[Deathpenalty] death penalty news----GA., ALA., N.M., PENN., KY.

[Rick Halperin]

Sept. 22



GEORGIA:

Death still arbitrary


 Of Georgia's 132 most heinous murderers over a recent 10-year span, only
29 of them landed on death row.

 50 of the worst killers avoided death by pleading guilty. Some got life
sentences and will be eligible for parole.

 A killer's chances of facing the death penalty increased when the victim
was white.


The cases | Video: The victim's father

2 men begged a ride from a Wal-Mart shopper in Milledgeville. Minutes
later he was dead, shot once in the head. The killers sit on death row.

2 men begged a ride from a college student at a Tifton nightclub. Minutes
later he was dead, shot 4 times in the stomach and chest. The killers are
serving life in prison and will be eligible for parole. 2 exceedingly
similar crimes, just a few months and 135 miles apart. Two starkly
different outcomes.

The murders illustrate what a two-year investigation by The Atlanta
Journal-Constitution has revealed: Getting the death penalty in Georgia is
as predictable as a lightning strike. 35 years ago, the U.S. Supreme Court
threw out the death penalty nationwide after finding it was arbitrary and
capricious in Georgia.

It still is. Reforms that persuaded the high court to reinstate the death
penalty have fallen far short of the state's promises, the
Journal-Constitution has found.

 Horrible murders are sometimes treated more leniently than lesser crimes.
Reginald Acres, for instance, avoided death for viciously stabbing and
killing his wife, infant daughter and a pregnant relative. But David Aaron
Perkins is on death row for stabbing a drinking buddy and crushing his
skull with a whiskey bottle.

 For 25 years, Georgia's Supreme Court has flubbed a critical duty,
repeatedly citing cases that had been overturned on appeal to justify
other death sentences. (Day Four of this series will explore this issue in
depth.)

 More prosecutors and juries are rejecting lethal injection in favor of
life without parole. Since 2000, juries have decided against death in two
of every three sentencing trials. The trend makes each remaining death
sentence more out of step with punishment for similar crimes.

The newspaper's investigation explored the darkest depths of human
behavior. Court records told tales of torture, mutilation, child murder
the kinds of cases that give cops and jurors nightmares. They were also,
the newspaper found, the kinds that often didn't get the death penalty.

"It's like a roulette wheel," said former Georgia Chief Justice Norman
Fletcher. "Arbitrariness is a weakness of the death penalty."

The Journal-Constitution found 1,315 murder cases from 1995 through 2004
that could have been prosecuted for death.

But prosecutors pursued a death sentence for only one in four of those
killers. Only one in 23 of them landed on death row.

In that decade, DAs did not seek death for 375 murder cases involving
rape, torture or maiming, or multiple killings  circumstances that could
warrant a death sentence, the Journal-Constitution found.

Juries sent other killers to death row for crimes that involved a single
gunshot and a single victim.

"It would make as much sense just to execute every 10th or every 100th
murderer [as] it would be to figure out the rhyme or reason for why we're
picking the ones to get the death penalty," said Atlanta defense attorney
Jack Martin.

The newspaper, working with University of Maryland criminologist Ray
Paternoster, analyzed 10 years of murder convictions. Among the findings:

Geography matters. Killers' sentences often depended on where they killed.
A murder in Clayton County, for example, was 13 times more likely to bring
death penalty prosecution than a similar crime a few miles away in Fulton.

Race matters, too. Statewide, prosecutors were more than twice as likely
to seek death when the victim was white.

The nature of the crime matters. Statewide, the geographic and racial
disparities were more pronounced in prosecutors' handling of murders that
involved armed robbery.

Disparity despite guidelines

Georgia lawmakers in 1973 did not intend to allow such disparate outcomes.

"We were trying to bring [the death penalty] down to the worst of the
worst," said Peyton S. Hawes Jr., then vice chairman of the House
Judiciary Committee.

Responding to the U.S. Supreme Court, the Legislature set guidelines to
help prosecutors decide when to pursue execution. The statute specified 10
"aggravating circumstances"  such as killing a police officer, or killing
2 or more people  that could qualify for a death sentence. Other states
passed new laws following that model.

But Georgia's new law still covered much more than the worst of the worst.
The newspaper found 56 percent of all murders in the decade studied were
still eligible for death, including hundreds of moderately aggravated
cases. By allowing district attorneys to choose from such a large pool,
the Legislature preserved the arbitrariness it had sought to eliminate.

Georgia's 49 DAs use their own standards and values to decide whether to
pursue death. They assess the strength of the case, the character of the
victim, the wishes of the victim's family and, sometimes, their gut.

"You know it when you see it," Douglas County District Attorney David
McDade said.

Deals help some dodge death

The temptation to accept a plea bargain, particularly for a sentence of
life without parole, can prove irresistible. The Journal-Constitution
found prosecutors did so in dozens of murders that were among the worst in
the state. Sometimes, DAs did not seek death at all.

Of the 132 murderers who made up the worst 10 percent of cases, only 29
landed on death row, the newspaper found. Paternoster, the Maryland
criminologist, identified the most severe cases statistically by
considering factors such as multiple victims, a rape or torture.

Prosecutors sought death in 103 of those cases, but later allowed nearly
half of the killers to plead guilty. Some got life sentences and will be
eligible for parole.

In one of the most chilling cases, two men killed five people in cold
blood.

In 1995, Alvin Smith and Ricky McCoy walked into a McFrugal Auto Rental
office in East Point. A drug dealer had offered them cocaine to kill an
employee.

When Gordy Foust's son, Todd, was shot and killed during a Jan. 6, 1995,
armed robbery at an Atlanta auto rental store, he pushed for the death
penalty for the killers. but the killers got life sentences.

Their target was not at work, so Smith and McCoy decided to rob the store.
Only Todd Foust, a fastidious 23-year-old manager and youth baseball coach
from Douglasville, stood in their way.

Foust begged for his life. Take anything you want, even the keys to my
van, he said. Smith bound Foust's hands and feet with duct tape, then
stood over him and fired a fatal bullet into his head.

Smith and McCoy drove a stolen rental car to rob another McFrugal store,
where Smith executed a manager and customer.

The 2 men confessed a few days later. McCoy also admitted helping to rob
and kill two drug dealers; Smith said he took part in one of those
murders.

Fulton County prosecutors filed court papers seeking death. But a year
later, both killers struck deals that let them avoid it. McCoy's deal
allowed the possibility of parole.

Prosecutor Henry Newkirk, now a judge, agreed the killers deserved to die.
But he said then-District Attorney Lewis Slaton wanted the certainty of a
deal.

"A bird in the hand is worth two in the bush," Newkirk recalled Slaton
saying of the deal. Slaton, who fretted over the expense of capital
trials, died in 2002.

Foust's father remains livid to this day.

Gordy Foust and his son had reconciled several months before the killing.
They had seen each other rarely until Todd paid a surprise visit and
apologized for losing touch. Soon, Todd joined his dad on the drag-racing
circuit.

Foust said recently he can't imagine the terror his son experienced in his
final moments.

"I'm not so sure those walls outside the prison are there to keep people
like them in or to keep people like me out," said Foust, 66. "If you don't
give these people the punishment they deserve, there is no punishment
anymore."

In the 5-county Brunswick circuit on the Georgia coast, prosecutors
probably would have rejected a similar plea deal.

3 months before the McFrugal slayings, Warren King killed an Appling
County convenience store clerk in a bungled robbery. King and his cousin
held up Karen Crosby, 23, as she walked to her car after closing. King's
cousin used Crosby's keys to open the store but triggered the alarm.
Before fleeing, King shot Crosby twice.

King got a death sentence in 1998 and awaits execution. Overall,
prosecutors in Brunswick were 14 times more likely to seek death than
those in Fulton for similar crimes, the Journal-Constitution found.

Several factors alter outcomes

District attorneys say many cases are not suitable for the death penalty
because of weak evidence.

Juries will not impose death unless guilt is irrefutable, prosecutors say.
Seeking death without the certainty of a conviction, they add, would waste
resources on protracted court proceedings and years of appeals.

"The type of punishment should be the only thing in question," said Joseph
Campbell, district attorney for Bartow and Gordon counties.

This means killers who are crafty enough to dispose of the murder weapon,
careful enough to leave no evidence or lucky enough to escape the notice
of witnesses will probably never face a capital prosecution.

The evidence against Miles Dempsey seemed powerful, but prosecutors said
it wasn't enough to seek death.

One night in March 2001, Jennifer Causey, a 17-year-old desk clerk at an
Acworth hotel, told a friend over the phone she was scared of Miles, the
maintenance man. He had cursed at her the previous morning. Causey told
her friend to call 911 if something happened to her.

A few minutes later, the friend heard Causey scream "Miles!" and drop the
phone, then what sounded like a baseball bat hitting the desk several
times. Causey was found dead with a fractured skull. The cash drawer was
cleaned out.

Police found Dempsey in his room and Causey's blood on a pair of his
jeans. The murder weapon was never found.

But Cobb County DA Pat Head chose not to seek the death penalty. The case,
he said, was solid enough to win a conviction but too circumstantial to
obtain a capital sentence.

"How many 'Miles' are there in the Acworth area?" Head asked.

Because Dempsey was the maintenance man, Head added, jurors could have
been led to believe the blood got on his pants another way.

Dempsey was convicted of murder in 2002. Because he had a previous violent
felony conviction, he was sentenced to life without parole.

Even when guilt seems certain, DAs don't always go for death. The
newspaper found they did not seek death for at least 225 eligible killers
who confessed.

Sometimes a DA will not pursue death against a co-defendant who
cooperates. A victim's family that opposes capital punishment may persuade
a prosecutor from seeking death, as will questions about a defendant's
mental health.

Another reason is mercy, seeing a redemptive quality in the heart of a
killer.

"If you believe the death penalty is reserved for the worst of the worst,
true remorse and accepting responsibility can take you out of that
category," Gwinnett District Attorney Danny Porter said.

Spotlight can shift to victim

Some DAs also consider the nature of the victim in deciding whether to
pursue death. Did he deal drugs? Did he have a prison record?

In DeKalb County, a late-night intruder stabbed a screaming woman while
her terrified children cowered in the next room.

Willie James Robinson climbed through the window of Stacey Miller's duplex
before 5 a.m. one morning in 2000, court records show. Robinson stabbed
her in the neck and chest with a butcher knife.

Miller's screams awoke her 10-year-old son, who feigned sleep in the next
room. Her 8-year-old daughter hid in the closet.

Robinson, believing the children were asleep, took Miller's money and
jewelry, disabled the smoke alarm and set the duplex on fire. The children
slipped out a window.

Police found Robinson outside, watching the flames, with Miller's blood on
his shoes. He later was convicted of raping another woman in a similar
incident 5 months earlier.

The murder qualified for the death penalty 3 ways because it involved an
armed robbery, a burglary and arson. But prosecutors allowed a plea deal
for life in prison because they believed Miller had a prior romantic
relationship with Robinson.

"It's really tough to get the death penalty unless it's
stranger-on-stranger," said former DA J. Tom Morgan, whose office told the
parole board Robinson should never be released.

Time, costs considered in cases

Busy caseloads and the mounting costs of capital prosecutions also hinder
DAs from seeking death.

Prosecutors with more murder cases sought death less frequently, the
newspaper's analysis showed. Circuits with the fewest murder cases sought
death about twice as often as circuits with the highest volumes.

Muscogee County had 2 pending death penalty cases when Lucille Henderson
Smith was murdered in March 2001.

Smith was in her apartment, on the phone with a friend, when she screamed
"New York!" and cried out for help.

Police found her dead in the pouring rain, lying face down behind her
apartment. She had been stabbed 45 times. The 49-year-old foundry worker
had told friends to remember the name "New York" if something happened to
her.

Police quickly identified "New York" as Hayden McCloggan, a former
co-worker of Smith's. He had once gone to prison in New York for sexual
abuse.

Voluminous evidence tied McCloggan to the slaying  DNA, blood, stolen
items from Smith's purse and his watch at the crime scene. Police even
matched a diamond-shaped imprint on Smith's forehead to the sole of
McCloggan's boots.

McCloggan later told police he was infatuated with Smith and watched
through the window that night as she undressed. He said he entered her
apartment, picked up a knife and wanted to "see what it was like to kill
someone."

John Gray Conger, the Muscogee district attorney who agreed to a plea
bargain for life in prison, said it is too costly to seek death in every
case.

"That's the unfortunate truth," he said. "It costs a lot of money to try a
death case. It takes a lot of resources. It takes a lot of people."

Death penalty prosecutions can be enormously expensive and time-consuming.
The law requires two defense attorneys, extensive pretrial hearings and
lengthy appeals. An extended jury selection process precedes a trial to
decide guilt or innocence and then a hearing to determine punishment.

The sheer cost of mounting a capital case gives some DAs pause.

That wasn't a problem in Clayton County in the late 1990s. Assistant
district attorney Brandon Hornsby, given the time and resources, obtained
4 death sentences in 4 years.

"We were able to devote one person to these cases," Hornsby said. "Most
counties don't have the ability to do that."

Bob Keller, the former district attorney in Clayton County and now a
member of the state parole board, said he embraced Hornsby's decision to
focus primarily on death penalty cases.

But Keller said the disparities found by the newspaper are unsettling.

"I'm not so sure we don't need to revisit how we do this," Keller said.

"How do you justify in one county a horrific case that gets life and in
another county a not-so-horrific case the death penalty is sought?" asked
Keller.

"The answer is you don't."

(source: Atlanta Journal-Constitution)






ALABAMA:

Arthur's stay of execution denied


A 3-judge panel of the 11th U.S. Circuit Court of Appeals on Friday denied
a stay of execution for convicted murderer Tommy Douglas Arthur.

Arthur, 65, was convicted for the 1982 contract killing of Troy Wicker, of
Muscle Shoals. Arthur, who has said he is innocent of the crime, is
scheduled to die by lethal injection at Holman Prison near Atmore on
Thursday. Arthur has been on death row for 25 years.

"Notwithstanding what the courts have held, in a civilized society, how
can we allow a man to be executed without even allowing DNA testing that
could prove his innocence?" said Suhana Han, Arthur's attorney.

Han said the state ought to wait for the outcome of a federal lawsuit
scheduled to go to trial in October that challenges Alabama's lethal
injection method of execution as cruel and unusual punishment.

Han said although the state of Alabama insists that DNA testing doesn't
bear on Arthur's culpability, "We disagree, and we're willing to pay for
DNA testing."

"Reliable science can resolve this dispute, but the state of Alabama is
afraid of the truth," she said. "The truth is the truth - no matter how
many years later it emerges."

Clay Crenshaw, head of the attorney general's capital litigation section,
said if Arthur had wanted DNA testing, he should have requested it years
ago. "We think it's the correct ruling," he said of the judges' decision.

Crenshaw said Arthur's attorney was informed in oral arguments in 2004
that she could request DNA testing but that she waited only a few months
before his scheduled execution date to request it.

The 3 appellate judges said a lower federal district court did not abuse
its discretion in dismissing Arthur's request to allow DNA testing that
was not available in the 1980s.

"There was no justification for Arthur's failure to bring his request for
physical evidence for DNA testing earlier to allow sufficient time for
full adjudication of the merits of this claim," the judges said.

On Monday, the same panel of judges in a 2-1 vote declined to halt
Arthur's scheduled execution based on his challenge of the
constitutionality of lethal injection, saying he waited too long,
"especially given the strong presumption against the grant of equitable
relief."

The judges said Friday that the lower court also did not abuse its
discretion in denying Arthur's motion to alter or amend the death penalty
based on newly discovered evidence.

Since the lower court judge was upheld, Arthur's motion for a stay of
execution pending appeal was denied as moot, the judges said in a 19-page
opinion.

Troy Wicker's widow, Judy Wicker, who Arthur had known since they were
both young, testified that she hired Arthur to kill her husband. Wicker,
who is now 60 years old, has served time for that crime.

(source: Times Daily)






NEW MEXICO:

Grisly justice for horrendous crimes


About the wanton killing of a transient Frenchman, Jacques DEglise, in New
Mexico in 1806, we have precious few details. A bit more is known
concerning the judging and execution of his 2 murderers, but not much.

Even so, the case is worth a look for what it tells us about the Spanish
judicial system at the end of the colonial period.

Capital punishment was seldom administered in New Mexico, at least to
criminals in the Spanish community. One reason is that the government made
executions a public spectacle, one that was so grisly, viewers never
forgot what they witnessed.

Soon after Santa Fe was founded, the provincial government erected a
gibbet and a whipping post in the center of the Plaza. A gibbet was a
gallows with a projecting arm at the top for suspending and exhibiting
bodies of criminals after hanging. The mere sight of it was thought to
discourage potential evildoers.

The only instance of the gibbet being used prior to the tumult of the
Pueblo Revolt, that I can find, occurred on July 21, 1643.

8 prominent Santa Feans had conspired to assassinate the dishonest and
immoral Gov. Lus de Rosas the year before. Among them were the alcalde
(mayor) Antonio Baca and 2 town councilors.

They would probably have gotten off lightly, since Rosas was universally
hated. But the viceroy in Mexico City, outraged over the slaying of a
royal official, thought otherwise.

He sent secret orders to the newly appointed governor that the culprits
should die, to serve as an example.

In the spirit of that order, all 8 were beheaded on the Plaza in the
presence of family, friends and a multitude of onlookers. In addition, the
severed head of Mayor Baca, considered the ringleader, was nailed to the
gibbet.

That episode, depressing as it might be, assists our understanding of the
scant fragments available in the 1806 DEglise murder case.

Sometime in late 1805 or early 1806, D'Eglise, a French fur trader, first
appeared in New Mexico. Earlier, he had been bartering for beaver skins
with the friendly Mandan Indians of the upper Missouri River.

Why he came to this Spanish province and what he was doing in the way of
business after he got here has not been determined.

We only know that sometime before Nov. 20, 1806, he was slain by 2
assailants in the jurisdiction of the Villa de la Caada, 25 miles north of
Santa Fe.

That town had been founded in 1695 by Gov. Diego de Vargas, under the full
name of the Villa de Santa Cruz de la Caada. Located just east of modern
Espaola, the place now is known simply as Santa Cruz.

The alcalde and chief magistrate of La Caada in the fall of 1806, Manuel
Garcia de la Mora, submitted to the royal governor at Santa Fe the record
of a serious case tried in his court. It dealt with the slaying of DEglise
and conviction of the 2 murderers.

The guilty parties were Antonio Carabajal and Mariano Venavides. At the
capital, Gov. Joaqun del Real Alencaster received the judicial documents
and, as the highest legal officer in New Mexico, took the next step in the
process.

For ordinary cases referred to him, the governor usually gave a final
ruling. But since Alcalde de la Mora had imposed the death penalty, it was
necessary for Alencaster to attach his opinion and pass it on to a higher
court in New Spain (Mexico).

For that, the record had to be sent more than a thousand miles southward
to the supreme court (audiencia) of Guadalajara. To that body's chief
officer, Alencaster wrote that the charge of murder against Carabajal and
Venavides was fully proven and the crime was so horrible their punishment
ought to be prompt and exemplary. And he added that if that was done "it
would impress the people who are unaccustomed to seeing the infliction of
capital punishment."

However, it took the court 3 years to confirm the death sentence and get
the order sent back to New Mexico, scarcely the promptness sought by the
governor.

In late July 1809, de la Mora went to the jail and read the document to
the condemned men. He says that each one placed the order on his head, an
old Spanish tradition signifying compliance and submission.

Then on Aug. 4, from Santa Fe where he had taken the prisoners for
execution, the alcalde certified that they had been shot at 7:45 in the
morning. Afterward, the bodies had been hanged on the Camino Real "to make
them an example."

In 1927 scholar Lansing B. Bloom first translated and made public Spanish
documents in the DEglise case. He expressed hope that more documents would
eventually be found, perhaps in the Guadalajara archives. But so far, that
has not happened.

(source: Santa Fe New Mexican - Historian Marc Simmons is author of
numerous books on New Mexico and the Southwest)






PENNSYLANIA:

Rendell signs death warrant in '01 murder


Execution of Ramon Sanchez, who attacked 67-year-old Allentown man at his
apartment, scheduled for Nov. 15.

By Arlene Martnez, Of The Morning Call

Gov. Ed Rendell has signed a warrant to put Ramon Sanchez to death by
lethal injection for murdering 67-year-old Lloyd Gehret of Allentown 6
years ago.

Sanchez's execution has been scheduled for Nov. 15 barring an appeal.

A jury in 2003 found Sanchez guilty of 1st-degree murder, and Lehigh
County Judge William E. Ford sentenced him to death.

Sanchez repeatedly beat the elderly man with a hammer, stabbed him with a
screwdriver, and cut his neck with a utility knife as Gehret remodeled his
apartment on N. 12th Street. Jurors were shown photographs of the
blood-spattered residence.

Sanchez, originally of New York City, was 19 when he killed Gehret in July
2001. He reportedly had moved to Allentown just a few months before the
murder. Gehret owned Sudsy Coin-Op Laundry at 12th and Tilghman streets.

Rendell has signed 73 death warrants. His successor, Gov. Tom Ridge,
signed 220 warrants, but Gov. Robert Casey signed only 21 from 1988-94.

There are 226 people on death row in Pennsylvania, according to the Death
Penalty Information Center, based in Washington, D.C. 3 have been executed
since the U.S. Supreme Court reinstated the death penalty in 1976.

(source: The Morning Call)






KENTUCKY:

Court Says Execution Stay Stands


The Kentucky Supreme Court turned down a prosecutor's request to
reconsider its decision to stop the execution of a man convicted of
killing a sheriff and deputy.

The high court issued a one-page order on Friday turning away Attorney
General Greg Stumbo's motion to lift the stay of execution issued for
Ralph S. Baze. Baze was sentenced to death for the 1992 shootings of
Powell County Sheriff Steve Bennett and Deputy Arthur Briscoe.

He was scheduled to die by lethal injection on Sept. 25, but the Supreme
Court stopped it last week. The justices scheduled hearings in November on
3 issues Baze raised in an appeal last month.

Stumbo asked Gov. Ernie Fletcher on Aug. 13 to set an execution date for
Baze. Fletcher signed the warrant on Aug. 22. In between those two dates,
Baze's attorneys filed the appeal with the Kentucky Supreme Court and
asked for a stay of execution. Prosecutors did not respond to the appeal.

Baze, 52, has been on death row for 14 years. Gov. Paul Patton signed a
warrant setting his execution in April 2001, but a judge intervened and
stopped it.

Kentucky has executed 2 people since the death penalty was reinstated in
1976.

(source: Associated Press)