[Deathpenalty] death penalty news----TEXAS, ALA., OHIO, IDAHO, WIS.

[Rick Halperin]

Oct. 26


TEXAS:

Justices signal dismay at Texas ---- Decision to hear capital cases may
suggest high court questions handling


The U.S. Supreme Court has agreed to hear 3 Texas death penalty cases in
its new term, a move that veteran court watchers called the latest signal
of the court's increasing frustration with how condemned inmates' appeals
are handled by Texas' highest criminal judges and the 5th U.S. Circuit
Court of Appeals.

The appeals of 3 Texas inmates  one of them convicted of killing a woman
in DeSoto  will be among only about 70 to 80 cases the Supreme Court will
consider this year. Most of the roughly 8,000 cases petitioned to the high
court are rejected.

"Unfortunately, it's become business as usual that the Supreme Court is
paying a disproportionate amount of attention to capital cases out of
Texas," said Mark Osler, a law professor at Baylor University.

"Considering there are entire realms of law in which no cases are taken,
such as bankruptcy, the fact that so much of their effort is going to this
one area and from one state is highly unusual," he said.

At issue is whether the Texas Court of Criminal Appeals and the 5th
Circuit are adhering to the Supreme Court's previous orders in capital
cases or interpreting those orders so narrowly that the court's intent is
not being followed.

All three Texas cases involve questions of whether trial judges gave
juries proper instructions on mitigating evidence, such as the background
or IQ of the accused.

DeSoto case

University of Pittsburgh law professor Arthur D. Hellman points to the
case of LaRoyce Smith, who was convicted of killing Jennifer Soto at a
DeSoto fast-food restaurant in 1991. Mr. Smith's attorneys argued that
jurors were not properly instructed on mitigating evidence during the
sentencing.

The Supreme Court, on a 7-2 vote, sent Mr. Smith's case back to the Court
of Criminal Appeals for review in 2004 without even scheduling oral
arguments.

Mr. Hellman called the action "a very clear signal" that the court
perceived a significant error in how the Court of Criminal Appeals handled
the case.

"It's especially surprising that the Texas court didn't get the message,"
Mr. Hellman said.

Rather than grant Mr. Smith a new sentencing hearing, the Texas court
determined the faulty jury instructions did not harm Mr. Smith. This
month, the Supreme Court took the unusual step of accepting the case a 2nd
time, and justices will decide whether the Texas judges applied the wrong
standard.

The other 2 cases, involving killings in San Angelo and Amarillo, were
appealed on similar grounds and rejected by the 5th Circuit, the next stop
for inmates rejected in the Texas court.

Edith Jones, chief judge of the 5th Circuit, declined to comment on the
Supreme Court action.

Sharon Keller, presiding judge of the Court of Criminal Appeals,
acknowledged "a lot of activity" in the Supreme Court, but said she
doesn't think the Texas judges are out of step with their judicial
superiors.

"We try to accommodate them, and sometimes we don't anticipate what the
Supreme Court is going to do," Judge Keller said.

But some law professors say Judge Keller's court and the 5th Circuit have
received  and ignored  direction from the Supreme Court in certain cases.
Notably, the high court considered the Texas death penalty cases of John
Penry and Thomas Miller-El twice each in recent years.

The Penry case, out of Livingston, involved whether jurors were adequately
instructed on evidence of mental retardation, while the Miller-El case,
out of Dallas, centered on racial discrimination in jury selection.

In the first Miller-El decision, in 2003, the Supreme Court questioned the
lower courts' "dismissive and strained interpretation" of evidence. 2
years later, justices reviewed the case again and called the lower courts'
decisions "unsupportable."

The most blunt assessment of the lower courts' approach to death penalty
cases probably came in 2004, in a case involving Robert Tennard, convicted
of a 1985 fatal stabbing in Houston. On Mr. Tennard's appeal, the Supreme
Court declared that the 5th Circuit's review method "has no foundation in
the decisions of this Court."

'Pattern of defiance'

Differing interpretations of the law are not unusual; what has startled
experts is the apparent unwillingness of the Court of Criminal Appeals and
the 5th Circuit to follow the Supreme Court's direction.

"What is unusual is that there is a persistent pattern of defiance
requiring repeated correction," said Eric M. Freedman, a professor at
Hofstra School of Law in New York.

The Texas Legislature remedied the inadequacy of jury instructions in the
early 1990s, so the Supreme Court is not addressing a current legal issue
but a past one.

"What that tells you is their problem is not with the statute necessarily,
since the law has changed; it's with the Court of Criminal Appeals and the
5th Circuit," said Mr. Osler, the Baylor law professor.

Mr. Freedman said lower courts will be disappointed if they think the
Supreme Court is more receptive to narrow interpretations of previous
rulings because the 2 newest justices  Chief Justice John Roberts and
Samuel Alito  are conservatives.

One nonideological belief uniting all Supreme Court justices is that their
mandates are to be obeyed, Mr. Freedman said.

Houston appellate lawyer Aaron Streett, a former Supreme Court law clerk,
said it is unfair to say the lower courts are "in open defiance of the
court, because at least in some of these cases, the Supreme Court's
earlier rulings are pretty difficult to sort out."

Mr. Osler also points out that the 5th Circuit is in a tough spot because
it traditionally defers to state courts, and the Court of Criminal Appeals
takes a considerably more conservative approach to the death penalty than
the Supreme Court.

The 5th Circuit is "stuck between a Supreme Court that keeps sending them
in one direction and Texas state courts [that] keep doing the same kind of
thing."

Legal experts put some of the blame on Texas' system of electing Court of
Criminal Appeals judges, who might feel public pressure to be "tough on
crime."

"Part of it is you have an elected Court of Criminal Appeals and that they
are highly motivated to support the prosecution," said Mr. Osler. "And I
say that as a former prosecutor myself."

But Judge Keller said judges on her court do not bow to political
pressure.

"We just try to follow the law," she said.

U.S. SUPREME COURT TO REVIEW TEXAS CASES

A look at the 3 Texas death penalty cases that have been accepted by the
U.S. Supreme Court in recent weeks:

LaRoyce Lathair Smith

The crime: Mr. Smith was convicted and condemned to die for the 1991
murder of Jennifer Soto during an attempted robbery at a DeSoto fast-food
restaurant.

The issue: Whether jurors were properly instructed to take into account
certain mitigating evidence, such as low IQ or Mr. Smith's troubled
background.

The latest move: The Supreme Court accepted the case from the Texas Court
of Criminal Appeals for a second time and will determine whether the lower
court has abided by the Supreme Court's line of decisions on jury
instructions and mitigating evidence.

Jalil Abdul-Kabir

Brent Ray Brewer

The crimes: Mr. Abdul-Kabir (formerly known as Ted Cole) was convicted in
the 1987 death of Raymond Carl Richardson of San Angelo during an
attempted robbery. Mr. Brewer was convicted in the 1990 robbery and
slaying of Robert Doyle Laminack in Amarillo.

The issue: In both cases, the issue is jury instructions and mitigating
evidence, including evidence of mental impairment and childhood hardships.

The latest move: The Supreme Court has consolidated the 2 cases, which
come from the 5th U.S. Circuit Court of Appeals, to determine if the lower
court has abided by Supreme Court precedent.

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

DNA sought in girl's '93 slaying ---- Plano: Blair's lawyers ask judge to
order tests for 3 other people


Attorneys for convicted child killer Michael Blair asked a judge Wednesday
to order new DNA tests for 3 people to try to prove Mr. Blair's innocence.

Philip Wischkaemper, Mr. Blair's attorney, said Collin County District
Attorney John Roach should get DNA from the father and brother of
7-year-old Ashley Estell, who was abducted and killed in 1993.

The district attorney also should obtain DNA from a man who was
officiating a youth soccer game in the Plano park where Ashley
disappeared, according to Mr. Wischkaemper's motion.

The man, who previously had been convicted of a lewd act with a child, was
questioned by police early in the investigation. Today, he should be
considered the prime suspect, Mr. Wischkaemper said.

He said he isn't suggesting that Ashley's father or brother were involved
in the crime, only that their tissue samples might have gotten under her
fingernails.

Ashley's fingernails were clipped during an autopsy, and recent tests show
that tissue samples detected didn't come from Mr. Blair, Mr. Wischkaemper
said. DNA technology was not advanced enough to use in Mr. Blair's 1994
trial.

The new tests would allow the district attorney to rule out the Estell
family members and the former soccer referee as the sources of DNA found
under Ashley's fingernails, Mr. Wischkaemper said Wednesday.

Prosecutors shouldn't object to obtaining tissue samples if they are
interested in finding Ashley's killer, he said.

"I don't see what they have to lose," Mr. Wischkaemper said.

First Assistant District Attorney Greg Davis disparaged the request for
new tests.

"There's nothing new in the motion that merits a response," Mr. Davis
said. "It looks more like a press release than a serious legal document."

Mr. Roach couldn't be reached for comment Wednesday. Last week, he said
Mr. Blair is the killer, even though his DNA doesn't match that found
under Ashley's fingernails.

State District Judge Nathan White Jr., who presided over Mr. Blair's trial
and has the case on appeal, declined to comment. He has not ruled on any
motion filed by Mr. Blair's attorneys in the past five years.

Richard Estell, Ashley's father, declined to comment Wednesday. Family
members have not granted any interviews since her death.

After Mr. Blair's arrest, authorities found that he had been paroled in
1990 after serving 18 months of a 10-year sentence for burglary and
indecency with a child.

Ashley's death generated nationwide publicity and prompted new Texas laws
that require longer prison terms for repeat sex offenders and better
tracking once they are released.

Mr. Blair, now 35, has been on death row since his conviction.

His attorneys hope to win a new trial based on the DNA evidence and clear
him of the crime. However, he would never be freed from prison because he
is serving 3 consecutive life sentences for other sex crimes. In 2004, he
pleaded guilty to four charges of aggravated sexual assault of a child.

Mr. Wischkaemper said the new DNA findings prove that Mr. Blair wasn't
around Ashley when she disappeared from a Plano playground Sept. 4, 1993.
Her body was found the next day beside a rural road about 6 miles away.

The former soccer referee questioned after her death has gone by the names
Josh Crowley, Derrick Josh Foster and Matthew Frontera, Mr. Wischkaemper
said in the new motion.

During questioning about Ashley's killing, the man invoked his Fifth
Amendment rights against self-incrimination.

"The mere fact that Crowley took the Fifth Amendment with regard to this
case reflects 'probable cause' for further investigating his possible role
as the assailant in this murder," the motion says.

Since Ashley's slaying, Mr. Crowley has been convicted of at least two
sexually related offenses  one in Arkansas and one in North Carolina, it
says. His last known address was Anaheim, Calif.

No physical evidence links Mr. Crowley to Ashley's death, Mr. Wischkaemper
said. But he disappeared from the park where Ashley was playing and never
returned to pick up his paycheck from the soccer association.

"The circumstantial evidence is just as tenuous for him as it was for
Michael Blair," Mr. Wischkaemper said. "He's my best suspect."

(source for both: Dallas Morning News)

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

Supremes to Examine Death Row Appeals


So far, the U.S. Supreme Court has agreed to hear three Texas death row
appeals during its new term, which begins this month. In each case, the
high court will determine whether lower courts  specifically the Texas
Court of Criminal Appeals and the 5th U.S. Circuit Court of Appeals  have
complied with the Supremes' previous rulings regarding jury instructions.
In 1989, the high court rejected the state's special instructions, given
to jurors in death-penalty cases, which omitted any clear way for jurors
to weigh mitigating evidence in deciding a sentence  including whether the
inmate had any mental disability or a history of childhood abuse; in 1991
the instructions were finally rewritten to include a specific question
regarding mitigating evidence that might preclude imposing a death
sentence.

All 3 of the cases the high court has agreed to hear, however, involve
prisoners sentenced under the old guidelines, and what the court decides
in these cases could determine whether the death sentences of potentially
68 prisoners sentenced under the old guidelines will stand. The court will
hear the appeals of Jalil Abdul-Kabir (aka Ted Calvin Coe), Brent Brewer,
and LaRoyce Smith; in the Abdul-Kabir and Brewer cases, the court will be
asked to determine whether the 5th Circuit correctly determined whether
the jurors had a chance to factor mitigating evidence into their
decisions; in Smith's case, the court will determine whether the CCA
knowingly disobeyed its 2004 ruling that Smith deserved a new sentencing
hearing. On rehearing, the CCA in March opined that Smith's sentence
should stand.

The Supremes' decision to accept the three cases at hand suggests they're
not finished smacking the 5th Circuit and the CCA, 2 courts that they've
chastised before in opinions suggesting the appellate courts should pay
more attention to the high court's rulings. Indeed, the justices sent
Smith's case back to the CCA without even hearing oral arguments, instead
issuing a tersely worded order that the court review its work. Notably,
the Supremes also ultimately tossed the conviction of death row inmate
Thomas Miller-El, after determining that the 5th Circuit seemingly ignored
its ruling that the court thoroughly vet evidence that Miller-El's
conviction had been tainted by race-based jury selection. After hearing
the case a 2nd time, the Supremes yanked the conviction, sending
Miller-El's case all the way back to Dallas Co. district court for
retrial.

(source: Austin Chronicle)






ALABAMA----impending execution

Alabama inmate faces execution Thursday in elderly woman's death


Larry Eugene Hutcherson's attempt to avoid execution by lethal injection
Thursday in Alabama rests with U.S. Supreme Court Justice Clarence Thomas.

The 11th U.S. Circuit Court of Appeals on Tuesday refused to issue a stay
for the 37-year-old inmate who pleaded guilty to the June 26, 1992 slaying
of 89-year-old Irma Thelma Gray in her Mobile home.

Medical examiner Dr. Leroy Riddick testified at Hutcherson's trial that
Gray's throat had been cut so severely that she was almost decapitated.
There was also evidence she had been sodomized.

In his confession, Hutcherson said he had taken 6 Valium tablets and had
drunk a lot of liquor before committing the burglary and murder, according
to the trial record. He left his driver license and other evidence at the
crime scene.

Hutcherson's conviction and death sentence have been upheld on previous
appeals. He's scheduled for execution at 6 p.m. (CDT) Thursday at Holman
Prison near Atmore.

A 3-judge panel of the 11th Circuit in Atlanta ruled Tuesday that
Hutcherson is not entitled to a stay based on the "equities of his case."

Hutcherson's attorney, Al Pennington of Mobile, turned to the U.S. Supreme
Court for relief, with no indication when Thomas will rule.

Assistant Attorney General James R. Houts urged the Supreme Court to deny
a stay, in part, because Hutcherson was sentenced to death based on a
jury's recommendation and a judge's findings in accordance with Alabama
law.

The inmate's interest in obtaining a stay of execution, Houts continued,
must yield to the state's interest in executing the sentence of "Irma
Gray's killer."

In its decision, the 11th Circuit panel wrote: "Hutcherson has waited
until the eve of his execution to request relief in the form of an
injunction or motion to stay."

Hutcherson was aware of the pending execution 4 months ago, the panel
ruled, adding that the request for a stay was not brought to the court "in
a timely fashion."

And since he had previously litigated the very same claim, the panel said,
there is no reasonable basis for his decision to wait 10 months after the
dismissal of his first habeas corpus petition to restyle his claim and
return to court with it.

Alabama's last execution occurred Sept. 22, 2005 when John W. Peoples died
by lethal injection at Holman Prison. There are currently 192 inmates on
death row.

(source: Associated Press)






OHIO:

Death sentence upheld


Decades of substance abuse and psychiatric problems won't spare a
convicted killer from the death penalty.

The Ohio Supreme Court Wednesday upheld the death sentence for Donald J.
Ketterer in the February 2003 killing of 85-year-old Lawrence Sanders of
Hamilton.

Judges rejected his argument that an extensive history of mental illness,
alcoholism and drug abuse required reversal of the death sentence.

Ketterer, 55, pleaded guilty to aggravated murder for beating Sanders, his
friend, with a cast-iron skillet and torturing him with scissors and other
kitchen utensils.

A 3-judge panel in Butler County had sentenced Ketterer to death.

(source: The Enquirer)






IDAHO:

Death row inmates not likely to be executed


A prison inmate sentenced to death in Idaho won't be executed anytime
soon.

Thats because a federal court has deemed David Card too mentally ill to
even work with his attorneys.

While his case is different than other death row inmates, it does
highlight an issue in Idaho - that inmates sentenced to death face little
chance of being executed.

There are currently 20 inmates that have been sentenced to death.

But only one person has been executed in Idaho since the death penalty was
reinstated in 1970.

Its an issue that state officials say stems from the courts.

19 men and 1 woman face execution for the most heinous of crimes. Some
have been in prison for 25 years.

"Well, all of them have been convicted, they've all been sentenced to
death. They're all horribly egregious murders," said LaMont Anderson,
deputy attorney general.

One of those convicts is David Leslie Card who shot and killed 2 Nampa
newspaper carriers.

A judge has stayed his death penalty because his schizophrenia has gotten
so bad, he can't even communicate with his attorneys.

"We had Card examined by 2 of our experts who said that he is currently
incompetent, he's not able to assist his attorneys," said Anderson.

Idaho's death row also includes murderers like Richard Leavitt.

"He stabbed a young woman in her waterbed 14 times. Tom Creech is a serial
killer, Robin Row killed all the members of the family. Gerald Pizzutto
took a ballpean hammer and bludgeoned 2 innocent and unknown individuals,"
said Anderson.

Each one of them has gone through or is going through the appeals process.

But since 1970 when the death penalty was reinstated only 1 person has
been executed. Keith Eugene Wells, who ordered his attorneys to stop the
appeals process, was given a lethal injection in 1994.

The attorney generals office says the reason executions are so hard to
carry out is because Idaho is a part of the Ninth Circuit Court.

"There are fewer executions in the Ninth Circuit Court of Appeals, despite
the fact that there are more death sentenced inmates in the Ninth Circuit,
than any other circuit in the country," said Anderson.

The attorney general's office would like to see the Ninth Circuit Court
split up, which would take an act of Congress.


(source: KTVB News)






WISCONSIN:

Panel contests death penalty


In a panel discussion opposing the death-penalty advisory referendum
appearing on the November ballot, several speakers criticized the death
penalty for being cruel and ignoring the possibility of error.

The discussion, held in the Wisconsin State Historical Society auditorium,
featured Juan Melendez, who was exonerated from a death sentence and
released from prison after serving more than 17 years. Melendez was freed
after the discovery of a taped confession by the real murderer in January
2002.

Melendez spoke of the suffering he experienced in those 17 years, noting
the death penalty is a "cruel" punishment.

"The problem with the death penalty is that people dont have all the
details," he said. "We got rid of segregation, we got rid of slavery, we
can get rid of this madness."

Vikki Panetti, the sister of a man on death row in Texas, objected to the
death penalty on different grounds.

"[My brother had] a lengthy history of 14 commitments for mental illness
[and] was allowed to represent himself as a lawyer in a court in a capital
murder case," she said.

Panetti said the mentally ill should not be executed, adding that allowing
people with histories of mental illness to represent themselves in court
"makes a mockery of our whole criminal justice system."

Robbie Lowery, a law officer with 32 years of experience in law
enforcement, acknowledged that there is potential for error during the
judicial process. Under public pressure in high profile cases, he said
officers are often made to feel that they must "get [the case] solved
now."

"We go where the evidence leads us, but sometimes we make mistakes, and
mistakes should not cost someone their life," he said.

Cynthia Hirsch, a Wisconsin assistant attorney general, also said that in
the pressurized environment that can surround a death-penalty case,
officials sometimes "forget to perhaps examine the other side of an
issue."

Hirsch also noted two studies that found a prevalence of racism in
death-penalty sentences.

According to the studies, she said, "the odds of receiving the death
penalty are more than 3 times greater if the victim of the crime is
white."

State Sen. Alan Lasee, R-De Pere, the author of the advisory referendum,
said in an interview with The Badger Herald that the reason he authored
the resolution was to get an idea of Wisconsin citizens stance on the
death penalty.

"Whats wrong with asking Wisconsin citizens what they feel on this
subject?" he asked, noting that only if the non-binding advisory
referendum passed with a "sizable margin" would the state Legislature
pursue legislation to actually enact capital punishment.

In response to the increased cost of the death penalty compared to
incarceration for life, Lasee cited a bill he introduced in the past that
would limit the lengthy and expensive appeals process to 5 years.

"The costs [of the death penalty] are always associated with the lengthy
appeals  5, 10, 15 years and more."

He noted that the death penalty would only be used in the "most violent"
of crimes.

"There are truly evil people in the world.  I think we do society a favor
by putting them out of their misery," Lasee said.

According to Hirsch, however, the death penalty "is not justice; it's
vengeance."

(source: The Badger Herald)

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

Death penalty makes no sense


Dear Editor: Everyone deserves to die of old age, even convicted felons,
but in next month's election, the proposition that every person's life is
worth protecting will be put to a vote.

After 150 years of getting along just fine without it, our beloved state
will be seriously considering reinstating the death penalty. Would you
rather consent to a man's execution, or to his lifetime incarceration
without the possibility of parole?

Given modern prisons, either way can guarantee the public's safety and,
due to the costly appeals processes, a life sentence is cheaper for the
taxpayer than an execution. In both situations the criminal pays for the
crime for the rest of his or her life.

How will goodness be better served by way of vengeance or mercy?

Reinstating the death penalty in Wisconsin would be an unhealthy decision
for our state. By responding violently to a violent crime, the death
penalty continues the chain of violence begun by the offender.

The death penalty also robs the offender and the victim's family of a
lifetime of opportunities for reconciliation and healing. This Nov. 7,
make it to the polls and vote against state-sanctioned killing. Wisconsin
can do better.

Laura Feltes ---- Madison

(source: Letter to the Editor)