[Deathpenalty] death penalty news----PENN., VA., FLA., ALA., OHIO, ARK.

[Rick Halperin]

Jan. 21



PENNSYLVANIA:

Competency at issue, Chesco trial delayed for duo in death of 3-year-old Scotty 
McMillan


The death penalty trial for the man accused of the brutal torture and murder of 
3-year-old Scott "Scotty" McMillan was pushed back until September after a 
convoluted hearing Thursday on whether the accused is competent to help his 
attorney defend the case.

After a hour-long proceeding that dealt with a motion to have Gary Lee 
Fellenbaum undergo a psychological evaluation - first made and then withdrawn 
by his defense attorney - Common Pleas Judge William Mahon ordered that the new 
trial date be set for Sept. 18, more than 5 months after its previously 
scheduled start date of April 1.

In the meantime, Mahon gave Fellenbaum's attorney, George Yacoubian of 
Philadelphia, 45 days to have his client evaluated by a mental health expert to 
determine whether he would be competent to stand trial. The judge also set a 
date in mid-April for hearings on a number of pre-trial motions, including 
whether to combine Fellenbaum's trial with that of the victim's mother, Jillian 
Tait, and whether to move the trial out of Chester County.

Those motions were initially set to be heard by Mahon starting Thursday, but 
were set aside after Yacoubian raised the issue of whether he believed 
Fellenbaum would be intellectually able to assist him during the capital murder 
trial, or whether some mental infirmity would prevent him from doing so.

McMillan's lifeless body was found in November 2014 in the trailer in West Caln 
that he lived in his mother, his older brother, Fellenbaum, and Fellenbaum's 
estranged wife. Fellenbaum and Tait had begun dating several weeks earlier and 
had been living together in the home, during which Fellenbaum allegedly beat 
McMillan severely and, allegedly with Tait's help, tortured the 3-year-old and 
his brother.

District Attorney Tom Hogan, in announcing the arrests or Fellenbaum and Tait, 
called McMillan's death, "an American horror story."

Earlier this month, said Yacoubian during a drawn out explanation before Mahon 
of his changing views on the matter, he had developed concerns about 
Fellenbaum???s competency. Although he did not lay out specifics of what led 
him to have concerns, they stemmed from a letter Fellenbaum wrote Mahon on Jan. 
10 in which he said he wanted to represent himself.

Yacoubian, said however, that after discussing the matter with Fellenbaum's 
father - who appeared in the courtroom Thursday - and again with Fellenbaum 
himself in the Justice Center lockup that morning, he had decided that 
Fellenbaum's competency was not an issue.

"It is clear to me that he is competent to proceed with whatever the next step 
(in the trial) might be," Yacoubian told Mahon. "I believe firmly that he does 
understand what these proceedings are, what his role is, and what the role of 
the prosecution and the court are. I believe that he can adequately assist me 
in his defense."

He said he believed that the questions he had with Fellenbaum arose from bad 
legal advice that Fellenbaum was getting from other inmates at Chester County 
Prison, where he is being held without bail.

The "unusual conversation" he had with Fellenbaum earlier this month at the 
prison about his wish to represent himself was in fact swayed by others who 
"are leading him down the path of bad advice," Yacoubian said. "I believe it is 
an issue of undue influence and not any underlying mental health issue."

Questions about Fellenbaum's competency, "are not what I believe now," the 
attorney said.

Yacoubian asked to formally withdraw motion he had filed earlier Thursday 
morning asking to be allowed to have Fellenbaum's competency evaluated. But 
both Mahon and First Assistant Michael Noone, who is leading the prosecution, 
said they were not comfortable with having the competency issue done away with 
so easily.

Noone said that should Yacoubian abandon a formal evaluation of his client, the 
matter could be raised on appeal should Fellenbaum be convicted of first-degree 
murder and sentenced to death. He said the "integrity" of any conviction could 
be challenged in the future should the competency issue be raised and then 
dismissed without a true finding.

"Once competency is raised, the proverbial genie is out of the bottle and needs 
to be addressed," Noone said.

Mahon, seemingly frustrated by Yacoubian's changing stance, said that the 
attorney had first raised the issue of competency with him in a Jan. 11 letter, 
and then more formally in the pre-trial motion filed Thursday. Noting that 
Yacoubian had not training or expertise in judging whether a person was 
psychologically incompetent or not, he said.

Out of an "abundance of concern," Mahon said he would dismiss Yacoubian's 
request to withdrawn his motion on competency, and asked him what course he 
would take. After consulting with Fellenbaum's father, Yacoubian said he would 
be willing to hire an independent psychologist to evaluate him.

Mahon said he would give the defense until March to prepare a report, which 
would then give the prosecution an opportunity to prepare its own report. Those 
matters would then be litigated at the next hearing in April - at which time 
Mahon said he also intends to question Fellenbaum about his request to 
represent himself.

Fellenbaum, dressed in a black t-shirt and black pants, did not speak during 
the hearing. He was brought in and out of the courtroom in handcuffs and 
shackles, and returned to the prison.

The hearing on Tait's pre-trial motions was also continued because she intends 
to oppose Fellenbaum's request for a joint trial, and will have to wait until 
the issue of his competency is settled.

Fellenbaum, 25, Tait, 33, and Amber Fellenbaum, 25, all worked at the Walmart 
in western Chester County in the summer and early fall of 2014. Tait moved in 
with the Fellenbaums at a trailer home on Hope Lane sometime in September, 
2014.

Beginning in October 2014, according to the allegations set forth in the case 
against the Fellenbaums and Tait, Gary Fellenbaum began physically abusing both 
of Tait's sons. The abuse included punches and beatings, but also whipping with 
a crudely fashioned "cat o'9 tails," and tying the boys to chairs or hanging 
them upside down by their feet.

Allegedly Fellenbaum's beating of Scott McMillan escalated to the point where 
the boy could not hold down his food. Angered, Fellenbaum allegedly punched him 
in the face so hard he fell out of his chair, and later punched him in the 
stomach. The boy began vomiting and later passed out. Although Fellenbaum and 
Tait tried to revive him, they left him alone in a bedroom for several hours 
before finding him completely unresponsive in the evening of Nov. 4, 2014.

Both allegedly gave incriminating statements to police investigators after 
their arrests. Yacoubian and Harmelin have asked Mahon, in their motions, to 
suppress those statements, saying they were given under duress.

Amber Fellenbaum, who did not participate in the alleged abuse, called 911. She 
is not charged with murder, but rather with endangering the welfare of children 
and recklessly endangering another person.

The trial is expected to last three weeks. Mahon said he would summon as many 
as 250 potential jurors to the courthouse to insure a fair panel could be 
seated.

(source: The Delaware County Daily Times)






VIRGINIA:

Parishioners pray for mercy, end to death penalty on night of execution


As he was being executed by the state, the guilty thief turned to Christ and 
said, "Jesus, remember me when you come into your kingdom."

Those hopeful, repentant words were repeated in the opening song of an 
execution vigil held at historic St. Mary of Sorrows Church in Fairfax Jan. 18. 
12 people gathered in the church to pray for convicted murderer Ricky Jovan 
Gray, for his victims and for an end to the death penalty.

Miles away, Gray was preparing to die at the Greensville Correctional Center in 
southern Virginia. After being administered a lethal injection of midazolam, he 
died at 9:42 p.m. The drug, which has led to botched executions in other 
states, is so controversial that Gov. Terry McAuliffe added an amendment to a 
death penalty bill that allowed the identity of companies that produce 
midazolam to remain secret.

Through the Virginia Catholic Conference, Arlington Bishop Michael F. Burbidge 
and Richmond Bishop Francis X. DiLorenzo condemned the killing, saying: 
"Knowing that the state can protect itself in ways other than through the death 
penalty, we have repeatedly asked that the practice be abandoned. Our broken 
world cries out for justice, not the additional violence or vengeance the death 
penalty will exact."

Gray's death makes 112 executions in Virginia since 1976, tying the state with 
Oklahoma for the 2nd most executions in the country, according to Virginians 
for Alternatives to the Death Penalty. Texas is 1st. 6 Virginia inmates remain 
on death row, though the state has not sentenced anyone to death in the past 5 
years.

Gray was convicted for the murders of Bryan and Kathryn Harvey and their 
daughters, Stella and Ruby, during a home robbery in Richmond in 2006. He also 
was linked to several other murders. Gray's lawyers say he was physically and 
sexually abused as a child and started using drugs at a young age. They also 
believe he was high on the powerful hallucinogenic drug PCP, or phencyclidine, 
at the time he committed the murders.

In the face of all this ugliness, Carol Mayfield, director of parish social 
ministry at St. Mary of Sorrows, believes prayer is the only response. "Here, 
we are dealing with it in the only way we can," she told the Arlington Catholic 
Herald, newspaper of the Arlington Diocese. "It's very sad, but it is consoling 
and hopefully healing to all those for whom we pray."

For 17 years, parishioners have been praying on the night of executions. Betsy 
Pugin, who has participated since the beginning, said they have gathered 37 
times for state and federal executions. Other religious and secular vigils were 
held throughout the state Jan.18, including at St. John Neumann Church in 
Reston.

Because of the often horrific nature of the crimes, opposing the death penalty 
is difficult for many, even within the Catholic Church, acknowledged Mayfield. 
Still, she believes the taking of any human life is wrong. Pugin added, 
"Violence is the symptom, not the cure."

Maura McFadden, a graduate student at Divine Mercy University in Arlington, 
came to the vigil out of a respect for all life, innocent or guilty. "I think 
it's important to stretch your heart in terms of mercy, and events like this 
help."

(source: Zoey Maraist is a staff writer at the Arlington Catholic Herald, 
newspaper of the Diocese of Arlington----thebostonpilot.com)






FLORIDA:

Tallahassee death penalty attorney honored with pro bono award


Tallahassee attorney Mark Olive has devoted his legal career to defending death 
row inmates and fighting death penalty cases, putting in more than 10,000 hours 
of free legal work.

Olive, an attorney in private practice, received the Tobias Simon Pro Bono 
Award from Florida Supreme Court Chief Justice Jorge Labarga during a ceremony 
Thursday at the state's highest court.

Labarga recognized Olive for the "exhaustive, tedious and often unpopular 
cause. The defense of death row inmates."

Olive's more than 5-minute remarks on receiving the award was, he joked, the 
longest he'd spoken before the high court without being interrupted, a nod to 
the time he's spent arguing the legality of the death penalty in front of the 
justices.

But the award has a deeper significance than fighting for people who find 
themselves facing the state's harshest punishment.

"This award isn't about the death penalty," Olive said before a packed chamber 
of legal colleagues. "It's not about who you chose to serve. It's just about 
service."

Olive is the former director of the Volunteer Lawyers' Resource Center of 
Florida. For more than 3 decades, his work has tipped the scales of numerous 
death penalty cases nationwide.

He chaired similar organizations in Georgia and Virginia.

Most recently, 63-year-old Olive worked on the legal team that brought 
Florida's death penalty sentencing guidelines - found unconstitutional last 
year - to the U.S. Supreme Court. He has worked on cases throughout the 
country.

Olive was among 26 lawyers, law firms, bar associations and judges recognized 
during the annual Pro Bono Service Awards for their thankless service free of 
charge.

Florida Bar President William J. Schifino said the thousands of hours attorneys 
put in representing clients pro bono is about more than numbers. But the time 
is well spent.

"Accessing our court system shouldn't be limited to those who can afford it," 
Schifino said. "We know numbers matter because each number is a person who 
could have slipped through the cracks."

Tobias Simon was a Miami Civil Rights attorney who died in 1982, the 1st year 
the award in his name was given out.

(source: Tallahassee Democrat)






ALABAMA:

Washington becomes 1st black female elected DA in Alabama


Lynneice Washington made history this week as she stepped into the Bessemer 
Cutoff District Attorney's Office. Washington, 49, is the 1st African-American 
woman elected district attorney in Alabama.

"I am honored," Washington said. "It has been a humbling experience."

But when she began her campaign more than a year ago she had not even thought 
of the potential significance if she were elected, Washington said.

"I had no clue of the history I was making," she said.

Washington said she stands on the shoulders of others who helped lift her up - 
those in her faith-based community, her family, and campaign team. "And I 
promise to make them and my community proud," she said in an interview Monday.

Washington, a Democrat, won the November General Election by a narrow margin - 
299 votes - in her race against Republican Bill Veitch, a long-time deputy 
district attorney who was appointed to the top spot in that office in early 
2016 on the retirement of former D.A. Arthur Green Jr.

As she takes over, she expects some changes will occur in the office, said 
Washington. "We'll see as we go," she said.

While protecting the underdog may seem more like something for a defense 
attorney, it also applies to prosecutors, Washington said.

"I want to be able to stand up when there is some type of inequality, even as a 
prosecutor," Washington said. "I have been sworn to uphold the laws fairly and 
in a balanced fashion. As a prosecutor we are bound to do that."

Washington has been up front about her personal opposition to the death 
penalty. She said her office will pursue the death penalty when necessary in 
capital murder cases, but won't "make it the 1st option in every case."

"I don't make the laws. I have to follow the laws," said Washington, who grew 
up in Birmingham. Her father worked at area plants and was a forklift driver. 
"My mom had a 6th grade education and cleaned homes, but she was a fulltime 
wife and a mother," she said.

"I came from meager beginnings," Washington said. "I would see my mom struggle. 
... She would tell me to work hard."

Early on Washington said she wanted to be a lawyer. "That was always my dream," 
she said.

"God has truly blessed me," Washington said.

Her struggles haven't always been of a financial nature.

During her campaign for a district judgeship in 2010, she was diagnosed with 
breast cancer. At the time, her husband, Jude, was in Iraq as a contractor.

Her husband had taken leave from the Jefferson County Sheriff's Office where he 
is a sergeant. Washington had resigned from her post as assistant district 
attorney to run for district judge.

Eventually chemotherapy and radiation treatments caused her to lose weight and 
her hair. Her fingernails darkened and eventually some fell off. Her skin color 
changed. And she had a bilateral mastectomy.

But now Washington is looking at cancer in the rear view mirror. "I am a 6-year 
breast cancer survivor," she said.

Washington lost that November 2010 general election but several months later, 
in February 2011, she was appointed presiding judge over the Bessemer Municipal 
court.

"Everything that has happened in my life has made me strong. It has 
strengthened my faith in my God," Washington said.

Washington has 1 son, who is 21 now, a 17-year-old step daughter who she calls 
her "bonus child" and 2 other adult step daughters who live out of state.

As a municipal court judge, a job which she resigned from in December after 
winning the election, she presided over misdemeanor cases and traffic 
violations. As presiding judge she was responsible for overall administration 
of the Bessemer Municipal Court system.

Since 2010 she also has been in private practice, representing people in 
domestic relations and family law, personal injury, criminal defense and 
probate cases.

This won't be the first time Washington has worked in the Bessemer Cutoff 
district attorney's office. From February 2002 until she resigned to run for 
election as a district court judge in 2010, Washington served as an assistant 
district attorney, prosecuting felony cases that included capital murder, 
murder, robbery, theft, burglary, drug related crimes, and misdemeanor charges.

Prior to her job in the district attorney's office, Washington was in private 
practice for 5 years. Then before that she served as an administrative 
assistant to the chief financial officer at Cooper Green Hospital from April 
1993 to December 1996 while working to get her law degree at Miles Law School.

Washington got a bachelor of science degree from Auburn University at 
Montgomery in 1990.

(source: Tuscaloosa News)






OHIO:

Judge rules death-row inmate can???t have hearing regarding his attorneys


A judge has ruled that death-row inmate David Martin of Cleveland can't have a 
hearing to try to prove he received ineffective assistance from his attorneys 
in his 2014 murder trial.

Martin, 32, who killed Jeremy Cole, 21, and tried to kill Melissa Putnam, then 
27, in a house on Oak Street Southwest in 2012, argued his attorneys were 
ineffective because they allowed one man to remain on the jury panel despite 
answers he gave during jury selection.

The juror, a black male, said he knew Cole because he worked with him at one 
time and had actually spoken with Cole the day Cole was killed, Martin???s 
current attorney, John B. Juhasz, said in a filing.

When asked about the death penalty, the prospective juror said, "I like it," 
Juhasz said.

The Trumbull County Prosecutor's office said in a filing that attorneys make 
decisions about which jurors to keep and which ones to dismiss based on many 
factors, including "demeanor, tone, eye contact, body language and all the 
other nonverbal cues" that may outweigh the things the prospective juror says.

The filing says "it is clear that [Martin's attorneys] felt [the juror in 
question] would be beneficial to their case."

Judge Andrew Logan said in a judgment entry it is easy to second-guess 
decisions attorneys make as to keeping or dismissing certain jurors, but "this 
is a matter of strategy and opinion." He added that "sensory impressions" the 
attorneys receive from the prospective jurors are also important.

Judge Logan sentenced Martin to the death penalty and 61 years in prison after 
a jury found him guilty of aggravated murder and other crimes.

(source: Youngstown Vindicator)






ARKANSAS:

State: No hunt for lethal drug


Arkansas' prison spokesman said Friday that he is "unaware of any efforts" to 
find a new supply of an execution drug that expired at the start of the new 
year.

The Department of Correction has not restocked its expired batch of potassium 
chloride, spokesman Solomon Graves said, adding that the state's remaining 
supply of execution drugs remains unchanged. Graves declined to comment 
further.

In September 2015, Gov. Asa Hutchinson set execution dates for 8 men on death 
row. However, their executions were placed on hold due to a legal challenge, 
lodged by the 8 men and another inmate, of the state's 3-drug "cocktail" method 
of execution, which is pending a review by the U.S. Supreme Court.

Potassium chloride is the 3rd and final drug used in executions; it causes 
cardiac arrest and death. The 1st drug, midazolam, is an anesthetic and is 
followed by vecuronium bromide, a muscle relaxer.

In emails sent last fall, Graves detailed the expected expiration dates of the 
state's supply of execution drugs: potassium chloride this month, followed by 
midazolam in April and vecuronium bromide in March 2018. The drugs would expire 
at the end of the month, Graves wrote, "unless otherwise specified."

Graves specified this week that the batch of potassium chloride expired Jan. 1.

Arkansas has not executed an inmate since 2005, due to legal challenges and its 
difficulty in obtaining execution drugs.

The Legislature passed Act 1096 in 2015, amending the execution statutes to 
allow for the usage of either a 3-drug cocktail or a single dose of 
barbiturate. If lethal injection is struck down by the courts, the law 
authorizes executions by electrocution.

Within months of the law's passage, Hutchinson scheduled the series of 
executions, to begin in the fall of 2015. None were carried out after the 
Arkansas Supreme Court issued a stay over the prisoners' court challenge.

The state's high court this summer upheld the state execution law, but agreed 
to continue the stay so that the prisoners could take their case to the U.S. 
Supreme Court.

The prisoners are asking the U.S. justices to review their previous decision 
upholding the use of midazolam in Oklahoma executions.

Midazolam has been accused of causing several botched executions in other 
states, including Oklahoma, with reports of condemned prisoners heaving and 
gasping before death.

While the deaths of the inmates were on hold this summer, the state's supply of 
vecuronium bromide expired, but a new batch was acquired less than 2 weeks 
later.

34 men are on death row in Arkansas.

(source: arkansasonline.com)