[Deathpenalty]death penalty news----TEXAS, USA, IND., OHIO

[Rick Halperin]

March 8


TEXAS:

Group has lynching on its mind


A Community Race Relations Coalition task force met for the 1st time
Tuesday to discuss how to best commemorate the 1916 lynching of Jesse
Washington in downtown Waco.

Little was decided at the Lynching Issue Task Force's meeting. But
participants gained some insights into how some black community members
feel the gruesome incident would best be addressed.

Jesse Washington was a 17-year-old black youth living in Robinson, working
for a white family in 1916. He confessed to the murder of the mother of
the family for whom he worked and, despite a promise from the community
that they would not, he was lynched following his brief trial. Over 15,000
people - more than half of Waco's population at that time - participated
in or watched the May 15 lynching in which Washington was stabbed,
dismembered, hung from a tree and lowered into a bonfire below and dragged
through the city's streets behind a horse.

Some people at Tuesday's meeting said that city acknowledgement and some
sort of commemoration would go a long way toward healing a wound that,
judging from Tuesday's discussion, is still a reality in the Waco
community. Others, while recognizing the importance of historical
remembrance, said that Waco would be best served with some sort of annual
event that would bring the entire community together.

"What (black people in Waco) really want is an apology," said Rayfer
Mainer, who is black.

"They don't want a picture of a hanging tree, they want an apology,"
Mainer said, referring to a mural of a hanging tree painted in the county
courthouse.

Larry Weaver, a black man who runs a janitorial business in Waco, said
that bringing city residents together in a positive manner could be a
strong and constructive gesture.

"When that event happened, the whole city came together," Weaver said.
"What I would like to see is the whole city coming together, despite our
differences. If you focus on this as a one-shot deal, then you're missing
the mark and missing the point."

The CRRC decided in May to form the group tasked with discussing some sort
of commemoration the event. Tuesday's meeting, lead by CRRC board member
Jo Welter, featured candid discussion by a diverse group of participants.
Attendees said they would like to see a public apology as part of any
commemoration or event, but such an apology would have to come from Waco's
white community.

"If we end up doing an apology, it's not going to be the black community
apologizing to the black community," said Welter, who is white. "But,
unless the black community is satisfied, what's the point?"

Van Allen, a former vice president for academic affairs at the
historically black Paul Quinn College, agreed that while black community
leaders could provide some input as to what kind of gesture would be
effective, the white community must be at the forefront of the
commemoration.

"Who created this problem?" Allen asked. "Who perpetuated the problem? Who
better to solve the problem than the people whose ancestors created it?"

The task force set its next meeting for March 27, with the location as yet
undecided.

(source: Waco Tribune-Herald)

*****************

Sebesta willing to take lie detector test to prove he did not withhold
evidence


The district attorney who led the prosecution against two men accused of
murdering 5 people in Somerville says he's willing to take a lie detector
test to help prove he did not deliberately withhold evidence in the case.

Charles Sebesta said today he has "absolutely no qualms about taking a lie
detector test" after the three-member Fifth U.S. Circuit Court of Appeals
in Houston last week ordered a new trial for Anthony Graves, saying
prosecutors withheld 2 statements that should have been presented to
jurors.

Graves and Robert Carter were both convicted of capital murder in the Aug.
18, 1992 slayings of of Bobbie Davis, her 16-year-old daughter Nicole and
4 of Bobbie Davis' grandchildren, including Carter's 4-year-old son.

Sebesta issued this in response to the court's ruling:

"The 4 Texas Rangers assigned to the investigation of the deaths of 6
Somerville residents during the early morning hours of Aug. 18, 1992
concluded early on that at least 3 people were involved.

"The state's case from start to finish was predicated on the involvement
of 3 people. The defense, likewise readily acknowledged the involvement of
'multiple' parties, but argued that Anthony Graves was not 1of them.

"The night before Robert Carter was scheduled to testify in the Graves'
case, I, along with 2 Texas Rangers met with both he and his attorney.

"I had known both Robert and his family for a number of years. His dad
worked for the county and Robert had been an all-state basketball player
for the small Class A high school that I graduated from many years
earlier.

"After asking him if his family had been to see him recently and if he
knew how they were doing, Robert blurted out and said, 'Mr. Sebesta, I did
it all myself.'

"I looked Robert straight in the eye and said, 'Robert, you know and I
know that you didn't do it all by yourself. There were 3 weapons used -- a
gun, a knife and a hammer.'

"Realizing the he wasn't going to convince anyone in that room that night
that he did it all by himself, he abandoned the 'one-person' act and
reverted to the three-defendant scenario, telling us that he, Graves and a
third person he referred to as 'Red' committed the crime.

"After about two hours of denying that the person he kept referring to as
'Red,' was his wife, Theresa, I asked him if he would submit to a
polygraph examination regarding her involvement. After consulting with his
attorney, he agreed and a polygraph operator from the Brazoria County
Sheriff's office was called.

"He failed the test and when confronted afterwards, acknowledged that his
wife Theresa was involved.

The next morning before Carter testified, I 'jokingly' said to Calvin
Garvey, Graves' lead counsel, 'You are not going to believe this, but now
Carter is saying he did it all by himself. Why 'jokingly?' Because it was
so far out in left field and totally inconsistent with either of our
theories.

"Calvin laughed and replied, 'What's that, his 7th or 8th story?'

"My mistake was not placing it on the record. The court rules do not
require that this type of evidence be placed on the record, but when it's
not included in the record, the state bears the burden of proving that it
was in fact, done.

"During the hearing before the U.S. magistrate in Galveston in September
2004, I related that verbal 'exchange' to the court, but Garvey later told
the magistrate that he didn't recall the conversation and the court found
Garvey's testimony to be more credible than mine.

"That same judge also noted that Carter's statement wasn't material, since
all the evidence pointed to 'multiple' defendants. "In all due respect to
Calvin Garvey, he may not have remember because when he was asked during
the appellate hearings what he would have done differently had he been
aware of Carter's statement that he did it all himself, his response was,
'Nothing.'"

Sebesta said that "at this point, there is only one way that I know of to
shed any further light on what actually transpired and that is for me to
submit to a polygraph administered by competent and impartial polygraph
operator."

He also said that he plans to "take the initial steps by immediately
calling and asking the Texas Attorney General's Office and the State Bar
of Texas to select a qualified polygraph operation from the 'civilian
sector' (meaning not from law enforcement) to conduct the examination as
soon as possible."

Sebesta also said that a 2nd error noted by the Fifth Circuit "was that I
failed to tell Graves' attorney that Carter had acknowledge his wife's
involvement."

"This is most perplexing, because proving that she was involved was
critical to the state's theory. The state clearly wanted the jury to know
that she was an active participant in the crime.

"Before testimony began the morning Carter testified, I stood up outside
the presence of the jury and told the court that the evening before,
Robert Carter had taken a polygraph examination regarding his wife's
involvement in the crimes and the result was deceptive, meaning that she
was involved as an active participant.

"I also placed on the record that Carter had agreed to testify as long as
the state agreed not to ask him any question regarding his wife's
involvement in the crime.

"Defense counsel had no questions.

"The Fifth Circuit Court ruled that the reason they failed to ask any
questions, was because I was being 'intentionally' vague and they didn't
know what questions to ask.

"The Fifth Circuit also found that all of the state's evidence was weak
and questioned the credibility of our witnesses, including that of a Texas
Ranger.

"But why a 'scorched earth' opinion?

"Passing a polygraph obviously won't put a 'cold blooded' killer back on
death row, but it may help expose the 'anti-death penalty' sentiment that
seems to be surfacing within the federal courts.

"Do I believe that Graves is guilty? You bet I do! Yet at the same time, I
respect the courts decision even though I don't agree with it."

(source: The Brenham Banner-Press)






USA:

PATRIOT ACT SHORTENS DEATH APPEALS


Death row inmates in California could be at least 5 years closer to the
execution chamber when President Bush signs into law this week the revised
Patriot Act.

The legislation includes a little-noticed provision aimed at expediting
capital habeas corpus petitions in federal court, which could shave
several years, possibly more than 5, off the time it takes death row
inmates to exhaust their appeals, according to experts familiar with the
proposal.

The dramatic changes to the habeas corpus process are opposed by defense
attorneys and members of the judiciary, including California Supreme Court
Chief Justice Ronald M. George and the National Association of Chief
Justices.

The changes were folded into a re-authorization of anti-terror legislation
that is due to be signed into law by President Bush this week after
finally passing Congress Tuesday afternoon following months of
negotiations between the House, Senate and White House.

It takes about 25 years from sentencing to execution in California, based
on the two most recent cases.

Clarence Ray Allen, who was executed in January, and Stanley "Tookie"
Williams, who was put to death in December, were originally sentenced to
death in 1982 and 1981 respectively.

Kent Scheidegger, legal director of the Sacramento-based Criminal Justice
Legal Foundation, said Tuesday he has calculated that the state could have
executed Williams four years earlier if the new law had been in place
then.

Dane Gillette, who co-ordinates death penalty litigation at the state
Attorney General's Office, also hinted that the measure could have
considerable impact.

"It could easily take at least 5 years, maybe more, off the federal
[habeas corpus] time," he said.

The legislation would allow state prosecutors to ask the U.S. Department
of Justice for permission to implement a shorter timeline for resolving
habeas claims alleging constitutional error in death verdicts.

To do so, the state has to show that it can provide competent counsel for
defendants.

Defense attorneys claim the plan will deter private attorneys from taking
death penalty cases in federal court, leading to even more delays. They
even worry that some inmates will end up deprived of counsel altogether.

Under current law, it is up to federal judges to determine whether a state
qualifies for fast-tracking, but the new provision tucked into the Patriot
Act allows the U.S. Attorney General to make the call, pending review by
the D.C. Circuit Court of Appeals.

California, with more than 600 inmates on death row, many since the 1980s,
is expected to jump at the opportunity to shorten the lengthy appeals
process.

"It's certainly a provision we were supportive of," Gillette said. "It
would be of real benefit to the states that have done the effort to
provide appropriate counsel."

Scheidegger said he believes U.S. Attorney General Alberto Gonzales could
"certify us within a matter of months."

Legal experts familiar with the debate over the new law believe Gonzales,
a strong supporter of the death penalty, is much more likely to approve
California for fast-tracking than a federal judge would.

"They [the states] chose the referee, so the odds are with them," said
George Kendall, a New York-based attorney who has campaigned against
habeas corpus reform.

When the fast-tracking program was originally set up in 1996 as part of
the Antiterrorism and Effective Death Penalty Act (AEDPA), a federal judge
ruled that California did not meet the necessary standards and the state
has not attempted to reapply since.

Former California Attorney General Daniel E. Lungren, who is now a
Republican congressman representing the Sacramento area, played a key role
in pushing for the latest changes.

He recalled in a phone interview Tuesday that as attorney general from
1991 to 1999, he had pushed for the reforms instituted by AEDPA and was
disappointed when California failed in its attempt to participate in the
expedited hearing process.

"We believed California had met the standards," Lungren said, adding that
the system is riddled with "interminable delays."

The new provisions in the Patriot Act, which modify AEDPA, clarify when a
habeas corpus petition is "pending" in federal court.

This controls when a federal judge can issue a stay.

Under current law, a federal court can order a stay even when a petition
has not yet been filed, but the new proposal states that a petition is
pending only after it has been filed, unless the appellant does not have
counsel.

Like Lungren, the state Attorney General's Office and Scheidegger, who
helped draft the legislation, maintain that California's process for
providing counsel meets the requirements stated in AEDPA, but others
disagree.

These critics claim the measure contained in the Patriot Act will lead to
the U.S. Department of Justice rubber-stamping a fast-track habeas
timeline whether or not competent defense counsel is provided.

One of the biggest challenges facing California, if the new provision
takes effect, will be finding enough lawyers to help death row inmates
meet their court deadlines.

George, the state's chief justice, warned last year that with 646 inmates
on death row, 100 did not have counsel in direct appeals and 150 did not
have lawyers for their habeas corpus claims.

George has opposed the changes to the habeas system, saying he believes a
judge, as a "neutral arbiter," should make the determination of whether
inmates have competent defense counsel.

"There is going to be a significant amount of chaos initially," said
Kendall, the New York defense attorney - in part because the new law will
likely be challenged in court.

He also suggested that some attorneys might withdraw from death penalty
cases because they wouldn't otherwise have time to take on other cases.

Cliff Gardner, a San Francisco-based attorney who represents appellants in
death row cases, said the state might have to increase funding drastically
for counsel in order to meet the demand, or face the difficult choice of
sending inmates without representation to the death chamber.

"Is the state going to execute dozens and dozens of people without
counsel?" he asked. "Who is going to blink first?"

When asked to comment on the prospect of legal challenges, Lungren said he
did not "underestimate the ingenuity" of defense lawyers.

But Lungren pointed to a silver lining for defense attorneys - their
capital cases won't drag on endlessly.

On the other hand, the proposed changes will not have any impact on
appellate proceedings in state court, which usually take 10 to 15 years to
complete.

Natasha Minsker, chief death penalty lawyer for the American Civil
Liberties Union of Northern California, cited a case decided last week by
the California Supreme Court, People v. Guerra, 2006 DJDAR 2547, as a
typical example.

13 years passed between the murder that triggered a death sentence and the
high court's rejection of the defendant's direct appeal.

"It's extremely rare for a case to get through a 1st direct appeal in less
than 10 years," Minsker said.

In her opinion, tinkering with federal habeas corpus "doesn't do anything
to fix the real problem," namely the difficulty, as highlighted by George,
that death row inmates have in finding attorneys to represent them.

(source: Daily Journal)






INDIANA:

Worst of the worst----By any definition you care to use, Simon Rios is a
good candidate for the death penalty.

Indiana is pretty careful when it comes to capital punishment, more so
than most probably realize. The death penalty is reserved for the worst of
the worst among murderers.

By any definition you choose of "worst of the worst," Simon Rios fits the
category. If he is who he seems to be, and he is convicted, he belongs on
death row - or at least prosecutors need to attempt to put him there.
Otherwise, state lawmakers need to rethink why we have the death penalty
and what its purpose is.

Getting Rios where he needs to be is likely to be a complicated - but not
necessarily difficult - enterprise. He was charged first here in Allen
County for the 2nd of the gruesome crimes he is alleged to have committed,
the Dec. 13 murder of his wife and three daughters. He was just charged
this week by officials in Muncie for the first crime, the abduction Dec. 8
in Fort Wayne of 10-year-old Alejandra Gutierrez and her subsequent rape
and murder in Delaware County. Rios trial here is scheduled to begin May
8. He is to be transported to Delaware County for arraignment on Tuesday.
. Where he is actually tried first could depend on the availability of a
trial date in Delaware County or what arrangements the 2 county
prosecutors decide on.

Either Allen County Prosecutor Karen Richards or the Delaware County
prosecutor could ask for the death penalty against Rios; each has been
careful to include an "aggravating circumstance" in the charges to justify
capital punishment. Or both could, or neither. The worst possible outcome
is that the 2 offices dont communicate with each other and each holds off
on the death penalty in the expectation that the other will seek it. Thats
not likely, however. Delaware County Deputy Prosecutor Mark McKinney says
there is "no chance" his office would dismiss its case as part of a plea
agreement or even if an Allen County jury delivered a capital punishment
conviction.

The best solution would be for each prosecutor to seek the death penalty.
That would be a hedge against a jury in either county refusing to grant
the death penalty, which is one of the protections that defendants in
capital punishment cases have in Indiana.

And there are others.

Plain old murder - the only crime eligible for the death penalty in
Indiana - just gets you a 45- to 65-year sentence in this state, with an
"advisory sentence" of 55 years. Only those 18 and older and not mentally
retarded are eligible for the death penalty, and only if prosecutors can
show one of several aggravating circumstances. The defendant, for example,
must have "intentionally killed" the victim while committing or attempting
to commit another crime, such as rape, kidnapping, arson or burglary. Or
he must have killed while lying in wait or by hiring someone to kill. Or
he must have killed a law enforcement officer acting in the line of duty
or killed someone younger than 12 or known to be a witness against him. Or
he must have dismembered or otherwise mutilated the body of the victim. (A
complete list of the aggravating circumstances can be found at IC
35-50-2-9 (b).)

"Indiana is fairly limited in the application of the death penalty,"
according to Stephen Johnson, executive director of the Indiana
Prosecuting Attorneys Council, "and is one of the leaders in protecting
defendants' rights. It's fairly limited in its approach. About the only
cases in which the death penalty is sought today are death of a child,
death of a police officer or cases of multiple or serial murders."

A defendant also has the right to a "death qualified" attorney (one who
has handled a capital punishment case before), even if it's a
court-appointed one. The jury can consider mitigating circumstances such
as age and mental condition, whether the defendant was under the strong
influence of someone else or had a "relatively minor role" in the killing.
(See IC 35-60-2-9 (c).) But, unlike in some other states, it won't hear
the suspects criminal history. (Which means the jury in the Gutierrez case
won't be told of the Fort Wayne case, and the jury hearing about the
murder of family members wont hear about Alejandra.)

And the jury has a trump card. Even if the prosecutor makes the best case
possible for the death penalty, it can opt for life without parole, or
even a determinate sentence of between 45 and 65 years. And its wishes
have to be obeyed.

If Rios makes it to death row, it wont be because he didn't have every
chance to stay off. He is at a place now, in fact, where a lot more care
will be granted to him than was received by certain other people in his
life.

(source: Editorial, Fort Wayne News-Sentinel)






OHIO:

Ohio candidate for U.S. Senate wants gays dead


When Iraq war veteran and same-sex marriage supporter Paul Hackett dropped
out of Ohio's Democratic race for the U.S. Senate last month, he was
replaced by truck driver Merrill Keiser Jr., who says gays should get the
death penalty. In an interview with the Sandusky Register, Keiser, who
filed for candidacy within days of Hackett's withdrawal, said he wouldn't
be against making homosexuality a felony punishable by the death penalty.

He also suggested making "conversion to Christianity" part of the "war on
terror" to "teach Muslims the error of their choice in religion." Keiser
added that if a person believes in evolution, he or she "has no rights."

Reportedly, Keiser is running as a Democrat because "that's what he was
the last time he voted." He will face the heavily favored Sherrod Brown in
the May primary.

(source: The Advocate)

************

Richey has 'better than 50/50 chance' of winning freedom


LAWYERS for death row Scot Kenny Richey today said he had a "better than
50/50 chance" of being freed if a court decides his case should be sent
back to the Supreme Court.

Edinburgh-born Richey, 41, a former marine, was sentenced to death in 1987
for murdering 2-year-old Cynthia Collins by setting fire to an apartment
in Ohio.

An appeal against that decision was granted in January last year, but
overturned in November by the US Supreme Court, who told the 6th Circuit
Federal Court of Appeal to reconsider its earlier decision.

Richey's lawyer, Ken Parsigian, said that if the 6th Circuit Court decides
that prosecutors did not formally object to new evidence at the Ohio State
trial, as they did at the appeal stage, then the case will have to be
re-examined.

He said: "We feel that they should rule in our favour, and if they do so,
Kenny's chances of being released are better than 50/50."

Margo MacDonald MSP, a long-time campaigner for Richey's release, said: "I
am really glad that we have reached this stage in Kenny's long campaign.

"Ken Parsigian assured me that he was still very confident that Kenny's
legal case was sound."

(source: The Scotsman)