[Deathpenalty] death penalty news----TEXAS, TENN., MASS., USA, OHIO
rhalperi at smu.edu
Tue Aug 23 09:44:56 CDT 2011
5th Circuit reverses itself; reinstates guilty decision in officer's death
2 years after reversing the capital murder conviction of a Houston man
convicted of killing a police officer, the 5th U.S. Circuit Court of Appeals
has reversed itself and reinstated his guilty verdict, apparently clearing the
way for his execution.
Acting in light of a U.S. Supreme Court decision on the case last year, the 5th
Circuit opinion reinstated the conviction of Anthony Cardell Haynes for the
death of Houston Police Sgt. Kent Kincaid in 1998. In its opinion, issued
Friday, the court ruled that the original reason for tossing out the conviction
was not technically required by law.
The 5th Circuit had reversed Haynes' conviction in 2009 because of what it
called an error by a trial judge during jury selection. Haynes is black, and
prosecutors had used four of their peremptory strikes to knock black panelists
off the jury. Race cannot be used as a reason to strike potential jurors, and
Haynes' lawyers said District Court Judge Jim Wallace had erred when he
overruled defense objections over the striking of 2 of the 4. Only 1 black
person served on the jury. Haynes' trial was unusual. Two judges, Wallace and
Lon Harper, split the pre-trial duties. Harper had witnessed the questioning of
the two potential jurors at issue. But it was Wallace who had to rule on the
Because prosecutors claimed it was the demeanor of the two potential jurors -
not their race - that got them bumped, it only made sense that the judge who
actually saw their demeanor should have to rule on the objection, Haynes'
appellate lawyer argued.
'Entirely on demeanor'
The Texas Court of Criminal Appeals upheld the conviction. But the 5th Circuit
agreed with Haynes' argument, saying in its 2009 ruling that "it is clearly
established that the cold record cannot accurately reveal the demeanor of live
Because the Texas appeals court looked only at the written record, the 5th
Circuit judges said that it did not find it necessary to defer to the TCCA's
judgment on "an issue that turns entirely on demeanor."
The state, in turn, appealed to the Supreme Court. The high court overturned
the 5th Circuit's reversal, saying it has never decreed precisely what a judge
has to do when considering whether a juror had been improperly struck because
of race. A judge must only follow the general rule of undertaking a "sensitive
inquiry" into evidence surrounding the prosecutors' intent, and take into
account all possible explanations, the court stated.
"This general requirement, however, did not clearly establish the rule on which
the Court of Appeals' decision rests," the Supreme Court stated last year.
As for the 5th Circuit's assertion that a review of the written transcript
can't provide much insight into the way a potential juror acted while being
questioned, the high court said that does not matter.
Even if a judge was not present and thus could not directly observe demeanor or
body language or facial expressions, that doesn't mean the judge has not
explored the matter with whoever was there.
And the fact that the printed record is not insightful doesn't mean anything
either because one cannot assume the judge making the ruling relied solely on
the record, the Supreme Court said.
No serious trouble before
The circumstances surrounding Kincaid's off-duty death were as unusual as jury
selection for the trial, during which Harper was spotting cleaning a pistol
while seated on the bench. Kinkaid was driving with his wife in his personal
car when Haynes drove past him and appeared to toss something that hit and
cracked his windshield.
Kincaid, who was not in uniform, followed Haynes until he stopped. When Kincaid
jumped out of his car and approached Haynes' vehicle, he identified himself and
reached behind him, supposedly for his badge. Haynes then shot him with a
.25-caliber pistol. Haynes later claimed that he was not certain Kincaid was a
police officer and feared that Kincaid might be reaching for a weapon.
It was later determined that Kincaid's windshield had been hit with a .25
caliber bullet. Haynes, the son of a onetime Houston Fire Department arson
investigator, had been involved with two other young men who, evidence showed,
would shoot or strike the windshields of motorists to get them to stop, then
Haynes, who had not been in serious trouble before Kincaid's shooting, blamed
his involvement on drugs. He said he fell in with a bad crowd and quickly
spiraled downward. He was only 19 at the time, and jurors wrestled with the
sentence for three days before finally agreeing to give him death.
(source: Houston Chronicle)
South Texas man who killed 4 could get death penalty
A South Texas man convicted of killing his mother-in-law, his toddler son and
his 2 stepsons could get the death penalty.
The punishment phase is scheduled Monday in Edinburg for 45-year-old Roberto
A jury last week formally convicted Rojas of capital murder, after he pleaded
guilty to the shootings. His estranged wife was wounded in the 2008 gunfire at
the home of her parents, where she and her three sons had been staying. The
boys were all under age 9.
(source: Associated Press)
Defense on attack in Memphis death row case----Attorneys claim prosecutors
Death row inmate Michael Dale Rimmer has been convicted once and sentenced
twice for the 1997 murder of former girlfriend Ricci Lynn Ellsworth.
His case, however, is far from over.
Although the former Southaven resident's conviction and second death sentence
have been upheld by the Tennessee Supreme Court, the next stage -- Rimmer's
post-conviction appeal set for December -- promises to be every bit as
contentious as the original trial.
On Friday, the state's Court of Criminal Appeals ordered the Attorney General's
Office to respond to defense claims that prosecutors purposely withheld
information favorable to the defense and that a police officer gave false
testimony in the second sentencing hearing in 2003.
Prosecutors deny the claim, but in May a judge ruled that prosecutor Tom
Henderson could no longer be on the case since he likely will be called as a
witness in the post-conviction hearing.
Criminal Court Judge James Beasley Jr. made no finding of wrongdoing, but said
there was "the potential appearance of impropriety" for the veteran prosecutor
to remain on the case.
Beasley, however, denied the defense request to disqualify the entire Shelby
County District Attorney's Office and to have a special prosecutor appointed.
The judge added that the missing evidence was of "minimal" importance in the
resentencing of Rimmer.
The defense will appeal.
"This case raises serious issues regarding the integrity of the judicial
process in a capital murder case," wrote Kelly Gleason, an assistant with the
Office of the Tennessee Post-Conviction Defender in Nashville. "Under the facts
presented and those found by the post-conviction court (Beasley), the Shelby
County District Attorney's Office must be disqualified from this case."
Henderson said he could not comment, but Deputy Dist. Atty. Gen. John Campbell
said there has been no misconduct on the part of Henderson or anyone else in
the office in the Rimmer case.
"I'm still on it and the office is still on it," said Campbell, who handles
post-conviction appeals in capital cases. "There has been no ruling of
misconduct. We say the evidence was very clearly turned over to the defense. We
intend to vigorously oppose any allegation that says Tom intentionally
Although Ellsworth's body was never found, prosecutors built a strong
circumstantial case against Rimmer, now 45 and in his 13th year on death row at
Riverbend Maximum Security Institution in Nashville.
While serving prison time for beating and raping Ellsworth, Rimmer told another
inmate he was going to kill her when he was released, according to testimony in
4 weeks after Ellsworth's disappearance on Feb. 8, 1997, from her night clerk
job at an East Memphis motel, Rimmer -- the prime suspect in the case -- was
arrested in Indiana driving a stolen car with a large stain of blood in the
DNA tests showed the blood was consistent with a female offspring of
Ellsworth's mother and with blood found in the motel office.
When accused by police of killing Ellsworth, Rimmer replied: "She can't be
dead, because you don't have a body."
Rimmer, who made at least three escape attempts, was convicted and sentenced to
death in 1998. Three years later an appeals court awarded him a news sentencing
trial because of irregularities in the jury's verdict form.
In 2003, and with a new jury, Rimmer again was sentenced to death, a finding
affirmed in 2008 by the Tennessee Supreme Court.
The following year, Rimmer's defense sought to disqualify the Shelby County
DA's office from post-conviction appeals claiming Henderson failed to turn over
evidence that a witness identified someone other than Rimmer at the motel crime
At the 2nd sentencing, the defense said, police Sgt. Robert Shemwell falsely
testified that the witness, James Darnell, had not identified anyone from a
Darnell, in fact, said he saw 2 men at the motel office that night, with blood
on their knuckles, and picked a convicted criminal, Billy Wayne Voyles, from a
series of police mugshots.
Beasley ruled that since the resentencing hearing occurred several years after
Rimmer's conviction and since the hearing was not about guilt or innocence,
Shemwell and Henderson may have simply forgotten that Darnell identified
"Subsequent investigation revealed that Voyles could not be linked to the crime
and substantial evidence was developed linking (Rimmer) to the murder of the
victim," the judge continued. "Thus it is possible that both Shemwell and
Henderson found Darnell's photo identification of Voyles to be of little
consequence to the case."
Nevertheless, Rimmer's defense team argues the District Attorney's Office must
"Now the prosecutors are faced with a competing duty of loyalty to their office
and defense of the conviction, regardless of whether it was a just conviction,"
Gleason wrote in court papers. "Furthermore, prosecutors confronted with
allegations of misconduct also have personal interests of vindication from the
allegations. It is this divided loyalty that creates an actual conflict of
Memphis Commercial Appeal)
Book portrays injustice of immigrants' 1927 executions----Barrington writers
workshop helps man craft novel
After years of research into thousands of pages of documents, 83-year-old
author Ted Grippo says he's found new proof of injustice and abuse in the
executions 84 years ago today of Italian immigrants Nicola Sacco and Bartolomeo
As a child, Ted Grippo heard his Italian immigrant father talk about the
controversial case. Now, Grippo has written a book documenting the abuses that
led to the executions of Nicola Sacco and Bartolomeo Vanzetti 84 years ago
Born just months after Italian immigrants Nicola Sacco and Bartolomeo Vanzetti
were executed on Aug. 23, 1927, for murders many thought they didn't commit,
Ted Grippo grew up hearing his father's version of what happened.
“He spoke in terms of sadness and fear. He spoke with great emotion about it
and that stuck with me,” says Grippo, an 83-year-old retired lawyer and author
of a groundbreaking new book on a case that still echoes among
Italian-Americans, immigrants, and those concerned with civil rights and
Donato Grippo identified with Sacco because they both were Italian immigrants
who not only repaired shoes for a living, but also shared many of the same
fears and prejudices in 20th-century America, Ted Grippo says of his father.
The executions of Sacco and Vanzetti, anarchists during an age of frequent and
sometimes violent protests against the United States government's crackdown on
Communists and others during the Red Scare of the 1920s, fueled protests around
the world. Today's anniversary of their executions is still remembered in many
After World War I, Donato Grippo opened a shoe-repair business in Hinsdale that
was so successful it led to a chain of stores. He moved to Chicago, where he
and his wife raised their daughter and son in a neighborhood where
Italian-Americans were a minority.
Ted Grippo says he endured the name-calling, slurs and prejudice that many
immigrant groups have faced throughout our history and still face in America.
His parents sent him to a Maryland boarding school for high school. He
graduated from Georgetown University with a degree in economics, and got his
law degree from Northwestern University in 1953. But he remembers having a
difficult time finding a job because some law firms told him they didn't want
to hire Italian-Americans.
After a stint as an enforcement attorney for the Illinois Secretary of State's
office, Grippo eventually became the commissioner of the Illinois Securities
Department and went on to success in the private sector working with mergers,
acquisitions, divestitures and other legal matters for many of the top
businesses in the United States and abroad. But the Sacco and Vanzetti case
that hit home with his father never was far from Grippo's mind.
“I wanted to study it, but I couldn't get to it because I was too busy raising
a family and stuff,” says Grippo, who started his intense research for his book
after retiring from his Grippo & Elden law firm. Now living in Northbrook,
Grippo and his longtime wife, Marlene, have seven children between them and
Having read dozens of books and articles on the Sacco and Vanzetti case, Grippo
used his legal background to start afresh. Searching the web, he found old
documents, letters and photos, and purchased a complete 6-volume set of the
case's legal dockets that once belonged to the Oregon State Library.
“What kind of nerd am I?” chuckles Grippo, who scoured 6,000 dense pages of
seemingly routine courtroom summaries and uncovered a nugget he calls “The
Rosetta Stone” of the controversial case. Sacco's gun had been tampered with
during the trial but still remained a key piece of evidence. In the court
dockets, Grippo found entries for appeals about that ruling that apparently
disappeared from the other court records. This proves judicial and
prosecutorial misconduct, Grippo argues.
“Whoever was responsible for that obstruction neglected to eliminate the Docket
Entries,” Grippo writes, “the only mistake to an otherwise perfect alteration
of the record of this case.”
A founder of the American Italian Defense Association, Grippo once lost a
lawsuit filed against “The Sopranos” complaining about that show's depiction of
Italian-Americans. His self-published book should have a much greater chance of
“It is definitely the immigrant story,” says Beverly Ottaviano, manuscript
chairman of the Tuesday morning Barrington Writers Workshop, where Grippo came
for the last 2 years to get feedback from other writers. Grippo says he also
honed his book during Wednesday night meetings of that group.
“We love Ted,” says Ottaviano. “We helped Ted get to a place where he could get
his story out to a broader audience.”
“With Malice Aforethought” is published through iUniverse and is available at
iuniverse.com, barnesandnoble.com, amazon.com and bookstores.
“My passion,” Grippo says, “is to try and set the record straight.”
(source: Daily Herald)
Somali pirates given life in US prison
2 Somali men who pleaded guilty to piracy for a hijacking that ended in the
deaths of 4 American sailors have been sentenced to life in prison.
Burhan Abdirahman Yusuf and Ali Abdi Mohamed are among 11 men who have pleaded
guilty over the February hijacking of the S/V Quest off Oman.
The boat's owners and two guests were shot dead before American naval commandos
could rescue them.
3 other men have been charged with murder over the attack.
The group of pirates were negotiating with the US military to release the
Americans - Scott and Jean Adam, Bob Riggle and Phyllis Macay - when a
rocket-propelled grenade was fired from the yacht at the guided-missile
destroyer USS Sterett.
Gunfire then broke out inside the yacht, and US special forces were sent to
investigate. The pirates killed their hostages before the troops boarded, the
US military said.
The troops shot dead two pirates as they boarded and another 2 were found dead
when they arrived.
Mohamed, 30, apologised on Monday as he received the life sentence, the
Associated Press reported.
Also, a lawyer for Yusuf, who is 31, told a federal judge he wanted the 2 women
released from the vessel before the fatal conflagration.
In May they pleaded guilty to piracy, which carries a mandatory life sentence.
Their nine co-conspirators are to be sentenced in the coming weeks.
Ahmed Muse Salad, Abukar Osman Beyle and Shani Nurani Shiekh Abrar have been
charged with murder and kidnapping over the deaths. They could face the death
penalty if convicted.
(source: BBC News)
Court backs death sentence for Ohio killer of 2
A federal appeals court has reinstated the death sentence of an Ohio man
sentenced to die a quarter-century ago for shooting and killing 2 women in the
The court by a 10-5 vote on Monday rejected arguments by 45-year-old William
Montgomery that he might not have been convicted if his attorneys had seen a
key police report before trial.
Witnesses cited in that report claimed to have seen one of the victims alive
several days after she was allegedly shot in 1986.
Sixth U.S. Circuit Court Judge Julia Smith Gibbons in Cincinnati says other
evidence indicating that Montgomery killed Debra Ogle days earlier outweighed
any help Montgomery might have received from the report.
Defense attorney Richard Kerger says Montgomery will appeal to the U.S. Supreme
(source: Associated Press)
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