[Deathpenalty] death penalty news----TEXAS, OKLA., GA., CALIF., IND.

[Rick Halperin]

Sept. 1



TEXAS:

Timely judgment


Gov. Perry was wise to acknowledge flaws in Kenneth Foster's death
sentence.

>From his cell on death row, Kenneth Foster didn't pretend to be an
innocent. In 1996, Foster drove the car in a nighttime crime spree,
ferrying friends to 2 armed robberies before following a pair of cars into
a neighborhood. After Foster's companion got out and shot one of the
drivers, the 19-year-old Foster whisked the murderer and his other
passengers from the scene.

Repugnant though they are, Foster's crimes did not include the murder of
Michael LaHood, a 25-year-old law student. Through an unprecedented turn
of events, Foster Thursday narrowly escaped dying for that murder. To the
surprise of many, Gov. Rick Perry heeded the recommendation of the Board
of Pardons and Paroles to commute Foster's sentence to life.

The governor's decision did not, however, arise from the "law of parties"
the unique Texas law that holds all participants in a capital crime
equally culpable, if it can be proved they "should have anticipated" the
fatal outcome. The advocates for reducing Foster's sentence included 13
members of the Legislature, most of whom argued that Foster had no idea a
shooting would take place. Foster and his co-defendants testified that
while Foster knew of the previous crimes that night, he didn't anticipate
murder.

He certainly should have. His friend, after all, brandished a loaded gun.
But guesswork about the calculations of an impulsive 19-year-old who was
high on marijuana and drunk is too flimsy a basis for execution.

Perry, though, questioned something else: the fairness of a trial in which
shooter and driver were convicted at the same time. When the Legislature
reconvenes in 2009, lawmakers should act on the governor's recommendation
to reconsider the flawed Texas law that allows such dual trials.

Perry's commutation came only hours before Foster was to die. That there
was not one question, but two about the propriety of his sentence
underscores qualms about the unflinching way Texas imposes the death
penalty. Foster would have been the 403rd person to die since the death
penalty was restored here.

The case is extraordinary, not just because Foster was saved at such a
late hour, but because the governor agreed with the parole board that the
sentence was unwarranted. Not required to follow its recommendations,
Perry once before rejected the board's 5-1 vote for clemency in the case
of a schizophrenic inmate. That prisoner was executed in 2004.

Foster's role in Michael LaHood's death deeply harmed his loved ones and
society. Putting Foster to death, however, would have been an unfit
punishment for the part he played. The pro-death penalty Perry was wise to
acknowledge that, in this case, life in prison was just.

At the same time, Foster's close call  and the multiple questions about
the fairness of the sentence  only deepens doubts about other Texas
convictions that ended in lethal injection. It took a timely mix of
evidence, representation and political leadership to forestall Kenneth
Foster's execution. Absent any one of these at the right moment, the
miscarriage of justice would have been permanent.

(source: Editorial, Houston Chronicle)

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

"Small Victory Against the Death Penalty in Texas: The State Governor
Cancels Kenneth Fosters Death Sentence a Few Hours Before His Execution,"

It's not every day that an execution is cancelled in Texas, where 402
people have been killed since the reestablishment of the death penalty in
1982. Thursday evening, the State Governor, Rick Perry, commuted Kenneth
Foster's death sentence to life in prison.

The announcement came just a few hours before his execution by lethal
injection at the prison at Huntsville. Foster, who killed no one, had been
sentenced to death for the murder committed in 1996 by a member or his
gang, under the "law of parties" in force in Texas and a few other states.
The victim, Michael LaHood, was killed by a bullet to the head. The
murderer was executed a year ago. Foster, who was 19 at the time of the
crime, was driving the car for the accomplices.

"After having considered the facts and the recommendation of the Board of
Pardons and Paroles, I think it is just and legitimate to commute his
death sentence" the Governor explained. The Board, which the Governor is
not obliged to follow, had voted 5 to 1 (sic) for the cancelling of the
death sentence. Which is far from being usual in Texas, the American state
which executes the most, where the week had begun with the execution of 2
condemned men.

In the past, the Governor had granted clemency in 2 other cases, because
the condemned were mentally retarded. 28 of those sentenced to death who
were minors at the time of the crime had also had their sentences commuted
by the Governor in 2005; but he was then only applying the Supreme Court
decision on this question.

The Texas opponents of the death penalty who, like several support
committees in France, Italy and Germany, had mobilized to save Kenneth
Foster, hope that this unexpected commutation will relaunch the debate on
the legitimacy of the "law of parties" and on the death penalty in
general. Police incompetence, the fallability of judges and the bias of
juries can lead to sentencing innocents, as has already been shown by DNA
tests done on the evidence in cases already tried. Since 1992, Project
Innocence, which groups jurists in New York, has succeeded, by using this
scientific method, in exonerating more than 200 sentenced inmates, 15 of
whom risked the death penalty. "A disproportionate number of them,"
underlines Project Innocence, "are African Americans or Hispanics." In
addition, lethal injection, the principal execution method, has been found
unconstitutional in California, according to the Death Penalty Information
Center. After several reports established the suffering caused by this
method of execution, several states like Illinois, Maryland, New Jersey,
North Carolina have suspended executions. The number of death sentences
has kept dropping in the United States in recent years. There were 53 in
2006, the lowest figure since 1996. In the nineties, there were 300 per
year. As of January 1st, there nonetheless remained 3,350 inmates on death
row.

"I was wrong," explained Kenneth Foster last month to a Dallas newspaper.
"I don't want to minimize my fault. I let myself be influenced too much."

The evening of the crime, he had borrowed his grandfather's car to make
the rounds of a few acquaintances who might join his rap group.

But after smoking several joints, the evening degenerated. By turns, 2
passengers got out to hold up passers by. The 4 accomplices, all black, 19
to 20 years old, and already used to this kind of outing, shared the loot.
One of the members of the gang followed a pretty girl, and found himself
facing her boyfriend, Michael LaHood. The tone rose, and the young
criminal fired, killing his victim instantly. The murderer was executed
last summer. Tried at the same time as he was, Kenneth Foster was also
found guilty as he was.

The commutation granted Foster has not been unanimously accepted. Lee
Harvey, an inhabitant of Paris, a Texas city, wrote on the website of the
Dallas Morning News: "You say he's not a murderer? Really? He robbed
people at gunpoint and a victim was killed. He has forfeited his right to
live. Why should the citizens be penalized by paying for prolonging his
life in prison?"

(source: Column, Philipope Grangereau, Liberation (Paris) )

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

Man pleads guilty, could get life after deadly fight that prefaced
10-minute flight in carjacked 'vette


Standing before U.S. District Judge Marcia Crone on Friday, Alexis Bernard
Terry, 35, apologized for fatally shooting a California man last year in
Port Arthur.

Terry, who pleaded guilty Friday to carjacking charges and faces up to
life in prison, recounted how he approached Paul Joe Reasoner's
canary-yellow 2003 Chevrolet Corvette at Nashville Avenue and Eighth
Street about 9:30 p.m. Nov 26.

"We scuffled for just a minute and I shot him, subsequently causing his
death," Terry said. "I'm sorry about that."

Court documents indicate Terry shot Reasoner once behind the left
shoulder, threw the man to the roadway and fled in the sports car.

He wrecked the car about 10 minutes later and ran. Police tracking dogs
found him hiding in a nearby neighborhood about 11:30 p.m., according to
The Enterprise archives.

Authorities have said they know little about Reasoner, though Port Arthur
police said they believe he was in the city a few days while returning
from Jacksonville, Fla., to California.

A plea agreement Terry entered suggests Crone sentence him to 480 months
in federal prison. If she departs from the agreement, Terry can withdraw
his plea, according to court testimony.

He will be sentenced after a report on his background and criminal history
is completed.

Carjacking resulting in death is a capital crime, but prosecutors had not
sought the death penalty.

(source: The Beaumont Enterprise)






OKLAHOMA:

Death Sentence Thrown Out In Trooper Slaying


The Oklahoma Court of Criminal Appeals on Friday threw out the death
sentence handed a man convicted of killing Oklahoma Highway Patrol trooper
Nikky Green in 2003.

The appeals court let stand the conviction of Ricky Ray Malone, a former
Duncan firefighter, but said a Comanche County court must retry the 2nd
phase of the trial, which led to the death sentence.

The opinion said closing statements made by Comanche County District
Attorney Robert Schulte were "egregiously improper and unfairly
prejudicial.''

Among other things, the court held it was "improper to so directly and
profusely appeal to sympathy for the family member victims'' and to invoke
"the powerlessness, the indignities and the depersonalization'' the
American trial system imposes on victims and their families.

"It was improper for the prosecutor to so blatantly suggest that Malone's
jurors should sentence him to death because the family members' victims
were counting on them to do so,'' the opinion said.

Schulte was not in his office Friday afternoon and a spokeswoman said he
could not be reached for comment.

District Judge Mark Smith handed down the death sentence to Malone, who
was convicted of 1st-degree murder in the killing, which occurred the day
after Christmas.

Green was shot twice in the back of the head after a struggle on a Cotton
County road.

Malone testified he was operating a mobile methamphetamine lab in a car
when Green approached the vehicle.

Green lost his gun in a struggle and was shot with his own weapon.
Portions of the crime were captured on Green's dashboard-mounted video
camera.

Malone said he was in a drug-induced haze and thought he was fighting a
robber. He claimed voices in his head told him to shoot Green.

Schulte made an impassioned plea for the death verdict and even "begged''
for the ultimate penalty, the court said.

"What kind of a person can put a high velocity weapon to a man's head
while he's praying and pull the trigger?'' Schulte said. "A lot people
can't put a stray dog down that way - this man put a human being down that
way.

"Anything less than the death penalty would be a travesty.''

(source: Associated Press)






GEORGIA:

Top Ga. death penalty lawyer quits, cites money woes


The head of Georgia's capital defender's office resigned on Friday, citing
budget woes that he said were compromising his office's ability to defend
indigent clients facing the death penalty.

"(T)he current budget is grossly inadequate to allow us to satisfy our
statutory and constitutional mandates," Chris Adams wrote in a letter to
the Georgia Public Defender Standards Council on Friday.

Adams said his lawyers were handling eight capital cases apiece without
any help from secretaries or paralegals. The office is being asked to
mount defenses in 80 capital cases with a budget of $4.3 million, less
than 1/2 of the $10.5 million requested. "The old adage 'you get what you
pay for' is particularly true with regard to the defense of capital cases,
which involve the greatest responsibility and most difficult assignment
that any lawyers is asked to undertake."

Adams has led the state capital defenders office since 2005. During that
time, it has resolved 35 cases without a single defendant sentenced to
death. All but four cases were handled through plea agreements, allowing
the state and local governments to avoid costly capital trials. The
average death penalty trial costs $360,000.

Adams said there is not enough money to pay for outside lawyers in
"conflict" cases, where there is more than one defendant. In such cases
the capital defender's office can represent only one defendant. Private
lawyers are appointed to handle the others.

Adams clashed with the Georgia Public Defender Standards Council over how
to handle the budget shortfall. He wanted to come forward and "tell the
truth" about the lack of funding.

The council favored a less confrontational approach.

Atlanta-based lawyer Wilson DuBose, chairman of the council, said he and
Adams agreed there was not enough money.

"We had philosophical differences on how to handle it," he said.

"Our approach was to find way to work with the resources that we had been
given to keep the cases progressing as much as possible through the
system."

DuBose said he expected the council would seek additional money early next
year in the supplemental budget for the current fiscal year.

There are an average of 40 death penalty prosecutions in Georgia every
year.

Georgia executed it's first prisoner in more 2 years in June. John
Hightower was given a lethal injection for killing his wife and 2
stepdaughters in Milledgeville in 1987.

(source: Associated Press)






CALIFORNIA:

Murder suspect may face death penalty


The district attorney's office is seeking the death penalty for Sherhaun
K. Brown, who is accused of murdering 54-year-old Kristy Vert and raping
and slashing the throat of her daughter-in-law on May 7, 2007.

Judge William Jefferson Powell has transferred the case to Victorville,
where Brown will appear for a pre-preliminary hearing Sept. 4. The only
three San Bernardino County courthouses equipped to deal with capital
cases are Rancho Cucamonga, Victorville and San Bernardino.

David Virden, Brown's court-appointed attorney, said he received the
notice from the prosecutor's office Monday. His 29-year-old clients
reaction to the news, he said, was subdued.

Virden said death penalty cases are procedurally the same as other cases,
but are more complex.

"Death penalty cases are more complicated," he explained. "They move more
slowly and are more expensive."

He said it could take several years for the case to go to trial; however,
the death penalty aspect of the case does not preclude a plea bargain at
any stage of the proceedings if both sides reach an agreement.

Virden, 1 of 2 attorneys from the public defender's capital case unit who
will be representing Brown, said his job is to prepare the case with the
assumption that it will go to trial.

According to authorities, Brown is accused of breaking into Verts house in
the 57000 block of Canterbury in the Yucca Mesa area around 6:30 a.m. on
May 7 and stabbing Kristy Vert to death. He also is accused of raping and
slashing the throat of Vert's daughter-in-law, who lived at the residence.

Authorities say despite her traumatic injury, the woman was able to get to
a neighbors house to summon help. Vert's 2 young grandchildren were at
home during the violent attack but were not harmed. Her son was at work.

Brown was apprehended later that day in Moreno Valley after a "be on the
lookout" alert was issued. He was driving the victim's car.

Brown is charged with 9 felonies, including murder, attempted murder,
rape, burglary and robbery.

Dennis Christy, deputy district attorney, said 14 capital cases are
pending in San Bernardino County courts. In order for a crime to be
considered a capital case, it has to meet certain qualifications, he said.

"The law sets forth the requirements for special circumstances," he said.
"In order for a case to be one in which the death penalty is one of the
consequences, there has to be a filing of what is called, under the law, a
special circumstance, and the penal code sets out a number of cases,
actually 22 types of cases, that can qualify as special circumstance
cases."

California Penal Code Section 190.2 states murder committed during the
commission of a robbery, kidnapping, rape, arson and burglary are all
special circumstances that would qualify a crime as a capital case.

(source: Hi-Desert Star)






INDIANA:

Killer might not face death penalty in Fort Wayne----Simon Rios was
allowed to submit a plea here because of his Allen County plea, which has
changed.


Delaware County Prosecutor Mark McKinney allowed confessed child killer
Simon Rios to plead guilty in April in return for life in prison without
the possibility of parole.

The sentence was agreed upon in part because Rios was still facing the
death penalty in Allen County on separate charges that he killed his
family.

On Friday, however, Allen County prosecutors filed an agreement in Allen
Superior Court that would also allow Rios to plead guilty in return for
life in prison without parole.

"I have mixed feelings," McKinney said. "Part of the reason we reached the
agreement we did here is because we believed they were going forward with
the death penalty there."

Rios, 35, has confessed to driving 10-year-old Alejandra Gutierrez from a
Fort Wayne bus stop on Dec. 8, 2005, to a gravel pit off Black Cemetery
Road near Albany, where he sexually assaulted and strangled her.

5 days later, Rios killed his 28-year-old wife and their 3 daughters, who
ranged in age from 20 months to 10 years, at the family's Fort Wayne home.

Before Friday's turn of events, Rios' attorney, Michelle Kraus, was
seeking a determination in Allen County on whether Rios was mentally
retarded.

Would Allen Superior Court Judge Fran Gull have found Rios to be retarded,
he would have been ineligible for both the death penalty and life without
parole.

Those defense motions caused a sentencing hearing in Delaware County to be
postponed as attorneys awaited a ruling.

Kraus on Friday withdrew her motion alleging Rios was mentally retarded.

Rios is scheduled for sentencing in Delaware County on Nov. 8 in Delaware
Circuit Court 1.

(source: Muncie Star Press)