[Deathpenalty] death penalty news----NEB., UTAH, ARIZ., ORE.

[Rick Halperin]

Nov. 28



NEBRASKA:

Confusion over Nebraska's execution drugs


New questions are arising about Nebraska's effort to obtain the drugs needed to 
execute prisoners on death row.

Federal sources stated that the Drug Enforcement Administration and Food and 
Drug Administration said they have no idea what Nebraska officials are 
referring to when discussing that they're 'working with' Federal Agencies.

Gov. Pete Ricketts said during an October news conference that the state is 
working with the DEA, trying to get execution drugs from India.

Agents in St. Louis said that no one had spoken to Nebraska about this and 
officials at the DEA headquarters stated that nothing has changed, like they 
said weeks ago, the DEA will not approve the importation of this drug.

The governor's corrections director also told state senator's that he is 
working with the Food and Drug Administration, but a senior-level official in 
the agency's headquarters said the only word that matters is the court order 
blocking sodium thiopental importation.

Corrections spokesperson Dawn-Renee Smith is now attempting to clarify 
Ricketts' and Frakes' words:

"'Working with' simply means that we are still in the process of obtaining the 
chemicals and completing any necessary steps required by the DEA and/or the 
FDA."

The state indicated that it has taken some new action within the last week.

(source: KETV news)






UTAH:

Judge: Defendant can't depose Utah prosecutors


A St. George judge has amended a court order that would have allowed a murder 
defendant's lawyers to depose all of Utah's 29 county attorneys to determine 
why some seek the death penalty and some don't.

Attorneys for Brandon Perry Smith sought the depositions as part of an effort 
to have Utah's death penalty statutes deemed unconstitutional.

They contend in court papers that some 150 Utah inmates are serving terms of 
life in prison without the possibility of parole for crimes in which 
prosecutors could have sought the death penalty, but chose not to.

Smith, 34, is charged with aggravated murder and aggravated assault in the 2010 
stabbing death of 20-year-old Jerrica Christensen. He has pleaded not guilty to 
the charges.

Washington County prosecutors are seeking the death penalty in the case.

In August, 5th District Judge G. Michael Westfall granted the request from 
Smith's attorneys for a 3-day evidentiary hearing on the application of Utah's 
death penalty laws and set a February 2016 date for a review of the deposition 
process.

On Nov. 18, however, he changed course, saying in an amended order that before 
Smith can take depositions from state prosecutors he "must first that his 
prosecution has resulted in a discriminatory effect."

To do that Smith's attorney must provide "credible evidence" that his case 
meets the threshold standards for raising a selective prosecution claim, the 
judge wrote.

That includes evidence of Utah State Prison inmates whose cases include similar 
factual circumstances; evidence that Smith is of a different class than those 
inmates; and that Smith has been treated differently than others.

If Smith meets the threshold standards, Westfall said he will reconsider the 
issue.

In court papers, Smith's attorneys say that since 1992, the death penalty has 
been applied in "fewer than 3 %" of cases with defendants eligible for the 
punishment.

"The infirmity of Utah's present scheme is apparent," attorneys Gary Pendleton 
and Mary Corporan wrote. "The exercise of prosecutorial discretion becomes 
arbitrary and capricious by definition when the law establishes no basis for 
determining when a death-eligible murder, as defined by statute, is charged as 
a capital offense and when it is charged as a noncapital homicide."

Smith is accused of beating Christensen and cutting her throat with a pocket 
knife moments after his friend, Paul Clifford Ashton, shot and killed Brandie 
Sue Dawn Jerden and shot and wounded James Fiske.

In court papers, Smith's attorneys have said he killed the woman because he 
felt threatened by Ashton.

Prosecutors have argued that Smith is cold-hearted and relished taking the life 
of a stranger.

They allege that several aggravating factors make the killing a death-penalty 
case: that Christensen was killed during a criminal episode in which 2 or more 
people were killed, that the homicide was committed incident to attempted 
kidnapping, that Christensen was killed to prevent her from testifying and that 
the homicide was committed in an "especially heinous, atrocious, cruel or 
exceptionally depraved manner."

Ashton is serving two life sentences in federal prison after he pleaded guilty 
in the apartment killings, and also admitted to kidnapping and aiding in the 
murder of a homeless man in October 2010.

A review hearing for Smith is set for Feb. 3.

(source: Salt Lake Tribune)






ARIZONA:

Inmates Accuse Arizona of Experimenting with Lethal-Injection Drugs


A group of 5 condemned prisoners this week asked the U.S. District Court in 
Phoenix not to lift a moratorium on executions instituted after a botched 2014 
lethal injection, arguing that the Arizona Department of Corrections has not 
properly addressed concerns about the drugs used for the procedure.

A federal judge in November 2014 ordered the DOC to halt executions until the 
agency shared a protocol for lethal injection that included, among other 
things, a list of drugs to be used. The DOC released the information in 
October, but the inmates, represented by lawyers from the Federal Public 
Defenders Office, contend that it is "impossible to know" how the department 
will proceed because the protocols are too vague.

The DOC reserved the right to "change any aspect of the procedure, at any time, 
for any reason, with no notice," lawyers wrote. Given the department's 
"demonstrated pattern of extraordinary departures from their written 
procedures, there is a 'very real' threat that they will again carry out 
executions under procedures that 'lack necessary procedural protections.'"

Arizona, they wrote, conducts executions in an "arbitrary, experimental, and 
unconstitutional manner."

2 of the state's 3 proposed cocktails require sodium thiopental, an anesthetic 
that is in short supply because it is no longer manufactured in the United 
States. Arizona tried to illegally import some from India, but the Food and 
Drug Administration seized it at at Phoenix Sky Harbor Airport.

The 3rd proposed drug cocktail relies on midazolam, the controversial sedative 
used in Joseph Wood's execution in July 2014, which inspired the U.S. District 
Court to institute the stay on lethal injections. Wood, who was sedated with 
midazolam and then given hydromorphone to arrest his breathing, should have 
died in 10 minutes, but he gasped and snorted for 2 hours. During that time, 
DOC officials pumped him full of 14 times the required dose of each drug.

Attorneys initially filed the lawsuit before Wood's execution in an attempt to 
compel the Arizona DOC to be more transparent about how it conducts lethal 
injections. It also called on the department to allow the media to witness all 
stages of the executions.

The state argued in court filings that if the procedures were public, it would 
make it more difficult to obtain the drugs necessary to execute prisoners. Some 
drug manufacturers had begun refusing to work with the DOC, forcing the agency 
to turn to less-reliable drugs, such as midazolam.

Because of the lawsuit, the Ninth U.S. Circuit Court of Appeals stayed Wood's 
execution, ruling that he had a First Amendment right to know what drugs the 
department intended to use, but the Supreme Court overturned the decision and 
Wood was killed.

In the wake of his botched execution, the U.S. public defenders amended the 
lawsuit to exclude Wood and tried again - this time with more success. The 
First Amendment Coalition, a group of local media outlets, joined the suit.

No executions will be scheduled until the litigation is resolved.

The state's death-penalty problems are the topic of a 60 Minutes documentary 
set to air Sunday at 5:30 p.m. on CBS Channel 5 in Phoenix.

The documentary, called The Execution of Joseph Wood, digs into the shortage of 
the anesthetic sodium thiopental and how it contributed to Wood's tortured 
death.

In a preview, Arizona Attorney General Mark Brnovich is shown squirming while a 
reporter grills him about Arizona's attempts to illegally import sodium 
thiopental.

When the DOC could not secure sodium thiopental, it chose to use midazolam to 
sedate Wood even though the drug had previously been used in 2 other so-called 
botched executions. When Ohio used the drug on Dennis McGuire in January of 
2014, witnesses said he continued to gasp for 26 minutes like "a fish lying 
along the shore puffing for that one gasp of air that would allow it to 
breathe." In April of 2014, Oklahoma inmate Clayton Lockett raised his head 
after he was injected with the drug and said, "Oh man ... I'm not ..." He 
continued to writhe, groan, convulse, and try to rise from the table for 43 
minutes.

Wood's execution was the longest in United States' history.

(source: phoenixnewtimes.com)






OREGON:

Oregon Supreme Court upholds Guzek death penalty


After 3 previous remands - and $3 million in costs - 4th sentencing stands

Nearly 30 years after the brutal 1987 slaying of a Terrebonne couple - and 
after court costs topping $3 million - the Oregon Supreme Court on Friday 
rejected convicted killer Randy Lee Guzek's appeal of his 4th death sentence, 
affirming that penalty for the 1st time and refusing to remand the case for a 
5th sentencing trial in Bend.

Guzek was 18 at the time of the brutal slayings of Rod and Lois Houser and was 
convicted of 2 counts of aggravated murder in 1988. The Oregon Supreme Court 
affirmed those convictions in 1990, but 3 times prior had ordered new 
penalty-phase trials under the automatic reviews required in the state court 
and death penalty process.

In March of 2014, 4 years after his last death sentence, Guzek's attorneys 
filed a nearly 900-page brief raising 87 "assignments of error" - all but 13 of 
which the high court summarily rejected without discussion in Friday's 31-page 
ruling, its 1st to uphold a death sentence imposed on Guzek.

The 2 categories of claims the court rejected included the requirement that 
Guzek wear a "stun belt" during the latest remanded death penalty proceedings 
and that the trial court gave improper instructions to the jury on how to 
consider Guzek's in-court statement.

Guzek had claimed an alibi - that he was at home when the murders occurred - 
and while that defense was used at the original trial in 1988, using it in 
later proceedings became a point of contention. The U.S. Supreme Court ruled in 
2006 that the defense could not be used for retrial.

Clatsop County District Attorney Josh Marquis is the former Deschutes County 
prosecutor who handled the last three sentencing trials and would again have 
been special prosecutor if a retrial was ordered.

He told NewsChannel 21 that Friday's ruling ends the automatic appeals in state 
court - but does not mean Guzek has run out of appeals. However, courts that 
receive any future appeals would have the discretion of deciding whether to 
hear them or not.

As a result, "This (ruling) is very gratifying for me and the Houser family - I 
spoke to one of them this morning," Marquis said.

"I would never use the word 'closure - it's a stupid word - but there is some 
degree of finality with the decision," he said. "I probably will never appear 
with Randy Lee Guzek in court again, which makes me very happy."

Marquis noted that over the past quarter-century, "48 Deschutes County jurors 
have said he deserves the death penalty. All had to say yes - if one said no, 
he wouldn't be on death row."

In fact, if the death penalty was overturned in some formal fashion, Guzek 
might have been eligible for parole, as the "true life" sentence without 
possibility of parole was not an option at the time of his original conviction.

5 years ago, at his last death penalty sentencing trial in Bend, Guzek wrote a 
5-page brief that rejected the judge's request that he let jurors consider the 
option of "true life," Marquis said.

Marquis said "a lot of the credit" for the eventual successful outcome should 
go to the original Bend murder trial prosecutor, Ron Brown - now his chief 
deputy DA in Astoria. He also credited state Assistant Attorney General Timothy 
Sylvester, who argued the most recent case on the state???s behalf.

On the stun belt matter, Marquis noted that the issue of restraints is a 
"Catch-22 for those in the system."

"Someone in a convicted murder case can't wear visible shackles - that's 
clearly against constitutional law," Marquis said. "This belt, which has gotten 
smaller and smaller - and now is basically a wrist band - is extremely humane 
and has ever been activated in the 20 years used in Oregon. I even offered to 
have the damn thing put on me and be shocked, to show it's not dangerous."

Marquis noted Guzek's "allocution" is an in-court statement by the defendant to 
the jury that is not under oath or subject to cross-examination, "and it's not 
really evidence." He said the court basically found what he was allowed to do 
did not violate state law or the Constitution, and upheld the jury instructions 
given by the judge (visiting, now-retired Judge Jack Billings of Eugene).

Guzek still could bring "collateral appeals" in the federal court system -- 
something Marquis said he fully expects -- or a "post-conviction relief" case 
in state court, claiming his constitutional rights were violated.

"It's never completely, fully over until he dies of natural causes, is executed 
or runs out of appeals, or instructs his lawyers, as in the Timothy McVey case, 
not to continue appeals," Marquis said. From what I've learned in the 20 years 
I've spent on the Guzek case, I'd be astonished if he waived any appeals at 
all."

But in future appeals, "the arguments are much more legal ones, and not 
sufficiency of the evidence," he said.

Guzek, now in his mid-40s, has at this point been on Oregon's death row longer 
than anyone else, said Marquis, who has argued a strident defense of the death 
penalty in books and in debates from the University of Oregon to the European 
Parliament.

The death penalty issue remains highly political, with former Gov. John 
Kitzhaber stopping executions 4 years ago and current Gov. Kate Brown extending 
that moratorium, for now as she works with a small group of advisers to decide 
what stance to take on the matter.

Marquis said numerous polls have shown a strong majority of Oregonians support 
the death penalty.

"This is a sanction rarely sought, rarely imposed - that's the way it should 
be," he said.

(source: KTVZ news)