[Deathpenalty] death penalty news----MO., KY.

[Rick Halperin]

Sept. 5



MISSOURI:

State's highest court hears death penalty case


In a case that could alter the prosecution of death penalty defendants who
claim mental retardation, lawyers for both sides of the Ernest Lee Johnson
murder case delivered their oral arguments before the Missouri Supreme
Court on Wednesday.

Johnson was convicted of the 1994 murders of 3 employees of a Columbia
Casey's General Store and was first sentenced to death in 1995.

"The Constitution says that mentally retarded people cannot be executed,"
said Elizabeth Carlyle, Johnson's lawyer, during Wednesday's hearing.

Lawyers for the state, though, pointed to the verdict of a Pettis County
jury and say his execution should go forward.

Assistant Missouri Attorney General Evan Buchheim sought to undermine the
credibility of witnesses who have testified in the past that Johnson is
mentally retarded.

"There was simply not enough credible evidence to prove that Mr. Johnson
was mentally retarded," Buchheim said. "The jury obviously thought (the
evidence) was highly suspect."

Johnson said during a videotaped interview with a psychologist that he
planned to rob the Casey's store on Ballenger Lane for money to buy crack
on the night of Feb. 12, 1994, the Missourian reported in May 2006. The
robbery ended in the slaying of the 3 employees in the store.

That night, Johnson entered Casey's wearing a mask to hide his identity
from store employees who knew him as a regular customer. He demanded money
from the stores safe from Mary Bratcher, whom he knew kept the key to the
safe. She said she had lost the key, but when Johnson saw her trying to
flush it down the toilet, he "lost it," according to previous testimony.

Though he was armed with a gun, Johnson used a claw hammer to bludgeon to
death Bratcher and 2 other store employees, Fred Jones and Mabel Scruggs.
Their injuries were so severe that police at first thought they had been
shotgunned to death.

Since he was first sentenced to death, Johnson has been granted 2 appeals
by the state Supreme Court. In June 2006, Boone County Presiding Judge
Gene Hamilton sentenced Johnson to death for the 3rd time based on the
Pettis County jury's recommendation. Johnson's case is now making its 3rd
trip to the states highest court.

States across the country are wrestling with how to apply Atkins v.
Virginia, a 2002 U.S. Supreme Court case in which the court found it
unconstitutional to execute someone with diminished mental capacity. The
case established the broad guideline but left states to decide who is
mentally retarded. Applying Atkins was a major topic during Wednesday's
arguments.

A Los Angeles Times article published in May outlined the patchwork of
decisions across the nation. An Ohio man with an IQ of 72, George
Williams, is now serving life without parole after a jury was two votes
short of the unanimity required for the death penalty. On the other hand,
having an IQ of 74 was not enough to persuade a Texas jury to spare James
Lee Clark, who was executed in April.

Missouri law requires defendants to prove they are mentally retarded,
instead of prosecutors having to prove they're not.

"The burden of proof is a huge deal in this case," said Judge Michael
Wolff, explaining that a jury could arrive at 2 different conclusions
with the defendant's life hanging in the balance  given 2 different
burdens of proof.

During Wednesday's oral arguments, Judge Stephen Limbaugh asked Carlyle if
she thought Missouri's burden of proof requirement was unconstitutional.

"I believe that's probably true," she replied, arguing that it's similar
to self-defense, in which prosecutors shoulder the burden of proof.

Carlyle also argued that the jury incorrectly concluded that Johnson is
not mentally retarded. She pointed to the testimony of Denis Keyes, an
educational psychologist who often works with children, and Robert Smith,
a clinical psychologist.

Smith had testified previously that Johnson was not mentally retarded, but
Carlyle said he changed his mind after seeing "compelling" testing done by
Keyes in 2003 that showed Johnson had an IQ of 67. Carlyle also pointed to
early childhood tests that showed he had an IQ of 63. A score of 100 is
normal; scores below 70 are categorized as mentally retarded.

Several of the judges pointed out that Johnsons scores have ranged from a
77 in 3rd grade and a 78 in 1994 to a 95 in one prison evaluation. Judge
Richard Teitelman said this shows that IQ testing is an "inexact science."

But in its brief, the state also pointed to testimony from Keyes in which
he said a person can fake having a lower IQ than he or she actually has,
but that a person cannot fake having a higher IQ.

Buchheim noted that Keyes regularly testifies on behalf of defendants in
death penalty cases.

"Half of his income comes from doing these cases," Buchheim said.

The court will deliberate on the case and hand down its decision at a
later date.

(source: Columbia Missourian)






KENTUCKY:

Judge Sets Deadline In Death Penalty Case


In Louisville, a Jefferson County judge set a deadline for prosecutors to
locate missing evidence in a death penalty case.

They have 60 days to locate a missing pair of pants and corrective shoes.

Prosecutors said the items place Brian Keith Moore at the scene of a 1979
killing.

His attorneys want to perform DNA testing on the evidence.

Moore was sentenced to death for kidnapping and killing Virgil Harris.

(source: WLKY News)