[Deathpenalty] death penalty news---GA., IND., MISS.

[Rick Halperin]

Feb. 9


GEORGIA:

Hearing on Gary's teeth----Lawyers say dental cast did not match bite mark
found on body


The set of the Stocking Strangler's teeth will be considered in a Feb. 14
federal court hearing, but the size of his shoes will not.

U.S. District Court Judge Clay Land has scheduled a hearing in his
Columbus courtroom for 9 a.m. on Valentine's Day to hear testimony related
to a bite-mark cast made from impressions left on the breast of Janet
Cofer, the last of the 7 victims in the Stocking Stranglings of 1977-78.

Attorneys for death-row inmate Carlton Gary, who in 1986 was convicted of
three of the seven murders in or near Columbus' Wynnton area, claim the
bite cast neither matches Gary's teeth now, nor would it have matched them
at the time the murder occurred. Gary has since had dental work on his
upper teeth.

Gary was not convicted of Cofer's April 19, 1978, strangulation, but
evidence from that case was used in his trial to show the killer used
methods similar to those employed in all the murders. His Atlanta
attorney, Jack Martin, maintains that because the same person is supposed
to have committed all the killings, exculpatory evidence from any of the
cases would cast doubt on Gary's guilt. Gary was convicted in the murders
of Kathleen Woodruff, Florence Scheible and Martha Thurmond.

While allowing the defense to present testimony related to the bite cast,
Land refused to grant a hearing on evidence that Gary's feet are too big
for the shoe prints found at similar crime scenes -- particularly the copy
of a print found outside the home of Ruth Schwob. Schwob was attacked Feb.
11, 1978, by a man believed to be the Stocking Strangler. She survived the
assault.

Former GBI Agent Jim Covington, who in 1978 was assigned to a task force
investigating the murders, kept a photocopy of that shoe print, which was
found on an air-conditioning unit upon which Schwob's assailant stood to
climb through her kitchen window. The defense claims the print is about
four sizes too small to match Gary's feet.

Land said the 11th Circuit Court of Appeals remanded or sent the case back
to District Court solely to hear evidence related to the bite mold, to
make a more complete record of the issues upon which Gary's appeals are
based.

"This is a limited remand and the Eleventh Circuit still has jurisdiction
over the case," Land wrote in his order issued Friday. "This Court does
not have authority or jurisdiction to review any issue unrelated to the
discovery of the bite-mark impression."

The cast made from the bite mark was not used as evidence in Gary's 1986
trial, nor was his defense team told of its existence. When Gary's
attorneys tried to get it introduced as evidence in 2003, it could not be
found. Muscogee Coroner James Dunnavant found it in November 2005 while
cleaning out a file cabinet in the Public Safety Center office once
occupied by his predecessor, Don Kilgore.

Among the evidence the defense has asked to present:

 Dunnavant's deposition.

 Testimony from Carlos Galbreath, who made the mold.

 Investigative reports regarding the bite mark found on Cofer's left
breast and the dental work Gary has had.

 A report on the Cofer autopsy.

 Crime scene and autopsy photos of the bite mark.

 The bite mark exemplar, or cast, and stereomicroscope photos of it.

 Testimony from Doris Layfield, Ernestine Flowers and Gene Hewell
regarding Gary's teeth.

 (source: Columbus-Enquirer)

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

Is this death penalty trial necessary?


The death penalty trial of Brian Nichols, accused of the notorious 2005
Atlanta courthouse killings, will begin Thursday. It will be nationally
televised on Court TV.

We all remember the horrifying news. Nichols, a rape defendant in custody,
was being brought to the courthouse for a hearing. While in court, he
allegedly stole a gun from a sheriffs deputy and shot and killed a judge
and court reporter.

He fled the courthouse and in the aftermath of his escape, allegedly shot
and killed a sheriffs deputy and a Customs agent. All of America watched
the 26-hour manhunt, thanks to the cable news networks that provided
wall-to-wall coverage.

The tragic story took a remarkable turn when Nichols turned himself into
authorities the next day, after spending the night at the home of a woman
he took hostage, Ashley Smith, a born-again Christian who treated him with
understanding and compassion. She even cooked him pancakes in the morning,
just prior to his surrender. Smith became an overnight national heroine
and later wrote a book about her ordeal.

Venue has not been changed for the trial. It will take place in the same
courthouse where the killings occurred. The trial is expected to last 6
months, with jury selection alone consuming three months. At least 3,500
juror summons have been issued.

It will be the most expensive trial in Georgia's history, with $500,000
spent on the defense to date. I'm not aware of the cost of prosecution,
but generally, it runs much higher. Ultimately, the Georgia taxpayers will
bear the cost for both.

Many will wonder what the point is of a 6-month trial when its obvious the
defendant on trial is the one responsible for the killings.

For the defense, the point is to save Brian Nichols' life and try and
convince at least one juror that life in prison, rather than death, is the
appropriate penalty.

For the rest of us, the point is to ensure the fairness of our criminal
justice system. Many people think that criminal trials are only a search
for the truth. But, as U.S. District Court Judge Richard Matsch pointed
out to the families of the Oklahoma City Bombing victims at a pre-trial
hearing in the case of Timothy McVeigh, a trial is simply a test of the
evidence and whether the prosecution can prove its case beyond a
reasonable doubt.

That means only evidence lawfully obtained can be admitted. It means that
the defense must be afforded a chance to challenge the state's evidence,
including eyewitness identifications, the voluntariness of confessions and
whether the state has turned over all potentially exculpatory material.

Death is different. The defense must be allowed to probe the beliefs of
prospective jurors on the death penalty. Since only those who state they
could impose the death penalty will be allowed to serve, the defense must
be given a chance to weed out those who would refuse to impose a life
sentence, based solely on the heinousness of the crime.

DeKalb County Superior Court Judge Hilton Fuller, who is presiding over
the case, has acknowledged the most difficult task will be seating an
impartial jury.

"The reality of a fair trial in this case may be more difficult than in
others," he says. "We need to demonstrate that we can conduct fair trials
under whatever circumstances arise."

One has to ask, is this death penalty trial necessary? Is it in society's
best interest? What besides vengeance would be lost by a guilty plea and a
sentence of life without the possibility of parole?

Of the 3,500 summonses issued in the Nichols case, 2,200 have gone
unanswered, indicating that many citizens don't want to serve on the case.

Perhaps as The New York Times and the Boston Globe recently opined, the
time is right for America to rethink the death penalty. I hope the
spectacle and the expense of the Nichols' trial results in many Americans
asking themselves the same question.

(source: Jeralyn Merritt, The Examiner)






INDIANA:

2 chances remain for man to avoid execution Jan. 19----Governor or judge
could spare life of Timberlake in killing of trooper


Norman Timberlake likely faces an uphill battle in his bid to win clemency
from Gov. Mitch Daniels, but the death row inmate maintained his innocence
Monday to the state Parole Board.

What's next

Norman Timberlake last week petitioned the governor for clemency before
his execution.

During the process, the five-member state Parole Board conducts a two-part
clemency hearing and votes on a recommendation. Gov. Mitch Daniels then
decides whether to uphold the death penalty or commute the sentence but is
not bound by the board's vote.

The 1st part of the clemency hearing took place Monday at the Indiana
State Prison in Michigan City.

 Jan. 16: Conclusion of the clemency hearing, 9 a.m. in the auditorium of
the Indiana Government Center South, 302 W. Washington St., Indianapolis.
Attorneys for both sides will present arguments, and family members and
others will testify. At 2:30 p.m., the Parole Board will vote on its
recommendation.

 Jan. 19: Unless Daniels grants clemency or a federal court orders a
delay, Timberlake will be executed shortly after midnight.

His execution looms on Jan. 19, and he has 2 chances to avoid that
outcome. Daniels could commute his sentence, or a U.S. District Court
judge in Indianapolis could rule in his favor on two pending lawsuits
contesting his death sentence.

During a clemency hearing Monday at the Indiana State Prison in Michigan
City, several Parole Board members expressed skepticism about the
59-year-old inmate's assertion that he was wrongly convicted.

"If I was 10 feet away when it happened, I can't help nothing," Timberlake
told the board.

A Marion Superior Court jury found him guilty and sentenced him to death
for the 1993 murder of Indiana State Police Master Trooper Michael E.
Greene, who died during a traffic stop on I-65 in Indianapolis.

"It's open and shut," said Michael Greene, 32, the trooper's son. "The
evidence is overwhelming. It's not like it hinges on DNA or something like
that."

Greene, who lives in Lebanon, watched a live video feed in Indianapolis
with other family members and State Police officers.

On Jan. 16, they will get a chance to testify to the board during the
final part of the clemency hearing in Indianapolis. Afterward, the
5-member board will vote on a recommendation to the governor. 6 death
sentences have been carried out since Daniels became governor in 2005. He
has rejected 3 clemency requests and has overruled the board's advice
once.

He commuted Arthur Baird II's sentence to life in prison in 2005, but he
noted "a unique circumstance" in the mentally ill inmate's case -- some
jurors and family members of the victims supported clemency.

That is not the case with Greene's family.

Timberlake's other hope is in the courts. One federal suit argues
Timberlake is too mentally ill to be executed, and the other says
Indiana's lethal injection procedures don't prevent unnecessary pain
during an execution.

Judge Richard L. Young hasn't ruled in either case.

Last month, the Indiana Supreme Court denied Timberlake another appeal on
the mental illness claim. A court-appointed psychiatrist found Timberlake
understood the reason for his execution, despite Timberlake's saying that
prison officials were using a computer-operated machine to make him hear
voices and feel pain.

Prosecutors said Timberlake shot Greene, 43, when the trooper tried to
handcuff Tom McElroy, who was traveling with Timberlake and had an open
arrest warrant.

But on Monday, Timberlake said he sat on the hood of a car while McElroy
spoke to Greene. "Then I heard a scuffle and a pop," he said.

Board members asked why he later grabbed the gun and why he went to a bar
instead of calling police. He said he was scared.

McElroy, who received a time-served sentence for his involvement, has
since died.

If the execution goes forward, a new state law will let the victim's
family members witness it.

Greene's daughter, Shannon Davis, 35, watched Timberlake on the TV screen
Monday, the 1st time she had seen him since the trial.

"He just makes me angry," said Davis, who lives in Rensselaer. "I don't
want to see his face. He's still living and breathing."

(source: Indianapolis Star)






MISSISSIPPI:

U.S. Supreme Court declines to hear Miss. death row inmate appeal


The U.S. Supreme Court has declined to hear the appeal of Mississippi
death row inmate Devin Bennett.

Bennett, of Richland, was sentenced to death in 2003 in Rankin County for
the murder of his 10-week-old son, Brandon Bennett. An autopsy showed the
child had injuries consistent with shaken baby syndrome.

The Mississippi Supreme Court in 2006 upheld his capital murder conviction
and sentence. The Supreme Court on Monday refused to hear Bennett's case.

Bennett had argued in the state courts that he deserved a new trial
because of errors during the selection of his jury. Defense attorneys also
had argued that Bennett accidentally kicked the child off a bed.

According to the court record, the baby had been left in Bennett's care by
the child's mother when she went to work.

(source: Associated Press)