[Deathpenalty] death penalty news----TEXAS, MASS., PENN., N.C.

[Rick Halperin]

Oct. 14



TEXAS:

Argument preview: What can a federal habeas petitioner argue when defending a 
judgment in his favor?


Despite all the money and resources poured into Supreme Court amicus briefs 
these days, it is relatively rare that an amicus substantially influences the 
central merits of a case. However, an amicus brief filed by the Criminal 
Justice Legal Foundation in Jennings v. Stephens, the second argument this 
Wednesday, may be such a brief. It provides a balanced analysis of the legal 
question presented - although the ultimate disposition that the brief suggests 
may prove too much for some of the Justices.

Facts and proceedings

This is a death penalty case from the Texas state courts, coming to the Supreme 
Court after a federal district court granted federal habeas relief but the 
Fifth Circuit reversed. Jennings, with a record of prior robberies, shot and 
killed a Houston police officer while robbing a store. His guilt is not at 
issue; the case challenges only his sentence.

After the Texas appellate courts denied relief, Jennings filed federal habeas 
claims alleging ineffective assistance of counsel ("IAC"). He alleged 3 
deficiencies: (1) a failure to investigate and present mitigating background 
evidence; (2) a failure to investigate and present mitigating psychological 
evidence; and (3) a deficient closing argument. On this last claim, it is 
undisputed that, whatever else was argued in closing (the state opinions are 
unpublished and the briefs only partially quote the arguments), Jennings's 
lawyer said to the jury:

"I feel like I ought to just sit down. Shoot, you twelve people know what the 
evidence is. You've probably already decided.... [And if the jury could not see 
some way to vote for life over death], I can't quarrel with that."

The federal district court ruled in Jennings's favor on the first 2 grounds, 
but not on the 3rd.

On appeal, the Fifth Circuit reversed the judgment and ordered that habeas 
relief be denied. The state had argued that the district court had failed to be 
sufficiently deferential to the state court judgment and findings regarding the 
first 2 "mitigation evidence" grounds. In response, Jennings had disputed the 
state's arguments, but also argued that relief should be affirmed on the third 
ground: that his lawyer's closing argument had been constitutionally 
ineffective. In reply, Texas argued that (1) Jennings had not filed a notice of 
cross-appeal from the rejection of his closing argument ground, and (2) 
Jennings had also failed to obtain a "certificate of appealability" (COA) - a 
special statutory requirement (28 U.S.C. 2253) that must be met for a defendant 
to appeal in federal habeas cases - for his closing argument issue. Texas 
argued that these failures barred the Fifth Circuit from considering the merits 
of Jennings's closing argument issue.

In an unpublished opinion, a 3-judge panel of the Fifth Circuit agreed with 
Texas (and rehearing was subsequently denied). First the panel ruled that 
Jennings's failure to file a notice of appeal concerning his closing argument 
"claim" was a jurisdictional flaw under Bowles v. Russell and Federal Rule of 
Appellate Procedure 4(a) (although neither authority expressly addresses 
cross-appeals). Second, while noting that "circuit courts of appeal are split," 
the panel ruled that a federal habeas defendant, even when acting as appellee, 
must seek a COA from the district court if he wants to present any "grounds for 
relief not adopted by the district court." Finding that Jennings had not 
affirmatively argued that filing a notice of cross-appeal or seeking a COA was 
unnecessary to establish jurisdiction, the panel "dismissed" his closing 
argument point because "[a] party seeking to invoke a court's jurisdiction must 
advance arguments establishing jurisdiction."

The parties' diametrically opposed arguments

Since Congress amended the federal habeas corpus statutes in 1996, the path to 
federal habeas relief from a state court conviction has become a complicated 
one. This case is one of many that attempt to untangle one aspect of the web.

The parties' briefs are, unsurprisingly, diametrically opposed. Jennings argues 
that a party traditionally may present any argument (that was presented below) 
to defend a judgment, without filing a cross-appeal. Here, the district court's 
judgment simply ordered a new sentencing hearing, and Jennings says his closing 
argument issue is merely an alternative ground for affirmance of the district 
court.

As for a COA, Jennings points out that the habeas statute requires a COA only 
for "an appeal ... taken" by a petitioner, so it does not apply to a petitioner 
arguing against the state's appeal. (The state's notice of appeal undoubtedly 
gave the Fifth Circuit jurisdiction over the judgment - no COA is statutorily 
required for a state's habeas appeal.) Jennings also argues that, as at least 2 
circuits have held, the absence of a district court COA is not a jurisdictional 
flaw. Thus the Fifth Circuit could and should either have issued a COA on its 
own, or remanded to the district court to see if a COA was appropriate.

Texas disputes every point. First, it says that Jennings's argument would have 
"expanded" the judgment, by giving him a new sentencing hearing that was not 
only free of mitigating evidence errors, but also free of closing argument 
deficiency. Frankly, that response seems to border on frivolous, because any 
new sentencing hearing would presumably have to be free of prejudicial errors 
of all kinds. But it gives you a flavor of how adamantly Texas seeks to defend 
its judgment.

More centrally, Texas argues that a separate "claim" always requires a separate 
notice of appeal. Jennings replies that he did not seek to raise a separate 
"claim" but merely to present "an additional argument" in support of his IAC 
claim.

As for the COA, Texas points out that the statute requires that it "indicate 
which specific issue or issues" will be argued, and that this statutory 
issue-identification function should require a defendant to seek a COA on any 
new issues he wants a circuit to consider on appeal. Texas argues that the 
majority of circuits have adopted this view, which Texas says represents "the 
better reading of the statute." One can predict that Wednesday's argument will 
rehearse the Justices' varying views on how to read the 1996 habeas amendments, 
which have been the subject of a number of 5-4 decisions since that time.

Finally, Texas argues that the Fifth Circuit's statement that Jennings's 
"motion for a COA is denied" implicitly shows that it had "already . . . 
considered [Jennings' closing argument] claim on the merits and rejected it. 
....This means that the court of appeals has already ... found it so weak as to 
not present a debatable question." That seems like quite a lot to read into the 
simple word "denied." But this argument can't be entirely discounted, given the 
Court's decision in Harrington v. Richter 2 Terms ago (which suggests such 
implicit expansion when evaluating state court rulings - although this one is 
federal) and the Justices' heated disagreements generally about the 
availability of federal habeas corpus relief.

A helpful amicus analysis

It was no accident that the 1996 amendments to the federal habeas law were 
called the "Anti-terrorism and Effective Death Penalty Act" (otherwise known as 
AEDPA, pronounced "ed-pah"). Discontent regarding federal courts "interfering" 
with state court judgments in capital cases, and consequent long delays before 
executions, powered AEDPA to enactment. The Criminal Justice Legal Foundation 
was founded well before AEDPA, but it shares a similar goal: to "remov[e] legal 
obstacles to the use of" the "most powerful deterrent to criminal behavior" - 
"the government's ability to efficiently apprehend, prosecute, and punish 
criminals in a swift and decisive system of justice." CJLF's national legal 
director, Kent Scheidegger, has tirelessly filed amicus briefs in many major 
capital cases, advocating speedier affirmance, and quicker (or no) federal 
review, of state death penalty judgments.

The CJLF brief is the only amicus brief filed in this case - a relatively rare 
phenomenon these days. I found it, however, to be extremely helpful in 
simplifying the intricacies of this case, particularly because the parties' 
claims are so diametrically opposite. A "claim," says CJLF, is different than 
an "argument," and IAC is a single "claim" for relief, even if comprised of 
several different arguments. As such, says CJLF, there should be no separate 
requirement for a notice of cross-appeal, or a COA, for a habeas petitioner to 
present all arguments that might support a "claim" of IAC. Coming as it does 
from a group that generally supports capital punishment and opposes lengthy 
federal habeas review, this well-supported position would seem to carry 
especial weight. Moreover, CJLF argues that supporting Jennings's simpler 
procedural position here will actually further Congress's purpose of avoiding 
"uncertainty ... confusion, and the resulting delays."

But rest assured, CJLF is not supporting merits relief for a capital defendant 
here. Although the Fifth Circuit may have erred in dismissing Jennings's 
closing argument claim, CJLF argues that any error was harmless, because the 
district court's denial of relief on that claim was "so clearly correct" that 
no remand is necessary. "The present case has been delayed too long already," 
says CJLF (since the killing 26 years ago), and the Fifth Circuit's "procedural 
hiccup" should not further delay the case.

On this last point, of course, a number of the Justices are likely to disagree. 
Whether that number will add up to 5 may be the real question in this case. A 
defense lawyer who tells capital jurors that if they vote for death, "I can't 
quarrel with that," surely raises serious questions of deficiency and 
prejudice. The normal course, if one believes the Fifth Circuit erred in 
dismissing these questions, would be to remand for consideration on the merits. 
Wednesday's argument may reveal whether CJLF's "harmless beyond reasonable 
doubt" argument has traction with a majority of Justices (although one hardly 
imagines that a remand would long delay the Fifth Circuit on the merits in this 
case). The value of the Court's decision will be in the procedural guidance 
that it provides not so much for Jennings as for the many federal lawyers and 
courts handling federal habeas cases and appeals across the country.

(source: Rory Little, SCOTUS blog)






MASSACHUSETTS:

'Hanging Judge' author speaks in Kingston Thursday


The 2nd program in the Kingston Public Library's Fall Author Talks is a visit 
from Michael Ponsor, author of "The Hanging Judge." Based on his own 
experience, a federal judge who in 2000 presided over the 1st capital case in 
Massachusetts in more than 50 years, this gripping thriller offers an 
unprecedented inside view of a federal death penalty trial.

When a drive-by shooting in Holyoke claims the life of a drug dealer and a 
hockey mom volunteering at an inner-city clinic, the police arrest a rival gang 
member. Public outrage over the senseless killing prompts the U.S. attorney to 
shift the double homicide to federal court so he can seek the death penalty. 
Federal Judge David Norcross now presides over the 1st death penalty case in 
Massachusetts in 50 years. He also must contend with the media crush, 
anti-death penalty protesters, vengeful gang members, and everything that can 
go wrong with a capital trial.

"There are plenty of surprises to keep readers turning pages. Ponsor gives 
readers a unique look into the workings of a courtroom. But more than that, he 
demonstrates a feel for how ordinary families are affected by the legal system. 
Ponsor's debut would make a great movie." Kirkus Reviews, starred review.

"The Hanging Judge" is a Massachusetts Book Awards Must-Read Book for 2014.

Ponsor graduated from Harvard College and Yale Law School. In 1994, President 
Bill Clinton appointed him a life-tenured district judge. Ponsor continues to 
serve as a senior district judge in the United States District Court for the 
District of Massachusetts, Western Division.

"The Hanging Judge" is his 1st novel.

The program begins at 7 p.m. Thursday, Oct. 16, in the Meeting Room of the 
Kingston Public Library, 6 Green St. in Kingston.

(source: wickedlocal.com)






PENNSYLVANIA:

Witness: 'Everybody got shot, so everybody was screaming'


The 911 call was brief and confused, as was the firefight that spawned it.

"They got shot," Jose Gonzalez told an emergency dispatcher.

"My uncle," Gonzalez continued. "I don't know, somebody shot my uncle."

Gonzalez spoke as Angel Figueroa lay in the street paralyzed from a bullet 
fired during a 2012 gun battle in Bethlehem outside a Puerto Rican social club. 
But the reality was even more gruesome than Gonzalez's brief phone call 
suggested, with authorities later labeling the shootout one of the Lehigh 
Valley's worst ever.

Gonzalez's other uncle, Orialis Figueroa, had gunshot wounds to both his legs. 
Gonzalez's cousin, Luis Rivera, was shot in the knee. A 23-year-old family 
friend, Yolanda Morales, was dead.

And the 2 men who Northampton County prosecutors say were the aggressors in the 
melee were also wounded. Javier Rivera-Alvarado was lying unconscious from a 
baseball bat blow to the head, a gunshot to his leg. Rene Figueroa had fled 
back inside the club and was bleeding from his own bullet wounds.

"It was just everybody screaming," Gonzalez recalled Tuesday as he testified in 
Rivera-Alvarado and Rene Figueroa's trial. "Everybody got shot, so everybody 
was screaming."

On the witness stand in the fourth day of testimony, Gonzalez largely repeated 
the account that his family has offered a jury: that the Dec. 2, 2012, shootout 
was sparked when Rivera-Alvarado sneaked up behind Orialis Figueroa outside the 
Puerto Rican Beneficial Society and placed a gun against the back of his head.

Gonzalez, 23, of Easton said he never wielded a weapon early that morning, and 
merely helped tend to the wounded after the shooting subsided. But tests by 
police showed gunshot residue on his hands - a fact that the defense raised 
with jurors when the trial opened last week.

With Gonzalez on the stand, First Deputy District Attorney Terence Houck 
suggested an explanation for the residue, asking the witness whether he touched 
the wounds of any of his relatives who were shot. He did, Gonzalez replied.

"Did you handle a gun that night?" Houck asked him.

"No," Gonzalez insisted.

A jury must decide whether Rivera-Alvarado and Rene Figueroa, who is of no 
relation to the other Figueroas, were the aggressors in the gun battle. Rene 
Figueroa could face the death penalty if convicted of murdering Morales, of 
Bethlehem, who was gunned down in the firefight.

The shooting occurred after a minor incident inside the East Third Street club 
spilled into the street, according to testimony. It created a crime scene so 
complicated that investigators had to draw diagrams to make sense of what 
happened.

And it happened quickly, with authorities estimating it was over in 2 minutes 
or less.

"You're putting everything as slow motion," Gonzalez told Rene Figueroa's 
lawyer, Jack McMahon, as he was questioned over details of his account. 
"Everything happened so fast."

Attorneys for Rivera-Alvarado, 40, and Rene Figueroa, 34, both of Allentown, 
say they are the victims and not the perpetrators. It was the prosecution's 
star witness, Orialis Figueroa of Easton, who started the melee and whose 
reckless gunfire killed Morales, the defense maintains.

McMahon has mocked Orialis Figueroa to the jury as "our local hero," saying the 
story that he and his relatives told police is a "total fabrication."

The long-delayed trial comes as authorities say they foiled a plot by Rene 
Figueroa and his wife, Sonia Panell, to kill witnesses in his case - charges 
that have captured headlines as much as the initial shooting.

Judge Anthony Beltrami has ruled the prosecution can introduce those 
allegations as evidence, after Houck argued that the alleged plot helps show 
that Rene Figueroa knows he is guilty.

Rivera-Alvarado and Rene Figueroa face charges that include attempted murder, 
conspiracy and aggravated assault, though only Figueroa is charged with 
homicide.

(source: Morning Call)

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

Convicted killer Timothy Jacoby sidestepped responsibility for robbery, gun 
charge in 2012----Judge couldn't explain "disconnect" between Air Force Academy 
and felony behavior


During his 1st-degree murder trial last week, before he was convicted and 
sentenced to death, Timothy Matthew Jacoby twice turned down opportunities to 
address the judge and jury.

Even though he was facing the death penalty - and in some people's minds 
therefore had nothing to lose - Jacoby seemed to have undercut his defense 
attorney's work at a 2012 hearing, apparently talking himself into a stiffer 
prison sentence, according to a York County Court transcript.

Jacoby appeared before York County Judge Craig T. Trebilcock on July 18, 2012, 
for sentencing on a gun possession charge, peripherally linked to Schmeyer's 
murder. He was in prison on that charge when authorities arrested him for the 
2010 murder of Monica Schmeyer, the victim in his death penalty case.

Armed with a search warrant on July 7, 2011, police had gone to Jacoby's West 
Manchester Township home looking for a .32-caliber handgun that they believed 
was used to kill Schmeyer 15 months earlier. Jacoby had become a suspect in 
Schmeyer's murder when investigators confirmed he had at one time legally owned 
a .32-caliber handgun

Police never found the suspected murder weapon but in a shed on Jacoby's 
property they did find a .40-caliber handgun.

Because of a 2006 jewelry store robbery conviction, Jacoby was on 5 years' 
probation at the time of the search and because of that was legally barred from 
possessing a firearm.

Still a suspect for Schmeyer's murder, West Manchester Township Police charged 
Jacoby the day the gun was found with "person not to possess a firearm," a 
2nd-degree felony.

A jury convicted him on June 8, 2012, and at the sentencing hearing before 
Trebilcock 5 weeks later, Jacoby's attorney, Ronald J. Gross, had angled for a 
2-to-4-year prison sentence. The state guidelines for a standard 2nd-degree 
felony sentence called for a minimum sentence of 3 years.

Gross advised Trebilcock of much of the same information that Jacoby's murder 
trial jury heard last week.

He said Jacoby:

-- Graduated from Spring Grove Area High School and was accepted in the U.S. 
Air Force Academy;

-- Was reactivated after 9/11;

-- Put himself through college and grad school, earning a master's degree;

-- Was gainfully employed, supported 1 daughters and paid his taxes.

What Trebilcock said he couldn't unscramble was the "disconnect" between "going 
from Air Force Academy cadet ... to some really serious felonies."

That's when Jacoby began talking.

He said, according to transcripts:

-- "(It) was an unreliable witness" who pegged him for the jewelry store 
robbery in 2006;

-- After pleading no contest to the robbery for a probationary sentence, he 
took all of his weapons to his parents' house. The .40-caliber later found in 
the shed, he said, "was an oversight";

-- And, he was "disappointed in the jury's verdict (at his gun possession 
trial) especially considering no evidence was provided proving that I knew the 
firearm was there."

He went on to tell Trebilcock, "I've lost a little faith in the jury system and 
I would greatly appreciate consideration of whether the lack of evidence is 
grounds for acquittal ... ."

"Here's where I'm at with in my mind with you, just to be up front with you," 
Trebilcock said. "You're either a person that commits all sorts of offenses and 
because you're really smart, you have a long parade of excuses to explain them 
away.

"Or, you are the unluckiest person on the face of the earth.

"I haven't found the answer I was looking for yet. It is indeed a situation 
where you're ... the veritable Job of the judicial system because I can't 
imagine how you would be found guilty of a robbery and a felony possession of a 
firearm if you were completely innocent unless you were that unlucky ...

"We don't consider luck in this courtroom."

Summing up Jacoby's statements, Trebilcock said, "It's always somebody else's 
fault. It's a bad jury. It's a bad witness. It's a bad lawyer."

Trebilcock, a colonel and a Judge Advocate General officer in the U.S. Army 
Reserves, also took note that Jacoby was an armorer in the military.

"An armorer is the person who's responsible for the weapons in the unit," 
Trebilcock said. "The armorer always knows where his weapons are. He is trained 
in the military to always know where each and every single weapon ... is.

"So, for a person who's a military armorer to indicate, 'Gee, I just forgot 
about this .40-caliber in my shed,' that does not help your situation."

Trebilcock then sentenced Jacoby to 4 to 8 years - twice what Gross had argued 
for - in state prison. He was in prison when he was charged for Schmeyer's 
murder in August 2012.

Trial coverage

Day 1: Capital murder trial begins in death of Manheim Township woman

Day 2: Murder trial testimony continues in York

Day 3: At dead end, homicide investigators looked at boyfriend of alibi witness

Day 4: Police find no evidence to support murder-for-hire theory in Manheim 
Township case

Day 5: Shell casings compared, ex-husband of victim to testify Monday as 
Manheim Township murder trial continues

Day 6: Ex-husband hoped Manheim Twp. murder was 'horrible April Fool's joke'

Day 7: York jury to get Jacoby case

Timothy Matthew Jacoby was on trial on charges of killing 55-year-old Monica 
Schmeyer in 2010. Schmeyer was found dead in her Manheim Township home with a 
single gunshot wound to the head on March 31, 2010, police said at the time. 
Now that Jacoby has been convicted, the York County District Attorney's Office 
will be seeking the death penalty.

Day 8: Jacoby convicted of 1st-degree murder, faces death penalty hearing

Day 9: Jury hands Jacoby a death sentence

(source: York Daily Record)

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

Psychologist says KOP killer has bipolar disorder as jury decides his fate


The King of Prussia man convicted last week in the 2012 murders of a baby and 
her grandmother exhibits signs of severe mental illness, including elements of 
bipolar disorder that impair his judgment, a forensic psychologist testified 
Tuesday.

Raghunandan Yandamuri has a high IQ of about 120, estimated Gerald Cooke, who 
spent at least nine hours with Yandamuri and administered a battery of tests 
and evaluations. But he has suffered from psychotic and depressive episodes, he 
said, displays grandiosity and tends to deny or minimize his own problems.

Bipolar disorder, Cooke said, "is not a disorder that goes away."

"It impairs his emotional control," he added.

Cooke was the last to testify on behalf of Yandamuri in his sentencing hearing. 
After attorneys present closing arguments, jurors will start deliberating 
whether to sentence Yandamuri to death or to life in prison.

Yandamuri was convicted Thursday of 1st-degree murder in the stabbing death of 
Satayrathi Venna, 61, and the suffocation death of her 10-month-old 
granddaughter, Saanvi Venna.

Prosecutors said Yandamuri, 28, a former information technology worker who 
immigrated from India on a work visa, plotted to kidnap the child for ransom 
money to feed his gambling problem and killed the grandmother when she got in 
his way.

Yandamuri represented himself in the trial and maintained his innocence 
throughout, blaming the deaths on 2 men who he said forced him to help them.

After his conviction, Yandamuri told Common Pleas Court Judge Steven T. O'Neill 
he wanted the death penalty. But, after speaking with his court-appointed 
attorney, he later agreed to abide by the decision of the jury.

(source: Philadelphia News)

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

When does a murderer get sentenced to death?


Pennsylvania is 1 of 32 states which allows for a death sentence. The only 
crime for which you can be sentenced to death under Pennsylvania state law is 
1st degree murder.

There are actually only 2 possible punishments for a conviction of 1st degree 
murder: Life in prison without the possibility of parole, or death.

The process involving a death penalty case is unique, handled unlike any other 
trial in the criminal justice system. In order to be chosen to be on a death 
penalty jury, a juror must go through a special "voir dire," or jury selection 
process.

This process is designed to ensure fairness, and must include jurors who are 
open to the possibility of the death penalty. Often, this process is done 
individually with each juror, rather than with the entire jury panel in 1 room, 
as is done in other cases.

The initial step to begin a death penalty case requires, in addition to a 
charge of 1st-degree murder, that the Commonwealth provide the defendant with 
notice of "aggravating circumstances." This notice must be given at or before 
the time of arraignment, and provides the statutory basis for the 
Commonwealth's decision to seek the death penalty.

The death penalty can be pursued if any of the following circumstances exist:

1. The victim was a law enforcement officer, firefighter, judge, or named 
government official, and was killed in the performance of his duties or as a 
result of his position.

2. The defendant paid, was paid, or had hired someone to kill the victim.

3. The victim was held by the defendant for ransom, reward, or used as a shield 
or hostage.

4. The victim died while the defendant was hijacking an aircraft.

5. The victim was a prosecution witness in a murder or any felony committed by 
the defendant, and was killed to prevent his testimony.

6. The defendant committed the killing while in perpetration of a felony.

7. While committing the killing, the defendant knowingly created a grave risk 
of death to someone besides the victim.

8. The killing was committed by torture.

9. The defendant has a significant history of felony convictions involving the 
use or threat of violence to the person.

10. The defendant has another conviction for which he could have received a 
life sentence or death, or was serving a life sentence at the time of the 
offense.

11. The defendant was previously convicted of another murder.

12. The defendant was previously convicted of voluntary manslaughter.

13. The defendant committed the killing while committing a crime of drug 
trafficking.

14. At the time of the killing the victim was involved with or a competitor to 
the defendant in the sale of controlled substances, and the killing was a 
result of that relationship.

15. At the time of the killing, the victim was an informant or was assisting 
law enforcement, and the killing was in retaliation for the victim's 
cooperation.

16. The victim was under 12 years old.

17. At the time of the killing the victim was in her 3rd trimester of 
pregnancy, or the defendant knew the victim was pregnant.

18. At the time of the killing the defendant was subject to a PFA or other 
order protecting the victim from the defendant

After a conviction for 1st degree murder, a defendant has an entirely separate 
trial to decide his sentence. This trial will be done with the same jury, who 
will choose between life and death. The jury will consider any aggravating 
circumstances, noted above. The jury might also consider any of the following 
mitigating circumstances:

1. The defendant has no significant history of prior criminal convictions.

2. The defendant was under the influence of extreme mental or emotional 
disturbance.

3. The capacity of the defendant to appreciate the criminality of his conduct 
and conform his conduct to the law was substantially impaired.

4. The age of the defendant at the time of the killing.

5. The defendant acted under extreme duress or under the substantial domination 
of another person.

6. The victim was a participant in the defendant's homicidal conduct or 
consented to the homicidal acts.

7. The defendant's participation in the killing was relatively minor.

8. Any other evidence of mitigation concerning the character and record of the 
defendant and the circumstances of his offense.

To "find" an aggravating circumstance, the jury must unanimously agree that it 
was proven by the Commonwealth, beyond a reasonable doubt. However, to find a 
mitigating circumstance, the jury must unanimously agree that it was proven by 
the defendant by a preponderance of the evidence. The standard to find a 
mitigating circumstances is therefore much less than to find an aggravating 
circumstance.

The sentence must be death if the jury unanimously finds at least one 
aggravating circumstance and no mitigating circumstance. The sentence must also 
be death if the aggravating circumstance(s) outweigh the mitigating 
circumstance(s).

If the jury finds at least 1 aggravating circumstance and at least 1 mitigating 
circumstance, it must weigh those circumstances and also consider any evidence 
about the victim and the impact of the murder on the victim's family.

In all other cases than those described above, the sentence must be life. If 
the jury cannot reach a unanimous verdict, the sentence must also be life 
imprisonment.

A sentence of death is given automatic review by the Supreme Court of 
Pennsylvania.

As always...As a Magisterial District Judge, I am strictly prohibited from 
giving my opinions on cases, and will not be doing so in this column.

(source: Judge Jessica Brewbaker; pennlive.com)

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

Should arbitrary factors mitigate the punishment?


On October 2, the day after a Chester County jury convicted Duran Peoples of 
1st-degree murder in the contract killing of Coatesville barber shop owner 
Jonas "Sonny" Suber, the same jury unanimously informed Judge David Bortner 
that the appropriate sentence would be life without parole, and not death.

The jury decided that mitigating factors cited by the defense ... Peoples' 
upbringing in poor socio-economic circumstances; his self-described "addiction" 
to the life of a drug dealer; and the circumstantial nature of the 
prosecution's case ... outweighed the prosecution's plea that the "murder for 
hire" deserved a sentence of death.

In an October 6 editorial, the Daily Local News commended Chester County jurors 
and prosecutors for their reluctance to impose the death penalty upon convicted 
murderers. That only 4 defendants convicted of murder in the county are on 
death row in the editors' opinion demonstrates the district attorney's "wisdom" 
to withdraw the death penalty when it "serves the interest of justice".

Which begs the question: does withdrawing the death penalty in light of 
mitigating factors serve the interests of justice, or does consideration of 
mitigating factors promulgate greater injustice by allowing a lucky few to 
avoid the ultimate punishment for the ultimate crime?

In short, why should a few arbitrary factors mitigate the punishment for 
cold-blooded murder?

So what if Peoples was raised in poor socio-economic circumstances? Countless 
children are bought up in poor socio-economic circumstances but they do not 
become murderers. Should an accident of birth determine the severity of 
punishment for a heinous crime?

These factors also stigmatize the vast majority of men and women from similar 
backgrounds who choose to live law abiding lives rather than blaming difficult 
circumstances for an "addiction" to crime.

Consideration of the circumstantial nature of the prosecution's case hints that 
a murderer need only hire a triggerman to do his dirty work and absent himself 
from the scene to insulate him from culpability. Even so, the prosecution's 
so-called "circumstantial" case convinced the jury that Peoples was guilty of 
1st degree murder.

The kicker is Peoples' self-described "addiction" to the life of a drug dealer. 
The selfish, self-centered, and violent life to which Peoples was "addicted" 
should properly be an aggravating circumstance.

"Mitigating factors" also create a subtle, constitutionally suspect double 
standard by arbitrarily holding members of a certain class of people to a 
higher standard of conduct than members of a favored class.

And with fewer "mitigating factors" in their background, it follows that those 
subject to this stricter standard are more deserving of capital punishment for 
similar crimes than the Peoples of the world. Where is the justice (or logic) 
in that?

A 1st-degree murder verdict establishes beyond reasonable doubt a defendant's 
degree of culpability. Once degree is established, it is past time for excuses 
and justification.

Sentencing is the time when justice is done.

In capital cases, justice requires that the death penalty apply to all or to 
none.

Gerald K. McOscar -- West Chester

(source: Letter to the Editor, Daily Local News)






NORTH CAROLINA:

Devil-worshipper ate parts of his victims: Satanic murders rock North Carolina 
as 3 - including tattooed 'cannibal' - are arrested

3 people have been arrested after the skeletal remains of 2 men were found in a 
backyard of a home owned by Satanists in a North Carolina village.

Pazuzu Illah Algarad, 35, was arrested and charged with murder last Sunday 
after the 2 bodies were discovered in shallow graves at the house in Clemmons 
where neighbors say he has performed animal sacrifices and satanic rituals.

A friend claims that he had 'told everyone' about the bodies, but nobody 
believed him, and he described how he killed them, ate part of them and then 
burned the rest in a fire pit.

Amber Nicole Burch, 24, who lives with Algarad and is described as his wife on 
Facebook, was also charged with murder, while 28-year-old Krystal Nicole 
Matlock has been charged as an accessory with police alleging that she helped 
bury the bodies.

The 1st victim has been identified as 37-year-old Joshua Fredrick Wetzler while 
the 2nd victim has been named as Tommy Dean Welch, 36.

Police have said they also found animal bones in the property and that more 
arrests as part of the investigation are possible.

On the front door of the house where the skeletal remains were found was a sign 
warning law-enforcement not to enter.

It reads: 'No gang members allowed: anyone that dresses the same, has the same 
badge and call themselves the authority of the land they did not create. Below 
and to the right is a picture of a skull and cross bones.

Under that picture are the words, 'Evil will triumph'.

According to the Winston-Salem Journal, Algarad was born in San Francisco, 
California, as John Lawson, but dropped out of high school, became a drug 
dealer.

His mother Cynthia Lawson, who is also a Satanist, changed his name to Pazuzu - 
after the devil that possessed the girl in the film The Exorcis - and claimed 
it was of Iraqi descent.

The Camel City Dispatch reported that his friends said he tried to paint a 
picture of himself serial killer Charles Manson, founder of the Church of Satan 
Anton LaVay, and British occultist Aleister Crowley.

His tongue was split down the middle like a snake and he allegedly filed down 
his teeth to sharpen them.

In 2010, Algarad was convicted on a charge of accessory after the fact in the 
shooting death of 30-year-old Joseph Chandler.

Chandler's body was found near a river by police after his mother reported him 
missing that morning.

According to state records, Algarad was on probation at the time the bodies 
were found on Sunday.

Bianca Heath claimed she lived with Algarad for a month in 2005, and that he 
had spoken of the bones in his back yard.

She told The Huffington Post: 'Paz told everyone. But I never believed him. I'm 
sure no one else believed him either. He laughed about the skeletal remains 
when telling the story on why he did what he did.'

Heath said Algarad told her he picked up 2 prostitutes at two separate 
locations before he killed and ate them, burning the remains in a fire pit 
before burying the rest.

In 2011, Burch was accused of slapping Algarad's mother in the face and 
attempting to choke her.

She is described as Algarad's wife on Facebook, but authorities have said there 
is no legal document to suggest they are together.

(source: Daily Mail)