[Deathpenalty] [POSSIBLE SPAM] death penalty news----GA., MD., N.Y., USA, TENN.

[Rick Halperin]

Dec. 13



GEORGIA:

Howard wants U.S. to pursue Nichols death penalty


Fulton County District Attorney Paul Howard said Saturday that courthouse
killer Brian Nichols may get the death penalty yet  from a federal court
jury.

Howard, whose prosecution sought and failed to get death for Nichols, said
he would talk this week about possible federal charges against Nichols for
killing off-duty U.S. Customs agent David Wilhelm.

The agent was working alone at his new home in Buckhead when Nichols
confronted him the night of his March 11, 2005 escape from the Fulton
County Courthouse. Nichols was sentenced Saturday to multiple life prison
sentences for the entire case, including 4 sentences without parole for
the 4 killings.

Howard said at a post-sentencing news conference that he and U.S. Attorney

David Nahmias will talk about a renewed death-penalty effort later in the
week. Howard also said he will push for a change in Georgia law that
mandates a unanimous decision by juries tackling death penalty cases.

Nichols' jury hung in a persistent 9-3 vote, with those wanting death in
the majority. Without unanimity, however, Judge James Bodiford was forced
to deliver sentences of life in prison.

Federal prosecution would apparently not constitute double jeopardy since
it would be a federal prosecution and the just-ended case was a state
prosecution.

Federal law allows the death penalty in some circumstances, including the
death of a federal officer.

There was testimony at Nichols' trial that indicated Wilhelm identified
himself as a federal officer before he was shot and killed by Nichols.
Wilhelm's federal badge was found later in his truck, which was stolen by
Nichols after Wilhelm was shot.

Howards office pushed forward with a state death-penalty prosecution
despite Nichols' offer to plead guilty in exchange for life in prison with
no parole.

He said he talked Saturday morning to 2 of the jurors, who told him
details of the 9-3 juror split in favor of death.

Howard said the jurors told him that "some of the people showed up with
their minds already made up [in this case]." He said he was told that the
jury panel never entered into any meaningful discussion about the death
penalty.

Jurors at the courthouse Saturday were expected to speak publicly through
the district attorney,

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

Legislature urged to revamp death penalty law


District Attorney Paul Howard called for the state Legislature Saturday to
change Georgias death-penalty law requiring a unanimous jury decision for
a defendant to be sent to death row.

By a 9-3 hung jury decision on Friday, Howard lost a lengthy and costly
effort to have Brian Nichols sentenced to death for the March 11, 2005
Fulton County Courthouse killings.

Howard said a minority of jurors were determined that Nichols get a life
sentence, whether or not he deserved to be sentenced to death.

"We're not asking for favors  we are just asking for a level playing
field," Howard said. "I have talked to 2 jurors and the both say that some
people showed up for jury duty with their minds already made up and never
entered into a meaningful discussion of a death sentence. That means we
don't get a fair trial."

Howard wants the law changed so that unanimous verdicts are not required
in the penalty phase of death-penalty cases after jurors have already
unanimously found the murderer guilty of crime that involved special
circumstances, such as killing a law officer, killing during a crime such
as a robbery, or killing while in custody.

The Nichols jury found Nichols' murders involved 11 such circumstances.

It is not known whether any of the three Nichols juror holdouts were among
the 3 jurors who indicated during questioning before they were selected
for the panel that they had reservations about imposing a death penalty.

Howard spoke at a press conference, which also included jurors and the
family members of victims. One of the jurors described the deliberations
among the 12 jurors were "respectful but firm."

"None of us were going to back down," said the woman, who described
herself as Juror #8.

"I didn't see any remorse  I want the families to know we did everything
we could."

Family members of the 4 murder victims expressed outrage that Nichols had
escaped the death penalty.

"I feel in some ways he is proud of what he did he sat there with a smirk
on his face," said Deborah Teasley, widow of Sheriff's deputy Sgt. Hoyt
Teasley, who was gunned down as Nichols fled the courthouse.

Other relatives said any Nichols victory was hollow.

"I don't think Brian Nichols won," said Christina Greenway, daughter of
court reporter Julie Ann Brandau, who was shot in the head during Nichols'
courtroom rampage.

"He has said himself that it is not in his DNA to stay in prison."

(source for both: Atlanta Journal-Constitution)

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

Georgia Law on Sentencing, Death Penalty Cases


O.C.G.A.  17-10-31.1

GEORGIA CODE

*** Current through the 2008 Regular Session ***

TITLE 17. CRIMINAL PROCEDURE

CHAPTER 10. SENTENCE AND PUNISHMENT

ARTICLE 2. DEATH PENALTY GENERALLY

O.C.G.A.  17-10-31.1 (2008)

 17-10-31.1. Requirement of jury finding of aggravating circumstance and
recommendation of sentence of death or life without parole; duties of
judge; jury instruction on meaning of "life without parole" and "life
imprisonment."

(a) Where, upon a trial by jury, a person is convicted of murder, a
sentence of death or life without parole shall not be imposed unless the
jury verdict includes a finding of at least one statutory aggravating
circumstance and a recommendation that such sentence be imposed.

(b) Where a statutory aggravating circumstance is found and a
recommendation of life without parole is made, the court shall sentence
the defendant to imprisonment for life without parole as provided in Code
Section 17-10-16.

(c) Where a jury has been impaneled to determine sentence and the jury has
unanimously found the existence of at least one statutory aggravating
circumstance but is unable to reach a unanimous verdict as to sentence,
the judge shall dismiss the jury and shall impose a sentence of either
life imprisonment or imprisonment for life without parole. In imposing
sentence, the judge may sentence the defendant to imprisonment for life
without parole only if the court finds beyond a reasonable doubt that the
defendant committed at least one statutory aggravating circumstance and
the trial court has been informed by the jury foreman that upon their last
vote, a majority of the jurors cast their vote for a sentence of death or
for a sentence of life imprisonment without parole; provided, however,
that the trial judge may impose a sentence of life imprisonment as
provided by law.

(d) Notwithstanding any other provision of law, during the sentencing
phase before a jury, counsel for the state and the accused may present
argument and the trial judge may instruct the jury:

(1) That "life without parole" means that the defendant shall be
incarcerated for the remainder of his or her natural life and shall not be
eligible for parole unless such person is subsequently adjudicated to be
innocent of the offense for which he or she was sentenced; and

(2) That "life imprisonment" means that the defendant will be incarcerated
for the remainder of his or her natural life but will be eligible for
parole during the term of such sentence.

(source: MyFoxAtlanta)






MARYLAND:

Md. Commission Recommends Abolishing Death Penalty


Maryland should abolish the death penalty because it is too expensive and
there is always the possibility of executing an innocent person, the
Maryland Commission on Capital Punishment said in its final report
released Friday.

The 23-member commission, which was created by the Maryland General
Assembly in the 2008 legislative session, recommended ending the death
penalty by a vote of 13 to 9, with one abstention.

"Death is different ... because it's irreversible," said Commission
Chairman Benjamin R. Civiletti, who served as U.S. Attorney General in the
Carter administration from 1979 to 1981. "It is neither swift, nor fair,
nor sure."

Among its findings, the commission said that the costs associated with the
death penalty are higher than the costs associated with a sentence of life
without the possibility of parole, and that DNA evidence does not
necessarily stop an innocent person from being executed.

"The cost of the death penalty ... is estimated to be $2.9 million," said
Civiletti, who compared it to the estimated $1.1 million it would cost to
prosecute a case and keep a prisoner incarcerated for life.

The commission also released a minority report, which presented an
argument for keeping the death penalty and was signed by eight of the
commissioners.

"This is an issue upon which reasonable minds can differ," said State's
Attorney for Baltimore County Scott Shellenberger, one of the
commissioners who signed the minority report. "We must retain the death
penalty as an available tool for prosecutors to use when faced with the
worst of the worst."

Shellenberger said the close vote to abolish the death penalty represented
a difference of philosophy.

"While the death penalty may cost more, it's not so exorbitantly more that
that's our reason to abandon justice," said Shellenberger. "You have to
ask yourself, do we really put a price on justice?"

The commission also included legislative members, religious leaders,
family members of murder victims and a police chief.

"My vote to repeal the death penalty comes from the truth that I know so
well, as we found ... that there is a real possibility to execute an
innocent person," said Kirk Bloodsworth, a former death row inmate
exonerated by DNA evidence. "And I learned this from my own experience."

13 of the commission members were appointed by Gov. Martin O'Malley, an
outspoken critic of the death penalty.

"It is my hope that we can all take the time to review the facts presented
in this report thoroughly and with an open mind," O'Malley said, in a
statement following the commission's report.

The commission dismissed the idea that it was created to push O'Malley's
anti-death penalty views forward in the General Assembly.

"I think that's kind of a silly argument," said Civiletti. "It attacks the
integrity of every commissioner."

(source: Capital News Service)

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

Panel Seeks End To Death Penalty


A state commission issued a report yesterday calling for the abolition of
capital punishment in Maryland, foreshadowing what is expected to be a
high-stakes battle in the legislative session that starts next month.

A majority of the commission, led by Benjamin R. Civiletti, a former U.S.
attorney general, concluded that the death penalty is not a deterrent to
murder and creates the risk of executing innocent people. The panel also
cited research showing racial and jurisdictional disparities in the
state's application of capital punishment.

A minority of the commission members submitted a separate report asking
the legislature not to repeal the death penalty.

Maryland has had a de facto moratorium on capital punishment since
December 2006, when the state's highest court ruled that regulations
governing executions had not been adopted properly. The administration of
Gov. Martin O'Malley (D), a death penalty opponent, has delayed issuing
new regulations.

Gary D. Marynard, O'Malley's secretary of public safety and correctional
services, said yesterday that updated regulations have been drafted.
O'Malley has not indicated whether the regulations will be issued before
resolution of the upcoming legislative debate.

(source: Washington Post)

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

Report fuels death debate----Md. foes of capital punishment gear for new
fight in Assembly


With a high-powered commission recommending abolition of the death penalty
in Maryland, opponents of capital punishment gained fresh momentum
yesterday as they ready a repeal effort for the General Assembly session
beginning next month.

A debate over the hot-button social issue could quickly become one of the
most heated fights in Annapolis, with Gov. Martin O'Malley pledging that
ending the death penalty is among his top priorities.

The capital punishment panel, headed by former U.S. Attorney General
Benjamin R. Civiletti, cited the possibility of executing an innocent
person, huge financial costs, and racial and regional biases as compelling
reasons to eliminate the punishment.

"There are so many faults, so many flaws within the system that we could
not imagine ... ways in which to cure it," Civiletti said yesterday.

The issue of capital punishment has long divided the legislature, and
repeal efforts have failed the past 2 years. A bill died last year on a
tie vote in a Senate committee.

But Del. Samuel I. Rosenberg, a Baltimore Democrat and commission member,
said he believes both the House and Senate could reach a consensus next
year.

"I believe the overwhelming weight of the evidence in the study will have
bearing on my colleagues," Rosenberg said. "And Chairman Civiletti will be
an extraordinary advocate for the failures of the death penalty, the
impossibility of correcting it and therefore the necessity of repealing
it."

O'Malley, a longtime death penalty opponent, selected most of the
commission's 23 members - a mix of legislators, lawyers, civilians and
clergy. They listened to 35 hours of testimony over five months before
releasing their findings to the Assembly.

The study examined disparities in how the death penalty is applied, the
impact of DNA evidence and several other issues, reaching clear majorities
on each that the death penalty is problematic.

Thirteen commission members voted for repeal. Nine voted against it, and
Gary D. Maynard, secretary of the Department of Public Safety and
Correctional Services, abstained from voting. 2 of the 5 legislators on
the panel opposed abolition.

The repeal recommendation comes as little surprise, since the commission
voted on its main finding a month ago.

But the conclusions, detailed in 132 pages, outline specific concerns
developed after listening to the testimony of 84 witnesses. 20 of 23 panel
members agreed that racial disparities and differences in how the death
penalty is sought from one jurisdiction to the next created significant
problems.

"The present administration of capital punishment shows substantial
disparities in its application based on race and jurisdiction," the report
said. "These disparities are so great among and between comparable cases
that the death penalty process is best described as arbitrary and
capricious."

Rosenberg said he and Sen. Lisa A. Gladden, a Baltimore Democrat, would
likely introduce repeal legislation that reflected the commission's
findings.

Baltimore County State's Attorney Scott D. Shellenberger wrote a 22-page
dissent, signed by seven other members. Shanetta J. Paskel, representing
the Maryland Attorney General's Office, also dissented but did not sign
Shellenberger's opinion.

Prosecutors must be able to "reflect the will of the people,"
Shellenberger said yesterday, arguing that the state should retain the
death penalty as a tool to wield against "the worst of the worst."

He said regional disparities - the probability of receiving a death
sentence in Baltimore County is nearly 23 times higher than in Baltimore
City, according to a 2003 study - can be explained by "local rule."

"[D]ifferent sentences in different counties for the same kind of crime
are legal and constitutional," Shellenberger wrote in the dissent.
"Disparities in sentencing exist in each county across the entire spectrum
of crimes committed in Maryland."

Maynard, who abstained from all votes, said he saw his role as a provider
of information about confinement costs and conditions. "I have a personal
opinion, but my professional opinion has always been to carry out every
law," said Maynard, who has been a corrections official in three states
for 25 years.

Since Maryland reinstated capital punishment in 1978, 5 men have been put
to death, most recently Wesley Eugene Baker on Dec. 5, 2005. 5 others are
on death row now, including three men convicted in 1984.

State executions have been under an effective moratorium since December
2006, when Maryland's highest court ruled that lethal injection
regulations had not been properly adopted. The U.S. Supreme Court ruled
this year that execution by lethal injection is constitutional, a decision
that required Maryland to restart its rule-making process. Maynard is
reviewing a draft that he plans to give to a legislative review panel by
the end of the year, a prison spokesman said.

Shellenberger was initially critical of the commission, testifying against
its formation earlier this year. But he said yesterday that his fellow
commissioners were fair and open-minded. "I don't at all feel like the
deck was stacked," he said.

O'Malley thanked commission members for their work and said he would
review its findings.

"It is my hope that we can all take the time to review the facts presented
in this report thoroughly and with an open mind," he said in a statement.

O'Malley spokesman Shaun Adamec said yesterday that the governor hopes
Assembly members approach the issue thoughtfully.

A decision on a repeal rests with 1 or 2 members of the Senate Judicial
Proceedings Committee. Senate President Thomas V. Mike Miller, who
supports the death penalty, has said he doesn't plan to lobby his
colleagues.

House Speaker Michael E. Busch also has supported capital punishment, but
he has had concerns in recent years about its disparate application. Busch
spokeswoman Alexandra Hughes said he is "keeping an open mind until he
sees the full report of the commission."

"The speaker feels strongly that he does not want to influence votes on
this issue, that it is a vote of the legislator's conscience," she said.

What's next

Debate about capital punishment is likely to continue in January's
legislative session. Some lawmakers predict a bill could pass the House
and Senate, and Gov. Martin O'Malley, who is against the death penalty,
would likely sign a repeal into law. A key Senate panel, however, still
appears deadlocked, so it is uncertain that the full House and Senate will
get to vote.

(source: Baltimore Sun)






NEW YORK:

U.S. Reverses Death Penalty Bid in Drug Case


The United States attorney general, Michael B. Mukasey, has reversed a
decision made by his predecessor and will not seek the death penalty in a
federal murder case in Brooklyn that is set to go to trial next year.

The unusual decision, which was made public on Friday, came in a case in
which a judge had specifically asked that Mr. Mukasey review an earlier
decision to seek capital punishment made by Alberto R. Gonzales, who
announced his resignation as attorney general in August 2007.

"I just think that a clearheaded independent evaluation is in order with
regard to this case," the judge, Nicholas G. Garaufis of Federal District
Court in Brooklyn, said a month later, after President Bush made known
that he would name Mr. Mukasey as Mr. Gonzaless successor.

Although Judge Garaufis said he was "agnostic about the outcome" of such a
review, he suggested that he did not agree with Mr. Gonzales's view that
capital punishment was warranted.

"It's important for the Justice Department to examine the use of the very
limited resources of the United States attorney's office and of the court
in pursuing the death penalty in this case," the judge said.

The defendant, Gerard Price, was charged in a 1999 drug-related killing
that could have carried the death penalty on conviction. Prosecutors
charged in a federal indictment that Mr. Price was one of the leaders of a
narcotics trafficking organization.

One of Mr. Price's lawyers, Carl J. Herman, said in an interview on Friday
that he received a phone call from a prosecutor late Thursday night
informing him of the decision. He then told his client, who is being held
in the Metropolitan Correctional Center in Manhattan.

Mr. Price, who has pleaded not guilty, could still be sentenced to life in
prison if he is convicted, but he was pleased to hear that "his life is no
longer hanging in the balance," Mr. Herman said. "He had a big smile on
his face and he shook my hand and he said, 'It's been a long time.'"

The Price case is not the 1st capital case over which Judge Garaufis has
presided.

In March 2007, he imposed the death penalty on a Staten Island man, Ronell
Wilson, who had been sentenced to death by a jury for killing 2 undercover
police detectives in 2003. That case was the first successful federal
death penalty prosecution in New York in more than 50 years.

Mr. Herman declined on Friday to speculate about why Mr. Mukasey had
decided to reverse the earlier decision to seek the death penalty.

Spokesmen for Mr. Mukasey and Benton J. Campbell, the United States
attorney in Brooklyn, declined comment on the decision, which prosecutors
disclosed in a note to the judge on Friday.

Kevin McNally, a lawyer in Kentucky who is director of the Federal Death
Penalty Resource Counsel Project, which provides information to defense
lawyers in capital cases, called Mr. Mukasey's decision significant.

"It suggests that toward the end of the Bush administration, some
rationality has returned" to the Justice Department, he said.

In seeking capital punishment, prosecutors had cited claims like a lack of
remorse by Mr. Price, the fact that the killing occurred in the course of
a narcotics crime and the danger that Mr. Price could pose a continuing
threat.

Mr. Herman said that the defense, in opposing capital punishment, cited
factors like Mr. Price's difficult childhood, a learning impairment and
emotional problems. He added that Mr. Price had previously been tried for
the murder in state court and was acquitted.

(source: New York Times)



USA:

Rules will allow DNA samples from federal detainees----Currently, only
those convicted of federal crimes can have DNA samples taken. Critics say
the new rules, which take effect next month, would violate individual
rights without solving more crimes.


Immigration detainees and others arrested for federal crimes will be
forced to provide DNA samples beginning in January under new rules
promulgated by the Justice Department this week, raising the ire of
immigrant rights advocates and other groups.

Senate Minority Whip Jon Kyl (R-Ariz.), author of a 2005 law that
authorized the department to include pre-conviction DNA samples in its
national database, said the change would help prevent violent crimes by
deportees who return illegally or who commit crimes pending prosecution on
earlier charges.

"We know from past experience that collecting DNA at arrest or deportation
will prevent rapes and murders that would otherwise be committed," Kyl
said in a statement.

Currently, the government collects DNA samples only from those convicted
of federal crimes. More than 6.2 million DNA analyses have been added to
the national database since its creation.

The new rules will allow federal agents to take DNA samples at the time of
arrest, rather than waiting for a conviction. They take effect Jan. 9.

Kyl cited an Arizona case in which a man who was deported in 2003 returned
illegally and allegedly stalked and raped young teenage girls while their
single mothers were at work. He also noted the case of Anthony Dias, who
was arrested for felony hit and run in Washington state in July 2005. A
month later, Dias began a three-month crime spree, raping several women in
home invasions and kidnappings.

But immigration lawyers and other groups condemned the new rules, saying
they would violate individuals' rights without necessarily solving more
crimes.

"There seems to be a movement to defining anybody who's here in the United
States unlawfully as a criminal per se," said Los Angeles immigration
lawyer Alan Diamante, former president of the Mexican American Bar Assn.
"A lot of these folks don't have any crimes other than the fact that
they're here unlawfully. I see these people as innocent."

UC Davis Law School Dean Kevin Johnson said the rules were likely to be
challenged in court because they violate the privacy rights of people who
have not been convicted of a crime.

"It's unfair on so many levels it's hard to describe," Johnson said. "You
can make the argument that we should take the DNA of the entire population
because if we did it could help us solve crimes. But we've made this
decision that as a society . . . the freedoms that we stand for are more
important."

A Justice Department spokesman said the DNA samples would be used only as
a form of identification, the way fingerprints are today.

As part of its 2008 budget, the FBI requested more than $14 million to
upgrade its DNA programs and $7 million to upgrade its software to
accommodate the increased workload.

"The FBI expects that the number of samples submitted . . . will increase
by over 430% to more than 1,300,000 samples from illegal immigrants,
detainees and federal arrestees," the document reads.

Federal officials said arrestees whose cases did not end in conviction
could petition to have their DNA removed from the database.

(source: Los Angeles Times)






TENNESSEE:

Prosecutor Says Death Penalty Would Be Option If Matthews Plea Is
Withdrawn----Says Proof Of His Guilt Is "Overwhelming"


Prosecutor Steve Neff said if Sir Jack Matthews is allowed to withdraw his
guilty plea to murder that the government would have to consider seeking
the death penalty against him.

He said, "The local U.S. attorney's office would be forced to prepare new
memoranda and recommendations for presentation to the Department of
Justice Capital Case Unit and ultimately the United States Attorney
General for instructions about whether to proceed with another dealth
penalty prosecution."

Prosecutor Neff said, "Such a process would consume significant additional
time, and if instructed to seek death, would result in another lengthy
delay before trial and much additional cost to the taxpayers and
community."

Bryan Hoss, new attorney for Matthews, recently filed a motion to have his
guilty plea withdrawn in the case in which co-defendant Rejon Taylor was
given the death penalty. Joey Marshall is the third defendant in the case
involving the 2004 kidnapping and murder of Atlanta restaurant operator
Guy Luck.

Prosecutor Neff said the proof of the guilty of Matthews in the case is
"overwhelming," and he said Matthews waited 2 years to ask to withdraw his
plea. He said during the interim that Matthews never indicated he was
innocent.

He said Matthews confessed to his guilt shortly after his arrest and
continued to condede his guilt until his surprising testimony at the
Taylor trial. He said "for the first time, he told a ridiculous story
about drug dealing, a homosexual love triangle, and child pornography
activities with the victim. The defendant, however, did continue to
maintain that he shot the victim, which was necessary given the physical
proof in the case."

He said the government "later discovered significant proof of collusion
between the defendant and Rejon Taylor in a conspiracy to obstruct
justice."

Prosecutor Neff said Taylor and Matthews were in a cell together and
authorities were able to tape them "regarding their plan to surprise the
government by making us think Matthews was still willing to testify
truthfully while he in fact intended to lie on the stand to try to help
Taylor and himself escape justice in Federal Court."

He said Matthews earlier "was represented by one of the most respected
attorneys in the Chattanooga bar (Jerry Summers)" and a deal had been
worked out in which he might have gotten reduced prison time for his
cooperation with the government.

Prosecutor Neff said family members of the victim should not have to
undergo another trial. He said they "have already been forced to endure
unimaginable pain by going through this process once. It would be cruel
for them to have to endure it again - especially given the defendant's
false claim of innocence which seeks to destroy and embarrass the victim
and his loved ones with disturbingly false accusations about him."

He said, "The defendant is not actually innocent and allowing him to
withdraw from his plea would undermine the integrity of the federal
justice system."

(source: The Chattanoogan)