[Deathpenalty] death penalty news----FLA., MO., CALIF., USA

[Rick Halperin]

July 10



FLORIDA:

Florida Supreme Court upholds conviction, death sentence of killer Delmer Smith


The Florida Supreme Court has upheld the conviction and death sentence for 
killer Delmer Smith.

A jury convicted Smith on Aug. 2, 2012 of the 1st-degree murder of Kathleen 
Briles. Briles was beaten to death with her cast-iron antique sewing machine in 
her Terra Ceia home on Aug. 9, 2009.

With a unanimous recommendation from the jury, Circuit Judge Peter Dubensky 
sentenced Smith to death on May 28, 2013.

"After a thorough review of all the issues raised by Smith, and after our own 
independent review of the proportionality of Smith's sentence of death, we 
affirm Smith's conviction for first-degree murder and sentence of death," the 
justices wrote in their opinion filed Thursday.

Smith's appeal is based on claims that he was entitled to relief because the 
trial court made mistakes in denying his motion for judgment of acquittal, 
denying his motion for mistrial, in permitting one inmate to testify that he 
threatened a witness, denying a continuance, failed to find the murder heinous, 
atrocious or cruel, rejecting 2 proposed mitigating factors and that the 
state's death penalty scheme is unconstitutional.

In regard to Smith's motion for a judgement of acquittal, the Supreme Court 
concluded that the trial court did not make a mistake in its denial, and that 
the substantial evidence and lack of a reasonable hypothesis supported a guilty 
verdict by the jury.

Smith's claim for a motion for a mistrial was based on a reference a detective 
made during the trial of an investigation in Sarasota. The Supreme Court ruled 
in agreement with the trial court that the detective did not imply that Smith 
was the focus of the investigation.

Smith is also serving a life-term prison sentence for the violent kidnapping of 
a woman and home invasion robbery in Sarasota about five months before the 
murder of Briles.

With regard to an inmate being allowed to testify that Smith had threatened a 
witness, the justices ruled it was relevant in establishing guilt and that it 
was up to the jury to determine the weight to give that evidence.

Smith's claim for his motion to continue on the eve of the trial, which was 
denied, was they wanted to acquire their own fingerprint expert to review the 
Briles' medical encyclopedia found in Smith's possession. The defense also 
amended the late request in order to secure a witness without any proffer as to 
what that testimony would provide.

"Based on this record, we hold that Smith has failed to show any abuse of 
discretion in the denial of the motion to continue or any specific prejudice as 
a result," the justices wrote. "As it pertains to the medical encyclopedia, 
based on a specific request from Smith's attorney, the fingerprint expert 
retained by the State reviewed every page within the book for fingerprints and 
Smith fails to allege how another examination of the book would have assisted 
his defense."

Smith argued in his appeal that Briles' murder was proven to be heinous, 
atrocious or cruel based on the medical examiner's testimony because she was 
lying face down when she was beaten so she could not see him, and that the 1st 
blow with the sewing machine could have left her unconscious.

"The testimony from trial ... supports the trial court's conclusion that the 
crime began when the victim was 'accosted' outside of her home and then 
'incapacitated in her own home.' She was bound with duct tape with 'her hands 
... together and bound behind her back, and her legs around the ankles also 
bound.' Duct tape also covered her mouth so that not only was she rendered 
completely helpless but she could not cry out. As she was not blindfolded, she 
was able to see the events transpire around her."

Smith's appeal also alleged that, during the penalty phase, the court failed to 
establish the felony murder was not committed while he was under the influence 
of an extreme mental or emotional disturbance and his ability to understand 
what he was doing was criminal. The Supreme Court ruled that these mitigators 
were not based on credible determinations.

The opinion also denies that the death penalty was unconstitutional in this 
case because Smith had prior violent felony convictions and the jury 
unanimously recommended the sentence of death.

The Supreme Court also weighed all the facts and factors in the case found that 
the death penalty was proportional.

(source: Bradenton Herald)

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

Renewed hope for ending death penalty ---- The U.S. Supreme Court opinion that 
upheld a controversial lethal injection procedure used in Florida included 
dissents from 2 justices who said the death penalty is likely unconstitutional 
and practically invited an appeal to revisit the issue.


The U.S. Supreme Court opinion that upheld a controversial lethal injection 
procedure used in Florida was notable for 2 other reasons. It included dissents 
from 2 justices who said the death penalty is likely unconstitutional and 
practically invited an appeal to revisit the issue. It also prompted Attorney 
General Pam Bondi to immediately push to resume executions in Florida even as 
most of the rest of nation abandons the death penalty and heads for higher 
moral and practical ground.

Death penalty advocates won an incremental victory last week when the court 
decided in a 5-4 opinion to allow Florida and other states to continue using 
the sedative midazolam as part of a drug mixture for lethal injections. To 
reach that conclusion, the court heavily relied on the illogical reasoning that 
the plaintiffs did not suggest a better way for states to perform executions. 
Opponents of the death penalty should not have to propose new ways for the 
state to kill people.

The broader picture is more encouraging. There appear to be 4 likely votes on 
the Supreme Court for outlawing the death penalty, and Justice Anthony Kennedy 
could be the swing vote to break the tie as he often is between the most 
conservative and liberal justices. Justice Stephen Breyer, in a well-reasoned 
dissent joined by Justice Ruth Bader Ginsberg, argued that times have changed 
since the court reinstated the death penalty in 1976 and left it to the states 
to ensure that constitutional rights are not violated.

"Almost 40 years of studies, surveys and experience strongly indicate, however, 
that this effort has failed,'' Breyer wrote, adding that he considers it likely 
that the death penalty violates the constitutional ban against cruel and 
unusual punishment.

The primary issue, of course, is that the states sentence to death innocent 
people. Breyer noted that there have been 154 capital cases in which the 
convicted person was exonerated after new evidence was discovered. That 
includes 25 who were exonerated from Florida's death row - the most from any 
state. Justice Antonin Scalia, in his caustic criticism of Breyer's position, 
casually suggested death sentences are better than sentences to life in prison. 
That would be the same Scalia who once used a horrific crime to justify lethal 
injection where the men sentenced to death were later exonerated by DNA 
evidence.

The national tide is running against the death penalty, and the number of death 
sentences are at historic lows. At least 30 states have either abolished the 
death penalty or held no executions in the last eight years. Yet Florida has 
headed in the opposite direction, with 21 executions since Rick Scott became 
governor in 2011. "If you don't have the death penalty, it's a free murder,'' 
Rep. Matt Gatez, R-Fort Walton Beach, told the Tampa Bay Times' Michael Auslen.

Life prison sentences are not free, and the risk of executing an innocent 
person is too high. Yet Gaetz and his colleagues in the Legislature have 
focused on speeding up executions while other states are banning the death 
penalty. And Florida also faces another legal hurdle. The U.S. Supreme Court 
will hear a case challenging the state's requirement of just a majority vote by 
a jury to recommend that a judge impose a death sentence. Most states require a 
unanimous vote or at least a super-majority vote by the jury.

Most states have recognized that there is no place for the death penalty in a 
civilized society. Florida remains one of the last stubborn holdouts, and it 
likely will be the courts rather than the elected officials that will end 
executions here. Judging from the U.S. Supreme Court opinions last week, that 
day could be coming sooner rather than later.

(source: Editorial, Tampa Bay Times)






MISSOURI:

Suit alleges death penalty involves illegal use of money


Death penalty opponents told a Cole County judge Friday the state's lethal 
injection protocol violates drug control laws.

4 activists filed a lawsuit on Thursday claiming Missouri's use of a 
compounding pharmacy runs afoul of laws that forbid compounding pharmacies from 
making exact copies of pharmaceutical drugs. Missouri uses pentobarbital in its 
executions. That drug is manufactured by a European company under the brand 
name Nembutal. That company has refused to sell the drug to any departments of 
corrections for use in executions. The lawsuit asks for a temporary restraining 
order on the grounds that Missouri's death penalty is an illegal use of 
taxpayer money, a provision called taxpayer standing.

The lawsuit comes as Missouri prepares to execute David Zink on July 14. Zink 
was convicted in 2001 of raping and murdering Amanda Morton near Stafford.

During arguments before Judge Pat Joyce Friday afternoon, attorney Justin 
Gelfand said the execution drug doesn't fall under the same category as a 
generic drug because those are regulated by the Food and Drug Administration. 
In addition, he said it is a federal violation for a compounding pharmacy to 
introduce any new drug without FDA approval. Gelfand also argued Missouri's 
execution drugs don't have a valid prescription because there is no contact 
between physician and patient, in this case, the person to be executed.

The state argued it could not disclose whether or not the Department of 
Corrections in fact uses a compounding pharmacy but insisted if it did, the 
pharmacy was being used in accordance with state and federal law. The state 
also argued the lawsuit is the same as one Zink brought before the Missouri 
Supreme Court last month. The court ruled against Zink. The state argued the 
activists were acting as surrogates for Zink and were trying to use the lawsuit 
as a way to delay his execution.

Judge Joyce said she plans to issue a ruling on Monday morning.

(source: connectmidmissouri.com)






CALIFORNIA:

Contra Costa Times editorial: No cocktail is needed, outlaw death penalty


With the Supreme Court's 5-4 decision that the controversial drug midazolam is 
legal for executions, the responsibility to administer the death penalty falls 
back squarely on states, including California, that still embrace it.

But whether this particular drug is cruel or ethical to use is beside the 
point. The smartest, cheapest and fairest thing to do is abolish the death 
penalty.

It would remove a medieval practice from civilized society, bring closure to 
loved ones who now may see killers die of old age before they're executed and 
save millions of dollars a year that could be spent instead on solving and 
preventing crime. That is, protecting people as opposed to exacting revenge.

In California, abolishing the death penalty will take a vote of the people. 
It's time for political leaders to call it what it is: retribution. It does not 
deter crime. This country alone in the industrialized world still practices it, 
in the company of places like Iran and North Korea.

Since voters passed Proposition 7 in 1978 to restore capital punishment, 
California has wasted $4 billion to execute 13 prisoners. Do the math. A state 
report in 2008 found that it costs an extra $90,000 a year per prisoner on 
death row than it would cost to put offenders in prison and throw away the key. 
Meanwhile, hundreds of homicides statewide go unsolved due to lack of funding.

Then there's the little problem of executing innocent people, which almost 
certainly has happened here. California leads the nation in exonerations of 
convicted prisoners -- 214 and counting -- after an average of 11 years in 
prison.

California has not executed anyone since a 2006 court ruling against its 
previous 3-drug cocktail. But in June, the state settled a court case brought 
by crime victims families, and Gov. Jerry Brown committed to picking a new 
execution method within 120 days.

Meanwhile, a federal court last July ruled that California's implementation of 
the death penalty is unconstitutional because of its long delays. Attorney 
General Kamala Harris has pledged to fight the ruling, but it adds another 
wrinkle: Reforms to reliably prevent wrongful execution would likely add more 
delays and definitely higher costs.

Let's give it up. Stop wrangling over the best way to kill people. Sentence to 
life without parole.

In 2012, California voters came within 4 % points of repealing the death 
penalty with Proposition 34. The ACLU may try again in 2016. That would be 
after 4 years with a still-broken system and with several other states, shaken 
by exonerations of death row inmates, calling moratoriums or ending the death 
penalty. Perhaps California's time finally will come.

(source: Editorial, Contra Costa Times)






USA:

Lawyers for Colorado movie gunman James Holmes wrap up case


Defense lawyers trying to avoid the death penalty for Colorado movie massacre 
gunman James Holmes wrapped up their case on Friday, hoping they have convinced 
jurors he was legally insane when he carried out one of the worst U.S. mass 
shootings.

They concede that he killed 12 people and wounded 70 when he opened fire with a 
semiautomatic rifle, shotgun and pistol inside a movie theater in 2012, and 
that had rigged his apartment with bombs before he left. But they say he 
suffers schizophrenia and was not in control of his actions.

Prosecutors accuse Holmes of being a cold-blooded murderer who aimed to kill 
all 400 people in the packed midnight premiere of a Batman film at the Century 
16 cinema in Aurora, a Denver suburb. He failed in part because the drum 
magazine he bought for his rifle jammed.

After playing jurors a video of the defendant naked and running head-long into 
a cell wall, and another of him thrashing around in restraints at a hospital, 
the defense rested.

The prosecution said it would not present any rebuttal case. Attorneys from 
both sides will make closing arguments on Tuesday.

The defense team had earlier called a succession of psychiatrists and 
psychologists who studied Holmes, as well as jail staff who met him after he 
was arrested at the scene dressed head-to-toe in body armor, a gas mask and a 
helmet.

Their star expert witness, Raquel Gur, director of the Schizophrenia Research 
Center at the University of Pennsylvania, spent a grueling 4 days on the stand 
defending her diagnosis that Holmes was legally insane.

"He was not capable of differentiating between right and wrong," Gur said on 
Thursday. The noted psychiatrist and author once examined Unabomber Ted 
Kaczynski and Arizona mass shooter Jared Loughner.

"He was not capable of understanding that the people that he was going to kill 
wanted to live."

2 court-appointed psychiatrists reached a different conclusion: while Holmes is 
severely mentally ill, they have told jurors, he was legally sane when he 
planned and carried out the massacre.

Holmes did not testify in his own defense.

Throughout the trial he has displayed almost no reaction to the parade of more 
than 200 victims, law enforcement officials, medical workers and other 
witnesses who took the stand, just a few feet in front of where he sat tethered 
to the floor beneath the desk used by his attorneys.

Sometimes he turned his head to watch videos of himself played on a court 
television. Responding with 1-word answers, he told Arapahoe County District 
Court Judge Carlos Samour on Thursday that he understood his decision not to 
testify.

Holmes has pleaded not guilty by reason of insanity, and if the jury agrees he 
would avoid the death penalty. Under Colorado law, the prosecution must prove 
he was sane for him to be found guilty of multiple counts of 1st-degree murder 
and attempted murder. District Attorney George Brauchler attacked Gur's 
testimony during lengthy cross-examination.

Suggesting she neglected important indicators of Holmes' state of mind, he said 
she failed to take detailed notes, and wrote a much shorter report than the 
court-appointed psychiatrists.

"Why not just send in a postcard?" Brauchler asked.

Jurors have posed questions to many witnesses, and Gur faced more than 50 
written queries from the jury that were read to her by the judge.

They included whether she considered other diagnoses such as autism. She 
replied that she did. "The presentation was most consistent with ... 
schizophrenia," Gur said.

(source: Reuters)

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

At core of Colorado theater trial: How severe is defendant's mental 
illness?----James Holmes attorneys wrapped up their defense in the Colorado 
theater shooting trial on Friday. Both sides are expected to make closing 
arguments on Tuesday.


Defense lawyers trying to keep gunman James Holmes from receiving the death 
penalty finished their case on Friday hoping to have convinced jurors that he 
was legally insane when he committed the Colorado movie massacre.

Mr. Holmes' lawyers admit that he did kill 12 people and wound 70 others on 
July 20, 2012 when he opened fire inside a crowded movie theater. Nevertheless, 
they say that he was not in control of his actions at the time due to 
schizophrenia.

The star witness in the defense's case was Raquel Gur, director of the 
Schizophrenia Research Center at the University of Pennsylvania in 
Philadelphia. Dr. Gur spent 4 days on the stand defending her opinion that 
Holmes was legally insane when he committed the crime.

"He was not capable of differentiating between right and wrong," Gur said on 
Thursday. "He was not capable of understanding that the people that he was 
going to kill wanted to live."

2 court appointed psychiatrists, however, have concluded that Homes was sane 
when he committed the crime, although they concede that he is severely mentally 
ill.

On Friday the defense played jurors videos of the defendant naked and running 
head-long into a cell wall and thrashing around in restraints at a hospital.

The outcome of the trial could determine whether the insanity defense is 
useful, experts say. Furthermore, legal experts have noted that it may be the 
first time a Colorado jury has had to weigh the insanity defense in a death 
penalty case.

"If jurors agree he was insane at the time of the shooting, he will be 
committed to a state psychiatric hospital. If not, they will have to determine 
his sentence: life without possibility of parole or the death penalty," the 
Monitor's Amanda Paulson wrote in April.

Throughout the trial, Holmes has displayed almost no reaction to individuals 
who took the stand. He would occasionally turn his head to watch videos of 
himself played on a court television, reporters noted.

The prosecution has said that it will not perform any rebuttals and attorneys 
from both sides of the case are expected to deliver their closing arguments on 
Tuesday.

(source: Christian Science Monitor)

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

Susan Sarandon on Death Row Stories, Ariana Grande, and Doing TV for the First 
Time


While the promos for CNN's compelling documentary series Death Row Stories 
sometimes make it look like just another cheesy true-crime TV show, it's 
actually a bit deeper than that. Produced by Robert Redford and Going Clear 
director Alex Gibney, the show actually has a mission beyond getting ratings: 
It regularly exposes the deep flaws in a legal system that sometimes seems 
determined to put suspects to death even when evidence suggests they might be 
innocent. The greater purpose may be why actor/activist Susan Sarandon will be 
back as narrator when Death Row Stories begins its 2nd 6-episode season Sunday 
at 10 p.m. Vulture caught up with her Thursday to talk about the the show, as 
well as the possibility that the death penalty might soon be reversed.

Death Row Stories really does a great job dramatizing how so many inmates are 
in danger of being wrongly executed, even today, with all the technology we 
have to help determine guilt. You've been an activist on the death penalty at 
least since you starred in Dead Man Walking. How does this project bring light 
to the topic?

When you see these stories, you realize how faulty the justice system is. You 
have DNA evidence and you still can't get a person out. Once [a prosecutor] 
makes a mistake and puts someone [on death row], they don't want to admit they 
made a mistake. They postpone trials for years at a time. What the series has 
done is show how, even with the advent of DNA testing, still people can't get 
out. And they lose their lives. Not only [by execution], but they die in prison 
and miss their families and their children growing up. What a tragedy it is. 
How unfair it is. People are shocked. That's something the series has shown 
that people really weren't aware of.

What's also amazing is there's always some lawyer or person who goes into 
prison and takes an interest, or a policeman who's in charge of cold cases and 
realizes something doesn't add up. And they spend years tenaciously trying to 
bring the facts to light. If it weren't for those people - you're really 
pushing a huge boulder up a hill when you're trying to get someone off death 
row. It's just not in any way designed for the truth to come out. That's the 
way it is, especially if you're poor and don't have access to a good lawyer. 
Once you're in that vise, that's it.

It seems like, even in the year since you and CNN started doing the show, 
there's been a shift in momentum on the death penalty. Legislators in Nebraska, 
a very Republican state, did away with it. There's been lot of attention paid 
to the executions gone awry because of issues with the drugs used in lethal 
injections. And even though the Supreme Court upheld the use of those drugs, 
some of the justices went on record saying they believed it might be time to 
revisit the constitutionality of the death penalty. Do you think opinion is 
changing?

I'm still close with the real Sister Helen from Dead Man Walking. She goes 
around the country all the time, and she definitely feels there's been a shift. 
I don't know that it's going to happen because people suddenly feel more 
spiritually awakened to what forgiveness means, as exemplified by the families 
of those slain in South Carolina. That was just amazing, when they all 
spontaneously spoke of forgiveness.

I think what will happen is the change is going to happen because it doesn't 
make sense. It costs a lot of money. The strongest arguments are of logic and 
financial conservatism. It's expensive. It's not a deterrent. It doesn't give 
the victims, really, any kind of satisfaction - because, really, what would, 
except bringing the person that's been killed back? It's arbitrary and 
capricious.

If there's any reason for optimism, it could be that we're seeing a lot of 
Republicans and libertarians speak up now about the excesses of the 
criminal-justice and prison systems. There are cases now of Democrats and 
Republicans working together on these matters, particularly with drug 
sentencing. Maybe that will spread to the death penalty, as it did in Nebraska.

It would be a very hopeful sign if people reached across the aisle to solve 
problems and searched for justice. There used to be the ability for the 
Congress to act that way. But we've lost it with this huge polarization that's 
happened, and this kind of locking yourself in to make sure nothing moves. It's 
really brave when a person steps apart from their party line to do what's 
right. I think this is an issue where we could encourage that. That would be 
great.

Are you hoping this might become an issue in the 2016 presidential election?

I'm waiting to see where everyone stands. There are a lot of things that I 
haven't heard anyone speak out on, except maybe Bernie Sanders. People only 
speak out on things they think are going to make them popular. On anything a 
little bit trickier they stay away until they have to take a stand. So I'm 
hoping to see not only where the candidates stand but also where they're 
getting their contributions from. That's a great indicator of where they'll 
stand in the future.

(source: vulture.com)