[Deathpenalty] death penalty news-----OHIO, N.H.
rhalperi at mail.smu.edu
Sun Jan 7 18:46:38 UTC 2007
Strickland signals he'll delay 1st execution
Gov.-elect Ted Strickland said Friday he will not have ample time to
review the case of condemned killer Kenneth Biros before the scheduled
execution date, signaling the likelihood the first execution of his
administration will be postponed.
"In talking with my legal counsel and with Gov. Bob Taft's legal counsel,
they have told me there is no way that we can have time to do the kind of
analysis dealing with that that Bob Taft does," Strickland told The
Associated Press. "It takes him much longer than that amount of time that
I would have."
The statement was met with unified wonder by those for and against the
death penalty: Does this mean the new governor is reconsidering the death
"We've been through this before with Gov. (Richard) Celeste, but he did it
when he was leaving office," said John White, immediate past president of
the Ohio Prosecuting Attorneys Association. "But to have a new governor
doing it on the way into office, it may set the stage for the
White referred to Celeste's 11th-hour decision in 1991 to commute the
sentences of 8 death row inmates on his way out of office.
Jim Tobin, a spokesman for Ohioans to Stop Executions, said governors in
other states are increasingly concerned about the fairness of the death
penalty and whether lethal injection causes undue pain and suffering.
"We commend the governor for wanting to take his time and be very
deliberate on the death penalty," he said.
Strickland, who takes office Monday, would have 16 days to review Biros'
case if his execution is carried out on its scheduled date of Jan. 23.
Strickland said Taft's reviews typically have taken at least several
Judge Gregory L. Frost of the Southern District of Ohio in December
granted a request to delay Biros' execution until a further order from the
court, as part of an ongoing case challenging the constitutionality of
Ohio's lethal injection procedures. State attorneys have appealed the
Strickland said, even if a court allows Biros' execution to go forward, he
won't be ready by that date.
"If it does go forward, I'm going to make absolutely sure that I have
sufficient time to do whatever is necessary to properly exercise that
authority," he said.
Andrea Dean, a spokeswoman for the Ohio Department of Rehabilitation and
Correction, said Ohio's governor has 2 ways to delay an execution:
granting a reprieve until a date the governor specifies or granting
A clemency recommendation in the Biros case will be delivered to
Strickland Wednesday - his 3rd day in office, Dean said. The Ohio Parole
Board heard arguments in favor of leniency for Biros Thursday during his
clemency hearing, at which his lawyer and his mother begged that his
sentence be reduced to life in prison without parole.
Biros was convicted in the 1991 slaying, mutilation and dismemberment of
22-year-old Tami Engstrom near Warren after he had offered to drive her
home from a bar. Parts of Engstrom's body were found scattered across 2
Pennsylvania counties and in the trunk of Biros' car. White said the
nature of Biros' crime should leave Strickland with little hesitation.
"A guy like that deserves cruel and unusual punishment," he said. "He
needs to think about that? That scares me."
Tobin said his group hopes a postponement will mean a look at the larger
Strickland has said publicly he supports the death penalty and will have
no problem carrying it out.
Appellate court's longest-serving judge battles death penalty
A veteran federal appeals judge has turned up the volume in his opposition
to the death penalty, drawing increasing attention with his unusually
blunt and outspoken opinions.
Former Chief Judge Boyce Martin, a Jimmy Carter appointee on one of the
most sharply divided appeals courts, is building a reputation for his
stand, such as with a dissent that Capital Defense Weekly described as
Some experts believe the U.S. Supreme Court is watching what's happening
in the 6th U.S. Circuit Court of Appeals and other circuits before it
takes another look at the death penalty or, at least, the use of lethal
injection, which is increasingly being challenged in lawsuits. Martin, a
liberal voice in a court with a Republican-appointed majority, has
frustrated some colleagues and family members of murder victims, while
adding to arguments by anti-death penalty groups such as the Death Penalty
The center has pointed to a 2005 dissent in which Martin noted that he had
been an appeals court judge for more than 25 years and that "only one
conclusion is possible ... The death penalty in this country is arbitrary,
biased and so fundamentally flawed at its very core that it is beyond
The federal judicial system includes 13 appeals court circuits, each the
last step before the Supreme Court. The 6th Circuit hears appeals from
Ohio, Michigan, Kentucky and Tennessee, with requests for stays of
execution or other death appeals going to a randomly drawn 3-judge panel.
Martin, the longest serving judge in the 6th Circuit, sees an impact in
"We are the most cautious of all the circuits, even the (San
Francisco-based) 9th Circuit, in applying the death penalty," Martin said
in an interview. "They are much more deferential to state law than we are.
I am very proud that we have progressed in the fashion we have."
4 other judges signed onto a 2006 dissent in which Martin pledged to
uphold every stay that came his way, "until the Supreme Court sorts this
He said capital punishment is being carried out under a "dysfunctional
patchwork of stays and executions."
"There are some circuits that have reputations of being conservative or
liberal," said Richard Dieter, executive director of the Death Penalty
Information Center. "The 6th Circuit seems to be very dependent on what
set of judges you get. There are sharp differences."
Chief Judge Danny Boggs, a Reagan appointee, has put into writing his
frustration with Martin's stand.
Upset by delays the court granted to one convicted murderer in 2001, when
Martin was chief judge, Boggs wrote that "a majority of the active members
of this court would grant a stay based on a hot dog menu."
And in a July opinion, Boggs suggested that bad lawyering - often cited by
Martin as a reason to toss a death sentence - appeared to be more
effective than a brilliant defense in getting a convicted murderer's life
"Thus, if counsel provides fully effective assistance and the jury simply
does not buy the defense, then the defendant is likely to be executed,"
Boggs wrote. "However, if counsel provides ineffective assistance, then
the prisoner is likely to be spared, certainly for many years, and
Last June, the U.S. Supreme Court made it easier for death row inmates to
contest the way lethal injections are administered, possibly adding years
to appeals. It allowed inmates to make special federal claims, after all
other appeals are exhausted, to allege that the chemicals used in
executions cause pain amounting to unconstitutional cruel and unusual
Florida, California and Maryland have suspended executions until that
question is resolved.
The 6th Circuit has not addressed lethal injection directly but has
considered procedural questions involving it. The split in the court has
frustrated at least one federal district judge.
"But in light of conflicting, unexplained decisions, the court simply
cannot say what the law is in this circuit on the issues involved, and
multiple panels of the appellate court have declined opportunities to
explain the state of the law," U.S. District Court Judge Gregory Frost
wrote. "The end result is a morass of deadly ambiguity."
Martin was appointed to the 6th Circuit in 1979, giving him the longest
tenure of the 14 active judges. Over the years, he has come to believe
that most people convicted of murder are poor, often minorities and
"usually uncounseled, unadvised, unaware of what's going on," he said.
Tom Fitton, president of the conservative group Judicial Watch, said
Martin is known as "a reliable vote for delaying the death penalty" on a
court with deep divisions.
"Compared with other circuit courts, it seems there are many judges who
have gone out of their way to find a way to delay death sentences," Fitton
said. "Depending on the panel you get, you could get widely varying
At age 71, with an appointment for life and no plans to retire, Martin
says he has become more willing to express his views, candidly.
"My oath requires me to apply the law as interpreted by the Supreme Court
of the United States," he wrote in a 2005 opinion. "I will continue to do
as I am told until the Supreme Court concludes that the death penalty
cannot be administered in a constitutional manner or our legislatures
abolish the penalty.
"But lest there be any doubt, the idea that the death penalty is fairly
and rationally imposed in this country is a farce."
(source for both: Associated Press)
Death penalty case covers fresh ground
Before the sun rose on Oct. 16, the Manchester police received a report of
gunfire at a city apartment. Officer Michael Briggs, a bicycle patrolman
and Concord father of two, responded to the call. An hour later, the
police say, Briggs was shot in the head while chasing one of the suspects
down a dark alley.
The police soon arrested Michael "Stix" Addison, an unemployed 26-year-old
living in Manchester, and charged him with capital murder. Addison has
spent the 2 months in prison, awaiting a trial that could take years and
end with his execution.
But the lawyers attempting to prove his innocence, those attempting to
prove his guilt and the 12 citizens who will decide his fate have no
playbook to reference. Neither does the judge. Thats because New Hampshire
last executed someone in 1939, and the law has since changed.
"In law, we turn to precedent," said Jim Rosenberg, a Concord lawyer and
former homicide prosecutor for the state attorney generals office. The
lawyers in the Addison case "operate in a vacuum," he said.
As one of 38 states where the death penalty is legal, New Hampshire has,
in recent history, charged people with crimes punishable by death. But so
far, none of those cases has resulted in a trial. Of all the states with
the death penalty on the books, New Hampshire is the only one without an
inmate on death row.
It's not only a lack of legal history, however, that makes trying a
capital murder case in New Hampshire tough, lawyers and judges said. Its
also the procedure. For one, the case doesn't necessarily end with a
"What people have to understand is if Mr. Addison is convicted of capital
murder, that does not lead to anything close to an automatic conclusion
that he will get the death penalty," said Chuck Temple, head of the
criminal law clinic at Franklin Pierce Law Center in Concord.
Instead, if a jury decides the accused is guilty, the law says jurors must
then make another decision, one based on a whole new crop of deeply
personal evidence. In a subsequent hearing, they must decide whether he
will live the rest of his life in prison or whether he will die by lethal
It's a delicate process. And everyone involved knows that any mistakes
could be grave.
"Any lawyer will tell you death is different," said Jim Moir, a Concord
attorney who once helped defend a man accused of hiring 2 people to kill
his wife, a capital crime. "If you make mistakes, a person will die."
A narrow law
The state's capital murder law is narrow. So narrow that former state
Attorney General Phil McLaughlin, who oversaw three potential capital
murder cases during his tenure, likened the law to a fine sieve.
"If a case gets through and the jury finds for the death penalty, its a
remarkable thing," he said.
There are only 6 circumstances in which someone can be charged with
capital murder in New Hampshire, including killing a police officer,
killing someone during a rape or killing someone for pay. To be found
guilty, a jury must decide that the accused acted "knowingly," a
distinction sandwiched between "purposely" and "recklessly" in the state
Afterward, jurors face the task of choosing his sentence, an untested
process in New Hampshire, by weighing opposing factors, known as
aggravating and mitigating factors.
An aggravating factor is something that shows the person deserves the
ultimate punishment. It could be that he has a heinous criminal record or
that he committed the murder to avoid arrest. A mitigating factor is
something that shows he deserves mercy; maybe he had a traumatic childhood
or was under severe pressure when he committed the crime.
The factors are not equal. Aggravating factors are harder to prove and the
jury has to unanimously decide their truth. Mitigating factors, on the
other hand, are considered true if just one juror believes them. A
sentence of death can only be imposed if all 12 jurors think the
aggravating factors outweigh the mitigating factors.
That complicated balance is why some local lawyers said the death penalty
law is invoked so infrequently. To prove that someone deserves to be
executed, no matter how solid the criminal evidence, isn't easy, they
"Factually speaking, even if it seems . . . the state would have a
compelling murder case, it's not necessarily so that they've got a
slam-dunk for a death penalty case," Rosenberg said.
The last time
The state's last attempt at a capital murder case was in 1997, when
then-22-year-old Gordon Perry was charged with fatally shooting Epsom
officer Jeremy Charron. The police said Perry pulled the trigger after
Charron approached him and a friend while they slept in a car near a
popular Epsom swimming hole.
Perry was assigned several public defenders, including Richard Guerriero
and Barbara Keshen. A year after the shooting, Perry pleaded guilty to
murder as part of a deal that spared him the death penalty.
Now, 9 years later, Guerriero will defend Addison, along with public
defender Donna Brown, in the state's 2nd capital murder case in a decade.
Guerriero did not want to comment for this story.
But Keshen, who now works for the New Hampshire Civil Liberties Union,
said Perrys defense lawyers knew from the start that they'd have to raise
every legal challenge they could. By the time Perry accepted the plea
deal, his lawyers had filed 19 motions alleging that the states death
penalty statute was unconstitutional.
"There's an attitude, and there should be, of no stone left unturned on
the part of the defense," Keshen said.
The challenges raised in the Perry case ranged from complex legal
arguments to simple moral questions. Guerriero, Keshen and the others
argued that the death penalty law was flawed, for example, because there
are no specific instructions on how to weigh aggravating and mitigating
factors. They also argued that executing someone by lethal injection is
cruel and unusual punishment.
By the time Perry pleaded guilty, former Merrimack County Superior Court
judge Joseph Nadeau, who was assigned to the case, had ruled on less than
half of the challenges, all of which he shot down. Keshen said she expects
Guerriero and Brown to raise the same issues and more in the Addison
"You dont have the luxury of picking and choosing in a death penalty
case," she said.
Nadeau, who's now retired, agreed. When society decides to execute
someone, he said, people want to make sure every possible defense has been
raised and rightfully defeated, no matter how long it takes.
"That's part of what makes people accept capital punishment," Nadeau said.
The penalty's history
The 1st 2 people executed in New Hampshire were killed on the same day:
Dec. 27, 1739. Sarah Simpson and Penelope Kenny were hanged in Portsmouth
for murdering their newborn babies after a dead infant girl was found in a
Though the identity of the dead baby was never discovered, both women were
convicted of her murder. Neither was married, and concealing the death of
bastard child was a capital crime. So were murder, rape and bestiality.
200 years later, when the state executed its last prisoner, the law had
changed. In 1939, Howard Long was hanged for murder, the only offense
punishable at the time by death. Long fatally beat a young boy with a car
jack after the boy resisted his sexual advances. He was executed at the
state prison in Concord on July 14.
In the time since Long's hanging, the law has become more limited and the
method of execution has changed to lethal injection. But the state has yet
to kill anyone by that means because no one has mounted a successful death
penalty case in the past 70 years.
There have, however, been contenders. McLaughlin, now in private practice
in Laconia, can recall 3 from his 6 recent years as attorney general: the
man who raped and killed Elizabeth Knapp, a 6-year-old Hopkinton girl;
Carl Drega, a man who went on a North Country shooting spree that left 4
people dead; and Gordon Perry.
But in each case, McLaughlin said, something prevented him from seeking
the death penalty. The Knapp case was weakened, he said, because the
police first arrested the wrong man. Drega was killed when police officers
returned fire. And McLaughlin said he was hesitant to try Perry because
the only witness to Charron's shooting was unreliable.
Though the law says prosecutors must only prove the aggravating factors in
a death penalty case beyond a reasonable doubt, McLaughlin said he thinks
it's unlikely that a jury would ever sentence someone to die unless they
were absolutely sure he deserved it.
Condemning someone to death "should be about the hardest thing we make
people do," he said. "And it is."
(source: Concord Monitor)
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