[Deathpenalty] death penalty news----NEB., FLA., GA., TENN.

[Rick Halperin]

Jan. 8



NEBRASKA:

Filing delay may jeopardize death penalty for Murdock slayings


Cass County prosecutors may have waited too long to declare their intent
to seek the death penalty against a Wisconsin teen charged in the April
deaths of a Murdock, Neb., farm couple.

An attorney for Gregory Fester, 19, of Horicon, Wis., argued last week
that too much time passed between when Cass County Attorney Nathan Cox
filed murder charges against Fester on June 8 and when he filed notice
about seeking the death penalty on Dec. 28.

Nebraska law requires prosecutors to file a notice with the District Court
explaining why the death penalty is warranted. Cass County District Judge
Randall Rehmeier is expected to rule soon on the motion that could rule
out the death penalty.

If Fester's attorney, Alan Stoler, prevails the most severe penalty Fester
could face would be life in prison without parole.

Fester and another Wisconsin teen, 17-year-old Jessica Reid, have both
been charged with two counts of 1st-degree murder, accused of killing
Wayne and Sharmon Stock of rural Murdock on April 17.

Fester's trial is scheduled to begin on Feb. 27. Last month, Cox revealed
that Reid had agreed to testify against Fester in exchange for reduced
charges as part of a plea agreement.

Reid was ineligible for a death sentence because of her age. To receive
the death penalty in Nebraska, a defendant must be 18 at the time the
offense was committed, said her attorney, Thomas Olsen.

Cox cited 2 Nebraska statutes as reasons for seeking the death penalty
against Fester, according to court documents. Cox said that the Stock
murders were committed to conceal a burglary, and that Fester committed
more than 1 murder.

Cox argues he can amend his original criminal charges to include seeking
the death penalty at any time at least 30 days before a trial.

Stoler disagrees with Cox and argues that the death penalty notice needed
to be filed when Fester's case was transferred into district court.

"You can't make changes to something that wasn't there in the first
place," Stoler said. "I believe it's very clear that he lost his
opportunity to seek the death penalty when he didn't file the notice back
in September."

According to prosecutors, Reid and Fester stole a pickup, a shotgun and
some ammunition from a farm outside of Horicon, Wis., on April 15.

They drove down through Iowa the next day, vandalizing and burglarizing
another farmhouse and stealing another shotgun and more ammo.

After midnight, prosecutors say, the 2 arrived at the Stocks' for another
burglary but instead found them and killed them.

The pair have said they abandoned the pickup the next day in Louisiana
after leaving the weapons in a ditch along the way. The shotguns have not
been found.

Fester and Reid were charged after two Nebraska cousins, Matthew Livers,
29, and Nick Sampson, 22, were arrested and charged with the slayings.
Livers and Sampson have since been cleared.

Lincoln defense lawyer Jerry Soucie said he believes Cox's death penalty
filing is part of an attempt to persuade Fester to plead guilty.

"I really think Nathan's grasping at straws by seeking the death penalty
against Fester nine months later," Soucie said. "I don't think there's any
question that he's trying to coerce a plea. (Not going to trial is)
unfortunate for the entire community. I think the community needs to know
what happened in the investigation."

Soucie represented Sampson before he was cleared.

(source: Associated Press)






FLORIDA:

Jimmy Ryce's Murderer Appeals Death Sentence


Juan Carlos Chavez, the man who raped and killed Jimmy Ryce after the boy
went missing in the Redland years ago, is still fighting the battle to
appeal his death sentence.

An appeals court will conduct an evidentiary hearing in Miami on Tuesday,
in which Chavezs legal team tried proving the defense that handled his
trial was incompetent. Chavez has exhausted all of his direct appeals for
the kidnapping, rape and murder of Ryce. He is currently on death row.

Don and Claudine Ryce are disgusted that their push for justice is not
over yet.

Both have become ardent crusaders for tougher laws against sexual
predators after their 9-year-old was abducted on September 11, 1995.
Chavez kidnapped, raped, and then shot Jimmy dead when he tried to run. He
then dismembered the boy's body and sealed his remains in concrete. He
eventually confessed the crime to detectives working the case.

"We've waited 11 years, over 11 years, for final justice. And it feels
like we've got as long to go as we've already come," said Don Ryce.

Chavez claims he had ineffective defense counsel in his murder trial. The
argument may be bolstered by an assistant public defender who once
suggested the soft-pedaled Chavezs defense for political reasons.

"Hogwash. Hogwash. I was there in the courtroom. I don't know how they
could have been more vigorous or aggressive than they were," said Claudine
Ryce.

As Juan Carlos Chavez continues his appeal, Don and Claudine Ryce continue
their efforts to protect children against sexual predators.

Chavez's lawyers want to prove that his confession was coerced.

(source: CBS News)






GEORGIA:

Woman faces death penalty in boyfriend's death by poisoned Jell-O


Jury selection began today in the case of a suburban Atlanta woman accused
of murdering her boyfriend by feeding him poisoned Jell-O.

Lynn Turner wore a bright red sweater with black pants to court for the
opening day of jury selection, as about 100 potential jurors assembled
this morning in Forsyth County.

The case has all the makings of a murder novel  the mysterious antifreeze
poisonings of a police officer and a firefighter, and the woman they both
loved accused of killing them for money.

Lynn Turner, a former 911 operator, was sentenced to life in prison in
2004 for killing her husband, Cobb County police Officer Glenn Turner, in
1995 by giving him Jell-O poisoned with antifreeze.

Now she faces a possible death penalty on charges she used the same method
to murder her boyfriend, Forsyth County firefighter Randy Thompson.

Prosecutors have argued Lynn Turner's desire for the 2 men's life
insurance money prompted her to kill them. But defense attorneys have said
the cases do not involve murder and point out that authorities initially
ruled the men died naturally.

Not until a few months after Thompson's death did police become suspicious
and launch a criminal investigation of both deaths. Police said new tests
on the men's bodies showed they were poisoned with ethylene glycol, the
sweet, odorless chemical found in antifreeze.

Lynn Turner's 2004 conviction hinged on her alleged involvement in the
antifreeze poisoning death of Thompson. Although she hadn't been charged
at the time in that case, prosecutors won a judge's approval to draw on
similarities between the deaths at the trial.

Besides once working as a former 911 operator, Turner previously worked as
a judge's aide, sheriff's assistant and district attorney's secretary.

The defense has asked for the trial to be moved because of extensive news
coverage of the case. The judge has not yet made a decision.

In an interview during a morning recess, defense lawyer Jimmy Berry said
he expects to question potential jurors closely about pretrial publicity.

He estimated that jury selection could take about 10 days.

But some observers say the jury selection could take weeks.

There's only 1 woman  Kelly Gissendaner  among the 104 people on Georgia's
death row, according to the state Department of Corrections. Gissendaner
was sentenced to death in November 1998 for murder.

(source: Associated Press)

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

A capital trial at the crime scene----Many will be watching as a
courthouse slaying case unfolds in Atlanta. One issue is fairness.


Almost 2 years after a judge, a court reporter and a sheriff's deputy were
shot to death at the Fulton County Courthouse, Brian Gene Nichols will
stand trial in that courthouse for those crimes.

As TV cameras roll, the justice system will be on trial too.

After a blitz of media coverage of a nearly 26-hour manhunt for Nichols,
some legal experts question whether a fair trial is possible in the
courthouse where the attacks took place - particularly when the case is
prosecuted by former colleagues of the slain judge and court reporter.

"I would be concerned, real concerned, if I were his defense attorney,"
said Thomas Maher, executive director of the Center for Death Penalty
Litigation in North Carolina. "The jurors may have a tough time separating
themselves from the people in the case. Sitting in the same courthouse,
that's difficult."

On March 11, 2005, Nichols was headed to trial to face rape charges and a
possible life sentence when, officials say, he overpowered a deputy, stole
her gun and opened fire in the courtroom. Atlanta residents were riveted
as officials mounted the largest hunt for a fugitive in Georgia's history.
Eventually, Nichols was apprehended at the home of a hostage, Ashley
Smith, a waitress and born-again Christian, who persuaded him to surrender
and then wrote a book about her ordeal.

In a 54-count indictment, Nichols is accused of murdering Superior Court
Judge Rowland Barnes and court reporter Julie Ann Brandau inside the
courtroom, Sheriff's Deputy Hoyt Teasley outside the courthouse, and
customs agent David Wilhelm at his northeast Atlanta home. Prosecutors are
seeking the death penalty for Nichols, now 35.

For most Atlanta residents, the facts of the case appear clear: Several
people witnessed the shootings in the courtroom; a surveillance camera in
a parking garage captured Nichols fleeing the courthouse; Nichols is
alleged to have confessed to Smith, and then to police.

"So many people are aware of what happened, it's as if it's almost an
open-and-shut case," said Andrew Sheldon, an Atlanta-based jury
consultant. "But as we know from the O.J. Simpson trial, you really have
to be there."

Already, attorneys have sparred at a series of pretrial hearings and have
filed more than 80 pretrial motions. The defense team has attempted to
block the death penalty option and to throw out identification by some
eyewitnesses. It has also argued that live television coverage threatens
Nichols' right to a fair trial, and it repeatedly sought to delay the
trial, claiming attorneys needed more time to prepare.

Although Nichols' attorneys have not revealed their strategy, some legal
experts expect a mental health defense.

Prosecutors filed a motion last week to bar the defense from using such an
argument, saying that his attorneys had not shared evidence to that
effect, as the judge had required.

The trial, set to open Thursday, is almost certain to be one of the
longest and most scrutinized death penalty trials in Georgia. DeKalb
County Superior Court Judge Hilton Fuller, who was appointed to the case
after all members of the Fulton County bench recused themselves because
they had connections to the victims, has allocated three months for jury
selection alone, and county officials have sent 3,500 summonses to
prospective jurors.

"This is not going to be one of those 'What the heck, judge, everyone saw
him do it' cases," said Ronald Carlson, a professor at the University of
Georgia School of Law.

Already, Fuller has assigned three extra attorneys to the case, and
Nichols' defense has cost more than $500,000.

"This is the most expensive death penalty case in the history of Georgia,"
said Michael Mears, director of the Georgia Public Defender Standards
Council, which is paying for the three additional attorneys. The council,
which works on about 80 death penalty trials a year, has an overall yearly
budget of $5 million for capital cases.

Media scrutiny of this case, Mears said, has put a strain on the justice
system, raising the bar for future death penalty cases. Already, he said,
a number of Georgia legislators have talked to him about introducing bills
to limit the number of attorneys working on a single death penalty trial.
"Everyone has bought into the idea that it's an extraordinary case," Mears
said. "But basically it's just a murder case with 4 victims."

In February, Fuller ruled that the trial would be held in a 1st-floor
courtroom in the Fulton County complex because he could not find an
alternative location that would be convenient for jurors. Defense
attorneys filed a motion to hold the trial at Ft. McPherson Army base,
south of downtown Atlanta, but then notified the judge that the base's
commander had declined to make the site available for the trial.

The Nichols trial is not the first U.S. death penalty case to take place
at the crime scene. In 2001, Kenneth Baumruk, who shot and killed his wife
and wounded 4 others in a St. Louis County courthouse shooting in 1992,
was convicted of murder and sentenced to death in the same courthouse. A
year later, the Missouri Supreme Court overturned the conviction and death
sentence. In an opinion, Judge Michael Wolff wrote that the setting was
"inherently prejudicial. The jurors, in effect, sat at the murder scene."

At least 1 other death penalty trial involving a courthouse shooting is
pending. The trial of Jennifer Hyatte, who is accused of shooting a guard
outside a Tennessee courthouse in 2005 to free her convict husband, has
been rescheduled to give lawyers more time to prepare a defense. Hyatte's
attorney has asked the court for a change of venue.

Despite concerns about holding the case in the same courthouse, Nichols'
defense team does not want to risk a trial outside Fulton County: Jurors
in the county have tended to reject demands for the death penalty.

Steven Sadow, a veteran criminal defense attorney, said that so far
Nichols' defense team had mounted a good technical legal defense but had
built no public sympathy for Nichols.

"The defense has failed to humanize the defendant and give jurors a chance
to save his life," said Sadow. "I don't think their defense strategy has
been designed to save him. If you go by the playbook, they've done all
right. But it's not very rewarding to say, 'I've done all right, but my
client's dead.' "

Still, with jury selection ahead, Sadow said it was possible that Brian
Nichols might escape the death penalty.

"All the defense team is looking for is one person who can hang this jury
so the death penalty is not imposed," he said.

(source: Los Angeles Times)






TENNESSEE:

Judge vocal against death penalty----Sharply divided 6th Circuit serves
Tennessee


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
blistering.

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.

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.

He vows to uphold stays

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
Information Center.

The center has pointed to a 2005 dissent in which Martin noted he had been
an appeals court judge for more than 25 years and said "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 repair."

Martin, the longest serving judge in the 6th Circuit, sees an impact in
the debate.

"We are the most cautious of all the circuits, even the (San
Francisco-based) 9th Circuit, in applying the death penalty," he 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."

Four 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
out."

He said capital punishment is being carried out under a "dysfunctional
patchwork of stays and executions."

Judges differ sharply

"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 more effective than
a brilliant defense in sparing 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
frequently forever."

'Ambiguity' in the court

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
punishment.

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 gets more candid

Martin, appointed to the 6th Circuit in 1979, has 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, un aware of what's going on."

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
penalties."

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: Associated Press)