[Deathpenalty] death penalty news----TEXAS, FLA., N.Y., OHIO, VA.
rhalperi at mail.smu.edu
Wed Mar 22 10:45:58 EST 2006
Killer's lawyers target Harris prosecutor----Seldom-used argument accuses
Owmby of pattern of misconduct
Prosecutors often point to a defendant's criminal history as they attempt
to influence the outcome of a trial.
Now defense attorneys for a man serving life in prison for murder hope to
use that same logic to convince the courts that their client should
receive a new trial.
They argue in court filings that Harris County Assistant District Attorney
Joe Owmby has a pattern of prosecutorial misconduct.
In their request for an evidentiary hearing, attorneys for convicted
murderer Jonathan Drew cite what is known as the Doctrine of Chances - a
seldom-used, but sometimes effective argument recognized by the Texas
Court of Criminal Appeals that basically maintains that where there's
smoke, there's fire.
Specifically, in addition to what they say were Owmby's improprieties in
the Drew case, the attorneys also point to the prosecutor's work in two
high-profile cases: Andrea Yates and Josiah Sutton.
Yates, who confessed to drowning her 5 children in June 2001, awaits
retrial after her murder conviction was overturned because a prosecution
witness gave false testimony.
Sutton spent almost 5 years in prison after faulty DNA evidence and
testimony resulted in his conviction for rape.
Allegedly ignored problems
Owmby was the lead prosecutor in both trials and, according to the motion,
knew of the problems in both cases but did nothing to correct them.
"If the shoe was on the other foot, the prosecution would be arguing that
the defendant was guilty if you had a case where you had all of these
events occurring with such similar characteristics," said Jack B.
Zimmermann, one of Drew's attorneys. "How many times have you heard a
prosecutor argue to the jury that the defense wants them to think that
this is a coincidence? How many coincidences can there be?"
Owmby refused to discuss with the Houston Chronicle the accusation made
against him. However, he did acknowledge being familiar with the Doctrine
"I hadn't heard of that being used as a theory in this type of
proceeding," Owmby said. "But I'm not surprised anymore at what will be
heard in an (appellate) hearing."
Beyond that, Owmby refused to comment, citing past bad experiences with
"What happens is this," said the prosecutor, "and what has happened to me
before, is that I've commented on something. Had an incorrect memory or
stated something that was wrong at the time. And then it's an 'aha' moment
for a lot of people. And, you know, the Doctrine of Chances says I can't
be wrong more than once."
According to the motion filed by Drew's attorneys, Owmby has been wrong
far more than once.
List of accusations
In 1999, Drew, then 26, was charged with capital murder in the November
1998 kidnapping, rape and slaying of 23-year-old Tina Flood. Although
Owmby had hoped to seek the death penalty, the jury convicted Drew on the
lesser charge of murder, and he was sentenced to life in prison.
During both the trial and sentencing, Owmby played "fast and loose with
the rules" of prosecutorial ethics, said Zimmermann. In his motion,
Zimmermann alleges that Owmby:
-Suppressed evidence about the criminal backgrounds of two key prosecution
-During the punishment phase of the trial, agreed with the defense that
DNA evidence collected from an alleged second victim did not come from
Drew. However, in an attempt to portray Drew as sexual predator, Owmby
told the jury that semen on the woman's stomach - semen that was never
tested - had been deposited by Drew.
-Argued that Drew had attacked the alleged 2nd victim with the help of his
friend, Jason Stamper. However, on the date of the attack, Stamper was an
inmate in the Harris County Jail. Stamper was never charged in the second
crime, and the charges against Drew in that case were eventually dropped.
In his motion, Zimmermann describes those acts and others by Owmby as
"egregious prosecutorial misconduct that abrogated Mr. Drew's right to a
But the motion by Zimmermann also looks beyond the Drew case.
In pointing to the Yates case, Zimmermann focuses on the testimony of Dr.
Park Dietz, an expert witness for the state. During the trial, Dietz
incorrectly told the jury that the television show Law & Order, which
Yates watched regularly, had featured an episode where postpartum
depression had been used as a defense, suggesting that Yates may have
gotten the idea to kill her children by watching the show.
But in reality, there was never a Law & Order episode about postpartum
depression. Instead, the issue had been addressed in an episode of L.A.
Law - a fact that had been brought to the attention of the District
Attorney's Office in an e-mail from Tomball schoolteacher Shauna Thornton
prior to the trial.
According to her testimony, when she saw on television that Dietz had
testified about the wrong program, Thornton said, she immediately e-mailed
the District Attorney's Office again to point out the mistake.
Thornton also stated she sent a 1-line message to the office - while the
trial was still in progress.
Although the Yates trial ended in March 2002, Owmby said he did not see an
e-mail from Thornton until April 18, 2002 meaning he would not have known
about the mistake until after the trial. The District Attorney's Office
also produced a copy of the 2-paragraph e-mail bearing Thornton's name for
Contacted last week, Philip Hilder, Thornton's attorney, said his client
"emphatically" stands by her testimony.
Both state District Judge Belinda Hill and the Texas 1st Court of Appeals
have ruled that the allegations against Owmby in the Yates case have no
As for the Sutton case, Zimmermann points out that during questioning of
an HPD DNA lab technician during the trial, Owmby directed the witness
away from talking about the testing of DNA sample that was later found to
have problems. In a subsequent interview with KHOU-TV Owmby admitted that
he knew there were problems with the testing in the Sutton case. A few
moments later, he orders the camera to be turned off, then later explains
that he misspoke.
After his conviction, Sutton was sentenced to 25 years in prison. He
served more than 4 years before being pardoned by Gov. Rick Perry.
However, the defense attorney who eventually won Sutton's freedom says he
does not believe Owmby engaged in prosecutorial misconduct.
"My impression from (the) Sutton (case) was that Owmby was caught as
unaware as anyone else," attorney Bob Wicoff said. "It was a mistake
created solely by the crime lab."
But according to Zimmermann, even if Owmby didn't know about any of the
problems with any of the cases, it was his job to know.
District Judge Brian Rains, who will hear the motions in the Drew case,
last month told the attorneys involved that he would review the
accusations against Owmby by affidavits filed by each side.
While some of the charges have been denied by the District Attorney's
Office in prior appeals of the case, Assistant District Attorney Baldwin
Chin, of the DA's appellate division, says he is waiting for written
questions for Owmby from the defense lawyers. "I need to know what
everybody has to say, and know what everybody wants to know before I can
reach any kind of conclusion about anything," Chin said.
(source: Houston Chronicle)
Ex-Fiesta carny gets stay of execution
Tommy Lynn Sells, the serial killer who claims to have more than 20
victims, including a 9-year-old girl abducted during Fiesta, has been
granted a stay of execution.
Sells had been scheduled to die May 9 for the 1999 murder of 13-year-old
Kaylene Harris in Val Verde County.
Considered relatively routine, the temporary reprieve issued last week by
U.S. District Judge Alia Moses Ludlum of Del Rio merely allows Sells to
appeal in federal court.
"Everybody gets a stay at this point of the proceeding," said John E.
Wright, one of Sells' attorneys.
Months before the murder in Del Rio, Sells had been a carnival worker at
Fiesta when he encountered 9-year-old Mary Bea Perez.
Sells avoided the death penalty for Perez's murder by pleading guilty in
exchange for life in prison.
(source: San Antonio Express-News)
Man is facing death penalty in Dixie County slaying
Bullet fragments extracted from a tree and those taken from a shooting
victim's body are expected to figure prominently in this week's trial of a
Dixie County man.
James K. Lawrence Jr., 46, is facing the possibility of being sentenced to
death if convicted of murder for the Oct. 31, 2004, shooting death of
Charles E. Carr, 62, of Old Town. Lawrence was indicted on charges of
murder while armed and burglary while armed.
During opening statements Tuesday morning, State Attorney Jerry Blair gave
jurors an overview of what they could expect to hear during the weeklong
trial, including that the alleged murder weapon, a 9 mm handgun, has never
been found. Blair said he is seeking the death penalty.
Carr and his fianc? Judith Osteen, lived next to the furniture store that
Carr owned on State Road 349 north of Old Town and near the mobile home
park he also operated. At about 2 a.m. on Oct. 31, 2004, a burglar alarm
went off inside the store, alerting Carr and Osteen as well as the alarm
company in Gainesville and the Dixie County Sheriff's Office that someone
may have gotten into the store's office.
"Mr. Carr went next door to investigate," Blair told the jury. "That
decision cost Mr. Carr his life."
Carr's body was found by a Dixie County deputy between the front of the
store and the two-lane highway. He died of a single 9 mm gunshot wound to
the chest, according to the Medical Examiner's report following an
Blair told jurors that a Florida Department of Law Enforcement expert was
able to match the spent bullet taken from Carr's body with spent bullets
removed from a tree that Lawrence was known to use for target practice
while using his father's 9 mm handgun. Blair also told jurors that
investigators found the nylon holster for the gun behind the seat of
Lawrence's attorney, Herb Ellis of Lake City, said jurors should be
prepared to hear that Lawrence arrived at the store after Carr had been
shot and was quite shocked by the discovery.
Ellis also told jurors that the reason the gun used to kill Carr was never
found was because the "person who shot Mr. Carr left with that gun and
still has it today."
Lawrence's trial at the Dixie County Courthouse is expected to last until
at least Friday.
(source: The Gainesville Sun)
Death penalty is possible in trooper killing
The men accused of murdering State Trooper Andrew Sperr could face the
federal death penalty.
Federal authorities and the Chemung County District Attorney's Office are
discussing whether federal charges should be brought against the men
accused in the killing of the 33-year-old Sperr, making the case eligible
for the death penalty.
There has been no firm decision, but there have been talks about a federal
prosecution, said First Assistant U.S. Attorney Kathleen Mehltretter.
"There is a possibility for a death penalty in the federal court," she
Sperr, a Greece native, was slain March 1.
3 Chemung County men have been indicted on murder charges in the killing.
Authorities allege that Anthony Horton of Elmira fatally shot Sperr after
he and 2 other men - brothers Bryan Adams and Wayne Adams - robbed a bank
in Big Flats, Chemung County.
If the case were to move forward in federal court, Chemung DA John Trice
could be appointed as a specially designated federal prosecutor and be
part of a prosecution team, Mehltretter said.
"They've been doing an absolutely fantastic job (with the prosecution) in
Chemung County," she said.
Trice could not be reached Tuesday.
The case would likely be tried in U.S. District Court in Rochester.
Sperr's brother, Bill, said he's aware there have been talks about a
"From my perspective, it's a good thing," he said, noting New York state's
death penalty has been found unconstitutional.
"Therefore, let's take it federal and get these guys what they deserve,"
Republican Gov. George Pataki recently renewed a push for the death
penalty for cop killers; the Democrat-controlled Assembly has stymied
measures that would restore capital punishment.
Local activist Clare Regan, a death penalty opponent, said she thinks the
U.S. Department of Justice is eager for executions in areas where there is
no capital punishment.
"Any state that doesn't have the death penalty, if they can work the feds
in, they will," she said.
But federal executions have been rare.
Three people - including Oklahoma City bomber Timothy McVeigh, who grew up
in Pendleton, Niagara County - have been executed for federal crimes in
the past 5 years.
The federal death penalty statute allows for capital punishment for
murders committed during a bank robbery.
Horton, as the man accused of the fatal shooting, could fall within those
legal parameters, while it could be more difficult to seek the death
penalty for the Adams brothers.
Andrew Sperr shot Bryan Adams 4 times during the shootout. Adams survived.
Mehltretter said authorities were discussing whether all 3 of the accused
men could be eligible for execution.
(source: Rochester Democrat and Chronicle)
Holdout juror saves murderer from execution----Andre Bell gets life in
1 woman saved Andre Bell's life Tuesday.
11 jurors determined Bell deserved to die for fatally shooting Stephanie
Bowling in the fall of 2004, but one juror held out, saying the death
penalty wasn't appropriate.
As a result, Bell, 34, of Westwood, will spend the rest of his life in
prison, with no chance of parole, on a conviction of aggravated murder.
Hamilton County Common Pleas Judge Dennis Helmick ordered the sentence
Tuesday after the jury deliberated overnight and came back with the
Helmick also ordered Bell to serve an additional 18-year sentence for
attempted aggravated murder for shooting his ex-girlfriend, Casandra Jent,
and for illegally having a gun. Bowling was Jent's best friend.
"The jury was very diligent in weighing all the evidence," said Bell's
attorney, Perry Ancona. "They realized he had an extremely bad childhood."
Bell's mother was mentally ill and often left him alone on weekends, Perry
Hamilton County Prosecutor Joe Deters said Bell's childhood is no excuse.
"Hundreds of thousands of people had bad childhoods and they don't go out
and kill someone," Deters said.
Jent, 21, told the jury Bell was angry because she broke up with him the
morning of Oct. 29, 2004. So he waited in a closet of the apartment the
two shared, popping out when she came home with Bowling. Bell shot
Bowling, a mother of three, four times as she scrambled into a closet for
He then turned the gun on Jent, firing a shot into her head. Jent slumped
to the ground, pretending to be dead.
Bell walked away, but was arrested several months later in Nashville.
Jent wasn't in court Tuesday.
"I'm glad it's over," said her sister, Elizabeth Stacey.
She said she and her family didn't necessarily want a death sentence.
"We did want justice and we got that," she said. "He'll spend the rest of
his life in jail without hurting anybody else."
(source: Cincinnati Enquirer)
Moussaoui death penalty trial resumes this morning
The death penalty trial for confessed al-Qaida member Zacarias Moussaoui
resumes this morning in federal court in Alexandria, Virginia.
In testimony yesterday, an FBI terrorism supervisor defended not taking
concerns of a field agent more seriously, saying they were only "hunches
and suppositions." The agent who arrested Moussaoui 4 weeks before 9/11
testified earlier that he warned headquarters from the outset that he
thought Moussaoui was part of a plot to hijack airliners.
Prosecutors, arguing for the death penalty, are trying to show that if
Moussaoui had talked, officials might have been able to prevent the
attacks or at least minimize them.
(source: Associated Press)
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