[Deathpenalty] death penalty news----KY., KAN., COLO., USA

[Rick Halperin]

Sept. 24



KENTUCKY:

Priest: Kentucky close to abolishing death penalty


The Rev. Patrick Delahanty, a longtime leader in the effort to end capital 
punishment, said Monday he thinks Kentucky may soon become the 1st state in the 
South to do so.

(source: The Messenger)






KANSAS:

Jurors in Cheatham death penalty case won't see defendant's lyrics


Phillip D. Cheatham Jr.'s rap song - the one prosecutors say is a confession to 
killing 2 women and defense attorneys say is just 1 of many songs about murder 
and mayhem not tied to truth - won't be heard by jurors during his capital 
murder retrial.

Shawnee County District Court Judge Richard Anderson on Wednesday granted a 
motion by Cheatham's death penalty defense team to block jurors from seeing the 
lyrics.

The song, even the title, has been a strong point of contention since the 
capital murder case returned to district court to be tried a 2nd time.

Chief deputy district attorney Jacqie Spradling calls it "Prove Me Guilty."

Capital defense attorney John Val Wachtel, of Wichita, says the title is 
"Innocent Prove Me Guilty."

"It is not a confession, it is not an admission of some kind," Wachtel said. 
"Admitting this is like introducing 'Goodbye, Earl' against the Dixie Chicks," 
Wachtel said of the country singers' popular 1999 song.

The lyrics are more prejudicial to Cheatham than probative as evidence, Wachtel 
said.

"It's music. How many people die in opera songs?" Wachtel said.

Spradling views the lyrics as a confession to 2 murders.

As for Wachtel's more-prejudicial-than-probative argument, that is true of 
every statement a defendant makes tied to a crime, Spradling said.Spradling 
said admissions by Cheatham in the song include:

-- "Ya need a bitch and a cop to prove me guilty."

-- "A couple bitches got killed, and one mentioned a kingpin named Phil."

-- "I'm killing anybody that lead ta me."

"I'm really struggling with placing reliability on this," Anderson said just 
before he granted the defense motion to block introduction of the song's lyrics 
as evidence.

In granting the motion blocking the lyrics, the Anderson questioned how a judge 
could place reliability on these lyrics, then listed popular singers whose 
songs told stories of murder and violence.

"I never believed (Johnny Cash) actually shot someone," Anderson said. 
Cheatham's lyrics can't be considered a confession, the judge said.

Nowhere in the lyrics of Cheatham's song does he say he shot the 2 slaying 
victims, Anderson said, and the lyrics can't be trusted to make a link to the 
motive for the 2003 shootings. A new trial was ordered for Cheatham, 41, in 
2013 after the Kansas Supreme Court overturned his capital murder conviction 
and death penalty sentence for the Dec. 13, 2003, shooting deaths of Annette 
Roberson and Gloria Jones in a home at 2718 S.E. Colorado.

The retrial is scheduled to start on Feb. 16, 2015, and is expected to last 6 
weeks.

(source: Capital Journal)






COLORADO:

Aurora could release theater shooting report within 2 weeks


The long-awaited review commissioned by the city of Aurora over its emergency 
response to the theater shooting could be released to the public within 2 
weeks.

Arapahoe County District Court Judge Stephen Collins filed an order Wednesday, 
saying he had made additional "but not all" redactions requested by Aurora on 
the theater analysis performed by the company TriData.

Collins gave the city until Oct. 7 to appeal his ruling.

"The Court recognizes that the Petition and the Motion raise controversial 
questions that do not have clear answers," Collins wrote in his order.

Aurora City Attorney Mike Hyman said he will consult with the city council but 
that the report would likely be releases either on Oct. 7 or shortly 
thereafter.

"I expect we will be targeting a date when we can bring everyone in and get 
this out to the press and everyone who wants to see it," Hyman said.

Aurora sought guidance from the court on whether it could release the $250,000 
"after action report" because there is a gag order in the case. Last month, 
Collins said in court that he didn't see anything in the TriData report that 
could hurt the criminal case, despite prosecutors and defense attorneys arguing 
in favor of keeping it sealed.

The trial against alleged shooter James Holmes is expected to begin in 
December. Holmes faces the death penalty if convicted of killing 12 people and 
injuring dozens of others in the shootings in July 2012.

(source: Denver Post)






USA:

Killing Convicts Is a Vile Superstition


Justice Harry Blackmun couldn't take it any more and so announced from the US 
Supreme Court bench that he would "no longer tinker with the machinery of 
death" and would henceforth vote to reverse all death penalty cases, as several 
justices had done before him. Never 5 at the same time, of course.

What he could not take any more is what virtually all judges and most lawyers 
who know anything about the death penalty admit privately. Death is 
administered in an arbitrary manner to those least able to resist the 
government when it determines to make a human sacrifice to the crime gods.

There is no evidence that government killing makes things better for the next 
of kin. Econometrics tells us that government killing might prevent a future 
murder while multiple regression analysis tells us that's not true. Who has the 
burden of proof, anyway? Adding insult to injury, government killing costs the 
government a great deal more than life without parole - but money is no object 
when gods demand blood.

Killing convicts indulges superstition on the level of a cargo cult. 
Propitiating the crime gods is claimed to bring "cloture" to the next of kin. 
Guilt is not required of the individual selected for sacrifice, and the more 
horrible the killing the less evidence of guilt is required.

We judges know that we would never trust our own lives to this system, but we 
differ on how we rationalize trusting the lives of others to it. Mostly, we 
focus on the improvements to the machinery of death, one of which is that it 
can seldom be imposed in these times except for a crime involving homicide.

When we think of the nonwhite men executed for raping nonwhite women, account 
for the difficulties of cross-racial identification, racial bias in the justice 
system, and the exoneration rate of about 25 % where DNA is available, we tend 
to brag about rape of an adult woman with no further injury being no longer 
death penalty eligible. (Note I did not say 1/4 of convicted rapists are 
factually innocent. Before you roast me, pay attention to what I actually said 
and can prove.)

The facts of a killing are useful in bucking up a jury for the killing, but 
they can also be used to tip the scales toward mercy if the killing you 
describe is the cold-blooded, medicalized one after years spent on death row. 
It was this sort of description of the day the government picks to take a life 
that Justice Blackmun used to explain himself, a rhetorical flourish in 
addition to legal issues such as actual innocence not being a ground to get a 
death sentence overturned with federal habeas corpus.

It was Justice Antonin Scalia who said it famously and coldly:

We (agreed to hear) the question whether it violates due process or constitutes 
cruel and unusual punishment for a State to execute a person who, having been 
convicted of murder after a full and fair trial, later alleges that newly 
discovered evidence shows him to be "actually innocent." . . . (I)t is 
perfectly clear what the answer is: There is no basis in text, tradition, or 
even in contemporary practice . . . for finding in the Constitution a right to 
demand judicial consideration of newly discovered evidence of innocence brought 
forward after conviction.

About 4 months later, Leonel Herrera, whose petition had been turned away, was 
sacrificed to the crime gods, and in one of many macabre customs of the 
sacrifice, his final words were recorded for posterity: "I am innocent, 
innocent, innocent ... I am an innocent man, and something very wrong is taking 
place tonight."

The same Justice Scalia who found his lack of duty to inquire about actual 
innocence "perfectly clear," was offended by Justice Blackmun???s descriptions 
of the human sacrifice. Scalia was informed, correctly, that the medicalization 
of the human sacrifice has made it generally much cleaner than the crimes for 
which the sacrifice is offered, a dozen or so botched lethal injections 
notwithstanding. Therefore, Scalia took Justice Blackmun to task:

The death-by-injection which JUSTICE BLACKMUN describes looks pretty desirable 
next to (the death of the victim in a tavern shooting). It looks even better 
next to some of the other cases currently before us which JUSTICE BLACKMUN did 
not select as the vehicle for his announcement that the death penalty is always 
unconstitutional - for example, the case of the 11-year-old girl raped by 4 men 
and then killed by stuffing her panties down her throat.

The more gruesome the crime, you see, the greater the necessity to appease the 
crime gods and the less evidence is necessary to select the sacrificial 
offering. In the case Justice Scalia put forward, a prosecutor The New York 
Times called "America's deadliest D.A." made sacrificial offerings of Henry 
McCollum and Leon Brown, mentally impaired black teenagers.

The "evidence" was their confessions, which were inconsistent with each other 
and soon recanted by both as well as testimony by an informer who had 
previously not implicated them. There was no physical evidence.

Not investigated was a serial sex offender who lived less than 100 yards from 
the crime and who would shortly kill a teenage girl under what the Times called 
"strikingly similar circumstances."

The Times also noted that the community where this happened has "a 3-way racial 
split - white, black and American Indian - (with) complaints from the latter 2 
groups of discrimination by whites who held power despite being a numerical 
minority." In 1988, "American Indian activists took 19 hostages at the local 
newspaper to protest discrimination and corruption in the criminal justice 
system."

At the trial of the 2 black kids, the prosecutor suggested that a cigarette 
found at the scene belonged to the killers. Therefore, the cigarette became 
part of the trial record, and after Henry McCollum had spent more than 30 years 
on death row (Brown's sentence had been reduced to life) it remained available 
for DNA testing.

The DNA came back matching Roscoe Artis, who was convicted of a similar crime 4 
weeks after and a short distance from the first crime scene. Nothing tested for 
DNA matched McCollum or Brown.

Oh, and it turned out that the informer who said he knew nothing about the 
murder but later implicated McCollum and Brown took a polygraph test that was 
not shared with the public defender. The polygraph said he told the truth the 
1st time.

McCollum and Brown have now been freed on a finding of actual innocence by a 
state court because, as Justice Scalia would remind us, actual innocence does 
not state a claim for federal habeas corpus. And the crime gods really don't 
care whether the human sacrifice was guilty.

(source: Steve Russell, Cherokee Nation of Oklahoma, is a Texas trial court 
judge by assignment and associate professor emeritus of criminal justice at 
Indiana University-Bloomington. He lives in Georgetown, Texas----Indian Country 
Today)