[Deathpenalty] death penalty news----OHIO, ARIZ., USA

[Rick Halperin]

June 28




OHIO:

Cuyahoga County prosecutors to seek death penalty against man charged in f5 
killings


Cuyahoga County Prosecutor Michael O'Malley's office will seek the death 
penalty in the case of a North Canton man charged with killing 5 people earlier 
this month in Cuyahoga and Stark counties.

A grand jury on Tuesday indicted George Brinkman on charges of aggravated 
murder, aggravated burglary, kidnapping and offenses against a human corpse in 
the killing a woman and her adult daughters in North Royalton.

The charges include death specifications in the June 10 slayings of Suzanne 
Taylor, 45, and her daughters Taylor Pifer, 21, and Kylie Pifer, 18.

Investigators believe Brinkman used a knife to slit Taylor's throat before he 
strangled Kylie Pifer with a telephone cord and smothered Taylor Pifer with a 
pillow in their North Royalton home.

Brinkman is also charged in Stark County with murder in the deaths of a Stark 
County couple. Rogell Eugene John, 71, and his wife Roberta Ray John, 64, were 
found shot to death Monday afternoon at their home in Lake Township, the Stark 
County Sheriff's Office said.

Brinkman was arrested after a 9-hour standoff in Brunswick. A SWAT team 
surrounded a home on Valley Forge Drive late Monday after learning he was 
there.

He is being held on a $75 million bond.

(source: clelveland.com)






ARIZONA:

Arizona seeks to shut down effort to give defense attorneys direct victim 
access


A lawyer for 2 top state officials wants a federal judge to quash a bid by 
defense attorneys seeking access to crime victims and their families.

In new court filings, Assistant Attorney General O.H. Skinner tells U.S. 
District Court Judge Steven Logan there is no legal basis for the claim by the 
Arizona Attorneys for Criminal Justice that they have a First Amendment 
free-speech right to approach crime victims, despite a law to the contrary. If 
nothing else, Skinner said attorneys don't have the same First Amendment rights 
as everyone else, at least not when it comes to their role as lawyers for 
criminal defendants.

He also said that if the problem is with the Arizona law and how it is 
enforced, the challengers need to sue the people responsible for that - 
including state trial judges. And Skinner said any such challenge needs to be 
brought in Arizona courts when there is an actual dispute, not in a broad-based 
federal court attack.

Hanging in the balance is a statute that says defendants, their lawyers and 
their investigators can only initiate contact with crime victims through the 
prosecutor's office. That includes the direct victims but also family members.

Prosecutors are required to pass the request on. But they can also advise those 
the lawyer wants to interview that they have the legal right to simply say 
"no."

The basis is the Victims??? Bill of Rights, a 1990 voter-approved 
constitutional amendment designed to spell out the rights of crime victims and 
their families. It includes things like the right to be present during all 
stages of the trial, to be notified of all events and to refuse to be 
interviewed.

In filing suit against Gov. Doug Ducey and Attorney General Mark Brnovich, 
defense attorneys and the American Civil Liberties Union called the requirement 
to funnel requests for contact "an unconstitutional licensing requirement and 
prior restraint on speech."

More telling, they argued to Logan that the additional hurdle interferes with 
their ability to save the life of a client convicted of murder. That's based on 
their contention that they're required to try to persuade family members not to 
push for the death penalty - wishes prosecutors may follow.

Skinner, in his new legal filings, told Logan he needs to understand the 
importance of the law before he's tempted to void it.

"The impetus behind this constitutional amendment was that for too long victims 
of crime have been 2nd-class citizens," he wrote.

Skinner said arguments in favor of the measure would ensure that "victims would 
no longer be treated as just another piece of evidence."

Assuming there's a legal basis to challenge the law - a point Skinner is not 
conceding - he said it cannot be done by asking Logan to void it. Instead, he 
said, if a defense attorney is denied access to a crime victim or family, that 
should be raised on a case-by-case basis with the presiding judge.

"In any case where a plaintiff (attorney) represents a criminal defendant, that 
attorney can immediately raise the First Amendment challenge through a simple 
motion seeking leave to initiate contact with a victim directly," Skinner 
wrote.

Anyway, he argued, the request to block enforcement of the law is flawed.

Skinner said federal judges can grant injunctions only if those who file suit 
can show a "realistic danger" to themselves. But he told Logan there is no 
evidence that any criminal defense attorney is going to be prosecuted for 
breaking the law by directly approaching crime victims and their families.

"The statute specifies no civil or criminal penalties," Skinner wrote. What 
that leaves, he said are "broad, unsupported, passive-voice allegations that 
defense attorneys and investigators have been subjected to professional 
discipline and criminal charges for violating the statute."

No date has been set for a hearing on the state's motion to dismiss the 
lawsuit.

(source: tucson.com)






USA:

Death-penalty symposium: The court keeps treating a fatally diseased death 
penalty


As Justice Stephen Breyer forecasted 2 terms ago in Glossip v. Gross, the 
Supreme Court has continued its project of "patch[ing] up the death penalty's 
legal wounds 1 at a time." This term, it granted relief in 3 death-penalty 
cases, 2 from the nation's leading executioner, Texas, and one from the leader 
in death-row prisoners per capita, Alabama. And it denied relief in a 3rd Texas 
case (Davila v. Davis). As these cases show, the states' applications of the 
death penalty have exposed individuals to execution who should have been 
protected because of their intellectual disability (Moore v. Texas), who were 
denied access to adequate tools of the defense (McWilliams v. Dunn), and whose 
verdicts were infected by racial prejudice (Buck v. Davis). The decisions 
granting relief are to be celebrated, but they address only the symptoms, not 
the underlying problem, recognized more than 40 years ago in Furman v. Georgia: 
Administration of the death penalty is inescapably arbitrary.

Intellectual disability

In Moore, the court did what Texas advocates and developmental-disability 
advocates had long asked: It struck Texas' Briseno factors - used to exclude 
intellectually-disabled prisoners from the Eighth Amendment protection against 
execution, and named for State v. Briseno, in which Texas' high criminal court 
relied for its idiosyncratic definition of mental disability not on current 
medical science, but on the character Lennie in Of Mice and Men. But the court 
did much more than that. It rejected other non-scientific factors often 
employed to deny claims of intellectual disability under Atkins v. Virginia, 
and reaffirmed that science, not stereotypes, should govern.

A diagnosis of intellectual disability requires 3 things: 1) significantly 
subaverarge intellectual functioning (typically measured by an IQ score roughly 
two standard deviations below the mean); 2) adaptive-functioning deficits; and 
3) an onset during childhood, before reaching 18. As the court recognized 3 
years ago in Hall v. Florida, intellectual disability is a condition, not an IQ 
score, and proper diagnosis thus places great emphasis on the 2nd requirement, 
related to adaptive functioning.

But before the ink of the 2002 Atkins decision had dried, junk-scientific 
practices - unrelated to determinations of intellectual disability in other 
contexts - sprang up across death-penalty states. Before Hall, prosecution 
experts routinely discounted claims if the defendant had even a single IQ score 
that fell above a hard cutoff of 70, despite the countervailing views of the 
medical community. When considering adaptive deficits, many state experts 
similarly improperly sought to exclude defendants who had any areas of strength 
and contended, without medical support, that a single area of strength 
outweighed the individual's otherwise qualifying deficits in other areas. In 
some cases, state experts created "strengths" by pointing to performance in 
institutional (non-community) settings, such as prison, a wholly inappropriate 
analysis, or argued that deficits possibly caused by mental illness (think 
schizophrenia rather than intellectual problems) should not count. The 
prosecution relied on these tactics to argue for the execution of prisoners who 
would otherwise be deemed intellectually disabled and courts, both in and out 
of Texas, adopted the prosecutors' arguments all too often.

In Moore, the court found an opportunity not only to strike down the 
Lennie-based Briseno factors, but to condemn all of the above practices. 
Writing for the court, and applying Hall's directive to look strictly to 
medical standards for determining intellectual disability, Justice Ruth Bader 
Ginsburg identified and rejected each of the state's improper practices as 
contrary to sound medical judgment. Her opinion should settle many of the 
current arguments in pending Atkins claims, and help to restore the protection 
Atkins was meant to provide in the first instance.

Race and the death penalty

For law professors teaching federal habeas-corpus litigation, the procedural 
posture of Buck reads like a messy issue spotter. To prevail, Texas death-row 
prisoner Duane Buck had to thread the needle of several doctrines, showing 
that: (1) A federal district court incorrectly denied his motion, under Federal 
Rule of Procedure 60(b)(6), to reopen his (previously unsuccessful) federal 
habeas petition attacking his Texas death sentence; and (2) the U.S. Court of 
Appeals for the 5th Circuit erroneously denied him a certificate of 
appealability (3) based on recent Supreme Court decisions that would excuse a 
prisoner's procedural default in failing to raise trial counsel's 
constitutionally ineffective assistance in state post-conviction review when 
(4) state post-conviction counsel were themselves ineffective in failing to 
raise trial counsel's ineffectiveness.

But the heart of the case was always race and the death penalty. Duane Buck's 
death sentence was not based only on the circumstances of his crime and life, 
but on his skin color as a Black man. An expert in his case, Dr. Walter 
Quijano, predicted that Buck could pose a threat of future violence if not 
executed because African-Americans are more likely to commit violent crimes.

Texas had conceded constitutional error in the 5 other death-penalty cases 
tainted by similar testimony from Quijano. But Texas sought to defend Buck's 
death sentence on the ground that in his case it was defense counsel who 
introduced Quijano's noxious testimony (even though the state prosecutor then 
emphasized this testimony in summation). Writing for the court, Chief Justice 
John Roberts saw no distinction, holding that Buck's race was improperly "put 
to the jury" as a basis for sentencing him to death.

The chief justice wrote, "Our law punishes people for what they do, not who 
they are." With that, threading the needle was simple. Trial defense counsel 
was constitutionally ineffective for presenting Quijano's pernicious and 
prejudicial testimony. The district court should have permitted Buck to reopen 
his federal habeas petition, and the 5th Circuit erred by denying him a 
certificate of appealability. And, under the court's (then new) precedent in 
Trevino v. Thaler, Buck should have been permitted to reopen his case in order 
to argue that his procedural default of the trial ineffectiveness claim (in his 
1st state post-conviction litigation) was caused by post-conviction counsel's 
ineffective failure to argue that trial counsel had been ineffective in 
presenting Quijano in the 1st instance. Only woefully unprepared 
post-conviction counsel could have missed this claim.

3 decades ago, in McCleskey v. Kemp, the court rejected constitutional 
challenges to the death penalty based on statistical analysis showing the race 
of the victim to be a substantial factor in determining which guilty offenders 
in Georgia are sentenced to death. Between then and now, this study has been 
replicated in many states, while Black and Latino Texas prisoners were being 
sentenced to death based on Quijano's pernicious claims, and, as the court 
found last term in Foster v. Chatman, while Black jurors were being excluded 
from death-penalty trials based on racial discrimination. Because the death 
penalty is a direct descendant of lynching, the taint of racial discrimination 
is endemic. And the Supreme Court will continue to be called upon to cure the 
incurable.

That gets us closer to the larger problem this term's cases reflect. The death 
penalty cannot be healed. McWilliams and Davila yet again show the inadequate 
representation many poor people facing execution receive - McWilliams at the 
trial level, where the defendant was denied an appointed mental-health expert 
to aid in his defense, and Davila at the critical level of direct appeals. The 
court granted relief in McWilliams. But it denied relief in Davila - not 
because appellate counsel was constitutionally effective - but because, in a 
5-4 vote, it decided that a procedurally defaulted claim of ineffective 
assistance of appellate counsel could not be excused, and thereby considered in 
federal habeas review, due to ineffective post-conviction counsel's failure to 
raise the claim. As both cases illustrate, across capital death-penalty 
jurisdictions, ineffective lawyers for the accused have long plagued the 
proceedings at multiple stages: at trial, on direct appeal, and in state 
post-conviction review.

Numerically, most problematic cases have come from an earlier era. 2 of the 
prisoners who prevailed this term were sentenced to death before 1990 (Moore in 
1980 and McWilliams in 1986) and one before 2000 (Buck in 1997). Nationally, 
prosecutors won 173, 301 and 265 death sentences per year in those 3 years.

Of the nearly 3,000 prisoners remaining on American death rows, most come from 
that earlier era - a large fraction from Texas. If the court were to look at 
those cases up close, as it has with the cases this term, it would likely find 
the same problems of ineffective assistance, racial bias and improper denials 
of Atkins claims.

Even though the same errors persist today, and new ones have arisen, we have 
generally moved away from executions, imposing only 30 new death sentences 
nationwide in 2016. But a handful of states still push towards executions. They 
line up for the gurney increasingly geriatric prisoners, condemned in the 
earlier era - including the 4 defendants Arkansas rushed to execute this spring 
as a lethal-injection drug was expiring. The more these old cases come to the 
court's attention in coming terms, the more likely the court will be to realize 
it can no longer content itself with treating only the symptoms without 
confronting the larger problem.

(source: Brian Stull is a senior staff attorney with the Capital Punishment 
Project of the American Civil Liberties Union. He filed an amicus brief in 
support of Bobby Moore in Moore v. Texas----scotusblog.com)

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

Death Penalty Abolitionists arrested at the United States Supreme Court in 
January will face trial in the DC Superior Court of Judge Robert Salerno (500 
Indiana Ave. NW) starting at 9am on June 28, 2017.


Among those on trial are faith leaders, including noted Evangelical Christian 
author Shane Claiborne; murder victim family members including Sam Reese 
Sheppard, the son of Dr. Samuel H. Sheppard (see 1966 SCOTUS decision in 
Sheppard V. Maxwell); exonerated Ohio death row survivor Derrick Wayne Jamison; 
Randy Gardner, brother of the last prisoner executed by firing squad in the 
United States, and other leading Abolitionists.

The defendants were arrested for unfurling a banner reading "STOP EXECUTIONS!" 
on the steps above the plaza at the United States Supreme Court on January 
17th, 2017, the 40th anniversary of the 1st execution under contemporary 
capital punishment laws, and the day before Virginia executed Ricky Gray. 
Gray's case was pending before SCOTUS at the time of the protest.

"The charge is 'parading' and whatever the technical term is for holding a 
banner with a message on it," said Abraham Bonowitz, one of the defendants. "We 
maintain that the First Amendment of the U.S. Constitution guarantees our 
rights to assembly and expression. We felt a moral imperative to say, 'Enough 
killing,' as we implored the Court to stop the next scheduled execution. Our 
voices of experience bear witness as to why it was necessary for us to take 
this action, and why it is necessary to abolish the death penalty."

RESOURCES

Images from the Jan 17 Action: https://goo.gl/fzfT0P

Defendant list with statements from each: 
http://www.abolition.org/jan17/2017/ToolkitDiscussionGuide.pdf

Background & additional details: http://www.abolition.org/jan17/index.html

(source: Abolitionist Action Committee)