[Deathpenalty] death penalty news----MISS., MO., NEB., USA

[Rick Halperin]

Nov. 2



MISSISSIPPI:

High Court Won't Hear Appeal From Miss. Death Row Inmate


The Supreme Court won't hear an appeal from a Mississippi death row inmate who 
pleaded guilty in the rape and killing of a waitress in 2000.

The justices on Monday let stand a lower court ruling that denied Thomas Loden 
Jr.'s request for a new court hearing to determine whether his lawyers gave him 
poor legal advice.

Loden argued that his original defense attorneys failed to fully investigate 
his mental condition and gave him bad advice that led him to plead guilty and 
waive jury sentencing.

A federal appeals court said Loden himself told his lawyers not to question 
prosecution witnesses or present evidence at a sentencing hearing to help him 
avoid the death penalty.

The American Bar Association had filed a brief urging the justices to take the 
case.

(source: Associated Press)






MISSOURI----impending execution

Victim's family prepares for execution of their mother's killer, Ernest Lee 
Johnson


The night she found out her mom had been murdered, Carley Schaffer sat outside 
her house in a Philadelphia ice storm and smoked a cigarette. She waited for 
her sister to pick her up so they could travel to Columbia for the funeral. She 
listened to the ice crackle in the trees.

Saturday, more than 20 years after her mother's death, Schaffer prepared once 
again to travel to Missouri from the East Coast - this time to watch the 
execution of her mom's killer.

Her mother, Mary Bratcher, was 1 of 3 people killed by Ernest Lee Johnson in 
Casey???s General Store the night of Feb. 12, 1994. Bratcher, Fred Jones Jr. 
and Mable Scruggs were all employees at the store closing up for the night when 
Johnson knocked on the door.

Johnson, looking for money to buy drugs, robbed the store and bludgeoned all 3 
employees to death with a hammer. He hid the bodies in the bathroom and in a 
cooler. Police later found bloody shoes and a bank bag with a couple hundred 
dollars and store receipts in Johnson's house.

He has been convicted of the murders and was sentenced to death 3 separate 
times through his appeal process. His attorneys have an appeal before the U.S. 
Supreme Court that argues Johnson is mentally disabled and should not be 
executed, according to the Associated Press.

Johnson, 55, is scheduled to die by lethal injection after 6 p.m. on Tuesday. 
He is the last person on death row for a crime committed in Boone County. If 
executed, he will become the 7th person executed in Missouri this year.

Schaffer and her 2 siblings planned to be at the state prison in Bonne Terre 
for the execution. For Schaffer and her sister, Lorrie Heichelbech, who lives 
in Columbia, it's not about vengeance or finding peace. It's about honoring 
their mother's memory and supporting each other through the end of more than 2 
decades of legal proceedings.

"The only peace I'm going to get is to stop having to wait for the next step in 
the legal process," Schaffer said. "It's not bringing my mom back. I've known 
that since the 1st sentence. It doesn't change my reality. It doesn't change 
that I'm going to grieve for her for the rest of my life."

Coffee and cigarettes

Mary Bratcher was dealt a bad hand in life, her children said, but played her 
cards as best she could and with as much joy as possible.

The 5th of 11 children, Bratcher grew up fast and tough. After her husband was 
arrested and imprisoned for dealing drugs, she raised their 3 kids by herself.

"Many people would have laid down a long time ago, given the hand she was 
given," Heichelbech, 45, said.

The 3 children were the free lunch kids, Schaffer said, and moved from one 
rented trailer home to another as their mom tried to make ends meet as a 
convenience store manager. Bratcher wore hand-me-downs and shoes with holes in 
them so her kids could have nicer things.

"She led by example," Schaffer, 42, said. "You work hard. You don't make 
excuses, and you rise above your circumstances."

She loved to sing The Supremes, Diana Ross and Frank Sinatra, especially "White 
Christmas" and "I'll Be Seeing You." She always smelled like coffee and 
cigarettes and had "quite the potty mouth," Heichelbech said. She giggled 
watching her girls dance disco in their living room. Sometimes those giggles 
became peals of laughter.

Bratcher's laugh was a force. It was deep and seemed to come from every part of 
her body, Heichelbech said. It made everybody else in the room laugh.

"I could hear her in a store laughing, and I knew it was her and exactly where 
she was," Heichelbech said. "I would give my right kidney to hear it again."

Bratcher was the manager at Casey's and had gone to the store to help Scruggs, 
a new employee, the night she was killed. When Johnson knocked on the glass, 
Bratcher recognized him and let him in, Heichelbech said.

"She always managed to find the good in people," she said. "That might have led 
to her death."

Johnson's other victims had people who relied on them, too.

Jones, 58, took care of his elderly mother and his twin brother, who had been 
disabled by a stroke. He was a quiet man who liked to laugh, according to 
previous Missourian reporting. After his death, his brother's care was turned 
over to a state agency, according to an obituary in the Columbia Daily Tribune. 
Scruggs, 57, was a single mother and worked at Casey's and as the chief clerk 
at the MU Student Health Center. Her co-workers at the health center described 
her as unusually dedicated and said the job meant "everything" to her, 
according to previous Missourian reporting. The night she was killed at Casey's 
she was covering a shift for another worker.

"You could sum her attitude up in 4 words - 'I want to help,'" a friend said at 
Scruggs' funeral, according to an obituary in The Columbia Daily Tribune.

Scabs

Heichelbech remembers little about the weeks after her mom's death besides 
seeing her aunts, buying the casket and speaking at the funeral, which more 
than 300 people attended.

Her brother, Rob Bratcher, was 18 at the time and the only sibling living in 
Columbia. He struggled with his mother's death much more than his sisters, 
Heichelbech said. Rob Bratcher declined to speak to the Missourian for this 
story except to say that his mother was a good person. He lives in Kansas City 
now with his wife and 2 kids and works in commercial banking.

Most of those weeks after the murder are a blur for Schaffer, who was 20. But 
winter, cold and ice storms always bring back the memories and reminders of the 
absence they surround.

"I let myself grieve during the winter," she said. "My family knows what to 
expect. It's not easy, but we get on."

Schaffer's children, 10 and 13, know Bratcher as Grandma Mary, their guardian 
angel who looks out for them from heaven. Teaching them about their grandmother 
and how she died has been bittersweet, Schaffer said. Telling the good stories 
passed on her memory. Explaining her death and why they'll never know Bratcher 
hurts all over again.

Her daughter once cried for the loss of her grandmother, mourning a woman she 
had never known. That's the worst part, Schaffer said: watching her mother's 
murder hurt her child. It makes her angry.

Heichelbech's son met Bratcher when he was a child, but he doesn't remember the 
grandma that doted on him.

"I can tell stories, but it doesn't cut it," Heichelbech said. "I can't even 
convey half of her spirit. It's a void in his life."

Schaffer became a drug counselor to help people with addictions like Johnson. 
She wants to help people stay away from the path Johnson chose.

"Part of trauma recovery is taking that trauma and creating a new meaning for 
it," Schaffer said. "I think what I'm doing now is an honor to her memory."

Johnson's execution on Tuesday will be the end of the legal proceedings that 
repeatedly forced the siblings to revisit that trauma.

"I struggled so long to deal with the anger and the horror of her death," 
Schaffer said. "Sometimes I want to wad it up in a ball and stick it in the 
back of the brain. Times like this we have to unwad the ball and rip off the 
scab."

Any anger the sisters had toward Johnson has dissipated, they said, though they 
don't sympathize with him.

"Once I came to the reckoning of it all, being angry at him was only destroying 
me," Heichelbech said. "It wasn't going to touch him in any way. It does 
nothing but wreck you as a person."

The execution will be an opportunity to put the crime of their mother's death 
to rest. No longer will they have to find babysitters when they're called to 
court. No longer will they have to face their mother's murderer. No longer will 
they be left in limbo.

The loss will last forever, they said, but at least now they'll be able to deal 
with it on their own timetable.

"I feel that I need to ride this out. To stand it out and survive it," Schaffer 
said. "I'm ready for this to be done."

(source: The Missourian)

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

Attorneys asks Supreme Court to halt Ernest Lee Johnson's execution


Only an order from the U.S. Supreme Court or a grant of clemency from Gov. Jay 
Nixon can stop Tuesday's scheduled execution of Ernest Lee Johnson for the 1994 
murder of 3 people at a Columbia convenience store.

The Missouri Supreme Court on Monday turned down Johnson's request that it 
appoint a judge to consider evidence that he is intellectually disabled and 
therefore it would be unconstitutional to execute him. The court did not 
explain its reasoning in the 2-sentence decision.

Johnson's attorneys, Jeremy Weis and Brian Gaddy, on Sunday filed a petition 
seeking a hearing before the federal high court, arguing that the Eighth 
Circuit Court of Appeals was mistaken when it denied Johnson's latest appeal 
Friday.

They argue the drugs used by the state, midazolam and pentobarbital, pose "a 
substantial and unjustifiable risk" of seizures during the execution because of 
a slow-growing brain tumor and scarring from surgery that removed portions of 
the tumor in 2008.

"If left to stand, the lower court opinions in this case create an impossible 
burden on a condemned inmate to allege an alternative method of execution," 
Gaddy wrote in the appeal directed to Justice Samuel Alito.

The Eighth Circuit properly applied the law, and alleging the drugs could pose 
a risk is not the same as showing they do pose a risk, Attorney General Chris 
Koster's office argued in a brief filed Monday morning.

"The court of appeals held Johnson's complaint to the same standard as any 
other complaint filed in federal district court," Assistant Attorney General 
Michael Spillane wrote. "Those holdings are not error."

Johnson, 55, is scheduled to die by lethal injection at 6 p.m. Tuesday. Driven 
by his addiction to crack cocaine, Johnson on Feb. 12, 1994, robbed Casey's 
General Store, 2200 Ballenger Lane, and used a hammer and screwdriver to kill 
Mary Bratcher, 46, Mable Scruggs, 57, and Fred Jones, 58.

Bratcher, a single mother with three children, traded shifts that night so 
another employee could attend a birthday party. Jones lived with his mother and 
cared for his twin brother, Ted, who was confined to a wheelchair after a 
stroke. Scruggs was a single mother working 3 jobs.

Johnson is 1 of 33 inmates on Missouri's death row. Johnson will be the seventh 
inmate in Missouri to be executed in 2015 if he dies Tuesday.

Weiss said Monday that he does not expect the U.S. Supreme Court to act on the 
appeal until Tuesday.

A petition for clemency is pending before Nixon, spokesman Scott Holste wrote 
in an email.

"The governor will act on the petition after completion of a thorough review," 
he wrote. In the petition to the U.S. Supreme Court, Johnson???s attorneys 
argued allowing the execution using the two drugs would violate Eighth 
Amendment protection against cruel and unusual punishments. State law allows 
the use of lethal gas for executions, which they said does not pose the same 
risks of seizures and pain.

The Eighth Circuit improperly applied the standard established in a June 
decision from Oklahoma, Johnson's attorneys wrote. In that decision, the high 
court ruled an inmate must show "a substantial risk of serious harm, an 
objectively intolerable risk of harm" and that an alternative method of 
execution is available.

Missouri has not executed an inmate using gas since 1965 and does not have a 
working gas chamber. The Eighth Circuit ruled that while gas is legally 
available in Missouri, it is not "a feasible or readily implementable 
alternative."

An inmate should only have to show in an initial appeal that an alternative 
method is available, not how quickly it could be used, the appeal said.

"Such a standard would be impossible to meet and would render the Eighth 
Amendment meaningless in the context of method-of-execution challenges," the 
attorneys wrote.

(source: Columbia Tribune)






NEBRASKA:

Nebraska prison officials tried unsuccessfully to buy lethal injection drug 
from U.S. distributor


Nebraska prison officials recently made an unsuccessful attempt to buy a lethal 
injection drug from a United States distributor after having spent almost 
$28,000 months ago to get the drug from overseas.

The Nebraska Department of Correctional Services last month filed a purchase 
request for $826 to buy four units of pancuronium bromide, a paralytic agent 
that is the 2nd of 3 drugs administered under Nebraska's lethal injection 
protocol.

The Oct. 14 document, obtained by The World-Herald under an open records 
request, listed as the vendor Gulf Coast Pharmaceuticals of Ocean Springs, 
Mississippi.

But the next day, the order was canceled, according to a handwritten note on 
the purchase document.

"Product not available," the note said.

The document shows the administration of Gov. Pete Ricketts is actively 
exploring other options to replenish the state's expired supplies of lethal 
drugs after attempts to obtain the substances from India have so far been 
thwarted.

Ricketts announced in May that the state had paid a total of $54,400 to broker 
Chris Harris in India to import 1,000 units each of pancuronium bromide and 
sodium thiopental, but the plan quickly hit roadblocks. The Food and Drug 
Administration announced it was under a federal court-order not to allow the 
importation of sodium thiopental, an anesthetic that is the 1st drug given in 
Nebraska's sequence.

The last U.S. maker of sodium thiopental discontinued manufacturing the drug in 
2011, largely because it no longer wanted to be an indirect party to 
executions. That's why Nebraska and other death-penalty states have had to turn 
to overseas suppliers.

The India broker tried to export packages of sodium thiopental in late August, 
but FedEx returned the drug because it lacked proper paperwork. The same broker 
also sold the drug to Nebraska in 2012, but a legal dispute over whether he had 
obtained it under false pretenses caused that supply never to be used in an 
execution.

Death penalty opponents have criticized state officials for going back to the 
same broker in the latest effort to obtain the drugs. Critics have speculated 
that in their haste to obtain the drugs, Nebraska officials threw away money 
for purchases that will never arrive.

Nebraska last executed a condemned inmate in 1997, when the state's execution 
method was electrocution.

The governor recently said his representatives are in conversations with the 
Drug Enforcement Administration to allow the drugs in.

It's unclear from the recently obtained documents whether the attempt to buy 
one of the drugs domestically means officials have abandoned their effort to 
import the Indian drugs, or whether it represents a second front in the 
increasingly difficult work of finding death penalty drugs.

The governor's office did not immediately respond Monday to an email seeking 
comment.

The documents also show that prison officials sought legal help in importing 
the drugs from Benjamin L. England & Associates, a Maryland law firm. England, 
according to his website, assists clients in navigating federal agency 
regulation and "is able to obtain release of most FDA detained shipments."

Documents show Nebraska has so far paid $399 to England's firm to register the 
foreign sodium thiopental with the FDA. According to news reports, Ohio and 
Texas also have hired England for help in getting foreign-made lethal injection 
drugs imported. Arizona also is working with outside counsel, however, it's 
unclear if England represents that state.

The Associated Press reported last month that federal authorities impounded 
orders of sodium thiopental that had been exported from India to Arizona and 
Texas. Meanwhile, Ohio has suspended executions until at least 2017 because of 
the drug shortage.

(soruce: World-Herald)






USA:

Use of the death penalty is way down in recent years. Support for it is not.


>From the floor of the Senate last week, Bernie Sanders made an unusual proposal 
for a presidential candidate.

"I believe the time is now for the United States to end capital punishment," 
Sanders said. "Right now, virtually every Western industrialized country has 
chosen to end capital punishment. I would rather have our country stand 
side-by-side with European democracies rather than with countries like China, 
Iran, Saudi Arabia and others who maintain the death penalty.

"I know that this is not necessarily a popular point of view," he noted, "but 
it is in my view the right point of view."

It is not a popular point of view. In its most recent polling, Gallup found 
that 37 % of Americans opposed the death penalty, compared to 61 percent who 
supported it.

What's interesting is that support has declined slightly since the peak of the 
1990s crime wave -- but has fallen much more slowly than crime numbers. In 
other words, support for the death penalty rose as crime rose -- but as crime 
has fallen, support for the death penalty hasn't fallen as much.

It's also worth noting the offset between the rate of violent crime and the 
number of actual executions. The peak number of executions was in 1999, 8 years 
after the peak in the crime rate. (This is due in part to the lengthy -- and 
growing -- time between sentencing and execution.)

Where Sanders's argument is most potent is with the voters he most wants to win 
over during the next $ months: Democrats. In April, Pew Research found that 
only 40 % of Democrats back the death penalty at this point, compared to 71 % 
in 1995. That's a 44 % decrease (which, incidentally, is much closer to the 
overall drop in the crime rate).

Sanders was responding to comments made by Hillary Clinton in the middle of 
last week, in which she stated that she didn't agree with how the death penalty 
had been applied, though she supports it as an option. According to Death 
Penalty Info, more than 1/4 of those executed since the death penalty was 
reinstated in the mid-1970s have been black. Blacks make up 13.2 % of the 
country's population.

Clinton isn't alone in her attitude. On Sunday, Jeb Bush told "Meet the Press" 
that he was similarly conflicted. "[W]e should reform it," he told NBC's Chuck 
Todd -- citing the length of time it takes to resolve death penalty cases.

That doesn't seem to be something that most Republicans will agree on. 
According to Pew, 77 % of Republicans support the death penalty -- a figure 
that's higher than the level of support among Democrats at the peak of the 
national crime wave.

(source: Philip Bump writes about politics for The Fix----Washington Post)

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

Timeline in Afonso Rodriguez's federal death penalty appeal extends into 
2017----Lawyers in the case of a man sentenced to death for killing a 
University of North Dakota student in 2003 have discussed the timeline for his 
appeal - and it stretches into 2017.


Lawyers in the case of a man sentenced to death for killing a University of 
North Dakota student in 2003 have discussed the timeline for his appeal - and 
it stretches into 2017.

Alfonso Rodriguez Jr., of Crookston, Minnesota, filed a so-called habeas 
motion, generally considered the last step in the appeals process, in October 
2011. Since then, a handful of hearings have been held in open court, including 
one in Fargo last month to investigate Rodriguez's claim of juror misconduct.

U.S. District Judge Ralph Erickson posted an updated briefing schedule for the 
case following Thursday's closed-door meeting with attorneys. Erickson said a 
hearing on mental health issues will be set for October 2016 and a hearing on 
forensic issues will be scheduled in January 2017.

Lawyers handing the appeal have declined to comment outside the courtroom.

Dru Sjodin, from Pequot Lakes, Minnesota, was abducted from the parking lot of 
a Grand Forks shopping mall in November 2003. Authorities say she was raped, 
beaten and stabbed. A jury sentenced Rodriguez to death on Sept. 22, 2006. It 
was the state's first federal death penalty case and resulted in tougher laws 
for sex offenders.

The nearly 300-page appeal filed by Rodriguez's team claims, among other 
things, that he is mentally disabled and his trial lawyers were ineffective.

U.S. Supreme Court Justice Antonin Scalia said in a speech at the University of 
Minnesota earlier this month that he wouldn't be surprised if the nation's 
highest court invalidates the death penalty.

(source: Associated Press)

**********

Supreme Court troubled by Georgia prosecutor's rejection of black jurors in 
death penalty case


The Supreme Court appeared troubled Monday by the actions of a Georgia 
prosecutor in disqualifying all the black prospective jurors from the death 
penalty trial of a black teenager who was accused of killing an elderly white 
woman.

At least 6 of the 9 justices indicated during arguments that black people were 
improperly singled out and kept off the jury that eventually sentenced 
defendant Timothy Tyrone Foster to death in 1987.

Justice Elena Kagan said Foster's case seemed as clear a violation "as a court 
is ever going to see" of rules the Supreme Court laid out in 1986 to prevent 
racial discrimination in the selection of juries.

Foster could win a new trial if the Supreme Court rules his way. The discussion 
Monday also suggested that a technical issue might prevent the justices from 
deciding the substance of Foster's case.

Georgia Deputy Attorney General Beth Burton had little support on the court for 
the proposition that prosecutor Stephen Lanier advanced plausible 
"race-neutral" reasons that resulted in an all-white jury for Foster's trial. 
Foster was convicted of killing 79-year-old Queen Madge White in her home in 
Rome, Georgia.

Several justices noted that Lanier's reasons for excusing people from the jury 
changed over time, including the arrest of the cousin of one black juror. The 
record in the case indicates that Lanier learned of the arrest only after the 
jury had been seated. "That seems an out and out false statement," Justice Ruth 
Bader Ginsburg said.

Justice Samuel Alito, who typically sides with prosecutors in criminal cases, 
was bothered by Lanier's explanation that the same juror also was not chosen 
because she was close in age to Foster. "She was in her 30s. He was 18 or 19," 
Alito dryly said.

Georgia courts have consistently rejected Foster's claims of discrimination, 
even after his lawyers obtained the prosecution's notes that revealed 
prosecutors' focus on the black people in the jury pool. In one example, a 
handwritten note headed "Definite No's" listed 6 people, of whom 5 were the 
remaining black prospective jurors.

The 6th person on the list was a white woman who made clear she would never 
impose the death penalty, Foster's lawyer, Stephen Bright said Monday. "Even 
she ranked behind the black jurors," Bright said.

Burton tried to persuade the justices that the notes focused on black people in 
the jury pool because prosecutors were preparing to defend against claims that 
they were improperly trying to avoid having black jurors. Burton said the 
Supreme Court's ruling about race discrimination in jury selection was about a 
year old when Foster's case went to trial. The 1986 decision set up a system by 
which trial judges could evaluate claims of discrimination and the race-neutral 
explanations by prosecutors.

Foster's trial lawyers did not so much contest his guilt as try to explain it 
as a product of a troubled childhood, drug abuse and mental illness. They also 
raised their objections about the exclusion of African-Americans from the jury. 
On that point, the judge accepted Lanier's explanations that factors other than 
race drove his decisions. The jury convicted Foster and sentenced him to death.

The jury issue was revived 19 years later, in 2006, when the state turned over 
the prosecution's notes in response to a request under Georgia's Open Records 
Act.

The name of each potential black juror was highlighted on 4 different copies of 
the jury list and the word "black" was circled next to the race question on 
questionnaires for the black prospective jurors. 3 of the prospective black 
jurors were identified in notes as "B#1," ''B#2," and "B#3."

An investigator working for the prosecutors also ranked the black prospective 
jurors against each other in case "it comes down to having to pick one of the 
black jurors."

Still, Georgia courts were not persuaded.

The argument featured no discussion of limiting the discretionary, or 
peremptory, decisions to reject potential jurors. Justice Thurgood Marshall 
warned in the Batson case that racial discrimination would persist until those 
discretionary jury strikes were eliminated.

A decision in the case, Foster v. Chatman, 14-8349, is expected by late spring.

(source: Associated Press)

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

Psych testing ordered for man accused of killing postal worker


A Houston federal judge has ordered a competency exam for a man accused of 
killing a postal worker and who faces the death penalty.

James Wayne Ham is accused of fatally shooting rural mail carrier Eddie "Marie" 
Youngblood in May 2013 as she made deliveries in Coldspring, a San Jacinto 
County town 60 miles north of Houston. He has been in federal custody for 2 
years.

The judge's order delays his capital murder trial, which was set for February.

In October 2014, the government issued notice that they intended to seek the 
death penalty against Ham, 38.

In a joint motion filed last month, Ham's lawyers and a federal prosecutor 
asked U.S. District Judge Lynn Hughes to order competency testing for the 
defendant.

After consulting with several psychological experts, the defense attorneys 
contend that Ham has an IQ of 65. The generally accepted threshold for 
intellectual disability is an IQ of 70.

In 2002, the U.S. Supreme Court ruled that it is unconstitutional to execute 
people who have limited mental function. The court updated their position in 
2014 by deciding that Florida's strict cutoff at 70 for determining 
intellectual disability in capital cases was unconstitutional.

In January, Texas officials executed convicted killer Robert Ladd, who had an 
IQ of 67.

Defense lawyers Katherine Scardino and Robert Morrow said in the filing that 
Ham cannot understand "the proceedings against him" or "assist properly in his 
defense."

The motion, also signed by Assistant U.S. Attorney Joe Magliolo, said the 
government does not believe that Ham is impaired, but agreed to an evaluation 
on the issue.

Writing that "the ends of justice served by this delay outweigh the interests 
of the public" and Ham "to a speedier trial," Hughes reset jury selection and a 
trial for May 17.

According to the office of U.S. Attorney Ken Magidson, there are 2 pending 
capital cases - both involving fatalities during immigrant smuggling - in the 
Southern District of Texas. Federal prosecutors rarely seek the death penalty 
nationwide and have pursued the punishment in Southeast Texas only a handful of 
times.

(source: Houston Chronicle)