[Deathpenalty] death penalty news----TEXAS, FLA., N.C., OHIO

[Rick Halperin]

Sept. 30



TEXAS:

State's case against Bush hits high court


It is the official, considered position of the state of Texas that
President Bush is a constitutionally ignorant power-grabber.

An unusual case that the Supreme Court will hear as it begins its new term
features Texas accusing its former chief executive of overstepping his
office, by ordering Texas judges to comply with an International Court of
Justice ruling involving a condemned killer from Mexico.

"It is, in my judgment, a breathtaking order," the state's chief appeals
lawyer, Solicitor General Ted Cruz, said a few days ago as he previewed
his arguments for the Federalist Society, a conservative legal group.
"This president's exercise of this power is egregiously beyond the bounds
of presidential authority."

It's an extraordinary confrontation, not just because Mr. Bush used to
live in the Governor's Mansion but because his chief accuser helped put
him into the White House. Mr. Cruz served as domestic policy adviser to
the Bush-Cheney campaign, was a key player during the Florida recount in
2000, coordinated hiring for the Justice Department and served as an
associate deputy attorney general.

"We find ourselves in an unusual position. Texas is not regularly
litigating against the United States," he said.

In 1994, Jos Medelln was sentenced to die for the rape and murder of 2
teenage girls during a gang initiation in Houston. 4 years after the
conviction, he raised a new legal issue: Under Article 36 of the 1963
Vienna Convention, police should have apprised him of his right to consult
with consular officials from his native Mexico.

Mexico went to the International Court of Justice, which in March 2004
ruled that U.S. courts should review the Medelln case and 50 other tainted
convictions. But the U.S. appeals court in New Orleans rejected Mr.
Medelln's appeal because he hadn't raised the issue in his trial. The
Supreme Court also refused to overturn his conviction.

In February 2005, Mr. Bush announced he would order state courts to comply
with the International Court ruling.

The problem is that the Constitution gives U.S. presidents no direct
authority over courts, state or federal.

In November, the Texas Court of Criminal Appeals found the order
unprecedented and baseless. The Supreme Court will take up the case again
on Oct. 10. U.S. Solicitor General Paul Clement, a Bush appointee, will
argue that state courts can't be allowed to veto treaty obligations and
that the president has inherent authority stemming from his unique foreign
policy role.

Mr. Cruz disagrees. "It is emphatically not the province of the president
to say what the law is," he said.

It is so emphatically and fundamentally beyond executive power, the
argument goes, that Texas bases its legal case in part on the 1803
landmark ruling that settled once and for all it's the Supreme Court  not
Congress or the president  that gets final say on interpreting the law.

"It's not often in litigating a case that you actually get to cite as a
major authority Marbury vs. Madison," Mr. Cruz said.

28 states, two former U.S. attorneys general, 3 former U.S. solicitors
general and top legal theorists, liberal and conservative, side with
Texas. California Attorney General Jerry Brown and Reagan Attorney General
Ed Meese find common ground, Mr. Cruz said, because of the "enormous
mischief" presidents could wreak if the Bush assertion stands.

Imagine, he argued, what President Dick Cheney might do, or President
Hillary Rodham Clinton  a boogeyman for each side  if they were free to
"flick state laws off the books on a simple assertion of international
comity."

Mr. Cheney might scrap California emissions laws that undermine Kyoto
treaty negotiations and put a stop to punitive damage awards that hurt
multinational corporations.

Mrs. Clinton might set aside bans on gay marriage and adoption and halt
capital punishment.

"A president could say it would further international comity 'big time'
that's a technical legal term, 'big time'  if we set aside the death
penalty laws," Mr. Cruz said. "Those scenarios are downright scary. That
is not the legitimate constitutional role of the president."

(source: Dallas Morning News)

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

Push for innocence panel is renewed


A state lawmaker is making a renewed push for a Texas Innocence Commission
to investigate cases of wrongful conviction after the 14th exoneration of
a prison inmate by the Dallas County district attorney's office.

Sen. Rodney Ellis said he hopes the Dallas County situation will help
revive his plan to create a nine-member commission to examine innocence
claims, identify problems in the criminal justice system and recommend
reforms. Ellis' bill creating such a commission died in this year's
legislative session.

"I think the exonerations are clear and convincing evidence that the
system is broken," said Ellis, a Houston Democrat. "In no other sphere of
public policy would rational people see this many exonerations and not be
willing to be able to pull together a panel of experts to ask what went
wrong and what can be learned from those cases."

This month, Dallas County prosecutors said DNA evidence proved that Steven
Phillips, who served 25 years in prison, did not rape a Dallas woman in
1982. Since 2001, Dallas County has had more DNA exonerations than any
other county in the United States.

Ellis is talking to his Senate colleagues about an innocence commission.
He has also asked Lt. Gov. David Dewhurst to order an interim study on the
need for an innocence commission during the Legislature's hiatus.

Texas Supreme Court Chief Justice Wallace Jefferson and Ellis have also
talked about reforms. Jefferson said he agrees that the state should
create some type of innocence commission but added that he is still
studying the issue.

"We can't open up every conviction in the state. We've got to be careful
how we do this," Jefferson said. But he added that "to me, it is
unthinkable that you and I would be sitting in jail for a crime we did not
commit. It shows that something didn't work."

For people who have been exonerated after spending years behind bars, an
innocence commission is long overdue. "We badly need some reconstruction
in the criminal justice system," said James Giles of Dallas, who was
exonerated last year after serving 10 years on a rape conviction. "We
ought to be able to come together and get this thing right."

The details

Ellis' bill would have allowed the governor, the lieutenant governor and
the speaker of the House to make appointments to the commission, among
others. The commission would have had the power to investigate individual
cases, identify defects in the system and suggest reforms to the
Legislature.

Ellis compared the commission to the National Transportation Safety Board,
which sends in teams of experts to investigate airplane crashes.

"We are talking about looking at cases where it is undeniable that the
system made a mistake," said Ellis, who also serves on the board of
directors of the Innocence Project in New York.

Ellis' bill passed the Senate 20-10 but failed in the House. It was
opposed by the state's prosecutors, and some lawmakers said the state has
adequate systems for this kind of review, including the state and federal
judicial appeal process as well as the Texas Board of Pardons and Paroles.

'Prime time'

Sen. Kim Brimer, R-Fort Worth, said he voted against Ellis' bill because
he didn't think that the issue had been studied enough or that the bill
offered much improvement. He added, however, that it is a "prime time" to
do an interim committee report on a commission.

"At that time it just looked like another level of bureaucracy to me that
needed more study," Brimer said.

Sharon Keller, presiding judge of the Texas Court of Criminal Appeals, is
not convinced the commission is necessary, saying the state already has a
progressive attitude toward innocence claims. The Court of Criminal
Appeals is the state's highest criminal court.

"I think that the system is working fairly well right now and evidence of
that are the exonerations in Dallas," Keller said. "I don't know what an
innocence commission would add."

6 states have already created similar commissions, according to the
Innocence Project in New York.

North Carolina was first when it approved an eight-member Innocence
Inquiry Commission last year after several long-term inmates were
exonerated. The commission has received requests to review more than 200
cases.

"It is forward-thinking for this state. People are open to watching what
we give them," said Kendra Montgomery-Blinn, the commission's executive
director. "It doesn't matter where you fall on the political scale, you
don't want innocent people in prison."

Texas Sen. John Whitmire, D-Houston, chairman of the Senate Criminal
Justice Committee, said any proposed reforms will have to be supported by
stakeholders in the state's criminal justice system.

Whitmire said he is more hopeful about getting an innocence commission
approved after the Dallas County exonerations. Whitmire said he will
encourage Dewhurst to let legislators study the idea.

He said prosecutors and judges have expressed concern that an innocence
commission would give rise to political retaliation and not an honest
effort to clean up the system.

"It can't be about 'I gotcha!' It ought to be about going forward and not
repeating the same mistakes," Whitmire said. Honest judges and prosecutors
will welcome outside review of their cases, he said.

But clearly, after what has happened in Dallas County, Whitmire said,
there is room for improvement in the criminal justice system.

"What we don't know should scare the hell out of us," he said.

Commissions across the United States

At least 6 other states have created innocence or criminal justice reform
commissions.

California: Lawmakers created the California Commission on the Fair
Administration of Justice in 2004. The 18-member agency includes
prosecutors, defense attorneys and a member of the judiciary. In 2006, the
commission began looking into wrongful convictions.

Connecticut: Created in 2003, the Connecticut Innocence Commission has 12
members, including a chief administrative judge, a police chief and a
state representative. It does not review individual cases but adopted a
broader reform mandate.

Illinois: After then-Gov. George Ryan issued a moratorium on executions in
2000, he created a commission to study capital punishment that made 85
recommendations for additional safeguards. In 2007, lawmakers considered a
permanent innocence commission.

North Carolina: The Innocence Inquiry Commission, created in 2006, grew
out of a study of the state's criminal justice system. It has eight
members and eight alternates representing judges, prosecutors, defense
attorneys and the public.

Wisconsin: After a high-profile exoneration, lawmakers created the
Criminal Justice Reform Package, which produced recommendations aimed at
minimizing factors in wrongful convictions, including preservation of
biological evidence.

Pennsylvania: In 2006, the state Senate approved an advisory committee for
wrongful prosecutions after nine DNA exonerations. The committee, with
about 30 members, is scheduled to make recommendations to the Senate by
2008.

Source: The Innocence Project

Innocence commission Under a bill sponsored by state Sens. Rodney Ellis
and Leticia Van de Putte in the last session, a Texas Innocence Commission
would be composed of 9 members:

2 gubernatorial appointees, one of whom must be the dean of a law school
and the other a law officer.

One appointee by the lieutenant governor, who may be a member of the
Legislature.

One appointee by the speaker of the House, possibly a member of the
Legislature.

A member of the judiciary appointed by the presiding judge of the Texas
Court of Criminal Appeals.

A forensic scientist picked by the Texas Forensic Science Commission.

A prosecutor named by the Texas District and County Attorneys Association.

A criminal-defense attorney picked by the Texas Criminal Defense Lawyers
Association.

An attorney with appellate experience representing one of the three
innocence projects at 3 state law schools.

[source: Senate Bill 263]

(source: Fort Worth Star Telegram)






FLORIDA:

Florida not ready to halt lethal injections


Florida will not temporarily halt lethal injections after the U.S. Supreme
Court agreed to hear a case from Kentucky challenging the punishment
Tuesday.

A spokesman for Gov. Charlie Crist Friday said the governor would "not
withhold signing" any death warrants after the highest court in the land
agreed to hear the Kentucky case.

"The governor is confident in the procedures and protocols in place in
Florida to ensure a humane and dignified death," said spokesman Anthony
DeLuise.

The statement comes as legal scholars try to determine what effect the
ruling in the U.S. Supreme Court case could have on what has become the
most widely-used method of execution in the United States.

In the Kentucky case, two inmates argued lethal injections could subject
the condemned to enormous amounts of pain if the incorrect dosage of
sedative was given, according to The Associated Press. The inmate might
not be able to let executioners know the mistake if the sedative renders
him or her unconscious. Allowing the possibility of that pain makes the
punishment cruel and unusual, the suit argues.

State officials might consider temporarily halting lethal injections
simply for appearances while the U.S. Supreme Court hears the Kentucky
case, said Christopher Slobogin, law professor at the University of
Florida Levin College of Law and chairman of the American Bar
Association's Florida Death Penalty Assessment Team. The state would not
have any liability if it executed inmates with what is ruled an
unconstitutional procedure after the fact.

"There's no lawsuit there (if the supreme court finds lethal injections
unconstitutional)," he said. "On the other hand, it doesn't look very good
because Florida knows the procedure is being challenged."

Judges in death penalty cases probably will shy away from death penalties
while the high court reviews the Kentucky case even without an official
moratorium, said Inverness criminal defesne attorney Charlie Vaughn.

"Even if Crist decides not to have a moratorium, some local judges will be
less likely to hand down death penalties," he said. "I think judges want
to be safe (while the Supreme Court decides)."

Vaughn, who's represented about 35 defendants facing death penalty cases
and is currently invovled in an Ocala death penalty case, said cases with
extreme circumstances or particularly horrible killings would probably
still be open for death penalty findings by judges and juries.

No states have officially held their lethal injection executions as a
result of the Supreme Court announcement, said Richard Dieter, executive
director of the Death Penalty Information Center, a non-profit death
penalty research firm in Washington, D.C. Alabama officials stayed a
lethal injection execution Thursday hours before an inmate was scheduled
to die, but said they needed to implement a new lethal injection formula
ordered by the governor the day before. The U.S. Supreme Court itself
stayed a Texas execution Thursday night citing the court's decision to
hear the Kentucky case. Several other moratoriums not based on the court's
decision to hear the case exist.

Former Florida Gov. Jeb Bush put a moratorium on lethal injection
executions in order to investigate their effectiveness after the state
took more than 34 minutes to execute death row inmate Angel Diaz by
injection in December 2006. Gov. Charlie Crist lifted that moratorium
earlier this year when he signed the death warrant for Mark Dean Schwab,
the next-scheduled Florida execution, slated for a Nov. 15 death.

Florida uses the same three drugs most states that perform lethal
injection executions use. States use different methods and doses of the
drugs in their executions, however, suggesting any ruling the Supreme
Court makes in the Kentucky case could apply only to that state's specific
standards, Slobogin said.

States tend to hold off on executions or any action if it's the subject of
a U.S. Supreme Court case, Dieter said. It would not be surprising to see
some states, for whatever reason, delay or completely stop lethal
injections to see what happens in Washington. Even if the ruling, whatever
the outcome, is specific to Kentucky, states might not want to take a
chance executing inmates while the method they employ is under scrutiny.
The stays in Texas and Alabama, though, suggest inklings the U.S. Supreme
Court's ruling could apply to more than just Kentucky.

"I think it will be much broader," Dieter said. "(The Texas stay) is an
indication this is a broad case."

A stay now wouldn't guarantee a stop to all Florida executions. The 384
death row inmates in the state have a choice between lethal injection and
electrocution, said Florida Department of Corrections spokeswoman Gretl
Plessinger. None of the 20 death row inmates executed since the state
legislature allowed lethal injection executions in 2000 have chosen the
electric chair.

(source: Daily Commercial)






NORTH CAROLINA:

Execution and the pain of it all


Maybe the French had it right: If we're going to execute people, just
trust gravity and a heavy blade to lop off their heads.

One thing's for sure -- no doctor would be called upon to determine
whether the wretch being decapitated was suffering more than an acceptable
level of pain. The guillotine being a slam-bang affair, such niceties
would be rather pointless, now wouldn't they?

In North Carolina, doctors should be so lucky. State law requires a
physician's presence during an execution, and a judge (the veteran Donald
Stephens of Wake County Superior Court) recently ruled that the law didn't
mean the physician could get by with just being a passive observer. No
need for him to be there lolling around the death chamber if his medical
expertise couldn't be put to use.

Put to use in what fashion? Well, there's the duty of ascertaining whether
the person being pumped full of paralyzing and heart-stopping chemicals
has in fact departed this life. Sounds fairly simple. But come to think of
it, what if the doctor finds a pulse? That would put our trusty doc in the
awkward position of signaling, "Zap him again!"

But the controversy of late hinges on that issue of pain. Stephens
concludes, not unreasonably, that the doctor attending an execution should
keep a lookout for signs of suffering.

There's bound to be some discomfort, to use the term favored around
doctors' offices, when they strap you down and poke holes in your arm with
the goal of putting out your lights forever. But lethal injection is not
supposed to turn into such an ordeal that it breaches the constitutional
rule against punishments that are cruel and unusual. In other words, the
infliction of death is supposed to be sufficient punishment in itself.
That's why we've moved away from execution methods that routinely set
people on fire or cause them to asphyxiate in agony.

There are underlying problems with the death penalty in any case when some
murderers -- maybe they had the money for a first-rate legal defense --
are sent off to serve life sentences while others await the needle. And
we've seen as well that the courts can make mistakes -- mistakes that
couldn't be remedied once a condemned inmate's life was taken.

Yet it's because of the pain question that we're now seeing executions
postponed across the country. North Carolina has been in a holding pattern
because its Medical Board, which sets ethical standards for doctors, says
that a doctor actually has no business doing anything to facilitate an
execution. The Council of State, headed by Governor Easley, is being asked
to reconsider its approval of an execution procedure that requires a
doctor to monitor the inmate's level of consciousness and be ready to
intervene if the ordeal could become torturous.

Dr. Philip Boysen, anesthesiology department chair at the UNC School of
Medicine, testified in a hearing that an inmate undergoing lethal
injection in North Carolina is at risk of chemically burned tissue and
conscious suffocation. Because the person would be paralyzed, he would not
be able to signal that he was hurting.

And a Cary veterinarian, Kevin Concannon, said he'd never use the required
3-drug cocktail to put down an animal. Too much risk of suffering. Yes, we
know that sick old Rover didn't kill anybody and deserves a merciful,
dignified death. But even a murderer being deprived of his life remains a
human being. If we don't treat him humanely, it drags us down to his
level.

Under the North Carolina scheme, a doctor would watch a brain-wave monitor
to ensure that the inmate was unconscious. But the state's monitor
shouldn't be used to make such a judgment without a doctor considering
other evidence, the machine's manufacturer says. And despite a federal
judge's order that the state could proceed with two executions only with a
doctor engaged in the process, the doctor who was on duty testified that
he didn't watch the monitor at all -- and wouldn't take any active role.

If this all amounts to a pluperfect legal mess, no wonder the U.S. Supreme
Court has become involved. It agreed last week to hear a case from
Kentucky in which 2 death row inmates argue that lethal injection as now
practiced can't get over the constitutional bar because it poses a risk of
unnecessary pain. Unnecessary, because other drugs would do the job more
or less pain-free.

The Council of State, which meets Tuesday, ought to be glad that the high
court has given it a good excuse to hold fire. Surely there's no need to
jump the gun by reaffirming an execution procedure that the justices will
soon review. The politicians on the council can be confident that the good
folks who run Central Prison won't let any death row inmates go wandering
off where we can't find 'em.

(source: News & Observer)






OHIO:

Until Ohio fixed flaws in justice system, capital punishment should stop
---- Ohio officials have a lot of flaws to fix in the justice system;
until they have done so, capital punishment should stop


Time out

This editorial page has long opposed capital punishment. As understandable
as the desire for punishment truly commensurate with the crime of murder
may be, we find it hypocritical for the state both to outlaw killing and
to engage in it. On a practical level, we know that our judicial system,
despite the best of intentions and efforts, is still capable of bias and
error - and in matters of life and death, there should be no room for
either.

In January 2003, after 13 flawed convictions were identified on death row
in Illinois and after a University of Maryland study found powerful
evidence of racial bias in sentencing there, we urged a moratorium on
executions in Ohio. How could Ohio blithely assume that its system was
foolproof after others had been shown so conclusively not to be?

A new American Bar Association study makes it clear - in nearly 500 pages
of detail - that Ohio has no cause to feel smug about how it imposes
capital punishment. This report by law professors, legislators, jurists
and attorneys describes a system whose death penalty draws far too much
from chance - where a crime is committed, the race of the victim, the
competence of defense counsel - than a just society should tolerate. It
suggests suspending executions while flaws are addressed.

At the very least, this study ought to seed important conversations and
much soul-searching among Ohioans and, especially, among everyone involved
in its criminal justice system. The executive director of the Ohio
Prosecuting Attorneys Association did his members a disservice when he
immediately brushed aside the task force and the ABA as too pro-defense.
Not to be too idealistic, but prosecutors, defense attorneys, judges and
Gov. Ted Strickland, who has the final say in death-penalty cases, ought
to share the same goal: justice.

To that end, the task force offers many common-sense suggestions: higher
standards for crime labs and medical examiners; preservation of all
biological evidence until a case has run its course; better training and
compensation for defense attorneys; videotaping of interrogations in
capital cases; new procedures to guard against eyewitness errors; more
ability for defendants to use post-conviction evidence.

Some counties already take some of these measures. They must become
universal. Sentencing needs to be more predictable and proportional around
the state. Why, as the report found, should a convicted killer in Hamilton
County be 6 times as likely to get a death warrant as one in Franklin
County? Why is the murderer of a white person almost 4 times more likely
to land on death row than the killer of a black person? If the state of
Ohio brings the case, shouldn't it act more uniformly?

Strickland, though reiterating his support for the death penalty, has
promised to study the report and to weigh its call for a moratorium. Chief
Justice Thomas Moyer and Attorney General Marc Dann, both of whom have
responsibilities in some of the problem areas, have also pledged a full
review. That's only right.

If Ohio must practice capital punishment, it has no room for error.

(source: Editorial. Cleveland Plain Dealer)

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

Death penalty process has too many flaws


I have imposed the death penalty. While this act changed who I am, I
wouldn't take it back. As a judge on the Hamilton County Court of Common
Pleas, my responsibility was to sentence a defendant to death if the facts
supported it and the law required it. And apart from the moral divide
separating me from my duties, there was no question the facts and the law
required it. So I joined the two other judges on the 3-judge panel (an
alternative to a jury the defendant can elect) and imposed the sentence.

The Enquirer recently reported the American Bar Association's findings
that Hamilton County led Ohio in the rate and quantity of death sentences
imposed. Did it come as a surprise? While during my almost 15 years on the
bench I tried a capital case about every 2 years, I have had colleagues in
other counties who served for decades without ever getting a capital case.

Apart from the real humanitarian concerns that arise in discussing the
death penalty, there are some critical reasons why we should rethink the
value of this tool in our community and look to other approaches.

First, the death penalty trial protocol itself is fundamentally flawed.
The trial has 2 parts: the trial phase (which everyone calls the "guilt"
phase as that is the foregone conclusion) and the penalty phase. If jurors
find a defendant has committed the offense and components that make it a
capital case, the same jury proceeds to the "penalty" phase.

However, only "death-qualified" jurors may serve on a capital jury. During
the jury selection process, apart from the usual niceties about where did
you go to school and do you know any of the witnesses, prosecutors and
judges grill jurors about their views of the death penalty. Unless a juror
states that he or she would impose the death penalty if called upon to do
so, that juror is excused. This includes people who are opposed to the
death penalty, as well as those who support it but who are unwilling to
impose it themselves. In short, only those who are pro-death penalty and
will personally trigger it can serve.

(. What do you think: Should Ohio suspend executions?)

EXCLUSIONARY, DISTORTED PROCESS

Regrettably, this process excludes many citizens who would do an impartial
and great job of determining guilt or innocence. It also tends to exclude
African-Americans, who disproportionately (in my experience) state when
questioned that they are unwilling to impose the death penalty. This
position is often founded on a view that black people disproportionately
receive the death penalty, which the ABA study confirmed is true if the
victim is white. As a consequence of death-qualifying a jury, important
and diverse perspectives suffer.

In addition to a distorted process, capital cases leach significant
resources from taxpayer dollars. These include protracted court
proceedings, jury summons and questioning, housing jurors, law
enforcement, prosecutorial and defense expenses and appeal costs. Couldn't
crime prevention and educating children better use these funds?

Further, the death penalty imbalances divide our community and undermine
trust in the process. This is a time when we have the opportunity to start
healing wounds, developing businesses and promoting tourism. Is being the
Death Penalty Capital of Ohio what we envision as our calling card?

LEGISLATIVE ALTERNATIVES

As long as voters in Ohio support the death penalty, we can move to
provide defendants, and citizens willing to serve on juries, a fair
playing field.

The law already allows for substituting in the 2nd phase alternate jurors
who did not deliberate; they are asked if they will accept the jury's
verdict of guilt and be able to move forward with the sentencing phase.

The Ohio General Assembly could change state law to allow jurors to sit on
a capital jury regardless of their views of the death penalty, but then
excuse them and substitute alternates before the penalty phase should they
be unable or unwilling to impose the death penalty if required to do so.

Second, the General Assembly could provide for an alternative penalty of
life without parole in addition to the death penalty in a capital case.
Right now, it is an option for jurors only if they find that the facts and
law do not support the death penalty, or do not agree.

My years on the bench and in neighborhoods taught me that we not simply a
"law and order" community. We are not blind to the texture and depth and
complexity of challenges. Let's start facing them together in a meaningful
way that resonates with our constitutional and democratic roots.

(source: Cincinnati Enquirer - Ann Marie Tracey is an assistant professor
of legal studies and ethics at Xavier University, and is a retired
Hamilton County Court of Common Pleas judge)

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

Bar calling for a temporary termination of death penalty ---- Report says
capital crimes defendants don't get adequate defenses; prosecutor
disagrees.


There are 184 inmates on death row at the Southern Ohio Correctional
Facility in Lucasville. Six of them are from Butler County. Donald
Ketterer stabbed to death an 85-year-old man. Michael Benge beat his
girlfriend to death. Von Davis killed his former girlfriend. Jose Trinidad
Loza killed four members of his girlfriend's family. Kenneth Smith killed
a Hamilton couple. Clifford Williams killed a 39-year-old Hamilton man.

Rhett Depew, who was sentenced to death for the murder of 3 members of an
Oxford family, had his sentence changed to life in prison. Madge Burton,
mother and grandmother of DePew's victims, has fought the court's
decision.

Also, Middletown defense attorney Chris Pagan will serve as the mitigation
specialist in Harvey "Shawn" Johnson's capital trial when it begins in
February. Johnson is accused of killing his girlfriend, Kiva Gazaway.

Last week, the American Bar Association called for a temporary halt to
executions until numerous standards developed by the association are met.

Among flaws outlined in a 500-page report are that defendants facing the
death penalty do not have adequate access to experts and investigators,
competent legal representation or appellate review of claims of errors.
Also, Ohio imposes the death penalty on people with severe mental
disabilities and there are racial and geographic disparities in who gets
sentenced to death.

ABA recommendations include requiring all biological evidence to be
preserved in all capital cases as long as the defendant is in prison,
requiring law enforcement to record all interrogations in homicide cases
from start to finish, implementing mandatory lineup procedures to protect
against inaccurate identifications, adopting attorney qualifications in
death penalty cases, conducting a state-sponsored study to look at
disparities in how the death penalty is applied and adopting a rule
against executing inmates with serious mental disorders.

While County Prosecutor Robin Piper balked at the notion that defendants
are not provided with qualified attorneys and that cases are not reviewed
with a microscope, Pagan agreed that the system is flawed.

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

Death penalty under review in Ohio----Bar association calls for temporary
halt on executions.


Few subjects stir up emotions like the capital punishment. Rightfully so,
the bottom line is death.

With 184 inmates waiting on death row at the Southern Ohio Correctional
Facility in Lucasville to pay the ultimate price for their murderous
crimes, the American Bar Association last week called for a temporary halt
to executions until numerous standards developed by the association are
met.

There has been no response yet from the governor's office or the supreme
court, other than the findings are under review.

Among flaws outlined in a 500-page report are that defendants facing the
death penalty don't have adequate access to experts, competent legal
representation or appellate review of claims of errors.

"This is just another group saying we don't like the death penalty so we
want you to think it's not fair," said Butler County Prosecutor Robin
Piper.

Piper said that, in Butler County, it's extremely difficult for a criminal
to get the death penalty. He said it is reserved for the "worst of the
worst" because "it's not taken lightly. We only seek the death penalty
when it's clear cut. Certain."

He noted capital cases are costly and a tremendous amount of work.

The prosecutor balked at the notion that defendants are not provided with
qualified attorneys and that cases are not reviewed with a microscope.

Piper pointed to the case of Rhett DePew, who was sentenced to death in
June 1985 for the murder of 3 people in Oxford.

While DePew was robbing his former landlord's home, he stabbed to death
the landlord's 27-year-old wife and 14-year-old daughter. Then he set
clothes in a closet on fire and burned down the house. His 3rd victim, the
landlord's 12-year-old sister-in-law, was stabbed 5 times but died of
burns and carbon monoxide poisoning.

DePew's death sentence held up through several state court appeals, but
was finally vacated in 2000 by U.S. District Court Judge Walter Rice, who
said prosecutor's comments in court during the sentencing phase of the
trial made it an unfair proceeding. DePew is now serving consecutive life
sentences.

'Now I will never experience closure'

Piper noted comments made by the late county prosecutor John Holcomb may
have stepped over the line, but certainly did not negate the weight of the
evidence presented that led the jury to recommend the death penalty.

"The court errored on the side of a murderer," Piper said.

Madge Burton, mother and grandmother to DePew's victims - Teresa Jones,
27; her daughter Aubrey, 7, and Jones' sister, Elizabeth Burton, 12 -
agreed with the prosecutor.

"I think the system we have right now for the death penalty works very
well - for the criminal, that is," said Burton, who founded Butler
County's Victim's United, a support and advocacy group for crime victims,
after the murder of her loved ones.

She said she is going on with her life but the loss of her daughters and
granddaughter is always with her.

"It's something you never get over. Now I will never experience closure in
this lifetime," Burton said. "I know people say he will meet his maker in
the end, but some people want to see it on earth."

Middletown defense attorney Chris Pagan, who is certified to defend those
facing the death penalty, said the current system is flawed.

Pagan kept Dean Geldrich off death row in 2006 after he was found guilty
of the beating and stabbing death of 28-year-old Miranda Lint in
Middletown. It was the 2nd time Geldrich had killed.

Donald Ketterer, also Pagan's client, is now on death row for the 2003
stabbing death of 85-year-old Lawrence Sanders.

Both men are mentally ill, Pagan said. One will live out his life behind
bars. The other could die by lethal injection. That's one of the biggest
problems with the system, Pagan said.

The death penalty should be suspended until the state determines that the
mentally ill can not be put to death for their crime, he said.

"Mental illness is something they can't help. They are not in control of
their actions," Pagan said. "The death penalty should be reserved for the
worst of the worst offenders."

As an attorney, the death penalty is part of the law, Pagan said. As a
citizen, he believes the death penalty system should be perfect before it
is implemented.

Can anything ever be perfect?

"No, but it should be perfect. This is the ultimate penalty we are dealing
with," Pagan said. He will serve as the mitigation specialist in the
Harvey "Shawn" Johnson capital trial when it begins in February.

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

8 area men on death row


There area currently 8 area men on death row:

Butler County

- Michael Benge, 46, of Hamilton, sentenced to death in June 1993 beating
death of his girlfriend whose body was found in the Great Miami River. She
had been beaten with a metal pipe and tied to a 35-pound piece of
concrete. When first questioned, Benge said he and the victim had been
accosted by 2 unknown men who attempted to rob the victim of her ATM card.
But Benge later said he beat his girlfriend with a pipe after they got
into an argument over his use of cocaine.

- Von Davis, 60, sentenced to death twice for shooting and killing his
former girlfriend, 27-year-old Suzette Butler, in December 1983, outside
the American Legion Post 520 in Hamilton. He shot Butler in the head at
close range and continued to shoot her after she fell to the ground. He
was on parole at the time after being convicted for murdering his wife.

- Donald Ketterer, 58, of Hamilton, convicted in February 2003 of the
stabbing death of 85-year-old Lawrence Sanders. Ketterer struck Sanders in
the head several times with a cast-iron skillet, then repeatedly stabbed
him in the chest and neck with scissors and other kitchen utensils after
Sanders was unable to loan Ketterer money for some pending court fines. He
also stole Sanders' car, old coins and other possessions.

- Jose Trinidad Loza, 35, a native of Mexico, sentenced to be executed for
the 1991 shooting and killing of four members of his girlfriend's family
in Middletown. Loza was convicted of shooting them in the head while they
slept and sentenced in November 1991. One of his girlfriend's sisters was
six months pregnant at the time.

- Kenneth Smith, 41, sentenced to death in February 1996, for the murder
of a couple, Lewis and Ruth Ray, in their Hamilton home during a robbery.
Smith later admitted to a friend that he had killed the man and that his
brother Randy had killed the woman.

- Clifford Williams, 34, sentenced to death in February 1991 for the
shooting death of 39-year-old Wayman Hamilton in downtown Hamilton.
Williams shot Hamilton in the forehead and stole his money. 3 days later,
Williams robbed and shot another man, who has picked up Williams while he
was hitchhiking, but he man survived.

Warren County

- James Hanna, 58, was sentenced to death in November 1998 for killing his
cellmate at Lebanon Correctional Institution. Peter Copas, 43, died 3
weeks after Hanna thrust a sharpened wooden paintbrush handle into his
eye.

Hanna also beat Copas with a lock stuffed into a sock. At the time of the
killing, Hanna was serving 2 life sentences for a 1977 murder during an
armed robbery in Lucas County.

Preble County

Dennis McGuire, 47, sentenced to death in December 1994 for the February
1989 death of a pregnant woman, 22-year-old Joy Stewart, in a wooded area
near Bantas Creek. McGuire raped Stewart, choked her and stabbed her in
the neck and shoulder. While in jail for an unrelated kidnapping charge,
McGuire attempted to bargain with police by implicating his relative as
the rapist-murderer, but police suspected McGuire because he knew
significant facts that were not disclosed to the public. DNA testing,
conducted in 1992 and again in 2002 during federal appeals, identified
McGuire as the source of body fluid found on Stewart's body.

[sources: Ohio Department of Rehabilitation and Correction, Ohio Attorney
General's Office and Cox News Service]

(source for all above: Middletown Journal)

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

Death penalty process has too many flaws


I have imposed the death penalty. While this act changed who I am, I
wouldn't take it back. As a judge on the Hamilton County Court of Common
Pleas, my responsibility was to sentence a defendant to death if the facts
supported it and the law required it. And apart from the moral divide
separating me from my duties, there was no question the facts and the law
required it. So I joined the two other judges on the 3-judge panel (an
alternative to a jury the defendant can elect) and imposed the sentence.

The Enquirer recently reported the American Bar Association's findings
that Hamilton County led Ohio in the rate and quantity of death sentences
imposed. Did it come as a surprise? While during my almost 15 years on the
bench I tried a capital case about every 2 years, I have had colleagues in
other counties who served for decades without ever getting a capital case.

Apart from the real humanitarian concerns that arise in discussing the
death penalty, there are some critical reasons why we should rethink the
value of this tool in our community and look to other approaches.

First, the death penalty trial protocol itself is fundamentally flawed.
The trial has two parts: the trial phase (which everyone calls the "guilt"
phase as that is the foregone conclusion) and the penalty phase. If jurors
find a defendant has committed the offense and components that make it a
capital case, the same jury proceeds to the "penalty" phase.

However, only "death-qualified" jurors may serve on a capital jury. During
the jury selection process, apart from the usual niceties about where did
you go to school and do you know any of the witnesses, prosecutors and
judges grill jurors about their views of the death penalty. Unless a juror
states that he or she would impose the death penalty if called upon to do
so, that juror is excused. This includes people who are opposed to the
death penalty, as well as those who support it but who are unwilling to
impose it themselves. In short, only those who are pro-death penalty and
will personally trigger it can serve.

EXCLUSIONARY, DISTORTED PROCESS

Regrettably, this process excludes many citizens who would do an impartial
and great job of determining guilt or innocence. It also tends to exclude
African-Americans, who disproportionately (in my experience) state when
questioned that they are unwilling to impose the death penalty. This
position is often founded on a view that black people disproportionately
receive the death penalty, which the ABA study confirmed is true if the
victim is white. As a consequence of death-qualifying a jury, important
and diverse perspectives suffer.

In addition to a distorted process, capital cases leach significant
resources from taxpayer dollars. These include protracted court
proceedings, jury summons and questioning, housing jurors, law
enforcement, prosecutorial and defense expenses and appeal costs. Couldn't
crime prevention and educating children better use these funds?

Further, the death penalty imbalances divide our community and undermine
trust in the process. This is a time when we have the opportunity to start
healing wounds, developing businesses and promoting tourism. Is being the
Death Penalty Capital of Ohio what we envision as our calling card?

LEGISLATIVE ALTERNATIVES

As long as voters in Ohio support the death penalty, we can move to
provide defendants, and citizens willing to serve on juries, a fair
playing field. The law already allows for substituting in the second phase
alternate jurors who did not deliberate; they are asked if they will
accept the jury's verdict of guilt and be able to move forward with the
sentencing phase.

The Ohio General Assembly could change state law to allow jurors to sit on
a capital jury regardless of their views of the death penalty, but then
excuse them and substitute alternates before the penalty phase should they
be unable or unwilling to impose the death penalty if required to do so.

Second, the General Assembly could provide for an alternative penalty of
life without parole in addition to the death penalty in a capital case.
Right now, it is an option for jurors only if they find that the facts and
law do not support the death penalty, or do not agree.

My years on the bench and in neighborhoods taught me that we not simply a
"law and order" community. We are not blind to the texture and depth and
complexity of challenges. Let's start facing them together in a meaningful
way that resonates with our constitutional and democratic roots.

(source: Editorial, Cincinnati Enquirer--Ann Marie Tracey is an assistant
professor of legal studies and ethics at Xavier University, and is a
retired Hamilton County Court of Common Pleas judge)