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

[Rick Halperin]

Feb. 4




OHIO:

Tragic tales of injustice


Professor Marge Koosed of the UA School of Law hosted a panel to discuss race 
and the death penalty this past Tuesday. The event, titled "The Death Lottery: 
How Race Impacts the Ohio Death Penalty," featured 4 speakers who have 
firsthand experience with the issue.

A modest crowd attended the noontime discussion, which was held in the Student 
Union Theater. Koosed opened the event with Ohio capital punishment statistics, 
including the fact that 57 % of Ohio's death row inmates are minorities - while 
only 12 % of Ohio's population are minorities.

Then she turned the podium over to the afternoon's speakers.

The 1st speaker was Judge Stephen McIntosh, a former member of an Ohio task 
force asked to recommend changes to state death penalty laws - recommendations 
that included legislation that would prevent seriously mentally ill people from 
being executed.

Other recommended pieces of legislation would require absolute certainty that 
the defendant committed the crime before he or she could be condemned. McIntosh 
expressed frustration that people, especially people of color, are sentenced to 
death with little evidence. "You would be surprised to see how many people are 
on death row because of a single eyewitness or ... a jailhouse snitch," he 
said.

After that, the podium was passed to Jack Sullivan, Jr., an ordained minister 
and executive director of Murder Victims' Families for Reconciliation. Sullivan 
discussed the mission of his organization, which is primarily to abolish the 
death penalty.

Sullivan also recounted the tragic story of his younger sister Rebecca, who was 
murdered in Cleveland at the age of 21. He also spoke of the "Imperial 11," 11 
African-American women who were kidnapped and killed in an Imperial Avenue 
duplex in Cleveland.

He expressed disgust with the legal system's response to both crimes, alleging 
that certain law enforcement personnel lack effort when investigating crimes 
involving African-Americans. "There's a thread of indifference at best, and a 
thread of lack of concern at worst," he said.

He stressed that he wants to see the killers captured, but not executed.

Next, Kwame Ajamu was invited up to the podium. Last year, Ajamu was exonerated 
for a 1975 murder that he did not commit.

The only witness for the case was a 12-year-old boy who recently admitted that 
law enforcement pressured him to falsely identify the murderers. "Not only did 
they fabricate the case, but they actually wrote my part into the story weeks 
later," Ajamu said.

For almost 25 minutes he told his tragic story, frequently pausing to dry his 
eyes with a handkerchief. He was arrested while playing basketball, assigned an 
apathetic defense attorney, and sentenced to death row.

"They came into an all-black neighborhood and left with 3 of its occupants," he 
said. "We wouldn't be back for 40 years. So many moments in life. 17 years in 
prison. Now, all of the seniors are gone. I'm a senior. My brother is a 
senior."

In his freedom, he stands as a staunch opponent of capital punishment. "If I 
could go back, man, I would do it all again," he said. "Just to stand as I do 
today and represent the eradication of this evil."

After Ajamu's emotional presentation, Abraham J. Bonowitz pointed to relevant 
resources and websites, including www.otse.org. He encouraged the audience to 
join the fight against wrongful convictions and racial injustice in Ohio.

(source: buchtelite.com)






MISSOURI:

Execution Drug Supplier Won't Say If It Alerted Financial Crimes Unit


Missouri paid a family-run pharmacy in Oklahoma more than $30,000 in cash for 
execution drugs. Federal law requires recipients of large amounts of cash alert 
a federal financial crimes unit - but the pharmacy isn't saying whether it did.

Over the past 2 1/2 years, the state of Missouri has handed out $250,000 in 
cash to members of an execution team in an effort to keep their identities 
hidden. Its methods have raised questions about whether the state has followed 
federal law - but also whether at least 1 of the recipients of the cash 
payments complied with the law.

Most of the execution team payments were in increments of several thousand 
dollars. But one recipient, a pharmacy in Oklahoma that provided drugs for 
several executions, received payments of $11,091.

As BuzzFeed News revealed last week, the state has not been alerting the 
Internal Revenue Service to the payments. Experts said the state's methods 
raise the risk that the recipients could be evading taxes, and is likely in 
violation of federal tax law.

Further investigation of the "confidential execution team member receipts" 
reveals another potential legal issue. Anytime more than $10,000 in cash 
changes hands, the recipient is obligated to inform the Treasury Department's 
Financial Crimes Enforcement Network (FinCEN), which investigates money 
laundering.

The Apothecary Shoppe, the pharmacy that received 2 cash payments of $11,091, 
apparently would have been subject to the law, an expert who spoke with 
BuzzFeed News explained, and therefore required to alert the Financial Crimes 
Enforcement Network of the payments.

"If any one of the payments was more than $10,000, then they should have made 
the filing with FinCEN," said Bryan Camp, a former IRS employee who is now a 
law professor at Texas Tech.

Attorneys have sometimes balked at the requirement of alerting the financial 
crimes unit of large cash payments, arguing it violates attorney-client 
privilege and their code of ethics. But a federal appeals court disagreed in a 
1992 case, holding that an attorney had to disclose the information to the 
unit.

The penalties for not alerting the unit would be the same penalties the state 
could face for not disclosing the payments to the IRS. The penalties are 
relatively modest, starting at $100. But the penalties can add up, and 
increases if the violation was intentional.

The Apothecary Shoppe is currently under a court-ordered receivership. The 
receiver did not answer when asked if he would look into whether the pharmacy 
had alerted the financial crimes unit, or paid taxes on the large amount of 
cash it received. Since Missouri did not issue 1099s, the IRS would have no way 
of knowing to check for tax payments on the payments.

The pharmacy began supplying for executions in November 2013. In the 1st 
execution, the pharmacy was first paid $8,000. The state then increased its 
payments to the pharmacy to $11,091 per execution for another 2 executions. A 
corrections official testified that the extra cost was to pay for testing of 
the drug before it would be used.

In total, the Apothecary Shoppe received $30,182 for 3 executions.

The other members of the state's execution team did not meet that threshold in 
a single transaction. But other members cumulatively received well over $10,000 
in cash. The law requires alerting the financial crimes unit if the payments 
are more than $10,000 in one "or more related transactions." A tax expert 
BuzzFeed News spoke with said it's unclear if the payments counted as "related 
transactions" for separate executions - meaning it's unclear if they would also 
need to alert the financial crimes unit.

In late 2013, St. Louis Public Radio discovered the pharmacy was selling drugs 
to Missouri despite not being licensed to do so in the state. Shortly 
thereafter, the pharmacy was sued by a death row inmate facing execution. He 
claimed the drugs that the Apothecary Shoppe was making would likely put him 
through severe pain.

The case was settled out of court. The terms were confidential, but the 
pharmacy agreed to not sell drugs for any more executions. The Apothecary 
Shoppe has refused to discuss its involvement in Missouri's executions, and the 
state found a new drug supplier.

Since then, the Apothecary Shoppe has defaulted on loans from the bank and 
their board resigned en masse. The bank sued the pharmacy, and put in place 
David Rhoades, a receiver who specializes in fraud.

Rhoades initially declined to comment on if the pharmacy paid taxes on the 
cash, and if it alerted the financial crimes division, since it took place well 
before his tenure. But when BuzzFeed News pointed out that the IRS could 
collect on the taxes, or could penalize the pharmacy if it did not alert the 
financial crimes division, Rhoades offered a brief statement.

"Regardless of what form revenue takes, it would be typical that it is recorded 
as income and therefore included in the tax preparation," Rhoades said.

Although he added, "I do not believe that it is a current issue for the 
pharmacies," Rhoades would not specifically answer questions as to whether the 
pharmacy paid taxes on the payments or alerted the financial crimes division.

The Department of Corrections did not respond when asked for comment. However, 
the director of the Department of Corrections, George Lombardi, was asked to 
explain the cash payments before the state legislature this week.

Lombardi could not point to an exemption that allowed the department to not 
issue 1099s, but defended its practice nonetheless.

"Is it your understanding that there is some sort of exemption for the 
department of corrections to skirt that federal requirement?" Rep. Jeremy 
LaFaver asked.

"It is my understanding that giving 1099s to these individuals would reveal who 
they were, and would mean the end of the death penalty, because these 
individuals wouldn't do it," Lombardi said.

Gov. Jay Nixon, who oversees the department of corrections, declined to 
comment.

(source: BuzzFeedNews)

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

Paul Wieland leads unlikely coalition to end death penalty


I knew Kent Heitholt, the late sports editor of the Columbia (Mo.) Daily 
Tribune, who was beaten to death on Halloween night 2001 in the parking lot of 
his paper. Kent was a big, tall man, probably close to 300 pounds. He was a 
nice person, a pro at his job and pretty mild mannered.

He was set upon by some punks who beat and strangled him.

One of those accused of the killing, Ryan Ferguson, was a 17-year-old high 
school student. Based on the testimony of a childhood friend, who himself 
pleaded guilty to 2nd-degree murder in the case, and the testimony of a 
janitor, Ferguson was arrested in early 2004 and convicted in 2005. By then a 
freshman at Mizzou, he was sentenced to 40 years for the killing.

In November 2013, Ferguson's conviction was vacated by a Missouri Court of 
Appeals after the 2 witnesses admitted lying on the stand during Ferguson's 
trial.

Kent lost his life. Ferguson lost nearly a decade of his.

Anytime there's news of prisoners wrongly accused or freed, or a discussion 
about the fairness of the death penalty, I think about Kent and the double 
tragedy of his case.

Last week was one of those times as a Missouri Senate committee took up a bill 
to formally repeal the death penalty in our state.

State Sen. Paul Wieland (R-Imperial) is the main sponsor and spokesman for the 
bill.

Wieland, a devout Catholic, is one of the most ardent and consistent pro-life 
members of the Legislature.

He is out front of a movement that may be pushed forward by an odd alliance of 
classic pro-lifers and government-can't-do-anything-right believers.

In the past, Republicans generally have been pro-death penalty and pro-law and 
order, which aren't necessarily the same thing, but which have a large overlap.

For decades, GOP candidates in campaigns have tried to paint Democrats as being 
more concerned about the rights of criminals than police officers.

So how have the Republicans come to be the party of no-death penalty? Because 
the party's extreme edge - hard as that may be to identify - has come full 
circle.

That element of the GOP has become so virulently anti-government (even as it 
presides over it) that it doesn't trust anything the government does, including 
executing people.

That growing attitude, coupled with some high-profile exonerations of people on 
death row, has joined the always pro-life forces to move this bill forward.

There are practical considerations, too, such as the potentially millions of 
dollars in legal costs it takes to execute a prisoner, dragged out over 2 
decades or more. There also is a school of thought that says execution is too 
easy for them, that suffering in prison for 30 or 40 years is stronger 
punishment.

What I would call the classic pro-life stance has never differentiated which 
lives it finds sacred. The Catholic Church has been as adamant in its 
opposition to the death penalty as it has been to abortion or euthanasia. It's 
a 1-sentence stance - only God can make that decision.

To his credit, Wieland has been consistently pro-life. He and his wife, Terri, 
sued the federal Department of Health and Human Services in 2013 when Obamacare 
regulations forced them to accept health insurance that included contraception 
and abortion-inducing drug coverage. At the time, he said he filed the suit on 
behalf of his 3 daughters and his family's beliefs.

A federal judge threw the case out in 2014, ruling that the Affordable Care Act 
(Obamacare) superseded state law that allowed an opt-out of such coverage. The 
Wielands appealed and won that appeal in 2015, allowing the case to go forward. 
It has not yet been resolved.

It's always been a curious thing to watch many conservatives pledge their 
pro-life credentials on abortion to voters, but at the same time favor the 
death penalty.

For the religiously inclined, the Bible doesn't offer a clear answer. The Old 
Testament offers contradictory guidance. There are numerous references to "an 
eye for eye" which seem to endorse retaliation.

That sentiment is contradicted in Romans 12:19: "Vengeance is mine; I will 
repay, saith the Lord." In the New Testament, Matthew 5:38 references the 
original eye-for-an-eye quote and refutes it, urging disciples to turn the 
other cheek to an enemy.

Most of us, fortunately, have never been in the situation of the Heitholt 
family, or the thousands of other families affected by horrible crimes. It 
would strain anyone's beliefs to see a criminal smirking for his mug shot if 
his victim had been one of your loved ones.

Wieland and his church take a simple approach - all human life is sacred, 
period.

Senate Bill 816 was voted out of committee with a "do pass" recommendation last 
week. It may not become law, but you have to hand it to Wieland, who has 
introduced similar bills in past sessions, for consistently putting his beliefs 
on the line.

(source: Column, Patrick Martin; myleaderpaper.com)






KANSAS:

Kansas v. Carr: Procedure and the Death Penalty at the Supreme Court


The debate over the constitutionality of the death penalty took on a renewed 
vigor last term in Oklahoma's lethal injection case, Glossip v. Gross, in which 
Justice Breyer in dissent suggested it "highly likely that the death penalty 
violates the Eighth Amendment." While the Court decided 5-4 that Oklahoma's use 
of the lethal injection drug midazolam - part one of a 3-part drug cocktail 
meant to numb an individual from the pain caused by the other drugs working to 
stop the heart - was constitutional, the close vote and impassioned dissent 
highlighted a growing skepticism of capital punishment in the Court. 
Flash-forward to this term and the issue was high on the docket with four cases 
raising procedural questions about the death penalty. 2 have since been 
decided.

First, in Hurst v. Florida the Court deemed unconstitutional a sentencing 
scheme that charged the judge, and not a jury, with making the ultimate 
sentencing decision in capital cases. Decided 8-1, Hurst seemed to indicate the 
direction the Court would take in its three remaining death penalty cases. 
Then, just over a week later in Kansas v. Carr/Kansas v. Gleason, the Court 
voted 8-1 against recognizing additional Eighth Amendment procedural 
protections. What accounts for this difference? And what do these inconsistent 
results spell out for the remaining two death penalty cases, Foster v. Chatman 
and Williams v. Pennsylvania?

In Carr, the Kansas Supreme Court vacated three death sentences - those of the 
Carr brothers and of Gleason, a defendant in an unrelated case - because of the 
lower court's failure to affirmatively instruct the jury that mitigating 
factors need not be proved beyond a reasonable doubt, and in the case of the 
Carr brothers, not allowing severance at the sentencing phase of trial. 
Kansas's attorney general challenged this decision, and the Court granted 
certiorari on the question of whether the Eighth Amendment demands the 
procedural protections recognized by the Kansas Supreme Court.

It became readily apparent that the respondents in Carr were in trouble. 
Justice Scalia halted oral argument to recount, at length, the grisly details 
of the Carr brothers' crime spree, known as the Wichita Massacre. It came as no 
surprise then, when the opinion for the case was handed down, that Justice 
Scalia, writing for the majority, used over 2 pages of his 18-page opinion to 
again hash out the horrendous facts. In the remaining pages, the Court found 
little trouble in dispensing with the respondents' arguments.

The Court first dismissed a jurisdictional objection brought by Gleason that 
the Kansas Supreme Court decision was based on adequate and independent state 
grounds. Next, the Court ruled that the instruction originally given at 
sentencing was sufficient and that "no juror would reasonably have speculated 
that mitigating circumstances must be proved by any particular standard, let 
alone beyond a reasonable doubt." The Court, legally dissecting the wording of 
the original instruction to reach its determination of what a reasonable juror 
would conclude, confusingly followed said determination with a reminder that 
jurors do not undertake such detailed analysis of jury instructions.

The Court likewise refuted respondents' argument that the joint sentencing 
proceeding for the Carr brothers violated their Eighth Amendment right to an 
"individualized sentencing determination." Again pointing out the "almost 
inconceivable cruelty and depravity" of the crimes, the Court concluded the 
joint sentencing proceeding was not fundamentally unfair in this instance and 
suggested instead its benefit in promoting reliability and consistency.

In the lone dissent, Justice Sotomayor did not challenge the majority's legal 
conclusions, but instead focused her disagreement on the grant of certiorari. 
Pointing out the state courts' unique function as "laboratories for 
experimenting with how best to guarantee defendants a fair trial," she feared 
the Court's intervention would act to dissuade states from implementing 
protections above and beyond the constitutionally mandated minimum.

Juxtaposing the result in Carr with recent Court decisions on the death penalty 
reveals a palpable shift. Justice Breyer, who previously called into question 
the constitutionality of the death penalty writ large, now sides with the 
majority. And while the issues did not go to the heart of capital punishment's 
validity, it seems unusual, just one week after guaranteeing increased 
protections in Hurst, that not one Justice argued that Carr's procedural 
protections might be constitutionally mandated.

It is possible that the shocking facts of Carr, which Justice Alito described 
as "some of the most horrendous murders that I have seen in my 10 years here," 
are accountable for this result. Undeniably, the facts played a part, with 
Justice Scalia sparing no effort in his opinion to remind the reader of their 
horrendous nature. But perhaps equally to blame is the nature of the procedural 
constitutional issues being raised. Unlike Glossip, which divided the Court 5-4 
with a substantive question on "cruel and unusual punishment," procedural 
claims tend to be less compelling and pathos-laden than their substantive 
counterparts. The question of jury instructions and individualized sentencing 
determinations seem relatively insignificant, especially when presented in a 
case with such unsympathetic defendants. It is very possible that in Carr, the 
procedural questions were simply diminished by the overwhelming shadow of the 
facts.

What do these 2 different results in Hurst and Carr mean for the 2 death 
penalty cases currently pending before the Supreme Court? Both of the yet 
undecided cases involve questions of procedural protections in capital 
sentencing. Foster asks whether the Georgia courts erred in failing to 
recognize racially motivated juror strikes under Batson v. Kentucky. Williams 
asks whether an appeal judge's potential conflict of interest rose to the level 
of constitutional violation.

On their face, both issues - whether it is racial discrimination or bias in the 
judiciary - seem more cogent than the ones raised in Carr, and neither case 
involves crimes rising to the level of the Wichita Massacre. But while the 
death row inmates in Foster and Williams may still have hope in receiving a 
favorable decision from the Court, 1 thing is clear: The future of the death 
penalty at the Supreme Court is anything but certain.

(source: acslaw.org)






CALIFORNIA:

San Jose: DA to seek death penalty in brutal baby killing


Santa Clara County District Attorney Jeff Rosen will seek the death penalty 
against a man charged with forcing a 16-month-old boy into a sex act so brutal 
that it tore up his lips and throat before suffocating him, the Mercury News 
learned Wednesday.

Rosen's decision to pursue a capital case against 42-year-old Alejandro 
Benitez, in an era when opposition to the death penalty continues to rise in 
California, is the 2nd time he has opted for the ultimate punishment against a 
defendant since taking office 5 years ago. Rosen is also seeking the death 
penalty against Antolin Garcia-Torres for the alleged 2012 kidnapping and 
killing of 15-year-old Sierra LaMar, who disappeared just north of Morgan Hill 
on her way to her school bus stop.

Rosen issued a short statement after prosecutors notified the court of his 
decision Wednesday afternoon. An autopsy revealed that the boy, Kaden Bernard, 
had over 40 different injuries -- both old and new, internal and external -- 
covering his body from head to toe.

"This was a nightmarish and extremely violent crime against the most vulnerable 
of all victims," Rosen said. "It is the worst of the worst."

No decision regarding the death penalty has been made in another chilling case 
in which prosecutors charged a 22-year-old San Jose man last month with raping, 
beating and suffocating a 2-year-old boy as the child's mother slept in another 
room.

Benitez has pleaded not guilty to charges of murder in the commission of a 
serious and dangerous felony, which in this case is a lewd act on a child. His 
court-appointed lawyers, who had presented their case for life without parole 
to senior prosecutors on Rosen's special death penalty advisory committee, 
expressed frustration Wednesday. They pointed out that Rosen's decision came on 
the same day the National Registry of Exonerations reported a record 149 
exonerations in 2015, including 5 inmates who had been sentenced to death. None 
of the 5 were in California.

"On the very day a report was issued showing five people sentenced to death 
were exonerated last year alone, we are extremely disappointed with Mr. Rosen's 
decision to seek the death penalty," said Brian Matthews, the lead attorney for 
Benitez. "His decision validates a deeply flawed system and disregards the 
substantial cost to the public."

The toddler's ordeal began the morning of April 11, 2012, when his mother 
dropped him off at the East San Jose home of baby sitter Juana Ayala. That 
afternoon, Ayala called police to report that the child had choked while 
drinking the bottle of milk his mother had left for him. Semen consistent with 
Benitez' DNA profile was later found on the boy's clothing.

Rosen's announcement comes as a recent Field poll found that 47 % of voters 
favor replacing the death penalty with life in prison without the possibility 
of parole in California, up from 40 % in 2014.

At the same time, the poll shows that 48 % of registered voters would support 
proposals to accelerate the state's notoriously slow system of resolving death 
penalty appeals to pick up the pace of executions. However, support for 
speeding up the process has dropped since from 52 % in 2014. Death penalty 
opponents are preparing a measure for the November ballot that would abolish 
California executions, while advocates of capital punishment are proposing a 
conflicting measure to reform and speed up the death penalty system. If voters 
were to approve both measures in November, the one with the most votes would 
settle the death penalty question in California for now.

Benitez's trial is unlikely to start before the November election, meaning if 
the ban passes, the prosecution would be forced to stop seeking the death 
penalty.

California voters rejected the last effort to abolish California's death 
penalty, in 2012, by a 52 to 48 % margin. However, the ban was approved in 
seven of the 9 Bay Area counties, except in Solano and Napa. In Santa Clara 
County, the proposed ban passed with 54.7 % support.

The state has executed 13 inmates since 1978, but nearly 750 remain on death 
row, the largest in the nation.

Matt Cherry, executive director of Death Penalty Focus, which is backing the 
measure to abolish capital punishment, said pursuing the Benitez trial will 
cost Santa Clara County alone an extra $1 million. Last year, the state 
Legislative Analyst's Office found that banning the death penalty would reduce 
state and local costs associated with murder trials, appellate litigation and 
prisons by about $150 million annually.

But Kent Scheidegger, legal director of the Criminal Justice Legal Foundation, 
praised Rosen's decision.

"It's certainly not a waste if it's one of the worst of the worst crimes," 
Scheidegger said. "That's what a DA should do."

(source: Mercury News)






WASHINGTON:

Push For Vote On Death Penalty Fizzling Out In Washington


An effort to abolish the death penalty in Washington state this year seems to 
be losing steam.

This fall, the Washington Association of Prosecuting Attorneys called on 
lawmakers to put the death penalty up to a statewide vote.

But in a preview of the legislative session, leaders from both parties said 
they are too busy working on education funding.

It's disappointing news to King County Prosecutor Dan Satterberg. He points 
out, it has been 41 years since Washington voters weighed in on the topic.

Satterberg: "The question about the death penalty is not 'is it some day going 
to go away,' the questions is how. The Legislature could vote on it, but 
they've never been able to get a bill out of committee. The Supreme Court could 
rule on its constitutionality, but that hasn't happened."

The other option is a voter referendum campaign, but Satterberg says the 
prosecutor's group is not in a position to pay for that. Meanwhile, nine 
inmates currently on Washington's death row are protected by a moratorium on 
the death penalty by Governor Jay Inslee.

(source: KUOW news)