[Deathpenalty] death penalty news----KAN., GA., S.C., USA

[Rick Halperin]

March 24



KANSAS:

Supreme Court to Rehear Death Penalty Case


The Supreme Court said Friday that it would hear arguments a 2nd time
before ruling on the constitutionality of a Kansas death penalty law,
apparently so new Justice Samuel Alito can break a tie.

The case is the second one that deadlocked the court following Justice
Sandra Day O'Connor's retirement in late January. The other one involves
government whistleblowers.

Justices heard arguments on Dec. 7 in the Kansas case, which involves
rules for how juries weigh evidence for and against the death penalty.

The 1994 law says if the evidence for and against imposing a death
sentence is equal, Kansas juries must impose death instead of life in
prison. The state Supreme Court struck it down, invalidating the death
sentences of six convicted killers.

The Supreme Court did not say when a new argument would be scheduled.

Alito could vote differently than O'Connor would have in the case.

O'Connor was a swing vote in death penalty cases, sometimes joining the 4
more liberal members in throwing out death sentences.

15 states had filed friend-of-the-court briefs, predicting that a ruling
against Kansas would require states with capital punishment to set up
special systems for juries to weigh evidence at sentencing.

The case is Kansas v. Marsh, 04-1170.

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

Kansas Supreme Court to consider legality of charging DNA


The Kansas Supreme Court has been asked to consider whether it's legal to
charge a defendant's DNA with a crime in a case that could have national
implications.

As the result of a crime lab's mistake in 1991, death row inmate Douglas
Belt was not connected to eight sexual assaults in central Kansas and one
in Illinois until he became a suspect in the beheading of a Wichita
housekeeper a decade later.

The lab mislabeled a blood sample in 1991 that could have connected Belt
to several rapes. The mistake was discovered in December 2002 when a new
DNA sample was taken from Belt in the housekeeper's death.

The Kansas Bureau of Investigation apologized for the mistake, which
caused problems for prosecutors because Kansas had a 5-year statute of
limitations for rape.

With time running out, McPherson County Attorney Ty Kaufman was thought to
be the first prosecutor in the country to file what has become known as a
"John Doe" warrant charging the person to whom the DNA belonged.

John Doe warrants also were filed in Saline, Thomas and Reno counties in
the 1990s after DNA tests indicated the same person was responsible for
all of the attacks, which occurred between 1989 and 1994. The victims, all
but one of whom lived in or near mobile homes, were bound and gagged with
duct tape and raped and sodomized.

An Illinois case involving a 1992 sexual assault is pending.

Prosecutors again pursued the rape cases after Belt, formerly an
over-the-road truck driver, was sentenced to death in November 2004 in
Sedgwick County in the decapitation killing of housekeeper Lucille
Gallegos. He was linked to the murder after his DNA was found on a railing
outside Gallegos's blood-soaked apartment.

Judges in Reno, Saline and McPherson counties tossed the rape cases in
recent months for reasons that ranged from delays that resulted from the
KBI's mistake to the lack of specifics in the warrants.

Tim O'Keefe, an attorney who handled Belt's appeal in Reno County, said
the Thomas County case was dropped because the victim decided she did not
want to pursue it.

The cases from all of the Kansas counties except Thomas were consolidated
last month and have been transferred to the state's Supreme Court. No date
has been set for oral arguments.

Kaufman said the DNA evidence available a decade ago was much more
primitive than what is available today. But even if the Kansas Supreme
Court frowns upon the older technology and its ability to identify
defendants, Kaufman said he still hoped the legality of the warrants would
be upheld.

Kaufman said the case will affect other John Doe cases filed in Kansas
before a state law change approved in 2001 gave prosecutors up to one year
after a DNA match is made to file charges.

"In Kansas there is a window where the John Doe warrants were important,"
Kaufman said Thursday.

Wyandotte County was among the counties to file such charges before the
law was changed. Assistant prosecutor Chris Schneider said he couldn't
recall anyone being arrested as a result of the John Doe warrants there.

"We are interested because it was one way of approaching that before the
Legislature changed the law," Schneider said. "Obviously, we will keep an
eye on it."

On a national level, Kaufman said Belt's case is important because there
is very little case law on the warrants. He said John Doe warrants are
still filed elsewhere in the country.

On appeal, Belt will be represented either by the state appellate
defender's office in Topeka or an appointed attorney. The decision had not
been made.

Meanwhile, the status of the death penalty verdict against Belt also is
being contested. The Kansas Supreme Court struck down the death penalty in
December 2004, and the U.S. Supreme Court is reviewing whether the state's
capital punishment law is constitutional.

(source for both: Associated Press)






GEORGIA:

Prosecutors vow to seek death penalty in Bibb deputy's killing


Prosecutors intend to seek the death penalty against 2 men charged with
fatally shooting a Bibb County deputy during a drug raid early Thursday.

Deputy Joseph Whitehead, 36, was shot inside a house on Atherton Street,
off Montpelier Avenue in west Macon, just before 1:30 a.m., authorities
said. He died about a half-hour later at The Medical Center of Central
Georgia. Whitehead is the 1st Bibb County deputy killed in the line of
duty in nearly 81 years, officials said.

"It's something that I take very, very seriously," District Attorney
Howard Simms said. "These are men and women who put their lives on the
line every day for the benefit of other people, and I'm not going to stand
for somebody gunning them down in cold blood."

Charged with murder are Antron Dawayne Fair, 21, and Damon Antwon Jolly,
20, who are accused of firing shots at Whitehead. Investigators said they
have not determined which one fired the fatal shot.

Also charged with murder are Cynthia Greene, 20, Thomas Mason Porter Jr.,
22, and Hassan Shirell Harclerode, 26, police said. Harclerode was not at
the home at the time of the shooting, but he was charged because as the
renter, he was responsible for activities there, police said.

Authorities said they found marijuana, crack cocaine and guns at the
residence. They also said the confrontation is an indication of the
serious gang activity in the city.

Police said 8 deputies entered the house Thursday morning, with four more
surrounding the perimeter.

Macon police detective Karl Callum said a video camera could have alerted
occupants to the raid. Deputies, he said, had a warrant that didn't
require them to knock before entering the home.

"They did have surveillance equipment in place," Callum said. "We
inspected it and it does work. So we have every reason to believe that
they had the opportunity to know, if not the prior knowledge, that law
enforcement was trying to breach the house."

The deputies all were wearing protective vests, and they clearly informed
all occupants that they were sheriff's deputies, Callum said.

Macon police Lt. Carl Fletcher said the fatal confrontation happened
quickly after deputies entered the house.

"The deputies came through the front door, announced themselves and went
into the front room ... and then went straight to a rear bedroom and
within moments shots were fired," Fletcher said. Fair, Jolly and Greene
were in that room, and Porter was in another part of the house, police
said.

Whitehead was shot 4 times. One shot hit his vest, but the fatal shot hit
him in the face, authorities said. No one else was shot, police said.

Capt. David Davis, a spokesman for the sheriff's office, said deputies had
cause to defend themselves with gunfire, but they chose not to.

"In a situation like that, it's a judgment call whether they want to
engage in a gun battle in a small area, which could hurt another deputy or
a bystander," he said. The steps deputies took to defuse the situation are
being investigated, he said.

2 of the 5 people arrested have felony convictions in Bibb County.
According to the Georgia Department of Corrections Web site, Harclerode
has convictions for obstruction of a police officer in 1999 and possession
of marijuana in 1996. He has been arrested in Bibb County 23 times for
various offenses, according to the sheriff's office.

Porter was sentenced to 10 years of probation in 2004 for possession of
cocaine with intent to distribute, according to the Bibb County Superior
Court Clerk's Office.

Jolly and Fair, who are accused of shooting Whitehead, do not have felony
convictions in Bibb County. Greene has no previous arrests in Bibb County,
authorities said.

Sheriff Jerry Modena said the episode shows the seriousness of the gang
problem.

"The incident has certainly demonstrated the level of violence drugs has
created in our community," Modena said. "If they'll do that to an officer,
what will they do to the citizens?"

Early morning drug raids are not unusual, and several already had been
conducted this week, he said. Modena said shots are fired several times a
year during raids.

"The level of violence has always been there. We've had some close calls
before, but it seems to be increasing," he said. "Quite often we come up
against guns along with the drugs."

Modena said Thursday's incident will cause his department to review its
procedures in raids.

"The level of violence that's associated with this will cause us to relook
and see toward the safety of the officers and make sure we got it," he
said. Modena said that could cause improvement in equipment if there's a
need. The shooting scene, in a mauve house with coffee-colored shingles,
is on a dead-end street a block north of Mercer University Drive, just
across from the Georgia Department of Labor office.

The area, at the western tip of Macon's Unionville neighborhood, where
Mercer University Drive merges with Montpelier Avenue and curls down
toward the Macon Mall, is no stranger to gang violence and dead-of-night
drug raids.

>From the cordoned-off front yard of the Atherton Street residence, you can
see through a vacant lot to the back of a corner food store up on Mercer,
a store that a decade ago lent its name to a gang called the Kitchen Pride
Thugs.

On the ground in the dirt patch of a front yard, two empty Budweiser
bottles and three tossed-away cans of Bud were lying near the curb. On
down the yard sat a shredded, rained-on sofa. Beside it on the dirt were a
few nickel-size plastic baggies. Used for dispensing crack cocaine, the
colored press-and-seal pouches can, to police, be a telltale sign of
drug-sale activity. Charles Green, 53, a former Marine who is now
disabled, lives across the street. Though his front door is barely 90 feet
away - if that - he was asleep and didn't hear any gunshots early
Thursday.

Green, though, says that in recent months "5 or 6 guys" moved in and
"that's when the drugs started."

"They spoke and everything, but you know, in a way, you know what they was
into," Green said. "They were younger guys. Most of the time they'd be out
there with their dogs. ... They had a pool table and all that in there.
They really had done made a club out of it."

Green said, "They had a little altercation about a month ago with a lot of
shooting, and ever since then it just stopped. It was one night, like they
had a little party or something. But other than that, you know, you could
see different people come in and out all day. So you kind of got used to
it."

Annie Reed said she was awakened early Thursday by sirens, not the
gunfire.

"It just upsets me when something like that happens. I've been here 28
years and nothing like this has happened before," she said.

Brenda Walden, who lives farther up the street, said, "Nobody knew (the
suspects). They had only been (in the house) for like a month and a half.
... There was a lot of loudness and noise from that house throughout the
day and night.

"I'm very worried. I was thinking about moving anyway, and this will just
speed it up."

At the Capitol, state lawmakers stood Thursday to recognize Whitehead.
State Sens. Cecil Staton and Robert Brown of Macon took to the Senate well
to ask that senators recognize the deputy's death.

"I would ask that you stand for a moment of silence in recognition of the
deputies and other law enforcement officers who put their lives at risk
each and every day in our communities," said Staton, a Republican.

Brown, the Democratic minority leader, said, "We have a very serious
problem with drugs in Bibb County and the violence associated with it. It
hurts us to have to have an individual so viciously slaughtered while
carrying out his duties."

(source: Macon Telegraph)






SOUTH CAROLINA:

Print Text Size Lawmakers debate death penalty for child molesters


Lawmakers in South Carolina are considering legislation that would put
twice-convicted child molesters on death row.

The legislation is similar to a measure that recently passed in Oklahoma's
Senate.

South Carolina Senator David Thomas says he and other supporters of the
bill know the sentence could be challenged in court.

He says he hopes the challenge would lead to a U-S Supreme Court ruling
that the death penalty can apply to cases that don't involve murder.

In 1995, Louisiana approved seeking the death penalty for sex offenders
convicted of raping children under 12 years old. Someone is now on death
row under that law.

(source: KTEN NEws)






USA:

FBI Testimony Closes Moussaoui Prosecution


Prosecutors concluded their case for executing Zacarias Moussaoui with a
step-by-step account of how they possibly could have identified most of
the Sept. 11 hijackers if the al-Qaida conspirator had confessed when he
was arrested a month before the suicide attacks.

The defense argued that the testimony was legally irrelevant because it
supposes that Moussaoui had some obligation to confess his al-Qaida
membership and his terrorist plans when he was interrogated by federal
agents.

The judge promised to give the jury clear legal instructions about the
issue before it begins deliberations.

Meanwhile, the defense began its case with a summary of the federal
government's failings in tracking 2 known al-Qaida associates in 2000 and
2001 who were among the 19 hijackers on Sept. 11.

The defense case will continue next week, with Moussaoui himself expected
to take the stand against the advice of his court-appointed lawyers.

Moussaoui, as he left for a recess Thursday, stated loudly that he would
testify.

"I will testify, Zerkin, whether you want it or not," he said, referring
to one of his lawyers, Gerald Zerkin. The 37-year-old Frenchman, who is
the only person charged in this country in connection with the 2001
attacks, has refused to cooperate with his lawyers.

The prosecution's witness, former FBI agent Aaron Zebley, testified that
Moussaoui's admission during his guilty plea last April that he received
more than $14,000 in wire transfers from a man using the name Ahad Sabet
could have allowed the FBI to go through Western Union, cell phone,
calling-card and motor vehicle records, as well as leases and other
business materials to identify 11 of the 19 hijackers.

U.S. District Judge Leonie Brinkema barred Zebley from explicitly
asserting what the FBI would have accomplished had he confessed when
arrested Aug. 16, 2001.

But Zebley gave prosecutors some of their strongest testimony since the
trial began March 6.

Zebley implied that Moussaoui's lies when arrested while taking pilot
lessons in Minnesota foreclosed several avenues of investigation that
might have saved at least one of the nearly 3,000 lives lost on 9/11.

"We could have set about finding the hijackers," Zebley said.

Zebley's testimony had jurors leaning forward to follow his explanation of
how FBI agents bootstrapped data from Western Union records to cell phone
and calling-card numbers, to home addresses listed on business and bank
transaction records, to leases and driver's licenses and other IDs
recorded by landlords. He said these methods allowed FBI agents to track
the identities of 11 of the hijackers within weeks of the Sept. 11
attacks, and that the same methods could have been used in August 2001.

MacMahon asked why the FBI didn't launch a full criminal investigation of
Moussaoui in August 2001 based on 70 appeals to Washington by arresting
agent Harry Samit who warned that Moussaoui was a terrorist training to
hijack an airliner.

"The FBI has to have a confession ... before anybody listens?" MacMahon
asked.

Zebley replied that Samit did not know all the details in Moussaoui's 2005
confession.

Defense testimony highlighted the fact that the CIA knew in March 2000
that two of the 9/11 hijackers -- Nawaf al-Hazmi and Khalid al-Mihdhar --
had entered the United States in 2000 after attending a conference with
Osama bin Laden associates in Malaysia. But the CIA did not tell the FBI
until Aug. 23, 2001, that the pair were in the United States. Even then,
the FBI did not assign a high priority to finding them.

This sentencing trial will determine whether Moussaoui is executed or
imprisoned for life.

Prosecutors must prove that Moussaoui's lies resulted in at least one
death on Sept. 11. for Moussaoui to be eligible for the death penalty.

If the jury finds beyond a reasonable doubt that Moussaoui is eligible for
the death penalty, the trial would move into the next phase -- determining
whether Moussaoui should be executed. In this phase, Sept. 11 victims and
their families could testify about the impact of the attack.

(source: Associated Press)

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

Death and the Unpatriotic Act


By signing into law the newest version of the USA PATRIOT Act on March 9,
President George W. Bush has offered fans of Texas' death penalty system
another chance to expedite the capital punishment legal process and to
usher inmate gurneys to the state's death chamber. Among the amendments
tacked onto the PAT Act - and listed, tellingly, under the heading
"Miscellaneous Provisions" - is a section that allows U.S. Attorney
General Alberto Gonzales to grant the legal fast-track for death penalty
appeals in states that have enacted standards for appointing attorneys to
indigent death row inmates. The amendment was reportedly crafted in
backroom dealings late last year by Republican Arizona Sen. Jon Kyl, who
along with Texas GOP Sen. John Cornyn, has been champing at the bit to
truncate the legal-review process available to poor death row defendants.

While the newly passed federal legislation purports to ensure that the
ultimate goal is that poor defendants receive thorough and competent legal
representation, defense attorneys say it offers absolutely no incentive to
ensure baseline, let alone stellar, representation. Instead, it lets state
attorneys general - in other words, a state's top prosecutor - promise
that indigent defendants are offered competent legal representation
without necessarily having to prove that that is the case. "It is a
complete end run around how to really do this," says Keith Hampton, an
Austin defense attorney and lobbyist for the Texas Criminal Defense
Lawyers Association.

Congress' last real modification of the law governing federal-death-case
review came a decade ago, with the passage of the notoriously complicated
Antiterrorism and Effective Death Penalty Act of 1996.

Among the AEDPA requirements is a provision that would allow states to
"opt in" to a set of "special procedures," including a reduced timeline
for filing federal-death-case appeals - drastically reducing the amount of
time an attorney has to investigate and prepare a case - if the state can
show that it provides "standards of competency for the appointment" of
habeas appeal attorneys. Under the AEDPA provision, a state may ask the
federal courts to consider whether its attorney-appointment standards are
sufficient to earn opt-in, and thus, fast-track status; yet, to date, no
state besides Texas - which asked for review in 1996 - has asked to opt
in, and no state - including Texas, which was denied opt-in status - has
actually fast- tracked its death-case appeals.

Under the new PAT Act provision, however (under a deceptively innocuous
section titled "Review by Attorney General"), the power to vet
attorney-appointment standards and to grant fast-track status lies solely
with the U.S. Attorney General - in other words, the new provision removes
any check and balance on authority to make, in essence, life-and-death
decisions, by allowing state prosecutors to request and obtain approval
from the nation's top prosecutor. Under the provision, the AG - for now,
Gonzales - is charged with certifying only "that a state has established a
mechanism for providing counsel" in post-conviction appeals, the date that
"mechanism" was established, and whether the state provides "standards of
competency" for appointed attorneys. Moreover, the legislation grants
Gonzales the sole authority to promulgate the standards by which these 3
requirements are judged.

Just because a state has a list of competency standards and a mechanism
for appointing attorneys, however, doesn't mean that list actually ensures
competent representation. In Texas, for example, the Court of Criminal
Appeals maintains the list of attorneys "qualified" for capital
appointment, but no one - not even the CCA - does anything to ensure that
the attorneys on the list are actually able to do the job. (In fact, the
CCA list, notoriously, contained the names of suspended or disbarred
attorneys, and more than one deceased attorney.) "And the CCA has rebuffed
every effort [the defense bar] has made to try to improve that list," says
Hampton. "The defense bar, collectively, would love to be able to assist
in improving that list, but we've not been able to."

For example, the new federal legislation would do nothing to keep
attorneys like David Chapman, who represented executed inmate Leonard
Rojas, from being considered an appointable, competent counselor, even
though he failed to timely file Rojas' appeal and had received three
probated suspensions from the bar - the 3rd coming just 2 weeks before the
CCA denied the appeal he filed on Rojas' behalf. 2 months after Rojas'
execution, CCA Judge Tom Price authored a stinging opinion in Rojas' case
(albeit, too little, too late), decrying the court's unwillingness to
intervene despite serious issues regarding Chapman's competency. In a
telling response, Presiding Judge Sharon Keller proclaimed that Rojas'
statutory right to "competent counsel - applies only to the attorney's
initial qualification, and does not apply to the final product of
representation" - and there is nothing in the newly passed federal
legislation to suggest that any scrutiny beyond the dimwitted and myopic
standard articulated by Keller would be needed to hasten death row inmates
to the execution chamber.

To Hampton, it appears that the apparent Keller standard is, in fact, all
it would take to have Texas' system certified for fast-track status. "I am
afraid it would be very easy for us to qualify," he said. Whether the
state will seek certification, however, remains to be seen. Texas Attorney
General's Office spokesman Tom Kelley declined to comment on the new
federal provision pending a "more thorough" review of the measure by AG
Greg Abbott and Solicitor General Ted Cruz.

(source: Austin Chronicle)