[Deathpenalty] death penalty news----GA., OHIO, MO., CALIF.

[Rick Halperin]

Nov. 3



GEORGIA:

U.S. Supreme Court: Race not a factor in Ga. death case? Really?


A majority of justices on the U.S. Supreme Court on Monday appeared ready to 
say race was a primary reason prosecutors struck all the prospective 
African-American jurors in a Georgia case where an all-white jury sentenced a 
young black man to death.

At least 6 of the high court's 9 justices reacted with skepticism - if not 
outright disbelief - to arguments that Floyd County prosecutors struck all 4 of 
the eligible black jurors for reasons other than race in the death-penalty case 
against Timothy Tyrone Foster.

If the court finds race was a primary factor, then Foster will be awarded a new 
trial because it would mean prosecutors violated Batson v. Kentucky, a Supreme 
Court ruling that sought to end race discrimination in jury selection. It 
appeared unclear during Monday's arguments whether the high court will use 
Foster's case to set a new benchmark in such cases or if it will confine its 
decision to the facts of his trial.

It also appeared possible the court could wait before deciding the jury 
selection issue on its merits. At least 3 justices - Chief Justice John Roberts 
and Justices Antonin Scalia and Anthony Kennedy - indicated they may want to 
send the case back to the Georgia Supreme Court and let it decide an arcane 
procedural issue before moving forward. A decision is expected by the end of 
June.

8 of the high court's justices asked questions on Monday. The exception was 
Justice Clarence Thomas, a conservative, who said not a word, as is his custom.

Justice Elena Kagan was as blunt as could be when she described her take on the 
case. She cited notes obtained by Foster's lawyers under the Georgia Open 
Records Act that showed prosecutors were focusing on all the black jurors as a 
group and trying to determine which would be best-suited to sit on the jury if 
they had to pick one.

"All the evidence suggests a kind of singling out," Kagan said. "Isn't this as 
clear a Batson violation as a court is ever going to see?"

Foster sits on death row for sexually assaulting and then killing Queen Madge 
White, a 79-year-old retired elementary school teacher, at her Rome home in 
August 1986. During closing arguments, then-District Attorney Stephen Lanier 
urged jurors to sentence Foster to death "to deter other people out there in 
the projects."

Almost 2 decades later, Foster's new lawyers obtained the notes prosecutors 
compiled as they prepared to pick the jury. On the lists of prospective jurors, 
the prosecution team highlighted all the African-American jurors with a green 
marker. The notes also referred to black jurors as "B#1," "B#2" and "B#3."

Another note listed 6 "definite NO's," the top 5 of which were the remaining 
black jurors at that time.

'AN ARSENAL OF SMOKING GUNS'

During Monday's arguments, Foster's lawyer, Stephen Bright, noted that the 
sixth person on that list, a white woman, had made it clear she could not 
impose the death penalty under any circumstance.

"But even she ranked behind the black jurors in terms of the priorities that 
the prosecution had for striking," he said. "... We have an arsenal of smoking 
guns in this case."

Deputy State Attorney General Beth Burton tried to convince the justices that 
Lanier, the district attorney, removed blacks from the jury for reasons other 
than race and noted the district attorney gave a number of acceptable 
"race-neutral" reasons to justify his strikes.

As for the color-coded jury notes, she said, they were prepared that way 
because prosecutors were getting ready to defend a Batson challenge to their 
use of strikes against the African-American jurors.

'REASON WAS TO DISCRIMINATE'

But Justice Stephen Breyer wasn't buying it. He noted the explanation of 
preparing for a Batson challenge was first raised many years after Foster's 
initial appeals.

"Isn't it a little surprising that he never thought of it - or didn't tell 
anybody?" Breyer asked, referring to Lanier, as spectators throughout the 
packed courtroom broke into laughter. ",... So it's hard to believe that's his 
real reason."

As for all the "race-neutral" reasons Lanier gave for explaining his strikes of 
black jurors, Breyer compared that to his grandson saying he didn't want to do 
his homework because he was too tired.

His grandson could also say that he'd promised a friend he'd play basketball 
with him, that there was a great show on TV, that his stomach was upset and 
that he wanted to eat spaghetti.

"And so I would say my answer to my grandchild is, 'Look, you're not too tired 
to do your homework,'" Breyer said. "And I think any reasonable person looking 
at this would say, 'No, his reason was a purpose to discriminate on the basis 
of race.'"

REMOVED JUROR REMEMBERS

Even Justice Samuel Alito, 1 of the court's more conservative members, 
expressed unease with Lanier's explanation as to why he removed prospective 
black juror Marilyn Garrett.

"What about (Lanier) giving a reason for dismissing her that she was close in 
age to the defendant?" Alito asked.

At the time of the trial, Garrett was 34. Foster was 19.

Garrett, now Marilyn Whitehead, is 63 and still remembers the experience.

"I felt like they discriminated against me," she said Monday. "After that, I 
felt like I never wanted to be on a jury again because of the way I was 
treated."

(source: myajc.com)






OHIO:

Let the death penalty die in Ohio after forced hiatus in executions


Ohio hasn't executed anybody since January 2014, when Dennis McGuire took about 
25 minutes to die from a previously untested two-drug concoction of midazolam 
and hydromorphone.

Legal challenges to Ohio's lethal-injection method of execution have 
contributed to the delay, but even though a recent ruling by the U.S. Supreme 
Court has made those challenges tougher, procuring the necessary drugs remains 
an issue.

Last month, the Ohio Department of Rehabilitation and Correction postponed 
executions until 2017 because of problems finding the drugs needed to carry 
them out.

The legislature should take this hiatus from capital punishment as an 
opportunity to conduct a full review of Ohio's death penalty law, and the mood 
of the people, to see if it's time to scrub it altogether.

Rather than waste time trying to find new sources of lethal-injection drugs -- 
or contemplating alternate forms of execution, such as electrocution, hanging, 
the gas chamber or even the firing squad, all of which some states have 
embraced as optional measures -- Ohio needs to search its collective soul for 
the right thing to do.

Meanwhile, the case against the death penalty continues to mount.

Ohio Supreme Court Justice Paul Pfeifer, who as a young legislator helped write 
the state's death penalty law, now openly opposes it, having called it "a death 
lottery" for its unfairness.

Ohio Supreme Court Justice William O'Neill, the only Democrat on the court, has 
dissented rather than vote to schedule execution dates for 5 condemned 
prisoners.

"While I recognize that capital punishment is the law of the land, I cannot 
participate in what I consider to be a violation of the Constitution I have 
sworn to uphold," he said in 2013.

The state legislature thought it solved the supply problem of death-penalty 
drugs last year by granting anonymity to compounding pharmacies that make them. 
The continuing lack of death-penalty drugs in Ohio shows that ploy didn't work.

The time has come for Ohioans and their elected representatives to have a 
serious discussion about ending the death penalty. But there is only 1 logical 
conclusion: Abolish capital punishment in Ohio.

(source: Editorial, cleveland.com)






MISSOURI----stay of impending execution

Supreme Court halts Missouri execution


The Supreme Court on Tuesday night halted a scheduled execution in Missouri, 
saying that the lethal injection should be delayed until after a lower court 
rules.

Ernest Lee Johnson was sentenced to death for killing 3 people with a claw 
hammer in 1994.

His attorneys wrote in filings asking the Supreme Court to stay the execution 
that Johnson had brain surgery in 2008 to remove a tumor, but that part of the 
tumor could not be removed.

Johnson is missing between 15 and 20 % of his brain, the attorneys wrote. As a 
result, Johnson has brain damage and a doctor cited as a medical expert 
believes he could suffer seizures due to the lethal injection, his attorneys 
said.

The office of Missouri Attorney General Chris Koster argued in court filings 
that the execution should proceed, writing that Johnson waited too long to make 
his argument.

In an unsigned order, the justices said they were granting the stay request 
pending an appeal in the U.S. Court of Appeals for the 8th Circuit.

The complaint from Johnson "alleges that Missouri's method of execution 
violates the Eighth Amendment as applied to a person with his particular 
medical condition," the justices wrote.

In the order, the justices continued:

A supporting affidavit by a medical expert states that "[a]s a result of Mr. 
Johnson's brain tumor, brain defect, and brain scar, a substantial risk of 
serious harm will occur during his execution as result of a violent seizure 
that may be induced by [the] Pentobarbital injection."

They went on to say that the appeals court will have to decide whether a 
complaint of Johnson???s that was dismissed was properly dismissed or should 
have been allowed to progress.

Johnson was scheduled to be executed at 6 p.m. local time.

(source: Washington Post)






CALIFORNIA:

Defendant withdraws legal challenge in Ceres death penalty case


Mark Edward Mesiti on Tuesday declined his first opportunity to defend himself 
in court against allegations he sexually abused his 14-year-old daughter, 
Alycia Mesiti, whose body was found buried in the backyard of a Ceres home.

The defendant has chosen to represent himself in court, giving him the ability 
to make arguments, cross-examine prosecution witnesses and speak directly to a 
jury. The prosecution is seeking the death penalty.

Mesiti, 47, withdrew a motion to challenge an indictment charging him with 
murder and numerous counts of sexual abuse. He decided to drop the motion after 
Stanislaus Superior Court Judge Thomas Zeff refused to postpone Tuesday's 
hearing, telling the defendant there was not sufficient legal grounds to delay 
the proceeding.

The defendant told the judge that a law clerk had not been able to visit him in 
jail, because the clerk had to be screened. Mesiti said he was not able to 
prepare for the hearing, so he would have to withdraw the motion if the hearing 
wasn???t postponed.

The capital murder case now moves back to Judge Dawna Reeves' courtroom. She 
will preside over the case through the trial, which has not yet been scheduled. 
A pretrial hearing is scheduled Wednesday.

Authorities on March 25, 2009, discovered the girl's body buried in the 
backyard of a home on Alexia Avenue in Ceres, where Mesiti's family lived when 
Alycia disappeared in August 2006. He had since moved to Southern California.

Mesiti on Tuesday was supposed to challenge evidence the prosecution presented 
to the grand jury behind closed doors. The August 2013 indictment also charges 
Mesiti with the sexual abuse of 2 other girls.

INIDICTMENT CHALLENGE

Martin Baker, who initially filed the motion on Mesiti's behalf June 26, 
appeared in court Tuesday as acting advisory counsel to Mesiti. In Baker's 
filed motion, the attorney asked the court to drop the murder charge that 
alleges Mesiti killed his daughter while sexually assaulting her.

Stanislaus County forensic pathologist Sung-Ook Baik told the grand jury that 
Alycia died from mixed-drug intoxication. A toxicology found Morphine and 
anti-anxiety and anti-depressant drugs in her system.

The prosecution argues that the girl was drugged, and that images found on 
computer hard drives show Mesiti photographed himself sexually abusing his 
daughter while she was unconscious.

Baker argued that toxicologist Bill Posey's very clear opinion was that none of 
the drugs were ingested at lethal levels just prior to death. The defense 
attorney also argued that hair testing by toxicologist Lee Blum clearly showed 
that this combination of drugs had been chronically ingested by Alycia roughly 
25 months prior to her death.

DRUG TESTS

Baker wrote in his motion "Just because (the) defendant chose to molest Alycia 
M. on several occasions while she was rendered non-combative by the ingestion 
of prescription drugs, we cannot ignore the fact that Alycia M. was ingesting 
those same drugs for at least 12 months when (the) defendant had no access to 
her."

In the prosecution's response filed Aug. 17, Chief Deputy District Attorney 
Annette Rees argued that Posey testified that this drug combination slows the 
body's central nervous system, and that the lack of movement can cause a person 
to literally drown in their own fluids. The prosecutor also argued that Blum 
testified that the hair tests cannot determine when the drugs were ingested, 
only that they were ingested over a period of 18 months to 2 years.

Rees wrote in her response that Mesiti's method of drugging girls to commit 
sexual crimes continued after Alycia's death, when he drugged a 17-year-old 
girl and videotaped himself sexually assaulting her. The prosecutors also 
alleges that Mesiti drugged an 8-year-old girl and videotaped himself 
performing lewd and lascivious acts on her, also after Alycia's death.

(source: Modesto Bee)