[Deathpenalty] death penalty news----N.C., LA., OHIO, NEB.

[Rick Halperin]

July 30


NORTH CAROLINA:

Motion: Prosecutors used race in jury selection in Winston-Salem murder trial 
involving killing of Kmart security guard


A Forsyth County man on death row for killing a Kmart security guard in 1994 
alleges prosecutors used a training document to hide the fact that they 
considered race in striking 5 potential jurors during his trial.

Russell William Tucker, 51, was convicted in February 1996 of 1st-degree murder 
in the death of Maurice Travone Williams. Tucker was accused of shooting 
Williams in the chest on Dec. 8, 1994, after Tucker walked out of the Kmart 
store in clothing Williams believed Tucker had stolen.

According to testimony, Tucker shot at one security guard and missed. Williams 
turned and ran, and Tucker shot Williams in the chest, with the bullet piercing 
Williams' aorta and both lungs. Tucker fired 5 times into a police car as he 
ran away. 1 officer was wounded.

On Feb. 21, 1996, Tucker was sentenced to death, but the N.C. Supreme Court 
stayed his execution in 2000 after one of his appellate attorneys admitted that 
he intentionally botched Tucker's appeal. Tucker currently has a pending appeal 
in U.S. District Court in the Middle District of North Carolina as well as a 
separate appeal in Forsyth Superior Court. His attorneys filed a brief on his 
behalf on Thursday. It was a response to court papers filed in May by a 
prosecutor with the N.C. Attorney General's Office.

The crux of his latest appeal in Forsyth Superior Court is in a document 
entitled "Batson Justifications: Articulating Juror Negatives." "Batson" refers 
to a 1986 U.S. Supreme Court decision that said prosecutors cannot get rid of 
potential jurors solely based on race. The decision involved the use of what 
are known as peremptory challenges, where prosecutors and criminal defense 
attorneys can remove a potential juror without giving a reason. A criminal 
defense attorney can object based on the Supreme Court decision if that 
attorney believes prosecutors are using race in removing jurors. And if asked 
by a judge, prosecutors have the opportunity to give a non-racial reason for 
removing the juror.

The problem, according to Tucker's attorneys, is that prosecutors didn't really 
have non-racial reasons for removing every 1 of the 5 black people in the jury 
pool for Tucker's trial. And that's where the document comes into play.

Elizabeth Hambourger and Mark Pickett, Tucker's attorney, say the 2 Forsyth 
County prosecutors in the case - David Spence and Robert Lang - lifted language 
from the document when they gave their reasons in court for why they removed 
the black jurors. Words and phrases such as "inappropriate," "monosyllabic," 
"body language," or a juror having "no stake in the community" came directly 
from the "Batson" document and were used as justifications for getting rid of 
black jurors, they argued.

Attorneys for the N.C. Attorney General's Office deny those allegations in 
court papers, arguing that the trial record clearly shows that race was not a 
factor in jury selection and that the "Batson" document simply re-enforced to 
prosecutors that they are not to consider race when deciding to remove a 
potential juror. Lang, now an Assistant U.S. Attorney, declined to comment. 
Spence, a prosecutor in Carteret, Craven and Pamlico counties, did not respond 
to a message left at his office Friday. Forsyth County District Attorney Jim 
O'Neill said he cannot comment on a pending case.

Document in Racial Justice Act litigation

Hambourger and Pickett said in court papers that they wouldn't have found the 
document if it had not been for litigation surrounding the now-repealed Racial 
Justice Act. The Racial Justice Act became law in 2009, and more than 90 % of 
death-row inmates filed claims under the law. The act allowed death-row inmates 
to challenge their death sentences if they believed racial bias played a role 
in their case. If they were successful, they could get their death sentences 
commuted to life in prison without the possibility of parole. Republican state 
legislators repealed the Racial Justice Act in 2013, but there is still pending 
litigation.

Errol Duke Moses, another death-row inmate from Forsyth County, also filed a 
claim. Under the law, inmates were allowed to use statistics and evidence from 
other cases to prove a pattern of racial discrimination. A judge ordered 
Forsyth County prosecutors to turn over their files in other death-penalty 
cases to Moses' attorneys. That included Tucker's case.

And the "Batson" document was contained in those documents. State prosecutors 
said Tucker could have found that document earlier. 2 previous attorneys for 
Tucker filed sworn affidavits saying that they did not see the "Batson" 
document in previous discovery.

"The Batson Justifications document is central to Tucker's claim because it 
places the prosecutor's strike justifications in their true context," 
Hambourger and Pickett write in a brief filed Thursday. "The existence of the 
document in the prosecutor's file and the prosecutor's use on the record of 
words and phrases obviously taken directly from the document show that the 
prosecutor did not have valid race-neutral reasons for his strikes - if he did, 
he would not have needed to refer to a list of prefabricated reasons prepared 
by someone else long before trial."

The use of the document by Lang shows that prosecutors were intentionally 
discriminating against blacks in jury selection, they said.

"The document does not purport to train prosecutors on how to avoid bias in 
jury selections, or otherwise suggest alternate strategies to use that might 
avoid the taint of racial discrimination," they write. "Rather, it quite openly 
directs prosecutors to use certain pre-packaged excuses when they face an 
objection for removing black ... members."

They said this is just one example of a long historical pattern of Forsyth 
County prosecutors disproportionately excluding blacks from juries. They cite a 
Michigan State University study, which was used in the majority of Racial 
Justice Act claims. That study said that from 1990 to 2010, Forsyth County 
prosecutors removed potential black jurors at a rate 2.25 times higher than 
they got rid of other jurors in death penalty cases.

A recent study by three law professors at Wake Forest University found that in 
2011, Forsyth County prosecutors struck potential black jurors from all types 
of jury trials at three times the rate they struck white potential jurors. That 
rate was higher than Durham, Charlotte, Raleigh, Greensboro and Fayetteville, 
according to the motion.

Danielle Marquis Elder, a senior state prosecutor with the N.C. Attorney 
General's Office, denied those allegations in a written response filed in May 
in Forsyth Superior Court. She argues that Tucker should have raised these 
issues in earlier appeals and should not be allowed to raise them now.

Elder also argued that Lang laid out reasons not contained in the "Batson" 
document for why he removed certain black jurors, including that 1 juror had 
fallen asleep. Another black juror was consistently vague about whether he 
supported the death penalty.

Hambourger and Pickett said that Lang removed black jurors but allowed white 
jurors to remain, even though the white jurors were just as vague about their 
support of the death penalty as the black jurors.

(source: Winston-Salem Journal)






LOUISIANA:

Gov. Edwards dodging questions on death penalty delivers easy target for AG 
Landry


With a less-than-firm position on Louisiana's use of the death penalty, Gov. 
John Bel Edwards has given his regular sparring partner, Attorney General Jeff 
Landry, a foothold to needle the governor in the summer's political doldrums.

Landry, a Republican considered a possible challenger to Edwards next year, 
suggests the Democratic governor's lackluster support for Louisiana's use of 
capital punishment keeps Edwards from pressing to carry out Louisiana's pending 
executions.

And Edwards' lukewarm response to questions about his personal position on 
whether the death penalty is an appropriate form of punishment allows Landry to 
continue speculating that the governor is deliberately dragging his feet on 
enforcing state law.

Louisiana's last execution was in 2010. 71 inmates are on death row in the 
state.

The spark for this latest Edwards/Landry feud was a federal court order this 
month prohibiting Louisiana from carrying out any death sentences until 
mid-2019.

The Edwards administration asked for the extension, citing trouble getting 
lethal injection drugs. In response, Landry's office said it was withdrawing 
from defending the corrections department against the lawsuit challenging its 
lethal injection protocols.

Landry said the biggest obstacle is Edwards' "unwillingness to proceed." He's 
slammed the governor on the issue in letters released to news outlets, in 
interviews and on social media.

Though reporters have continually asked, the governor won't say if he 
personally supports the death penalty. He dodges when questioned about it.

Asked last week if he favored capital punishment, Edwards told reporters: "The 
law of the state of Louisiana allows for the death penalty, and it prescribes a 
certain method." Then, he explained: "It is not possible to carry out the death 
penalty in the state of Louisiana because the drug cocktail is not available to 
use."

Another reporter tried again, asking a similar question. Edwards replied: "I 
will do what I am required to do as chief executive officer of the state of 
Louisiana who takes an oath to the laws and to the constitution of our state."

Landry claims the governor is using the difficulty obtaining lethal injection 
drugs as an excuse. He points to other states that have found ways to access 
the drugs and execute prisoners. Landry said continued delays keep victims' 
families from "getting justice" for horrific crimes.

Edwards administration officials said the ideas offered by Landry are 
unworkable. They said if Landry felt so strongly about restarting executions in 
Louisiana, he could have encouraged legislators to rewrite the laws as some 
other states have done, to expand available execution methods or shield 
information about the drugs they use and how they obtain them.

The governor accused Landry of trying to "score political points" by "using 
victims of crime."

"The families of victims are not well-served by politicians who spout off about 
this issue without real solutions," Edwards wrote the attorney general.

Landry's office said it tried to work with the Edwards administration behind 
the scenes and only started hammering the governor publicly when the latest 
court filing showed Edwards wasn't interested in carrying out executions.

If Edwards supported capital punishment, Landry said, he'd say so.

"The governor could put this all to bed. He could answer the question," Landry 
said.

To be sure, Edwards faces competing pressure points on the issue. He comes from 
a family of law enforcement officials, stretching across several generations. 
He's also Catholic, and church leaders oppose the death penalty, with Pope 
Francis saying it violates the Gospel.

Landry, too, is Catholic. But he's direct in his support of the death penalty. 
He's sent Edwards proposed draft language that lawmakers could use to allow 
Louisiana to execute people by nitrogen gas, hanging, firing squads or 
electrocution.

Asked if he'd support expanding Louisiana's execution methods, Edwards said: 
"I'm not inclined to go back to methods that have been discarded because 
popular sentiment turned against them or maybe some methods that were deemed to 
be barbaric and so forth."

"We have a law in place, and we will continue to try to search for solutions 
around that law, lethal injection. But for example, hangings and firing squads? 
No, I am not," the governor said.

(source: The Advocate)


OHIO:

Ohio governor spares record number of death row inmates


Ohio Gov. John Kasich has finished dealing with executions for the remainder of 
his time in office following a modern-era record of death penalty commutations.

The Republican governor spared 7 men from execution during his 2 terms in 
office, including commutations on March 26 and July 20. Kasich allowed 15 
executions to proceed, including the July 18 execution of Robert Van Hook for 
strangling, stabbing and dismembering a man he met in a Cincinnati bar more 
than 30 years ago.

Not since Democrat Mike DiSalle spared 6 death row inmates in the early 1960s 
has an Ohio governor spared so many killers during periods when the state had 
an active death chamber. DiSalle allowed6x executions to proceed.

Democratic Gov. Richard Celeste commuted 8 death sentences just days before 
leaving office in 1991, but none of those inmates' executions was imminent.

Kasich "appreciates the gravity of this authority and therefore carefully 
considers these cases to make decisions that further justice," said spokesman 
Jon Keeling.

Kasich's immediate predecessor, Democratic Gov. Ted Strickland, commuted 5 
death sentences and allowed 17 executions during his 4-year term.

Ohio resumed executions in 1999 under Gov. Bob Taft after a 36-year gap. Taft, 
a Republican, allowed 20 executions to proceed and spared just 1 inmate based 
on concerns raised by DNA evidence not available at the time of trial.

Nationwide, governors have spared 288 death row inmates since the U.S. Supreme 
Court upheld the constitutionality of capital punishment in 1976, with a 
handful spared each year over the past decade. That doesn't include mass 
clemencies in states - such as New Jersey in 2007 - where the death penalty was 
abolished and entire death rows were emptied.

Sparing inmates is not the political death knell it might have been in decades 
past, thanks to concerns about innocence raised by DNA testing and the role of 
severe mental illness on some offenders' behavior.

"Kasich's decisions to commute reflect a societal shift away from an 
unquestioning belief in the value of the death penalty or at least the value in 
every case," said Lori Shaw, a University of Dayton law professor.

Strickland said he doesn't think he paid a political price for his 
commutations, which he tried to use "as judiciously and appropriately as I 
could."

Taft said he's now opposed to capital punishment except in the most severe 
cases, such as acts of terrorism, multiple victims or the killing of a police 
officer.

He also backs findings of a state Supreme Court commission that recommended 
against the death penalty for inmates suffering severe mental illness at the 
time of the crime, and in cases where a homicide was committed during other 
crimes such as burglaries or robberies.

"The climate is a little different in regard to the death sentence today," Taft 
said. "Governors have more latitude or leeway to consider a number of factors 
that may not have been considered in prior times."

(source: Associated Press)

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

Serial killer sentencing enters week 2: What's happened so far


Sentencing for convicted serial killer Anthony Kirkland enters week 2 today, 
with jurors hearing the end of Kirkland's 9-hour confession to Cincinnati 
police after being arrested in 2009.

Kirkland killed 3 women and 2 teenagers, burning their bodies, then fleeing. 
First he killed Leona Douglas in 1989, resulting in a 16-year prison sentence. 
He was released in 2003 and then between 2006 and 2009 killed 4 more times.

Kirkland is facing the death penalty for the deaths of Casonya Crawford, who he 
killed in 2006 and Esme Kenney, who he killed in 2009. Kirkland was caught the 
same day he killed Esme.

In a confession to police, he admitted to killing the teenagers and also Mary 
Jo Newton, 45, and Kimya Rolison, 25, both in 2006. Kirkland was convicted for 
all 4 deaths in 2010 and was sentenced to death penalty. The Ohio Supreme Court 
last year overturned the sentence, which was ordered for the deaths of the teen 
girls.

A new jury -- 6 men and 6 women, 2 of them black -- were chosen last week in 
the new sentencing hearing.

Kirkland is serving a life prison term in the deaths of the adult women.

Tears and stories about long searches for loved ones

Jurors heard from the victims' families. This was, at times, heartbreaking 
testimony, which brought tears to some in the courtroom.

Casonya's grandmother, Patricia Crawford, testified it was not unusual for 
Casonya to sneak out of the house to go see her mother, who had lost custody of 
the children. But never before had she not called, not gone to school, not 
returned home quickly. Casonya's burned body was found a week later.

Jurors heard testimony from Newton's sister, Barbara McAvoy, who said her 
sister suffered mental illness and the family repeatedly tried to get her help. 
Then one day she just didn't come home.

Rolison's father, Gary Rolison, told jurors Rolison had a drug problem, but had 
gone to rehab. She was supposed to move back home to California with her 2 
children. But then one day she just stopped calling. He broke down during his 
testimony.

Esme's mother, Lisa Kenney, described the painful hours between when Esme went 
missing and when police caught Kirkland. Her testimony: "I knew something was 
wrong."

Kirkland's confession

When two bodies turned up brutalized and burned in 2006, Cincinnati homicide 
detective Keith Witherell suspected the same person killed both victims.

But the problem was, the killer left no clues. Witherell kept those cases in 
the back of his mind and when Anthony Kirkland was arrested the following year 
for threatening to kill his son in a home near where the bodies were found, 
Witherell thought he might have found his homicide suspect.

In that police interrogation, Kirkland denied knowing Casonya Crawford, 14, who 
was strangled and burned. And Kirkland admitted to knowing Mary Jo Newtown, 45, 
saying she was a prostitute he had had sex with, but denied knowing anything 
about her death.

Witherell was forced to leave it at that. Until Esme Kenney, 13, was abducted 
and killed the same way, with Kirkland arrested as an immediate suspect.

Witherell, who has been a homicide detective for 17 years, is credited with 
prying a confession of Kirkland that definitively tied Kirkland to four 
killings.

"Things got out of hand," Kirkland told the detective.

Kirkland acts out

Last Monday morning, as jury selection began later because Kirkland refused to 
go to court. The problem: He didn't like his breakfast. Deputies in the 
Hamilton County jail donned protective gear and then forced Kirkland into a 
restraint chair until he promised to go to court.

The judge, while the jury was out of the room, told Kirkland, "This trial is 
going forward with or without your cooperation. Hopefully, it is with your 
cooperation. If not, you will be brought in in shackles and handcuffs, ... 
we'll use a restraint chair if necessary.

"I don't want to do that and I don't think you want the jury to see that," the 
judge added.

Kirkland is mentally ill

Kirkland's attorneys are asking jurors to impose a life prison term without 
parole. During opening statements, lawyer Tim Cutcher told jurors Kirkland 
sought help 8 times, between later 2008 and early 2009, with no help coming 
other than short-term hospitalizations.

Kirkland has a diagnosed mental illness they said, and suffers from 
post-traumatic stress disorder after being mentally and physically abused as a 
child.

(source: cincinnati.com)






NEBRASKA:

Sen. Ernie Chambers makes last-ditch effort to head off Moore execution


The state's leading opponent of capital punishment is making a last-ditch 
effort to stop Nebraska's planned Aug. 14 execution.

State Sen. Ernie Chambers of Omaha, in a letter, is asking pharmaceutical giant 
Pfizer to take legal action to force the return of lethal injection drugs 
expected to be used in the execution of double-murderer Carey Dean Moore.

Chambers also urged state officials to comply with Pfizer's October 2017 demand 
that Nebraska voluntarily return the drugs - a plea that reportedly has been 
ignored by the state.

The senator called on the company to follow the recent example of another drug 
manufacturer and go to court to force the return of the lethal injection drugs.

"There is something (Pfizer) can do to protect their reputation, their name and 
the integrity of their products. ... The doors of the court are open to them," 
Chambers said in an interview as he was drafting the letter on Friday.

"If they don't do anything, it calls into question their sincerity and their 
principles and values," he said.

A Pfizer spokesman, when reached Friday, said the company has done all it plans 
to do to get its products back.

"We've asked for it and we haven't gotten it back," spokesman Steven Danehy 
said. "We're not going to go any further than that."

Earlier this month, an execution in Nevada was temporarily postponed when 
another pharmaceutical company, Alvogen, filed a lawsuit against the State of 
Nevada. The lawsuit claimed that Alvogen was duped into providing a drug that 
was to be used in a July 11 execution.

Alvogen, like Pfizer, has a policy banning the use of its products in 
executions.

In October, Pfizer sent a letter to Nebraska corrections officials demanding 
the return of drugs if they were to be used in a lethal injection. The company 
makes 3 of the 4 drugs - diazepam, fentanyl citrate and potassium chloride - 
planned to be used in the Aug. 14 execution.

But the plea fell on deaf ears.

Danehy said that to his knowledge, Nebraska hadn't returned any of the drugs, 
even though Pfizer offered to refund the purchase price.

Officials with the Nebraska Department of Correctional Services and the office 
of Gov. Pete Ricketts have declined to say if the state obtained any drugs from 
Pfizer. The officials have declined to reveal the source of the drugs scheduled 
to be used, which has prompted lawsuits by the ACLU of Nebraska as well as 
Nebraska news media.

A national authority on capital punishment, Robert Dunham of the Washington, 
D.C.-based Death Penalty Information Center, said Pfizer typically doesn't send 
"demand" letters unless it suspects that a state has obtained drugs 
manufactured by it.

Sandoz, the maker of a 4th drug to be used in the Nebraska execution, 
cisatracurium besylate, also has indicated that it does not want its product 
used in lethal injections. But it, like Pfizer, has not taken its objections to 
court.

The stances of the pharmaceutical companies - that their products not be used 
to end a life - have been among the hurdles faced by states in obtaining the 
drugs needed to carry out a lethal injection execution.

Moore has said he no longer wants to fight the state's efforts to execute him. 
Some observers have said that a lawsuit from a pharmaceutical company may be 
one of the few remaining options to block the execution.

If the execution goes forward, it would mark the first lethal injection in 
Nebraska and the state's 1st use of capital punishment in 21 years.

Chambers, in his 2-page letter to Pfizer, quoted Shakespeare and suggested that 
the company may be trying to "have it both ways" by asking for the drugs' 
return but not taking legal action, as Alvogen did, to force it to happen.

"Does Pfizer's desire to protect its integrity, good name and public image rise 
to the level of Alvogen's?" Chambers wrote in his letter. "Actions speak louder 
than words, says the popular axiom."

The 4-drug protocol Nebraska plans to use has never been used in an execution 
in the U.S.

Knowing the source of the drugs, and their purity, is important in avoiding 
unnecessary pain and suffering of the condemned or a botched execution, ACLU 
officials have said. The civil rights group has cited Nebraska's past problems 
in obtaining lethal injection drugs from reputable sources. In 1 instance, 
Nebraska paid $54,000 to a broker in India for lethal injection drugs and never 
received the drugs, or a refund.

A recent World-Herald story revealed that the same distributor that provided 
lethal injection drugs to the State of Nevada also has a contract with the 
State of Nebraska to supply pharmaceuticals.

Officials with Cardinal Health have declined to say if it is the distributor 
providing Nebraska its supply of lethal injection drugs.

(source: Omaha World-Herald)