[Deathpenalty] death penalty news----TENN., USA, N.C., FLA.

Thu Jul 19 20:12:49 CDT 2007

July 19

TENNESSEE:

Death penalty out in slayings----Prosecutor opts to 'start over' with
Houston case in Sessions Court

A special prosecutor has agreed to dismiss indictments against 2 brothers
accused in the fatal shooting of a Roane County lawman and his ride-along.

Robert "Gus" Radford confirmed Tuesday that he won't fight a challenge by
the legal team for brothers Rocky Joe Houston and Clifford Leon Houston to
have the indictment dropped and replaced instead with warrants.

The move does two things: One, it takes the death penalty off the table,
at least for now. 2, it sends the case back to the judicial systems ground
floor  General Sessions Court.

"There are some problems with them not getting a preliminary hearing,"
Radford said. "I'd rather wipe the slate clean and start over."

Radford is a retired prosecutor from West Tennessee who was tapped to take
over the case from the 9th Judicial District Attorney General's Office,
which handles Roane County cases, when a veteran prosecutor in that office
was identified as a potential witness to threats Rocky Houston allegedly
made to harm law enforcement officers.

The Houston brothers have long been at war with Roane County law
enforcement. The brothers contend they have been targets of harassment
since launching a campaign via lawsuits to expose fraud and corruption at
various levels of government. Roane County law enforcers counter that the
brothers are paranoid and dangerous.

The contentious relationship turned deadly in May 2006 when Roane County
Sheriffs Office Deputy William Birl Jones, 53, showed up at Rocky
Houston's home in Ten Mile with ride-along Gerald Michael Brown, 44.

The brothers are accused of opening fire on the pair while both were still
inside Jones' cruiser, killing both men. The brothers have countered that
they fired in self-defense.

Scott McCluen, who was Roane Countys district attorney at the time of the
slayings, opted to charge the brothers via an indictment issued by a grand
jury. That sent the case straight to Criminal Court, with a jury trial the
next step. McCluen, who later lost re-election, immediately filed notice
of his intent to seek the death penalty.

Attorneys Randy Rogers and Jim Logan responded with a motion to dismiss
the indictment, arguing that McCluen intentionally sought to deprive the
brothers of a preliminary hearing.

Suspects charged via warrants are allowed to have preliminary hearings at
which prosecutors must show some measure of proof that those charged
probably committed the crimes of which they are accused. It's a fairly low
standard and, in practice, often proves more a mechanism for defense
attorneys to get a 1st glimpse at the state's case against their clients.

The motion has been gathering dust, however, after a series of hearings
prompted by Rocky Houston's firing of Rogers, and special Judge James R.
"Buddy" Scott's move to have both brothers' mental states evaluated.

Rocky Houston has since been deemed sane at the time of the offense, but
it's still not clear if hes mentally competent to represent himself as he
is insisting on doing.

A report on Clifford Houston's evaluation has not yet been made public.

Asked Tuesday if he intended to seek the death penalty, Radford declined
to say.

"It's my decision, and I have given it thought," he said.

A hearing for a preliminary hearing had not been set Tuesday. Radford said
he did not expect this latest development to further delay the trial,
currently set for July 2008.

Rogers and Logan could not be reached for comment.

(source: Knoxville News)

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

Closer to Freedom----AG changes course, agrees a federal judge should
resolve the controversial Paul House case

The Tennessee Attorney General's Office finally concedes that the
post-conviction claims of Paul House should be settled in federal court,
meaning he soon might be retried-or maybe even released from death row
after 22 years.

"We think there is the possibility of a favorable resolution in federal
court," says Stephen Kissinger, the federal public defender representing
House. "We think there's a strong possibility of it, to be perfectly
honest. We have always felt if the court were to look at the merits of
this case-which the state had been able to successfully delay for 10 years
now-then we would win."

In what Kissinger calls a 180-degree turnaround, the state recently put an
end to years of legal wrangling and procedural defenses (such as the
argument that House's claims were barred by the statute of limitations),
and have agreed to let the matter play out in federal court. And given
that his client is chronically ill because of advanced multiple sclerosis,
Kissinger says time is of the essence.

"I think it's fairly clear that someone, somewhere, was concerned about
the public's view of justice in Tennessee, and that a decision was made at
some level to change course," Kissinger says. "I'm pretty pleased that the
state has quit playing games on the procedural stuff."

Citing the importance of "the public's confidence in Tennessee's criminal
justice system in capital cases," and in light of the Supreme Court's
opinion in this case-namely that post-conviction DNA evidence would have
led any jury to exonerate House-the state filed a brief last month saying
House's habeas claims should be resolved. In the brief, however, Tennessee
Attorney General Robert Cooper reiterates his belief that "the proof
presented at House's trial and evidentiary hearing.fully supports the
jury's finding of guilt."

House was convicted in 1985 of the rape and murder of 29-year-old Carolyn
Muncey in rural Union County. Years after he was convicted and sentenced
to death, new evidence surfaced suggesting he was innocent, and pointing
to the victim's husband, Hubert Muncey, instead. DNA evidence proved House
didn't rape Muncey, and that it was her husband's semen found on her body.

Bloodstains on House's blue jeans didn't come directly from the victim, it
turns out, but from vials of blood taken during the autopsy, suggesting
the possibility of evidence tampering. And at least 2 witnesses came
forward after the trial and claimed Hubert Muncey confessed to murdering
his wife.

After considering the wealth of new evidence in the case, the U.S. Supreme
Court concluded in June 2006 that, had the jury heard all the conflicting
testimony, "it is more likely than not that no reasonable juror would have
lacked a reasonable doubt."

In light of the state's new stance on how the case should proceed, U.S.
District Judge Harry S. Mattice Jr. has ordered all briefs to be submitted
by Aug. 20. After that, the federal judge will issue a ruling.

There are 2 likely scenarios, according to Kissinger: Mattice could either
issue an order saying the state must retry House or let him go, or he
could deny House's motion, saying he failed to prove his constitutional
claims, in which case House would appeal. Either way, a decision is
expected by the end of the year.Given the ample new evidence supporting
House's innocence, it's unclear whether the state would seek to retry him.
If he is retried, Alex Wiesendanger, associate director of the Tennessee
Coalition to Abolish State Killing, is confident he would be acquitted: "I
think that the facts in this case are so overwhelming that if a
fair-minded juror looks at the evidence, there's only one way they can
vote, and that's not guilty."

(source: Nashville Scene)

USA:

Death penalty no deterrent to murder

Though most experts have long dismissed any measurable deterrent effect
from the use of the death penalty, a recent AP story helped spark new
discussion on the topic.

According to the report, some academic studies have purported to find such
a deterrent impact. The story cited a 2003 Emory University study which
concluded that each execution deters an average of 18 murders. To read the
story, one might believe that new life has been pumped into what had
largely been a settled argument.

A closer look at the facts, however, reveals that there was very little to
the story. The truth is that leading academics have roundly rejected these
studies. A rigorous 2006 study conducted by John Donohue of Yale Law
School and the National Bureau of Economic Research (NBER) and Justin
Wolfers of the Wharton School of Business and NBER analyzed the same data
used in the Emory study and like studies and debunked their conclusions in
striking terms: "The view that the death penalty deters is still the
product of belief, not evidence." In fact, the researchers found that, if
anything, "the evidence suggests that the death penalty may increase the
murder rate."

These dueling findings have a deja vu quality. The studies purporting to
find a deterrent effect all build upon the foundation of a 1975 article in
which Prof. Isaac Ehrlich claimed that each execution averted 8 murders.
Economists and social scientists attempted to replicate his findings by
using different data and improving on his methodology. The overwhelming
majority of such studies found no evidence that the death penalty deters
murderers. Indeed, a 1978 panel of experts appointed by the National
Academy of Sciences strongly criticized Ehrlich's work and methodology.

Jeffrey Fagan, a professor at Columbia Law School and an expert on
statistics, testified before Congress that the Emory study and similar
Ehrlich-inspired studies finding a deterrent effect are "fraught with
numerous technical and conceptual errors." Important among these problems
is that the studies "avoid any direct tests of deterrence." That road
would likely not lead to deterrence findings: numerous studies "show the
limits of the assumptions or rationality that underlie deterrence" while
others show the cognitive, organic and neuropsychological impairments
which characterize violent offenders.

Instead of attempting a direct test of deterrence, the Ehrlich-inspired
studies acknowledge that the factors leading a person to murder (or not
murder) are complex and numerous  including socioeconomic variables, crime
rates and the efficacy of the criminal justice system in catching,
convicting and punishing criminals. The studies purport to isolate every
other factor but the availability of the death penalty as punishment for
murder. But common sense and respected scientists such as Profs. Donahue
and Wolfers tell us that the number of homicides that executions "can
plausibly have caused or deterred cannot be reliably disentangled from the
large year-to-year changes in the homicide rate caused by other factors."

When touting superficially powerful arguments in favor of the state
executing our fellow human beings, the media and academics have a duty to
acknowledge the facts contradicting their claims. These facts include not
only that respected academics have rejected claims that the death penalty
deters, but also the following:

Murder rates are lower in states without the death penalty. This holds
true even when comparing neighboring states.

While Southern states account for over 80 % of the executions in this
country, they have consistently had the highest murder rate of the
nation's 4 regions.

Since 1972, homicide rates in Canada and the United States have moved in
lockstep, yet in that period, Canada has not executed a single person and
the United States has executed over 1,000 people. When homicides go down
in the United States, they go down in Canada, even though Canada does not
use capital punishment.

One of the authors of the Emory study (Joanna Shepherd) found in a
separate study that while the death penalty deterred murder in 6 states,
it actually increased murder in 13 states and had no effect on the murder
rate in 8 states. Other studies have found that the death penalty has a
"brutalization effect," increasing the number of murders.

Danger lurks whenever we look at statistical claims without a skeptical
eye, never more so than when the issue is life and death. We need straight
information before making an informed decision on the death penalty.
Statistical claims that wilt under the mildest scrutiny woefully fail to
meet that test.

(source: Opinion, The Carrboro (NC) Citizen)

NORTH CAROLINA:

N.C. Medical Board defends death penalty ethics policy

The North Carolina Medical Board wants a court to throw out a lawsuit
seeking to strip it of the power to discipline any physician who might
help the state carry out an execution.

A threat in January to punish any doctor who takes an active role in an
execution triggered a series of legal steps that have effectively halted
the state's death penalty. The Attorney General's office filed the lawsuit
in March after negotiations with the board failed to resolve the conflict.

The state says the board's threat has prevented it from finding a doctor
willing to attend. The lawsuit claims that executions are not medical
procedures and therefore don't fall under the panel's jurisdiction.

In an eight-page response, the board argues that it wasn't until after the
medical board issued its position statement that the state submitted an
execution protocol that considers active participation by a physician.

(source: Associated Press)

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

Medical board firm on executions----No doctors, response to lawsuit says

The N.C. Medical Board is refusing to budge from its policy that prohibits
doctors from participating in executions.

The board filed a response to a Department of Correction lawsuit, which
asked the board not to discipline doctors for having a role in executions.

The issue of a doctor's role in administering death by lethal injection
has effectively halted the death penalty in North Carolina.

Dena Konkel, a spokeswoman for the board, would not comment on the
response, saying the response "must speak for itself."

The response sounds a consistent theme throughout: Doctors participating
in executions are subject to disciplinary action.

The medical board said that the role as defined meets the definition of
"unprofessional conduct ... or failure to conform to ... the ethics of the
medical profession."

Prison officials want a judge to rule that an execution is not a medical
procedure and is "outside the authority" of the medical board.

The Attorney General's Office had no comment on the board's response, said
Noelle Talley, a spokeswoman for the office.

A special deputy attorney general and an assistant attorney general filed
the lawsuit on behalf of prison officials this year.

State law says that a doctor must be present at executions. A doctor must
"monitor the essential body functions" of the inmate and determine whether
there are any signs of pain or suffering.

The lawsuit targeting the medical board is one of a few centering on
executions in North Carolina.

4 death row inmates have filed lawsuits questioning the constitutionality
of execution procedures in North Carolina. 2 inmates also filed a lawsuit
challenging the Council of State's approval of those procedures without
public comment.

The Council of State is a panel of top elected state officials.

The death penalty has been halted in North Carolina because of questions
about the procedures and ensuring that the process doesn't amount to cruel
and unusual punishment.

There are currently 167 inmates on death row, according to Department of
Correction statistics.

The state's execution of Samuel Flippen in August was its most recent,
according to the Department of Correction.

(source: News & Observer)

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

Murder trial cost around $1 million 12:16 PM

A deadlocked Gaston County jury has been discussing the case of a dairy
farmer charged with the shooting death of his wife for the last week. WCNC
took a look at the numbers behind the trial to see how much taxpayers have
paid so far.

Jerry Anderson, 49, has been jailed since his January 2006 arrest by
Caldwell County investigators.

The trial was moved to Gaston County due to pre-trial publicity.

The trial has gone on for 29 days now, and jurors have earned more than
$1,000 each in jury pay, that's $12 for the 1st day and $20 a day for days
2-5 and $40 a day for each day thereafter. The total cost for jury pay,
including the 4 alternate jurors, has been more than $16,000. Some jurors
were also paid for up to 7 days while they waited to be selected for a
jury. Jury selection took a total of 4 weeks but none of the Anderson
jurors were present for all 4 weeks.

Anderson's 2 attorneys are paid by the North Carolina Office of Indigent
Defense Services, meaning taxpayers are picking up the bill for his
defense at a price tag of $95 an hour. At an average of 12 hours a day
during trial days, each defense attorney has earned more than $33,000
during the trial, not including the 4 weeks of jury selection.

The defense attorneys are also reimbursed for travel, fees for expert
witnesses and for their hotels.

Those close to the case said that if you add up the totals for defense
fees, prosecution, investigation, cost of hosting the trial in Gaston
County, the price for taxpayers now exceeds $1 million. The Center for
Death Penalty Litigation (based in Durham) says average cost for a death
penalty case, including incarceration, totals more than $2 million.

(source: WCNC News)

FLORIDA:

Crist resumes lethal action

Gov. Charlie Crist on Wednesday ordered the execution of child killer Mark
Dean Schwab.

It is the 1st execution Crist has ordered since taking office in January
and the first since Gov. Jeb Bush temporarily halted the death penalty in
Florida after a botched execution in December.

Schwab was convicted in 1992 of kidnapping, torturing, raping and
murdering an 11-year-old Cocoa boy.

Crist, who previously was attorney general and earned the moniker "Chain
Gang Charlie" for his tough-on-crime stance while in the state Senate, set
Schwab's execution date for the week of Nov. 12. He expressed confidence
in the state's revised method of killing condemned prisoners.

Florida Corrections Secretary Jim McDonough announced in May that the
department was making most of the changes in its death penalty protocol
recommended by a task force that Bush created when he suspended
executions.

The new protocol requires executions to be presided over by 2 prison
wardens other than the warden of the prison where death row convicts are
housed. And those wardens are required to receive training in determining
whether the first drug in the lethal injection cocktail renders the inmate
unconscious.

That was in question during the prolonged execution of convicted killer
Angel Diaz. Witnesses said Diaz was visibly in pain and therefore could
not have been unconscious during the administration of deadly chemicals,
which required 2 lethal injections rather than one and took 34 minutes,
more than twice the time executions typically take.

The death warrant for Schwab came even as the state's lethal injection
policy is being challenged by another Death Row prisoner, Ian Deco
Lightbourne, in a trial before a Marion County judge. Lightbourne's case
is based on the problems in Diaz's execution.

Shortly before Crist's issuance of the death warrant Wednesday for Schwab,
the Florida Supreme Court scheduled oral arguments in Lightbourne's
challenge of legal injection for Oct. 11, even though the trial is not yet
complete.

"I am confident that the training, organization and communication
processes established by the Commission on Administration of Lethal
Injection and adopted by the State of Florida Department of Corrections
are consistent with the Eighth Amendment of the United States
Constitution," Crist said in a statement accompanying the death warrant.

Schwab, 38, was released from prison in 1991 after serving 3 years for
sexually molesting another boy. That same month, Schwab, then 24, spotted
Junny Rios-Martinez Jr.'s picture in a newspaper and posed as a reporter
to gain the family's trust, according to court documents.

After the boy disappeared in April 1991, Schwab led authorities to the
spot in Brevard County where Junny's body was found in a footlocker. A
circuit court judge sentenced Schwab to death after the suspect waived the
right to a jury trial.

This month, an attorney argued before the clemency board that Schwab
should not be executed because his pedophile brain could benefit research.
Titusville attorney Kenneth Studstill called Schwab a "scientific mystery
in need of much more in-depth study."

At least 23 other death row inmates are eligible to have death warrants
signed by Crist. The governor picked Schwab because of the "horrific
nature" of the crimes he committed and the victim's age, according to his
staff.

The November execution date was chosen in deference to Lightbourne's
challenge of lethal injection. Lightbourne was sentenced to death for the
1981 murder of Nancy O'Farrell after breaking into her Marion County home.

(source: Palm Beach Post)

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

Crist sets new execution date

Gov. Charlie Crist ended a 7-month moratorium on executions Wednesday,
signing the death warrant of a man who raped and killed an 11-year-old
boy.

But lethal injection experts question whether the state has done enough to
prevent a repeat of the botched execution of Angel Diaz.

Crist signed the death warrant of Mark Dean Schwab, convicted of murdering
Junny Rios-Martinez in Brevard County in 1991. The execution date was set
for Nov. 15, allowing the courts to first hear a legal challenge to lethal
injection.

The execution would be the first since December, when dislodged IVs caused
Diaz to writhe through a prolonged execution. A state commission
subsequently studied the execution procedure, recommending 37 changes that
the governor later adopted.

Department of Corrections spokeswoman Gretl Plessinger said the state's
execution team has now been trained under the new procedures. Physical
changes to the death chamber at Florida State Prison are also complete,
she said.

"We're ready to go," she said.

The changes include doubling the size of the death chamber and installing
closed-circuit monitoring for execution team members to monitor the
inmate's face and IV access points. In Diaz's execution, dislodged IVs
caused lethal chemicals to seep into his flesh and take about 20 minutes
longer than normal to kill him.

Lethal-injection experts such as Fordham University law professor Deborah
Denno said changes were hastily made and fall short of preventing another
botched execution.

"They have not even begun to approach what is acceptable," she said.

She said problems include continued ambiguity about the qualifications of
execution team members.

"It's like the more specific they get, the more they get criticized, so
they just keep everything vague," she said.

The death warrant comes at the same time that Florida death row inmate Ian
Deco Lightbourne is challenging the lethal injection procedure. While that
case is still being heard in a Marion County courtroom, the Florida
Supreme Court on Wednesday scheduled hearings on the case for October.

Schwab's attorney, Mark Gruber, said the scheduling of the hearings
suggested the state expects challenges will be resolved in the weeks
before the execution. But he said he didn't expect the death warrant would
be signed before that happens. "This warrant kind of took us by surprise,"
he said.

In a written statement, Crist said he was confident that the execution
procedure was consistent with the constitutional ban on cruel and unusual
punishment.

Florida's execution procedure is similar to the method used in 36 other
states with lethal injection. Inmates are first injected with sodium
pentothal to render them unconscious, followed by pancuronium bromide to
paralyze the muscles. Potassium chloride is then injected to stop the
heart.

While Crist accepted changes to the lethal injection process, he rejected
suggestions to eliminate the second drug from the mix. Gainesville Circuit
Judge Stan Morris, a member of the lethal injection commission, had
questioned whether the drug masked whether inmates were awake and felt the
final drug burn through their veins.

The American Veterinary Medical Association bans the use of the drug on
euthanized animals for that reason. The drug's continued use shows the
state wants to prevent involuntary movements rather than ensure inmates
don't feel pain, said Dr. Jonathan Groner of the Ohio State University
College of Medicine.

"The only purpose of the paralytic drug is for the audience and not for
the inmate," he said.

Groner, a death penalty critic, said the problem remains that medical
professionals are ethically barred from participating in executions. The
dilemma will continue to plague the lethal injection process, he said.

"The bottom line is in any clinical setting, these type of drugs are
always delivered by someone with advanced qualifications," he said.

Rep. Dennis Ross, a Lakeland Republican who was part of the commission,
said he's comfortable with the continued use of the 3-drug cocktail.

"I think perception is very important when you have people witnessing," he
said.

He said he thought great strides were made in improving the execution
process. But he said there was no way to know in advance whether they
would prevent another botched execution.

"We won't know for sure until the execution takes place," he said.