[Deathpenalty] death penalty news----FLA., ALA., N.C., OHIO

[Rick Halperin]

Sept. 8


FLORIDA:

Federal appeals court lifts Valle execution stay----Gov. Rick Scott will be 
able to reschedule the execution of Manuel Valle, after a federal appeals court 
lifted a temporary stay of execution.


A federal appeals court has lifted the latest stay in the case of Manuel Valle, 
allowing Valle’s twice-delayed execution to move forward.

The U.S. Court of Appeals for the Eleventh Circuit in Atlanta on Thursday ruled 
against Valle’s claim that he was improperly denied a clemency hearing. The 
court lifted a stay previously in place until 7 p.m., paving the way for Gov. 
Rick Scott to reschedule Valle’s execution.

The governor has 10 days to order an execution after a stay is lifted.

Valle was sentenced to death for shooting and killing Coral Gables Police 
Officer Louis Pena during a routine traffic stop in 1978.

Scott signed Valle’s death warrant — the governor’s first — earlier this summer 
and originally set the execution for Aug. 2. The Florida Supreme Court delayed 
the execution for a month to determine if the new use of a drug in Florida’s 
lethal injections, pentobarbital, was safe and effective.

The high court signed off on the drug, and Scott rescheduled the execution for 
Sept. 6.

Last Friday, the federal appeals court granted another stay, this time to allow 
Valle’s lawyers and the Florida attorney general’s office to address Valle’s 
clemency claim.

His lawyers have argued that then-Gov. Lawton Chiles ordered a clemency 
proceeding in 1992, but the state never followed through on investigating the 
case or appropriately assigning Valle a clemency lawyer.

In its opinion Thursday, the court ruled, among other things, that Valle is not 
entitled to clemency because that process is up to the discretion of the 
state’s executive branch — that is, the governor’s office.

“Valle thus has no right to clemency that he may enforce” through his appeal, 
the court ruled.

The same court on Wednesday denied Valle’s request for a stay of execution in a 
separate appeal. Valle still has pleadings pending before a federal judge in 
Jacksonville and an appeal pending before the U.S. Supreme Court.

(source: Miami Herald)

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

New jury to decide if murderer stays on death row 21 years after clerk killed 
in botched Sebastian robbery----Lowe could be eligible for release by 2015 if 
he gets off death row


Linda Burnell still cries when she recalls being age 11 and fearful about her 
mother staying behind in Palm Bay when the family left for a New England summer 
vacation in 1990.

It was the last time she and her sister Paula Burnell, then 10, would speak to 
their mother, Donna M. Burnell, 30, who was gunned down July 3, 1990 during a 
botched robbery at the Nu-Pack Market in Sebastian, where she worked as a 
clerk.

“We had a bad feeling something was up. My sister and I freaked out, we didn’t 
want to leave our mother,” Burnell said by phone from Middleboro, Mass., where 
she lives with her 15-year-old daughter.

“My last words were not great to my mother when she called to see if we had 
arrived,” she added. “I hung up abruptly with her.”

She remembers feeling devastated when told later her mother had been brutally 
murdered.

“She was the parent I was close to,” Burnell said. “She was the hugger and the 
teacher and that got taken away from us.”

Soon, the Burnell sisters will return from their Massachusetts homes to a Vero 
Beach courtroom to face Rodney Tyrone Lowe, 40, a former Wabasso man who was 
convicted and sentenced to death in 1991 for the 1st-degree murder of Donna 
Burnell. A jury also found him guilty of attempted armed robbery, for which he 
received a 15-year prison term.

Linda Burnell on Monday said their father, Richard Burnell, 54, just started a 
new job and was not expected to join them.

A process to select a new jury begins Sept. 12, to determine if Lowe should be 
returned to death row or be sentenced to life behind bars.

Trials in capital cases in which the death penalty is sought are divided into 
guilt and penalty phases. In Lowe’s case, jurors voted 9-to-3 in recommending 
he be sentenced to death.

After years of pursuing appeals, the Florida Supreme Court in 2008 affirmed a 
court order issued in 2005 voiding Lowe’s death sentence. That 2005 order cited 
evidence presented since Lowe’s conviction that indicated he may not have acted 
alone. The high court refused to grant Lowe a new trial, but ruled that a new 
jury should determine whether he returns to death row or be sentenced to life 
in prison with the eligibility of release after 25 years — the same penalty 
options available to jurors in 1991.

Records show Lowe was on house arrest for a 1987 robbery in Brevard County when 
he used a .32-caliber handgun to shoot Donna Burnell in the face, head and 
chest. She died en route to a hospital.

Lowe fled the store without taking any money from a cash drawer that 
investigators found closed but damaged by gunshots.

The execution-style murder was witnessed by Donna Burnell’s 3-year-old nephew — 
her brother’s son, whom she was raising along with her 2 girls. Due to the 
child’s age and certain learning disabilities, a judge ruled the boy was not 
competent to testify to what he saw that day.

The Burnell siblings didn’t attend Lowe’s 1991 trial, presided over by Indian 
River County Judge Joe Wild.

“My father felt the children didn’t need to go through that,” Linda Burnell 
noted.

Assistant State Attorney Ryan Butler, who is retrying Lowe’s penalty phase with 
Assistant State Attorney Nikki Robinson, said if the state was not able to get 
the death penalty again, Lowe could be eligible for release by 2015.

“At the time he was sentenced, the choice was either death or life without the 
eligibility for release for 25 years,” Butler said. “And there are 1st-degree 
murderers who are released after 25 years . . . so that’s certainly a 
consideration.”

Burnell won’t speak Lowe’s name, she said, and she feels being forced to relive 
her mother’s death is “rehashing old wounds.”

“For my father, I’m sure it’s a lot worse than what we’re going through,” said 
Burnell. “I was only 11 at the time.”

Still, Burnell — who described her mother as always “happy and bubbly,” said 
she needs to come and be her voice during Lowe’s resentencing.

“I’m scared to face this guy,” she said. “I don’t know if I can deal with him 
sitting there looking like ‘I want to be free,’ when my mom will never walk 
this Earth or see her grandchild because of him.”

Lowe at his 1991 trial claimed one of two accomplices killed Donna Burnell and 
that he only drove the getaway car. He initially told police that accomplices 
Dwayne Blackmon and Lorenzo Sailor were with him at the store, and that Sailor 
was the shooter.

Blackmon, who died in 2003 at age 32, testified for prosecutors during Lowe’s 
trial and said Lowe confessed to shooting Burnell and then gave him the gun 
afterward.

Former state prosecutors Lynn Park, now retired, and Richard Barlow, a criminal 
defense lawyer, contended Lowe planned the robbery and that his gun was the 
murder weapon. His fingerprints were on the wrapper of a hamburger found warm 
in a microwave oven inside the store. His car was seen speeding away after the 
shooting. His time card showed that he was clocked-out from his lumber yard job 
at the time of the murder, and jurors heard a statement Lowe gave to police 
linking himself to the killing.

That hamburger, stored in an evidence vault for 21 years, is expected to be 
introduced again as evidence.

Butler meanwhile, said facts proving Lowe was responsible for Burnell’s murder 
haven’t changed, and for his crimes he should be put to death.

“He executed a woman in front of her 3-year-old nephew; that fact remains the 
same,” Butler noted. “There is no doubt that there were three people who 
conspired to commit a robbery, but the day of the murder, Lowe acted alone.”

Lowe throughout his appeals has argued his trial attorney mishandled his case 
and that new evidence shows he was not the shooter. His attorneys in 2003 and 
2004 presented testimony from six friends, ex-girlfriends or acquaintances of 
Dwayne Blackmon’s who said he confessed to Burnell’s murder. Some of those 
witnesses could be called to testify again, including Blackmon’s cousin 
Benjamin Carter, and Carter’s former girlfriend Lisa Miller, who claim they 
heard Blackmon confess that he was involved in the store robbery and shot 
Burnell.

When Circuit Judge Robert Hawley in 2005 threw out Lowe’s death sentence, he 
ruled that new evidence presented since Lowe’s conviction indicated he may not 
have acted alone during the attempted robbery and murder and that that could 
have influenced the outcome of the penalty phase of his trial.

Butler, though, noted Lowe in 1990 told investigators Lorenzo Sailor shot 
Burnell.

“He squarely blamed it on Sailor; he has Blackmon there (at the store,) but he 
didn’t think Blackmon entered the store,” Butler said. “Actually, he said he 
picked up Sailor in front of the store and Sailor tells them ‘I shot the 
clerk.’ ”

Butler flatly rejected Lowe’s story to police.

“The evidence we present will still show that he acted alone,” Butler said.

Lowe’s court-appointed attorney, Thomas Garland of Port St. Lucie, said his 
client has maintained all along that he wasn’t the shooter and “wants off death 
row.”

“He’s been on there for 20 years and he is hoping at this point, since the 
(1st-degree murder) conviction has been upheld, that he is allowed to go back 
into general populations so he can have some liberties,” Garland said. “But 
that’s a recommendation to be made by the jury and a final decision to be made 
by (Indian River Circuit) Judge (Robert) Pegg.”

During Lowe’s 1991 penalty phase, defense attorneys argued that while serving 
time in prison for an offense committed before Burnell’s murder, Lowe was well 
behaved, earned his diploma and was well liked by co-workers at Gator Lumber, 
where he worked following his release from prison. Wild ruled that information 
didn’t outweigh the aggravating facts that Lowe had a prior felony conviction 
involving violence and that the murder was committed while Lowe was engaged in 
an armed robbery attempt.

Linda Burnell, meanwhile, turned to Facebook in December and created a fan page 
to honor her mother — a Catholic native of Boston with Irish/German roots who’d 
moved to Palm Bay from Massachusetts 2 years before her death. By January, the 
fan page had 62 friends.

“I wanted people to tell me good things about my mother — good things that she 
did and made her important to them,” Burnell said. “They did and we’ve had a 
few laughs.”

During Lowe’s penalty phase, expected to last 2 weeks, she said she hopes her 
family attains some relief from a hurt so deep that time hasn’t fixed.

“I was told as a child I was the woman of the family now and I had to step up, 
not cry and stay strong,” Burnell recalled. “So I abided by that and held it 
all in.”

Her father distanced himself, she said, and her sister Paula used the tragedy 
“as a crutch.”

“She’s basically mourned for 20 years,” Burnell said.

(source: TCPalm)






ALABAMA:

Capital murder suspect asks to defend himself


A capital murder suspect charged with killing a 69-year-old woman wants to 
represent himself in court. Even thought, police say Carlos Kennedy's blood was 
found at the scene of the crime and on the victim's body.

Kennedy is accused of killing Zoa White in her Springhill home in 2010. Police 
said White's body was found partially nude, and she was beaten to death with a 
hammer.

Wearing handcuffs and a Metro jail uniform, capital murder suspect Carlos 
Kennedy asked a judge if he could defend himself.

Circuit Court Judge Rusty Johnson told him, "you look fine to me, but you never 
know." The judge ordered Kennedy to undergo a mental evaluation.

"As Judge said in open court, he appears to be fine, but because it is capital 
case and death case, it's the prudent thing to do. That is not in anyway 
conceding that we think there is a problem. It is just an abundance of caution 
to be sure on an appeal everything is fine," said Mobile County Assistant 
District Attorney Jo Beth Murphree.

In a preliminary hearing, Kennedy's court-appointed attorney entered for him a 
not guilty plea by reason of insanity.

Kennedy's family did not want to talk after Thursday's hearing.

Assistant District Attorney Murphree says Kennedy isn't the 1st capital murder 
defendant to want to represent himself. There are some people who question his 
motive.

"I have no idea what went into the defendants thought process when he made that 
decision."

Kennedy's mental evaluation is set for October 13. Judge Johnston will then 
make his decision about Kennedy representing himself.

If he is allowed to represent himself, in most cases an attorney is appointed 
to sit with him as co-counsel.

He faces the death penalty if convicted of White's brutal murder.

(source: WALA News)



NORTH CAROLINA:

Former soldier suffering from PTSD convicted of first-degree murder


Joshua Stepp, a former Army infantryman who suffers from post-traumatic stress 
disorder, was convicted today of sex offense with a child by an adult and 
1st-degree murder.

The verdict came after the 6 men and 6 women deliberated for nearly 7 hours 
over the past 3 days.

Stepp was convicted of murdering and sexually assaulting Cheyenne Yarley, his 
10-month-old stepdaughter.

Jurors will now have to decide whether he should be sentenced to death.

Defense attorneys tried to persuade jurors Tuesday that their client was 
incapable of plotting the child's death the night it occurred that he suffered 
from post-traumatic stress disorder and was under the influence of drugs and 
alcohol.

"He wasn't able to premeditate," said Terry Alford, one of his lawyers.

Terry Alford and Tommy Manning urged jurors to find Stepp guilty of 2nd-degree 
murder, not 1st-degree murder and sexual assault, as prosecutors charged.

"There was no rape in this case. There was no sexual offense in this case," 
Alford said in his closing arguments.

Cheyenne was 10 months old when she died from severe head trauma. Medical 
examiners said there were bruises and abrasions around the girl's anus and 
vagina.

Prosecutors argue that the injuries were from a sexual assault. The defense 
contends that the wounds occurred when Stepp, while angry and inebriated, 
forcefully wiped his stepdaughter while changing a soiled diaper.

In closing arguments that took most of Tuesday, prosecutors and defense 
attorneys offered radically different portrayals of Stepp.

Defense attorneys described the 28-year-old from Washington, N.C., as a "good 
father" who never sought treatment for mental health troubles that plagued him 
after he returned from Iraq.

Stepp, who married Cheyenne's mother five months before the infant's death, has 
an older daughter from his 1st marriage.

That marriage fell apart after he returned from Iraq and found out his first 
wife had been unfaithful. Stepp won custody of his daughter, and according to 
his attorneys, dropped out of the Army after that to dedicate more time to 
being a father.

In the months before Cheyenne's death, Stepp was trying to get back into the 
Army. He went to a military police training session out of state in October 
2009, keeping to himself the post-traumatic stress.

Stepp, his attorneys say, did not seek help after coming back from Iraq, 
burying his emotions after seeing troop mates and friends killed by bombs. He 
kept to himself his feelings about picking up body pieces from one of those 
victims and putting them in a pizza box.

The night Cheyenne died, the defense team said, Stepp lost it.

Last week, Stepp took the stand and recalled how he rubbed Cheyenne's face into 
the carpet repeatedly to get her to stop crying. He told of roughing her up as 
he changed her diaper that night, but he could not remember how he got blood on 
his underwear or precisely what he told emergency workers and other adults that 
night.

Boz Zellinger, an assistant district attorney, questioned Stepp's ability to 
remember some parts of the night in great detail but draw a blank on others.

Prosecutors contend Stepp killed his stepdaughter during a sexual assault.

Zellinger disputed defense claims that Stepp was unable to control his actions 
the night Cheyenne died.

Stepp told dispatchers the infant had choked on toilet paper, then told 
emergency responders she had fallen off the couch and suffered rug burns.

Defense attorneys acknowledge that Stepp was not forthright in those initial 
accounts, but they dispute that it was an attempt to cover up what prosecutors 
contend.

"You've heard from Josh, you've heard from people who know Josh," Alford told 
jurors in closing arguments. "He just doesn't fit that." Zellinger lashed out 
at the defense in his closing argument.

"It's hard not to get angry," Zellinger told jurors. "The defense is: 'Poor 
Josh Stepp.' "

Zellinger contended that Stepp created a version of events that did not fit 
with the evidence. He argued that Stepp knew what he was doing, that his 
ability to provide false accounts to different emergency workers showed an 
ability to plot.

"What shows his competency more than his deception?" Zellinger said.

Zellinger tried to knock back the defense's contentions that post-traumatic 
stress disorder played a role in Stepp's actions, saying the arguments were 
demeaning to others in the military afflicted by such problems.

"This defense taints their suffering," Zellinger said.

(source: News & Observer)






OHIO:

Ohio's top judge calls for death penalty review


Ohio's top judge on Thursday announced a committee will review the state's 
death penalty law and determine if changes should be made, but with an 
important caveat: It won't debate whether Ohio should have capital punishment.

The review, 30 years after Ohio enacted its most recent death penalty law, will 
make sure the current system is administered fairly, efficiently and in the 
most "judicious manner possible," said Ohio Supreme Court Chief Justice Maureen 
O'Connor.

"Is the system we have the best we can do?" said O'Connor, a Republican and a 
former prosecutor. "Convening persons with broad experience on this subject 
will produce a fair, impartial, and balanced analysis."

The 20-member committee, convened by the Supreme Court and the Ohio State Bar 
Association, will consist of judges, prosecuting attorneys, criminal defense 
lawyers, lawmakers and academic experts.

After years of Democrats calling for such a review, as well as a moderate 
Republican colleague of O'Connor on the Supreme Court, it took the former 
prosecutor with a tough criminal justice reputation to put such a process in 
place.

House Democratic lawmakers tried four times in previous legislative sessions to 
create such a review, with success only once when conservative Republicans who 
oppose abortion and capital punishment joined them.

That provision lasted exactly one day, until the GOP-controlled Senate killed 
the idea.

Justice Paul Pfeifer, a Republican from Bucyrus, has called for such a review 
for years. In January, he made even stronger comments, saying the state should 
abolish capital punishment.

Pfeifer, who helped write the 1981 law as a state senator, has said for years 
he believes prosecutors were seeking the death penalty in cases such as 
domestic violence slayings that the law wasn't meant for. A message was left 
seeking comment Thursday.

O'Connor made it clear Thursday in the annual speech given by chief justices 
that the review won't debate the law itself.

Instead, it will review Ohio's current laws, practices elsewhere, data and 
costs. It will also review a 2007 report released by the American Bar 
Association that called for a moratorium while problems the report said it had 
identified were examined.

That report didn't go far because of the perception that several of the 
researchers were biased against the death penalty.

Phyllis Crocker, who chaired the ABA report on the Ohio law, said Thursday she 
was pleased with O'Connor's announcement.

"A thorough examination of our state's death penalty system was one of the 
goals of the 2007 ABA Death Penalty Report," Crocker, interim dean of the 
Cleveland-Marshall College of Law at Cleveland State, said in an email.

A 2005 review of 20 years of capital punishment data by The Associated Press 
concluded that death sentences varied widely depending on where in the state 
charges were brought. The AP review also found people convicted of killing a 
white victim were twice as likely to receive a death sentence as those whose 
victim was black.

As it stands, the state is the midst of an unofficial death penalty moratorium 
while a federal judge decides whether the policies Ohio follows for carrying 
out executions are constitutional. 3 executions have already been postponed and 
on Thursday defense attorneys filed a motion to delay an execution scheduled 
for next month.

However, that moratorium is not official and is not expected to last 
indefinitely.

(source: Associated Press)