[Deathpenalty] death penalty news----N.C., ILL., GA., ARIZ.

[Rick Halperin]

Sept. 21



NORTH CAROLINA:

Tennessee Death Penalty Ruling Could Impact N.C.


In Raleigh, a federal court ruling in a Tennessee death penalty case could
add to the dispute over North Carolina's execution protocol.

U.S. District Judge Aleta Trauger ruled Wednesday that Tennessee's lethal
injection procedures are cruel and unusual punishment, delaying an
execution planned for next week.

The new protocol, released in April, "presents a substantial risk of
unnecessary pain" and violates death-row inmate Edward Jerome Harbison's
constitutional protections under the Eighth Amendment, Trauger said. The
protocol doesn't ensure that inmates are properly anesthetized before the
lethal injection is administered, which could "result in a terrifying,
excruciating death," she said.

Harbison was scheduled to be executed Sept. 26 for beating an elderly
woman to death during a burglary in 1983.

Tennessee uses the same cocktail of drugs in executions as North Carolina:
sodium pentathol is used to render the inmate unconscious. Pavulon then
paralyzes the body, and potassium chloride kills the inmate by stopping
the heart.

North Carolina Senior Administrative Law Judge Fred Morrison Jr. last
month ordered state officials to review the execution protocol, saying
lawyers for inmates weren't allowed to provide input and ask questions
about whether the procedures adequately protected inmates against cruel
and unusual punishment.

"I noticed it's the same thing we're dealing with in North Carolina,"
Morrison said of the Tennessee ruling. "I didn't think it verified or
ensured that the person is unconscious before they poison him or put him
to death."

North Carolina's death penalty has been on hold since January, when the
state Medical Board adopted a policy that threatened disciplinary action
against any physician who participated in an execution.

A judge ruled that the policy conflicted with state law requiring the
presence of a physician at executions, and he said the Council of State
would have to resolve the matter. The Council of State, a group of 9
elected officials, including Gov. Mike Easley, then revised the execution
protocol and increased the role of physicians in executions.

The Council of State is expected to take another look at the protocol next
month. Labor Commissioner Cherie Berry, who sits on the council, said she
wants the dispute resolved soon so executions can resume.

"If we're going to have the death penalty, (these rulings require) that we
do it the right way. If not, I'm not sure the courts are going to let
anybody be executed," Morrison said.

(source: WRAL.com)

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

Judge: Medical Board can't punish doctors involved in executions


The North Carolina Medical Board overstepped its authority by threatening
to punish physicians for participating in executions, a judge ruled
Friday, striking down a policy that effectively triggered a moratorium on
the state's death penalty.

Superior Court Judge Donald Stephens said state law does not grant the
medical board the right to prohibit doctors from assisting in executions.

"Although the current effort by the medical board to prohibit physician
participation in executions may well be viewed as humane and noble, such a
decision rests entirely with (elected officials)," Stephens wrote in his
6-page ruling. "As of this date, the legislature has taken no such
action."

Stephens also ruled that executions are not a medical procedures.

The medical board, which licenses and disciplines doctors in North
Carolina, threatened in January to punish any doctor who takes an active
role in an execution. State law requires that a doctor be present during a
lethal injection, and a federal judge demanded last year that a doctor
oversee the process of putting an inmate to death.

Dale Breaden, a spokesman for the medical board, declined to comment on
the ruling, saying officials will discuss the details at their next
meeting in the middle of October.

"This is something we have to study to decide what reaction would be
appropriate and what actions would be appropriate," Breaden said.

The state had revised its lethal injection process in an attempt to
satisfy the judge, requiring that a physician monitor "the essential body
functions of the condemned inmate" and notify the warden if the inmate
shows signs of "undue pain and suffering."

Stephens's action could be the first step toward untangling what Gov. Mike
Easley has called a "Gordian knot" that has prevented North Carolina from
executing a condemned inmate since August 2006. In the past year, the
debate over the death penalty has involved at least two state agencies,
several courts, the medical board and the Council of State, made up of
Easley and 9 other statewide elected officials.

(source: Associated Press)

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

Death penalty given new life----Death Penalty Woes; News 14's Ann Forte
has more on the future of the state's death penalty.


North Carolina's de facto moratorium on the death penalty could soon be
over. Wake County Superior Court Judge Donald Stephens has ruled that the
North Carolina Medical Board cannot discipline doctors who take part in
executions.

The board made that threat in January. Since then, the death penalty has
been effectively shut down because state law says a physician must be
present when someone is put to death.

"We're very disappointed in Judge Stephens decision," said Stephen Dear,
who is the executive director of People of Faith against the Death
Penalty.

Dear believes the judge's ruling makes an already complicated situation
even worse.

"[Stephens] says that when a doctor participates in an execution, that
that's not a medical event, but doctors have to participate, Dear said. It
makes no sense. If it's not a medical event, then why would doctors have
to participate?"

In his 6 page ruling, Judge Stephens said that although the North Carolina
Medical Board licenses and disciplines physicians in North Carolina, only
state lawmakers have the authority to punish doctors involved in
executions.

"We certainly hope the medical board will stick to its guns, so to speak,
and challenge this decision," Dear said.

It is not yet clear how the decision will affect North Carolinas death row
inmates. A Department of Corrections spokesperson says at this point, the
department has no imminent plans to resume executions.

A spokesperson for the medical board says the board is currently reviewing
the decision and is considering whether or not to appeal. The medical
board meets next in October.

(source: News 14)

ILLINOIS:

Aldermen call for federal prosecution of Burge


The abuse and torture scandal surrounding former Chicago police Cmdr. Jon
Burge and those who worked under him has cast a shadow over the department
that will only be lifted after their federal indictment and prosecution, a
group of Chicago City Council members said Thursday.

Led by Ald. Ed Smith (28th), the group, including Ald. Robert Fioretti
(2nd), Ald. Pat Dowell (3rd) and Ald. Billy Ocasio (26th), delivered a
letter to U.S. Atty. Patrick Fitzgerald's office urging him to take action
against Burge and other investigators accused of torturing suspects in
their custody from the 1970s to the early 1990s.

"It's the right thing to do," Smith said. "If we allow this to stand still
and don't move on it, then other police officers might feel it's OK to do
this kind of thing."

The alderman said they would not be deterred by a report released last
year by Cook County prosecutors concluding that, despite evidence of
torture, Burge and Area 2 detectives who worked under him could not be
prosecuted because the statute of limitations had expired.

"We must put an end to the nightmare that has been afflicting us for so
long," Fioretti said.

Flint Taylor, an attorney with the People's Law Office, which represents
several of the accusers, said Fitzgerald could prosecute the former police
officers on several federal charges, including perjury, obstruction of
justice and conspiracy.

Randall Samborn, spokesman for the U.S. attorney's office, declined to
comment.

(source: Chicago Tribune)






GEORGIA:

>From death row, convicted 'stocking strangler' argues for new trial


The Georgia jury that sent Carlton Gary to death row as the notorious
"stocking strangler" was denied access to critical evidence that could
have raised questions about his guilt, his lawyer told a federal court on
Wednesday.

Jack Martin said Gary, who was convicted of killing three elderly women,
should receive a new trial.

"Carlton Gary's trial was fundamentally flawed," Martin said.

The "stocking strangler" terrorized an upscale neighborhood in Columbus,
Ga. in the late 1970s, brutally raping and murdering 7 women. 2 other
victims survived. The women ranged in age from 59 to 89. The killer
strangled many of the women with their stockings.

Arguing before a 3-judge panel of the 11th U.S. Circuit Court of Appeals,
Martin pointed to a bite mark on 1 victim's breast that did not appear to
match Gary's teeth. He also argued that semen found in a victim was
inconsistent with Gary's.

"We might be talking, quite frankly, about a DNA exoneration," Martin
said.

But senior assistant attorney general Susan Boleyn countered that there
"massive amounts of evidence" that pointed to Gary, including fingerprints
found at 3 crime scenes and Gary's admission to police that he had been
present at each of the homes. Gary never confessed to the actual attacks
and has said that another man raped and murdered the women.

Boleyn said that Gary has a pattern of blaming friends, dating back to
other crimes in New York and South Carolina.

"None of these mythical friends could ever be linked to the crimes," she
said.

Judge Lanier Anderson asked the lawyers what casting doubt on the rape of
one of the victims meant in the cases of the other women he was convicted
of killing.

"Does the fact that the rape conviction is tainted render the whole trial
fundamentally unfair?" Anderson asked. "What bothers me is the fact that
the he confessed that he was actually present."

Martin disputed the confession, saying there were questions about what
Gary told authorities. He noted there was no recording of the exchange,
and in some cases police did not even take notes during the session.

Boleyn said Gary took police on a nighttime tour of the crime scenes.

"The detectives said they were absolutely astounded he was giving them all
these details," she said.

One of the central accusations came from a dentist, who told British
journalist David Rose that a prosecutor in the case instructed him not to
provide the bite mold from the victim to Gary's appellate lawyers.

"If he said that it is clearly unethical and absolutely terrible."
Anderson said. "If I was the attorney general I would make sure that was
investigated."

Martin argued that Gary's case was "fundamentally unfair." The judge
denied his trial lawyer funds for expert witnesses to dispute the state's
case.

He said the questions about the bite mark and the semen evidence would
have, at the very least, created some lingering doubt in at least 1 member
of the jury, which might have spared him from execution.

While Martin has raised fresh doubts about Gary's guilt in the Georgia
cases, he has been implicated in a cold case killing in upstate New York.

Syracuse, N.Y. police say they have matched Gary's DNA to that left at the
scene of 40-year-old Marion Fisher's 1975 rape and strangulation.

Gary had a long rap sheet when he was nabbed as the stocking strangler. He
had been behind bars on and off since he was a teenager, and had escaped
prisons in upstate New York and South Carolina.

Authorities in Syracuse have not charged Gary with a crime and said they
were weighing how to proceed, since he is already on death row.

(source: Associated Press)

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

Should Brian Nichols have four attorneys?----Legal fees dispute could
delay courthouse shooting trial


Jury selection is scheduled to begin in nine days, but another delay is
likely in the death penalty trial of Fulton County Courthouse rampage
suspect Brian Nichols.

The delay  the third since October  would be due to a continuing squabble
over Nichols' lawyers' fees and whether he can keep four attorneys, twice
as many as the average death penalty defendant.

2 years ago, Superior Court Judge Hilton Fuller appointed 4 lawyers to the
case after citing factors  such as widespread publicity and multiple
victims and crime scenes  that necessitated a larger-than-average defense
team. The judge also agreed to higher attorney fees for North Carolina
legal eagle Henderson Hill and his associate Jacob Sussman and veteran
Atlanta attorney Robert McGlasson. But during a pretrial hearing last
week, attorneys with the Georgia Public Defender Standards Council, which
pays for the representation of poor and death penalty defendants, said the
agency is financially strapped and asked the judge to reduce the lawyer
fees to the state rate of $95 an hour. McGlasson had already volunteered
to a reduce his fees from $160 to $95 an hour, but Hill  Nichols' lead
attorney  told the judge he and Sussman wouldn't agree to the salary
reduction. Hill receives $175 an hour, while Sussman's fee is $125.

The council's lawyers also said the state will only pay for 2 attorneys,
citing a new state law that only allows state reimbursement for two
lawyers in death penalty cases.

The new law says the county may pay for a third attorney, but Fulton
County Commissioners Tom Lowe and Bill Edwards said they won't agree to
pay another dime on Nichols and they don't believe their fellow
commissioners would either.

Hill argued that if Nichols couldn't get adequate representation, the
judge should order prosecutors to drop their efforts for a death sentence.
Fuller is unlikely to take the decision of punishment out of jurors'
hands, but he has to resolve defense complaints.

The judge was expected to release his order Friday, so the case could move
forward, with jury selection set to begin Oct. 2. But he is still mulling
over the dilemma in what is expected to become the costliest trial in
Georgia history.

Fuller now is expected to issue his order sometime next week. He has
called a hearing Monday to consider an official gag order in the case,
barring all parties from commenting to reporters. Prosecutors, defense
attorneys and the judge have already stopped commenting about issues
related to the case.

The defense lawyers said in court papers Friday, though, that they oppose
the gag order.

Veteran Gwinnett County District Attorney Danny Porter criticized Fuller
for giving in to what he sees as the defense's unreasonable pay requests.
Like Fulton County prosecutors, Porter experienced frustrations trying to
get a high-profile death penalty case to trial. It took 6 years.

"Judge Fuller created this mess and I don't think he'll be able to order
his way out of it," Porter said. "He's created almost an unsolvable
problem."

But others say Fuller is not to blame. Officials with the Georgia Public
Defender Standards Council said in 2005 the case merited four lawyers and
agreed to the higher fees. Fuller agreed.

Fuller, a senior judge from DeKalb County who has agreed to hear the case
because Fulton judges have recused themselves, is widely respected
throughout the state and is known as a cautious judge. He is widely seen
as trying to ensure Nichols gets a fair trial to avoid having the verdict
overturned on appeal, which would compound the expense with a 2nd trial.

Some outside attorneys say Hill and Sussman could drop out of the case
because the terms they agreed upon have not been honored. Others say they
could face bar sanctions and damaged reputations if they backed out of a
death penalty case on the eve of the trial.

If Fuller allowed Hill and Sussman to leave, Nichols would likely lose a
third attorney, Penelope Marshall, who is volunteering her time at their
request. That would leave McGlasson as the only attorney who has been on
the case since 2005. He would likely get assistance from the Office of the
Georgia Capital Defender, whose lawyers would need time to catch up to
speed on the case.

Porter also dealt with attorney swapping in the 6-year-long double-murder
case of Wesley Harris.

"As soon as they bring in new attorneys, that would build in a six-month
delay," Porter said.

The judge could try a different approach to keep the Nichols' defense team
intact  ordering the state or county to pay for one of the attorneys and
to pay them the higher rates. But the state and county officials likely
would appeal any such order to the Georgia Supreme Court, which could
cause a delay. Others say the trial could go forward while the county or
state appealed.

Veteran death penalty defense attorney Don Samuel, who is not working on
the Nichols case, said he doesn't believe Nichols' attorneys will walk
away from the case no matter what they are paid.

"My guess is they're playing chicken," Samuel said. "Good criminal lawyers
don't abandon their clients."

Samuel said the pay squabble could be a defense tactic to delay the start
of Nichols' trial for the deadly March 11, 2005 rampage that killed a
judge, court reporter, sheriff's sergeant and federal customs agent.
Attorneys who represent defendants facing the death penalty are schooled
on ways to stall, buying their client more time and hopefully weakening
the government's case.

"You don't like the flag in the courtroom, the color of the carpet, the
position of the microphones on the table, you complain," Samuel said. "You
put up obstacles and hurdles. Anything to stop the trial."

(source: Atlanta Journal Constitution)






ARIZONA:

Death penalty to be sought in slaying of Phoenix officer


A man accused in the shooting death of Phoenix police Officer George
Cortez Jr. may face the death penalty.

Maricopa County Attorney Andrew Thomas said Friday that prosecutors would
seek the death penalty for Edward James Rose, 20. Rose is accused of
shooting Cortez while the officer was trying to arrest him July 27 in a
Phoenix check-cashing store.

Rose is the 2nd Valley person this year to face the death penalty in
connection with an officer's death. Bryan Wayne Husley, 33, is facing
capital charges for his suspected involvement in the death of Glendale
police Officer Anthony Holly in February.

(source: Arizona Repoublic)