[Deathpenalty] death penalty news----N.C., GA., CALIF., OHIO, S. DAK.

[Rick Halperin]

Feb. 2



NORTH CAROLINA:

Judge: Prosecution hid witness statements during murder trial


A federal judge reviewing a death row inmate's case said the prosecution
lied in court and hid witness statements during the man's 1995 murder
trial.

In court documents filed this week, U.S. District Judge Graham Mullen
questioned the behavior he said prosecutors used to win a conviction
against Darrell Strickland in Union County.

"In suppressing (witness statements) ... and lying about it to the court,
the prosecution lost sight of what the American judicial system strives to
guarantee," Mullen wrote in a 120-page order.

But former prosecutor Scott Brewer, who's behavior in the case was also
the subject of a grievance filed last year with the North Carolina State
Bar, said he didn't deliberately withhold anything in the trial.

Strickland, 48, was convicted in the shooting death of Henry Nathaniel
Brown and remains on death row. Brown was shot at Strickland's Marshville
home during a night of drinking, and the men's wives were in the kitchen
when it happened, according to court documents. Gail Brown was the only
witness to the shooting.

The statements in question include two or three that Gail Brown made to
police. The statements, which included conflicting details, weren't given
to defense attorneys. And Brewer said in court that her statements didn't
exist, according to court transcripts. Another prosecutor on the case did
not correct Brewer, the transcripts show.

Strickland's attorneys have said the evidence in question suggests that
the killing may have happened in sudden anger, not with premeditation.
They say he might have avoided a death sentence if all the evidence had
been known.

"When prosecutors believe they need to hide evidence in order to obtain a
desired verdict or a desired sentence, it raises questions about whether
justice is, in fact, being done," Mullen wrote.

The order came in response to Strickland's request to be freed, which
Mullen recommended against.

Brewer, who is now a district judge, said Thursday that Mullen was making
unjust statements without consulting the prosecution in the case. He also
noted that he didn't mention Gail Brown's statements because he didn't
think they were legal.

"I don't know how he could come to this conclusion without hearing from
us," Brewer said.

Superior Court Judge William Helms ruled in 2001 that Strickland's
attorneys had been entitled to Gail Brown's statements. But Helms also
said not having the statements - one of which he said wasn't legal because
it wasn't signed - had not hurt the defense.

Brewer prosecuted another murder case in which his behavior was
questioned. The state bar accused him and former Union prosecutor Ken
Honeycutt of not telling a trial judge or defense lawyers about a key
witness' testimony deal in the 1996 death penalty trial of John Gregory
Hoffman. Evidence about the deals has led to the granting of a new trial
for Hoffman, but a special prosecutor investigating the deals said no
charges would be filed against Brewer and Honeycutt.

(source: Associated Press)






GEORGIA:

State public defender office having problem funding Nichols defense


A state public defender office said Thursday it may be forced to ask
judges to suspend many open cases that it supplies lawyers for, including
that of accused courthouse gunman Brian Nichols, unless it gets more money
to fund its operations.

Attorneys for the Georgia Public Defender Standards Council made the
comments in a motion asking Superior Court Judge Hilton Fuller to
reconsider his ruling ordering the council to pay certain expenses in the
Nichols case.

The exact expenses have not been disclosed publicly and are under seal,
but Fuller's order last month followed a request by Nichols' lawyers for
court assistance in paying for mental health experts. The director of the
council says in an affidavit accompanying Thursday's motion that the
expenses the judge ordered paid are not necessary for an effective defense
in the Nichols case.

Nichols plans to use a mental health defense in his murder trial. Jury
selection in the trial for the deaths of a judge, court reporter,
sheriff's deputy and federal agent began Jan. 11. Opening statements are
not expected until April or May.

According to Thursday's filing, the council already has approved more than
$1.2 million for attorneys' fees and expenses in the Nichols case.

In their motion, the lawyers for the council say that as it stands now, if
the council does not receive a $9.5 million supplemental appropriation
from the state Legislature by the end of March, the council won't have
enough money to operate its office.

The council says it has been informed that it can't count on receiving the
extra money, and that any money it may get won't be available until May at
the earliest.

The council warned that as a result "in death penalty cases, including
this case, the council will be forced to suspend payment of all bills for
attorneys fees and expenses as of Feb. 15 until the council receives the
necessary funds to resume payment."

The council added that it also "will be forced to recommend that judges
with pending cases affected by the budget crisis either stay all affected
cases until the funding crisis is resolved" or order the counties in which
the cases are pending to advance the funds for fees and expenses subject
to reimbursement from the council if and when the council gets more money
from the state.

The latter scenario could pose an added problem because Fulton County,
where the Nichols case is being handled, also has objected to paying some
defense bills.

The public defender office is asking the court to reconsider its ruling in
the Nichols case and let the office determine on its own what costs are
necessary for Nichols' defense.

There was no immediate response by Fuller. A previously scheduled hearing
in the case is set for Friday.

Nichols, 35, was being escorted to a courtroom in the Fulton County
Courthouse in downtown Atlanta for the continuation of his retrial on rape
charges when he allegedly beat a deputy, stole her gun and went on a
deadly shooting spree on March 11, 2005.

He is accused of killing the judge presiding over the rape trial, Rowland
Barnes; a court reporter chronicling the proceeding, Julie Ann Brandau; a
sheriff's deputy who chased him outside, Hoyt Teasley; and a federal agent
he encountered at a home a few miles away that night, David Wilhelm.
Nichols surrendered the next day after allegedly taking a woman hostage in
her suburban Atlanta home.

Defense lawyers and prosecutors are currently pouring through
questionnaires filled out by hundreds of potential jurors for the murder
trial. Individual questioning of those potential jurors by attorneys in
the case will begin Feb. 26.

Nichols, who faces a possible death penalty if convicted of murder, has
pleaded not guilty.

(source: Associated Press)






CALIFORNIA:

Secret execution talks challenged----Lawyers for a death row inmate and
some news outlets want California officials' discussions on revising
lethal injection to be conducted in the open.


Attorneys for death row inmate Michael Morales have asked a federal judge
to bar state officials from working in secret to revise California's
protocol for executions by lethal injection.

The request came in briefs filed late Wednesday in response to a motion
from a lawyer for Gov. Arnold Schwarzenegger that had sought a protective
order that would shield the state's deliberations from public view.
Lawyers for the media also asked that the process be open.

U.S. District Judge Jeremy Fogel in San Jose issued a scathing decision in
December, holding that California's current lethal injection procedures
violate the constitutional prohibition against cruel and unusual
punishment. Morales, like other inmates around the country, had alleged
that the state's three-drug cocktail inflicts extreme pain, masked by a
paralyzing agent that is part of the protocol. Fogel said the state's
system "is broken, but . can be fixed."

In response, the state agreed to issue a report by May 15 outlining the
changes it proposes to meet Fogel's concerns.

Officials also asked, however, that they be allowed to work in secret.

In a court filing, Deputy Atty. Gen. Steven M. Gevercer said "experts,
consultants, professionals and other public officials" working on a new
system "should feel comfortable discussing alternatives, options and
possibilities without fear that they will be subpoenaed or deposed simply
due to their participation in pre-decisional policymaking."

Attorney John Grele of San Francisco, one of the lead lawyers for Morales,
who has been on death row for more than 20 years for the brutal slaying of
Lodi teenager Terri Winchell, responded that secrecy was unnecessary.

California officials have offered no support for the "astounding
assertion" that absent the protections they seek, "experts will not be
willing to participate in the process," Grele wrote in his brief. "There
is every reason to think that experts will be willing to participate in
the revision even if their identities and deliberations are public."

He contrasted the state's request with then-Gov. Jeb Bush's response to
the botched mid-December execution of Angel Diaz in Florida. Bush called a
halt to executions and created a Commission on Lethal Injections to
publicly review the entire process in that state.

A post-execution review by Florida officials showed that Diaz's execution
was bungled because of a malfunction in the intravenous lines that fed him
the drugs. The problem left Diaz with 12-inch chemical burns on each arm.
Some eyewitnesses said he writhed in pain for 34 minutes before he finally
died.

The commission created by Bush "is operating in public, and has been able
to retain medical and corrections experts to deliberate over potential
improvements in the lethal injection protocol," Grele said. All of the
commission members, including an anesthesiologist and a county emergency
medical services director, have been publicly identified by state
officials and in Florida media. In contrast, Grele stated, California's
proposed revision process is "shrouded in secrecy."

Florida's 3-drug lethal injection cocktail is similar to California's. The
first drug, sodium thiopental, is a fast-acting barbiturate that is
supposed to render the condemned inmate unconscious before the second 2
drugs - pancuronium bromide, which paralyzes the body, and potassium
chloride, which causes cardiac arrest - are administered.

The thrust of Morales' challenge is that the state does not properly
administer enough of the first drug to ensure that an inmate does not feel
excessive pain when the potassium chloride is administered and that the
pain is masked by the 2nd drug, which makes it impossible for the inmate
to cry out.

Fogel's Dec. 15 decision cited several "critical deficiencies" in the
state's lethal injection system, including poorly trained staff;
unreliable records on drugs used in the process; improper mixing,
preparation and administration of drugs; and overcrowded conditions in the
death chamber at San Quentin. Granting a protective order at this time
would "only insulate incompetence," Grele said.

The media companies also opposing the protective order include Pacific
News Service, the Los Angeles Times, the Hearst Corp. and McClatchy
Newspapers.

Pacific News Service has a separate case pending in front of Fogel
alleging that pancuronium bromide conceals whether the inmate is
experiencing pain and as a consequence "infringes the 1st Amendment right
of the public and the press to attend and to witness executions
meaningfully."

Pacific News' lawyers, led by Ajay S. Krishnan of San Francisco's Keker &
Van Nest, say their case "will turn on balancing the government's
legitimate interest in administering pancuronium bromide against PNS' 1st
Amendment interest in meaningfully witnessing executions. To perform that
balancing test, the court must know the [state's] actual reasons for
administering pancuronium bromide." If the judge permits the state to keep
its deliberations secret, Pacific News will be unable to obtain vital
information on the central point of its lawsuit, Krishnan contends.

The brief for the newspapers emphasizes that in 2004, "California voters,
by an 83% approval margin, enacted . constitutional right of access to
information . which, in the words of its proponents, 'will allow the
public to see and understand the deliberative process through which
decisions are made.' " If the state obtains the protective order, it will
undermine that California law, said San Francisco attorney Karl Olson, who
represents the newspapers.

On Thursday, Schwarzenegger's legal affairs secretary, Andrea Lynn Hoch,
issued a statement reiterating the need for secrecy.

"In order to protect the integrity of the decision-making process and
provide an environment where candid discussions can take place and all
options can be explored, we are asking the court to protect the
deliberative process," the written statement said.

"This process is critical to producing a revised lethal injection protocol
and effective procedures that address the identified deficiencies in the
implementation of the lethal injection protocol.. If the deliberative
process is harmed by the constant threat of subpoena and discovery, then
the decision-making process is impaired, which impacts the policy
decisions."

(source: Los Angeles Times)


OHIO:

Filiaggi's last hope rests with governor----Parole board rejects clemency,
execution planned for April 24


Death may come in April for Elyria native James Filiaggi if Ohio Gov. Ted
Strickland heeds the advice of the Ohio Parole Board, which refused to
grant clemency to the convicted killer Thursday. In the unanimous
decision, the board could find no reason to spare Filiaggi's life.

Filiaggi is slated to be executed April 24 for the Jan. 24, 1994, murder
of his ex-wife, Lisa Filiaggi, whom he shot in the head as she was hiding
in a closet in a neighbor's home. The couple had had a troubled
relationship following their divorce, and Lisa Filiaggi had filed charges
against her ex-husband for damaging her home not long before she was
killed.

On that same night, James Filiaggi also tried to kill Lisas stepfather,
Delbert Yepko, who fought him off with a can of pepper spray. Filiaggi
then fled the state  returning to face charges only after authorities
threatened to take his parents home, which had been used to secure his
release from jail on a previous criminal charge.

Filiaggi made no effort to save his life when he met with a parole board
representative last month  telling her he was prepared to die, and that
the clemency process was a farce and he knew he would not be spared.

He also said during the interview that he'd never begged for anything in
his life, and he didnt plan to start now, according to a parole board
report.

"He stated that he did not want clemency; that he did something he could
not take back, no matter how much he wanted to," the report said.

During his clemency hearing last week, his attorney did not present any
evidence that might have swayed the board to spare him from being lethally
injected.

Spiros Cocoves, one of Filaggi's attorneys, said his client appears to be
out of legal options, and his appeals have been exhausted.

"I don't think there's anything else," Cocoves said.

A Democrat who just took office, Strickland already has delayed Filiaggi's
original execution date, set for Feb. 13, because he needed more time to
conduct a thorough review of his case and the cases of other death row
inmates with pending execution dates.

There has been speculation that Strickland's background  he's a minister
and a psychologist who has worked in the state prison system  might prompt
him to forgo any executions during his tenure.

But Keith Dailey, a Strickland spokesman, said the governor has no plans
to place a moratorium on executions while he is in office. He said
Strickland still is reviewing Filiaggis case and considering whether to
commute his death sentence to life in prison.

"He will conduct a thorough and comprehensive review," Dailey said.

Lorain County Prosecutor Dennis Will said he wasn't surprised by the
board's decision.

"Mr. Filiaggi did not put any information before the board," he said.

The family and friends of Lisa Filiaggi  including one of James Filiaggi's
daughters, who was in the home with her older sister when James Filiaggi
forced his way in  called for his execution at last weeks hearing.

Eric Beiswenger, Lisa Filiaggis fiance, told the board that Filiaggi
killed a wonderful woman and "hunted her down like an animal and murdered
her."

(source: The Chronicle Telegram)






SOUTH DAKOTA:

House panel votes to keep death penalty


A South Dakota House committee has rejected a bill that would have
repealed the death penalty.

The State Affairs Committee voted 11-1 to defeat HB1175 after lawmakers
said South Dakota citizens clearly support the death penalty.

House Republican Leader Larry Rhoden of Union Center said the death
penalty is consistent with respect for the sanctity of life because
capital punishment makes sure killers cannot kill again. He said if those
who commit the most heinous murders receive life sentences, they could
kill other inmates or prison guards.

Supporters of the bill said the death penalty should be repealed because
society should not take life. They said life in prison without possibility
for parole is a sufficient punishment.

The committee approved Gov. Mike Rounds' proposal to change state law so
prison officials can use whatever mix of drugs is considered best for
lethal injections at the time an execution occurs. The execution of
convicted murderer Elijah Page was postponed last summer because state law
called for using 2 drugs while the commonly accepted method uses three
drugs.

The panel voted 9-1 to approve HB1175, the bill dealing with which drugs
are used in lethal injections.

The State Affairs Committee also voted 9-2 to approve a third measure,
HB1160, which would remove the requirement that licensed doctors be
involved in executions. Supporters said current law could force doctors to
violate their oaths to preserve life by taking part in executions.

(source: Associated Press)