[Deathpenalty] death penalty news----TEXAS, MONT., USA, S.C.
rhalperi at smu.edu
Sun Feb 26 12:59:11 CST 2012
A cry of innocence from death row
Lawyers for a Texas death row inmate are fighting for the right to
constitutional review of a "freestanding" claim of innocence -- one where the
inmate says the evidence now shows him innocent but there was no constitutional
defect in his conviction years earlier.
The inmate says the evidence now proves he was in jail at the time the victim
The U.S. Supreme Court ruled 6-3 in 1993's Herrera vs. Collins, another Texas
death penalty case, that a simple claim of actual innocence did not entitle a
death row inmate to federal constitutional review, despite the Eighth
Amendment's ban on cruel and unusual punishments.
"[Leonel Torres] Herrera's constitutional claim for relief based upon his newly
discovered evidence of innocence must be evaluated in light of the previous 10
years of proceedings in this case," the court majority said. "In criminal
cases, the trial is the paramount event for determining the defendant's guilt
or innocence. Where, as here, a defendant has been afforded a fair trial and
convicted of the offense for which he was charged, the constitutional
presumption of innocence disappears. Federal habeas [constitutional] courts do
not sit to correct errors of fact, but to ensure that individuals are not
imprisoned in violation of the Constitution."
The majority also said Herrera's argument that the 14th Amendment's due
process, or fair proceedings, guarantee did not entitle him to a new review.
The late Justice Harry Blackmun led the dissent.
"Nothing could be more contrary to contemporary standards of decency ... or
more shocking to the conscience ... than to execute a person who is actually
innocent," he said.
"Just as an execution without adequate safeguards is unacceptable," he added,
"so too is an execution when the condemned prisoner can prove that he is
innocent. The execution of a person who can show that he is innocent comes
perilously close to simple murder."
Herrera was subsequently executed, protesting his innocence to his last breath.
The stark truth for condemned prisoners seeking help from the justices is that
the Supreme Court is not a trier of fact -- it leaves that to the trial courts,
and to a lesser extent the appeals courts. Instead, the high court is engaged
in making sure that defendants are treated fairly, regardless of the verdict.
After all, the inscription on the front of the Supreme Court building across
from the Capitol, above the steps, does not promise "Justice Under Law." It
promises "Equal Justice Under Law."
Now the Supreme Court is considering a petition from another Texas death row
inmate, Larry Ray Swearingen, who says due diligence by his lawyers proves his
conviction, based solely on circumstantial evidence, shows he could not have
killed a 19-year-old college student -- though Texas officials strongly dispute
The case has drawn the attention of the Innocence Network, "an association of
organizations dedicated to providing pro bono legal and/or investigative
services to prisoners for whom evidence discovered post conviction can provide
conclusive proof of innocence."
The 66 members of the network "represent hundreds of prisoners with innocence
claims in all 50 states and the District of Columbia, as well as Australia,
Canada, the United Kingdom and New Zealand."
The group's Web site says, "In 2011, the work of Innocence Network member
organizations led to the exoneration of 21 people imprisoned for crimes they
did not commit."
In a friend-of-the-court brief to the high court, the group said, "Although the
[Supreme] Court's precedents have indicated that the execution of a habeas
[constitutional] petitioner who presents a compelling post trial showing of
actual innocence would violate the Eighth and 14th Amendments -- even without
an accompanying claim of constitutional error -- the [Supreme] Court has yet to
recognize a freestanding actual innocence claim."
The brief said: "Swearingen presents reliable scientific evidence refuting the
core forensic testimony against him at trial and conclusively demonstrating
that he is innocent of the crime underlying his conviction and capital
sentence. As such, his petition compels the [Supreme] Court to take the long
deferred step of recognizing a freestanding constitutional right to federal
[constitutional] relief upon a persuasive showing of actual innocence.
"Simply put, the evidence supporting Swearingen's petition conclusively
exonerates him of the murder for which the state intends to execute him," the
brief said. "Each of the forensic scientists who has examined the pathological
and histological evidence -- including the state's sole forensic witness at
trial -- has concluded to a scientific certainty that the victim died after
Swearingen [already] was incarcerated" on traffic charges.
The lower courts' "assessments of the reliability and credibility of the
evidence supporting his claim have been incomplete, fundamentally unfair and
inconsistent with this [Supreme] Court's precedents."
One of those lower courts, a panel of the 5th U.S. Circuit Court of Appeals,
agreed with a trial court that Swearingen's claim of actual innocence was not
entitled to new constitutional, or habeas, review.
The panel said a habeas petition is appropriate where the facts underlying the
innocence claim "could not have been discovered previously through the exercise
of [defense attorney] due diligence," and those facts, "if proven and viewed in
light of the evidence as a whole, would be sufficient to establish by clear and
convincing evidence that, but for constitutional error, no reasonable
fact-finder would have found the applicant guilty of the underlying offense."
But Swearingen did not meet that threshold.
Swearingen contended "he learned for the 1st time in 2008 of tissue samples
[used to determine time of death] that exonerate him of the murder of Melissa
Trotter," the panel said. "He further contends that he could not have
discovered the existence of the samples prior to 2008 and that his attorneys
provided constitutionally ineffective assistance by failing to uncover and
employ this evidence."
The panel agreed with the trial judge "these arguments are unavailing. The
evidence existed at the time of trial [in 2000] ... and even if it were not
discoverable through due diligence, it does not constitute 'clear and
convincing evidence that, but for constitutional error, no reasonable
fact-finder would have found [Swearingen] guilty of the underlying offense.'"
Trotter, a student at Montgomery County (Texas) Community College, disappeared
in December 1998. Her body was found in the Sam Houston National Forest,
strangled and her throat cut, less than a month later.
A convenience store security camera showed Trotter and Swearingen meeting two
days before she died. At the time, he gave her his pager number.
Though neither Swearingen nor is wife smoked, a package of Trotter's favorite
cigarettes and a lighter were found in Swearingen's trailer, state officials
said. Also found in the trailer was a pair of pantyhouse with one leg missing.
The state said the cut on the pantyhouse matched -- "a unique physical match"
-- the jagged cut edge of the pantyhouse leg used to strangle her and left on
3 days after Trotter's disappearance, police attempted to question Swearingen
as a potential witness, but he fled in his pickup truck, state officials said.
He was arrested on outstanding traffic warrants before being charged with
The state told the U.S. Supreme Court in its own brief of a number clues that
pointed to Swearingen as the killer. Officials also argued the forensic experts
looking at tissue from Trotter's body mainly focused on when the body was
dumped in the national forest, not when she was killed -- Dec. 8, 1998.
Swearingen was convicted in a jury trial. His execution has been postponed by
the courts 3 times, the last time in August.
The Supreme Court should decide whether it wants to review the case, and
consider the concept of a "freestanding" claim of innocence, sometime within
the next month.
(source: United Press International)
New Montana warden prepared to carry out death sentence if that day comes
If the only Canadian on death row in the United States is unsuccessful in his
plea for mercy in May, it will likely be Leroy Kirkegard who oversees what
As the warden of Montana State Prison, it's Kirkegard role to make sure
executions are carried out. There are only 2 inmates on death row at his
institution. Double-murderer Ronald Smith, of Red Deer, Alta., is one of them.
"It is a load on my shoulders but I've made that commitment to the State of
Montana when I was hired for this job. I'm prepared to carry it out," said
Kirkegard, in an interview with The Canadian Press from his office in Deer
"It's not something I'm looking forward to, but if the State of Montana says
that's what we have to do, I'm prepared to do that."
Kirkegard moved to his post last November, after spending 20 years working in
detention services in Las Vegas. He presides over 1,467 inmates at the federal
prison, located in the middle of a 15,000 hectare ranch 6 kilometres west of
Smith is one of the most high-profile.
He was sent to death row for the 1982 shootings of Thomas Running Rabbit and
Harvey Mad Man Jr. near East Glacier, Mont.
Smith and his buddies were on a drug-addled road trip through the U.S. The
killings were cold blooded. Smith asked for and received the death penalty
after pleading guilty. He later changed his mind, but his legal appeals have
A clemency hearing is scheduled in Deer Lodge for May 2 and 3 before the
Montana Board of Pardons and Parole, which will make a recommendation to Gov.
It is Schweitzer that ultimately decides if Smith spends the rest of his life
behind bars or dies. It is Kirkegard's burden to carry out the governor's
"There's nothing fun about it," said Kirkegard.
He knew what he was signing on for when he took the job. But he acknowledges he
still needs to do a bit of homework.
"I'm going to be very honest with you. We have a very big manual, the execution
protocol, and I haven't got all the way through it yet. And my role is to
supervise the entire procedure from 45 days prior until it actually happens,"
"It's a lot of teamwork, it's a lot of co-ordinating activity and, as far as my
day to day and hour to hour, minute to minute duties, I can't tell you what
they're going to be at this point."
There have been 74 people executed in Montana since 1863, and 3 have been
killed by lethal injection since 1995. The last execution occurred in August
The warden said he doesn't have strong views on the death penalty and, in the
end, it wouldn't matter if he did.
"It's something I will have to deal with and I'll deal with it at the time."
(source: Winnipeg Free Press)
USA (NEW YORK)----possible federal death penalty
Jimmy Henchman Linked To 50 Cent Associate Murder, Feds Seeking "Death
Incarcerated manager James "Jimmy Henchman" Rosemond is reportedly being
targeted by federal proesecutors in relation to the murder of a 50 Cent
According to reports, Henchman is facing charges which could potentially get
him a death sentence.
"[Federal prosecutors] are in the process of putting together charges against
Mr. Rosemond for a death penalty-eligible offense," Assistant US Attorney Todd
Kaminsky told Brooklyn federal Judge John Gleeson. The murder that Rosemond may
soon be charged in connection with took place in 2009, when two of his
associates allegedly gunned down a man who was accused of assaulting Rosemond's
son. Victim Lowell Flecher was associate of rap star 50 Cent. Rosemond's
associates, Rodney Johnson and Brian McCleod, already are facing murder and
weapons charges in Manhattan federal court stemming from Fletcher's fatal
shooting. Fletcher was gunned down with a .22 caliber firearm at Jerome and Mt.
Eden Avenues in The Bronx, court documents show. Prosecutors say that Johnson
and McCleod fatally shot Fletcher in exchange for a promised payment of
narcotics. (New York Post)
Fletcher's death is believed to be in relation to G-Unit's Tony Yayo allegedly
assaulting Henchman's son 5 years ago.
Rosemond has long been suspected of putting a contract on Fletcher in
retaliation for slapping Rosemond's then 14-year-old son. 2 years before he was
gunned down on a Bronx street, Fletcher pleaded guilty to assaulting the teen,
but investigators believed he took the fall for Tony Yayo, a member of Fiddy's
G-Unit, who had slapped the kid. Fletcher was a member of Yayo's posse.
Fletcher was murdered shortly after he was released from prison for a drug
conviction and for assaulting Rosemond's son. Federal prosecutors in Manhattan
indicted Rodney Johnson and Brian McCleod for the murder. The indictment claims
they did the killing in exchange for drugs. Rosemond, who repped rapper The
Game, has been charged with running a coast-to-coast, multi-million dollar
cocaine ring. He has been engaged in plea negotiations with the feds in
Brooklyn which could be complicated by the upcoming murder charge. (New York
Prior to Interscope's denial, the iconic record label was linked to Jimmy
Henchman for running a drug operation last year.
Federal officials say these are findings from a year-long Drug Enforcement
Administration investigation, the same investigation that led to the indictment
of Czar Entertainment CEO and Game manager James Rosemond on 18 felony charges
that could result in having him sentenced to life in prison. TSG further
reports that while its unclear how the players in the narcotics ring had access
to Interscope's offices, the Game records on the label and his road manager has
been named in the trafficking plot. Rosemond is currently being held without
bail in Manhattan's Metropolitan Correctional Center in Lower Manhattan. (XXL
After going on the run for drug-related charges last spring, Rosemond was
eventually arrested over the summer and has remained behind bars ever since.
The hip-hop mogul spotted the agents at about noon as he walked out of the W
Hotel in Union Square, sources said. Once on the street, Rosemond walked north
and tried to outrun the agents until he was finally arrested on 21st Street and
Park Avenue South. The US Attorney's Office in Brooklyn charged Rosemond in a
complaint today with orchestrating the delivery of multiple kilos of cocaine
from Los Angeles to the New York City metropolitan area. Millions of dollars in
drug proceeds went from New York back to California, the complaint charged.
(New York Post)
No further details have been revealed as of now.
SOUTH CAROLINA----book review
On death row, by mistake (or worse)
ANATOMY OF INJUSTICE: A MURDER CASE GONE WRONG
Raymond Bonner, 301 pages, Knopf, $26.95
On Jan. 18, 1982, a man in Greenwood, S.C., discovered the body of his
neighbor, 76-year-old Dorothy Edwards, in her bedroom closet. She had been
brutally beaten and stabbed.
Investigators soon arrested a 23-year-old black man named Edward Elmore and
charged him with murder.
The evidence against Elmore was slim, at best. He had cleaned windows and
gutters for Edwards two weeks before her death, and he had her last name and
phone number written on a card he kept in his wallet. Police also found a
fingerprint identified as Elmore's at the back door of Edwards's house.
The lack of evidence — and Elmore's protests of innocence — didn't dissuade
jurors from finding him guilty of murder, criminal sexual conduct,
housebreaking and burglary.
In fact, as Raymond Bonner points out in his fascinating and cautionary new
book, "Anatomy of Injustice: A Murder Case Gone Wrong," a total of 36 jurors
would find Elmore guilty, over the course of three trials.
"In many ways, Elmore's is a garden-variety death penalty case: a young black
male of limited intelligence convicted of murdering a white person after a
trial in which his lawyers' performance was so poor that it could barely be
called a defense," writes Bonner, a former investigative reporter and foreign
correspondent for The New York Times and a staff writer at The New Yorker.
But it's also exceptional, he adds, because it "raises nearly all the issues
that mark the debate about capital punishment: race, mental retardation, bad
trial lawyers, prosecutorial misconduct, 'snitch' testimony, DNA testing, a
claim of innocence."
As Bonner demonstrates, many of those issues would not have come to light if it
hadn't been for the work of a lawyer named Diana Holt, who learned about
Elmore's case while she was a law student working for the South Carolina Death
Penalty Resource Center.
Holt researched and advocated for Elmore's cause for more than 16 years. The
fact that Elmore eventually had his death sentence vacated is, in part, a
testament to her doggedness.
"I can exhale now," she says, on the book's final page.
If "Anatomy of Injustice" were a novel, it would provide an evening of
breathless entertainment. It moves as swiftly as a great courtroom thriller,
and Bonner's astutely observed characters are as memorable as any you're likely
to encounter in a John Grisham-penned best seller.
Of the larger-than-life prosecutor in Elmore's first trial, for example, Bonner
writes, "Vain about his age, a dapper dresser in a conservative, old-fashioned
way — he wore a fedora long after they had gone out of style — Jones was
charismatic. At the same time, he appeared to be openly needy, a man who seemed
to suffer in front of your eyes."
And the elderly man Holt believes was the real killer takes on an ominous
quality when she interviews him in his home.
He "was sitting in a big easy chair — a king on his throne, Holt thought to
herself," Bonner writes. "He was wearing slacks and a short-sleeved oxford
sport shirt; he looked like he had just come from teaching Sunday school."
Surprisingly, the man "seemed almost eager, excited, to talk about Elmore and
the murder," Bonner writes.
Then, after talking for less than f5 minutes, the man "volunteered, 'I am the
only one who could kill her and get away with it. -- The way she trusted me.'"
It's the sort of scene that belongs in an atmospheric thriller, the moment when
the interviewer suddenly notices how dark the room is, and how far away the
But "Anatomy of Injustice" has something thrillers don't: A real-life person
who spent 27 years on death row for a crime he didn't commit. That shocking
fact — and the unnerving ease with which he landed there — will likely haunt
readers long after they've finished the book.
(source: Doug Childers is a Richmond writer and edits WAG, a literary website,
at www.thewag.net.----Richmond Times-Dispatch)
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