[Deathpenalty] death penalty news----MONT., CALIF.

[Rick Halperin]

Oct. 7



MONTANA:

Judge Blocks Montana From Using Drug in Executions


A judge on Tuesday blocked Montana from using a particular drug in lethal 
injections, effectively halting executions in the state until an adequate 
substitute can be found or lawmakers change the law.

The barbiturate pentobarbital does not meet the state law's standards for 
executions, District Judge Jeffrey Sherlock said. Sherlock stressed that his 
ruling is not on whether the death penalty is constitutional or whether the 
drug's use constitutes cruel and unusual punishment, but only whether the drug 
satisfies the law.

"Scrupulous adherence to statutory mandates is especially important here given 
the gravity of the death penalty," Sherlock said in his order.

Montana's 2-drug lethal injection law requires the use of an "ultra-fast acting 
barbiturate" to quickly put the inmate into a coma, followed by a paralytic 
agent called pancuronium. The state's execution protocol lists sodium pentothal 
as the barbiturate, with pentobarbital as a substitute.

Sodium pentothal is no longer manufactured in the U.S., and it can't be 
imported, which has left death-penalty states such as Montana to adjust their 
execution protocols.

Pentobarbital is used for lethal injections in other states, and while the drug 
does act quickly, it does not meet the "ultra-fast" classification required by 
the Montana Legislature, ruled Sherlock, who is based in Helena.

"Under the express terms of the statute, the State of Montana is not allowed to 
use the 'fastest acting barbiturate available' or a 'relatively fast-acting 
barbiturate,' only an 'ultra-fast acting barbiturate,' the judge wrote.

Medical evidence shows only 3 barbiturates can be classified as "ultra-fast 
acting," and pentobarbital is not one of them, the judge said. Sodium 
pentothal, or thiopental, is one, along with thiamylal and methohexital.

Sodium pentothal takes effect almost instantaneously, while a person given 
pentobarbital would breathe longer, move his body and slur his words before 
taking effect, Dr. Mark Heath, a Columbia University anesthesiologist, 
testified last month.

Department of Justice spokesman John Barnes says state attorneys are reviewing 
Sherlock's decision. Department of Corrections spokeswoman Judy Beck did not 
immediately return a call for comment on whether a substitution for 
pentobarbital was available.

Montana's last execution was carried out in 2006, and pentobarbital has not 
been used in its lethal-injection mixture.

Tuesday's ruling was made in a lawsuit brought by the American Civil Liberties 
Union of Montana on behalf of the state's 2 death-row inmates, Ronald Allen 
Smith and William Gollehon. They argued that if the barbiturate does not take 
effect quickly enough, a condemned inmate could remain conscious while he 
suffers to death.

"While the ACLU will continue to fight for the abolition of the death penalty 
in Montana, we are gratified that, in the short term, our state will be staying 
out of the business of killing people," ACLU of Montana Executive Director 
Caitlin Borgmann said.

(source: Associated Press)

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

Judge rejects execution drug in case of Canadian on death row


A U.S. judge has rejected a request from the state of Montana to change one of 
the drugs used to execute prisoners on death row.

The decision by District Court Judge Jeffrey Sherlock could be good news for 
Ronald Smith of Red Deer, Alta., who is 1 of 2 inmates condemned to die in that 
state.

Sherlock presided over a hearing last month on whether the sedative 
pentobarbital, which was being proposed by the state, complies with language in 
Montana's execution protocol requiring an "ultra-fast-acting barbiturate."

Lawyers from the American Civil Liberties Union argued that the sedative could 
lead to an "excruciating and terrifying" death.

"This case is not about whether the use of pentobarbital in a lethal injection 
setting is cruel and unusual or if pentobarbital in the doses contemplated by 
the State of Montana would produce a painless death," wrote Sherlock in his 
decision.

"This case is only about whether the drug selected ... meets the legislatively 
required classification of being an ultra-fast-acting barbiturate.

"The court rules that pentobarbital is not."

Sherlock's decision means it's back to the drawing board for Montana officials, 
who are now prevented from going ahead with any executions.

"The State of Montana will either need to select a barbiturate that is 
ultra-fast-acting ... or it will need to modify its statute."

Lethal injection has been the sole method of execution in Montana since 1997. 
It is the only state that specifies the death penalty must be accomplished by 
an "ultra-fast-acting" barbiturate.

Ron Waterman, a senior counsel for the American Civil Liberties Union, was 
happy with the ruling and said the issue will have to go back to the state 
legislature.

"It would have to be a bill that is introduced at the next legislative session, 
which is 2017. It would then have to be passed by both houses of the 
legislature and then signed by the governor," he said.

Waterman said getting both the legislature and the senate to pass a new law 
would be challenging for the state of Montana and bodes well for his clients.

"It's very good news," Waterman said. "I believe this is a very good outcome 
and we're very pleased."

Smith, 57, was convicted in 1983 for shooting Harvey Madman Jr. and Thomas 
Running Rabbit while he was high on drugs and alcohol near East Glacier, Mont.

He had been taking 30 to 40 hits of LSD and consuming between 12 and 18 beers a 
day at the time. He refused a plea deal that would have seen him avoid death 
row and spend the rest of his life in prison.

3 weeks later, he pleaded guilty. He asked for and was given a death sentence. 
Smith later had a change of heart and has been fighting for his life ever 
since. He has had a number of execution dates set and overturned.

(source: ctv news)






CALIFORNIA:

Prosecutors win round in O.C. death penalty trial of accused double murderer


An Orange County Superior Court judge Tuesday rejected a defense attorney's 
attempt to have two other judges called as witnesses in a capital case against 
an accused double murderer.

At issue is the alleged improper use of jailhouse informants, and both of the 
judges that would have been called as witnesses were prosecutors before being 
named to the bench.

Judge Gregg Prickett granted a motion to quash subpoenas of Judge John Conley, 
who is presiding over Daniel Patrick Wozniak's trial, and Judge Walter Schwarm.

Wozniak is scheduled to go on trial Oct. 30, but attorneys will return to court 
Oct. 16 to discuss a motion to take the death penalty off the table. 
Prosecutors are seeking capital punishment for the defendant, should he be 
convicted.

Wozniak's attorney, Assistant Public Defender Scott Sanders, has alleged many 
of the same arguments regarding outrageous governmental misconduct in the use 
of jailhouse informants that were raised in another case, his defense of the 
worst mass killer in Orange County history, Scott Dekraai.

In that other case, Orange County Superior Court Judge Thomas Goethals removed 
the District Attorney's Office from the penalty prosecution of Dekraai, a 
ruling that is under appeal.

Sanders argued that Conley and Schwarm have knowledge of alleged governmental 
misconduct in the use of jailhouse informants dating back to the 1980s, when 
they were prosecutors.

Prickett said Conley and Schwarm could be called as witnesses, but he found 
that Sanders did not present a "compelling reason" to do so in this case.

"The evidence the defense seeks to elicit from each of the witnesses in 
question would not be the most direct testimony on the proffered subjects, and 
thus would be cumulative to testimony that could be presented in the forms of 
other witnesses," Prickett wrote.

Prickett also wrote, "The defense has not demonstrated that either of these 
witnesses had unique personal knowledge of the relevant information."

Prickett left open the possibility that Sanders could raise the issue again if 
he gathers new "facts and/or a different theory."

Last Friday, Conley ruled that a second motion to get him recused from the 
Wozniak case duplicated the first one, which has been rejected by the state 
Supreme Court.

Conley said Sanders' 2nd move to have him removed from the case was "based on 
hearsay, speculation, allegations of facts not pertinent to the issues in this 
proceeding, and references to inconsequential circumstances that in no way 
suggest any bias or prejudice" on Conley's part. Sanders said he would appeal 
the ruling.

When attorneys return to Conley's court on Oct. 16, they will also discuss the 
status of redacting personally identifying information of witnesses, defendants 
and others named in Sanders' massive death penalty dismissal motion. Sanders 
wants a 5-week evidentiary hearing on his allegations of misconduct.

Senior Deputy District Attorney Matt Murphy on Friday criticized Sanders for 
filing his motion, which contains thousands of pages of exhibits, because he 
said it identifies home address and other information of witnesses, victims and 
defendants.

Conley kept a seal on the motion until the attorneys can redact the 
information.

"In a week with the help of 2 law clerks, I still haven't gotten through one 
box" of court papers, Murphy said. "I don't have 16 weeks to clean up this mess 
and I don't know what to do about it."

Murphy said the home address of one of the more prominent jailhouse informants 
is in the documents despite his status in witness protection. Murphy said it 
puts the informant's wife and young children at risk.

Sanders vowed to Conley that his office would pick up the case and go through 5 
binders of information a day and get it all redacted by mid- October.

Wozniak is accused of shooting a friend, Samuel Herr, after luring him to the 
Los Alamitos Joint Forces military base in May 2010.

Prosecutors allege he then used the victim's cell phone to trick another 
friend, Juri Kibuishi, into going to Herr's Costa Mesa apartment, where the 
defendant gunned her down and then made it look like Herr killed her during a 
sexual assault. Wozniak then allegedly returned to the base to dismember Herr.

He allegedly committed the crimes to steal from the victims to pay for his 
wedding and honeymoon, prosecutors said.

Sanders' attempt at booting Conley failed when the state Supreme Court refused 
to take up his appeal on prior denials of the motion. This time, Sanders claims 
he has new information that Conley, when he was a prosecutor in the 1980s, was 
aware of misconduct allegations related to the handling for informants in the 
county's jails and did nothing about it.

The dispute revolves around an informant's encounter with Wozniak while they 
were both locked up in the county's jail. Murphy has said he has no interest in 
using the informant as a witness because the defendant confessed to Costa Mesa 
police.

(source: mynewsla.com)

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

Defendant in Ceres death penalty case will represent himself in court


A former Ceres man facing the death penalty in the death of his teenage 
daughter will represent himself in court, giving him the ability to 
cross-examine prosecution witnesses and argue in front of a jury.

Along with the capital murder charge, Mark Edward Mesiti is charged with more 
than 40 counts of sexually abusing his 14-year-old daughter, Alycia Mesiti. Her 
body was found buried in a Ceres home's backyard 6 years ago.

The defendant also faces sexual abuse charges involving 2 other girls, 
according to a criminal grand jury indictment. He has pleaded not guilty to the 
charges and has denied all special circumstances allegations.

Mesiti, 47, unexpectedly asked to represent himself Tuesday morning, moments 
before a crucial hearing was supposed to start. His attorneys were expected to 
challenge the charges against their client, arguing there wasn't sufficient 
evidence to support allegations that Mesiti killed his daughter while engaged 
in or trying to commit sexual abuse on the girl.

Defense attorneys Martin Baker and Doug Maner were expected to ask the court to 
drop the murder charge, along with the sexual abuse enhancements. But the 
defense requested that the hearing be postponed, which was denied by Stanislaus 
Superior Court Judge Thomas Zeff. The defense also asked the judge to close the 
courtroom to the public for the duration of the hearing, which the judge also 
denied.

That's when Mesiti told the judge he wanted to legally represent himself. Judge 
Zeff then asked Mesiti whether he was ready to proceed with Tuesday's hearing. 
Mesiti said he was not, because he had read only a rough draft of the motion to 
dismiss the murder charge and enhancements.

The case was then sent to Judge Dawna Reeves, who will preside over the capital 
murder trial.

"I have some grave concerns that this is being done for the wrong reasons," 
Reeves told Mesiti about his request to represent himself. "I'm hoping that's 
not true."

The judge asked the defendant whether he understood well all 52 criminal 
charges against him and the enhancements. Mesiti told her he understood all the 
allegations listed in the "voluminous" indictment. "I'm fully aware of it, your 
honor," he said.

Judge warns defendant

Reeves warned him about what's involved when a defendant acts as his own 
attorney. She told him there will be no special help for him from the court, 
and that there will not be any extra assistance from the prosecutor assigned to 
the case.

The judge told Mesiti that he will be responsible for all the duties his 
attorneys would handle. She also warned the defendant that he can't later 
appeal a ruling or verdict, claiming he wasn't capable of acting as his own 
attorney. She advised Mesiti that a defendant asking for self-representation is 
"almost always unwise, especially in a case of this magnitude."

The defendant said he completed high school and has some community college 
education. Mesiti, who remains in custody at the county jail, told the judge 
that he has access to a law library and some help from consulting attorneys, so 
he will be capable of handling the case. "I intend on putting things together," 
he said in court.

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

The murder case has been mired in numerous postponements, including several 
requests by Mesiti seeking new court-appointed defense attorneys. Prosecutors 
obtained a criminal grand jury indictment against Mesiti so the case would skip 
the preliminary hearing phase and move straight to trial.

Nearly 2 years passed before Mesiti was arraigned on the indictment. The trial 
has not been scheduled; Mesiti's trial cannot be scheduled until his attorneys 
have a chance to challenge the evidence presented to the grand jury behind 
closed doors.

Mesiti told Judge Reeves that he needs to review the motion challenging the 
prosecution's evidence and decide whether he needs to change certain aspects of 
the legal document or withdraw it from the court's consideration.

Access to evidence

Chief Deputy District Attorney Annette Rees argued that she was worried about 
the court giving Mesiti access to photos that she said depict sexual abuse of 
the girl. The prosecutor suggested that a prosecution investigator could meet 
with Mesiti and show him the photos, instead of leaving the photos with Mesiti 
to keep while in jail.

The prosecution argues that the girl was drugged, and that Mesiti photographed 
himself sexually abusing his daughter while she was unconscious.

Baker told the judge that his law firm was willing to stay on the case as 
advisory counsel, because it would be the most efficient remedy if Mesiti were 
to decide later that he no longer wanted to represent himself in court. Maner 
told the judge that he would be willing to stay on the case, because a death 
penalty case requires that an indigent defendant have 2 court-appointed 
attorneys.

The judge said Baker and Maner were now relieved from the case, and she will 
decide at a later date whether any attorneys will be appointed to assist the 
defendant. Reeves also said it's possible Mesiti can be assisted by 1 attorney, 
but that she needs to do research on that issue.

Mesiti is scheduled to return to court Friday so the court can reschedule the 
hearing to challenge the prosecution's evidence.

(source: Modesto Bee)