[Deathpenalty] death penalty news----MISS., UTAH, FLA., ARIZ., N.C.

[Rick Halperin]

Oct. 5


MISSISSIPPI:

Killer could still get death----Expert: Lethal injection debate not a
barrier


Earl Wesley Berry's 19-year fight to avoid execution for beating a woman
to death should end soon despite the U.S. Supreme Court's decision to
review whether death by lethal injection is humane, the state's death
penalty expert says.

Berry's appeals have run out, and the state attorney general's office has
asked the state Supreme Court to set an execution date for him by Oct. 31.
He was sentenced in Chickasaw County in October 1988 for the Nov. 19,
1987, murder of Mary Bounds of Houston. Bounds was killed after leaving
her weekly church choir practice. Berry was convicted of murdering her
during a kidnapping.

The state Supreme Court "has upheld the use of lethal injection as a
constitutional method of execution," Assistant Attorney General Marvin
White Jr. said in a motion filed with the state Supreme Court. "Likewise,
this court should not stay its hand in the setting of an execution date.
Should the United States Supreme Court see fit to grant a stay that is a
matter for that court."

Berry's attorneys have until 1 p.m. Friday to respond to the state's
motion, based on an order from the state Supreme Court.

Berry's lead attorney couldn't be reached Wednesday, but other attorneys
who worked on his federal appeals said they had received the state's
motion.

The U.S. Supreme Court on Monday decided not to hear Berry's appeal from a
lower court.

Bounds' husband, Charles Bounds, who still lives in Houston, said he
doesn't want to see Berry's execution, "but I want it to happen."

Bounds said his wife was the most precious thing in his life and he often
thinks about what happened to her.

Former Chickasaw County District Attorney Larry Little said he hopes
Berry's execution is carried out for the sake of Bounds' family.

"I think it would be some closure for them," Little said.

Also, Little said 2 separate juries voted to send Berry to death and he
believes their wishes should be carried out.

The attorney general's office is pushing for the execution of Berry
although some states, including Texas, have put executions on hold until
the U.S. Supreme Court decides a Kentucky case on whether lethal injection
is cruel and inhuman.

Richard Dieter, the executive director of the Washington-based Death
Penalty Information Center, told the Lexington (Ky.) Herald-Leader
newspaper that many pending appeals of the lethal injection protocol
likely will be stayed or halted until the high court reaches a decision.

Oral arguments in the U.S. Supreme Court tentatively have been scheduled
for Jan. 7 on Kentucky's lethal injection case based on an appeal brought
by convicted double murderers Ralph Baze and Thomas Clyde Bowling Jr.

Baze, 52, was scheduled to be executed Sept. 25, and Bowling, 54, was
scheduled to be executed in November 2004, but both executions were halted
because of the pending legal challenge. Baze and Bowling have argued the
drugs used to make the lethal cocktail - an anesthetic, a muscle paralyzer
and a substance to stop the heart - could cause pain but the inmate could
not alert anyone because of the paralyzer.

Baze was convicted of the 1992 fatal shooting of Powell County Sheriff
Steve Bennett and Deputy Arthur Briscoe. Bowling was convicted of killing
Tina and Edward Earley outside their Lexington dry-cleaning business in
1990. Bowling also shot the couple's then-2-year-old son, Chris, who
survived.

Most states, including Mississippi, use lethal injection to carry out an
execution.

(source: Clarion-Ledger)

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

Miss. death row inmate says setting execution date improper


The state of Mississippi should not be setting execution dates for
condemned inmates until a decision is reached on whether death by lethal
injection is cruel punishment, says attorneys for Earl Wesley Berry.

Assistant Attorney General Marvin L. White Jr. asked the Mississippi
Supreme Court on Monday to set an execution date for Berry.

The Mississippi court has not ruled on the request.

In a response filed Thursday with the court, attorneys with the
Mississippi Office of Capital Post-Conviction Counsel said other states
have delayed executions until the lethal injection issue is settled.

Attorney Robert M. Ryan said the U.S. Supreme Court's decision to consider
the constitutionality of a lethal projection procedure similar to that
used in Mississippi is sufficient for a stay of execution. He said without
a final decision the setting of an execution date for Berry was premature.

The U.S. Supreme Court case involves two death row inmates' claim that
lethal injection as practiced in Kentucky violates the Constitution's ban
on cruel and unusual punishment.

Every state that uses lethal injections - including Mississippi - employs
the same three drugs, but there are differences among the states in the
way the drugs are administered, training of executioners who administer
them and dosages, legal experts have said.

The nation's high court said it will hear the case early next year.

White said the Supreme Court has not halted other executions while the
Kentucky case is pending. He said the Mississippi court "has upheld the
use of lethal injection as a constitutional method of execution."

Ryan said Berry has not exhausted his appeals as the state had claimed.
Ryan said Berry will file a post-conviction petition to attack his
execution by lethal injection with claims similar to those in the Kentucky
case.

Berry, who has been on death row since 1988, lost an appeal Monday when
the U.S. Supreme Court declined to hear his case.

Berry had challenged a decision from the 5th U.S. Circuit Court of
Appeals, which said in April that Berry had raised no new issues that
might win him another trial. A federal judge in Mississippi in 2006 denied
Berry's same request.

Berry was convicted and sentenced to death by a Chickasaw County jury for
the Nov. 19, 1987, killing of Mary Bounds. Bounds was beaten to death
after leaving her weekly church choir practice, authorities said. Her body
was found just off a Chickasaw County road near Houston.

Berry admitted to the killing, and the confession was used against him at
trial.

Berry has lost appeals on issues ranging from allegations that blacks were
illegally kept off his trial jury to whether he is mentally retarded.

(source: Associated Press)






UTAH:

Attorney wants out of death row case


Attorneys in the appeal of a convicted murderer who was sentenced to death
are arguing over whether the defense attorney should be allowed to
withdraw from the case, and both sides are pointing to another case to
make their points.

In a hearing on Tuesday at 4th District Court in Provo, Salt Lake
City-based attorney Mark Moffat asked to be released as defense counsel
for Douglas Stewart Carter. Carter was convicted in 1985 of killing Eva
Olesen in a robbery in Provo. Olesen was the aunt of a former Provo police
chief.

Moffat argued that he is not qualified to handle the appeal and that the
case has been a heavy financial burden for his law firm. Assistant Utah
Attorney General Thomas Brunker opposes the request, saying that it would
cause major delays in the execution.

On Wednesday, another condemned murderer was in court in West Jordan,
where Judge Stephen Roth tried to figure out how to find the man an
attorney for his appeal. Under state statute, people who are sentenced to
death are entitled to legal representation. But it has been almost a year
since Ralph Leroy Menzies filed his appeal, and no attorneys are willing
to take the case. The primary reason cited by many of the potential
attorneys is that taking such a case for the relatively small amount of
compensation offered by the state is an extraordinary hardship.

"The issues that I'm dealing with in Mr. Carter's case mirror the issues
that are occurring in Mr. Menzies's case," Moffat said on Wednesday.

Moffat's main concern, he said, is that he lacks the experience and
specialized training to handle a post-conviction proceeding in a death
penalty case. He is qualified to represent defendants in death penalty
cases at trial.

According to the state's Rules of Criminal Procedure, there are specific
requirements for attorneys assigned to post-conviction appeals in death
penalty cases, including experience in appeals in felony cases and
completion of certain continuing legal education courses, among other
requirements.

Moffat took the case last year along with attorney Leo Griffard, of Boise,
who is qualified but has not been able to participate because of the
responsibilities of his practice in Idaho.

"All of the work in the case has been done by me, a person not qualified
by rule to do that work," Moffat said. "And I worry, because if the work
isn't done correctly, of course the consequences for Mr. Carter are
devastating. He will be put to death."

Brunker argued that allowing Moffat to withdraw would put them in the same
situation that the 3rd District Court is in with Menzies, where
proceedings are at a standstill because no defense attorney will take the
case.

Moffat's other argument -- the same one that is preventing Menzies from
getting counsel -- is that taking such a case puts heavy financial
pressure on the defense attorneys. The state compensation for Moffat's
firm's work on the Carter case is about $10,000, Moffat said. Brown &
Moffat has put in 505.7 hours in the case, he said, which under normal
rates would cost more than $82,000.

"Lawyers can't maintain a law practice at that level of compensation, and
it is a significant factor in any case of this nature," Moffat said.

There are few attorneys in Utah who are qualified to handle a case such as
Carter's, Moffat said, and those few who have the credentials are
discouraged from taking the cases because of the money they would lose in
the process.

According to Troy Booher of the law firm Snell & Wilmer, the finance
problem is common. Booher's firm wrote a court brief about compensation
for defense counsel at Roth's request for the Menzies case.

"It's a common problem because the funding is such that attorneys
essentially lose somewhere in the neighborhood of $20 an hour for every
hour they work on these cases," Booher said. "You need certain kinds of
expertise to even be qualified to take these cases, and then they pay you
at what turns out to be a rate of somewhere just above minimum wage."

Brunker is not disputing that taking the case has been a financial burden
for Moffat, who took the case in early 2006, but said that the attorney
should have brought these issues up a long time ago.

"They waited a long time to raise these issues. We're very far into this
case," he said.

The victim's family feels the same way. Gary Olesen, the victim's son,
said that Moffat should have taken such issues into consideration before
taking the case. Paul Olesen also said he felt it was an unnecessary delay
in the execution of his mother's killer, and worried that the situation
could end up like the Menzies case.

"I don't feel sorry for him at all. He should've known this better before
he took on the assignment," Paul Olesen said of Moffat. "He should've done
a little more research before he got involved with it."

Judge Lynn Davis will rule on Moffat's request within 60 days. According
to Booher, who attended Wednesday's hearing in the Menzies case, Roth has
scheduled another hearing for Nov. 16.

(source: Daily Herald)






FLORIDA:

Judge won't block death penalty in 'Curious George' murder


Rex Ditto is willing to die in prison, just not by lethal injection,
according to his attorney.

At a hearing Thursday, lawyer Robert Gershman asked Circuit Judge Edward
Garrison to allow Ditto, 31, to plead guilty to murdering Alan Shalleck, a
collaborator in the Curious George children's books, and sentence him to
life without parole.

Garrison denied the request, stating that Ditto is free to plead guilty
and go straight to the sentencing phase of the trial, at which the state
could present reasons why Ditto should be put to death and the defense
could present evidence to spare his life. But the court is not obligated
to remove the death penalty as an option.

"It's a hard call," Gershman said after the hearing. "He would be pleading
[guilty] with a possible death sentence."

Both Ditto, 31, and co-defendant Vincent Puglisi, 56, face possible death
sentences if convicted as charged of robbing and fatally stabbing
76-year-old Shalleck in his Boynton Beach mobile home in February 2006
during a sexual encounter.

In a five-page motion filed with the court, Gershman argued that the state
previously extended a plea offer of life without parole to both men, but
only if they both agreed to take the deal. Puglisi declined the offer,
according to Gershman, thus revoking Ditto's as well.

Prosecutor Andy Slater recently amended the offer to Ditto with the
conditions that he provide a sworn statement to Slater, who would then
decide whether it was truthful, Gershman said. Ditto would then be
prohibited from testifying as a witness for Puglisi.

Gershman maintains that his client cannot comply with those conditions
because his current testimony would be inconsistent with prior statements
he has made and may help exonerate Puglisi.

"It is unconscionable that Ditto, who wishes to spend the rest of his life
in prison and die in his jail cell, is not permitted to do so because of
individual decisions by a prosecutor and Puglisi," Gershman wrote. "This
is not fair and a violation of the Defendant's constitutional rights."

Slater told the judge that Ditto's testimony, which helps exonerate
Puglisi, is inconsistent with both the physical evidence at the scene and
Ditto's prior statements. He declined to discuss plea negotiations he may
have had with the defense.

The men are scheduled to go to trial Nov. 2. Though they will be tried
together, there will be 2 juries.

Gershman said his client's desire to plead guilty and avoid a trial is
two-fold: He doesn't want to receive the death penalty and he'd like to
spare his parents, who live in rural Alabama, the "very gruesome and gory"
crime scene photos as well as the salacious details of Ditto's sex life,
which included sadistic and masochistic acts.

(source: Sun-Sentinel)






ARIZONA:

Mom who beat 10-year-old to death will serve life


For Vicki Lynn Hulsey, her 10-year-old adopted son was her salvation and
her downfall.

Jerry, a boy with a sparkling smile and blue eyes, was the center of her
world.

The mentally-ill single mother whose days were often filled with
hallucinations, mood swings and paranoia looked to her son as the reason
not to kill herself. She kept Jerry's photo on the wall by her bed as a
reminder.

"My son is a special gift that touches my life. I can be at my worst and
pull it together for him," Hulsey wrote in a letter seeking Department of
Veterans Affairs disability benefits in 2002. "If not for my son, I would
not be on this earth. I would have taken my life by now."

4 years later, her delusions turned deadly.

Hulsey beat Jerry to death April 3, 2006, during an interrogation fueled
by a belief that he had betrayed her after a Child Protective Services
investigation. But Hulsey, who told police she deserves the death penalty,
likely won't join the 2 other women on Arizona's death row.

In August, Hulsey, 46, pleaded guilty to one count of first-degree murder
as part of a deal. She will be ordered to serve natural life in prison
without parole when she is sentenced today in Maricopa County Superior
Court.

At the time of his death, Jerry Chandler Hulsey was a well-liked
fifth-grader at Superstition Springs Elementary School. He loved baseball.

A review of court records, including 2 psychiatric evaluations, Hulsey's
letter seeking disability benefits from the VA, and letters from friends
and family to the court, provide insight into Hulsey's life and the events
leading to Jerry's death at their home near Baseline and Sossaman roads in
Mesa.

Hulsey fought her entire life to overcome physical and emotional trauma,
substance abuse and disabling mental illness. She had no criminal record.

Her struggles began as a child. She was raised in an abusive environment
in Corvallis, Ore. Her father struck her often and terrified her. Once, he
kicked her for spilling milk.

In high school, Hulsey fought depression. A housekeeper once found her
with a gun in her mouth.

As a young woman she served in the Navy, spending a year and a half in
Iceland in what she called her own private war. As a security officer, she
witnessed sexual violence against women, and the experiences sparked
nightmares, flashbacks and alcohol abuse.

In her 30s, she was diagnosed with bipolar disorder, hypothyroidism and
post-traumatic stress disorder.

She received substance-abuse treatment and stayed clean for more than 10
years. She was honorably discharged after five years in the Navy, obtained
a degree in horticulture and held a job as a groundskeeper at a community
college for 15 years. It was there, in Monterey, Calif., where she built a
support system of friends and found Jerry.

Helping a child

She met Jerry's mother at an Alcoholics Anonymous meeting. He had been
abused and he was forsaken by his godparents. Hulsey, inspired by an ad on
TV, adopted Jerry in the late 1990s.

Hulsey had doubts of whether she as a mentallyill single mother, could
handle the responsibility, according to Kathleen Rozman, a longtime
friend, in a letter to the court in August.

"When she impulsively decided that she had to rescue a young boy from what
she viewed as an abusive environment, she overextended herself," said Dr.
Raphael Morris, a clinical assistant professor of psychiatry at New York
University School of Medicine. Morris, the former director of Bellevue
Hospital Center, conducted an evaluation at the request of Hulsey's
attorney focusing on Hulsey's state of mind leading up to the crime.

A few years after the adoption, Hulsey's mental condition had declined to
hearing voices, seeing hallucinations, paranoia and rage states, requiring
hospitalization. Eventually, she was forced to leave her job and obtain
disability benefits. At times, she couldn't leave the house.

Everything began to unravel in 2004 when Hulsey's father died. She moved
to Arizona to be closer to her mother.

Hulsey had difficulty finding psychiatric treatment because doctors
wouldn't accept her private insurance or they weren't taking new patients
or there was a long wait period, according to an evaluation by John Toma,
a psychologist in Phoenix.

Eventually, she stopped looking for help. She went without treatment for
about a year before the arrest.

"I was just trying to hold on," Hulsey told Toma.

In early 2005, state Child Protective Services investigated a low-risk,
physical-abuse claim involving Hulsey and her son. The allegations were
unsubstantiated because of a lack of visible injuries. Hazel Hulsey, Vicki
Lynn's mother, continued to call CPS, saying her daughter and grandson
were in crisis, but was never contacted, she wrote to the court.

Hulsey felt betrayed by her son after the CPS probe, which was launched
after he told officials at his school that his mother struck him.

In the next year, her mental state declined, vacillating between not being
able to get out of bed and rants. Jerry took care of himself when his mom
couldn't get out of bed.

By September, Hulsey was using cocaine, psychiatrists said.

She sought treatment for her and her son at Southwest Behavioral Health
Services. She told them that she wasn't taking her medication. She was
suffering from depression and wanted help to find a provider that would
accept her insurance, according to Toma's report.

The month before her son's death, Hulsey began using cocaine daily. She
told police she had snorted 10 lines of cocaine the two days before her
arrest.

Despite no evidence that Jerry had a behavior problem, Hulsey became
increasingly frustrated with him, Morris wrote.

She believed he was lying about talking to neighbors. She feared the
police might raid her house because of her cocaine use and had delusions
that helicopters were monitoring her. She often asked Jerry to look
outside.

The interrogation

It was April 2, 2006. Early that Sunday, Hulsey gave Jerry a deadline.

By evening, he had to tell the truth about questions she had been asking
for weeks. The planned interrogation began at 7 p.m. No answer was good
enough for her. That's when Hulsey, who had sniffed about 1/8 of a gram of
cocaine, started to slap him.

By 11 p.m., Hulsey was surprised when she saw her son's face in the light.
It was swollen and red. When blood came pouring from his mouth, Hulsey
said she didn't know why.

In the next 2 hours, she woke up Jerry to continue questioning him. Her
slaps turned to punches while telling him how her father had struck her
much harder. She locked his leg with handcuffs to prevent him from calling
anyone and to keep him from falling down. Hulsey eventually asked Jerry if
he was OK and if she needed to take him to the hospital.

Around 3 a.m., she threw water on him. He was unresponsive.

Jerry, calling her "Mama," said he wanted to go to the hospital. She
wondered if Jerry was playing a game.

The next morning, Hulsey hoped God would fix things. She picked up her
son, put him to bed and noticed he was cold.

Something terrible

She fell asleep and was awakened by the phone ringing. It was Jerry's
school asking why he wasn't there. Hulsey attempted to resuscitate him and
became suicidal and took sleeping pills. She called her mother, saying
something terrible had happened.

When Jerry's grandmother arrived, he was in bed, facedown, with bruises on
his back, side and arms. His ribs were broken and he had cocaine in his
system, according to a medical report.

When police arrived, she asked an officer for his gun because she wanted
to die.

Morris concluded that Hulsey knew what she was doing was wrong, but she
didn't plan to kill her son or realize she was doing "irreversible" harm
to him. He added there is no evidence that there was a pattern of child
abuse.

"He didn't deserve that," Hulsey said during an interview with Morris. "I
can't believe I could do that to a little child."

(source: Arizona Republic)






NORTH CAROLINA:

Death penalty a decreasing rarity in N.C., Cabarrus County


A jury that is scheduled to be selected Monday in the Lisa Louise Greene
case will have the option to sentence her to life in prison or death by
lethal injection if she is found guilty of 1st-degree murder. A recent
decline in the number of death penalty sentences handed down by juries
will make the case interesting for Cabarrus County prosecutors.

Greene is accused of intentionally starting a fire at her Midland mobile
home on January 10, 2006 that killed her children, Daniel Macemore, 10,
and Addison Macemore, 8. In court documents obtained by the Independent
Tribune, Cabarrus County District Attorney, Roxann Vaneekhoven, said that
the crimes Greene is accused of are "especially heinous," and that the
death penalty was necessary.

Isaac Unah, a UNC political science professor who has studied North
Carolina death penalty cases, said juries have returned fewer death
verdicts in recent years because of a national debate against the death
penalty.

"Juries, like everyone else, watch the news and they hear things about
cases of individuals put to death who are later exonerated, death penalty
cases are always in the news," Unah said. "There's a national trend
against the death penalty. Juries are citizens as well."

A 2006 Gallup poll found that 65 percent of Americans were in favor of the
death penalty, but Unah believes that poll numbers are inflated because
they are only yes or no answers.

"On a gut level most people feel that the death penalty is necessary," he
said. "But we continually see a decline in death sentences because once
juries begin to think about the implications and irreversibility of their
decision they side against that option."

Tyler Gladden, convicted in the 2002 contract murder of Tara Chambers and
her child, was sentenced to life plus 50 years on Aug 4. Cabarrus jurors
had the option to sentence Gladden to die.

Gladden's case was the 1st death penalty case in 7 years for Cabarrus
County. Cabarrus County prosecutors do not keep records of how many death
penalty cases they've tried and it is unknown how many juries have
returned a sentence of life in prison instead of the death penalty.

Since North Carolina lifted automatic death penalty sentences for
1st-degree murder cases in 1967 and allowed juries to decide death
sentences, only 4 Cabarrus County individuals have been sentenced to die.

David Lawson was the last man executed from Cabarrus County. He died in
the gas chamber on June 2, 1994, after being convicted of killing Wayne
Shinn. According to previous reports, Shinn caught Lawson breaking into
his Concord home in 1980. After a fight ensued, Lawson shot Shinn and his
father, who survived, at point blank range in the back of the head.

Lawson made national headlines when he asked the Phil Donahue Show to
televise his execution. The U.S. Supreme Court denied that request.

Since Lawson, 3 other Cabarrus County men from have waited their turn for
the needle. Two of them, Andrew Craig and Francis Anthony were removed
from death row when a superior court judge vacated their death sentences
for a life sentences in 2002.

Ernest McCarver's death sentence was put on hold by a Supreme Court ruling
in 2001 that asked a lower N.C. circuit court to review medical
information that he was mentally retarded. McCarver's stay of execution
was handed down only hours before he was scheduled to die by lethal
injection, North Carolina's only method of execution. He is on death row.
He was convicted of the robbery and murder of a Cabarrus County restaurant
owner, Woodrow Hartley.

Individuals must be convicted of 1st-degree murder and at least 1 of 11
aggravating circumstances to be eligible for the death penalty in North
Carolina.

(source: Kannapolis Independent Tribune)