[Deathpenalty] death penalty news-----GA., OHIO, LA., KY.
rhalperi at mail.smu.edu
Thu May 29 18:13:35 CDT 2008
Racist defense put killer on death row, attorneys say----Parole board to
hear case of man scheduled to die June 4
With his tall Stetson hat, diamond rings, gold chains and a thin handlebar
mustache, attorney Johnny Mostiler was for years the face of indigent
defense at the Spalding County courthouse.
Known as "Boss Hog," Mostiler drove a Cadillac convertible with cow horns
as hood ornaments and, over a decade, held the contract for Spalding's
public defender work. On top of a civil practice, Mostiler carried more
than 600 indigent criminal cases at a time.
Mostiler died of a massive heart attack in 2000. On Friday, his defense of
killer Curtis Osborne 18 years ago will be the focus of lawyers asking the
Board of Pardons and Paroles to commute Osborne's death sentence.
Osborne's lawyers from the Atlanta firm King & Spalding contend Mostiler
was so racially prejudiced he presented a paltry defense on his client's
behalf. They will allege that Mostiler, who was white, did not tell
Osborne, who is African-American, there was an offer for Osborne to plead
guilty to a life sentence.
"The system breaks down when it's infected or corrupted by racism," said
Bill Hoffmann, one of Osborne's lawyers. "It's a fundamental principle of
our justice system that individuals be given zealous representation. It's
particularly outrageous that Mr. Osborne was denied that because of racial
In 2006, the federal appeals court in Atlanta rejected claims that
Mostiler's alleged racial animosity entitled Osborne to a new trial. The
court noted that Mostiler, called to testify during Osborne's appeal, said
he recalled giving Osborne the state's offer to plead to life in prison.
Osborne is scheduled to be executed by lethal injection on June 4. He was
sentenced to death for fatally shooting Linda Lisa Seaborne and Arthur
Jones on Aug. 7, 1990.
Prosecutors said Osborne killed Jones after selling Jones' motorcycle and
not giving him the money back and then shot Seaborne to eliminate her as a
The parole board will hear the clemency request 8 days after it spared
Samuel David Crowe hours before he was to be executed.
Former President Jimmy Carter, former deputy U.S. Attorney General Larry
Thompson and former Georgia Supreme Court Chief Justice Norman Fletcher
are sending letters to the board, requesting clemency for Osborne,
Fletcher, who voted in 1993 to uphold Osborne's death sentence, said he
recalled Mostiler's "apparent ineptness" because he raised so few issues
"As is now all too well apparent, it is Mr. Osborne who is suffering due
to Mr. Mostiler's grave shortcomings and his racial prejudices of perhaps
a lifetime," Fletcher wrote the board.
Spalding County District Attorney Scott Ballard wants the execution to go
"It's been 18 years since a jury, after hearing all the evidence and, I
believe, being presented with a very adequate defense by Mr. Mostiler,
sentenced him to death," Ballard said. "This case has been reviewed and
reviewed and reviewed. It's time to carry it out."
Long-time Griffin attorney Andrew Whalen III called Mostiler a
compassionate defender of all his clients, regardless of their race.
"I felt like he really gave it his all," he said. "He enjoyed a good trial
and a good fight in the courtroom."
As to whether Mostiler was racially biased, Whalen said, "The whole thing
sounds absurd to me. I certainly would not contend he was racist at all."
Osborne's lawyers will provide the board with evidence from 2 former
Mostiler clients who said they heard him use racial slurs.
One of them, Gerald Steven Huey, said Mostiler once said of Osborne, "That
little [racial epithet] deserves the death penalty."
Both Huey, convicted in 1991 of murdering and dismembering his drinking
buddy, and Osborne were in the Spalding County jail as they awaited their
Huey said that Mostiler once told him he was going to spend a lot of money
defending Huey. "He said the money he would spend on me was going to be a
lot more than he would spend on Mr. Osborne because 'that little [racial
epithet] deserves the chair,'" Huey said.
On another occasion, Huey said, Mostiler came to him with an offer from
the district attorney to plead guilty in exchange for a life sentence. But
"Mr. Mostiler got furious and told me how lucky I was," Huey said. "He
said that he had an offer for Curtis Osborne but he would never tell Mr.
Osborne about it because he deserved to die."
Huey, dumbfounded, said he asked Mostiler if he was on a crusade,
according to his affidavit, signed in April 2001. "He said that he
believed that some people deserved to walk and some didn't, and if that
was a crusade then he was on one," Huey said.
In 2000, Derrick Middlebrooks, an African-American client of Mostiler's,
later convicted of drug offenses, told Superior Court Judge Johnnie
Caldwell he lost confidence in Mostiler when he heard the lawyer use a
Mostiller didn't deny using the term. "I honestly can't say whether I said
it or not, I don't I honestly don't remember," Mostiler said, when asked
by Caldwell about it, according to a transcript of the hearing.
"Derrick's used those terms and I've used those terms with him," he said.
"I don't use those terms out in public....If I did use it I certainly am
Before Osborne's trial, Mostiler did not request funds for a mental health
expert or for a mitigation expert to investigate his client's life.
Psychiatrist George Woods, an adjunct professor at the Morehouse School of
Medicine, said if experts had been hired, they would have learned
Osborne's family had a history of mental illness.
Osborne, who for years held a steady job at a furniture store, spiralled
out of control before the murders when he became both addicted to cocaine
and mentally ill, said Woods, hired by Osborne's legal team.
"His family history was so strong, both in terms of chemical dependency
and mental illness," Woods said. "It would have been powerful for the jury
to know that the mental illness he developed didn't just happen the day
before the offense."
This is not the only time Mostiler's failure to investigate the background
of a client in a death-penalty case has been attacked on appeal.
Frederick Whatley sits on death row for a 1995 armed-robbery murder. At
his trial, Mostiler told jurors if Whatley had stayed with his family in
Griffin, "where he had been taught right, where he had been raised
correctly, I don't think we would have been here today."
New lawyers for Whatley later investigated his background. In court
filings, they say Whatley, until he was 16, slept in the same bed with his
uncle who molested him repeatedly.
(source: Atlanta Journal-Constitution)
UA 142/08 - Death penalty/Imminent execution
USA (Georgia) Curtis Osborne (m), black, aged 38
Curtis Osborne is scheduled to be executed in Georgia at 7pm local time on
4 June. He was sentenced to death in August 1991 for two murders in August
1990. He has a clemency hearing at 9am on 30 May before the Georgia Board
of Pardons and Paroles. He has been on death row for nearly 17 years.
The bodies of Linda Seaborne and Arthur Jones were found in the front of a
car in Griffin, Georgia, on 7 August 1990. Both had been shot, apparently
from the back seat of the vehicle. Curtis Osborne was arrested and
subsequently told police that he had shot Jones, to whom he owed money,
because Jones had threatened to beat him and was reaching for a weapon. On
14 August 1991, a jury convicted Osborne on two counts of murder, finding
that Seaborne's murder was committed in the course of Jones's murder, an
aggravating circumstance that made the crime eligible for the death
penalty. The trial moved into the sentencing phase at which a number of
witnesses, including Osborne's stepfather, sister, girlfriend, former
employer and acquaintances testified to his good character and their
experience of him as a hardworking and non-violent person. Curtis Osborne
also testified on his own behalf: "There were certain circumstances that
took place that night [of the crime], and sometimes things happen out of
emotion and not just deliberation. Just things sometimes happen in certain
ways. I want to say I'm sorry and I just ask you people to have mercy on
me." On 15 August 1991, the jury recommended that Curtis Osborne be
sentenced to death. Among the issues raised on appeal has been the claim
that Curtis Osborne was denied effective legal representation at the
sentencing phase because the trial lawyer failed to present expert mental
health evidence in mitigation. Osborne's federal appeal lawyer has
presented evidence to the courts that Curtis Osborne suffered from major
depressive disorder and post-traumatic stress disorder, and that the trial
lawyer could have hired mental health experts to present such evidence to
the jury in arguing for a sentence of less than death. The courts have
rejected the claim of inadequate assistance of counsel.
At the 30 May clemency hearing, Curtis Osborne's lawyers will present the
testimony of a psychiatrist, Dr George Woods, who has interviewed Osborne
and family members and reviewed relevant medical records. He says that
"none of this was done at the time of trial, except for a brief interview
of Mr Osborne". Dr Woods states that medical health testimony would have
been important at trial to help to explain a crime that was "so out of
character with the previous person that Mr Osborne had been for many, many
years." Dr Woods found that Osborne comes from a "family of significant
physical abuse, emotional abuse as well," and that his childhood was
"profoundly isolated and abusive." He has also concluded that Curtis
Osborne's family has a "significant history of psychiatric disease" going
back at least three generations, and that Osborne himself suffered from a
major depressive disorder. From 1989, after losing his job, his mental
health deteriorated and, according to Dr Woods, Osborne began to
self-medicate with cocaine. Dr Woods suggests that the combination of
Osborne's drug use and his mental health problems would have led to a
"magnification of the paranoia, of the hyper- vigilance, of the
hyper-reactivity, and of the misperception of reality," and "impaired his
ability to conform his behavior to the law". Such evidence, Dr Woods
suggests, could have helped to explain to the jury the "tremendous change"
in the defendant leading up to the crime.
Curtis Osborne's federal appeal lawyer has also claimed that the trial
lawyer's failure to do an adequate investigation of his client by hiring
expert witnesses was born of that white lawyer's racial animosity towards
his African-American client. The appeal lawyer obtained a sworn affidavit
from a white man, Gerald Huey, who had been in jail with Osborne before
Osborne's trial and who shared the same trial lawyer, Johnny Mostiler. The
affidavit states: "The first time I recall Mr Mostiler saying anything
about Curtis Osborne's case was when he said, 'the little nigger deserves
the death penalty.' I was shocked because I knew that Mr Osborne had not
gone to trial yet - That wasn't the only time Mr Mostiler said something
like that though. I recall Mr Mostiler telling me that I wouldn't believe
the amount of money he was going to spend on my case. He said he was going
to hire a private investigator and get expert witnesses. He said the money
he would spend on me was going to be a lot more than he would spend on Mr
Osborne because "that little nigger deserves the [electric] chair." Mr
Mostiler made similar comments to me both before and after Mr Osborne's
trial." Another lawyer has recalled a case from around 1992 in which
another African-American client of Johnny Mostiler, Derek Middlbrooks,
stated in open court that Mostiler had referred to him as "one dumb
nigger" for not accepting the plea bargain offered by the state.
Questioned by the court, Mostiler reportedly replied that he could "not
recall" whether or not he had said this. Curtis Osborne's lawyer has
recently obtained the transcript of proceedings in the Middlbrooks case,
in which the defendant seeks a new lawyer because of Mostiler's alleged
use of this racial epithet. According to the transcript, Middlbrooks says
that Mostiler "indicated to me that he wouldn't, he couldn't go up there
around those niggers because them niggers would kill me." Middlbrooks
subsequently states: "I find it kind of hard, you know, kind of hard to
have an attorney to represent me when he uses those types of words; it
doesn't help my confidence in my attorney, you know." Questioned by the
court, Johnny Mostiler responded that he could not remember if he had used
this epithet, and also that he did not "use those terms out in public."
Since the USA resumed executions in 1977, 1,102 prisoners have been put to
death, 41 of them in Georgia. There have been three executions in the USA
this year, including one in Georgia on 6 May. On 22 May, the Georgia Board
of Pardons and Paroles commuted the death sentence of Samuel David Crowe
to life imprisonment without parole shortly before he was due to be
executed. Although it gave no reason for its decision, the Board had heard
testimony from various people, including a former prison officer, about
Crowe's model behavior and his remorse while on death row. In Curtis
Osborne's case, the Board will hear statements from the prison chaplain
about Osborne's constructive role on death row, and from Osborne's
daughter as to the important role he continues to play in her life. In
late 2007, the UN General Assembly passed a landmark resolution calling
for a worldwide moratorium on executions. Amnesty International opposes
the death penalty in all cases, unconditionally (see "The pointless and
needless extinction of life": USA should now look beyond lethal injection
issue to wider death penalty questions,
RECOMMENDED ACTION: Please send appeals to arrive as quickly as possible:
- expressing sympathy for any relatives of Linda Seaborne and Arthur
Jones, explaining that you are not seeking to excuse the manner of their
deaths or to downplay the suffering caused;
- opposing the execution of Curtis Osborne;
- expressing concern that the jury which sentenced him to death never
heard expert mental health evidence, that could have helped to explain the
defendant's conduct at the time of the crime;
- expressing concern at the allegations that Curtis Osborne's trial lawyer
used racial epithets to describe his African-American client in this and
at least one other case;
- welcoming the clemency granted to Samuel David Crowe;
- urging the Board of Pardons and Paroles to grant clemency to Curtis
State Board of Pardons and Paroles, 2 Martin Luther King Jr. Drive, SE
Suite 458, Balcony Level, East Tower, Atlanta, GA 30334-4909
Fax: 1 404 651 8502
Email: Webmaster at pap.state.ga.us.
Salutation: Dear Board members
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(source: Amnesty International USA)
LOUISIANA----impending female execution stayed
N.O. cop killer's execution canceled----Antoinette Frank gets more time to
The Louisiana Supreme Court on Friday canceled the July 15 execution of
cop killer Antoinette Frank, ordering a local judge to allow more time for
her lawyers to file a post-conviction appeal of her 1995 sentence for 3
Instead of a July execution, Frank will receive an additional 90 days in
which to file her appeals, 6 justices ruled Friday, granting the defense
The 90-day clock begins on June 10 -- the deadline that a local court had
given Frank to file her appeal at Orleans Parish Criminal District Court.
Frank, 37, remains on death row at the women's prison at St. Gabriel,
awaiting the state's lethal injection needle for the shooting deaths of
New Orleans police officer Ronald Williams, 25, and siblings Cuong Vu, 21,
and Ha Vu, 17, at the Kim Anh restaurant where all of them, including
Frank, had worked.
Orleans Parish Criminal District Court Judge Frank Marullo, acting on his
own, signed the death warrant April 22 as the Williams family watched in
court. Marullo said then that the 13-year-old case has been
"well-litigated" and that he was following the law, which requires that a
capital case be "handled expeditiously."
The state prison at Angola, where all executions take place, didn't expect
the July 15 date to hold. Officials there said last month that they
haven't updated the "media witness" list for executions since the last
time the prison held a lethal injection 6 years ago.
Louisiana last executed a convicted killer on May 10, 2002, at Angola.
Leslie Dale Martin died by lethal injection for the rape and strangulation
of Christina Burgin in Calcasieu Parish.
Frank's attorney, Gary Clements, of the Capital Post-Conviction Project of
Louisiana, said that Frank's appeal has really only just begun. Frank has
a constitutional right to begin the state post-conviction stage of her
appeal and, if unsuccessful there, turn to the federal system for relief.
About 90 convicts remain on the state's death row. Clements said that
Frank is among 66 condemned inmates who have yet to exhaust their state
Frank's former attorneys, Denise LeBoeuf and Nick Trenticosta, did not
file for a re-hearing before the U.S. Supreme Court, which in February
denied their request to revisit Frank's death sentence, the judge noted.
Their failure to file for a rehearing, Marullo wrote in the death warrant,
is equal to "finalizing the judgment and sentence reached by the trial
Separate juries in 1995 found that both Frank and her cohort, Rogers
LaCaze, orchestrated an ambush on the Kim Anh restaurant in eastern New
Orleans and deserve execution for the triple murder.
Williams, 25, had worked with Frank in 1995 when she was a 23-year-old
NOPD rookie officer moonlighting at Kim Anh for security details.
(source: New Orleans Times-Picayune, May 17)
South Euclid ax murderer spared death penalty----He gets life without
parole for killing 2
Carlos Christopher found mercy in a Cuyahoga County courtroom Wednesday,
but not forgiveness.
A 3-judge panel spared him from a death sentence for robbing and killing a
South Euclid couple in their home. But the 20-year-old Christopher must
spend the rest of his life in prison, with no hope for parole.
The decision brought a measure of relief to some of the victims' family
members. Others left bitter.
Christopher used an ax to murder Richard Messina Sr. and Sandra Cover on
July 29 while they slept.
"God may forgive him, but my family will not," Cover's sister Brenda
Gregory told the judges before they sent Christopher to prison. "He will
never see the light of freedom again, and I thank you for that."
Richard Messina Jr. told the judges he was disappointed with the decision.
"My dad wasn't given mercy," he said, breathing heavily. "While his
adopted mother will get to visit him in jail, we get to visit a grave."
Common Pleas Judges Timothy McMonagle, Kenneth Callahan and Lillian Greene
convicted Christopher last week and returned Tuesday to decide his
The defendant took the witness stand early Wednesday. He looked away from
the families' menacing stares as he offered an apology but not an
explanation for his crimes.
"I want to say I'm sorry for causing so much trouble and pain," he said.
Christopher and his 19-year-old girlfriend, Tabitha Messina, were arrested
days after the slayings. Tabitha Messina, the slain man's daughter, also
faces capital murder charges and is to go on trial later this year.
During closing statements, defense attorney John Pyle argued that
Christopher should get life in prison with the possibility of parole. He
said Christopher was provoked the night of the homicides.
"What we had here in this case is a windstorm, and those winds joined that
tragic night and this was fueled by one word," Pyle said, referring to a
racial slur he said Richard Messina Sr. uttered to Christopher hours
before the homicides. "We all know this word. Not only is it a word that
ridicules persons of color, it tells them they're less than human. Words
hurt. And this was one of them."
Pyle presented witnesses who described Christopher's tumultuous childhood
and how his experiences led to these crimes. Christopher was born in a
jail in Brazil where his birth mother was incarcerated for drug abuse and
stealing. His father died of AIDS in jail when Christopher was a young
boy. Christopher also had language-based learning disabilities, dyslexia
and attention deficit hyperactivity disorder. He used the drugs Ritalin
He came to the United States at age 8 to live with a foster mother, Lucy
Joann Bartell, the slain woman's mother, called the defense's argument
"My 7 kids had rough childhoods, too, but none of them turned into
mass murderers," she said.
"He had more help than most kids get and he threw it right back in our
Assistant County Prosecutor Steve Dever called the killings a bloodbath.
He said he hopes the state prison system puts Christopher in the "deepest,
darkest dungeon because he's a dangerous man."
(source: Plain Dealer)
Jefferson Circuit judge says DNA testing can continue in '79
murder----Results could free death row inmate
A Jefferson Circuit Court judge has ruled that the Kentucky State Police
Crime Lab can continue DNA testing that could exonerate death row inmate
Brian Keith Moore in the 1979 murder of a Louisville man.
Prosecutors with the state attorney general's office had persuaded the lab
earlier this month to stop tests on DNA evidence found on the clothing
reportedly worn by the killer in the slaying of Virgil Harris. Prosecutors
contended a DNA sample taken from Moore might not have been obtained
An attorney for Moore collected the DNA sample without state lab
technicians or police present.
Late last week, Judge James Shake denied the prosecution's request for an
official order prohibiting further testing, but he noted that "any flaws
in the collection process" can be challenged later.
Prosecutors had also argued that they have not been allowed to talk to the
state crime lab and are unsure if the testing can even produce reliable
results, since the DNA evidence found was limited.
Shake ordered that the prosecution and defense have "equal" access to the
Allison Martin, a spokeswoman for Attorney General Jack Conway, said
prosecutors were reviewing the judge's decision.
David Barron, an attorney for Moore, said testing is expected to resume no
later than early next week. He said the judge obviously agreed that the
testing needs to move forward.
"If the (prosecution) has concerns about the results, they can challenge
them when the results are known," he said.
Barron expects to get the results in about a month.
Moore has claimed he was set up by another suspect in the killing. He was
sentenced to death in the kidnapping and killing of Harris, a Louisville
man who was on his way to his 77th birthday party.
In 2006, Moore became the first Kentucky death row inmate to win DNA
testing when Shake ordered an examination of multiple pieces of clothing
under a law allowing condemned inmates whose cases predate DNA technology
to ask that old evidence be tested.
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