his
religious freedom, but he never made that argument during a 30-minute
hearing Thursday before Judge Robert Hobgood of Superior Court. Instead,
French used up his allotted time challenging the statutes that govern
He questioned the state law that allows the warden of Central Prison to
"obtain and employ the drugs necessary to carry out" the death penalty.
French said that correctional officers are non-medical personnel and
cannot carry out the duties of medical personnel.
His time ran out before he could argue the religious basis of his
challenge, in which he wants to end what he calls the "Last Supper" of
Condemned prisoners get a last meal just a few hours before they are
executed. French says that the custom is similar to the Biblical story of
the death of Jesus, who held a Passover meal with his disciples before he
An attorney for the state argued that French lacks standing to file the
(source: Associated Press)
Death row inmates may see a ray of hope -- Ruling could save 40 condemned
When the Nevada Supreme Court ruled in December that a common way
prosecutors pursue the death penalty is unconstitutional, the justices
wrote that the ruling's impact will be "so slight" that it will only
affect "a few" cases.
"A few" may turn out to be 40 of the 84 inmates on death row.
The court is being asked to apply its ruling in convicted murderer Robert
Lee McConnell's case to others, and defense attorneys hope the justices
will make the case retroactive.
Steven Owens, chief of the Clark County district attorney's appellate
office, said if the court issues such a ruling, which he said wouldn't be
a surprise, it would give hope to 40 inmates on death row.
Defense attorneys involved in death penalty cases pending before the court
Lynne Henderson, a professor of constitutional and criminal law at Boyd
Law School, said the ruling shows that "Nevada is simply catching up to
other states in how it treats the death penalty."
"There has been a shift growing in the country in attitudes toward the
death penalty because it's so haphazard and unprincipled," Henderson said.
Before the court's unanimous ruling, prosecutors had been able charge a
person with 1st-degree murder for a killing that occurs while another
felony is being committed, even if the killing isn't premeditated, and
then use that crime as an "aggravator" to qualify the person for the death
That didn't help McConnell, who had pleaded guilty to 1st-degree murder,
but it opened the door for others.
District Judge Michelle Leavitt ruled last month that Michael Mulder, who
was sentenced to death for robbing and killing a 77-year-old man a decade
ago, should get a new penalty phase because of the Supreme Court ruling.
And she essentially said the decision should be applicable to all cases.
"I think this is the test case," attorney Christopher Oram, who represents
Mulder, said. "All the people who are sitting in death row based on
aggravators that are related to the crime itself will now have another
shot at life."
Leavitt also ruled that Randolph Moore, who was sentenced to death for his
role in killing three people in 1984, should have a new penalty phase.
Owens has appealed Leavitt's decisions to the state Supreme Court.
Last week Special Public Defender David Schieck argued before the Supreme
Court that a new penalty phase should be given to James Chappell, who in
1995 killed the mother of his three children because prosecutors used
aggravators that came out of the crime.
Schieck said he believes the justices will say their ruling is
"retroactive to all cases."
Owens said that based on the past 20 years of Nevada Supreme Court
rulings, he wouldn't be surprised if it issued a sweeping ruling that gave
new hope to the 40 death row inmates in question.
"In my opinion all the justices' rulings in death penalty related cases
over the years have limited the abilities of district attorneys to pursue
the death penalty," Owens said. "To my knowledge there have been no
rulings that have expanded those abilities."
Owens says the result of the rulings in cases such as McConnell's makes
prosecutors "the scapegoat, like we are doing something wrong."
"We have no problem with the court changing the law, but when they go back
and rewrite 20 years of jurisprudence I start getting afraid the public
will begin to lose faith in the justice system," Owens said. "The law has
to stand for something, and at the rate we're going I'm not sure what it
will take for death penalty cases to stand."
Schieck took issue with Owens' contention.
"They (prosecutors) seek the death penalty in cases where the death
penalty is not even remotely appropriate and to question the Nevada
Supreme Court's actions in acknowledging this is totally disingenuous,"
Clark County Public Defender Phil Kohn said in his opinion the justices
"are not trying to get rid of the death penalty, but instead to make sure
it is applied correctly in Nevada and only used in cases that are the
worst of the worst."
Kohn, however, doesn't think the high court's ruling will be interpreted
narrowly when it comes to revisiting previous cases.
Henderson said she doesn't believe the state's justices are employing an
agenda to abolish the death penalty in their recent rulings, but instead
trying to provide sounder guidelines.
"They (the Supreme Court justices) still uphold a great deal of death
penalty convictions, but at this moment in history the high court is just
trying to provide more guidance and exercise more caution in regards to
the death penalty," Henderson said. "I see no evidence that the state of
Nevada is going to abolish capital punishment at any point in the near
(source: Las Vegas Sun)
How can a serial killer escape the death penalty? Tell police how he
murdered his patients
A male nurse who admits killing up to 40 patients with lethal injections
has been spared a similar fate through an extraordinary plea bargain in
which he pledged to help to identify his victims.
Charles Cullen, 46, a loner with a history of depression and suicide
attempts, will escape the death penalty in return for pleading guilty to
at least 29 murders and co-operating with investigators looking into other
Cullen says that he poisoned up to 40 people with hard to-detect
medications - usually the heart drug digoxin - during a 16-year career
working night shifts at ten nursing homes and hospitals in New Jersey and
He has told authorities, however, that he cannot remember the names of 4
of his victims and that he randomly injected insulin into intravenous
medical bags without knowing which patient they were for.
Prosecutors in all seven counties where he worked have agreed to spare his
life in return for his help in identifying all those he killed.
As the families of victims harangued him as a "monster," "one pathetic
little man," and "Satan's son," Cullen was sentenced on Thursday to 11
consecutive life terms for 22 murders and 3 attempted murders in Somerset
County, New Jersey. That meant that it would be 397 years before he became
eligible for parole.
He is due to be sentenced next Friday for 7 more murders and 3 attempted
murders in Pennsylvania.
Investigations remain open in 2 other New Jersey counties, complicated by
the destruction of medical records and the uncertainty of Cullens memory.
Cullen is one of the worst serial killers discovered inside Americas
health-care system, but he is not alone. Since 1975 there have been about
20 cases of medical personnel involved in the deaths of patients,
including a notorious 1987 case in which Donald Harvey, a nurse, was
sentenced to life in prison for killing at least 34 patients in Ohio and
Cullen was fired from 5 nursing jobs and resigned from 2 others amid
questions about his conduct but he always found another job, partly
because hospitals kept quiet to avoid being sued.
He went on a murder spree in December 2003, killing 13 patients in less
than a year at the Somerset Medical Centre in New Jersey. He was caught
when hospital officials discovered unusually high levels of digoxin in the
He told police after his arrest that he had targeted "very sick" patients
for what he described as mercy killings.
The facts contradicted his claim. His youngest victim was a 21-year-old
student named Michael Strenko, who had been admitted to hospital for a
non-fatal blood disorder that required doctors to remove his spleen.
Cullen also killed a 22-year-old car crash victim, Matthew Mattern, who
was in hospital with severe burns.
Norman Menz Jr, for the prosecution, told the court that even after
meeting Cullen several times, he could not determine his motive.
"There was something greater going on in Charles Cullen's mind than simply
the desire to put people out of their misery," he said. "He killed because
Cullen, looking gaunt as he appeared in court in a bulletproof vest and
leg shackles, kept his head bowed throughout the 3-hour sentencing
hearing, ignoring the anguish of victims relatives as they described him
as "vermin", "garbage" and a monster who had ruined their lives and
shattered their faith in the medical profession.
When asked to make a statement, he muttered: "I have nothing to say."
The Superior Court judge Paul Armstrong told an emotionless Cullen as he
passed sentence: "You betrayed the ancient foundations of the healing
Several of the victims' relatives said that they wished Cullen could die
by lethal injection as their loved ones had done. "There is part of me
that would like to see you put to death," John Shanagher, who lost his
father, John, said. "A part that would appreciate the irony of you dying
by lethal injection."
Dolores Stasienko, whose father, Giacomino Toto, was also among the
victims, said: "Sometimes, he probably believed he was an angel of mercy.
Let us correct him: he was an agent from the deepest depths of hell."
Cullen, whose hair has changed from grey to white since he first appeared
in court, originally wanted to stay away from the hearing and to be
sentenced in absentia. He agreed last week to appear for sentencing if he
was allowed to donate a kidney to a relative of a 1-time girlfriend.
Johnnie Mask, his lawyer, said that Cullen was willing to meet families
out of the spotlight of the media but had been rebuffed. "They don't want
to talk to him," he told reporters. "They really don't."
THOSE WHO PAID THE ULTIMATE PRICE
Since 1985 several people in the US have been executed for offences
committed when they were 17, including Frederick Lashley, of Missouri, who
had been abandoned by his mother, become an alcoholic aged 10, and was
homeless when he murdered a cousin
- The oldest executed person since reinstitution of the death penalty is
John B. Nixon Sr, convicted of a contract killing and executed aged 77 by
lethal injection in Mississippi last year
- Luis Ramirez was convicted of hiring Edward Bell to kill his ex-wifes
boyfriend and executed in Texas in October last year. Richard Longworth
was executed in South Carolina by electric chair last April for holding a
man down while his co-defendant shot him
- Kelsey Patterson had paranoid schizophrenia diagnosed in 1981 and was
admitted to mental institutions repeatedly. Arrested in 1992 when found
wandering naked and talking to himself. Convicted of murder and executed
in Texas in May 2004
- Since 2002 execution of those with very low IQs has been illegal. Before
that, several such people were put to death. Jerome Bowden, in Georgia,
could not count to 10 and signed a confession that he could not fully read
(source: The Times (UK)
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