[Deathpenalty] death penalty news----TEXAS, USA, N.Y., OHIO, ALA.

[Rick Halperin]

Sept. 18


TEXAS:

Houston man charged in woman's 2006 killing


A west Houston man was charged Thursday with capital murder in the 2006
shooting death of a woman found inside a burning home, police said.

Adrien Lee Caldwell, 33, was already in jail on an unrelated sexual
assault charge when police accused him of shooting Melanie Diane Parker,
21, on May 26, 2006, inside her apartment in the 2700 block of Briargrove
Drive.

Firefighters found Parker's body inside the bedroom of the apartment. An
autopsy later determined her death was caused by a gunshot wound.

Police said only the area around her bed sustained burn damage, indicating
it may have been arson. The investigation into her death eventually led
detectives to Caldwell as the prime suspect. He remains in custody without
bond.

(source: Houston Chronicle)

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

Suspect in Dallas officer's slaying incompetent, his lawyers say----They
say suspect in officer's slaying has low IQ; judge orders exam


Attorneys for a man accused of killing a Dallas police officer questioned
Monday whether he is competent to stand trial.

Juan Lizcano's attorneys say the 30-year-old man is mentally retarded and
has scored low on IQ tests. They say he should not face trial next month
in the death of Officer Brian Jackson in November 2005 because he's too
slow to understand what is happening in court or to assist with his
defense.

Juan Lizcano A judge will decide whether a jury should determine if Mr.
Lizcano is competent to stand trial. State District Judge Andy Chatham
said at a hearing Monday that he would appoint a doctor to evaluate him.

If the trial proceeds, jurors must determine that Mr. Lizcano understands
what is happening in court and can assist with his defense.

One of Mr. Lizcano's attorneys, Brook Busbee, said his client has scored
48, 60 and 62 on IQ tests. All are below the generally accepted 70
threshold for mental retardation.

Although someone who is mentally retarded can be competent to face trial,
Ms. Busbee said she believes Mr. Lizcano is not competent.

"He doesn't really get what's going on," she said. "He really cannot
assist his attorneys."

Ms. Busbee said after the hearing that if a jury finds Mr. Lizcano
incompetent, she hopes the staff of a state hospital would be able to
teach him so that he can understand his case and be found competent later.
Doctors could then determine that he can face trial.

Another attorney for Mr. Lizcano, Juan Sanchez, told Judge Chatham during
the hearing that he began worrying about Mr. Lizcano's competency during
jury selection for his death penalty trial, which was to begin this week.

Mr. Sanchez said that attorneys tried to consult Mr. Lizcano to discuss
which jurors they should strike and that Mr. Lizcano did not seem to
understand.

Pat Kirlin, the lead prosecutor in the case, declined to comment after the
hearing.

Death penalty off table

In 2002, the U.S. Supreme Court ruled that the mentally retarded could not
be executed. But they can be tried for capital crimes and sentenced to
life in prison if they understand the charges they face and can contribute
to their defense.

Those who are found incompetent can't stand trial until they are restored
to competency.

Neither the Supreme Count, the Texas Court of Criminal Appeals nor the
state Legislature has laid out a definitive method to determine whether
defendants are mentally retarded. But in several cases, defendants with
IQs below 70 have been spared from the death penalty.

Jordan Steiker, a University of Texas at Austin law professor, said that
finding a defendant incompetent based on mental retardation is rare in
Texas because of "the very, very low bar" for competency.

He said it's unlikely that people whose mental retardation causes them to
be found not competent would ever be restored to competency. It is not a
condition that can be fixed by medication or therapy.

"If he is incapable presently ... it sounds very unlikely that anything
could be done to render him competent," Mr. Steiker said.

Mr. Steiker said the court has to resolve both the issues of mental
retardation and competency. Although they can be intertwined in
determining competency, mental retardation is also a separate issue.

Brian Jackson Maurie Levin, another UT law professor, said there is no
standard method in the criminal courts to evaluate mental retardation.

She said that when determining whether defendants are mentally retarded,
much of the focus is on their mental abilities before age 18. She said it
is important to have a lengthy discussion with relatives to find out about
their education. Important factors in determining retardation include
knowing whether people learned to tie their shoes or learned to read much
later than normal.

Officer killed

Mr. Lizcano is accused of killing Officer Jackson when the officer
responded to a domestic disturbance call from Mr. Lizcano's former
girlfriend. She told police that he had repeatedly threatened her at her
Old East Dallas home.

Officer Jackson, 28, was shot as he and other officers searched for Mr.
Lizcano outside the woman's home. The fatal shot entered through Officer
Jackson's underarm, an area not protected by his bulletproof vest.

Mr. Lizcano came to the U.S. from Mexico illegally about five years ago.
He was arrested on a misdemeanor terroristic threat charge five weeks
before the shooting. Authorities say he threatened his girlfriend with a
knife.

Days later, he was arrested on a charge of driving while intoxicated.

The federal Immigration and Customs Enforcement agency has said they did
not flag Mr. Lizcano for deportation because the charges were not serious
enough to come to the attention of agents at the jail.

THE LIZCANO CASE

- What happened: Defense attorneys are questioning whether Juan Lizcano,
accused of killing a Dallas police officer, is competent to stand trial.
They say he is retarded.

- What's next: A doctor appointed by the court will evaluate Mr. Lizcano
and report to a judge, who will decide whether a jury must determine
whether Mr. Lizcano is competent.

(source: Dallas Morning News)

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

DNA clears Texas man of rape after he served 25 years


A man convicted of rape and burglary could be exonerated after spending 25
years in prison based on new DNA testing that cleared him of wrongdoing,
Dallas County authorities said.

The district attorney's office said DNA evidence proves Steven Phillips
did not commit the 1982 crimes. He was convicted in 2 separate trials of
sexually assaulting and burglarizing a woman.

The DA's office said it will work with Phillips' lawyers to have his name
cleared. But Phillips wouldn't be released from prison unless he's cleared
of another sex crime from the same time period.

To be exonerated, a judge would have to decide that the DNA results also
cleared Phillips of three other cases that don't include DNA evidence. The
Texas Court of Criminal Appeals must then approve it.

Phillips is the first person to be cleared of wrongdoing by DNA tests
ordered by District Attorney Craig Watkins, who took office in January.

If exonerated, Phillips would be the 14th person from Dallas County since
2001 to be exonerated based on DNA testing.

"It's pretty exciting, and it won't be the last," said Nina Morrison, an
attorney with the Innocence Project, a New York-based legal clinic.

Phillips pleaded guilty to 8 sex-crime charges and was found guilty of 3
others in the early 1980s.

Mike Ware, who oversees conviction integrity at the district attorney's
office, said Phillips pleaded guilty to charges that police at the time
said were committed by the same man who committed the rape.

Morrison said Phillips could be cleared in those cases, even though
there's no DNA evidence. She said Phillips pleaded guilty to the other
charges because he felt he had no chance in court.

"He faced more prison time if convicted and had already lost 2 jury
trials," she said. "Even though Mr. Phillips maintained his innocence, he
thought it was better to take a plea bargain for less time."

Morrison said police maintained all along that the crimes were committed
by the same man. "DNA now proves Steven Phillips was not that man," she
said.

Ware said prosecutors were still investigating the other crimes and had
not determined whether it agrees that Phillips did not commit the other
crimes.

"If the police were correct, that it was one person ... then it could
impact those cases," Ware said.

He said a judge may have to decide the issue.

If exonerated of the rape and burglary, Phillips would be serving time for
only one crime because he's finished his sentences for the other charges,
Morrison said. The remaining crime was similar to the case now disproved
by DNA testing. It took place on the same day in May 1982, Morrison said.

(source: Associated Press)

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

Olsen pleads not guilty ---- Bryan man is charged with murder in 2
separate cases


Prosecutors will seek the death penalty in the capital murder trial of a
20-year-old Bryan man accused of bludgeoning to death his elderly neighbor
and stealing her credit cards, officials announced Monday.

Christian Edward Olsen pleaded not guilty Monday to a string of charges,
including capital murder for the slaying of 68-year-old Ettie Jean
Westbrook and 3 counts of credit card fraud.

Olsen was arrested in June when he allegedly tried to use Westbrook's
credit cards hours after her death.

A murder charge can be enhanced to capital murder if the killing is
committed in conjunction with a robbery.

Olsen also is accused in the January slaying of 63-year-old Geraldine
Lloyd, the mother of his girlfriend.

Weeks after his arrest in June, police found Lloyd's body buried in the
back yard of the Oak Hollow Drive home she shared with Olsen and her
daughter, 40-year-old Kelly Sifuentez.

Neighbors said in June that they hadn't seen Lloyd for months, but she was
never reported missing to police. Police said they received an anonymous
e-mail asking them to check on the 63-year-old a week before her body was
discovered.

An autopsy showed that Lloyd died of blunt-force trauma to the head - the
same as Westbrook, police said.

While in police custody, Olsen told investigators he went across the
street to Westbrook's house to return a baking pan he had borrowed,
according to court documents. Once inside, Olsen said, he struck Westbrook
several times with a metal object, officers reported. He has denied
killing Lloyd.

This will be the 1st death penalty case in Brazos County in 4 years,
prosecutors said.

"We've got a long discovery process in a death penalty case," Assistant
District Attorney Shane Phelps said. "I expect there will be a number of
motions filed that we'll have to deal with."

David Barron, Olsen's court-appointed attorney, said he believes there are
a number of factors in the case that would prevent a jury from sentencing
Olsen to death if he was found guilty.

"We plan to defend him vigorously and contest his guilt," he said. "We
plan on putting the state to their burden of proof beyond a reasonable
doubt."

Barron requested the court appoint a second defense attorney to serve with
him because it's a death penalty case.

Judge Steve Smith said the case would likely go to trial in the spring in
the 361st District Court.

Olsen could face 99 years or life in prison if found guilty in Lloyd's
death. Credit or debit card abuse is a state jail felony, punishable by up
to 2 years in prison.

(source: Bryan College Station Eagle)






USA:

Ultimate Punishment Justifiable


I think Ms. Hammett's comments pertaining to capital punishment are very
interesting, but there are bible verses that make this ultimate punishment
justifiable in my mind.

First of all, you must realize the "Thou shalt not kill" as seen in Exodus
20:13 refers to murder, the planning, scheming, lying in wait and
ultimately taking of a human life.

Murder does not include accidents, acts during war, and for punishment for
crimes. Leviticus 24:17 states "And he that killeth any man shall surely
be put to death." Repeated in Leviticus 24:21. Additional support can be
found in Numbers 35; Deuteronomy 19; I John 3:15.

Surely, Ms. Hammett remembers verses where God instructed the Israelites
to kill all Cannaanites and directed Saul to kill all of a certain tribe,
including women, children, cows, goats, sheep and to burn all their
worldly possessions. I read the bible and take it literally, including the
fact that God views rape as equal to murder and instructs us that the
death penalty is appropriate for this crime also.

Bert Morris----Denman

(source: Letter to the Editor, Tyler Morning Telegraph)

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

No wonder violent crime in America is on the rise


Every night, local and national news programs parade before us horrific
images of violent crime in America. The number and magnitude of
unimaginably cruel crimes against children and older citizens stagger the
imagination.

Recently, when reporting a child kidnapping, rape and murder case, police
reported that their investigation revealed 65 registered sex offenders
living within a one-mile radius of the crime. Does that amazing statistic
disturb anyone?

Our country is rapidly becoming a hell-hole for middle-class citizens who
cannot afford homes in gated communities with private security patrols.

Drugs, pornography, pedophilia, rape, murder and kidnapping are now
accepted as indelible aspects of America's social fabric.

How ironic that our legal system has gone to extreme lengths to condone
the killing of innocent, unborn children by abortion while simultaneously
spending just as much time, effort and money to give convicted murderers,
rapists and child molesters every possible avenue to delay and in many
instances avoid execution of their sentences.

That some are spending 20 years on death row waiting for federal and state
appeals to "run out" is insane.

Reeves Jones

Jackson

(source: Letter to the Editor, Clarion Ledger

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

Federal Prosecutors Want to Shutter Public Access to Plea Agreements


The Department of Justice has asked the federal judiciary to eliminate
public Internet access to plea agreements in criminal case files and all
related docket notations.

The judiciary currently provides public Internet access to all nonsealed
plea agreements in electronic case files. This policy has been in effect
since November 2004, but most courts did not implement it until they
adopted an electronic case file system, typically at some point between
2005 and 2007.

In response to concerns raised by the Executive Office for U.S. Attorneys
in a letter to the Judicial Conference of the United States, the
conference has called for public comments on whether it should change its
Internet access policy for plea agreements.

The Executive Office, in its letter, said that as a result of twin
developments -- an increased number of violent crime prosecutions in which
cooperating defendants and witnesses are needed to assist law enforcement,
and increased Internet access to court records -- "We are witnessing the
rise of a new cottage industry engaged in republishing court filings about
cooperators on Web sites such as www.whosarat.com or the clear purpose of
witness intimidation, retaliation and harassment."

The department made three recommendations to the judiciary: a uniform
policy removing all plea agreements -- including docket notations -- from
Internet access via PACER; the posting of notices on PACER and ECF log-in
screens warning against republishing or other use of court records for
illicit purposes, and endorsement of a nationwide policy restricting the
use in courtrooms of cellphones and other electronic devices capable of
photographing, videotaping or recording witnesses or parties.

Sealing plea agreements is not sufficient, said the letter, signed by then
Executive Office Director Michael Battle, because "for anyone with
Internet access, a PACER account and a basic familiarity with the criminal
docketing system, the notation of a sealed plea agreement or docket entry
in connection with a particular defendant is often a red flag that the
defendant is cooperating with the government."

DEFENSE BAR DIVIDED

Veteran criminal defense attorney Peter Goldberger, of counsel to the Law
Offices of Alan Ellis in Philadelphia, said defense lawyers as a group are
not of one mind on this issue. Individual defense lawyers don't have the
same concerns when they are representing a cooperating witness as when
they are representing someone who is a target of cooperating-witness
testimony, he said.

>From his perspective, Goldberger said, the costs of restricting public
Internet access to plea agreements outweigh the benefits. It would
increase defense costs, make investigations more difficult and hinder the
defense's evaluation of the case against the client, he explained.

The Justice Department's approach "presumes every cooperating witness is
in danger and every accused person not cooperating is a danger to
witnesses," he added. "The fact is it's a rare occurrence."

It would seem possible to write plea agreements in ways that don't expose
cooperating witnesses to danger, said Kent Scheidegger, general counsel of
the Criminal Justice Legal Foundation.

"I understand fully there is a need to limit access to protect victims and
witnesses, including informants," he said. "But I don't understand why
that identity information needs to be in a plea agreement."

And because the judiciary has indicated that plea agreements, unless
sealed, still would be accessible at the courthouse, Scheidegger said,
"People who are intensely interested enough in a particular case can still
get the information. If your purpose is to protect witnesses from
retaliation, then you're protecting them from someone who is intensely
interested in a particular case and it seems a small margin of additional
protection."

Four years ago, the Judicial Conference adopted a privacy policy for
criminal case files that provided the same level of public access to
electronic case files as was being given to paper case files.

The 2003 privacy policy and pending federal rules on privacy announced by
the U.S. Supreme Court in April require the redaction of certain
information from all case files, such as Social Security and financial
account numbers, and, in criminal cases, home addresses. The pending rules
also allow courts to seal documents or limit public Internet access on a
case-by-case basis for good cause.

The judiciary is seeking public comment until Oct. 26 on changing its
policy with respect to plea agreements.

(source: National Law Journal)






NEW YORK:

With Start of Trial in Killing of Officer, a Somber Ritual Is Played Out
Again


The courtroom filled past its capacity of 107. Row on row of uniformed
officers stretched into the hall. The stenographer dropped her bulky brown
purse onto a table, the clerk pulled a blazer over his holstered handgun,
the judge frowned down on the crowd and took up his robe.

"Come to order," came the call in State Supreme Court in Brooklyn
yesterday morning, and the spectacle began. The players took their marks
for that most somber New York City courtroom ritual, a murder trial in the
slaying of one of the city's 36,000 sworn police officers. Twice in as
many years these scenes have played out in Brooklyn courtrooms, bringing
sentences of life in prison for one killer and death by lethal injection
for another.

But in the slaying of Officer Dillon Stewart, 35, shot and killed on the
job in November 2005, the evidence lacks a certain human weight. No
witness will place the defendant at the scene of the crime, firing the
fatal shots. Instead, prosecutors must rely on circumstance and science to
prove their case of 1st-degree murder, for the maximum penalty of life in
prison.

The defendant, Allan Cameron, 29, was led into the courtroom with downcast
eyes. He wore a dark suit with its label still affixed to the sleeve, a
patch of stubble, and long braids tied back into one thick rope of a
ponytail. He glanced briefly at three women from his family seated next to
the only empty space in the gallery, the wide berth given them by the
assembled officers.

The sketch artists tinkered with their renderings as a prosecutor, Mark J.
Hale, stood and faced the jury.

"Dillon Stewart never came home," said Mr. Hale, an assistant district
attorney. "You see, Dillon Stewart was a New York City police officer."

If he felt outrage, Mr. Hale did not show it. Perhaps anticipating the
defense team's portrayal of a vengeful and rushed prosecution, he spoke in
the gentle tones of a country lawyer, lacing his fingers and dropping his
voice near a whisper.

He described the 70th Precinct as the heart of the borough. There on his
midnight shift, Officer Stewart was assigned to an unmarked car equipped
with lights and sirens. As he and a partner monitored the Temptations
nightclub in the early hours of Nov. 28, 2005, a red Infiniti Q45 ran a
stoplight at Flatbush and Church Avenues. The driver was the sole
occupant, Mr. Hale said.

The officers gave chase, Officer Stewart at the wheel and Officer Paul J.
Lipka working the radio. They followed the sedan down familiar streets and
back toward their starting point. The driver stopped. The police car
pulled alongside to the right. 6 shots were fired through the passenger
side of the sedan, Mr. Hale said. A 9-millimeter round passed above the
panels of Officer Stewart's bullet-resistant vest, under his left armpit
and into a ventricle of his heart.

Then the sedan drove away, and again Officer Stewart gave chase, mortally
wounded now but still driving. Officer Lipka radioed for help and a
procession of officers followed the sedan and fired on it as its driver
made his escape behind the door of a parking garage. Later that morning,
the police arrested Mr. Cameron at the home of his female companion.

Though Officer Lipka never saw the face of the gunman, Mr. Hale said, the
police collected evidence against Mr. Cameron. In the sedan, Mr. Hale
said, they found six 9-millimeter shell casings. In the garage they found
a footprint. In an alley near the apartment of Mr. Cameron's companion
they found a gun and a clip, wiped clean of fingerprints. Inside her
apartment they found a shoe to match the footprint, the keys to the sedan,
cleaning materials like those used on the gun, and latex gloves stained
with elements of gunshot residue, according to Mr. Hale.

On the night of the shooting, Mr. Hale said, Mr. Cameron was on probation,
carrying marijuana and a gun, motives to respond with deadly violence. Mr.
Hale told the jury, "You're not going to need an eyewitness."

Then the defense lawyer jumped from his seat, rushed to the jury box and
gripped its ledge, matching the prosecutor's courtliness with urgency.

"Not guilty, not guilty," called the defense lawyer, John Burke. He said,
"This is not a lawyers' trick. Allan Cameron is not guilty because he is
innocent. Allan Cameron is not guilty because he didn't do it."

Mr. Burke offered another interpretation of the evidence. Not until after
6 officers outside the garage had fired a salvo on the sedan in the
darkness did Officer Stewart say he was shot. Letting that implication
settle, Mr. Burke turned to the investigation.

"How did Mr. Cameron get to be here today?" he asked, then answered, "When
one of their own is injured or shot, the New York Police Department
responds instantly and massively."

The investigators, Mr. Burke said, beat Mr. Cameron "bloody" in an
interrogation room and wrote a statement for him.

When the defense's opening statement was done, the prosecutors called the
fallen officer's wife, Leslyn, to testify.

"So help me God," Mrs. Stewart said by way of oath. She told of seeing her
husband off to work and of next seeing him unconscious in his last
moments. Her voice was breaking and she bit her lower lip, trying to hold
her composure. Staring across the courtroom at Mr. Cameron seemed to help.

(source: New York Times)






ALABAMA:

State DA group asks King to apologize for remarks


A death penalty dispute between two Republican prosecutors escalated
Monday, with the Alabama District Attorneys Association questioning
Attorney General Troy King's fitness for office and King saying the
association should quit taking the side of killers.

At a news conference in Montgomery, the District Attorneys Association
said King should apologize to Shelby County District Attorney Robby Owens,
a Republican like King. King recently removed Owens from a case and said
Owens "shirked" his duties when he supported reducing the sentence of a
young death row inmate.

"If he cannot recognize the error of his needless attack on the district
attorney, perhaps he should consider his fitness for the position he now
holds," the association said in a statement approved by 41 of Alabama's 42
district attorneys.

King fired back, saying he was following the wishes of the victims'
families.

"If an apology is due, it is due to victims, not to those who take the
side of convicted murderers," King said. "No matter what these district
attorneys say, I will not be the second prosecutor to turn my back on
these victims and justice."

On Wednesday, King stripped from Owens the capital murder case of LaSamuel
Gamble, who was convicted along with Marcus Presley of killing 2 people
during a pawn shop robbery more than 11 years ago. Owens prosecuted both
and secured death sentences.

But Presley, the gunman, had his death sentence reduced to life in prison
without parole because he was 16 at the time and, in 2005, the U.S.
Supreme Court barred capital punishment for anyone under the age of 18.

Owens testified at a hearing last year that, in the name of fairness,
Gamble, who was 18 at the time of the killings and did not fire a shot,
shouldn't face the death penalty if Presley did not. Shelby County Circuit
Judge J. Michael Joiner, also a Republican, agreed recently and ordered a
new sentencing hearing for Gamble, who will get a sentence of life in
prison without parole.

In taking over the case, King said he would try to make the death penalty
stick.

Russell County District Attorney Kenneth Davis, president of the District
Attorneys Association, said Owens "has been unfairly and unnecessarily
attacked by the attorney general" for doing what he was morally bound to
do in seeking equal justice.

By attacking Owens, "the attorney general has attacked all of us," Davis
said.

Davis and Owens were among 30 district attorneys who gathered on the
Statehouse steps Monday - in view of King's office on the 3rd floor - to
call for King to apologize. What they got was more criticism.

"This is not the first time Mr. Owens has rejected the painful pleas of a
murder victim's family by choosing to support the killer who murdered
their loved ones in cold blood, but this time has even testified in the
killer's behalf. This is a shocking, inexcusable violation of his oath of
office and a betrayal of those who depend on him for protection and
justice," King said in a statement.

King, 39, was serving as Gov. Bob Riley's legal adviser when Riley
appointed him attorney general in 2004. King won a full term last year by
defeating Mobile County District Attorney John Tyson Jr., a Democrat.

At the news conference, Owens' colleagues pointed out that he's been a
district attorney longer than King has been a lawyer. And they
congratulated Owens after he said King took over the case in retaliation
for him endorsing Tyson last year.

"I want him to be the attorney general and leave politics at home," Owens
said at the news conference.

Tyson, who was among the district attorneys at the event, said King took
"an unnecessary cheap shot" at Owens. He said the case was already in the
appeals stage, which the attorney general controls, and there was no need
to take over the case publicly from Owens other than for political antics.

"I had hoped at some point he would grow up," Tyson said.

A spokesman for the District Attorneys Association said the only district
attorney who did not approve the statement criticizing King was Houston
County prosecutor Doug Valeska, whose brother is a veteran employee of the
attorney general's office.

(source: Associated Press)

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

Huntsville attorney speaks about capital punishment - Alabama is
definitely not a "live and let live state."


Hard-line judges and politicians have ensured that the state is the 5th
most prone to sentence murder defendants to death of the 50 states.

Huntsville attorney Bruce Gardner was the guest speaker Monday at Athens
State University to commemorate Constitution Day.

In 2004 the U.S. Congress passed legislation mandating all institutions
receiving public funding observe Constitution Day by providing educational
programs or speakers on the document referred to as the "law of the land."
Gardner, who spent nine years as a prosecutor in the Madison County
District Attorney's office, is now a criminal defense lawyer and an
opponent of the death penalty.

Among statistics Gardner offered in a PowerPoint presentation are:

- Since 1819, Alabama has executed 746 inmates-38 since the death penalty
was reinstated in 1976.

- Alabama is the 5th most prone to sentence to death

- 38 of 50 states have the death penalty

- 65 % of people favor the death penalty, but 56 percent feel it doesn't
deter murder

- There are currently 195 inmates on Alabama's death row.

- Fewer than 10 nations on the globe exact capital punishment

- The U.S. has more executions per capita than any nation.

While the U.S. executes more people, Gardner said the Constitution remains
the most effective off all documents.

"The idea of checks and balances, the rule of law, and a court system with
no enforcement powers of its own-in 1787 we were very fortunate to have
the type of people we did writing the document that has remained alive and
has survived for more than 200 years," said Gardner.

Capital murder

Gardner said that U.S. Supreme Court Justice Antonio Scalia's
pronouncement, "You kill, you die," is not applicable in Alabama.

"Many people believe that any routine homicide qualifies for the death
penalty, but there is murder and there is capital murder," he said. "In
capital murder the crime must be compounded by another felony or conferred
because of the type of occupation of the victim."

Gardner said there are 21 types of homicide that can be considered a
capital crime.

"Most common is that of the clerk of a convenience store who is killed
during a robbery," he said. "Then there is the homeowner who is killed
during a break-in or a burglary. There is also the intentional murder of a
police officer or the intentional killing of a child."

Gardner said capital trials have two phases: the determining of guilt by a
jury, and if found guilty there is the sentencing phase.

"In the 2nd phase, the jury hears from the prosecution the aggravating
circumstances and from the defense the mitigating circumstances," he said.
Gardner said recent rulings have allowed defense attorneys more latitude
in the production of mitigating circumstances.

"These might be in how the defendant was raised, his mental condition,
whether it was relevant at time, there are no limits," he said. "The jury
is instructed on how to weigh this evidence."

Gardner said it requires a 10-to-2 jury verdict to recommend the death
penalty, or less for life without parole.

"But it doesn't end there," he said. "Alabama is the only state where a
judge can override the jury on a life without parole verdict and impose
the death penalty. The statute was originally written to allow the judge
to override a runaway jury, but not once has that occurred in this state."

Low defense standards

Gardner said the standards for an appointed attorney in a capital case are
extremely low in the state, accounting for the fact that most people on
death row come from an impoverished background.

"A defense attorney in a capital case needs to have 5 years of active
experience in criminal law," he said. "This type of litigation is complex.
The average practitioner with just 5 years experience is not qualified."
Gardner said capital cases require at least 2 lawyers because of being so
time-intensive.

He said until recent years, the state capped the amount that an attorney
could be paid in a capital case at $1,000. "That's about 10 cents per
hour," he said.

He said the state removed statutory fee caps, but pays just $40 per hour
for work outside the court and $60 for in-courtroom work.

(source: The News Courier)






OHIO:

Richey moves from death row to Putnam Co. jail for retrial----U.S.-British
citizen tells Mansfield staff he won't return


U.S.-British citizen Kenneth Richey was transferred yesterday from Ohio's
death row to a cell at the Putnam County jail as he awaits retrial in the
1986 death of a 2-year-old Columbus Grove girl.

Richey, 43, told staff at Mansfield Correctional Institution that he
wouldn't be back, that he was on his way home, according to his friend
Karen Torley, the Glasgow woman who conducted an Internet campaign to
support him. She spoke with him after the morning transfer.

"He rolled his window down and stuck his head out of the window for the
entire journey," Ms. Torley said.

"For the first time in all these years, he had wind blowing through his
hair, and he loved it. He made a joke about how he kept checking for big
trucks, in case his head got hit by hanging out the window," she said.

Ohio Department of Rehabilitation and Correction spokesman JoEllen Lyons
confirmed the transfer from Mansfield to Ottawa. Richey had never been
moved to the Ohio State Penitentiary at Youngstown; most of the state's
death-row inmates were transferred there a couple of years ago.

Plans for Richey's retrial are proceeding. Yesterday, Ohio Supreme Court
Chief Justice Thomas Moyer assigned retired Franklin County appeals court
Judge Alan C. Travis to preside over the case after Putnam County Common
Pleas Judge Randall Basinger disqualified himself. Judge Basinger was
assistant prosecutor during Richey's original 1987 prosecution.

The Supreme Court said Judge Basinger indicated that Putnam Probate Judge
Daniel Gershutz was also unavailable because he was county prosecutor at
the time.

"Sometimes my hopes have been dashed so many times, but in my heart and
soul I knew if I kept fighting, one day I would get the chance to prove my
innocence," Richey said, according to a statement released by Ms. Torley.

"That time is coming for me," he said. "The support I have had has kept me
going. So many people believe in my innocence and I want to thank every
one of them for believing in me . Mum, I am coming home."

The Ohio Supreme Court will pick up the bulk of the tab for the visiting
judge. It will bill the county just $25 of the judge's $472-per-day pay.
The county, however, will be responsible for travel and other expenses
associated with the judge.

(source: Toledo Blade)

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

Richey's mother welcomes son's move from death row


KENNY Richey's mother today welcomed his transfer to a lower security jail
after 2 decades awaiting execution on death row.

Richey, 43, who was born in Edinburgh, was convicted of starting an
apartment fire in 1986 that killed a 2-year-old girl in Columbus Grove in
north-west Ohio.

But a federal appeals court threw out his conviction and death sentence
last month.

Eileen Richey, who lives in Dalry, said her relief was tinged with worry
but that her son had sounded "optimistic" the last time she spoke to him.

She said: "The conditions should be much better. He should get the freedom
to move about more, and he shouldn't have to wear shackles. Hopefully it
will be easier for his brother and dad to visit him, and he can phone home
more often.

"He was looking forward to being moved, but I was getting a bit worried.
He's been locked up for 20 years. I think it could be a bit of a shock if
he is in with other guys.

"I don't think they'll give him bail. They are determined to give him a
retrial."

She said her son wanted to come home to Scotland if he is freed.

She said: "He always talks about walking around Edinburgh. But I think
he'll be quite shocked at how much it's changed."

Karen Torley, his ex-fiancee and head of the Kenny Richey campaign, said:
"I spoke to him this afternoon and it is a big relief to him that now he
is moving on and is getting closer to getting his bail or his trial.

"He sounded very upbeat and he was in very good spirits.

"He said that on the way to the other jail he managed to get his head out
of the window, which he enjoyed because he has not had the wind in his
hair for a long time."

She said that the bail hearing is expected to take place in the next
couple of weeks, but that Richey is not getting his hopes up.

She said: "He just says we will wait and see. He is just happy right now
that things have moved on and that he is where he is now.

"I am so glad he has finally left that horrible place and things are
moving in the right direction."

JoEllen Lyons, a spokeswoman for the Ohio Department of Corrections, said
that authorities transferred Richey from a state prison in Youngstown,
Ohio, to a county jail in Ottawa on Monday to await a new trial.

Prosecutors plan to try Richey again on aggravated murder, aggravated
arson and child endangering charges.

Richey has spent years fighting his conviction, saying he received
ineffective counsel in his trial.

His lawyers have said that evidence casts doubts about Richey's role and
whether the fatal fire was started intentionally.

Amnesty International UK is now calling for him to be granted bail on
humanitarian grounds.

The Scottish director John Watson said: "Having experienced the dreadful
ordeal of getting only shoddy justice and then having to fight desperately
for years to clear his name, Kenny is at least now away from the mental
torture of life on death row.

"No one should have to face a death penalty in the 1st place - now the
important thing is that Kenny gets a proper retrial and the opportunity
for justice long denied to him."

(source: The Scotsman)