[Deathpenalty] death penalty news----OHIO, COLO., ORE., USA

[Rick Halperin]

Feb. 18



OHIO:

Jury selection begins in Eric Hendon's triple-murder trial; Hendon faces death 
penalty


Jury selection began - for the 2nd time - in Eric Hendon's triple-murder trial 
Wednesday.

Summit County Common Pleas Judge Amy Corrigall Jones dismissed the 1st jury 
last October when defense attorneys saw evidence they thought could potentially 
exonerate Hendon. In the 5 months since, defense attorneys, prosecutors and 
surviving victim Ronda Blankenship and her attorney have been battling over 
additional personal information defense attorneys have sought from Blankenship. 
Jones, however, was determined that the trial would go forward, despite several 
pending issues.

"I'm not going to continue the trial," the judge said Tuesday during the final 
hearing before jury selection started.

Hendon, 33, of Akron, is charged with aggravated murder in the New Year's Eve 
2013 shooting deaths of a Barberton man and 2 teenage children in a 
home-invasion robbery for marijuana and cash. He faces the death penalty. 
Michael Hendon, 24, his younger brother, is a co-defendant and was convicted in 
August and sentenced to life in prison without parole.

A pool of 149 potential jurors in Eric Hendon's trial answered jury 
questionnaires Wednesday that asked them about their backgrounds, knowledge of 
the case and thoughts on the death penalty.

Defense attorneys and prosecutors will begin individual interviews with jurors 
Thursday, a process that is expected to last several weeks. A jury is expected 
to be seated by March 17, with the trial starting March 22. The trial could 
last up to a month.

A major pending issue is whether Jones will grant a defense request to sanction 
prosecutors for not providing information and being uncooperative, allegations 
the prosecutors deny.

The defense is asking Jones to not allow Blankenship, who was shot in the head 
and lost an eye after being stabbed in the face, to testify.

If Blankenship is permitted to testify, the case hinges on how well she can 
remember the events of that night and whether any treatment she received, 
exposure to media reports or discussion with detectives might have skewed her 
recollection, said Brian Pierce, 1 of 2 defense attorneys for Eric Hendon.

"It comes down to memory and her ability - with this horrible trauma - to be 
able to accurately and reliably identify someone," he said.

Jones denied a request by defense attorneys Tuesday for the court to provide a 
neurologist to review Blankenship's medical records and determine if her 
injuries could have affected her memory. The judge, however, granted a defense 
request for an anesthesiologist to examine the potential impact of the drugs 
prescribed to Blankenship.

The defense's witness list has 48 potential witnesses, which includes 
Blankenship, numerous police officers, a forensic computer expert and a 
memory-identification expert.

Assistant prosecutors Teri Burnside and Dan Sallerson plan to call Blankenship, 
a doctor with the Summit County Medical Examiner's Office, police officers, 
paramedics and crime-lab technicians.

Jones recently ordered Michael Hendon transferred from Mansfield Correctional 
Institution to the Summit County Jail. It is unclear whether he will be called 
as a witness. He has a pending appeal and could plead the Fifth Amendment 
against self-incrimination if he takes the stand.

Pierce said he and Don Malarcik, his co-counsel, won't decide until the trial 
is underway whether Eric Hendon should testify.

Jones asked prosecutors and defense attorneys during Tuesday's hearing to 
discuss whether a plea could be reached, but this was unsuccessful. Pierce said 
Hendon wants a jury to decide his case.

"He's not interested in an offer," Pierce said.

(source: Akron Beacon Journal)






COLORADO:

Death penalty sought for inmate charged in fatal attack


Prosecutors are seeking the death penalty against an inmate accused of stabbing 
a correctional officer to death and trying to kill another.

Crowley County District Attorney Jim Bullock announced Wednesday he will seek 
the death penalty against convicted child rapist Miguel Alonso Contreras-Perez 
in the death of Sgt. Mary Ricard at the Arkansas Valley Correctional Facility 
on Sept. 24, 2012. Perez also is accused of stabbing Sgt. Lori Gann the same 
day.

The Denver Post reports (http://goo.gl/WsRSXi ) Contreras-Perez has fired his 
state public defenders and is planning to represent himself.

Ricard's daughter, Katie Smith, says she has asked Bullock many times not to 
seek the death penalty, which she does not agree with. Bullock says he can't 
comment on his decision because the judge has barred any statements about the 
case outside of court.

(source: Associated Press)






OREGON:

Trial date nears for 3rd suspect in horrific Eugene murder case


Nearly 2 years after a Lane County jury sent David Ray Taylor to Oregon's death 
row for the 2012 slaying of Eugene resident Celestino Gutierrez Jr., a trial 
date is nearing for another ???suspect in the case.

Pretrial hearings began Wednesday in Lane County Circuit Court for Army veteran 
A.J. Scott Nelson of Portland, who faces a potential death sentence if he is 
found guilty of aggravated murder. Jury selection is scheduled to begin March 
29.

Nelson was just 22 when he allegedly helped Taylor, a Eugene resident who was 
56 at the time, carry out a plan to kill Gutierrez in order to steal the 
victim's car for use in a bank robbery.

A 3rd person charged in the case, then-18-year-old Mercedes Crabtree of 
Portland, is serving a lifetime prison sentence for her role in the plot.

Nelson has spent the past 3 1/2 years in the Lane County Jail, in part because 
he didn't begin working with his current defense team until mid-2014 - after 
telling a judge that he didn't trust the original set of lawyers appointed to 
represent him.

1 pretrial issue to be worked out surrounds the Lane County Sheriff's Office's 
practice of audio-recording Nelson's telephone calls and social visits at the 
jail, and sharing those recordings with police.

Defense attorney Laurie Bender on Wednesday argued that the jail's practice is 
illegal and that recording Nelson's conversations for potential investigative 
purposes without first obtaining a warrant amounts to "a suspicionless search."

Bender asserted her client is one of a "select few" jail inmates subject to 
close scrutiny of their phone calls and visits.

Bender asked Lane County Circuit Judge Debra Vogt to prohibit prosecutors from 
presenting any evidence at trial that investigators may have gleaned through 
their review of the recordings.

Prosecutor David Schwartz, however, maintained that it is proper and legal for 
authorities to record inmate phone calls and visits.

Sheriff's Lt. Steve French testified Wednesday that the jail records most 
inmate calls and visits "for the safety and security of the facility," and that 
inmates are well aware of that fact.

Vogt is expected to make a number of rulings in the coming weeks, several in 
response to defense motions urging her to prohibit prosecutors from seeking the 
death penalty if Nelson is convicted of aggravated murder.

Nelson's attorneys have asked Vogt to exclude the death penalty as a potential 
sentencing option because of injuries Nelson suffered in 2009 when his squad's 
armored vehicle was destroyed by a roadside bomb during a combat tour in 
Afghanistan.

The lawyers also have argued in court documents that Vogt should declare the 
death penalty unconstitutional and bar it in their client's case because of 
"evolving standards of decency."

Additionally, Nelson's lawyers want the judge to allow them to question 
prospective jurors 1 by 1 - outside the presence of others in the jury pool - 
regarding their views on capital punishment and race, in an attempt to identify 
any racial bias that may exist among the people who will decide the fate of 
Nelson, who is black.

Evidence presented during Taylor's trial indicated Nelson played a central role 
in Gutierrez's murder and dismemberment.

Crabtree, whose plea deal with prosecutors requires her to serve as a state 
witness against both Taylor and Nelson, testified at Taylor's trial that Nelson 
- at Taylor's direction - bound Gutierrez with electrical wire and a belt, 
pushed a crossbow bolt through 1 of the victim's ears and choked him.

After mocking Nelson for failing to kill Gutierrez swiftly, Taylor wrapped a 
metal chain around Gutierrez's neck and pulled on it until the victim stopped 
breathing, Crabtree told the jury.

Crabtree said Nelson and Taylor then dismembered Gutierrez's body in a bathtub 
in Taylor's home off Highway 99 in Eugene. Nelson went into a brief seizure 
during the process and came out of it confused about what he saw in the 
bathroom, Crabtree testified.

(source: Register-Guard)






USA:

Fate of death penalty in hands of next justice


In September and October, Justice Antonin Scalia told audiences at 2 different 
law schools it would not surprise him if the death penalty were ruled 
unconstitutional while he was still on the court. Scalia noted Justice Stephen 
Breyer's recent dissent in Glossip v. Gross, a case in which Breyer said the 
court should consider the issue of whether the Eighth Amendment requires an end 
to capital punishment in America. Scalia had previously identified himself as 
the 5th vote on a court divided 4 to 4 on the issue. He could not have known 
his sudden death a few months later might be the vehicle for that very 
eventuality.

All of the Republican candidates can be expected to nominate a candidate for 
the Supreme Court who will follow Scalia's lead in upholding the 
constitutionality of capital punishment. Of the remaining presidential 
candidates, only Bernie Sanders opposes the death penalty and can be counted on 
to appoint a Supreme Court candidate who would become the 5th vote to abolish 
capital punishment. It is less clear how Hillary Clinton - a death penalty 
proponent - would expect her nominee to answer the question, because no one has 
bothered to ask her. If Clinton wins and nominates a candidate with a strong 
civil rights background, the death penalty will likely be abolished. However, 
if a victorious Clinton nominates a former prosecutor, like Loretta Lynch or 
Eric Holder, it would likely mean the U.S. continues its ignominious membership 
in a dwindling group of backward nations that continue to execute their own 
citizens. Unfortunately, Hillary Clinton has a 20-year history of enacting 
criminal justice policy that exploits the public's fear of crime and invariably 
results in a racially disparate impact on poor minorities. The Clintons' 
championing of the 1994 Crime Bill (which contributed to the mass incarceration 
of poor minorities) and the 1996 Antiterrorism and Effective Death Penalty Act 
(which raised procedural bars to claims of actual innocence) are both examples 
of the Clintons' pandering to the public's tough-on-crime sensibilities to 
achieve political ends. This has been their pattern since their days in 
Arkansas.

Earlier this week, Clinton made headlines for barking like a dog while telling 
a folksy story about her husband's early campaigns in Arkansas. The barking 
incident was an unintended reminder of the Clintons' involvement in the 1992 
execution of a 250-pound lobotomized man-child named Ricky Ray Rector. A 1993 
New Yorker article by Marshall Frady, "Death in Arkansas," described how Rector 
repetitively performed a little shuffle dance, and alternatingly giggled to 
himself like a child or barked like a dog, as he waited in his cell to be 
executed on Arkansas' death row. Bill Clinton, who was embroiled in a sex 
scandal that threatened to derail his presidential campaign, had returned to 
Arkansas to personally preside over Rector's execution.

Christopher Hitchens described Rector as "a lumpen failure of a man" who, after 
killing a police officer turned the gun on himself, destroying a good portion 
of his brain in the process. Rector survived the suicide attempt as a different 
person with the mental faculties of a small child.

Frady also described the frantic efforts of one of Rector's lawyers to reach 
Clinton on the day of the execution. Jeff Rosenzweig had grown up with Clinton 
in Hot Springs, Ark., where his father had been Clinton's pediatrician. When he 
finally reached Clinton late in the afternoon, Rosenzweig explained the 
severity of Rector's mental deficits. Executing Rector, Rosenzweig told 
Clinton, would be the equivalent of executing a child. Rosenzweig knew it was 
an uphill battle given the political pressure Clinton was under, but he hoped 
his old friend "wouldn't want to be seen as merciless." Clinton wouldn't budge.

The execution proceeded that evening after a one-hour delay, punctuated by 
Rector's loud groans, as prison officials struggled to find a usable vein. The 
medical team finally had to slash into his arm with a scalpel in order to find 
a vein capable of carrying the lethal chemicals into his massive body. Once the 
chemicals started to flow, it took Rector 19 minutes to die amid his 
intermittent gasps for air.

Rector had been sacrificed on the altar of the Clintons' political ambitions.

Hillary Clinton's key decision-making role in her husband's 1992 campaign is 
well-documented, yet no one has ever bothered to ask her about the killing of 
Rector. It's about time someone did, and long before she's in a position to 
nominate someone to fill Scalia's seat on the U.S. Supreme Court. (source: Nat 
Hentoff is a nationally renowned authority on the First Amendment and the Bill 
of Rights. Nick Hentoff is a criminal defense and civil liberties attorney in 
New York City----The Courier)

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

The Human Toll of Antonin Scalia's Time on the Court----Blacks, Latinos, and 
poor whites suffered because of his draconian approach to criminal punishment.


In the days since Antonin Scalia's death, he has been duly recognized as one of 
the most impactful justices in the Supreme Court???s history. A critical part 
of his troubling legacy has long been staring us in the face, although it 
finally started receiving the public scrutiny it deserves in recent years. As 
draconian punishments became the norm over the last 3 decades, the Supreme 
Court largely rubber-stamped these practices. Justice Scalia played a key role 
in this process, as his hardline stances on criminal punishment significantly 
contributed to mass incarceration, numerous executions, and systemic racial 
discrimination. Scalia was an outspoken supporter of harsh punishments and 
wanted the court to take an even more hands-off attitude toward so-called 
"tough on crime" laws.

Not long after he made it onto the court in 1986, Scalia???s influence on these 
issues began to be felt. In McCleskey v. Kemp, one of the first cases he heard, 
anti-death penalty advocates brought compelling evidence of pervasive racial 
discrimination in Georgia's administration of capital punishment. A 
sophisticated statistical study demonstrated that sentencing was tied to the 
race of the victim and offender. All other factors being equal, blacks who 
killed whites were the likeliest to receive a death sentence. Justice Scalia 
was unfazed. During oral arguments, he derisively asked: "What if you do a 
statistical study that shows beyond question that people who are naturally 
shifty-eyed are to a disproportionate extent convicted in criminal cases, does 
that make the criminal process unlawful?"

John Charles Boger, who represented the black death-row prisoner in McCleskey, 
responded by pointing to the obvious: "This is not some sort of statistical 
fluke or aberration. We have a century-old pattern in the state of Georgia of 
animosity [toward black-Americans]." Scalia and 4 other justices nonetheless 
chose to analyze discrimination out of its social context, including in cases 
from Southern states with a lengthy history of slavery, segregation, and 
lynchings.

Scalia was in the majority as the court held that statistical proof of systemic 
discrimination in the death penalty is irrelevant. A defendant must instead 
prove intentional discrimination in his own case, an almost impossible standard 
without considering systemic patterns. Many experts consider McCleskey among 
the worst Supreme Court decisions of all-time. It largely closed the door to 
statistical evidence as a means of challenging systemic discrimination in 
criminal punishment.

Scalia would also play a significant role as the Supreme Court licensed 
ruthless sentences leading America to world record incarceration levels. He 
wrote the operative part of the influential Harmelin decision, a 1991 plurality 
opinion holding that the Eighth Amendment ban on "cruel and unusual 
punishments" does not require that a prison sentence be "proportional" to the 
crime. The court thus upheld a life-sentence for cocaine possession.

Scalia again was in the majority in Lockyer v. Andrade, a 2003 case upholding a 
50-year-to-life sentence under California's 3-strikes-law for a man who 
shoplifted videotapes worth $153 because he had prior convictions for petty 
theft, burglary, and transporting marijuana. Erwin Chemerinsky, who zealously 
represented the prisoner, was in tears as the media asked him about his 
reaction to the court's inhumane decision.

McCleskey, Harmelin, and Lockyer were all 5-4 decisions that could have been 
decided otherwise if Scalia had thought differently. Naturally, he was not a 
swing vote but a sure one for harsh justice.

While the justices might not have been able to stop mass incarceration 
singlehandedly, they definitely could have limited it. Indeed, the court's 
belated decision in Brown v. Plata, has contributed to reducing California's 
incarceration rate. In this 2011 case, the court ordered California to reduce 
its dramatically overcrowded prison population because "depriv[ing] prisoners 
of basic sustenance, including adequate medical care, is incompatible with the 
concept of human dignity." In a vehement dissent, Scalia charged that this was 
"a judicial travesty" and that the majority was "wildly" overstepping its 
authority.

Similarly, he fiercely dissented in other rare cases where the court decided to 
check ruthless punishments. If it had been up to Scalia, it would still be 
constitutional to execute mentally retarded people or teenagers, not to mention 
sentence teenagers to life imprisonment without the possibility of parole for 
homicide or any other crime.

This aspect of his legacy has been overshadowed by the common misconception 
that "at least Scalia was quite fair to criminal defendants." To his credit, he 
concluded in several procedural cases that juries, not judges, must decide if 
all facts leading to harsher punishment are proved beyond reasonable doubt. In 
various other cases, he found that police searches went too far. But these are 
exceptions. He regularly took an extremely narrow view of due process, such as 
when he argued that the Constitution does not create "a right to demand 
judicial consideration of newly discovered evidence of innocence." Scalia 
further suggested that executing an innocent person would not be 
unconstitutional per se. More than 1,300 prisoners were executed while Scalia 
was on the Supreme Court though he was persuaded that his colleagues created 
unjust procedural hurdles to executions by baselessly expanding the rights of 
death row prisoners.

Had Scalia had his way, far more people would have been executed during his 
tenure and the court would have adopted an even more accommodating approach to 
mass incarceration. In his view, merciless punishments were just deserts for 
"evildoers." He scoffed when fellow justices advanced a more nuanced view of 
criminal behavior or occasionally suggested that draconian punishments were 
dehumanizing. He was certain that the court already cared too much about people 
who faced the death penalty or endless prison sentences. Justices who disagreed 
with him were judicial activists who refused to defer to elected branches of 
government. Of course, Scalia did not do so himself in multiple cases. 
Tellingly, he voted to strike down campaign finance legislation in Citizens 
United. He likewise voted twice, unsuccessfully, in favor of eviscerating the 
democratically enacted Affordable Care Act.

Scalia still cultivated the image of an impartial judge whose decisions were 
not shaped by his personal values. He was the originalist, the defender of 
procedural rigor, and the anti-judicial activist. If so, he may have been the 
sole justice in history whose moral values did not play a major role in his 
judicial philosophy. Judges are only human.

Scalia's writing sheds additional light on why he embraced merciless 
punishments. In a 2002 article, he insisted that God wants us to execute 
murderers. He nevertheless began his essay by claiming that his moral values 
have no bearing on how he rules in capital cases. A few paragraphs later, 
however, Scalia wrote "I could not take part in [the death penalty] process if 
I believed what was being done to be immoral," thereby contradicting his 
disclaimer.

Besides being among the countries that execute the most prisoners alongside 
authoritarian regimes, America nearly has the highest incarceration rate 
worldwide. Blacks, Latinos, and poor whites are the main targets of draconian 
punishments, which are heavily shaped by race and class discrimination. This 
human toll is part of Antonin Scalia???s legacy.

(source: Mugambi Jouet is a Thomas C. Grey Fellow at Stanford Law 
School----slate.com)

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

Tsarnaev attorneys ask to be replaced for appeals process----His team said the 
switch would provide the convicted terrorist with "high-quality, cost-effective 
representation."


Dzhokhar Tsarnaev's attorneys have asked to be replaced as his "demanding" 
appeals process continues.

In a motion filed Wednesday in the U.S. Court of Appeals for the First Circuit, 
his team said the switch would provide the convicted terrorist with 
"high-quality, cost-effective representation."

Miriam Conrad, chief federal public defender in Massachusetts, and David Bruck, 
a death penalty expert and head of Washington and Lee University's death 
penalty clinic, have asked to be taken off the team after nearly 3 years as his 
legal counsel.

Replacing them would be David Patton, executive director and attorney-in-chief 
of the Federal Defenders of New York, and Gail Johnson, an attorney with death 
penalty experience based in Colorado, where Tsarnaev is incarcerated at a 
federal supermax prison.

Judy Clarke, the San Diego, California-based death penalty expert who led 
Tsarnaev's defense, would stay on temporarily to assist with the transition.

Tsarnaev's attorneys cited guidelines advising that new counsel should be 
assigned in federal death penalty appeals. Appellate lawyers will bring a fresh 
perspective because they have different specialties than trial lawyers, they 
wrote.

All of Tsarnaev???s attorneys - and Tsarnaev himself - agreed to the switch, 
they wrote.

Tsarnaev was sentenced to death last year after a jury convicted him on all 
counts against him stemming from the bombings at the Boston Marathon in 2013.

On Tuesday, they filed their notice of appeal of Tsarnaev's convictions and 
death sentence with the U.S. Court of Appeals for the First Circuit. His 
attorneys have argued that Tsarnaev could not get a fair trial in 
Massachusetts.

(source: boston.com)

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

Soft on crime turns out to be smart on crime: Column


A new report from the University of Michigan's National Registry of 
Exonerations has proclaimed 2015 as a banner year for achieving justice in 
America. A total of 149 prisoners - including 58 convicted of homicide and 5 on 
death row - were released from custody based on exculpatory evidence or the 
recognition that the Sixth Amendment right to a fair trial had been violated. 
Apparently, they were the victims of a system more interested in arrest, 
prosecution and incarceration than in justice.

The shame of wrongful conviction has captured the public's imagination. A 
ten-part Netflix documentary focusing on the plight of one Steven Avery from an 
allegedly overzealous prosecution quickly went viral. What's more, the issue of 
innocence made its way into the Feb. 4 New Hampshire Democratic presidential 
debate when Sen. Bernie Sanders argued for abolition of the death penalty based 
on his firm belief that "too many innocent people, including minorities, 
African Americans, have been executed when they were not guilty."

Many of the hundreds who have been exonerated and released from prison in the 
past several decades were prosecuted during a period of high crime rates and 
unprecedented fear. At a time when a no-nonsense, "lock 'em up" criminal 
justice policy carried the day, the nation largely turned a blind eye to 
injustices. We were far more intent on ensuring public safety than protecting 
the rights of the accused. Meanwhile, a booming economy afforded close to a 
ten-fold expansion in state and federal prison populations.

Times have changed. Crime rates are at a 50-year low, and, in part due to 
runaway correctional expenditures, a majority of states are struggling to 
balance their budgets. This dire financial situation has forced politicians to 
seek out cost-saving measures, and the low crime rate has allowed them to do so 
without much public opposition.

The focus on innocence and exoneration actually reflects a much broader 
rethinking of our criminal justice policies in the context of low crime and 
limited resources.

When crime rates were rising, the cops were handed a mandate to do whatever it 
took to arrest criminals. Now the police are being held accountable like never 
before. We are questioning their use of deadly force, and equipping them with 
body cameras to monitor their every move.

Similarly, the 1990s panic over youth and gang violence had us characterizing 
juvenile offenders as "superpredators" who were beyond redemption. The popular 
slogan "adult time for adult crime" echoed a "get-tough" approach for punishing 
kids. Recently, however, the U.S. Supreme Court abolished mandatory life 
sentences for minors. And policy makers have recommitted to the original 
philosophy of juvenile justice, prioritizing the needs of young offenders 
rather than what punishment is deserved.

The 1990s also saw the rapid spread of a penal policy patterned after a 
well-known baseball refrain - "3 strikes and you're out." This metaphorical 
approach to sentencing felons helped nearly bankrupt many states, especially 
California where "3 strikes" was most enthusiastically adopted.

Thousands upon thousands of Americans were taken prisoner in the "War on Drugs" 
declared in the early 1970s when crime rates soared. Having surrendered this 
misguided campaign, the nation is now looking more toward treatment for addicts 
than punishment, and releasing nonviolent drug offenders from prison.

POLICING THE USA

Debates show differences between Dems, GOP on police

Many, if not all, of the recent shifts in philosophy reflect the fact that we 
simply can't afford to keep millions of Americans locked behind bars. Mass 
incarceration may have contributed marginally to bringing down the crime rate, 
but it was hardly a cost-effective strategy. Rehabilitation, despite its 
limitations, is significantly cheaper and far more attractive to cost-conscious 
lawmakers and their constituents.

For several decades, ever since Richard Nixon won the White House on a "law and 
order" platform, the predominant response to crime was decidedly punitive. 
Today's proposed criminal justice reforms - from deincarceration to exoneration 
- would have been condemned as soft on crime. Whether they will prove to be 
smart on crime, as reformers have promised, one thing is for sure: They are 
frugal, and frugality is definitely in fashion these days.

(source: James Alan Fox, a member of the USA TODAY Board of Contributors, is 
the Lipman Professor of Criminology, Law and Public Policy at Northeastern 
University. Richard Moran is professor of sociology at Mount Holyoke College; 
Op-Ed----USA Today)