[Deathpenalty] death penalty news----OKLA., MISS., FLA., WASH., N.C., IDAHO

[Rick Halperin]

Feb. 13


OKLAHOMA:

Underwood defense asks to strike death penalty option


The defense attorney for Kevin Ray Underwood complained about a press leak
and asked that the death penalty not be considered at a hearing Wednesday.

Underwood, of Purcell, is charged with first-degree murder for the April
2006 death of 10-year-old Jamie Rose Bolin. The state is asking for the
death penalty. A gag order was established in the case after the
then-district attorney held a press conference giving out grisly details
of the investigation, including that there was evidence Underwood intended
to eat Bolin.

Underwood's defense attorney, appearing in Cleveland County District
Court, argued Wednesday that too much information about the case has been
leaked to the public that the case no longer represents "due process." He
asked that the bill of particulars be struck and the death penalty be
taken out of consideration for sentencing.

The defense pointed out the latest instance of "leaks" to the media. A TV
news station ran a story Feb. 11 that unnamed sources revealed a sealed
judgment of District Judge Candace Blalock. Only about an hour after the
lawyers received the judgment via e-mail, it was posted online that
Blalock decided to let incriminating evidence into the trial, the defense
said.

The defense blamed the District Attorney's office for the leak.

District Attorney Greg Mashburn said the defense was trying to attack him
because they have basically nothing else to go on.

At that point, the defense asked for a closed hearing and the judge
granted the request. The hearing lasted a while longer, then continued in
closed court. After the hearing, the attorneys said they could not say
what the results were.

The final pre-trial hearing will be 9 a.m. Friday in Cleveland County
District Court. Jury selection starts Tuesday.

(source: The Norman Transcript)






MISSISSIPPI:

Riding the Needle


"I think I will go out and beat an old lady to death tonight. I don't have
anything to worry about if I get caught. I won't even have to worry about
being stuck with a needle because it might hurt too much." Letter to The
Clarion-Ledger

We obviously struck a nerve. I have never seen such venomous responses to
a court case as I read in The Clarion-Ledger's "Letters to the Editor"
after the U.S. Supreme Court granted a stay of execution to Earl Berry on
Oct. 30, 2007. They granted the stay to examine Mississippi's protocol for
lethal injection; the Court was reviewing a similar case, Baze v. Rees,
from Kentucky. The writers were uniformly incensed that the Courtor
anyonewould care about the level of pain during an execution.

One wrote, "Our president made a big mistake in not going to Iraq during
the war and bringing Saddam Hussein and his 2 sons to America and giving
his sons full authority over our prison systems." Another opined, "We
should put some weights on him (Berry) and shove him overboard in the
Arctic." A 3rd said, "Berry and other murderers should be chopped to
pieces and flushed down the toilet where they belong."

There were more, including one with a bizarre reference to my mother.

What released this flood of ill will? The notion that lethal injection
might be cruel seems counter-intuitive. Oklahoma was the first to use
lethal injections in 1977, as other execution methods (hanging,
electrocution, gas) were held out as state-sponsored torture, not fit for
a civilized society. Texas followed suit in 1982, as did most of the other
states.

The notion was simple: Kill the condemned like vets euthanize animals.

But in practice, the "3-drug cocktail" instituted by Oklahoma and adopted
by Mississippi and other states is far different than putting your pet "to
sleep."

Thiopental is a short-acting barbiturate that temporarily renders a
patient unconscious. In surgery, anesthesiologists use additional
procedures and drugs to produce a "surgical depth" of anesthesia that
prevent the unconscious patient from feeling pain.

Pancuronium bromide paralyzes all voluntary muscles, but does not reduce
consciousness or the feeling of pain. Because it paralyzes the diaphragm,
a conscious person given this drug chemically suffocates. The Tennessee
medical examiner admits: "A conscious person who is paralyzed would be
unable to breathe. And suffocating to death would be a most violent form
of death."

Finally, potassium chloride induces cardiac arrest, which kills the
prisoner. It causes the sensation that one's veins are on fire, before
forcing a heart attack. The state expert in Baze said, "A conscious person
given potassium in the concentration level Kentucky uses would be
screaming in agony."

Veterinarians, by contrast, use Phenobarbital for euthanasia, sometimes
aided by another drug that painlessly stops the heart. The American
Veterinary Association holds that it is "unacceptable and condemned" to
use potassium chloride in euthanasia unless the animal is "in a surgical
plane of anesthesia, a level of anesthesia deep enough to ensure that the
surgical patient feels no pain and is unconscious for the duration of the
procedure." Neither the Kentucky nor the Mississippi protocols for
execution require any means of determining if the prisoner has been
anesthetized to this level, nor do they require training executioners to
monitor the prisoners consciousness.

Execution by the 3-drug protocol can become torture when: (1) The
connection with the vein is bad, injecting less anesthetic; (2) an
executioner gives incorrect drug dosage or mixture; (3) unlike surgery,
executioners dont monitor the prisoners consciousness during an execution;
and (4) the paralyzed prisoner, unlike the patient, can't signal that hes
still conscious.

Why has it taken so long to challenge this practice? Until now, the
protocol and personnel for lethal injection have been vague. Because the
prisoner is paralyzed, he is unable to communicate that he is in
excruciating pain. On rare occasions, the curtain has lifted, and only
then do we see the reality of lethal injection. This happened with the
executions of Joseph Clark of Ohio in May 2006 and Angel Diaz in Florida
in December 2006. In Ohio, 20 minutes after his execution began, Clark
lifted his head and repeatedly stated, "It don't work." During the next 90
minutes, Clarks moans and cries were audible; but the execution went
forward.

Diaz's death was even more horrific. Observers saw that the executioners
didnt find Diaz's vein, and he convulsed through the entire execution.
Diaz's autopsy noted foot-long chemical burns in his arms, and concluded
that he was suffocated while still conscious. The brutality compelled
Florida Gov. Jeb Bush to order an investigation.

These cases are just the tip of the iceberg. Now, post-execution autopsies
are gradually surfacing in litigation. Anesthesiologists report that the
autopsies show conscious asphyxiation, internal burning and conscious
cardiac arrest in prisoners who were paralyzed and thus unable to protest.
It is a method of execution worthy of Poe or Orwell.

The Supreme Court took on the Baze case to decide whether the Kentucky
protocol "creates an unnecessary risk of pain and suffering," and, if so,
whether this would be a "cruel and unusual punishment" forbidden by the
Eighth Amendment. Other counsel and I filed the same kind of lawsuit in
Mississippi to stop the use of the "3-drug cocktail." That lawsuit caused
the Court to halt Berry's Oct. 30 execution.

On Jan. 7, the Court heard argument in Baze. The state admitted that if
executioners did not properly administer the drugs, they would inflict
excruciating pain may be inflicted. Also, the state agreed that if that
risk occurred in every case, Kentucky's lethal injection method would
violate the Constitution. Kentucky's lawyer further conceded there was no
need to paralyze prisoners to execute them, but that it was just for the
sake of "appearances."

Both sides also agreed that a rapid dose of 3 to 5 grams of just the 1st
drug (the barbiturate used in animal euthanasia) would cause death without
suffocation or excruciating pain.

Justice Antonin Scalia, in his usual barbed manner, asked the prisoner's
lawyer, "This is an execution, not surgery.  Where does that come from,
that you must find the method of execution that causes the least pain?  Is
that somewhere in our Constitution?"

The lawyer answered: "Justice Scalia, our position is that the pain that
is inflicted here when this goes wrong is torturous, excruciating pain
under any definition. We're not talking about a slight incremental
difference. We're talking about the infliction of torturous pain."

A decision in Baze is expected by late June, and will likely be applicable
to Mississippi. But the question is, does it matter? Do we care whether
executions are painful? Do we want a justice system of which Saddam
Hussein would be proud? In the final analysis, the issue of execution by
torture is not about "them," the prisoners; it is about "us."

(source: Jim Craig is a partner in the law firm of Phelps Dunbar LLP, is
co-counsel in Walker v. Epps, the lawsuit that challenges the Mississippi
lethal injection procedure. He is also a member of Mississippians
Educating for Smart Justice (MESJ)----Jackson Free Press)






FLORIDA:

Prosecutors seek death penalty for man convicted of killing woman in The
Villages


Diana Miller was an athlete, caregiver, friend and prankster. The
63-year-old woman's death July 21, 2006, is regarded as the 1st-ever
murder in The Villages, and it left a hole in the lives of her husband,
golf partners and softball teammates in the active retirement community.

"It was like our hearts were ripped out," said Lorrie Travis, recalling
her friend's death.

The testimony of Miller's friends made her husband cry Tuesday but failed
to change the dull expression of Renaldo McGirth, 19, the Marion County
man who could be sentenced to death in her slaying.

State Attorney Brad King and Assistant State Attorney Anthony Tatti asked
Diana Miller's friends for remembrances as they argued for a death
sentence for McGirth, who was found guilty last week of 1st-degree murder.

They did not call James Miller to testify.

The 70-year-old man was shot in the head but survived the armed robbery
and attacks that left his wife dead. He borrowed tissues from his sister
to dab at tears Tuesday while his wife's friends consoled him with gentle
pats on his shoulders.

He would not speak with reporters.

Diana Miller's 40-year-old daughter, Sheila, called "morally culpable" by
prosecutors, was absent from the proceedings that require jurors to
recommend death or life without parole for McGirth. He knew Sheila Miller
through drug deals, according to Marion County sheriff's detectives.

Defense lawyer Candace Hawthorne contends Sheila Miller put McGirth and
two accomplices up to the robbery and shootings because, as the retired
Michigan couple's only child and heir, she would have inherited $750,000.

Sheila Miller was never criminally charged, however.

Prosecutors made their case for the death penalty with testimony from
Diana Miller's aunt, 3 friends, a former medical examiner and Theodore
Houston, one of McGirth's alleged accomplices.

Diana Miller's friends said the retired accountant for Ford embraced The
Villages' active lifestyle, playing golf twice a week, competing in
softball leagues and organizing fundraisers for an Alzheimer's charity.

The woman was the catcher on The Village Vixens, a women's softball team;
she organized golf vacations for her friends; and she used her computer
skills to print funny fliers featuring their faces.

"She kept everybody in stitches," said Lee Hancock, who met Miller on the
softball diamond.

The friends, some of whom knew her in Michigan, also described Diana
Miller as a devoted and caring wife and a good-natured and
broad-shouldered soul who never asked anything in return for her kindness.

Though an autopsy revealed a benign tumor on her uterus, Diana Miller was
in good health and probably would have survived the gunshot wound to her
chest if she had received medical attention, Dr. Julia Martin testified.

The death blow was the 2nd shot, to her head, Martin said.

Houston, who testified in red-and-white striped jail togs and leg
shackles, said that McGirth had chastised him for fetching the wounded
woman some water and a blanket as she lay bleeding on the floor.

The jury of 8 women and 4 men decided last week that McGirth was guilty of
1st-degree murder with a firearm, attempted 1st-degree murder, armed
robbery and felony fleeing in Diana Miller's killing.

One accomplice, Jarrord Roberts, 21, was found guilty of manslaughter,
attempted manslaughter and armed robbery, charges that could put him in
prison for life but that made him ineligible for the death penalty.

On the morning he was to testify, Houston, 18, backed out of an agreement
with prosecutors and demanded his own trial, thinking he can convince a
jury that he participated in the crime out of fear of McGirth.

Houston, offered a sentence of no more than 40 years in prison, faces life
if he is convicted of first-degree murder. Because he was a minor, he is
not eligible for the death penalty. The trial's penalty phase is set to
resume today with defense witnesses painting a kinder side of McGirth,
whose juvenile record includes a felony sexual assault.

(source: Orlando Sentinel)






WASHINGTON:

Death penalty ruled out in Graham slayings


The probable fate of a man accused of killing a young couple in Graham
came down to his willingness to admit blame, a grieving family's wish for
certainty and a prosecutor's frustration with the death penalty.

Pierce County Prosecutor Gerald Horne announced Wednesday that he would
not seek execution for Daniel Tavares Jr. if the man, once imprisoned for
killing his own mother, follows through with his agreement to plead
guilty.

Tavares, 41, would spend the rest of his life in prison in the deaths of
his neighbors, Brian Mauck, 30, and his wife, Beverly, 28, who were each
shot 3 times in the head last November and left in the living room of
their new home.

The Maucks' relatives said they believed a life sentence -- and having the
ordeal end without a trial and years of appeals -- was justice.

"This gives us the opportunity to close a very sad chapter in our lives,"
said Brian Mauck's sister, Jennifer Heilbrun, standing among relatives who
wore the couple's photo on their shirts and their ashes in lockets hanging
from their necks.

"Sitting in a jail cell for the rest of your life with your demons --
that's justice to me."

Beverly Mauck's mother, Karen Slater, said she wanted Tavares to suffer in
prison, but mostly, she didn't want the case looming over her family.

"Now we can just look forward to our memories instead of having to relive
this nightmare," she said.

Horne said he made the "difficult decision" after considering Tavares'
history of mental health problems, his willingness to take responsibility
for the crime and the death penalty system itself.

Pierce County "has sent many people to death row, but none has ever been
executed," he said. "Mr. Tavares will die in prison and never be able to
hurt anyone again."

The elected prosecutor cited the death penalty situation around the
country, where some states' death rows are crowded but executions are
rarely carried out, and states where condemned prisoners can live for
decades as they mount costly appeals.

And he pointed to Washington, where more than 30 people have been
sentenced to die in the past 25 years but just 1 man has been executed
against his will.

Tavares has reportedly signed a plea agreement, but a judge would have to
formally accept his guilty plea to 2 counts of aggravated murder and a
charge of illegally possessing a gun.

The agreement to spare his life would be revoked if he changes his mind or
ever tries to appeal, Horne said.

A date for the plea may be set Thursday in Pierce County Superior Court.

Tavares' attorneys, Dino Sepe and Judith Mandel, did not return a
reporter's phone calls about the case.

On Nov. 17, a neighbor found the victims' bodies, and investigators found
Tavares' bloody palm print on a doorjamb inside the Maucks' home,
according to court documents.

Prosecutors say Tavares and his wife initially told detectives they heard
the gunshots, and he even gave a detailed description of two men whom he
claimed to see outside the Maucks' house.

Tavares later admitted to killing the couple, according to prosecutors,
claiming he went over to collect a $50 from Brian Mauck and got angry when
the couple insulted him and his wife.

Tavares' wife, Jennifer Lynn Tavares, 37, is charged with rendering
criminal assistance -- a gross misdemeanor. She could face trial next
month.

Daniel Tavares was released from prison in Massachusetts last June after
serving a 16-year manslaughter sentence for killing his mother.
Investigators say he moved to Washington to be with his wife, who'd been
his prison pen pal. They lived in a trailer a few hundred yards from the
Maucks' home.

The slayings became a national issue in the race for the presidency when
it came to light that Tavares had been released from prison by a judge who
was appointed by Republican candidate Mitt Romney.

Tavares had served his manslaughter sentence, but prosecutors were trying
to keep him locked up for allegedly assaulting 2 prison guards.

Candidate Rudy Giuliani laid blame. Romney urged the judge to resign. The
judge's colleagues defended her legal decision.

The slayings also left police pointing fingers about who should have been
watching Tavares. Massachusetts authorities knew the man -- with 2
warrants out for his arrest -- had gone to Seattle but didn't notify
police here for months.

The Washington State Patrol was asked to keep an eye on the man but
believed they didn't have the authority to arrest him; Massachusetts
police claimed if he'd been arrested here, they would have picked him up.

The Maucks' relatives said Wednesday they planned to push for a new law
that requires police to notify law enforcement in other states when such
criminals cross state lines.

The Maucks had been married less than 2 years and had recently bought a
home in Graham. Friends have said he worked for an Auburn air-conditioning
company; she worked at a car dealership.

Relatives said the couple adored children and were planning to start a
family within a year.

(source: Seattle Post Intelligencer)




NORTH CAROLINA:

UNC continues its yearlong examination of the death penalty


In recent years, UNC-Chapel Hill has been taking seriously its obligation
to educate its students in the art of civil discussion of contentious
issues that will require their understanding as they move into leadership
roles. Going far beyond simply requiring all incoming students to read and
discuss a book espousing controversial ideas, for the 2007-08 academic
year Carolina instituted a campuswide consideration of the death penalty
that continues in many forms through April.

While some events, such as discussion of Sister Helen Prejean's Death of
Innocents, were for students only, the schooland Carolina Performing
Artshas invited the general public to a wide array of art displays,
theatrical performances, panel discussions and lectures in a yearlong
series called "Criminal/ Justice: The Death Penalty Examined."

Prejean, an icon of the anti-death-penalty movement, will give a talk in
Memorial Hall on Feb. 25, and the Department of Dramatic Art will perform
the stage version of her Dead Man Walking in April.

While UNC-Chapel Hill is not as insular or as corporatized as Duke, it has
become harder and harder to view it as our beloved university, rather than
the Gargantua that gobbled the town that had loved it. A visit to Wilson
Library is generally good medicine for this sad dissociated condition, and
so it proved on a balmy, spring-like day last week. Wilson is home to the
UNC Libraries' Special Collections, which includes the treasure trove of
original materials comprising the Southern Historical Collection.

The SHC has put up two displays and a pamphlet on "Facing Controversy:
Struggling with Capital Punishment in North Carolina." Curator Tim West
and graduate student Biff Hollingsworth have done an excellent job in
providing a concise historical overview of the death penalty in North
Carolina in the timeline pamphlet they've written, and in the text and
image panels they have produced for display at Wilson and Davis libraries.
(Although these panels make heavy use of original documents from the
collections, no actual documents are on view, so there is no compelling
reason to make a special trip to see them. The same material should become
available with greater convenience at www.lib.unc.edu/mss/exhibits/penalty
in late February.)

On Tuesday, Feb. 5, SHC sponsored a panel discussion that was also titled
"Facing Controversy: Struggling with Capital Punishment in America."
Despite the difficult topic, the panel provided a tonic worth having gone
indoors forthat of intelligent people engaged in "civil, informed
discourse." The historical perspective was deepened for the mixed audience
of students and townspeople by the first speaker of the evening, Seth
Kotch, a doctoral candidate at UNC who is writing his dissertation on the
death penalty in North Carolina during the 20th century. As Kotch
chronicled the changes in the laws and in the public sentiment they
reflect, he emphasized that today's struggles over the death penalty and
the manner of its application are just the latest episode in a history of
struggle dating to the formation of the Colony of Carolina. Whether, for
what crimes, and how we should carry out this ultimate punishment, have
been matters of anguished soul-searching and passionate advocacy for
centuries.

The panel's 2nd speaker, state Sen. Ellie Kinnaird (D-Orange), who has
been a leading opponent of the death penalty for many years, expressed
amazement to learn of that long history, to which she has added so much
since her 1996 election to the General Assembly. ("My office is a hot-bed
of rebels," she said, modestly.) Kinnaird reminds one of those great
abolitionist ladies of the 19th century, with their clear eyes, calm
manners, powerful consciences and stainless-steel backbones. As she
recites facts and illustrative anecdotes to support abolition of the death
penalty, she is so persuasive that you begin to feel she will inevitably
reach her goal. Fewer than 1 percent of convicted killers receive the
death penalty in North Carolinawhy do they get it? She cited a recent
study conducted by UNC professors and law school graduates who examined
every death penalty case in the state and found that the factors were
geography, race and poverty ("I don't believe we've ever executed a rich
person," Kinnaird noted dryly). She tells the story of a mentally
deficient man being asked what he wanted for his last meal. The man told
the jailer, adding that he'd save his dessert for later, after the
execution. Can it be right, Kinnaird asks, to execute a person who doesn't
understand that there will be no "later"? But at bottom all her arguments
and cases come down to: "Is it wrong for the citizens to kill, but not
wrong for the state to kill?"

An alternative view was provided by the third panelist, Rex Gore, district
attorney for the state's 13th judicial district in southeastern N.C. Gore,
who maintains a Web site and blog at darexgore.brunswickvoice.com, doesn't
like the death penalty, but he believes in it for the most heinous crimes,
such as ones he describes memorably on his site. He speaks empathetically
about how painful capital punishment cases are for everyone, noting that
"We make it hardand it should be hardto execute somebody. ... It is good
that we struggle with the death penalty, because it is the most important
decision." He points out that as an attorney for the state, he can only
enforce the laws that legislators have passed, and he says that his
experiences have led him to believe that, among many people, there is a
feeling that there must be "the possibility of the ultimate punishment for
the worst crimes."

"We will continue to struggle with the death penalty as long as it is in
existence. How long it will be in existence is a legislative call, and the
ultimate decision is with the people," said Gore. From the range of
comments during the discussion, it became clear that some in the audience
had decided what was right or necessary, while others were just beginning
to wrestle the moral monster.

A few more images to help with the struggle can be seen at the Ackland Art
Museum, in a small exhibition called Perspectives on Public Justice. Here
is Jacob Lawrence's screen-printed portrait of the hanged John
Brownlegally executed traitor, or a martyr murdered for his convictions?
Here's a copy of Hogarth's frenzied 1747 engraving showing riotous
holiday-making at a hanging at Tyburn.

These turn the stomach, but not as badly as Sue Coe's large drawing,
"Poultry Packing Fire," based on the 1991 incident in Hamlet, N.C., in
which 26 workers died in a fire because management had locked the exits.
The picture forces us to remember that no murder charges could be brought
on that workplace safety violation. Is that an argument for the wider
application of capital punishment? The civilized examination of this and
related questions will continue on the Carolina campus through the spring.

(source: Independent Weekly)






IDAHO:

Judge denies retrial for Idaho death row inmate


A state judge has denied a new trial motion filed by an Idaho death row
inmate convicted in the beating death of a former girlfriend 20 years ago.

Inmate George Junior Porter, 52, sought a new trial based on DNA tests of
evidence, including fingernail scrapings from Jones and hair and blood
samples.

Jones was convicted in the 1988 slaying of Theresa L. Jones. The body of
the 29-year-old Kamiah woman was found in her bed covered in a sleeping
bag. Evidence suggested she was beaten severely.

Second District Judge John Bradbury concluded that the new evidence was
inconclusive and unlikely to provoke a jury to reach a different verdict
in the case.

(source: Associated Press)