[Deathpenalty] death penalty news-----OHIO, GA., W. VA.

[Rick Halperin]

Oct. 3


OHIO:

Appeals court tosses death sentence for Ohio man


A federal appeals court on Friday threw out the death sentence of a man
convicted of beating and raping a woman and dumping her body in an
abandoned building in 1993.

A 3-judge panel of the 6th U.S. Circuit Court of Appeals issued a
split-decision in the case of Maurice Mason.

The panel by a 2-1 vote held that Mason had poor legal help in the
sentencing portion of his 1994 trial in Marion County in the death of
Robin Dennis, 19, of Essex.

The appeals court said Mason's lawyers failed to interview his family and
investigate "the obvious red flags" in state records suggesting that
Mason's childhood was pervaded by violence and exposure to drugs in the
home from an early age.

Prosecutors have six months to hold a new sentencing hearing, the court
said.

The state will review the decision and consider its options, which include
asking for a review by the full court, said Jim Gravelle, a spokesman for
the Ohio attorney general's office.

David Stebbins, who represented Mason on appeal, praised the ruling.

"Obviously we have been litigating this for a long time," he said. "Trial
counsel had simply not done an investigation into his background and his
entire childhood was not presented."

Stebbins said Mason's parents were drug dealers who sold drugs out of
their home, Mason's father ran a prostitution ring and there was violence
in the house - with Mason's mother once shooting his father in front of
their children.

Judge Karen Nelson Moore, joined by Judge Eric Clay, delivered the 6th
Circuit opinion that reversed a 2005 federal district court decision
denying Mason's petition.

Chief Judge Danny Boggs dissented, writing that the opinion "sets an
almost impossibly high bar for defense counsel in capital cases."

Dennis' body was found inside an abandoned building in rural Marion County
on Feb. 13, 1993. An autopsy concluded that she was struck in the head and
her skull was fractured. Mason was convicted June 18, 1994, in Marion
County Common Pleas Court of rape and aggravated murder with a death
penalty specification that the murder occurred during the commission of a
rape.

On the Net: 6th Circuit: http://www.ca6.uscourts.gov

(source: Associated Press)






GEORGIA:

Witness describes gunpoint encounter with Nichols


Iman Adan fled a civil war in Somalia as a child but she never feared
getting shot until confronted by Brian Nichols.

Nichols accosted her at gunpoint in her apartment building near Lenox
Mall, trailing her from the gym after she finished working out about 10
p.m., just hours after the Fulton County Courthouse shooting, Adan
testified Thursday at Nichols murder trial.

She said Nichols was wearing a hat and red jacket - clothing that was
different from what witnesses had described him wearing as he fled
downtown Atlanta earlier that day.

"Before he took his hat off, he said 'Do you know me?'" said Adan, who
didn't recognize him. "Then he took his hat off and said, 'How about now?'
And I remembered the picture I saw at the gym."

"He said, 'I'm Brian Nichols - I'm the guy on TV. I don't want to hurt
you. I just need a place to hide for a few days."

Adan, who was 23 at the time, said Nichols then said something she found
strange.

"He said the police and everybody have a war on me," said the Somali
immigrant whose image of war was of opposing armies.

For Nichols' attorneys, Adans testimony about "a war" provided the first
handhold for their insanity defense during the 9-day-old death-penalty
trial.

Nichols, who has admitted killing a judge, a court reporter and a deputy
sheriff at the courthouse on March 11, 2005, plusanother man later during
a robbery, claims delusions caused him to see himself as a "soldier" in a
armed struggle against the justice system that he viewed as unfair to
blacks.

Adan told Robert McGlasson, a defense attorney, that he was the first
investigator to inquire about Nichols war comment.

"I didn't understand what he meant about a war," she said.

But she said on that day 3 1/2 years ago that she feared Nichols would
kill her and her boyfriend, Shelton Warren, who lived with her in her
apartment at the Summit at Lenox.

Warren testified that when he opened the apartment door, he didn't
immediately see the gun, which Nichols had stuck in Adan's back.

"When he said, 'Don't try nothing,' I looked at him again and I realized
this was the person I saw on TV."

Adan said Nichols wanted to use the apartment. Warren said he pushed his
girlfriend inside and started to wrestle with Nichols.

"Lock the door," he said he shouted at Adan who was then picking herself
up off the floor. He said as he turned back around to fight after Adan
barricaded herself in the apartment, Nichols pistol-whipped him but didn't
try to shoot him.

"We were just standing there, and he turned and went down the hallway,"
Warren testified.

Inside the apartment, he could hear a hysterical Adan talking to a 911
operator. The tape of the call, played in Superior Court Thursday,
chillingly evoked Adan's wailing and fear: she was so afraid she wouldnt
check on her boyfriend.

Nichols could hear Adan calling police, Warren said. "If I heard it, he
heard it," Warren said.

She made the call at 10:18 p.m. Police arrived at 10:25 pm.

Warren said police didn't seem to believe him when he said he had been
fighting Nichols. According to prosecutors, later that evening, Nichols
would kill David Wilhelm, an off-duty federal agent, who was laying tile
at the house he was renovating, bout 10 minutes away from the apartment by
foot.

The manhunt for Nichols had started about 9 a.m. that day but Thursdays
testimony revealed a confused and overwhelmed police department that
overlooked witnesses and evidence that would have told them Nichols had
escaped downtown Atlanta by taking a MARTA train toward Buckhead.

After Nichols escaped from his holding cell on March 11, 2005, he
allegedly killed Superior Court Judge Rowland Barnes, who was presiding
over Nichols' rape trial, and his court reporter, Julie Ann Brandau, in
courtroom 8H, He's also accused of gunning down Deputy Hoyt Teasley on a
street outside the courthouse about 9:05 a.m. that day.

For hours, scores of police officers searched in vain for a green Honda
Accord that Nichols had purportedly hijacked in a CNN Center parking
garage when they should have known that Nichols had left the garage on
foot, according to today's testimony.

Chico Robinson, senior investigator for CNN security, testified he had
viewed a surveillance tape of Nichols leaving the garage by a stairwell
almost immediately after the time established by another man, who
testified that Nichols tried to carjack him in the garage at 9:15 a.m.

Robinson said he gave Atlanta Police a copy of the tape 30 minutes after
the attack. At 9:57 a.m. Nichols walked through the Five Points MARTA
Station and boarded a train headed toward Buckhead, according to the time
stamp on a surveillance camera.

Michal Taylor, an interior designer, said she boarded an empty MARTA train
at the station about 10: a.m. to go to Midtown. A moment later, Nichols
also boarded the car and sat rigidly, staring at her, Taylor said. She
noticed him because he was wearing a suit jacket without a shirt, black
tennis shoes without shoelaces and "he was sweating profusely" despite the
nippy weather.

"He was watching me and I was watching him," she said. "I didn't know what
he had done, but I was very afraid of him because he was sweating."

She said the man stayed on the train when she exited at Midtown less than
10 minutes later. By 10: 30 a.m., she said she knew from media reports the
man was Nichols, and she called police.

She said she couldn't get through to a 911 operator for 3 hours and then
she was transferred to a call center because of the high volume of 911
calls. No investigator interviewed her even by phone until the next day,
when she was finally able to give a description of the man she identified
as Nichols.

By the time she spoke to the police, however, Nichols was suspected of
killing David Wilhelm, a U.S. Customs' agent, whose body had been found by
carpenters on March 12. Nichols surrendered to police later that day.

"He was already captured on television before somebody talked to me," she
said.

(source: Atlanta Journal-Constitution)





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

Finality Over Fairness: The Troy Davis Case----by William S. Sessions,
partner Holland & Knight, former FBI director and former Chief Judge,
United States District Court for the Western District of Texas


The release of 130 individuals from death row has made clear that the
administration of the death penalty is not infallible. When there are
important questions about whether someone facing execution is actually
guilty, those questions must be examined and resolved before the ultimate
punishment is meted out. On Monday, October 6, the U.S. Supreme Court will
likely announce its answer to such a question, and its decision literally
means life or death for Troy Anthony Davis.

Mr. Davis has been on death row in Georgia for more than 17 years for the
murder of a police officer, and related violent crimes. I was the director
of the FBI under Presidents Reagan, Bush, and Clinton, and I believe that
there is no more serious violent crime than the murder of an off-duty
police officer who was putting his life on the line to protect innocent
bystanders.

That being said, we must be convinced that the right person has been
convicted. Serious questions have been raised about Mr. Davis's guilt. The
murder weapon was never found and other important physical evidence was
missing. Key witnesses made inconsistent statements, and 7 out of the nine
non-police witnesses have now recanted or changed their original
testimony, some stating that they had been pressured by the police to
implicate Mr. Davis. 1 of the 2 witnesses who has not recanted his
testimony has now been implicated as the real murderer by 2 witnesses at
trial and four new witnesses. In addition, concerns have been raised about
the conduct of the police and prosecutors.

It also appears that the quality of legal representation Mr. Davis
received during trial was, by his own laywer's account, seriously
deficient. Whle Mr. Davis's case proceeded through the courts, the budget
of the Georgia Resource Center stated in an affidavit that, "We were
simply trying to avert total disaster rather than provide any kind of
active or effective representation."

The courts considering Mr. Davis's case properly administered procedural
rules that prevent those courts from considering claims that were not
raised at the right time or in the right manner. However, these rules can
be too restrictive and can prevent the courts from dispensing justice.
Presently, the rules can stop the courts from hearing claims of innocence,
such as in Mr. Davis's case. They can prevent the courts from hearing
these claims even if the reason they were not properly raised was because
of an overburdened lawyer with insufficient resources, such as in Mr.
Davis's case. As a result of these procedural obstacles, no court has
examined the claims Mr. Davis's current legal team has raised.

I am a member of the Constitution Project's bipartisan Death Penalty
Committee, which includes supporters of the death penalty, like me, as
well as opponents. We are united in our profound concern that in recent
years, and around the country, procedural safeguards and other assurances
of fundamental fairness in the administration of capital punishment have
been revealed to be deeply flawed. 2 of our consensus findings from our
report on the death penalty apply directly to Mr. Daviss case. First, we
condemned the kinds of procedural barriers that prevented the courts from
addressing the merits of Mr. Davis's case and we recommended that they be
eliminated. Second, we insisted that capital defendants have competent
lawyers with adequate resources, which Mr. Davis's own lawyer stated
(through no fault of his own) was not provided in his case.

Former Chief Justice William Rehnquist once wrote that the judicial
system, "like the human beings who administer it, is fallible." I agree.
Especially when it comes to a human life, the courts should always be able
to examine claims of innocence.

On September 12, the Georgia Board of Pardons and Paroles denied Mr. Davis
petition for clemency and scheduled his execution for September 23 at 7
p.m. 2 hours before the execution was to take place, the U.S. Supreme
Court granted a stay of execution until it could vote on whether to grant
a writ of certiorari  that is, to decide to hear his case.

I hope the Court will grant certiorari to avoid a miscarriage of justice.
At the very least, Mr. Davis' substantive claims must be examined. The
political process has failed Mr. Davis. Let us hope that the court of last
resort rises to the challenge.

(source: ACS Blog)






WEST VIRGINIA:

Capital punishment still ongoing issue


A recent U.S. Supreme Court hearing put the debate over the death penalty
back in the forefront of American politics and moral values.

The Supreme Court decided not to overturn its ruling in the Kennedy v.
Louisiana court Wednesday. In June, the court ruled that non-homicidal
offenses against individuals are not eligible to be up for the death
penalty. This case, Kennedy v. Louisiana, also reversed Patrick Kennedy's
death penalty sentence for child rape.

"I do not think the death penalty is ever the best form of punishment,"
said Leah Mulcay, adjunct professor of criminal justice at Marshall
University. "When you look at the topic from an economic standpoint, the
costs are significantly higher to put someone on death row as opposed to
giving them life in prison. The typical estimates show that the modern
death penalty system costs several times more than life imprisonment."

Mulcay also mentioned the process of putting someone to death is extremely
long and drawn out, making it difficult for the family of the victim to
get any type of closure.

In 1965, West Virginia became the twelfth state to banish the death
penalty - a topic in which West Virginia is ahead of the curve.

Throughout the world, most industrialized nations have moved away from
using the death penalty. At this time, only the United States, South Korea
and Japan still use the method of execution.

According to FBI data, a steep majority of the states that have abolished
the death penalty have homicide rates that are well below the national
average. This is good for West Virginia, except for the fact that all
states bordering the Mountain State still have capital punishment in use,
with Ohio and Virginia receiving two of the highest rates of execution in
the country.

A study by the New York Times found that states with and without the death
penalty had homicide rates that were roughly the same. According to the
statistics, the conductors of this study said they believe that the threat
of capital punishment does little to deter crime.

Even with the amount of research that has gone into trying to prove the
death penalty does not deter crime, a majority of Americans are still in
favor of it.

According to a poll by the Pew Research Center in 2007, 62 % of Americans
continue to support the use of the death penalty. This poll, which was
based on telephone interviews, was conducted by Schulman, Ronca &
Bucuvala, Inc., and had a national base of 3,002 adults. According to this
research, support for the death penalty has been on the rise since 1972
when the Supreme Court temporarily abolished the death penalty.

Even though a majority of Americans are in favor of the death penalty,
some religious groups still tend to oppose capital punishment.

The Presbyterian Church has made its opinion known about the death penalty
saying that "capital punishment is an expression of vengeance which
contradicts the justice of God on the cross," according to the minutes of
the 190th General Assembly of the Presbyterian Church of the United
States.

Dana Sutton, Presbyterian campus minister at Marshall University, was
unavailable for comment at the time of this article.

While it is to be expected that some religious groups would disagree with
capital punishment, it is a growing trend for members of the criminal
justice system to oppose the death penalty as well.

"Those who commit crimes that would allow for capital punishment are
hardened criminals who care more about carrying out their crime than they
do about the consequences," Mulcay said. "This type of person does not
value human life, and in most cases, that includes their own life."

With this being an election year, it is important to know presidential
candidates Barack Obama and John McCain's stance on the issue.

While Obama and McCain both disagreed with the Supreme Court's decision to
prohibit the execution of child rapists, that is where the similarities
end. McCain tends to favor the use of capital punishment while Obama
believes that the death penalty does little to deter crime.

"One's position on the death penalty relates to the perspective he or she
has on crime and punishment generally," said George Davis, political
science professor at Marshall University. "Most studies suggest
conservatives are much more likely to place blame for crime on the
individual criminal. They do not buy the argument that criminality has
social causes. This means they are more likely to endorse harsher forms of
punishment like longer sentences, 'three-strikes' policies and the death
penalty."

Opinions will differ on the topic of capital punishment until the
government of the United States makes a blanket statement for or against
the death penalty.

"It is important to understand that giving the death penalty to a person
does not mean you are reducing crime," said Mulcay. "Even if you take the
life of one murderer, there will always be more to follow."

(source: Marshall Parthenon)