[Deathpenalty] death penalty news----N.H., N.C., FLA., ALA., MO.

[Rick Halperin]

Sept. 28



NEW HAMPSHIRE:

Bloodsworth advocates for abolishing death penalty


The 1st man on death row exonerated by DNA evidence returned to Portsmouth to 
screen a documentary highlighting his ordeal of being wrongfully sentenced to 
death and urged the audience to lobby to repeal the state's death penalty law.

Kirk Bloodsworth was convicted in 1985 and sentenced to die for the brutal 
murder of a 9-year-old that happened the summer before. 8 1/2 years later he 
was freed when DNA tests determined the semen found in the girl's underwear was 
not his. The DNA was later connected to Kimberly Shay Ruffner, a person 
Bloodsworth had known from his time in prison. Ruffner was serving time for 
another crime.

Bloodsworth's talk and movie screening at the Portsmouth Public Library was 
sponsored by the New Hampshire Coalition to Abolish the Death Penalty. The 
organization will once again work to lobby the coming legislature to abolish 
the death penalty in the state. While the New Hampshire House has passed 
legislation a number of times this century to abolish it, it has deadlocked in 
the state Senate the past two legislative sessions. In 2000, it passed both 
houses but was vetoed by then Gov. Jeanne Shaheen.

The documentary tells not only Bloodsworth's story starting right before the 
murder of Dawn Hamilton in Rosedale, Maryland, but it also follows him around 
Maryland in 2013 when he and others successfully lobbied the legislature and 
governor to repeal the state's death penalty law, which would have killed him 
if the DNA evidence didn't set him free.

"The death penalty is fallible. We can get it wrong," Bloodsworth says in the 
documentary "Bloodsworth: An Innocent Man."

Bloodsworth, a former Marine, works as director of advocacy for Witness to 
Innocence, a nonprofit comprised of exonerated death row inmates who work to 
repeal death penalty laws. In 2013, he spoke in Portsmouth at the South Church 
telling the story that has now become much of the focus of the documentary. He 
is 1 of 155 death row inmates who have been exonerated since 1973, but only one 
of 18 who were exonerated with DNA evidence.

His main argument is that humans can make mistakes, and these mistakes can 
result in the death of innocent people.

"Should human beings be running a death system?" he rhetorically asked the 
large crowd that gathered at the library. "The answer is no."

He quoted Freddie Lee Pitts, who was exonerated from death row in Florida. "You 
can release an innocent man from prison, but you can't release him from the 
grave."

In New Hampshire there is 1 man on death row: Michael Addison, who was 
sentenced to death for murdering Manchester police officer Michael Briggs in 
October 2006. The state Supreme Court upheld the sentence last year, though it 
is likely the case will be appealed to federal court. The last time New 
Hampshire killed someone on death row was in 1939.

Bloodsworth is scheduled to make a similar presentation in Plymouth on 
Wednesday evening and in Manchester on Thursday evening.

(source: seacoastonline.com)






NORTH CAROLINA:

Anthony Nguyen found guilty of killing Shelia Gooden, could face death penalty


Anthony Vinh Nguyen was found guilty Tuesday in the fatal shooting of an 
Ardmore woman nearly 3 years ago.

A jury found Nguyen, 24, guilty of 1st-degree murder in the 2013 death of 
Shelia Pace Gooden. He was also convicted of 1st-degree kidnapping, 1st-degree 
burglary and armed robbery.

Nguyen could receive the death penalty.

The charges against Nguyen stemmed from allegations that he and 2 other men - 
Daniel Aaron Benson, 25, and Steven George Assimos, 24 - broke into Gooden's 
house at 700 Magnolia St. in the Ardmore neighborhood at 11:30 p.m. on Oct. 10, 
2013. Forsyth County prosecutors alleged that the 3 men came in armed with a 
.380-caliber semiautomatic gun and held the 43-year-old Gooden hostage.

Prosecutors alleged that Nguyen shot Gooden, who grew up in Mocksville and 
worked at the Waffle House restaurant on Jonestown Road, twice in the head and 
once in the right leg. All 3 men are charged in Gooden's murder, but only 
Nguyen faces the death penalty. Prosecutors say they are pursuing the death 
penalty against Nguyen because they believe he pulled the trigger.

Nguyen's trial started Sept. 6.

(source: Winston-Salem Journal)






FLORIDA:

Trial begins for Benjamin Davis Smiley in home invasion killing


The problem with the state's 1st-degree murder case against 24-year-old 
Benjamin Davis Smiley of Tampa isn't with the evidence prosecutors have, a 
defense lawyer told jurors Tuesday, but with what they don't have.

"The devil actually is in the lack of details," said Kevin Kohl, a Bartow 
lawyer representing Smiley.

In his opening statement Tuesday, Kohl acknowledged that his client's DNA was 
on a hoodie sweatshirt found in the bed of a pickup near where 57-year-old 
Clifford Drake was murdered in April 2013. He also agreed that Smiley's DNA was 
on a backpack the assailants had left behind during the home invasion killing 
in Lakeland.

But he pointed out the litany of unidentified DNA that was found on those 
items, along with a pair of latex gloves found in the hoodie's pocket.

"On the cuff, there was DNA from at least 4 other individuals that has never 
been identified," Kohl said. "At least 4 people contributed to the DNA in the 
rubber gloves, none of them being Benjamin Smiley."

Prosecutors are alleging Smiley and a 2nd person, who has not been identified, 
forced their way into Drake's home at 524 W. 12th St. in Lakeland the night of 
April 15, 2013, demanding that he tell them where his safe was and hand over 
its contents. They said Drake's stepson, who was 24 at the time, will testify 
that he saw Smiley shoot his stepfather twice in his bedroom.

"They tear up the bedroom," said Assistant State Attorney Hope Pattey in her 
opening statement. She said they dumped out dresser drawers and left the 
mattress on top of Drake's body.

They also took a cellphone belonging to Drake's stepson, Mark Wilkerson.

About 4 months into the investigation, Lakeland police detectives had gone as 
far as they could go with the leads they had, Pattey told jurors. They had DNA 
connecting the backpack and the hoodie, she said, but they didn't know whose it 
was.

They got their break in February 2015, when the DNA came back as Smiley's.

When police presented Mark Wilkerson with a photo pack, Pattey said, he 
identified Smiley.

Testimony in the trial will begin today and is expected to continue into next 
week. Prosecutors are seeking the death penalty against Smiley if he's 
convicted, but that portion of the trial will be held after legislators and the 
Florida Supreme Court resolve issues with the state's death penalty process.

Smiley was found guilty last November in the shooting death of Carmen Riley, 
46, during a robbery at her Lakeland home. The state is seeking the death 
penalty in that case, but has delayed sentencing.

(source: The Lakeland Ledger)

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

Death penalty on hold as court looks for answers


Throughout this year, Florida's death penalty has been in a state of limbo.

Executions are on hold, judges across the state are postponing death penalty 
cases, and defense lawyers are seeking additional reviews in the aftermath of a 
U.S. Supreme Court decision in January that struck down Florida's death-penalty 
sentencing process.

The U.S. Supreme Court said Florida gave too much power to judges, instead of 
juries, in deciding whether defendants should be executed. But the 8-1 ruling 
also created uncertainty by failing to address whether jury recommendations for 
death sentences should be unanimous.

The focus is now on the Florida Supreme Court, left grappling with a variety of 
issues related to the January ruling and a law hurriedly passed by state 
lawmakers in response to the decision.

"Defense lawyers are trying to push the cases off, waiting for the court, and 
in some instances judges are going along with it," said Bernie McCabe, the 
state attorney in the 6th Judicial Circuit in Pasco and Pinellas counties. "And 
if they don't go along with it, defense lawyers file other motions claiming 
other stuff, to try to push it. So the frustration is we're not getting the 
cases to trial that ought to be tried. And, unlike fine wine, my cases don't 
get better with age."

Of nearly 3 dozen states that have the death penalty, Florida is 1 of only 3 
states --- including Delaware and Alabama --- that do not require unanimous 
jury recommendations for death. Delaware's death penalty is also in flux. The 
Delaware Supreme Court in August decided that the state's death-penalty 
process, similar to Florida's, was unconstitutional. In contrast to Florida, 
Delaware's last execution was in 2012.

The U.S. Supreme Court's decision in a case known as Hurst v. Florida dealt 
with the sentencing phase of death-penalty cases after defendants are found 
guilty, and it focused on "aggravating circumstances" that must be determined 
before defendants can be sentenced to death. The ruling cemented a 2002 U.S. 
Supreme Court decision, in a case known as Ring v. Arizona, requiring that 
determinations of such aggravating circumstances must be made by juries, not 
judges.

Under Florida's old law, jurors by a simple majority could recommend the death 
penalty. Judges would then make findings of fact that "sufficient" aggravating 
factors, not outweighed by mitigating circumstances, existed for the death 
sentence to be imposed.

That system was an unconstitutional violation of the Sixth Amendment right to 
trial by jury, the U.S. Supreme Court decided in an 8-1 ruling.

After the Hurst decision, Florida justices indefinitely postponed executions 
that had been scheduled to take place in February and March. The decision also 
set off a scramble by lawmakers to revise the sentencing system.

Florida's new law --- crafted by the Republican-controlled Legislature during 
the session that ended in March --- requires juries to unanimously determine 
"the existence of at least one aggravating factor" before defendants can be 
eligible for death sentences. The law also requires at least 10 jurors to 
recommend the death penalty in order for the sentence to be imposed, a 
departure from the old law, which required a simple majority of jurors.

After hearing arguments in dozens of cases since January, the Florida Supreme 
Court is considering whether the Hurst decision applies to defendants whose 
death sentences were handed down before the January ruling. The court is also 
poised to decide a variety of other issues, including whether the new law --- 
which does not require a unanimous recommendation for death --- is 
constitutional.

One of the most highly anticipated decisions involves the case of Larry Darnell 
Perry, who was convicted in the 2013 murder of his infant son.

"Clearly at this stage in our jurisprudence, we want to make sure that the 
statute is construed in a constitutional manner so that we don't have another 
15 years of death penalty --- if the state wants the death penalty, which 
apparently it does --- in flux," Justice Barbara Pariente said June 7 during 
arguments in Perry's case.

Perry's case hinges on whether the new law should apply to defendants whose 
prosecutions were underway when the new law went into effect. While Perry's 
lawyer, J. Edwin Mills, argued that the new law should not apply in his 
client's case, other defense lawyers are split on the issue. Mills contends his 
client should receive a life sentence.

Arguments in the Perry case also focused on the new law, which circuit judges 
in Tampa and Miami have ruled is unconstitutional because it does not require 
unanimous recommendations from juries.

Lawmakers adopted the 10-2 recommendation at the urging of prosecutors, who 
objected to the notion of requiring unanimity.

"Philosophically, I've never had a real problem with unanimity. My problem has 
always been what happens then to the cases that have already been tried, when 
the jury was told that their recommendation did not have to be unanimous. Do 
you undo 20 or 30 years of jurisprudence and impact cases?" McCabe said. "If 
you litigate that case and that case gets affirmed and they uphold the 
constitutionality of the system under which the sentence was imposed, I don't 
think decades later they should come in and say, 'Oops, we didn't mean to,' 
because the personalities are now different on the court."

The issues awaiting Florida Supreme Court decisions will have a far-reaching 
impact, affecting inmates already on death row as well as defendants whose 
cases are in progress or have not yet reached the trial stage.

Confident that the court will uphold the new law, prosecutors are moving 
forward with capital cases.

"We believe that the changes have made the death penalty constitutional again," 
Dave Aronberg, state attorney in the 15th Judicial Circuit in Palm Beach 
County, said.

But at the circuit level, many judges are hesitant to try capital cases that 
could be overturned after a Florida Supreme Court ruling, according to Pete 
Mills, an assistant public defender in the 10th Judicial Circuit who is 
chairman of the Florida Public Defender Association's death penalty steering 
committee.

Ambiguity over Florida's death penalty has created frustration for judges, 
prosecutors and even defense lawyers.

"It creates a strain for everybody involved," Mills said. "We all want to be 
able to resolve these cases. But, going forward with statutes that are 
unconstitutional without having constitutionally approved jury instructions, is 
an invitation to disaster and will cause a lot of cases to have to be retried."

Some judges are asking defense lawyers to agree to proceed with the 1st phase 
of trials, to determine guilt or innocence, and put the sentencing phase of the 
trials on hold until the Florida Supreme Court rules on the new law.

"There's definitely a lack of uniformity across the circuit courts and the 
federal district courts in terms of Hurst issues," said Maria DeLiberato, an 
attorney representing Death Row inmate Dane Abdool.

Abdool is a plaintiff in a federal lawsuit centered on the constitutionality of 
Florida's lethal injection procedure. A federal judge in Jacksonville recently 
put Abdool's case on hold, pending decisions from the Florida Supreme Court.

State Attorney Brad King in the 5th Judicial Circuit acknowledged that finality 
from the court would be welcome.

"For the efficiency of the system, everybody would like to see it resolved and 
we move on from there," he said.

(source: news4jax.com)






ALABAMA:

Jury deadlocked on Saraya Atkins execution, life in prison sentencing for a 
2014 robbery-murder


After more than 5 hours of deliberating over whether Saraya Atkins should 
receive the death penalty or a life sentence without parole, jurors were sent 
home by Judge Michael Youngpeter after they were deadlocked over the decision.

He told the jurors he would give them a night to sleep on it and deliberations 
will resume at 9 a.m. Wednesday morning.

Before the they left the courtroom judge Youngpeter had a departing message for 
the jury.

"You all are obligated to try to get a verdict, said Youngpeter. I don't think 
we'll get a better group of jurors than y'all."

Once they exited the courtroom Mobile District Attorney Ashley Rich voiced her 
frustrations about the prospect of having a hung jury in the case. If the 
current jury cannot reach a decision the entire case would have to be re-tried 
and a new jury would have to be selected.

"It adds to the magnitude of the case," said Rich.

She asked Youngpeter if he would consider adding a dynamite charge to the jury 
if they continued to be deadlocked on a verdict. In that instance, Judge 
Youngpeter would tell the jurors they won't be able to select a better group of 
jurors, so they would have to reach a decision on the sentencing.

Earlier in the day, testimony and closing arguments in the sentencing hearing 
of Saraya Atkins, who was convicted of capital murder for the robbery and 
shooting of Robert Perry, continued Tuesday morning.

State prosecutors and defense attorney's brought in 2 medical experts who 
evaluated Atkins mental state after she was arrested.

Defense attorney Greg Hughes brought Dr. Ken Benedict to the stand first. He 
testified Atkins saying was sexually abused by a boyfriend of her mother around 
the age of 5, although the incidents were never reported.

The doctor said his best estimate was that the incidents occurred more than 20 
times over a span of a year or 2.

Atkins was found guilty of capital murder in the robbery and shooting of Robert 
Perry in 2014.

During his psychological evaluation, he said that the behavior Atkins exhibited 
by peeing on the floor after she had been fully potty trained was a red flag 
for signs of sex abuse. He testified to jurors that Atkins told him the 
boyfriend threatened to physically harm her and her mother if she told anyone.

"Violence toward a caretaker is a risk indicator and a child between the ages 
of 3 and 5 has less coping resources than an older child or adult," said Dr. 
Benedict.

He told jurors that since Atkins has been incarcerated she has been diagnosed 
with depression and anxiety. She currently takes medication for both. He said 
those conditions could have began developing in her early childhood.

"In my opinion, the counseling efforts were not sufficient and not normal," 
said Dr. Benedict.

He concluded his initial testimony by telling jurors he felt like the 
abandonment from her mother and the feeling of not being included may have been 
more harmful than the sexual abuse.

Police say Atkins and another woman, Kymberli Lindsay, 27 robbed and then 
killed Robert Perry, 66.

During cross examination, Mobile District Attorney Ashley Rich focused her 
questions toward Dr. Benedict around Atkins ability to understand.

Dr. Benedict answered yes to questions about Atkins' understanding right from 
wrong and being able to follow the law. Rich also got Dr. Benedict to point out 
that there were no major mental illness issues in Atkins past.

Rich called State Psychologist Dr. Glen King to the stand next. He evaluated 
Atkins to make sure she was competent to stand trial. He also stated she had no 
indication of mental illness during his evaluation.

"She understood the quality, nature and wrongfulness of her acts," said Dr. 
King.

After a short break, closing arguments began with Rich asking jurors to fight 
people's opinions and emotions and make a determination based on the facts.

The jury is charged with determining if the aggravating circumstance, which was 
the robbery, outweighed the mitigating circumstances like Atkins childhood and 
upbringing.

In a soft but firm voice Rich asked jurors, "Why are we here?"

She paused for a second and gave the jury and answer.

"Saraya may have been a good person at some point in her life, said Rich. "But 
at another point she knew what she wanted and she took it and she killed 
another human being."

She told jurors that throughout the trial they heard testimony from family 
members of Atkins that came off as, "The rules don't apply to her. People 
offered her help and she didn't welcome any of it."

Defense attorney James Vollmer used his closing arguments to try and strike an 
emotional chord with jurors. He began by saying in life we are guided by the 
people who we are intertwined with.

"Her parents were not there for Saraya her whole life," said Vollmer.

He went on to say that the law demands the jury consider the mitigating 
circumstances in this case.

"Nobody is born evil and Saraya is not only the act maybe," said Vollmer.

As he put several baby photos of Atkins on the monitor, her mother, Shawnette 
Spicer, burst into tears in the courtroom. As he paused for a few seconds, his 
next statements began to paint Atkins as a scapegoat in her mother's life plan.

"Her mother's education came at the expense of Saraya," said Vollmer. "She 
tried to tell her family she was sexually abused over and over again and they 
did nothing."

He continued by saying Atkins was desperate for a mother or father and that 
when she needed money in March of 2014 her mother didn't help her.

He closed his argument by comparing the death sentence with the merciless 
practice of stoning the accused in ancient times.

"Justice doesn't demand revenge, it only demands a just verdict," said Vollmer.

Rich followed that with a rebuttal focused on debunking Vollmer's argument that 
Atkins was not loved.

She told jurors on several occasions Atkins was brought into stable homes and 
welcomed with open arms, but she refused. She pointed to Saraya moving out of 
the home of her best friend in Michigan where she had gotten her act together 
and graduated high school.

"They offered to see her through college and offered a better and stable life, 
said Rich. "But she left and came to Mobile. That was not enough for her."

She argued that her action on March 11, 2014 did not demonstrate the 
characteristics of a loving and caring person.

"We've heard a lot about how loving and caring Saraya was but she was not a 
loving and caring person to Mr. Perry that day," said Rich.

She closed her argument by saying that medical experts on both sides of the 
case testified that she could understand her actions.

"You're here today because of her actions, said Rich. "Saraya Atkins made that 
choice for you and she wrote her fate when she chose those acts."

(source: al.com)






MISSOURI:

Death-penalty drugmaker shouldn't be anonymous: Bloomberg View


In a case that evokes a modern-day hangman's mask, a pharmacy that provides 
lethal drugs for carrying out the death penalty is arguing that it has a 
constitutional right to anonymity. The argument should fail, because there's no 
right to confidentiality in providing government services. But it shows just 
how dangerously far the idea of corporate constitutional rights has gone in the 
era of Citizens United and Hobby Lobby.

The strange situation, as reported by BuzzFeed News, arose out of a lawsuit by 
death row inmates in Mississippi who are arguing that the particular 
combination of drugs used by their state as its method of execution is cruel 
and unusual. In the course of the suit, the Mississippi inmates subpoenaed the 
Missouri Department of Corrections to find out, among other things, what drugs 
the state uses in its execution cocktail and who provides them. In response, 
Missouri argued that it had a sovereign right to keep confidential the identity 
of its supplier.

The U.S. Court of Appeals for the 8th Circuit is considering whether to quash 
the subpoena. It has allowed Missouri's supplying pharmacy, identified in court 
papers only as M7, to file its own argument with the court.

M7, which has sold more than $125,000 worth of lethal chemicals to Missouri, 
said its identity shouldn't be disclosed, because it has a First Amendment 
free-speech right to act in support of the death penalty on the basis of its 
political views.

The broader context here is that abolitionist opponents of the death penalty 
have been shaming the corporations that provide drugs intended to kill people 
at execution. The technique has been surprisingly effective, with some 20 major 
pharmaceutical companies, such as Pfizer, saying their products must not be 
used in executions. As a result, a number of states have had difficulty getting 
anyone to sell them the drugs they need to execute by lethal injection. A 
recent Council of State Governments newsletter spoke of a "lethal injection 
drug shortage."

Anonymity, of course, is a way to avoid shaming. But M7's constitutional 
argument is deeply flawed. (I almost wrote "fatally flawed" -- but the 
ubiquitous legal metaphor is a little too close to home in this case.)

The core of M7's argument is that the First Amendment includes a right to speak 
anonymously. Under certain circumstances, that's true. In the landmark 1958 
case of NAACP v. Alabama, for example, the Supreme Court held that the National 
Association for the Advancement of Colored People couldn't be obligated to 
disclose the identity of its membership. In the background was the concern that 
the members could be subject to harassment for exercising their First Amendment 
right to speak and associate.

Anonymity, of course, is a way to avoid shaming.

But there's an enormous difference between speaking and acting -- particularly 
when that action is a for-profit commercial transaction with the government. A 
government contractor like Halliburton, for example, might be subject to public 
criticism for a contract like the cost-plus arrangement the company had with 
the Defense Department during and after the U.S. occupation of Iraq. The 
potential for public criticism wouldn't justify a claim by Halliburton to keep 
its provision of services secret.

To the contrary, in a democracy, it's crucially important for the government to 
disclose its vendors, both to avoid corruption and to promote transparency.

More fundamentally, M7 isn't speaking at all: It's performing the act of 
selling drugs. This behavior can be subject to ordinary regulation, including 
public disclosure if ordered by a court. The company shouldn't be able to 
protect its actions from regulation simply by insisting that it is performing 
them out of political belief. If that were plausible, businesses could escape 
all sorts of government regulation by saying that they really, really believe 
in their corporate mission.

But despite the flimsiness of its legal arguments, there's a reason M7 is 
trying to get away with its free-speech argument: the trend in recent years 
toward constitutionalizing corporate interests. The Citizens United decision in 
which the Supreme Court by a 5-4 vote held that the First Amendment applied to 
corporate speech, is the most prominent example.

At least in Citizens United, the corporation was actually speaking. In Burwell 
v. Hobby Lobby, the justices, again split 5-4, applied the Religious Freedom 
Restoration Act to a corporation's funding of its employees' health care. True, 
that case technically involved federal law, not the First Amendment. But the 
subtle difference is easily lost. In essence, the court held that a corporation 
has a legal right to the liberty of conscience in its business dealings.

A similar impulse lies behind claims by florists or wedding cake bakers who 
want to be exempt from antidiscrimination laws that might require them to serve 
gay couples. They are saying that they should be protected by religious liberty 
so that they may discriminate invidiously while engaged in commercial 
transactions.

The M7 situation helps demonstrate why it's so dangerous to treat corporations 
as though they have fundamental constitutional rights while doing business. 
Those basic rights are designed to protect individuals against government 
power. They aren't supposed to be used to exempt businesses from regulation or 
publicity whenever it's convenient for them.

(source: Noah Feldman is a Bloomberg View columnist. He is a professor of 
constitutional and international law at Harvard University and was a clerk to 
U.S. Supreme Court Justice David Souter----The Oregonian)