[Deathpenalty] death penalty news-----N. MEX., FLA., CALIF., ARIZ.

[Rick Halperin]

April 10



NEW MEXICO:

Hobbs man sentenced to life as jury considers death penalty for another
murder


A Hobbs man was sentenced to life in prison for killing a convenience
store clerk, but the case continued Tuesday as jurors heard testimony to
determine if the death penalty is warranted for another woman's rape and
murder. Paul Lovett, 27, was accused of killing Elizabeth Garcia, 26, in
January 2002 and Patty Simon, 35, in May 2003. He was convicted last month
of 1st-degree murder in both cases and of criminal sexual penetration in
the Simon case.

State District Judge Don Maddox on Monday sentenced Lovett to life in
prison in Garcia's death and 18 years in Simon's case on the rape charge.
Jurors began hearing testimony Tuesday to help them decide if Lovett
should be executed for Simon's murder. Assistant District Attorney Ray
Romero said jurors must determine if Simon died during commission of the
rape, and they also must unanimously agree beyond a reasonable doubt to
impose a death sentence.

"The only question is, Did Mr. Lovett intend to kill Patty Simon?" Romero
said. Romero began presenting testimony to support capital punishment in
the case. Defense attorney Rebecca Reese later planned to call several
witnesses to tell jurors why Lovett's life should be spared. Maddox
scheduled 5 days for testimony by both sides, so the jury probably won't
begin deliberations on a possible death sentence until early next week.
There currently are 2 men on death row in New Mexico, convicted murderers
Timothy Allen of Bloomfield and Robert Fry of Farmington. Also on Monday,
Maddox denied a defense motion for a new trial after Lovett addressed the
judge and complained about his public defenders. Lovett said they were
unprepared for trial and refused his requests to allow him to testify.

"I wanted to testify on my own behalf," Lovett told the judge. "They
always seemed to feel that something was more important at the time. At
trial, I asked to testify and they still kept putting me off."

The trial was moved to Carlsbad because of extensive publicity in Lea
County. Lovett was arrested June 25, 2003, more than a month after Simon's
body was found by oilfield workers. She had sustained multiple blows to
her head and a gash across her neck. Simon left a Hobbs department store
on her work break May 13 and wasn't seen alive again. Garcia's body was
discovered Jan. 16, 2002 in a field. She was reported missing from her job
at an Allsup's store earlier in the day and was found with 57 stab wounds.

(source: Associated Press)






FLORIDA:

Is capital case in the wrong place?


The defense of Kenneth Wilk for the 2004 killing of Broward Sheriff's
Deputy Todd Fatta amounts to this: Yeah I shot him, but it wasn't
premeditated; I have AIDS, I was temporarily insane, and the task force
that came to arrest me really botched the raid, so please, please don't
give me the death penalty.

"This is a tragedy that could have been avoided," defense attorney Rafael
Rodriguez told jurors Monday. "Everything that could have gone wrong, did
go wrong."

By the end of his opening statement, Rodriguez managed to turn the
cop-shooter with a child-porn-obsessed boyfriend into the victim.

"A deputy was killed and that was a tragedy," Rodriguez said. "What's also
a tragedy is that Mr. Wilk's life was destroyed because of this case."

I don't know how that's going to play with a jury.

But the fact that this capital murder case has landed here, in Fort
Lauderdale federal court, away from the television cameras and more open
rules of state court, makes me think the defendant isn't the only one
dealing with issues of guilt.

The Broward Sheriff's Office still hasn't explained the planning and
decision-making that led up to the fatal raid on Aug. 19, 2004. The
Sheriff's Office might have violated its own policies in not using a
better-equipped SWAT team that morning. Wilk was known to have weapons and
a history of antagonism against law enforcement.

Having this case go the unusual federal route allows the Sheriff's Office
to insulate itself from embarrassment a little longer.

Don't misunderstand. Sheriff's Office mistakes don't absolve Wilk. It just
would be nice for everyone, especially Fatta's family, to get the whole
story.

But the rules are different in federal court. Details are easier to hide.
In state court, pre-trial depositions are public record. Not so in federal
trials.

The official line is that this case ended up in federal court because
Fatta was serving a federal warrant on behalf of a federal agency when he
was killed.

Ed Dion, an attorney for the Sheriff's Office who attended the trial
Monday, denied that the agency was using the federal system for cover. He
said federal courts might offer swifter justice than the state, a
consideration since Wilk claims to be dying of AIDS.

Dion also said Wilk could be prosecuted in state court on different
charges if he's acquitted in federal court.

But if the goal is to get a death-penalty conviction the first time, the
state system has lower hurdles and more experienced prosecutors.

Florida has not had a federal death-penalty conviction since Congress
reauthorized capital punishment in 1988. Since that time, there have been
3 federal executions.

Florida has executed 64 people since 1976, when the U.S. Supreme Court
ruled that states could again impose the death penalty.

This is the 1st time the Broward State Attorney's Office has not
prosecuted the slaying of a Broward law enforcement officer. State
Attorney Mike Satz usually likes to personally prosecute these cases.
Since 1990, Satz has been 3-for-3 in death-penalty cop-killing
convictions, although one case was reduced to life in prison on appeal.

Fatta's parents, brother and 2 sisters were in U.S. District Judge James
Cohn's courtroom on Monday. His mother, Josephine, dabbed tears from her
eyes when prosecutor John Kastrenakes recounted her son's final moments,
cut down by a single bullet that pierced his protective vest when he
entered Wilk's home.

Fatta's family has filed a wrongful-death suit against the Sheriff's
Office, but the case is on hold until Wilk's trial is over.

Sheriff Ken Jenne was quick to show up at Fatta's family's side after his
death, but he wasn't in court on Monday.

Maybe Jenne, whose business activities are being investigated by a federal
grand jury, figures he might be spending more time at the federal
courthouse soon enough.

Let's hope the Fatta family's time here isn't in vain. They deserve
justice. And answers, too.

(source: Sun-Sentinel)

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

Blasting 'Overpayment' of Bills in Murder Case, Fla. Judge Halves Defense
Fee Request


A veteran Broward County, Fla., Circuit judge has called the legal bills
in the capital murder case against a former federal informant one of the
"worst" examples of "overpayment" of legal fees and costs that she's ever
seen.

The case of Luis Martinez, who has been jailed since his arrest in
November 2003, is now on its fourth set of publicly paid defense attorneys
and has run up legal bills of $46,000 so far. With a trial date nowhere in
sight, Judge Ana Gardiner slashed the fees requested by Fort Lauderdale,
Fla., defense lawyer Barry Butin in half -- to $10,600 -- when Butin
recently withdrew from the case after 14 months.

Under state statute, the fee cap for representing defendants at the trial
level in capital homicide cases is $3,500. For the state Judicial
Administration Commission to pay attorneys more, the court has to find
that the extra billed hours were reasonable and that the case was
extraordinary.

Broward County officials have flagged the case of State v. Luis Martinez
as a prime example of why Florida's -- and particularly Broward County's
-- system of appointing private attorneys to represent indigent defendants
when the public defender's office faces a conflict has far exceeded its
budget.

In an interview, Butin, who has been handling conflict counsel cases since
1994, said the Martinez case was only the second such case in which he
requested more than the $3,500 fee cap. "I was on the case for 14 months,"
he said. "I thought I had the hours to ask for more money."

Gardiner could not be reached for comment by deadline. Calls to the JAC's
general counsel and executive director for comment were not returned by
deadline.

Patrick Rastatter, a Fort Lauderdale attorney who represented Martinez
before Butin was appointed, said it has been hard to get paid for billed
hours in conflict counsel cases, especially since the state exhausted its
conflict counsel budget and had to allocate extra money in November,
January and March.

Rastatter said the state often doesn't pay conflict counsel for all the
time and energy they put into cases. "You can't put on a time sheet that
you sat at a desk and just did some thinking," he griped.

STATE FEES TOO LOW?

When a public defender's office withdraws from a case due to conflict
related to other cases it's handling, the judge appoints a so-called
special public defender from a list of private attorneys. These conflict
counsel cases are overseen in each judicial circuit by the circuit's
Indigent Services Committee, which consists of the chief judge, the public
defender and 2 private attorneys.

The Legislature created the current conflict counsel system in 2004 when
it shifted responsibility for funding core justice system costs from the
counties to the state. Critics say the system was badly underfunded from
the beginning.

Statewide, the program was budgeted for $60 million in the 2007 fiscal
year, but it has gone $25 million over budget. The governor had to release
extra funds to pay the conflict counsel attorneys and their experts. In
the meantime, court reporters have gone unpaid, experts couldn't be hired
and cases were delayed.

The Florida Legislature is debating ways to revamp the system to reduce
costs. A Senate committee has proposed creating a second public defenders'
office in each of the state's five appellate districts to handle conflict
cases, which it says will save nearly $42 million. A House committee
proposes to give the existing public defender's office oversight over
conflict counsel cases.

Keeping the current system will cost the state an estimated $92 million
next year, said Sen. Victor Crist, R-Tampa, who heads the Senate Criminal
and Civil Justice Appropriations Committee.

Part of the reason why the system has gotten so expensive is that
individual cases like Martinez's cost so much as attorneys and their
experts request fees above the set limits, said a state Senate staff
member who asked not to be named. Some attorneys ask for fees higher than
the $3,500 cap when they put in large numbers of hours.

More is spent on conflict counsel in Broward than in any other county in
Florida. Lawyers in Broward were paid $6.6 million during the 2006 fiscal
year. Broward outspent far more populous Miami-Dade County by $600,000. It
outspent similarly sized Palm Beach County by $3.4 million. It has far
surpassed Hillsborough County's costs by $5.1 million.

"I'm a pretty good defense lawyer, but I can't defend these numbers,"
Broward Public Defender Howard Finkelstein said. "We're pretty out of
whack." Finkelstein said the Martinez case is the "poster child" for a
system run amok.

Finkelstein attributed the high costs in Broward to the PD's office's
withdrawal from a large number of cases in the past. He also said Broward
judges have been generous in allowing payments over the cap. There are
also cases like the Martinez case, in which several attorneys are
appointed and withdraw. All get paid.

Bob Wills, the Broward chief assistant public defender, said the Judicial
Administration Commission, which oversees the release of state funds to
pay for indigent services, brought the Martinez case to his attention.
Wills said the JAC expressed concern when Butin requested nearly $19,000
in fees despite being chastised by the judge for not performing all of his
duties. Butin led a third set of lawyers representing Martinez.

But Eric Schwartzreich, the president of the Broward Association of
Criminal Defense Lawyers, said the $46,000 paid out so far in the Martinez
case is a "paltry amount" compared with the fees attorneys earn in
representing more affluent defendants in major felony cases.

In death penalty cases involving defendants with private means, a defense
attorney generally earns between $100,000 and $200,000.

"I see the JAC moaning, and they have to be fiscally responsible," he
said. "But [special public defenders] take cases at a reduced rate," and
they generally are not abusing the system when they ask for fees above the
cap.

JUDGE EXPRESSES FRUSTRATION

Martinez, now 41, was charged with the October 2003 murder of Charles
Moretto, who was shot in the head at his $2 million Lighthouse Point home.
Police found that Moretto's cell phone, watch, gold necklace and the title
to his Bentley were missing after the killing.

Several witnesses said Martinez had expressed interest in purchasing
Moretto's car, and that Martinez was with the victim on the day of the
murder. Martinez had been working as an informant with the U.S. Bureau of
Alcohol, Tobacco and Firearms. The Broward State Attorney is seeking the
death penalty for Martinez.

Martinez was first represented by the Broward PD's office, which cited a
conflict and withdrew. The court appointed Rastatter, who also withdrew
due to conflict. In May 2005, Gardiner appointed Butin as special public
defender.

Last June, Butin filed a motion asking to postpone the trial until
February 2007 or else to be removed from the case. He said most of the
defense's legal investigative work wasn't done -- even though Martinez was
charged in 2003.

"The responsibilities thrust upon counsel in this case carry with them
psychological and emotional pressures unknown elsewhere in the law," Butin
said in his motion for withdrawal.

In an interview, Butin declined to comment on why he wanted to withdraw
from the case. "I understand that the judge has a job to move the case,"
Butin said. "But [Martinez] has to have his lawyers be ready on a capital
case."

Later that month, Gardiner granted his motion to withdraw. That same
month, she appointed Fort Lauderdale attorneys John Howes and Christopher
Grillo to replace Butin.

In January, Butin filed for attorney fees of $19,000.

During a series of hearings after Butin withdrew, Judge Gardiner expressed
frustration that the case was not progressing quickly enough. The case,
she said, is tying up her entire criminal docket. There is no trial date
scheduled.

"This case is almost in a position right now as it was in January of the
year 2004 when it started," Judge Gardiner said during a Feb. 2 hearing
concerning Butin's fees. The judge noted she had had to grant nearly one
continuance a month since Butin entered the case.

Gardiner complained she had to enter several orders compelling the defense
to review evidence or to enter a list of questions for depositions. This
"is the one case that I've entered the most discovery orders on my own to
try to move this matter," Gardiner wrote. "I cannot with good conscience
find that the [nearly $19,000 in] fees requested by Mr. Butin are
reasonable fees."

During the hearing, Butin said he took "no exception" to her comments.
Previously, he had acknowledged he couldn't handle the case.

During a Feb. 14 hearing, the judge expressed anger toward Howes and
Grillo for being behind schedule. "And my question is, since we're all
such bright people, what do I have to do to actually get the attention of
the attorneys?" Gardiner railed. "Do I have to put Mr. Howes to share a
cell with Mr. Martinez, or Mr. Grillo to share a cell with Mr. Martinez?"

During that hearing, Howes said he and Grillo have "basically started the
defense" of Martinez.

Grillo, the lead counsel, did not return a call for comment. Howes, in a
phone interview while on vacation, declined to comment on the previous
attorneys on the case. He said the Martinez case is in the midst of
hearings on a motion to suppress evidence.

"The case has been complicated by the number of lawyers involved," said
Rastatter, who has handled conflict counsel cases for three decades. "The
underlying case is not very complicated."

UNUSUALLY LONG JAIL STAY

Martinez has been incarcerated in county jail since his November 2003
arrest. In March, the National Institute of Corrections found that
Broward's jails were chronically overcrowded due to an inefficient
criminal justice system that has defendants waiting too long to go to
trial.

Finkelstein said Martinez's detention in county jail for 3 years without
trial is close to record-setting. He said the average homicide case lasts
about two years. Any longer than that, he warned, is not good for the
defendant's mental health, the already overcrowded jail or the justice
system.

In February, the Judicial Administration Commission asked Wills to bring
the case to the attention of Broward's Indigent Services Committee, which
oversees the circuit's conflict counsel program. The committee discussed
the issue at its March meeting, and transcripts of Judge Gardiner's
criticism of Butin's fees were circulated.

Broward Chief Judge Dale Ross, head of Broward's ISC, forwarded the
transcript to Schwartzreich, who said he spoke to Butin but won't take any
action. "I did appreciate that Barry fell on the sword and went into the
courthouse and said that he was over his head," Schwartzreich said. "I
don't think Mr. Butin jeopardized his client."

Butin said he would no longer serve as lead defense counsel in any murder
cases. "I think Mr. Martinez appreciated how hard I worked on the case,
and I know he has nothing but good things to say to me."

(source: Daily Business Review)




CALIFORNIA:

Death Row inmate convicted in 1984 rape-slaying


An Alameda County jury deliberated for less than an hour today before
convicting a man of 1st-degree murder with special circumstances in the
rape-slaying of an 18-year-old San Leandro woman in 1984.

Robert Rhoades, a former San Lorenzo resident who is already on Death Row
for murdering an 8-year-old boy, showed no emotion when a court clerk read
the verdicts pronouncing him guilty of murdering Julie Connell with the
special circumstance of rape.

Connell's parents, James and Kathy Connell of San Leandro, burst into
tears, as did the victim's sister, Patricia Connell. They hugged Senior
Deputy District Attorney Angela Backers after jurors filed out of court.

As they left, several jurors touched the back of an empty chair next to
Backers that the prosecutor had told them symbolized the victim.

"I've been waiting 23 years to get this guy," Kathy Connell said outside
court. "He's the one. All I can say is my daughter can rest now."

On Thursday, the jury will be told of Rhoades' previous murder conviction,
which makes him eligible for a second special circumstance, Backers said.
Next Wednesday, the penalty phase of the trial will begin, after which the
jury will determine whether Rhoades should be sentenced to death for Julie
Connell's murder or to life in prison without parole.

"We're very disappointed with the verdict," said Albert Wax, an attorney
for Rhoades. "We're respect the jury's verdict, and we're hopeful that
they'll spare his life."

Julie Connell disappeared April 20, 1984, after she went to a park in
Hayward to read a book. Her body was found 5 days later in a corral in
Palomares Canyon near Castro Valley. Authorities say she was tied up and
raped and her neck was slashed.

Rhoades wasn't identified as a suspect until DNA evidence linked him to
the crime after his conviction for the 1996 kidnap, torture and murder of
8-year-old Michael Lyons of Yuba City.

"He destroyed so many people. He took our babies' lives," Michael's
mother, Sandra Fuller of Marysville (Yuba County), said outside court.
"I'm just so happy for them and that Julie got the justice she deserved."

Of Rhoades, she said, "He's absolutely not human. To breathe the same air
as him makes me sick."

(source: San Francisco Chronicle)






ARIZONA:

State heads towards first execution since 2000


By the time Mike Kimerer got Robert Comer on the phone to tell him he was
going to die, the news had already reached Comer.

He was happy about it.

Finally, after nearly 2 decades of appeals and seven years after he
decided to end efforts to have his death sentence overturned, a federal
appeals court had said Comer was competent to end that fight.

"When he heard about the decision of the Ninth Circuit (Court of Appeals),
that to his mind was a victory," said Kimerer, a Phoenix attorney who
represented Comer in his effort to end his appeals. "That was what he was
trying to achieve."

Now, Arizona is gearing up for its 1st execution in nearly 7 years.

The Arizona Supreme Court has been asked to issue an execution warrant and
is expected to take up the matter on April 17, said Andrea Esquer, a
spokeswoman for Attorney General Terry Goddard.

The execution date would be set for 35 days after the Supreme Court
approves the execution warrant.

Comer, testifying in 2002 before a federal judge, said he wanted to go
ahead with the execution because he was tired, had killed a man and the
law called for his death.

Now 50, Comer was convicted in 1988 of killing a fellow Apache Lake camper
during a 1987 crime spree during which he also raped another camper after
tying up her boyfriend. Besides the first-degree murder and armed robbery
conviction for the shooting death of Larry Pritchard, Comer also was
convicted in Maricopa County Superior Court of sexual assault, armed
robbery, kidnapping and aggravated assault for the attacks on the female
camper and her boyfriend.

Comer's girlfriend was with him at the time of the crimes and pleaded
guilty to kidnapping and testified against Comer. Juneva Willis served
nearly six years in prison before her 1994 release.

The federal appeals court's March 15 decision ended efforts by a second
team of Comer's lawyers who were fighting a 2002 ruling by a federal judge
that he was competent to fire them and end his appeals. Kimerer
represented Comer in the attempt to show he could make a rational decision
to choose death.

"I think one of the primary reasons is that it's the last thing that he
really has a choice about and he really wants to make that choice,"
Kimerer said in a recent interview with the Associated Press. "And in his
mind he deserves the death penalty based on his very objective analysis of
the situation.

"He has very rational, objective reasons as to why he has made this
decision. It's not fun to live on death row."

Because Comer was sentenced before Arizona voters approved a switch from
the gas chamber to legal injection in 1992, he has a choice of either
method.

He has chosen lethal injection, said Katie Decker, a spokeswoman for the
Arizona Department of Corrections.

The expected execution so many years after the last one in Arizona and the
choice of lethal injection could be a problem for the state.

Arizona hasn't executed anyone since November, 2000, when Tucson resident
Donald Miller died by lethal injection for helping to murder an
18-year-old woman.

Because of the time between executions, Decker said the state is
completely reviewing its procedures for carrying out the sentence.

In recent years, lethal injection techniques have become the focus of
legal questions in several states.

In December, then-Florida Gov. Jeb Bush suspended executions after an
inmate required a 2nd dose of lethal chemicals and took twice as long as
usual to die. The drugs were mistakenly injected into his tissue instead
of his veins.

Executions also were halted in Missouri, California, Tennessee and North
Carolina because of lethal injection concerns.

Comer, in the 2002 hearing where he was trying to end his appeals, made it
clear why he wanted to go ahead and be executed.

"We've been doing this for 15 years," Comer said under questioning by one
of Kimerer's associates. "...I killed Larry Pritchard. Stuck a gun in his
ear and pulled the trigger, he's dead. You see?

"Has to do with me being tired. Has to do with me paying my debt to
society. Let's do it. I don't know what everybody's so scared about. Death
is not that damn bad. But I killed Larry. This is what the law allowed me
to be sentenced to."

(source: Arizona Republic)