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

[Rick Halperin]

Oct. 14



MISSOURI:

Scherrer could face death penalty


The St. Francois County man who is accused of killing a tattoo artist and 
leaving his body in a septic tank is now facing the possibility of the death 
penalty.

Melvin Scherrer, 51, who lived in Cedar Lake outside Bonne Terre at the time 
the Sam "Tick" Francis went missing, is charged in St. Francois County with 
first-degree murder, armed criminal action, abandonment of a corpse, felonious 
restraint and tampering with evidence in connection with the murder of Francis.

The tattoo artist went missing in December of 2012. He was last known to be at 
Scherrer's home in Cedar Lake. His body was discovered the following July in a 
septic tank outside Bonne Terre.

Scherrer's attorney filed a speedy trial request on Aug. 20. Prosecutors here 
have 120 days before Scherrer is remanded back into federal custody where he is 
serving time for meth, conspiracy and weapons charges.

Prior to a preliminary hearing held before Associate Judge Robin Fulton on 
Tuesday, Scherrer’s special public defender, Renee Murphy, asked the judge for 
a continuance. She said she was told by the prosecutor’s office that if 
Scherrer persisted in his defense of the case to a preliminary hearing the 
prosecutor would seek the death penalty.

She said if that is the case Scherrer will need a public defender from the 
state capital litigation office. She indicated she had tried to contact that 
office prior to the hearing.

Prosecuting Attorney Jerrod Mahurin told the judge that the problem is that 
Scherrer has 120 days before he will be returned to federal custody. This is 
only the second time Scherrer has been able to make a court appearance here for 
the murder charges since the charges were filed in 2013. Mahurin said his 
office is already very pressed to try the case within that period.

Hearing the arguments, Judge Fulton denied Murphy’s request.

The state called three witnesses: Forensic Pathologist Russell Diediker; Sgt. 
Dave Bauer, a criminal investigator for the Missouri State Highway Patrol; and 
Otto Plopper, who testified about witnessing the murder.

Several of Francis' family members were present for the hearing.

The pathologist determined the manner of death was homicide but he could not 
determine what caused his death. He said the autopsy showed no broken bones, 
fractures, gunshot wounds or knife wounds. He said the body had been found 
inside the septic tank with moderate decomposition.

He said Francis’ arms were still tied behind his back and his head from his 
chin up was still wrapped in tape. He could not rule out death by suffocation. 
He said Francis’ liver did test positive for meth but not a toxic amount.

Plopper, who was charged with abandonment of a corpse in the case, testified he 
first met Francis days before his murder. He said he rode with Scherrer when 
Scherrer picked Francis up from a bar in Festus. He said Francis jokingly asked 
if Scherrer was going to kill him. He said Francis didn't seem afraid of 
Scherrer, though.

He said they went to Scherrer’s home and Plopper left the house after about 15 
minutes.

Plopper said about 3 days later Scherrer called him after midnight and asked 
him to come to his home. He said once there he found Francis standing up with 
his arms taped behind his back.

He testified on the stand that Scherrer, Brent Bouren (who has pleaded guilty 
in connection with the case and was sentenced to 24 months with credit for time 
served) and his girlfriend, Dustin Eyerly, a woman named Amy, and a woman named 
Elizabeth were present at the house at the time. He said Bouren was armed with 
a gun.

Plopper said about 15 minutes after he arrived, Scherrer hit Francis in the leg 
with a baseball bat and then Bouren kicked Francis in the face, causing him to 
bleed.

Plopper said Scherrer used Gorilla-brand tape to cover Francis’ face including 
his nose and mouth. He said Scherrer then had Plopper help him get a large 
toolbox from Scherrer’s truck. Plopper said Francis got in by himself and laid 
down without a struggle.

Plopper said no one ever said why Scherrer was doing this. Plopper said at one 
point he asked if he could just take Francis back to Cape Girardeau but 
Scherrer didn't respond.

Plopper said that both Bouren and Scherrer threatened to do the same thing to 
him as they did to Francis. He said Eyerly had also been beaten up.

He testified Francis was in the toolbox at least an hour before they left with 
his body. He said Francis stopped making noises and kicking after about 20 
minutes.

Plopper said 3 of them loaded the toolbox into the truck and he left with 
Scherrer. He said Scherrer drove around about 2 hours before they pulled up to 
a property and unloaded the toolbox. He said Scherrer placed the body in what 
he believed was a cistern. He said Francis was not moving and showed no signs 
of still being alive.

He said Scherrer told him that if he said anything “I’d be done the same way.”

Plopper said after he was questioned three times about the disappearance of 
Francis he admitted his involvement. He said before he told authorities where 
the body was he and the prosecutor agreed that the prosecutor wouldn’t charge 
Plopper with murder. Instead Plopper would be charged with abandonment of a 
corpse and be offered probation if he testified truthfully against Scherrer.

After the agreement was signed, Plopper gave police a description of the 
property and was later able to recall that he believed the property was for 
sale. In July of 2013 he and 2 investigators drove around for a couple hours 
and were able to find the location east of Bonne Terre and then the body in the 
septic tank.

When Plopper was questioned by Scherrer’s attorney he provided very few 
answers, mostly saying, “I don’t remember.” He also said he didn’t remember why 
he was friends with Scherrer but he did not sell drugs for him.

Plopper said he is paranoid schizophrenic/bipolar and was on psychiatric 
medication and drinking alcohol when he and Scherrer picked up Francis from the 
bar. He said he couldn’t remember if he was taking any other drugs that day. He 
said the day of Francis’ death he was not drinking or on drugs.

Plopper also testified that Scherrer was dating Francis’ wife, Amanda, He said 
he met her once or twice.

Plopper is currently incarcerated in Cape Girardeau County on an unrelated 
charge of driving with a revoked license.

After hearing testimony from the 3 witnesses, Judge Fulton found that there was 
probable cause for the case to proceed to trial. He bound the case over to 
Circuit Court Judge Sandy Martinez for arraignment on Nov. 6 ... if no earlier 
date was available.

Mahurin indicated he is now taking the steps needed to seek the death penalty 
but it could be a few weeks.

In December federal jurors found Scherrer guilty of 5 federal charges: 
conspiracy to distribute meth, possession of meth with intent to distribute, 2 
counts of felon in possession of a firearm, and 1 count of possession of a 
firearm in furtherance of a drug crime. The judge sentenced him to 30 years in 
prison. Scherrer will have to serve 85 % of the sentence before he is 
considered for release.

Following his incarceration he would have a supervised release for a period of 
10 years.

(source: Daily Journal)




KANSAS:

"Wichita Massacre" Death Penalty Case Pits Brother Against Brother


Should 2 brothers who were convicted of a horrific murderous crime spree be 
tried in court together and sentenced to death in one combined sentencing 
hearing? Alternatively, does justice mandate erecting a wall between their two 
cases and holding separate individualized hearings? It has been nearly fourteen 
years since the 2000 crime spree referred to in Kansas as the "Wichita 
Massacre" that left five victims dead and another seriously injured. This week 
the case of the two brothers, Reginald and Jonathan Carr, was back in court 
again and this time it was before the highest court in the land, the U.S. 
Supreme Court.

Kansas State attorneys, arguing the case on behalf of the county prosecutors, 
have described the offenses of the Carr brothers as "an incredibly brutal crime 
spree of rapes, robberies and violence." Justice Antonin Scalia, at Wednesday's 
argument, went to great lengths to remind everyone of the scale of the 
brothers' brutality. After a combined trial in 2002 the brothers were sentenced 
to death. Last year, however, the Kansas State Supreme Court reversed the death 
sentences. The State of Kansas appealed to the Supreme Court and on Wednesday 
the 9 justices heard legal arguments. Capital punishment keeps the Supreme 
Court busy; the Carrs' case is 1 of 4 death penalty cases set for argument this 
session.

In an unusual twist of fate, the strategy of county prosecutors to try and 
sentence the 2 brothers together pitted the 2 brothers against each other as 
their lawyers fight to spare their lives. Jonathan, the younger brother, was 20 
at the time of the murders. In an attempt to save his life, lawyers for the 
younger brother have argued that Reginald, 3 years older, was a destructive 
influence on the younger brother. They have referred to Reginald as a "2nd 
prosecutor" of Jonathan because Reginald introduced evidence and testimony used 
to convict his brother. They pointed to Reginald's courtroom conduct and 
dangerous propensities as working against Jonathan. Reginald's lawyers also 
claim the combined joint death penalty sentencing hearings tainted the older 
brother's sentencing. In trial court filings Reginald's lawyer argued that DNA 
evidence proved Jonathan, acting with a 3rd black male, committed most, if not 
all of the crimes the brothers were accused of.

The combining of the trials and sentencing hearings was an important aspect of 
the weighty subjects presented to the justices for a decision in this case, but 
not the only issue. Another subject argued was whether the trial judge properly 
instructed the jury of the law controlling mitigation of death sentences that 
justify a life sentence instead. Mitigation evidence was presented that 
Jonathan suffered from brain damage and Reginald was diagnosed with an 
antisocial personality disorder. The brothers' conditions and dysfunction were 
not enough to convince the jury that they outweighed the depravity of their 
crimes.

Tensions are mounting among the Supreme Court Justices on capital punishment, 
and sparks between Justices Stephen Breyer and Antonin Scalia sizzled again 
Wednesday. The tensions started this summer in an Oklahoma lethal injection 
case (Glossip v. Gross). In that case Justice Breyer caused ripples in the 
legal community by publicly inviting the Court to "reopen the question" whether 
capital punishment should be abolished as an unconstitutional cruel and unusual 
punishment. In that case Justice Scalia referred to Justice Breyer's dissenting 
arguments as "nonsense." On Wednesday Justice Scalia pointed out that Kansas 
has 9 inmates on death row. "Kansans," said Scalia, "unlike Justice Breyer, do 
not think the death penalty is unconstitutional."

Interestingly though, on Wednesday, as Justice Breyer listened to the arguments 
made by the lawyers for the Carr bothers he was troubled by something other 
than the constitutionality of the death penalty. Breyer questioned whether a 
ruling from the Court mandating separate trials and sentencing hearings would 
"open the floodgates" to criminal defendants in potentially hundreds of (what 
he called) "ordinary" criminal cases like gang cases or drug cases who would 
all demand separate proceedings from their co-defendants. In an attempt to save 
money, joint trials for criminal defendants arrested together are common, 
unless there is a good legal reason to separate them. Appellate Courts like the 
Supreme Court go to great lengths to decide cases narrowly so to avoid slipping 
down a "slippery slope" and set the stage for future far reaching consequences.

Despite Justice Scalia's swipe at Justice Breyer about Kansans supporting 
capital punishment, executions are unusual in Kansas. Kansas has not executed 
anyone since 1965. If Kansas executes the Carr Brothers they will share a 
history of rare and notorious Kansas executions. Among the last state 
executions in Kansas were the hangings in 1965 of Richard "Dick" Hickock and 
Perry Smith. Hickock and Smith were the 2 ex-cons who, after being released 
from prison on parole committed the farmhouse murders of four members of the 
Clutter family. Their crimes were made famous by Truman Capote's shocking 
bestseller, In Cold Blood.

The Carr Brothers, like Hickock and Smith, have achieved a level of notoriety. 
A 2003 Law and Order Specials Victim Unit episode "Dominance" was based on the 
Wichita Massacre. And just like the Carr brothers, Hickock and Smith tried to 
deflect responsibility by blaming each other. Unlike the Carrs, though, the 
Clutter murderers may have been partners in crime but they were not brothers. 
In death penalty litigation, however, if prosecutors are successful, siblings 
take family dysfunction to their graves.

(source: Jim Diamond, criminal lawyer and legal educator; Huffington Post)




ARIZONA:

'Baseline Killer' appeals 9 death sentences


10 years ago, Mark Goudeau had just embarked on the spree of rapes and 
robberies and murders that would earn him 9 death sentences, more than 1,600 
years in prison and the title "Baseline Killer."

Over the course of 2 trials in 2007 and 2011, Goudeau, now 50, was convicted of 
84 felonies involving 33 victims, including 9 murders. 8 of the murder victims 
were women who police and prosecutors believe Goudeau shot in the head when 
they refused his sexual demands.

On Tuesday, an appellate attorney argued to the Arizona Supreme Court that 
Goudeau should have been tried separately for each of the murders and some 
other counts because the overwhelming number of crimes might have convinced the 
jury to find him guilty of crimes he may not have committed.

It was the oral argument for a mandatory, automatic appeal that all defendants 
get after being sentenced to death.

The high court could take as long as 6 months to issue an opinion. Goudeau's 
chances of having his sentences overturned are slim.

Even in the unlikely event that all his convictions are thrown out, he will 
spend the rest of his life in prison, serving 438 years for a 2005 sexual 
assault on two sisters in south Phoenix that went to a jury 4 years before the 
murder trial that sent him to death row.

Goudeau was not present at Tuesday's hearing. Direct appeals, as they are 
called, are appellate cases in which the justices consider only what is in the 
trial record. From there he can appeal to the U.S. Supreme Court. Then he can 
return to Maricopa County Superior Court for post-conviction release and argue 
any new evidence or present a case that his trial attorneys were ineffective.

Goudeau's wife, Wendy Carr, was present Tuesday, as were 2 of Goudeau's sisters 
and 2 of his nieces, all of whom are convinced he is not guilty.

"I'll continue to be an advocate for his innocence," Carr said.

The rapes and murders started in August 2005 with the killing of a stripper in 
Tempe. They continued until June 2006, when Goudeau's final victim was snatched 
from a self-serve car wash in central Phoenix and left dead in her car just 
hundreds of feet away, even as police searched the neighborhood for her.

But Goudeau was only responsible for half of the terror of those 13 months. At 
the same time, another three men who became known as the "Serial Shooters" were 
crisscrossing the Valley, shooting people and animals from their car windows. 
The Serial Shooters killed 8 people, shot or stabbed 19 more and killed at 
least 10 animals.

In August 2006, police arrested roommates Dale Hausner and Samuel Dieteman at 
their apartment in Mesa. Hausner's brother Jeff was later arrested and charged 
with 2 stabbings. Dieteman pleaded guilty and testified against the Hausners. 
Dale Hausner was sentenced to death 6 times. He later committed suicide on 
death row. Dieteman was sentenced to life in prison. Jeff Hausner got 2 lengthy 
prison terms.

When Dale Hausner was arrested, police found scrapbooks in his apartment full 
of newspaper clippings about his murders and those of the Baseline Killer, as 
if he were competing against a rival serial killer.

Goudeau was arrested just weeks after Hausner and Dieteman, on Sept. 6, 2006, 
his 42nd birthday.

On Tuesday, attorney David Goldberg, who specializes in death penalty appeals, 
argued to the Arizona Supreme Court justices that most of the 74 felonies for 
which Goudeau was indicted in 2007 should have been tried separately because 
the circumstances of the crimes varied and the evidence was stronger in some 
cases than in others.

Jurors, he argued, would be swayed by the overwhelming nature of the charges 
and the evidence and possibly find him guilty of more charges than they should 
have.

The justices pointed out that the jury, in fact, found him not guilty on some 
counts and hung on another.

Goldberg also raised issues about disputed DNA evidence.

Goudeau was originally indicted in the 2005 sexual-assault case when lab 
technicians found his DNA on swabs taken from the victims using a lab test that 
tracks the male component of a suspect's DNA after conventional DNA testing 
failed to produce results.

One issue is that the DNA test in question is less conclusive than standard DNA 
testing, which tracks the maternal side. Also, the swabs used to sample DNA 
from some victims were completely used up by police lab technicians, denying 
the defense a chance to do their own testing.

But that DNA connected Goudeau to other rapes and robberies and to one of the 
murder victims. The rest of the murder victims were connected to Goudeau 
through ballistics.

"They never actually put the gun in Mr. Goudeau's hand," Goldberg said.

"This is not an ironclad DNA case by any measure."

Many of the crimes were also linked by the manner in which they were committed. 
Goudeau used various disguises, but frequently told his victims that he had 
just committed a robbery and had become separated from an accomplice. One woman 
who resisted his advances had a gun put to her head, and Goudeau told her that 
her family would read about her in the newspaper. But when he pulled the 
trigger, the gun misfired and the woman ran naked to the nearest house and 
escaped.

Goldberg and the justices quibbled over whether the crimes were carried out in 
the same manner or just a similar manner. Goldberg pointed out that at some 
times the assailant in the murders wore a dreadlock wig, at others a 
fisherman's hat, a hoodie or an old-man wig.

The response from Assistant Arizona Attorney General Jeffrey Sparks, who argued 
the case on behalf of the prosecution, was, "The fact is, he disguised himself 
each time, and that's the similarity."

Goldberg also objected to the disparate nature of the crimes tried in the 2011 
trial, asking how a robbery at a Mexican restaurant and a murder with a dumped 
body were similar.

Justice John Pelander answered with his own questions.

"Were there differences?" he asked. "Yes. But were there enough similarities?"

Pelander also raised other evidence found at Goudeau's house.

Goldberg was insistent.

"He did not get a fair trial," he said. "He needs to have 13 — at a minimum — 
new ones."

(source: Arizona Republic)




CALIFORNIA:

Defense rests in death penalty trial of Palm Desert man


The defense rested today in the trial of a Palm Desert gang member accused in 
the shooting death of a Moreno Valley man.

Deontray Robinson, 25, could face the death penalty if convicted in the May 
2011 slaying of 29-year-old Jerry L. Mitchell Jr.

Robinson is charged with first-degree murder, along with special circumstance 
allegations of killing for the benefit of a criminal street gang and killing 
during the course of a robbery. He's being held without bail at the Robert 
Presley Jail in Riverside.

His attorneys called no witnesses during the roughly six-week trial, informing 
Riverside County Superior Court Judge David Gunn this afternoon that they were 
prepared to make closing arguments, which Gunn scheduled for Thursday morning 
at the Riverside Hall of Justice.

Robinson's co-defendant, 40-year-old Romaine Ulyses Martin of Moreno Valley, 
had been on trial with him until Sept. 23, when it was learned that the judge 
then hearing the matter, Bernard Schwartz, had served as Martin's attorney 
during a robbery trial in February 1997.

Schwartz declared a mistrial for Martin and withdrew from the case entirely, 
assigning all of Robinson's trial proceedings to Judge Gunn's courtroom.

Martin is slated to be retried early next year on the same charges his alleged 
accomplice is facing.

According to prosecutors, the two defendants targeted Mitchell because he was a 
rival. Martin and Robinson allegedly attacked the victim on the night of May 
27, 2011, outside his apartment in the 12-000 block of Carnation Lane.

The pair allegedly pistol-whipped him until he managed to run into his 
residence and barricade himself in the bathroom.

Martin allegedly fired a shot into the space before he and Robinson left the 
location, taking a number of Mitchell's belongings with them, according to the 
D.A.'s office.

``After the assailants left, Mitchell went to a neighbor's apartment and called 
911,'' according to prosecutors. ``Mitchell then returned to his apartment to 
wait for (sheriff's deputies) to get there. While waiting, defendant Robinson 
came back and fired multiple shots at Mitchell, killing him.''

The victim died at the scene.

Robinson has a prior conviction for burglary. If he's found guilty, his penalty 
trial will begin immediately, according to the prosecution. Martin has prior 
convictions for robbery, being a felon in possession of a firearm and driving 
under the influence, according to court records.

(source: The Desert Sun)

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



Gag order looms at death penalty trial over killings of Oakland girl and 
Berkeley man


Alameda County Superior Court Jeffrey Honer said Tuesday that he plans to issue 
a gag order in the death penalty trial over the 2013 killings of an 8-year-old 
Oakland girl and a 22-year-old Berkeley man.

Darnell Williams, 24, of Oakland, is the first person that the Alameda County 
District Attorney's Office has sought the death penalty against since David 
Mills, who was sentenced to death in 2012 for murdering three people in Oakland 
in 2005.

Williams is accused of killing 8-year-old Alaysha Carradine and wounding 2 
other small children and a grandmother on July 17, 2013 after knocking on the 
front door of a Dimond District apartment where the children were playing and 
firing multiple shots inside.

Authorities allege that Williams targeted the house because he believed the 
surviving children's estranged father had shot and killed his friend Jermaine 
Davis, 26, earlier that day.

Williams is also accused of killing 22-year-old Berkeley resident Anthony 
Medearis Jr. during a dice game on Sept. 8, 2013 in Berkeley. During the 
shooting, Williams' 8-year-old nephew was injured by a metal fragment that 
struck his face.

It is the special allegation of multiple murders that makes Williams eligible 
for the death penalty or life in prison without the possibility of parole.

An Alameda County jury that has not yet been assembled will recommend what 
punishment Williams should receive at the conclusion of the penalty phase of 
the trial if he is found guilty as charged.

Williams' trial started in Honer's courtroom in late September. On Tuesday, the 
judge and attorneys submitted what questions they would like posed to potential 
jurors. The trial is expected to take one to two months after opening 
statements in late January or early February.

Honer said he plans Wednesday to issue an order prohibiting Williams, and all 
attorneys and investigators associated with the case, from discussing the case 
with the news media during the trial. He also plans to ban all cameras and 
recording devices from inside the courtroom and in the courthouse hallway.

Williams is being prosecuted by and defended by seasoned attorneys. Assistant 
district attorney John Brouhard convinced a jury in 2007 to recommend the death 
penalty for Alex DeMolle for the 1999 rape and murder of 11-year-old Jaquita 
Mack in Oakland. Brouhard is also prosecuting an ongoing case against Mark 
Estrada, a 21-year-old man charged with killing Hayward police Sgt. Scott 
Lunger in July.

Williams has 2 court-appointed attorneys, Deborah Levy and Darryl Billups. Levy 
convinced a jury in 2006 to recommend life in prison without the possibility of 
parole for death penalty defendant Demarcus Ralls for an Oakland gang-related 
murder. She also defended Irving Alexander Ramirez in 2007 when he received the 
death penalty for killing San Leandro Police Officer Nels "Dan" Niemi.

Billups is a former Alameda County prosecutor who has served as defense on 
numerous high-profile and special-circumstance murder cases, including the 2011 
double homicide at the Sweet Jimmie's bar in Jack London Square.

(source: insidebayarea.com)




USA:

Supreme Court reluctant to rule on juvenile murderers' life sentences


About 1,500 prisoners convicted of murder as juveniles and given
mandatory sentences of life without parole may have to wait a bit longer
to have their hopes for new sentences decided by the Supreme Court.

A majority of justices on Tuesday appeared to believe that they lacked 
jurisdiction to decide whether states such as Louisiana, Michigan, Pennsylvania 
and others must apply a ban on such mandatory sentences retroactively to those 
convicted years or even decades ago.

The problem, the court's more conservative justices said, is that Louisiana's 
refusal to reconsider the sentences of its juvenile murderers — people such as 
Henry Montgomery, 69, who's been imprisoned since he was 17 for murdering a 
sheriff's deputy in Baton Rouge — is a matter of state law.

And while the high court could tell Louisiana whether its 2012 decision 
striking down mandatory life-without-parole sentences for juveniles as cruel 
and unusual punishment must be applied retroactively, the state then could 
decide the issue on state grounds — rendering a Supreme Court verdict simply 
advisory.

"What forces them to stay where they were?" Justice Antonin Scalia asked the 
lawyer representing Montgomery, Mark Plaisance. "It's a matter of state law. 
They've decided 'we're going to change state law.'"

The question of state versus federal jurisdiction appeared likely to sidetrack 
the case — the 2nd one granted by the court to decide whether the 
constitutional ban on mandatory life sentences for juveniles should be applied 
to those sentenced in the past. The 1st case was dismissed when the prisoner, 
George Toca, pleaded to a lesser charge and was released after three decades in 
Louisiana's prison system.

Lawyers for Louisiana and the U.S. Department of Justice agreed with 
Montgomery's lawyer that the court had jurisdiction to decide the case.

"This court ought to weigh in," Kyle Duncan, the state's lawyer, said. "It's 
going to weigh in sooner or later."

The justices appeared equally skeptical on the merits of the case — 
specifically, whether its 2012 ruling applying to juveniles convicted of murder 
in the future was a "substantial" change in the law requiring retroactive 
application.

Justice Elena Kagan, who wrote the earlier 5-4 decision, said that case changed 
the range of sentences juries could render. While the maximum sentence remains 
life without parole, she said, juries could hand down more lenient sentences — 
making it a substantial change.

"When you decide whether a substantive change in that sentence has been made, 
you look at both: the maximum and the minimum," Kagan said.

To which Scalia replied: "I would not describe changing the range of sentences 
available as changing the sentence.... You still get the same sentence."

And while some justices were sympathetic to Plaisance's plea that juveniles 
locked away forever "deserve a chance at redemption," others appeared to agree 
with Duncan, who warned that forced retroactivity would drain state resources 
and lead to "distorted retrials."

The case is a logical extension of the high court's juvenile justice 
jurisprudence. In 2005, it barred the death penalty for those whose crimes were 
committed before they turned 18. In 2010, it prohibited life without parole for 
non-homicides. Then in 2012, it blocked all future mandatory life sentences, 
even for murder.

Since then, it's been left to state courts or legislatures to decide whether 
the sentences of those previously locked away for life should be reconsidered. 
Hundreds of them were imprisoned in the 1980s and '90s, when the battle against 
juvenile crime peaked; some date back to the 1950s. Fourteen state supreme 
courts have said the ruling must be applied retroactively. 7 others, as well as 
4 federal appeals courts, have said
it does not.

(source: USA Today)


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



Cruel and Unusual Punishments Before the Supreme Court


On Tuesday the Supreme Court heard cases involving the two most extreme 
punishments in the American criminal justice system: life without the 
possibility of parole and the death penalty.

The capital case comes to the justices, as it often does, from Florida. Only 
last year the court struck down the state’s rigid, unscientific law that tried 
to skirt around the court’s ban on executing intellectually disabled people.

This time the issue is the jury’s role in capital sentencing. Florida, alone 
among the states and the federal government, allows a non-unanimous jury to 
vote for a death sentence — which is why a man named Timothy Lee Hurst sits on 
the state’s death row even though five of the 12 jurors in his case voted 
against the death penalty. Mr. Hurst’s situation is common: According to one 
study, if Florida required unanimity, there would have been 70 % fewer death 
sentences handed down since 2010.

In a questionable 1972 case, the Supreme Court required jury unanimity in 
federal criminal trials, but not in state trials. Mr. Hurst’s lawyer, Seth 
Waxman, argued to overturn that ruling, “particularly in the Eighth Amendment 
context where the question is death.” If unanimous verdicts are required in 
federal criminal cases, even those with modest penalties, it is grossly unjust 
that a state can carry out executions with divided juries. It is past time for 
the court to review and overturn the 1972 ruling.

Florida law also relegates the jury in a capital case to an advisory role, and 
leaves to the judge the final decision on whether to impose a death sentence. 
It is hard to see how this does not violate a 2002 Supreme Court ruling that 
juries, and not judges, must find an “aggravating” factor — like a crime was 
especially heinous — when a state imposes a death sentence.

Florida’s solicitor general, Allen Winsor, argued to the justices that the 2002 
case required the jury to decide whether someone was eligible for execution, 
not to impose the sentence. But that distinction is meaningless, especially 
where the jury’s decision is not unanimous. Once again, Florida is dodging a 
clear Supreme Court ruling with legal trickery. The justices should not 
tolerate it.

In the other case argued Tuesday, the justices are considering whether their 
2012 decision banning mandatory sentences of life without parole for juveniles 
convicted of homicide should apply to as many as 2,000 people who were already 
in prison serving such mandatory sentences when the court ruled. This may seem 
like an odd question, since the basis of that opinion, Miller v. Alabama, was 
that young people are both less culpable than adults and more likely to be able 
to change over time. By that measure, a juvenile sentenced before the court’s 
decision is obviously no different from one sentenced after.
Continue reading the main story

The plaintiff in the current case, Henry Montgomery, is a 69-year-old man who 
was 17 when he was convicted of killing a Louisiana sheriff’s deputy in 1963 — 
a crime that carried an automatic sentence of life without the possibility of 
parole. He has been imprisoned for more than 50 years at the Louisiana State 
Penitentiary and has been by all accounts a well-behaved prisoner.

Although the issue sounds straightforward, the court’s approach to deciding 
whether its decisions are retroactive is complex, and as a result, state and 
federal courts have been divided on the effect of the Miller ruling.

Lawyers for Louisiana argued that because the court did not ban life without 
parole for juveniles convicted of homicide in all cases but only as a mandatory 
sentence, the 2012 ruling need not be applied retroactively.

This is too narrow a reading of the reasoning behind the Miller decision. Like 
the court’s earlier decisions banning the death penalty for juveniles and life 
without parole for juveniles for non-homicide crimes, the Miller ruling was 
based on a fundamental observation that juveniles are different from adults, 
and it required courts to take age into consideration when imposing a sentence.

The Montgomery case gives the justices an opportunity to consider the broader 
question: Does life without parole for juveniles violate the Eighth Amendment’s 
prohibition against cruel and unusual punishments? The only just and humane 
response is yes.

15 states, along with the District of Columbia, have already eliminated the 
punishment entirely. Nine of those states have done so in the three years since 
the Miller ruling. And more than a dozen other states have five or fewer 
inmates serving that sentence, which is a good indication of how bizarre it is.

A ruling that the Miller decision should be applied retroactively — or one that 
banned life without parole categorically for juveniles — would allow inmates 
sentenced as juveniles to get a chance at some point to show a judge or parole 
board that they have earned the right to return to society.

People can change, and any justice system that is not merely about retribution 
would recognize that. A sentence of life without parole is particularly 
senseless when it comes to juveniles, whom the court has already found to have 
a greater capacity for transformation.

(source: Editorial, New York Times)



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




Prosecutors again ask Gary Sampson trial judge to step aside


Federal prosecutors asked a judge Tuesday to reconsider their request that he 
step down from the death-penalty trial of admitted serial killer Gary Lee 
Sampson, maintaining their belief that the judge may have a conflict of 
interest in the case.

US District Judge Mark L. Wolf had set Tuesday as the deadline for prosecutors 
to appeal his September decision that he would not recuse himself from 
Sampson’s sentencing trial, despite the prosecution’s request that he do so. 
The request was based on the judge’s participation a year ago on a panel 
discussion following the screening of a film that chronicled the struggles of 
an inmate who suffered from mental illness. The film raised several issues that 
will be central factors in Sampson’s defense, and one of the panel members may 
be called as an expert witness in the case.

Prosecutors had argued a reasonable person would question the judge’s 
impartiality.

In his decision, Wolf accused prosecutors of judge shopping, saying his 
participation on the panel would not lead a reasonable person to question his 
impartiality — the legal standard that would force him to recuse himself.

Rather than appeal Wolf’s decision to a higher court, prosecutors asked him to 
reconsider, saying the judge’s previously undisclosed notes from the panel 
discussion show that he has been involved in policy issues too close to the 
core of Sampson’s defense.

They also argued that they were asking the judge to reconsider so that they 
could “ensure public confidence” in the high-stakes death penalty trial.

Sampson, now 56, had already pleaded guilty and was sentenced to death for the 
2001 carjacking and killing of 2 people within a week’s time. He also killed a 
third person in New Hampshire that same week. Wolf, who oversaw Sampson’s 1st 
sentencing trial, later threw out the jury’s decision after finding that one of 
the initial jurors who decided Sampson’s fate had lied during a screening 
process.

A 2nd trial will be held to determine Sampson’s sentence, and it had been 
scheduled to begin in September. Wolf postponed the trial until he could 
consider the prosecution’s request he step aside and has not yet set a new 
trial date.

Prosecutors say they are looking to address all potential legal errors so that 
Sampson would not be granted a 3rd trial.

Wolf did not immediately respond to prosecutors’ court filing Tuesday. 
Sampson’s lawyers have argued that the judge does not need to step aside.

(soruce: Boston Globe)