[Deathpenalty] death penalty news----OHIO, OKLA., KY., CALIF.
rhalperi at mail.smu.edu
Thu Dec 11 17:18:07 CST 2008
Convicted killer Diar to receive new sentence
The Ohio Supreme Court on Wednesday overturned the death sentence of
Nicole Diar but upheld her 2005 conviction on aggravated murder and other
charges for killing her 4-year-old son and then setting her Lorain home
ablaze to cover up the crime.
The Supreme Court ordered a new sentencing hearing for Diar, 33, who has
been on death row since a jury recommended the death sentence to
now-deceased county Common Pleas Judge Kosma Glavas, who sentenced her to
In its ruling, the Supreme Court said that Glavas erred when he failed to
issue what's known as the "solitary juror" instruction to jurors before
they began deliberating on Diars sentence.
Such an instruction, which Diars trial attorney, Jack Bradley, had asked
for, would have effectively told jurors that any one of them could have
stopped the death penalty from being imposed and forced their fellow
jurors to consider a life sentence instead.
Diar's mother, Marilyn Diar, said she was "elated" by the decision.
"We just pray that the right thing is done this time," she said.
One of the original jurors in Diar's case, who asked that her name not be
used, said thats exactly what she and her fellow jurors did.
"Honestly, I think we made the right decision," she said.
Diar, who was burned when she was 4 when her nightgown caught fire,
repeatedly denied that she had anything to do the death of her son, Jacob,
which occurred in 2003.
"I didn't kill my son. I couldn't show remorse for something I didn't do,"
she told Glavas during the sentencing hearing. "I can handle sitting in
prison for something I did, but I didnt do this."
Marilyn Diar said she and her family will continue to fight to clear her
"We've held true that she was innocent," Marilyn Diar said. "She's never
wavered, and neither have we."
Lorain County Prosecutor Dennis Will said his office conceded during the
arguments before the Ohio Supreme Court that Glavas made a mistake, a
decision that prosecutors in the case asked him to make.
Will said at the time that the law had recently changed and prosecutors
didn't believe the "solitary juror" instruction was proper.
Diars attorneys from the Ohio Public Defender's Office, which did not
return calls seeking comment, had also had argued that Diar's conviction
should be overturned on numerous grounds, including prosecutorial
misconduct, and that Bradley hadn't done a good enough job defending her.
The Supreme Court rejected those arguments and didn't rule on others.
Bradley said he still believes Diar is innocent and should be spared
"I hate to see anybody be on death row, especially in a case where there
was not absolute evidence of her guilt," he said.
Will said he will push for death again based on "the circumstances of the
crime, the method of death and the age of the victim."
Will said his office hasn't figured out exactly how a new sentencing
hearing will be conducted, but he doubts the original jury will be
recalled. Will said he believes a new jury will have to be picked and it
will recommend a sentence for Diar.
That will be a lengthy process, he said.
(source: The Chronicle-Telegram)
Execution rate slows to lowest in a decade
The number of inmates put to death in Oklahoma in 2008 reached its lowest
level in more than a decade, with just 2 convicted killers receiving a
lethal injection at the Oklahoma State Penitentiary in McAlester.
That was the fewest number of executions in Oklahoma since 1997, when just
one inmate was put to death.
But death penalty experts say the dip in executions in Oklahoma had little
to do with a de facto moratorium on the death penalty issued earlier this
year while the U.S. Supreme Court considered the constitutionality of
Rather, it's more the cyclical nature of when death sentences are handed
down and when inmates finally exhaust the lengthy appeals process in
"We'd like to think the numbers are down, but its really hard to say,"
said Jim Rowan, a veteran capital defense lawyer in Oklahoma City and the
chairman of the Oklahoma Coalition to Abolish the Death Penalty. "The
people they execute were convicted 10 or 15 years ago, so its really hard
to measure trends."
Other factors, like the option of life-without-parole sentences and a ban
on executing offenders with mental retardation, also have likely
contributed to fewer people being sent to death row.
Nationally, executions dropped to a 14-year low of 37 in 2008 and almost
half of those were in the busiest death penalty state, Texas, according to
the Death Penalty Information Center.
But data on first-degree murder convictions in Oklahoma that resulted in
the death penalty shows an increase in 2008, with 11 killers sentenced to
death across the state, according to the Oklahoma Indigent Defense System.
Although OIDS did not have death penalty sentencing figures from previous
years, the Department of Corrections showed there were 13 convicted
killers on death row who were sentenced from 2005 to 2007.
Ultimately, Rowan said, he expects the number of executions carried out in
Oklahoma to hold steady at about 2 or 3 each year, although he said those
numbers likely will fluctuate. He also said prosecutors in the state seem
to be taking a more reasoned approach in determining which death penalty
cases to pursue given the tremendous cost and manpower involved.
"Every time the prosecutor wins a death penalty case, the taxpayer loses
because of the amount of money it takes," Rowan said. "I think there's
just a general realization that the death penalty has limited
applicability and is no longer being used for every case that fits the
District Attorney Richard Smothermon, the past-president of Oklahoma's
District Attorneys Council, acknowledges pursuing a death penalty case is
more expensive and takes a tremendous amount of resources, but he said
that shouldnt be a deciding factor in whether to pursue a case.
"You're talking about someone's life," Smothermon said. "I don't think
costs should be a deciding factor.
Smothermon, who has sought the death penalty twice during his 6-year
tenure as the top prosecutor in Pottawatomie and Lincoln counties, said he
first decides if a case meets the statutory criteria for the death
penalty. Then, he said he meets with the victim's family and reviews the
defense's mitigating evidence.
(source: Joplin Globe)
Death penalty possible sentence for accused clothier killers
1 of 2 defendants charged in this summer's deadly robbery of a Radcliff
clothier was notified Tuesday morning he could face lethal injection if
convicted as charged in the crime.
Notice of the death penalty among sentencing options for Jermaine Lamarl
Kirkland and Jamah Deonta Harris in the July 21 robbery and shooting death
of Now Fashions' owner Charles H. Dole was filed Dec. 1 by prosecutors.
Kirkland, 20, was informed Tuesday morning of the "death notice,"
according to his attorney, Hardin County Department for Public Advocacy's
Harris, also 20, is represented by Louisville attorney Charles C. Hagan
Jr., who would not discuss any notifications given to his client.
The pair is charged with fatally shooting Dole, 56, while robbing the
store of its cash register.
In an August e-mail to The News-Enterprise, Hagan said the stores cash box
was found in "woods" near Vine Grove, while the rifle thought to be used
in the shooting was found "in Knoxville with Mr. Kirkland."
In an August District Court hearing, Radcliff detective Tucker Raifsnider
said Doles fatal chest shot came from the Chinese-made 7.62 caliber SKS
rifle found inside a Knoxville residence.
Raifsnider's testimony also revealed that Harris and Kirkland were seen
together on gas station surveillance video fueling a stolen vehicle sought
by police after the crime.
Both were arrested in Tennessee without incident and returned to Hardin
County within a week of the crime.
They were also indicted for crimes relating to an attempted nighttime
burglary of the store about a week before Dole's killing.
If convicted as charged, Harris and Kirkland would have to serve no less
than 20 years imprisonment.
Dole family members reopened the North Wilson Road clothing store in late
Along with the cases against Harris and Kirkland, the death penalty is
being considered a potential sentence for Brent Burke, a Fort Campbell
military police officer charged with the Sept. 11, 2007 shooting deaths of
two Rineyville women one of whom was Burkes estranged wife.
As with the case against the men accused of killing Dole, Burke is being
prosecuted by Commonwealth's Attorney Chris Shaw's office.
Special prosecutors working the 1991 kidnapping case against Michael Dale
St. Clair are seeking the death penalty for the already convicted killer.
If convicted and sentenced to death for Bardstown resident Frank Bradys
kidnapping, it will be St. Clair's 2nd death sentence. He was convicted of
Brady's murder in Bullitt County twice one being a re-trial after
mistakes were made during prosecution.
(source: The News-Enterprise)
Mistrial ends sentencing of LB murderer; COURT: Jury deadlocks at 11-1 in
favor of death; twice-convicted killer Santiago Martinez Jr. will face a
new penalty phase.
A jury tasked with deciding whether a twice-convicted murderer who slashed
2 Long Beach women to death should live or die became hopelessly
deadlocked, resulting in a mistrial on Wednesday.
The jury voted 11-to-1 in favor of death for Santiago Martinez Jr. of Long
Beach, prompting the prosecution to ask for a new penalty phase trial,
which was scheduled for Feb. 9.
"Both sides had the best possible jury to go either for life or death,"
said one juror, who spoke on condition of anonymity.
"It finally came down to the instructions we were given," another juror
"And if we had had a completely (unbiased) jury we would have voted
(unanimously) for death," the first juror said.
Martinez, 27, was 1st convicted in 2005 of killing Christina Wilkerson,
28, of Long Beach on March 18, 2003. Wilkerson was stabbed 20 times in the
face, neck and body, then shot at point-blank range with a .22 rifle. For
that crime, Martinez was sentenced to more than 50 years to life in
The accused was convicted three weeks ago for the slaying of Myra Orozco,
24. Orozco refused to help the defendant dispose of Wilkerson's remains
and was stabbed and slashed close to 30 times in the face, neck and body
before she was run over on March 30, 2003.
The same jury tasked with deciding his fate of life in prison or death
found him guilty of first-degree murder for her death, as well as the
special circumstance that he had previously been convicted of murder and
is eligible for the death penalty.
In a lengthy penalty phase trial, which occurred over 2 weeks, jurors
heard witnesses for both the prosecution and defense.
Deputy District Attorney Pat Connolly called the grieving relatives of
A slate of sheriff's deputies who said he had attacked fellow inmates and
staff while in jail also testified, in addition to a man who testified
Martinez sexually assaulted him when they were teens in the California
Jurors learned Martinez's criminal history began at the age of 11, when he
was arrested for armed robbery.
Defense attorneys William Ringgold and Chris Ayers called Martinez's
family to bolster their argument that while the crimes were deplorable,
Martinez shows some capacity for good if allowed to live in prison with no
hope of parole.
They also called a court-certified neuropsychologist who testified that
the defendant appears to suffer from intermittent explosive disorder, has
a below-average IQ, is profoundly depressed with elements of psychosis and
shows characteristics of multiple personality disorder and post-traumatic
Michael Perrotti said he based his opinion on the defendant's various
criminal and incarceration records and the time he spent interviewing,
observing and testing Martinez.
Connolly grilled Perrotti about his findings, asking exactly how much time
he spent evaluating Martinez and how heavily Perrotti relied on selected
sections of Martinez's criminal history, and on what the defendant had
claimed happened in his life - such as a head injury when he was allegedly
hit by a car as a boy - but for which there was no evidence.
Connolly told the jury Perrotti's findings, testimony and roughly $9,000
fee were "a joke."
He noted portions of probation reports and a psychiatrist's review, which
Perrotti did not use, that deemed Martinez a sophisticated criminal and a
He also lashed out at the defendant, branding him a coward who preyed on
"I hesitate to use the word human because to be honest he really doesn't
deserve it," Connolly said.
The defense accused the prosecutor of using hot-button words and images to
send the jurors into a "stampede of frenzy" for vengeance.
Ayers and Ringgold both said the murders were not premeditated; rather,
they were the acts of someone insane.
Ayers reasoned that while the crimes Martinez had been convicted for were
heinous, they are not as serious as other crimes and not deserving of the
Ringgold focused heavily on the mental disorders Perrotti said Martinez
"Are you going to feel comfortable choosing death for a guy who you know
has a mental disease?" Ringgold implored. "We don't execute mentally ill
people no matter how bad they (act)."
The psychologist's testimony appeared to have had a major impact on the
one juror who refused to vote for death.
The jury spent one morning of their deliberations listening to Perrotti's
entire testimony read back to them.
The holdout juror was convinced by Perrotti's testimony that the defendant
had suffered brain damage because the left side of his hippocampus was
smaller than the right and that meant the defendant was mentally
handicapped, jurors said.
"It wasn't until today that we found out that everyone has one side of the
hippocampus that is smaller," one juror said. "The prosecution really
couldn't do much with that because he didn't get the (medical reports
Perrotti used) until the day (Perrotti) testified."
Connolly noted that the defense attorneys also did not see the
psychologist's report until the day Perrotti took the stand.
The D.A. also said a subsequent review of all medical tests included in
the report filed by Perrotti showed normal brain activity in the defendant
while awake and asleep.
The prosecutor - who was recently elected to serve as a Los Angeles County
Superior Court Judge - vowed that his office will be better prepared to
argue against Perrotti's opinion in the next penalty trial.
And Ringgold said the defense plan for the next trial will focus even more
heavily on psychiatric reviews and that they plan to seek other medical
opinions independent of Perrotti's review.
After talking to both attorneys, some of the jurors agreed to describe the
four days of deliberations for a Press-Telegram reporter. All asked that
their names not be published.
The one juror who did not vote for death quickly left the courtroom after
the verdict was read, refusing to speak to the lawyers and keeping her
The other jurors said they talked about the case for a day and a half
before they took their first vote on the penalty, which came in at 6-to-5
in favor of death.
A second vote of 9-to-3 for death was also logged before the final vote of
11-to-1 resulted in the deadlock, they said.
It was hard work and many said they were grateful the experience is over,
but they are disappointed another trial will have to be held and that
roughly 4 weeks weeks of testimony and deliberation for both the guilt and
penalty phases of the trial did not result in a conclusion.
In the end, they said, there seemed to be no way of reaching a consensus.
"The other juror felt she could not put what she said was a retarded
person to death," one juror explained.
Most upsetting, several jurors agreed, was knowing the victims' families
will have to undergo the ordeal of another penalty phase.
"If there is anything I could say it would be that I am sorry for the
victims' families," one juror said.
"I can't imagine what this has been like for them," another added.
(source: Long Beach Press-Telegram)
More information about the DeathPenalty