[Deathpenalty] death penalty news----TENN., CALIF., OKLA., WASH., VA.

[Rick Halperin]

Sept. 28



TENNESSEE:

Electric chair as backup debated----Can choosers of lethal injection be
electrocuted?


A federal judge's recent ruling that Tennessee's lethal injection
procedures are unconstitutional indefinitely delayed all forthcoming
executions in this state.

But then came the opinion of Tennessee Supreme Court Justice William C.
Koch Jr., who raised the issue of whether the law allows the state to
proceed with executions using the electric chair.

Now, legal experts are trying to sort it all out.

Wally Kirby, executive director of the Tennessee District Attorneys
General Conference, said that when U.S. District Judge Aleta A. Trauger
ruled Tennessee's lethal injection protocol unconstitutional - in effect
temporarily sparing the life of convicted killer Edward J. Harbison - the
state should have proceeded with executing Harbison in the electric chair.

State law allows inmates to choose their method of execution - lethal
injection or the electric chair - if they committed their crimes before
1999.

Kirby and others argue that the law allows for electrocution in the event
that lethal injection is deemed unconstitutional, not just when an inmate
chooses the chair.

Koch's opinion surfaced when the state Supreme Court issued a routine
order rescheduling Harbison's September execution.

After Trauger's ruling, the state asked the Tennessee Supreme Court to
reset Harbison's execution date.

State officials asked for the delay, arguing there would not be enough
time to resolve Trauger's concerns. The Supreme Court agreed and reset the
execution for January.

That's when Koch issued a dissent stating that electrocution was an
option.

Court documents show that Harbison and his lawyers were afraid the state
would try to electrocute him. They filed a motion in federal court last
week asking for a stay of execution, claming that one of the guards at
Riverbend Maximum Security Institution "told (Harbison) the prison was
preparing his execution by electrocution."

The documents also say a deputy warden told an investigator that Harbison
would be moved to death watch.

"In the Harbison case, we did not believe electrocution was an option,"
said Dorinda Carter, a spokeswoman for the Tennessee Department of
Correction.

She would not say whether the electric chair would be used in the future
if lethal injection is not an option. "From this point forward, everything
is still under review," Carter said.

State lawyers did not ask for Harbison to be electrocuted.

"The state believes the electric chair was not a legal option in that
case," said Bob Corney, a spokesman for Gov. Phil Bredesen. "The law
allows substitution in very limited cases, and this is not one of them."

Corney could not say whether the state would be able to substitute the
chair in future cases.

But lawyers representing the condemned say that using the electric chair
on inmates who don't choose it is illegal.

"No, the statute does not permit an inmate to be electrocuted by the
electric chair unless the inmate specifically chooses that as the method
of execution," said Kelley Henry, an assistant federal public defender.

Other defense attorneys say that lethal injection itself, and not just the
procedures for the method, has to be declared unconstitutional to
substitute the chair. Trauger did not rule lethal injection, itself,
unconstitutional.

Since Trauger's decision, the U.S. Supreme Court has agreed to decide
whether lethal injection is cruel and inhuman punishment in 2 Kentucky
cases. Legal experts believe that could delay lethal injections in all 37
states that use it until the high court rules.

(source: The Tennessean)

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

Dr. Toolsie Has Another Autopsy Questioned


Another heinous child death case is under review and again Doctor Ron
Toolsie's autopsy falls under the spotlight. This time it's the death
penalty case of Gussie Vann, convicted of killing and raping his 8 year
old daughter in McMinn County, Tennessee 15 years ago.

Earlier this week Vann's post conviction attorney had a doctor testify
that Dr. Toolsie's autopsy was poorly done. The jury took only TWO days to
convict Vann in this death penalty case back in 1994 but his new attorney
says they did not hear critical evidence.

The jury found Vann raped his 8 year old daughter Necia and killed her
during the act. Dr. Ron Toolsie's autopsy found Vann died from
strangulation and had been severely sexually abused. Prosecutors also
showed the jury a noose, one they believed was used to kill the little
girl. This case happened in McMinn County and Steve Bebb was judge at the
time. He now serves as district attorney there. To avoid any conflict of
interest, Hamilton County prosecutor Jerry Sloan has taken over.

Sloan said, "I don't want to retry the case. I think it'll be affirmed by
this judge as well, so I don't anticipate it having to be retried."

But Vann's post conviction attorney says Toolsie's autopsy is greatly
flawed. The Knox County deputy chief medical examiner testified she saw no
signs of sexual abuse before Necia Vann's death.

We talked by phone with former Judge Bebb, who has recused himself from
this case. But he says if anyone saw the evidence and the injury Necia
Vann suffered to her anus, it would have been more than enough for a
conviction.

The state's medical expert agreed in this week's hearing, but the doctor
testifying on behalf of Vann said post mortem swabs came back negative for
semen and condom fluid.

That same doctor testified semen found on the girl's bed shouldn't have
been evidence because it was discovered 2 weeks later.

In addition, Vann's new attorney says the jury never heard about his 69 IQ
back in the 2nd grade. His new attorney believes he's mentally retarded
and by law can't be executed.

The new prosecutor in this heinous case says if a new trial happens, he
expects the same outcome.

Sloan said, "In looking through all the evidence that I'm aware of, I
think it is a case that can be retried and I think we would reach the same
result."

Gussie Vann's been denied three times on appeal. As for Dr. Toolsie, he
says the photographs speak for themselves of the sexual abuse Necia Vann
suffered. We checked into his license and it remains active, but he is no
longer the medical examiner in McMinn or Bradley Counties. Calvin, the
state's chief medical examiner sharply criticized Toolsie's autopsy of
Angel Delaschmitt. Dr. Bruce Levy said that girl drowned and had no signs
of beating or sexual abuse as Toolsie found.

(source: WTVC News)

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

Convicted killer gets 3rd trial


A Giles County man twice convicted of beating, dismembering and burning a
fellow worker has been granted a 3rd trial, Judge Jim T. Hamilton said
Wednesday.

Attorneys for Kenneth Patterson "Pat" Bondurant requested the new trial
claiming portions of the transcript were incomplete. He was charged with
the 1986 murder of Ronnie Gaines, a fellow employee of Pulaski Rubber
Company.

An investigation ordered by the court revealed portions of jury selection
and testimony of an agent of the Tennessee Bureau of Investigation were
not on the transcript of the second trial conducted in 2004.

"The record is incomplete and inaccurate, thereby depriving him
(Bondurant) of the heightened due process that is afforded to death
penalty cases," according to Hamilton's record.

Bondurant was convicted for the first time in 1991 and sentenced to death
for fatally beating Gaines with a rocking chair. According to court
documents, Bondurant believed Gaines was stealing a Social Security check
from his disabled son.

Bondurant, and his twin brother Hugh Peter "Pete" Bondurant, took Gaines
body from Giles County to West Point where it was dismembered and burned.

The crime was undetected for years, until Pat Bondurant's wife, Denise,
told the story to an assistant district attorney.

The 2nd trial was ordered after the Tennessee Supreme Court determined
there had been mistakes in jury selection and the jury was not
sequestered.

Bondurant and his brother were convicted of second-degree murder in the
beating and shooting death of Gwen Dugger, last seen alive in 1986. Her
body has never been found.

Pete Bondurant was convicted of the murder of Terry Lynn Clark, who lived
in the same house as Dugger. He was sentenced to a 15-year term in state
prison.

Hamilton said a court date for the next trial has not been set, but he
said the trial could begin within the next 3 months. He said the trial
will be conducted again in Columbia.

"Regardless of how people may feel, this man has a constitutional right to
a trial and a right to have a complete record of that trial," Hamilton
said.

(source: Columbia Daily Herald)






CALIFORNIA:

San Jose judge seeks more information on lethal injection review


A San Jose federal judge considering the legal challenge to California's
lethal injection method has asked the lawyers in the case to brief him on
the implications of the U.S. Supreme Court's decision this week to review
a similar case out of Kentucky.

In a 3-page order filed Thursday, U.S. District Judge Jeremy Fogel said
the Supreme Court's ultimate ruling on the lethal injection issue "is
likely to affect this court's legal analysis and conclusions."

Fogel ordered the state attorney general's office and lawyers for death
row inmate Michael Morales to file briefs by next Monday assessing the
Supreme Court's action, including whether it should postpone a planned
evidentiary hearing in the California case now scheduled for December.

Fogel has been considering Morales' challenge to California's lethal
injection procedures since last year, effectively putting a halt to
executions on the state's death row. Morales was on the brink of execution
in February 2006 for the 1981 rape and murder of a 17-year-old Lodi girl
when Fogel gave him a reprieve in deciding to explore the lethal injection
issue.

With similar challenges cropping up around the country, the Supreme Court
this week decided to tackle the issue head-on, accepting review of a
lethal injection case brought by two Kentucky death row inmates.

(source: Mercury News)

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

MTC wants hold on new San Quentin death row


Assemblyman Jared Huffman's bill to halt construction of a new death row
at San Quentin State Prison until the state completes an independent
review of alternatives has won backing from the Metropolitan
Transportation Commission.

The commission Wednesday endorsed Huffman's legislation, AB 1743, which it
says could set the stage for transit-oriented development on the west side
of the prison.

Huffman's bill is on Gov. Arnold Schwarzenegger's desk.

It calls for a state study, which would be completed by the end of May, to
consider building the new death row at another site at San Quentin or
moving condemned inmates to other prisons.

The state's plans to build a new death row to relieve overcrowding and
improve security have come under criticism since the cost of the project
reached $337 million, a 53 % increase from the original price tag, even
after it was scaled back to 768 cells.

(source: Marin Independent Journal)






OKLHOMA:

Ready, aim...: Death penalty challenge could backfire


Nice to know we have a backup - not that Oklahomans would relish executing
killers with a firing squad instead of lethal injection. Yet that's
possible if the U.S. Supreme Court sides with men who've committed murder
but don't want to die themselves. The court has agreed to hear a Kentucky
case in which two killers claim lethal injection is cruel and unusual
punishment and therefore unconstitutional.

A procedure that's used thousands of times a year to "humanely" put aged
pets to death is cruel and unusual? The more "humane" we make executions,
the more opponents of the death penalty find ways to extend an argument to
absurd lengths. Torturing a killer for hours until he dies is cruel.
Lethal injection is not.

Yet the court may disagree and clear the way for what we think is
inevitable - the end of capital punishment within the next decade or so.
Public support for executions rises and falls according to whether a
high-profile crime is in the news. Support for executions by firing squad
would likely not be strong even in a state that ranks 3rd for the number
of executions since 1976, when the high court restored the death penalty
after a long hiatus.

Times change and public sentiment varies. Executions in Oklahoma were once
carried out in the electric chair, yet the "cruel and unusual" chant was
seldom heard. The chair gave way to the needle and most Oklahomans are
satisfied that how a killer is executed is less important than whether
he's executed.

Aside from inmates challenging lethal injections for obviously selfish
reasons, legal roadblocks to capital punishment are thrown up by groups
that have no interest in how a man is executed. Their agenda is to
eliminate the death penalty.

In Oklahoma, the result of this legal challenge could be - at least
temporarily - a return to a more primitive, "crueler" method of killing
killers.

(source: Editorial, Oklahoman)






WASHINGTON:

Yates death sentence upheld


In Olympia, by an 8-1 vote, Washington's highest court this morning upheld
the Pierce County death sentence of Spokane serial killer Robert Lee Yates
Jr.

"Finding no reversible error in the guilt or penalty phases, we affirm the
judgment and sentence of the trial court," Justice Susan Owens wrote for
the majority.

The sole dissenter was Justice Richard Sanders, who wrote that he "cannot
uphold a death sentence resulting from a trial riddled with constitutional
error."

Yates was convicted in 2002 of killing Melinda Mercer and Connie Ellis in
Pierce County and sentenced to die. The case was on top of Yates'
admission to Spokane prosecutor Steve Tucker that Yates had killed 13
other people around the state, 10 of them in Spokane County.

Much of Yates' appeal revolved around a controversial plea deal he made
with Spokane County Prosecutor Steve Tucker in 2000. Tucker agreed not to
seek the death penalty for those killings in exchange for Yates'
confession and cooperation with police. In Spokane, the factory worker and
former military helicopter pilot was sentenced to 408 years in prison.

Yates' attorneys, however, argued that he thought he was negotiating with
Tucker for a deal on all his killings across the state. That's certainly
what Tucker thought, at least initially.

No way, said then-Pierce County prosecutor John Ladenburg, who charged,
tried and got a death sentence for Yates.

Tucker and Ladenburg have said for years that there was a misunderstanding
about who had authority to negotiate the case for individual counties.

Regardless, Yates revealed his involvement in killings in Walla Walla and
Skagit counties during those Spokane plea negotiations. And those killing
- although never prosecuted - were highlighted to the Pierce County jury
during its death-sentence deliberations.

Once Yates had revealed his involvement to investigators, there was no way
to take it back, attorney Gregory Link told the Supreme Court at oral
arguments in November.

"That train had left the station and it was never coming back."

Yates' attorneys also argued that it's flatly unfair that a person can get
life without parole in one county for 13 killings and death in another
county for 2.

"You look at 2 versus 13," Yates attorney Thomas Kummerow told the high
court in November. "The same crimes.That's disproportionate on its face."

Kummerow also repeatedly pointed to the case of the Green River Killer,
Gary Ridgway, who pleaded guilty in King County in 2003 to killing 48
women and girls.

"Both of them had minor criminal history, stable employment.Mr. Ridgway
married 3 times, Mr. Yates married twice. They had children. And at some
point they started killing prostitutes. And they killed a lot of them. But
Ridgway: life without. Mr. Yates: death. You just cannot separate the 2
apart," Kummerow said.

Neither of those arguments, however, was a factor in the sole dissenting
justice's opinon today.

Justice Sanders said the trial wrongly excluded a juror who had expressed
personal reservations about the death penalty. Prosecutors also failed to
prove a link between the 2 Pierce County murders - a critical point
because the death sentence required that the crimes be part of "a common
plan or scheme."

The case has been closely watched by both death-penalty foes and relatives
of the victims. At her ranch near Centralia Wednesday night, Mercer's
mother, Karyl Bushell, said she didn't want to comment until she'd read
the court's decision today. But she pointed to a tattoo she'd recently
gotten on her leg.

"Melinda," it reads.

(source: Spokesman Review)






VIRGINIA:

The state can wait to exact its blood


Virginia needs to act humanely and stay executions until the Supreme Court
rules whether lethal injections are cruel.

The U.S. Supreme Court agreed Tuesday to decide if lethal injections are
cruel and unusual punishment. Hours later, Texas executed an inmate.
Virginia should not treat this court review so cavalierly.

The commonwealth's next execution is scheduled for October, long before
the court will rule on whether the three-drug cocktail -- that sedates,
paralyzes and then stops the heart -- can cause the condemned to suffer
excruciating pain. Attorneys for Christopher Scott Emmett (who used a
brass lamp to bludgeon a co-worker to death in Danville) plan to ask Gov.
Tim Kaine to delay the execution.

Kaine should grant this request and refuse to allow any other executions
to go forward until the court rules.

True, the governor's critics will assail him; they warned Virginians
during the gubernatorial campaign that Kaine's Catholicism would cause him
to block executions.

That hasn't proved so. Kaine has held to his vow to uphold Virginia law,
and the commonwealth still straps the condemned to gurneys and pumps them
full of a cocktail that even veterinarians stopped using. This, despite a
growing number of states halting lethal injections out of concerns that
prisoners awaken mid-execution to experience what a group of scientists
liken to suffocating slowly while on fire.

The court may hold that this isn't cruel, given that the Constitution was
written during the days of public hangings and firing squads. Then again,
a majority might find that this particular mix of drugs and the way it is
administered violate our evolving society's definition of cruelty.

In the meantime, out of a sense of decency, Virginia should delay any
executions because the justices, in taking up the case, regrettably didn't
automatically stay executions nationwide.

Death-penalty advocates might balk, but they can rest easy knowing the
court won't be outlawing capital punishment. The most the court will do is
require states to find more humane methods. Ironically, states turned to
lethal injection, once the court in 1976 again permitted the death
penalty, because it seemed kinder than electrocuting people or using the
gas chamber.

If the court rules lethal injections unconstitutional, Virginia has a
backup plan. Unlike most other death-penalty states that found the
electric chair barbaric, Virginia dusted one off last summer for Brandon
Wayne Hedrick when he decided it was less cruel than the needle.

Many Virginians recoiled in horror at Hedrick's choice. Imagine, he could
have been right.

(source: Editorial, Roanoke Times)