[Deathpenalty] death penalty news----WYO., UTAH, NEV., ARIZ.

[Rick Halperin]

Dec. 3



WYOMING:

Lawmaker to push for executions by firing squad


A Wyoming state lawmaker says he still intends to push a bill to allow the use 
of firing squads to execute condemned inmates even though a recent federal 
court decision leaves no one in the state on death row.

Sen. Bruce Burns, R-Sheridan, is pushing a bill in the legislative session that 
starts next month to allow execution by firing squad. He's co-chairman of the 
Joint Interim Judiciary Committee, which endorsed the bill at a hearing in 
September.

Burns had sponsored a similar firing squad bill that failed to pass in the 
legislative session early this year. He maintains that Wyoming needs to make 
the firing squad option legal in case it can't obtain the necessary drugs to 
perform lethal injections.

Current Wyoming law specifies the gas chamber as the state's fallback position 
only if the courts found lethal injection unconstitutional. It doesn't address 
what to do if the necessary drugs are simply unavailable and the state doesn't 
have a gas chamber.

Shortages of the drugs commonly used in executions have led to several highly 
publicized botched executions nationwide as states have searched for new drug 
cocktails.

U.S. District Judge Alan B. Johnson of Cheyenne last month overturned the death 
sentence for Dale Wayne Eaton, who had been Wyoming's only death row inmate.

Eaton, 69, was convicted of the 1988 murder of 18-year-old Lisa Marie Kimmell 
of Billings, Montana. Her body was recovered in the North Platte River.

Eaton was charged with killing Kimmell in 2002 after DNA evidence linked him to 
her murder while he was in prison on unrelated charges. Investigators then 
unearthed her missing car on his property. He was sentenced to death in 2004.

Johnson ruled that Eaton didn't receive an adequate defense from the Wyoming 
Public Defender's Office at his state court trial.

Johnson gave Wyoming officials the choice of either allowing Eaton to serve 
life in prison without parole or granting him a new sentencing hearing on 
whether he should receive the death penalty. The judge specified lawyers from 
the Public Defender's Office couldn't represent him if he gets another hearing.

Burns said he still sees the need for the state to approve the use of the 
firing squad despite Johnson's ruling.

"I don't think it will make a difference to the legislation itself," Burns 
said. "I think it will make it a little less pressing because we had somebody 
on death row and now we don't. But the problem that the bill addresses is still 
there."

The Wyoming Attorney General's Office hasn't said whether it will appeal 
Johnson's ruling. Casper District Attorney Michael Blonigen, who originally 
prosecuted Eaton, has said he will again press for the death penalty against 
Eaton if the state doesn't appeal.

Gov. Matt Mead said this week he believes Wyoming should keep the death penalty 
on the books. A former state and federal prosecutor, the governor said he 
wouldn't comment on the particulars of Eaton's case.

"I do think it highlights the fact that you cannot have a successful 
prosecution, particularly in a death penalty case, unless you have well-staffed 
and experienced public defenders," Mead said.

Rep. Cathy Connolly, D-Laramie, said Tuesday she intends to push a bill in the 
coming session to repeal the death penalty in the state entirely. Such a bill 
failed to gain the endorsement of the Joint Judiciary Committee at a hearing 
this fall, although most House members present endorsed it.

"I absolutely want an alternative to the firing squad bill for debate," 
Connolly said. "I don't want Wyoming to only have that option on the table when 
it comes to thinking about the death penalty."

Rep. Stephen Watt, R-Rock Springs, is a former Wyoming Highway Patrol officer 
who was seriously wounded years ago by a criminal. He has pushed the repeal the 
death penalty but won't be in the Legislature in the coming session.

Watt said Tuesday he hopes that Johnson's ruling overturning Eaton's death 
sentence will have an effect in the coming session.

"I would hope that they would look at it and say, 'well now we have absolutely 
nobody on death row, and now would be a good time to do away with the death 
penalty completely,'" he said.

(source: Associated Press)

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

Court erred in decision on Eaton death sentence


It's hard to convey in words our utter dismay about the reversal of the death 
sentence for Dale Wayne Eaton. Our hearts sank at the news, and we don't doubt 
for a second that plenty of coarse language could be heard in and around Casper 
that day.

Eaton was sentenced to death in 2004 for the grisly rape and murder of Lisa 
Marie Kimmell, an 18-year-old who was traveling through Wyoming on her way to 
Montana. Eaton had been languishing on death row for 10 years when the decision 
came down. Until that point, he had been the only person in Wyoming slated for 
execution.

Opponents of capital punishment, notably representatives of the American Civil 
Liberties Union chapter in Wyoming, cheered the court's decision to overturn 
the Natrona County jury's sentencing. The court ruled that Eaton's defense team 
hadn't told jurors about circumstances in his life that could have led to a 
lesser sentence.

The national debate about capital punishment has been reinvigorated following 
the exoneration of numerous inmates on death row. Some states have instituted a 
moratorium on prisoner executions, and some are considering the possibility of 
abolishing the death penalty altogether.

None of the circumstances that led to those actions apply to Eaton's case, 
however. DNA evidence confirmed that he killed Kimmell. He was afforded due 
process and was judged by a jury of his peers. His guilt is undisputed. The 
court's ruling hinges on a legal long-shot and a premise that we simply don't 
accept.

The essence of the arguments for and against the death penalty were succinctly 
summed up in a conversation in an episode of the long-running television show 
"Law & Order."

Manhattan District Attorney Nora Lewin asks Assistant District Attorney Abby 
Carmichael what the standard should be for the execution of the young murderer 
in the case.

"Where I come from, it's when what a person's done is so vicious, so cruel, he 
forfeits the right to get any older." To which Lewin responds: "Where I come 
from, a person can't forfeit that right. We can only take it from him."

In the matter of the state of Wyoming vs. Dale Wayne Eaton, we come from where 
Carmichael comes from. At some point in 1988, when he brutalized and killed a 
helpless teenager, Eaton forfeited his right to get any older.

He wasn't tried and convicted until 2004, meaning he received bonus years 
because of a lack of evidence. He's picked up 10 more bonus years while the 
appeal process of his death sentence played out.

Wyoming Attorney General Peter Michael is pondering whether the state will 
appeal the ruling. We hope he does, and he can count on our unqualified 
support.

In contrast with Texas, which executes inmates with regularity, Wyoming is 
extremely discerning in its administration of the ultimate punishment. The 
jury's choice of the death penalty for Eaton was not taken lightly, and his 
status as the sole person on death row needs no justification.

Nor did the jury's discretion represent the citizenry's attempt to exact 
vengeance for the death of Lisa Marie Kimmell. Jurors chose capital punishment 
because they understood that sometimes a crime is so repugnant, so indicative 
of a person's wanton disregard for fellow human beings, that execution is the 
only punishment that fits the crime.

The legal system must be allowed to run its course, and justice demands that 
all legal avenues be exhausted prior to the state-sanctioned taking of a 
person's life.

But we would venture to say that in every corner of the country, there is 
someone whose crimes cry out for capital punishment as a matter of justice and 
force people to say, "If there was ever an instance when the death penalty was 
warranted, this is it."

In Wyoming, this is that time, the murder of Lisa Marie Kimmell is that case, 
and Dale Wayne Eaton is that person.

(source: Editorial Board, Casper Star Tribune)






UTAH:

Utah attorneys argue death penalty issues in case of alleged triple killer


A Utah man facing multiple capital murder charges for an alleged fatal, 
room-to-room shooting spree inside a Midvale home in 2013, can't get a fair 
trial unless the jury empaneled includes those that both favor and oppose the 
death penalty, his defense attorneys argued Wednesday.

Attorneys for David Fresques want a judge to bar Salt Lake County prosecutors 
from seating a "death qualified" jury - one that only includes individuals who 
believe the death penalty must be imposed on a murder conviction.

Such a jury would violate Fresques' state and constitutional rights, because it 
would exclude a representative cross-section of the community who value 
individual rights, may oppose the death penalty or are skeptical about criminal 
justice system processes, defense attorney Tawni Hanseen told 3rd District 
Judge Bruce Lubeck.

"Studies have shown that death qualification strikes people from juries with 
views that encompass something much larger ... that encompasses their adamant 
views about the criminal justice system," Hanseen said. "Those in favor [of the 
death penalty] are what we call crime control people, who have strongly held 
values that crime control is the most important part of the criminal justice 
system."

Deputy Salt Lake District Attorney Robert Stott dismissed Hanseen???s studies 
as "insufficient" and said the courts have ruled that the "cross-section" 
community standard applies only to the jury pool, not to the group selected to 
consider the case. Further, Stott said, the constitutionality concern can only 
be applied to cases that have already been adjudicated.

"Mr. Fresques hasn't even had a trial yet, so there's now way he can show 
that," Stott said.

Wednesday's hearing was the 1st in a series of 3 set aside this month for oral 
argument on some 35 pending defense motions. Among the other issues set for 
debate: How best to question the jury pool; limits on victim impact testimony; 
barring testimony about Fresques' other alleged crimes; barring Fresques' 
prison disciplinary record; and removing the death penalty as a sentencing 
option. The next hearings in the case are set for Dec. 10 and 17.

Fresques, 27, has pleaded not guilty to 3 counts of 1st-degree felony 
aggravated murder and 1 count of 1st-degree felony attempted aggravated murder 
in connection with the Midvale shootings that left 3 people dead and 1 wounded 
on Feb. 12, 2013.

In March, prosecutors declared their intent to seek the death penalty for 
Fresques.

A 4-week trial is scheduled for March 2015.

On Monday, Lubeck said he planned to take all of the arguments under advisement 
and would issue written ruling on each motion at a later date.

Prosecutors contend Fresques, pistol in hand, went on a cold-blooded, 
room-to-room killing spree, that left Omar Jarman, 35, Danielle Lucero, 26, and 
Shontay Young, 34, all lying dead in pools of blood.

An alleged motive for the killings remains unclear, however witnesses who 
testified at a preliminary hearing earlier this year suggested that the 
shooting may have been a homicidal conclusion to a string of petty grievances.

Fresques may have thought that Jarman was a snitch; and he purportedly disliked 
Young because she was black. Why he shot Lucero, or Vickie Myers, the lone 
survivor of the alleged shootings remains unclear.

Prior to the slayings, Fresques' criminal history included charges in 3rd 
District Court ranging from assault and robbery to theft by deception and 
forgery.

(source: Salt Lake Tribune)


NEVADA:

Audit: Death penalty nearly doubles cost of Nevada murder cases


Did you know ...

The last execution in Nevada was at the Nevada State Prison on April 26, 2006, 
when Daryl Mack was put to death by lethal injection. Mack was executed for the 
rape and murder of a Reno woman, Betty Jane May, in 1988.

73 - the number of executions in Nevada's history

78 - the number of inmates currently on death row in Nevada

12 - the number of executions in Nevada


Nevada murder cases in which prosecutors seek the death penalty can cost nearly 
twice as much as those with a lesser punishment, according to a state audit 
released Tuesday.

A death penalty cases cost the public, on average, between $1.032 million and 
$1.307 million, according to the audit. In a murder case where capital 
punishment is not sought, the average cost is $775,000. In those cases, 
prosecutors typically seek life without parole.

"It's pretty clear that the death penalty does not save money," said Addie 
Rolnick, law professor at University of Nevada, Las Vegas.

The 105-page audit came after the 2013 Legislature ordered a review of the 
costs of capital punishment. The audit, which took 18 months, looked at the 
price of trials, appeals and jail time for 28 Nevada cases.

Manpower for lawyers was given as estimates, the audit said, so the actual cost 
could be higher.

Assemblywoman Maggie Carlton, chair of a legislative subcommittee on the death 
penalty, said after the audit was released that the estimates were 
"disconcerting." Public employees asked to provide that information should be 
held accountable, said Carlton, D-Las Vegas.

Even with cheaper costs, the audit could be met with some resistance.

"1 response to the study might be to just kill them sooner, but that isn't how 
our criminal justice system works," Rolnick said. "If you take that to its 
logical extreme, you could just put someone to death without a trial."

The audit will give lawmakers a guide to change death penalty laws in the 2015 
Legislature.

"We certainly hope that all legislators and all Nevadans pay attention to the 
results because it shows just how much we are paying to maintain a broken 
system," said Nancy Hart, president of the Nevada Coalition Against the Death 
Penalty. "We think it's a very ineffective penalty and should be replaced by 
life without the possibility of parole."

Since 2007, 6 states - New York, New Jersey, Connecticut, Maryland, Illinois 
and New Mexico - have abolished the death penalty. Some states got rid of it 
more than a century ago.

32 states still have the death penalty on the books.

In the 37 years since the death penalty was reinstated in Nevada, only 12 death 
row inmates have been executed. The last execution happened over 8 years ago 
when 47-year-old murderer Daryl Linnie Mack was put to death through lethal 
injection.

Currently, 82 inmates sit on death row in Nevada. The death penalty applies 
only to 1st-degree cases.

(source: Las Vegas Review-Journal)

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

High cost of death penalty could affect its future in Nevada


Nevada's criminal justice system spends nearly twice as much handling death 
penalty cases compared with murder cases where capital punishment isn't sought, 
according to a report released Tuesday by state auditors.

The state-mandated study, which surveyed data from 27 state and local agencies, 
gives ammunition to death penalty opponents who have failed to defeat public 
support for capital punishment using moral objections. It is, by far, the 
state???s most comprehensive study on the controversial practice and will serve 
as a guide for years to come.

"As we move into the next (legislative) session and the session after that, we 
would still be able to use this as basic information to frame the discussion 
around the death penalty for a while," Assemblywoman Maggie Carlton, D-Las 
Vegas, said after auditors Paul Townsend and Dan Crossman presented the study 
before a legislative panel in Carson City. "It's very thorough."

Auditors assembled the 105-page report by sampling data from 28 cases, 
calculating costs associated with legal counsel - both defense and prosecution 
- as well as for money spent on court proceedings and incarceration.

Here are 3 highlights from the document's release:

>From a suspect's arrest through his or her final days behind bars, officials 
spend at least $1.3 million on murder cases where convicts are sentenced to 
death but not executed - that's $532,000 more compared with murder cases not 
involving capital punishment.

Litigation costs, including the trial and appeal phase, averaged about 3 times 
more for death penalty versus non-death penalty cases. And expenses are similar 
for all death penalty cases, regardless of whether a sentence is given or not.

Among all prison inmates convicted of murder, costs are highest for people on 
death row.

There were 83 people sentenced to death in Nevada as of late last year. 
Prosecutors could have potentially saved an estimated $44 million by never 
pursuing corporal punishment in those cases.

"The policy question is whether having that system is worth paying that kind of 
money," said Michael Pescetta, an assistant federal public defender in Las 
Vegas specializing in capital punishment who watched Tuesday's meeting via 
teleconference from the Legislature's Las Vegas office.

It's likely the study underestimated the cost of death penalty cases because of 
underreporting from government agencies.

Townsend and Crossman told legislators on Tuesday that the study's findings are 
limited because "many agencies with significant roles in the death penalty 
process" were either hesitant to provide information or couldn't provide 
documentation about the amount of staff time spent on every case examined.

Townsend said he met with representatives from the Washoe and Clark county 
district attorney's offices, and both said they didn't have specific enough 
records to fully answer the auditors' questions.

"Those entities are supported by taxpayer dollars and they should probably be 
able to better account for how they're spending their time," Carlton said at 
Tuesday's meeting. "It's a little disconcerting."

A spokeswoman for Clark County District Attorney Steve Wolfson said he would 
discuss the audit's findings early next week after reviewing the document.

Opponents of the death penalty are hopeful the study's findings will lead to 
fewer capital punishment cases in the state.

The study's findings fall in line with previous research examining the 
financial burden of capital murder cases - a study released this year by the 
Kansas Judicial Council found that defending a death penalty case costs as much 
as 4 times more than other murder cases.

Critics of the practice hope Nevada's study will bolster efforts to erode 
support for capital punishment.

"A lot of people who favor the death penalty think it's cheaper," said Las 
Vegas criminal defense attorney Lisa Rasmussen, who also watched Tuesday's 
meeting from Las Vegas. "Once people understand and they're informed, maybe 
things will change."

(source: Las Vegas Sun)






ARIZONA:

Jodi Arias witness fields juror questions


After days questioning by defense and prosecuting attorneys, a psychologist 
testifying on behalf of Jodi Arias fielded questions from the jury Tuesday, 
expanding on what she deemed a "toxic" relationship between Arias and her 
ex-boyfriend, Travis Alexander.

The forum offered a window into the considerations of the panel, who will 
decide whether Arias will be sentenced to death or to life in prison for 
killing Alexander in 2008. One juror would be inexplicably dismissed before all 
the questions were fully answered.

Psychologist L.C. Miccio-Fonseca previously testified that Alexander had 
"closeted" Arias during much of their oversexed, on-again, off-again 
relationship, and that he used Arias solely for sexual gratification. Arias, 
she said, suffered in silence.

State prosecutor Juan Martinez used his cross-examination time to discredit 
Miccio-Fonseca from any available angle, at various points challenging her 
memory, objectivity and ethics. Martinez aimed to demonstrate that Arias was a 
willing participant in the relationship, at times introducing sexual 
proclivities of her own.

The jury seemed interested in the motives behind a rant Alexander unleashed on 
Arias via instant-messaging, in which Alexander called Arias a "solid form of 
evil." A juror also asked whether the dynamics between Alexander and Arias were 
similar to those in Alexander's previous relationships.

Miccio-Fonseca said she was unsure what triggered Alexander's harangue against 
Arias, or what "untruths" he was referring to in the exchange.

The psychologist said Alexander's previous relationships were not as "sexually 
charged" as was his with Arias.

"It's an erotic bond," she said. "It's powerful."

There is indication that at least 1 juror is mulling over Arias' claims that 
she once caught Alexander viewing child porn - allegations that have been hotly 
disputed by the prosecution.

The juror asked Miccio-Fonseca if the dynamics of a relationship would change 
if such a thing did occur. Arias' attorneys pounced on this question as an 
opportunity to lend credibility to the claim.

Miccio-Fonseca said it would not be unusual for such a revelation to shift the 
sexual dynamic of a relationship - for someone in Arias' position to try to 
compensate or accept her partner's perversions.

To this point, defense attorney Kirk Nurmi cited a text message conversation 
that mentioned Arias' childlike public grooming habits, and a sex tape in which 
Alexander likened Arias' voice to that of a 12-year-old girl. These exchanges, 
Miccio-Fonseca said, occurred after the day Arias said she had caught Alexander 
with the porn.

But Martinez quickly aimed to dismantle the defense's proposed link between the 
child porn allegations and the references to youth in Arias and Alexander's sex 
life.

Arias, Martinez said, alleged that she caught Alexander viewing child porn of a 
young boy, not girl, right? Miccio-Fonseca conceded this was true.

At the close of a break Tuesday afternoon, Judge Sherry Stephens announced that 
juror no. 3 had been permanently excused, but offered no reason as to why.

Last year, Arias was convicted of 1st-degree murder for killing Alexander in 
his Mesa home in 2008. Alexander suffered nearly 30 stab wounds, a slit throat 
and a bullet wound to the head.

But the previous jury could not come to a unanimous verdict on the death 
penalty. The 2nd trial began in October before a new jury.

The jury trial will reconvene Monday, but a separate hearing regarding the 
child porn allegations is slated for Thursday.

(source: Arizona Republic)

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

Witnesses for Arias won't testify in open court


Lawyers for Jodi Arias have asked a judge to take the death penalty off the 
table at her sentencing retrial because three witnesses on her behalf have 
refused to testify in open court.

The attorneys said in court filings last week that the witnesses fear they'll 
be harassed or threatened if they testify.

The lawyers say the refusal means Arias can't get a complete defense as a jury 
hears evidence over whether to sentence her to life in prison or death for the 
killing of her former boyfriend, Travis Alexander.

The 3 witnesses in question haven't been publicly identified, but defense 
attorneys have described them as a longtime Arias boyfriend, 1 of her former 
co-workers, and a person who was a friend of Alexander before he met Arias.

The Maricopa County Attorney's Office, which is prosecuting Arias, declined to 
comment on the request to throw out the death penalty.

Arias was convicted last year of murder in Alexander's 2008 death, but jurors 
deadlocked on her punishment. A new jury is deciding her sentence.

An appeals court decision last week overturned a ruling that closed the 
courtroom as Arias' first witness testified. Her lawyers previously said the 
witness would testify only in a closed courtroom.

Some of the testimony in question was conducted in private. The Arizona 
Republic and 3 Phoenix TV stations - KPNX, KPHO and KTVK - protested the 
closure and ultimately succeeded in getting the ruling by Maricopa County 
Superior Court Judge Sherry Stephens thrown out.

The Arizona Court of Appeals suggested in its ruling last week that the 
previously unidentified witness might have been Arias herself, though it 
remains unclear.

The news organizations are now urging Stephens to release a transcript of the 
Oct. 30 testimony.

The Arias case has been marked by secrecy since the conclusion of the 1st 
trial, where salacious and violent details about Arias and Alexander were 
broadcast live around the world.

Since then, the judge has held one secret hearing after another and barred the 
broadcast of footage from the sentencing retrial until after a verdict is 
reached.

Arias' lawyers had argued that daily broadcasts of the trial would lead to 
defense witnesses backing out for fear of being harassed or threatened.

(source: East Valley Tribune)

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

Legally Speaking: Dismissing death for Jodi Arias could be a reality


The Jodi Arias defense team filed a motion on Thanksgiving eve again asking 
Judge Sherry Stephens to remove the death penalty as a possible sentence.

The reasoning?

Arias can't present a complete defense because the witnesses are too scared to 
testify.

Does the motion have merit?

The simple and unpopular answer is yes, yes it does.

Back on Oct. 30 Judge Stephens kicked the media and the public out of the 
courtroom for the testimony of a "secret witness."

I write "secret" because at the time, I had no confirmation the witness was in 
fact Arias herself. This move enraged the media, who filed a special action 
with the Arizona Court of Appeals.

This resulted in the Court of Appeals issuing a preliminary ruling instructing 
Judge Stephens to open the courtroom. After some additional argument, the court 
issued its final ruling last Wednesday that the courtroom couldn't be closed to 
Arias' testimony. This was confirmation that the secret witness was, in fact, 
Arias herself. Thus far there is no indication this ruling applies to any 
witness other than Arias.

On the heels of the appellate ruling, the defense reurged the motion to dismiss 
death by claiming witnesses would not testify in open court and, as such, Arias 
couldn't present a complete defense.

Now, I know most have, and will, shake their heads vehemently at this assertion 
and yell "hogwash" or some other interesting term; however, the defense may 
have a sound argument.

A big part of our criminal justice system and Constitutional principles is that 
a defendant has the right to confront their accusers, see the evidence against 
them, and call witnesses to testify on their behalf.

In other words, a defendant is entitled to defend themselves in all possible 
ways. The old mantra, "Its better to let a guilty person walk than put an 
innocent person in jail," applies. (Yes, Arias has been found guilty and she is 
not trying to prove innocence, only that she is entitled to live.)

With this being said, here is something to ponder.

Is it American to prevent witnesses from testifying for a convicted murderer?

Emotionally many would say YES -- she killed a man!

How about rationally though? Are we ready to see our basic principles of the 
system fall over one case? I say no.

Chances are we will never have to actually answer that question in this case.

Arizona Rules of Criminal Procedure Rule 9.3(b) states:

"All proceedings shall be open to the public, including representatives of the 
news media, unless the court finds, upon application of the defendant, that an 
open proceeding presents a clear and present danger to the defendant's right to 
a fair trial by an impartial jury."

Rule 9.3(c) states:

"The court may, in its discretion, exclude all spectators except 
representatives of the press during the testimony of a witness whenever 
reasonably necessary to prevent embarrassment or emotional disturbance of the 
witness."

Bottom line is there are things Judge Stephens can still do to comply with the 
Court of Appeals order and give Arias her right to present a full case.

First, the Court of Appeals order only appears to apply to Arias, and not any 
other witness.

Second, as Juan Martinez (the prosecutor) aptly points out in his response to 
the motion, the court can subpoena the witness to testify on behalf of Arias.

Third, the rules of criminal procedure allow, and the Court of Appeals even 
stated, there are less restrictive means to protect the witness and still 
provide transparency to the public.

Therefore, until the defense can prove Judge Stephens can't practically use 
Rule 9.3 or subpoena the witnesses, then the motion probably won't be 
successful.

However, if the witnesses refuse to comply with a subpoena then the defense's 
motion to remove death has merit and will become much stronger.

(source: Monica Lindstrom, KTAR news)