[Deathpenalty] death penalty news----TEXAS, ALA., CALIF., TENN., PENN., GA.

[Rick Halperin]

Oct. 31



TEXAS:

Protest hits home for Texas judge who refused to hear late appeal


A group of activists opposing the death penalty rallied outside Judge
Sharon Keller's home in North Austin Tuesday night.

Keller presides over the Texas Court of Criminal Appeals and refused to
accept a late death penalty appeal on Sept. 25, which resulted in Michael
Richard's execution.

"We came to where we think she can hear us," said Scott Cobb, president of
the Texas Moratorium Network, an organization in opposition of the death
penalty.

Keller told attorneys filing Richard's appeal that the office closes at 5
p.m. and would not grant them the 20 extra minutes they requested due to
computer printer malfunctions. There was another attorney assigned to
handle late appeals that night, who Keller did not consult with prior to
her decision.

Cobb said the protest occurred at Keller's house because most members of
his organization work until 5 p.m. when the Court of Criminal Appeals
office would be closed.

Keller did not come out of her house at any point during the protest and
did not respond to knocks on her front door.

In light of Richard's execution, Cobb said he thinks the trust in and
integrity of the criminal justice system has been lost.

"We're asking for her to be removed from office to restore the integrity
of the system," he said. "If there is no trust in the system, then the
whole thing breaks down."

About 1,200 public members have signed the judicial complaint against
Keller, which will be delivered to the State Commission on Judicial
Conduct Nov. 6. The complaint is sponsored by the Texas Moratorium
Network.

Members of the Austin chapter of the Campaign to End the Death Penalty
criticized Keller's actions in the courtroom in addition to her actions on
the night in question.

In the past, Keller has allowed attorneys to sleep through capital murder
trials, said Kathleen Feyh, a UT graduate student and member of the
organization, referencing a capital murder trial for Calvin Burdine, whose
lawyer, Joe Cannon, slept through parts of his client's trial.

"We haven't seen her treat cases with any passion, and she does not view
defendants as human," she said.

Feyh said she believes the Richard case was the straw that broke the
camel's back but said she wishes Keller's actions had come much sooner.
After Richard's execution, no other Texas inmates have been executed.

"Any halt to executions is a good step and a step in the right direction,"
Feyh said.

(source: The (Univ. of Texas) Daily Texan)






ALABAMA:

Halt executions in Alabama until problems fixed


Attorney Gen. Troy King's dismissal Monday of an American Bar Association
recommendation for an immediate moratorium on executions in Alabama was
reminiscent of the late Gov. George C. Wallace's railing against "outside
agitators" during the Civil Rights

King said "it takes far too long to execute someone without interference
by outside groups that come to Alabama and tell us how to run our state."

It was a flippant dismissal of a thoughtful and detailed study of capital
punishment in Alabama that was 3 years in the making.

While the ABA takes no position on the death penalty, it called for a
nationwide moratorium on executions to allow states to study their legal
systems to see if they meet standards for fairness and due process.

Alabama was 1 of 5 states in which the ABA said there are so many problems
with capital punishment that a temporary moratorium should be established
immediately.

The ABA study found that capital defendants in Alabama too often do not
get the full benefit of their constitutional guarantee to competent
counsel at every stage of the process. It recommends that Alabama create a
statewide indigent defense commission.

It found that Alabama is one of only two states in the country that do not
guarantee an attorney in the state post-conviction portion of the death
penalty process, even if the inmate might have new evidence of innocence.

Alabama has failed to pass a law that ensures access to DNA testing for
people convicted of capital crimes, the study said. Moreover, the state
does not require that biological evidence be preserved throughout the
capital inmate's incarceration. As a consequence, evidence that could be
used to prove innocence may be destroyed.

State lawmakers have failed to pass a law to make Alabama compliant with
the U.S. Supreme Court ban on executing offenders with mental retardation.

The study called for eliminating Alabama's rule allowing judges to
override jury decisions in capital cases, a potential danger in a state
that continues to elect its judiciary. In addition, the state should
require juries to be unanimous in recommending a death sentence, it said.
Recommending that Alabama reserve the death penalty for "the worst of the
worst" criminals, the report said the state needs to collect and study the
data needed to fully understand how its capital punishment system is
working.

The study pointed out troubling racial disparities in Alabama's death
penalty system. More than 82 %of the people executed in Alabama since 1976
were convicted of killing white people, despite the fact that more than 65
% of all the murders in Alabama each year in Alabama involve black
victims. 80 % of the state's current Death Row inmates were convicted of
murdering white people.

A spokesperson for Gov. Riley, who supports capital punishment, said he
has not read the ABA report. He needs to. So should members of the
Legislature.

Given King's recent grandstanding on death penalty issues, including
intemperate comments that drew the opposition of most of the state's
district attorneys, his opposition to the ABA report is not particularly
surprising. But there is more than enough solid evidence in the study to
convince most people of conscience that the state needs to take a long,
hard look at its capital punishment system before allowing executions to
continue in Alabama.

(source: Editorial, Tuscaloosa News)






CALIFORNIA:

Death penalty rules put on hold----Regulations not followed, judge will
rule today


A Marin County Superior Court judge is expected to rule today that the
state prison system did not follow its own procedures by failing to hold a
public hearing when it changed the lethal injection protocol for carrying
out the death penalty.

The anticipated ruling could further delay the execution of Stockton's
Michael Angelo Morales, sentenced to death for the 1981 rape and murder of
17-year-old Terri Lynn Winchell, also of Stockton.

Superior Court Judge Lynn O'Malley Taylor issued the tentative ruling,
which she is expected to finalize in a hearing today in a Marin courtroom.
Morales' attorneys filed the civil suit in April 2006, which takes issue
with the state's Administrative Procedures Act.

"We've seen the tent ruling, and we'll wait to see what the final ruling
is before we draw any conclusions," said Morales' lead attorney, David
Senior.

Senior filed the suit in Marin County, where San Quentin State Prison and
the state's lethal injection chamber are located, arguing that under
California law, the state has to publish any regulation changes and offer
the public a chance to ask for a hearing.

Morales' execution was scheduled for Feb. 21, 2006, but his attorneys won
a delay by convincing a federal judge the state's combination of three
drugs could lead to a painful death, violating the constitutional
protection from cruel and unusual punishment.

Attorneys for the California Department of Corrections and Rehabilitation
later reworked the three-drug cocktail in an effort to ensure a quick and
painless death, but Morales' attorneys said such changes had to undergo a
public hearing process.

Taylor agreed in the tentative ruling, saying the state "was required to,
but did not, comply with the Administrative Procedures Act when it adopted
this regulation. ... The defendants were required to comply with the APA."

(source: Stockton Record)

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

California may be forced to redesign executions


A decision to toss latest plan would increase uncertainty over state's
death penalty, already on hold because of a constitutional challenge.

California may have to go back to the drawing board to redesign how to
execute condemned inmates by lethal injection, under a tentative ruling
Tuesday by a Marin County Superior Court judge.

Judge Lynn O'Malley Taylor's decision to toss the state's design, if it
becomes final, will cast more uncertainty on California's death penalty,
already on a de facto moratorium for the last 20 months because of a
constitutional challenge to lethal injection.

Critics across the country have objected that lethal injection amounts to
cruel and unusual punishment, contending that the 3-drug cocktail that is
used includes a paralyzing chemical that masks extreme pain.

The U.S. Supreme Court is considering a challenge to lethal injection in a
Kentucky case.

Last December, U.S. District Judge Jeremy Fogel in San Jose ruled that
inmates on California's death row run an unnecessary risk of excessive
pain.

In response to Fogel's ruling, the state started building a new death
chamber and revised lethal injection guidelines, largely behind closed
doors.

Attorneys from the Munger, Tolles & Olson law firm sued on behalf of two
inmates, saying that state corrections officials made a "deliberate and
undisputed" decision to ignore the Administrative Procedure Act, which
called for public scrutiny of the state's overhaul.

Lawyers from the California attorney general's office asserted that the
Administrative Procedure Act did not apply because of an exemption for
policy changes that affect only one prison or correctional facility. All
state executions are carried out at San Quentin State Prison.

Attorneys also argued that the state's lethal injection procedure "is not
a rule of general application."

Taylor, on the eve of a court hearing on the issue, flatly rejected both
of those arguments.

"None of the exceptions to this rule raised by the defendants apply," she
wrote.

She said she will issue an injunction against enforcing the new state
plan.

Administrative law experts said the ruling could have a dramatic effect on
the more than 650 people on California's death row. Corrections officials
would have to draw up new lethal injection procedures, publish a rule,
seek comment, hold a public hearing and submit the rule to review by the
state Office of Administrative Law, an independent agency, according to
law professors Michael Asimow of UCLA and Clare Pastore of USC.

That could take up to six months or longer, Asimow said.

Bradley S. Phillips, the lead lawyer for the plaintiffs, death row inmates
Michael Morales and Mitchell Sims, said it would be inappropriate for him
to comment on a tentative ruling. The attorney general's office had no
immediate comment.

Both professors Asimow and Pastore said the judge's ruling was well within
the mainstream of the courts' thinking on the issue in California.

"The California Administrative Procedure Act is unusual because it is very
strong and detailed," said Pastore, who brought a number of cases under
the law while she was at the Western Center on Law and Poverty. "We want
the public to know what government is doing."

Asimow said similar rulings are issued many times a year, frequently in
cases of what have come to be known as "underground regulations," issued
without a public voice.

Lawyers from the state attorney general's office are expected to ask Judge
Taylor to reverse her tentative ruling at the hearing today. If that does
not succeed, they can appeal.

Attorneys also have filed a court challenge to the merits of the state's
new lethal injection procedures. Judge Fogel has scheduled a hearing on
that challenge for Dec. 10 and 11.

(source: Los Angeles Times)






TENNESSEE:

Lawmakers studying fairness of death penalty


Lawmakers and others studying the state's death penalty are stressing the
need to ensure fairness in the way prosecutors decide to seek the death
penalty.

James Wally Kirby, executive director of the Tennessee District Attorney's
General Conference, says the discretion for prosecutors lies in the
decision not to seek the death penalty in a 1st-degree murder case.

They can only pursue capital punishment if a case has one of 15 aggravated
factors.

Kirby says prosecutors must also consider likelihood of conviction,
community standards and concerns of the victims' family.

Sen. Doug Jackson says some question whether prosecutors apply the death
penalty fairly and he is considering whether a law could ensure more even
treatment.

(source: Associated Press)



PENNSYLVANIA:

State to seek death penalty in retrial


State prosecutors plan to seek the death penalty against a Georges
Township man accused of killing 2 people in 1984.

As early as next week, Joseph Nara's could face a retrial in the deaths of
his wife, DeLorean Churby, and mother-in-law, Virginia Ruth Churby, though
with the recent filing, it is unlikely that the trial will occur so soon.

Nara, 56, of Waynesburg had his dual life sentences overturned earlier
this year by a federal appellate court. The court essentially found that
there was evidence that Nara was mentally ill when he pleaded guilty to
1st-degree murder in the women's deaths.

Although prosecutors have asked the U.S. Supreme Court to review the case,
that will not stop the state Attorney General's office from trying the
case as early as next week, according to Nils Hagen-Frederiksen, a
spokesman at the office.

He said Tuesday that a U.S. Supreme Court ruling does not bar them from
seeking the death penalty against Nara despite his earlier sentence of
life imprisonment.

The case law, said Hagen-Frederiksen, indicates that once an appeal sets
the conviction aside, "double jeopardy has not terminated, so that the
life sentence imposed in connection with the initial conviction raises no
double jeopardy bar to a death sentence on retrial."

Double jeopardy is the premise that a person cannot be tried for the same
crime twice.

State prosecutors took over the case at the request of Fayette County
District Attorney Nancy D. Vernon. Her father, also an attorney, had
contact with Nara while she was working in his office, and Vernon wanted
to avoid any appearance of a conflict of interest.

The alleged killings happened after Nara's wife left him, and he found
letters written between her and another man. The Attorney General's office
also prosecuted the case in 1984 because the alleged other man was a state
trooper.

That trooper has since retired, and so the case would have been tried by
Vernon's office.

Nara fled to North Carolina after the shootings, but turned himself in to
police after a short time, and entered the guilty pleas in June 1984.

After he was sentenced, Nara appealed through various channels. By 1999,
Nara took his case to federal court in Pittsburgh. The case took several
years to wind its way through the court system, but in 2005, a federal
judge granted Nara's request to vacate the pleas.

State prosecutors appealed that decision to the federal 3rd Circuit Court,
and in May, it upheld the lower court's determination that Nara's
conviction should be vacated.

The appellate court based its decision in part on a 1990 hearing in
Fayette County Court.

During that hearing, then-Judge William Franks found that Nara could
withdraw his guilty pleas because his attorney presented evidence that
Nara was probably "psychotic" when he pleaded guilty, and incapable of
understanding what he was doing.

The doctor who testified before Franks indicated that Nara's condition
"steadily worsened" after his wife left him, and left him "psychotic" and
"out of touch with reality" when he pleaded guilty.

However, prosecutors appealed that finding, and the Superior Court
reversed Franks' ruling because the judges believed the issue of
competency had been legally waived.

Before the killings, the federal appeals court judges found that Nara was
treated for a suicide attempt, and briefly committed for mental health
issues. After he turned himself in, Nara was transferred from the county
prison to Mayview State Hospital in Bridgeville to again deal with mental
health issues.

He was transferred from Mayview back to prison four days later when he
spoke of escaping.

After Nara was sentenced, he was put into the medical unit for mental
health treatment, and in February 1985, he tried to kill himself in the
prison hospital.

(source: The Herald-Standard)






GEORGIA:

Richardson mustn't guarantee Nichols a way out


Never miss a chance to grandstand. That's the politician's credo.

Taking that to heart, Georgia House Speaker Glenn Richardson (R-Hiram) is
threatening Superior Court Judge Hilton Fuller with investigation and
possible impeachment. It is a position bound to attract attention, even if
it may end up hurting the cause Richardson claims to support.

Richardson mustn't guarantee Nichols a way out

Fuller, you will recall, is the judge chosen for the unhappy assignment of
presiding over the trial of Brian Nichols, accused of killing four people
a judge, a court reporter, a sheriff's deputy and a federal agent  during
a March 2005 murder spree, after he broke free of a deputy holding him in
the courthouse. Fuller has repeatedly supported Nichols' attorneys in
their quest for more public funds to defend Nichols, a stance which has
not exactly endeared the judge to a public ready to send Nichols to death
row.

Fuller upped the ante earlier this month when he threatened to hold the
Georgia Indigent Defense Council in contempt for its failure to fork over
more money. He also ordered Fulton County to come up with funds to support
the defense, though that order was blocked by the Georgia Supreme Court in
September. So far, Fuller has postponed the trial four times, sometimes
citing a lack of defense funding.

Enter Richardson, who announced last week that he was appointing a special
legislative committee to determine whether Fuller has abused his office
and should be impeached.

"There are serious questions about the poor handling of public funds that
need to be addressed," declared House Majority Whip Barry Fleming
(R-Harlem), chairman of the special committee. Nichols' defense lawyers
have already spent nearly $2 million.

An investigative committee, however, would have to overcome a significant
hurdle before it could even recommend impeachment: It will have to find
evidence that Fuller has actually violated judicial ethics. Superior Court
judges have wide latitude in criminal cases, and it does not appear that
Fuller has done anything improper.

Richardson's additional dilemma is this: If Fuller were to succumb to
public pressure and restart the proceedings, any guilty verdict would
likely result in an automatic appeal. Nichols' attorneys would have
excellent grounds to argue that their client was railroaded by a
frightened judge and hampered by an inadequate defense. Is that what
Richardson wants

Nichols free on a technicality?

There are many judges who would have been less tolerant of Nichols'
attorneys and their insistence on spending millions of dollars. This case
has very nearly drained the indigent defense system. Some observers have
argued that Nichols would receive a satisfactory defense with half the
four lawyers the court has ordered for him.

But Fuller, who has called the case "extraordinary," is going out of his
way to avoid a successful appeal. Last year, he told Atlanta
Journal-Constitution reporter Jeffry Scott, "... My responsibility is to
make sure that all parties get a fair trial, and that the case only be
tried once."

Certainly some experts will argue that Fuller hasn't done enough to
fulfill that responsibility. Last year, for example, the judge declined to
move the trial, a ruling that surprised University of Georgia law
professor Donald Wilkes Jr.

"Who would ever have a better showing for change of venue?" Wilkes asked,
noting that Nichols will be tried in the same courthouse in which he is
accused of killing a well-liked judge and court reporter.

It's not just Nichols on trial. So is the recently established statewide
indigent defense system.

"There is a crisis in confidence over the Nichols trial and how the money
has been spent," said UGA law professor Ron Carlson, an expert in criminal
procedure, who believes that a "responsible legislative inquiry" is
appropriate if it focuses on accounting for defense expenditures. But
Carlson also cautioned that "at the end of the day, there is no doubt this
[trial] is going to be expensive."

Note to Richardson: Even Nichols deserves a fair-minded judge and a
legitimate defense. The best way to ensure that Nichols gets what he
deserves is to stay out of the way and let Fuller do his job.

(source: Cynthia Tucker, Opinion, Atlanta Journal-Constitution)