[Deathpenalty] death penalty news----GA., FLA., NEB., USA

[Rick Halperin]

June 22




GEORGIA:

Death penalty is 'expressed intention' for Georgia inmates accused of killing 
correctional officers


A Georgia judge said today the death penalty is the "expressed intention" for 
inmates Donnie Russell Rowe and Ricky Dubose, who were on the run for over 48 
hours after 1 of them shot and killed 2 correctional officers.

A Putnam County judge did not grant bond for the men. Their next court date was 
set for Sept. 18.

Rowe and Dubose were on a transport bus on June 13 when they allegedly breached 
a protective gate, reaching Baldwin State Prison officers Christopher Monica, 
42, and Curtis Billue, 58, at the front of the bus. The inmates allegedly 
disarmed and killed them both, officials said. It was unclear which inmate shot 
and killed the 2 officers.

The prisoners, armed with the officers' weapons, then allegedly carjacked a 
nearby vehicle and spent over 48 hours on the run.

They were captured in Tennessee on June 15 after leading police on a high-speed 
chase.

Couple's dramatic 911 call after being held hostage by escaped Georgia inmates: 
'Get the police out here'

Rowe and Dubose were cellmates and friends in prison, and may have planned 
their escape; however, the bus ride on June 13 was unscheduled, officials said.

At the time of the shooting, 31 other inmates were on board the bus, which was 
en route to a diagnostic facility when the escape took place. Those inmates 
provided assistance to investigators, officials said.

Rowe was serving life without parole for armed robbery, the department of 
corrections said, and Dubose was serving a 20-year sentence for armed robbery.

The Georgia Department of Corrections said in a statement that the slain 
officers "were known for their unwavering commitment to their job and their 
love of family."

Georgia Department of Corrections Commissioner Gregory Dozier said, "Our hearts 
are heavy as we mourn the loss of 2 of our officers, who are our family."

(source: go.com)






FLORIDA:

With new death penalty rules on the books, judge vacates sentences in 2 old 
cases


2 men, long ago convicted of murder in separate cases in St. Johns County and 
sentenced to death, have had their sentences vacated and been given an 
opportunity to have the penalty portion of their trials heard again.

The recent orders from Circuit Court Judge Howard Maltz came in response to 
motions filed on behalf of James Daniel Turner and Norman Blake McKenzie that 
sought to have the sentences thrown out after the U.S. Supreme Court struck 
down Florida's old sentencing scheme for death penalty cases.

Their convictions stand but each shall be granted a new penalty phase "if the 
State still desires to seek the death penalty," the orders say.

A jury convicted Turner of 1st-degree murder in 2007 for the 2005 stabbing 
death of Renee Boling Howard of Crescent Beach after he escaped from a South 
Carolina prison. Then-Circuit Court Judge Wendy Berger sentenced him to death 
in 2008 after a 10-2 jury recommendation for the sentence during the penalty 
phase of his trial.

Berger, who now serves on the 5th District Court of Appeal, also handed down 
two death sentences for McKenzie after two 10-2 recommendations from a jury in 
2007. Months earlier, jurors had convicted him of 1st-degree murder for killing 
Randy Wayne Peacock and Charles Frank Johnston with a hatchet. Peacock was also 
stabbed.

It was those 10-2 juror recommendations that were at the heart of Maltz's 
orders in response to what are now often referred to as "Hurst motions."

The name is a reference to the January 2016 U.S. Supreme Court decision in the 
case Hurst v. Florida that found Florida's sentencing procedures were 
unconstitutional.

The court found that the procedures violated the defendant???s right to a trial 
by jury by allowing the judge to make the final decision after considering the 
jury's recommendation. It also took issue with those recommendations having to 
come from only a majority of jurors rather than a unanimous decision.

Legislators responded that same year by passing a new law that required a 10-2 
vote from jurors for a death sentence, but that was quickly shot down by the 
Florida Supreme Court, which found that the Hurst decision, and its predecessor 
- a 2002 decision in Ring v. Arizona in which the U.S. Supreme Court examined 
many of the same issues - meant that a unanimous decision from jurors was 
needed for a death sentence.

Gov. Rick Scott signed a new law in March requiring just that.

Assistant State Attorney Jason Lewis told The Record on Wednesday that the new 
law, in conjunction with the "guidance" from the Florida Supreme Court, means 
that any death sentence that was made final after the Ring decision can be 
challenged.

Lewis said that in the 7th Judicial Circuit, which includes Volusia, Flagler, 
St. Johns and Putnam counties, there are around 30 death penalty cases and 
about 1/2 of them appear eligible for a challenge.

"From what we've looked at so far, we have about 15," he said, adding that, 
right now, judges seem to be vacating only those sentences in cases in which 
the jury recommendation was not unanimous.

For instance, Lewis said, the Florida Supreme Court recently upheld the death 
sentence for Quentin Marcus Truehill that was based on a unanimous 
recommendation, saying that what constitutes a "Hurst error" is rendered 
"harmless" if all the jurors agreed when they sent their recommendation to the 
judge.

A jury in 2014 convicted Truehill, a prison escapee from Louisiana, of murder 
for killing Vincent Binder, a 29-year-old Florida State University graduate 
student, and dumping his body in St. Johns County.

Maltz applied similar reasoning as the Florida Supreme Court in March when he 
declined to vacate a death sentence for John Christopher Marquard, who, in 1993 
was sentenced to death for 1st-degree murder.

Because the sentence predated the Ring decision, Maltz wrote, Marquard was not 
"entitled to retroactive Hurst relief."

Even if he were to apply Hurst to the case, he added, Marquard still would not 
be entitled to the relief "because the jury's unanimous recommendation of death 
rendered any error harmless."

For the sentences that do get overturned, Lewis said he and his colleagues deal 
with them on a case-by-case basis.

Prosecutors consult with the victims' families to see if there is still desire 
to seek a death penalty and then make a decision as to how they will proceed, 
he said.

That is what has been set in motion now with Monday's orders in the Turner and 
McKenzie cases.

"Once those orders come out we have 45 days," Lewis said.

(source: St. Augustine Record)






NEBRASKA:

Nebraska inmate facing death penalty for allegedly killing cellmate files 
motion contesting its constitutionality

A recent change in lethal injection procedure intended to enable Nebraska to 
carry out executions has been challenged by an inmate facing a potential death 
sentence.

Concerns over the new drug protocol are among the 11 arguments in a motion 
filed this week by attorneys for Patrick Schroeder, who seeks to have 
Nebraska's death penalty law declared unconstitutional.

Schroeder, who is already serving a life sentence for murder, now faces the 
death penalty for allegedly choking to death his cellmate, Terry Berry Jr., on 
April 15 inside a special management unit cell at the Tecumseh State Prison.

He was scheduled to be arraigned Tuesday in Johnson County District Court and 
enter a plea.

Instead, District Judge Vicky Johnson scheduled a July 28 hearing on 
Schroeder's motion to overturn the death penalty.

"Our society can no longer kill to show that killing is wrong,' stated the 
motion to quash, filed by defense attorneys Todd Lancaster and Sarah Newell 
with the Nebraska Commission on Public Advocacy.

Johnson County Attorney Rick Smith, who is prosecuting the case with the 
Nebraska Attorney General's Office, declined to comment.

"We will argue it at the hearing," he said.

Among issues raised by Schroeder in the 32-page motion:

-- The death penalty in Nebraska is racially discriminatory, considering that 
only 1 of the 9 men sent to death row since the law was amended in 2002 is 
white. 5 are Hispanic and 3 are black.

-- The death penalty is applied unevenly based upon geography. Since 2002, all 
death penalty cases have originated in 4 of Nebraska's 93 counties: Douglas, 
Madison, Scotts Bluff and Hall.

-- Nebraska's death penalty procedure requires juries to decide the 
aggravating factors necessary to impose death, but it requires a 3-judge panel 
to weigh the mitigating factors in a defendant's favor. Such a 2-step process 
that limits the jury's role is similar to one used in Florida that was found 
unconstitutional by the U.S. Supreme Court in 2016.

-- Evolving standards of decency in a "mature society" have made the carrying 
out of executions increasingly rare in the U.S. Just 10 states are responsible 
for 83 % of the 1,442 executions since 1976, the motion stated. Last year, the 
20 total executions carried out were in 5 of the 31 states with capital 
punishment. Nebraska has not executed an inmate since 1997, when the method was 
the electric chair.

The highest courts in the states and the nation have previously banned the 
execution of juveniles, the mentally ill and the developmentally disabled. They 
also have prohibited methods once commonly used as cruel and unusual 
punishment.

"The rejection of the nooses, bullets, gas and electricity signaled not only 
the discomfort with the method of execution, but with the death penalty 
itself," the motion stated.

Though Schroeder has not been convicted of the prison homicide, let alone 
sentenced, the motion was filed at this early stage to properly preserve the 
issues for appeal.

The death penalty challenge comes several months after voters reinstated 
capital punishment. More than 60 % of those who cast ballots in November voted 
to reverse the Legislature's repeal of the death penalty in 2015.

In an effort to create a viable death penalty procedure in the wake of that 
vote, the Nebraska Department of Correctional Services changed the lethal 
injection protocol earlier this year. That change is under attack by Schroeder.

Under the former protocol, inmates were to be put to death with injections of 
three substances in a specific order. But obtaining some of the drugs specified 
in the protocol became increasingly difficult for prison officials.

The new protocol gives the prisons director wide latitude in deciding the types 
and quantities of drugs to be used. He also may opt to use a single drug, as 
long as it first causes the inmate to lose consciousness.

Schroeder's motion argues that the Legislature has unlawfully delegated its 
lawmaking authority to the prisons director to decide what drugs to use.

The motion also challenges the death penalty statutes for giving too little 
guidance as to when the penalty should be sought and applied. As a result, 
individual county attorneys decide who will be put to death in a manner that is 
"arbitrary and capricious" in violation of the U.S. Constitution.

"The decision to file aggravating circumstances can be affected by the legal 
experience of the prosecutor, the size and resources of the particular county, 
any prejudice or bias of the prosecutor, the political ambition of the 
prosecutor or other political circumstances," the motion stated.

(source: Omaha World-Herald)






USA:

The Supreme Court's Mixed Year on Capital Punishment


The U.S. Supreme Court's latest term, which ended this week as the justices 
began their summer recess, saw death-penalty opponents achieve some notable 
victories even as the Court moved further away from abolishing capital 
punishment.

In one of those wins Monday, the justices vacated an Alabama death-row inmate's 
sentence after ruling the state had not given him adequate professional 
assistance to evaluate his mental health during his trial more than 3 decades 
ago. The Court said the state's failure to provide James McWilliams with the 
experts required under one of its 1985 rulings made his sentence 
unconstitutional.

"Since Alabama's provision of mental-health assistance fell so dramatically 
short of what Ake [v. Oklahoma] requires," Justice Stephen Breyer wrote for the 
majority, "we must conclude that the Alabama court decision affirming 
McWilliams's conviction and sentence was 'contrary to, or involved an 
unreasonable application of, clearly established Federal law.'" He quoted from 
a federal statute governing certain appeals from state courts.

In Ake, the Court ruled that states must provide impoverished defendants with 
access to "sufficiently independent" mental-health experts for help during 
trials. Shortly after that ruling came down, McWilliams was charged with the 
rape and murder of a convenience-store clerk. The trial court appointed John 
Goff, a neuropsychologist who worked for the state's Department of Mental 
Health, to evaluate McWilliams as a neutral party. After he filed his report, 
the court denied the defense's request for an independent expert to help them 
understand the report and its implications.

The ruling fell along the traditional ideological divide, with Justice Anthony 
Kennedy joining the Court's liberal wing. Justice Samuel Alito, writing for 
himself and 3 conservative colleagues, sharply criticized the majority for 
disregarding the question the justices had been asked to resolve when they took 
the case. Instead of deciding whether Ake required a mental-health expert for 
the defense, and not simply a neutral one for both sides, the majority held 
that Alabama's assistance to McWilliams fell short of the Court's current 
standards for indigent defendants with signs of mental-health issues.

"Neither Dr. Goff nor any other expert helped the defense evaluate Goff's 
report or McWilliams' extensive medical records and translate these data into a 
legal strategy," Breyer wrote. "Neither Dr. Goff nor any other expert helped 
the defense prepare direct or cross-examination of any witnesses, or testified 
at the judicial sentencing hearing himself."

Monday's ruling was the 3rd of 4 capital-punishment cases the Court heard this 
term. Their ruling on one final case could come as soon as Thursday morning. In 
February, the justices vacated the death sentence of Texas inmate Duane Buck in 
a long-running racial-bias case. At the center of the dispute was testimony 
from psychologist Walter Quijano, who was called to the stand by Buck's lawyer 
during the sentencing phase of his trial in 1995. Quijano told the jury about 
his statistical model for evaluating "future dangerousness," 1 of the 
thresholds Texas uses to determine whether a defendant receives life 
imprisonment without parole or a death sentence. 1 of the factors in Quijano's 
model was race.

"It's a sad commentary that minorities, Hispanics, and black people, are 
over-represented in the criminal-justice system," Quijano told jurors at one 
point. When Buck appealed his sentence, Texas countered that the statements 
were only a minor part of days of testimony. But Chief Justice John Roberts, 
writing for the Court in a 6-2 majority, said it was enough to toss out the 
sentence. "Some toxins are deadly in small doses," he wrote.

"What does this case tell us about a capital-punishment system that, in my 
view, works in random, virtually arbitrary ways?"

Kennedy and the Court's liberal justices also sided with the inmate in Moore v. 
Texas, an intellectual-disability case, in March. A Texas jury gave Bobby Moore 
a death sentence in 1980 for killing a convenience-store clerk during an armed 
robbery. After the Court banned the execution of people with intellectual 
disabilities in 2002's Atkins v. Virginia, Moore appealed his sentence on those 
grounds. A state court gathered a wealth of evidence from doctors and 
psychologists, concluding Moore should receive life imprisonment without parole 
and be retried.

But the Texas Court of Criminal Appeals rejected the lower court's decision and 
instead relied upon an outdated set of seven factors from one of its earlier 
cases to make its decision. The factors were not grounded in medical authority. 
Instead, they focused on the subjective perceptions of laypersons and family 
members to determine a defendant's mental disability. All 8 justices agreed the 
factors were unacceptable for capital cases, but Roberts, Alito, and Clarence 
Thomas dissented from the means by which the majority reached its decision.

The Court has yet to hand down a ruling in its fourth death-penalty case, 
Davila v. Davis. At issue in that dispute is an arcane but important procedural 
question about when a death-row inmate can claim his or her lawyer was 
unconstitutionally ineffective during the appeals process. At oral arguments in 
April, the justices appeared to be leaning toward a ruling in favor of the 
Texas Department of Criminal Justice.

But this term the justices did not take up any cases on a question frequently 
pushed by one of their colleagues: whether the death penalty itself violates 
the Eighth Amendment's prohibition against cruel and unusual punishment. In 
2015, Breyer dissented from a major case on botched lethal injections and said 
it was time for the Court to reconsider the constitutionality of capital 
punishment. His dissent, which was joined by Ruth Bader Ginsburg, reopened a 
battle over the death penalty that had once faded from the court.

Some observers - myself included - speculated at the time that Breyer's dissent 
signaled the justices could actually abolish the practice for a second and 
likely final time. (The Court struck down all death-penalty statutes nationwide 
in 1972, then approved a raft of revised state laws 4 years later.) Assuming 
all four justices on the Court's liberal wing would agree to strike down the 
death penalty, only the vote of Kennedy - an intermittent voice in reducing the 
punishment's scope - and the proper case would be needed.

After 2 years, the Court has yet to consider the question despite multiple 
petitions asking the justices to do so. Kennedy's opinions on capital 
punishment have not noticeably changed in tone or tenor since Breyer's dissent 
in the lethal-injection ruling. And Donald Trump's electoral victory in 
November increased the likelihood that Kennedy or 1 of the 4 liberals could be 
replaced by a conservative stalwart, which would likely foreclose abolition for 
a generation.

Breyer has still continued to urge his colleagues to take up the issue. When 
Arkansas attempted to execute 8 inmates in 10 days in April, he sharply 
criticized the state for putting them to death only because its 
lethal-injection drug supply was about to expire. "In my view, that factor, 
when considered as a determining factor separating those who live from those 
who die, is close to random," he wrote when his colleagues denied a request 
from 1 of the inmates for a stay of execution.

A few days later, when the Court rejected the petition of an Arizona prisoner 
who had spent almost 4 decades in solitary confinement awaiting execution, 
Breyer said it underscored the need for the Court to revisit the death penalty. 
"What legitimate purpose does it serve to hold any human being in solitary 
confinement for 40 years awaiting execution?" he asked. "What does this case 
tell us about a capital-punishment system that, in my view, works in random, 
virtually arbitrary ways?" None of his colleagues joined either of his 
writings.

(source: theatlantic.com)

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

Rodriguez death penalty appeal: Defense experts say asphyxiation likely cause 
of Sjodin's death


The defense presented 2 more witnesses Wednesday, June 21, in an evidentiary 
hearing in the death penalty appeal of Alfonso Rodriguez Jr.

Testimony from Dr. Jonathan Arden, a forensic pathologist and owner of Arden 
Forensics, and Dr. Ljubisa Dragovic, the chief medical examiner for Oakland 
County, Mich., filled the 2nd day of the hearing in U.S. District Court, and 
mirrored that of the 2 experts who testified Tuesday.

Rodriguez was convicted of the November 2003 kidnapping and murder of 
University of North Dakota student Dru Sjodin.

As with Tuesday's testimony, the defense experts disagreed with the conclusions 
of Dr. Michael McGee, the Ramsey County, Minn., medical examiner who autopsied 
Sjodin's body after it was found in a ravine near Crookston, Minn., in April 
2004.

McGee had said it appeared Sjodin's throat had been slashed and that she had 
suffered a stab wound on her right side. He also said that while no semen had 
been found, acid phosphatase levels found on Sjodin's body indicated she had 
likely been sexually assaulted.

Attorneys from the Federal Community Defender Office contend that the testimony 
of stabbing and sexual assault may have influenced the jury in the 2006 death 
penalty phase of Rodriguez's trial.

Arden said he could find no evidence that a sharp knife or object had been used 
to slash or stab Sjodin's neck or right side. He said decomposition and other 
factors tied to the body having been left exposed to the elements for 5 months 
left little tissue to be examined.

"There's no stab wounds" or anything else that "indicates the use of a knife at 
all," Arden said.

Arden said other areas on Sjodin's body showed similar damage to that seen on 
her right flank, but were not described as being caused by a knife. In 
addition, there was no description of internal organ damage from a knife thrust 
or hemorrhaging of blood that would result.

His original opinion was that Sjodin died of asphyxiation and strangulation 
with a cord, though he revised that in 2016 to include possible force to the 
neck after Rodriguez said in an interview that he pressed on the front of 
Sjodin's neck.

Arden also said the acid phosphatase levels found on Sjodin's body are not 
automatic indicators that she had been raped and that using them to say so "is 
incorrect and inappropriate" and that he "strongly" disagreed with McGee's 
conclusions. He said none of the testing done found evidence of semen or male 
DNA on Sjodin's body.

Assistant U.S. Attorney Keith Reisenauer repeatedly tried to get Arden to agree 
that a slash wound to the neck was possible.

"Is there a possibility? Sure. Is there any evidence for it? No," said Arden, 
who added that the damage to Sjodin's right side could also have been caused by 
a knife, "though that is not supported by the evidence."

Dragovic was part of a three-person panel who also looked at the autopsy 
findings and test results.

Dragovic said the circumstances surrounding Sjodin's death indicate that a 
sexual assault took place, but that it may not have involved sexual 
intercourse.

He also disagreed with Dr. McGee's conclusions that Sjodin had been stabbed, 
noting that there would have been blood on her clothes and body. He said she 
likely died of asphyxiation due to force being applied to her neck. "That's the 
only reasonable determination," he said.

Reisenauer reminded Dragovic that McGee had said Sjodin could have died of a 
slash to her neck, choking with a cord, asphyxiation or from exposure.

Rodriguez has waived his right to be present at the hearing. The hearing 
resumes at 9 a.m. Thursday, June 22.

(source: The Globe)

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

The Death Penalty and Mental Illness: An Evolving Standard?


The use of the death penalty in the Americas dates to the 15th century when 
European settlers brought with them the practice of capital punishment. Because 
nowhere in the US Constitution is capital punishment explicitly addressed, the 
death penalty was imbued with intrinsic constitutionality by the Founding 
Fathers. The Fifth Amendment, Eighth Amendment, and Fourteenth Amendment (due 
process clause) of the Bill of Rights have attempted to provide guidelines on 
how capital punishment should be handled. The Fifth Amendment states that "no 
person shall be held to answer for a capital [crime], unless on a presentment 
or indictment of a Grand Jury," while the Eighth Amendment states that "nor 
cruel and unusual punishments [be] inflicted."

Although the death penalty was viewed as an acceptable form of punishment at 
the time the US Constitution was created, it did not take long for various 
states to begin to limit or even ban such practices. The 1st state to do so was 
Michigan in 1846. Today, 31 states still permit capital punishment. Although 
this number may represent a majority of the states, it may not represent the 
true national mood regarding capital punishment because many of these states 
have not had an execution in more than 10 years.

Evolving standards

Over the years, the US Supreme Court has ruled on many cases that have 
addressed the topic of evolving standards of decency in regards to the Eighth 
Amendment. The 1910 Supreme Court case Weems v US helped define the notion of 
evolving standards as a basis to view historically accepted punishments as no 
longer acceptable in modern society. In the Weems case, a man was sentenced to 
multiple years of "hard and painful labor [in chains]" for the crime of 
falsifying documents.

Although the use of "irons" was common in the 1700s, the Court found that its 
use was not appropriate for a sentence in the 1900s. The term "evolving 
standards of decency" was coined by Chief Justice Earl Warren in Trop v Dulles 
(1958) when he noted that, when determining what punishment the Eighth 
Amendment prohibits, "evolving standards of decency . . . mark the progress of 
a maturing society."1,2

The 1972 case of Furman v Georgia (1972) resulted in a brief national 
moratorium on the death penalty because of a 5 to 4 ruling that "[the death 
penalty] could not be imposed under sentencing procedures that created a 
substantial risk that it would be inflicted in an arbitrary and capricious 
manner."3 In an unusual scenario, each justice wrote his own opinion, with 
Justices Brennan and Marshall citing evolving standards of decency to explain 
why they believed the death penalty was unconstitutional.

The landmark cases of Atkins v Virginia (2002) and Roper v Simmons (2005) 
determined that because of evolving standards of decency, certain definable 
groups such as individuals with intellectual disability and minors could not be 
sentenced to death.4,5 In both instances, the Court, within a relatively short 
period, revisited the issue of an evolving standard after already having ruled 
on the issue, ie, execution of people with intellectual deficiencies previously 
addressed in Penry v Lynaugh (1989) and certain youths in Stanford v Kentucky 
(1989).6,7 The majority opinion for Atkins v Virginia, written by Justice 
Stevens, noted that the "consistency of the direction of change," but "not so 
much the number of these States [prohibiting the execution of individuals with 
intellectual disabilities]," was important in determining an evolving 
standard.4

The cases of Atkins v Virginia and Roper v Simmons are particularly interesting 
because the opinions were based on legal as well as scientific and medical 
principles. The legal principles that were discussed included whether the death 
penalty had a deterrent effect for these populations and whether these 
populations were at a fundamental disadvantage in defending themselves in the 
court system against the ultimate irreversible punishment. In Atkins v 
Virginia, Justice Stevens wrote, ". . . frequently [individuals with 
intellectual disability] know the difference between right and wrong and are 
competent to stand trial . . . [but] because of their impairments . . . by 
definition they have diminished capacities to understand and process 
information, to communicate, to abstract from mistakes and learn from 
experience, to engage in logical reasoning, to control impulses, and to 
understand the reactions of others."4

(source: Psychiatric Times)