[Deathpenalty] death penalty news----TEXAS, PENN., N.C., FLA., OHIO, IND.

[Rick Halperin]

November 8




TEXAS:

Texas prosecutors, death row inmate agree in high court case | The Tribune


Harris County prosecutors have filed a motion with the U.S. Supreme Court 
asking it to determine that a Texas appeals court was wrong to rule that a 
death row inmate is not intellectually disabled.

The filing Tuesday by the Harris County district attorney's office comes after 
the Texas Court of Criminal Appeals in June ruled that Bobby James Moore is 
mentally capable enough to execute.

The office has previously argued that Moore's intellectual disability should 
result in a life sentence.

The appeals court finding prompted Moore's attorneys to file their 2nd appeal 
to the Supreme Court.

It's unusual in a death penalty case for prosecutors to agree with the defense 
that a defendant should be spared from execution.

Moore was convicted of fatally shooting a Houston grocery store clerk in 1980 
during a robbery.

(source: Associated Press)





PENNSYLVANIA:

Forensic scientist testifies in Greensburg murder/torture death penalty trial


Investigators found no physical evidence that a mentally disabled woman was 
raped days before she was stabbed to death in 2010, a witness testified 
Wednesday at the death penalty trial for 1 of 6 Greensburg roommates convicted 
in the murder.

Forensic scientist Sarah Kinneer told jurors an examination of evidence 
collected during the autopsy of 30-year-old Jennifer Daugherty revealed no 
genetic material or DNA to suggest she was raped during the course of her 
captivity.

“A lack of evidence is not unusual in sexual assault cases,” Kinneer said.

Her testimony came during the third day of the resentencing trial for Melvin 
Knight, 29, formerly of Swissvale, Allegheny County, who pleaded guilty six 
years ago to the 2010 torture slaying of Daugherty. Prosecutors said Knight 
fatally stabbed Daugherty, who had been held captive for more than two days, 
beaten and tortured before she was killed.

For the second time, the prosecution is seeking a death sentence for Knight. In 
2012, he was given the death penalty, but in 2016 a state appeals court vacated 
that penalty and ordered a new sentencing trial.

Prosecutors contend Knight raped Daugherty during her captivity. While he was 
never charged with a sexual assault, District Attorney John Peck said jurors 
should consider it as a reason to impose the death penalty.

Kinneer was questioned at length by Assistant District Attorney Leo Ciaramitaro 
about why no physical evidence of rape was found. She testified physical 
evidence of a sexual assault could have been washed away or eliminated if a 
rape occurred several days before Daugherty’s death. She also suggested not all 
sexual assaults result in bodily fluids being left behind.

Knight previously denied raping Daugherty but has not contested his role in the 
killing. Knight claims he is ineligible for the death penalty because of a low 
intellect and a history of mental illness.

Investigators contend Daugherty was killed in the bathroom of the Pennsylvania 
Avenue apartment where she was held by Knight and his roommates. Evidence that 
attempts were made to clean blood from throughout the apartment were found 
during the investigation, according to testimony Wednesday from retired 
Westmoreland County Detective Hugh Shearer.

Knight’s sentencing trial is expected to continue Thursday before Judge Rita 
Hathaway.

(source: triblive.com)




NORTH CAROLINA:

State seeking death penalty against Trooper Kevin Conner’s accused killer


1 of the 2 suspects charged in the shooting death of NC State Trooper Kevin 
Conner will face the death penalty.

Columbus County District Attorney Jon David said earlier today a Columbus 
County grand jury issued an Indictment for 1st degree murder against Chauncy 
Askew in the shooting death of Trooper Conner.

David said his office intends to seek the death penalty against Askew.

“Earlier this week, I convened a panel of senior prosecutors to meet with me to 
scrupulously review the evidence and carefully consider the relative 
culpability of both defendants who are charged in the shooting death of Trooper 
Kevin Conner,” David wrote in a news release. “At this time, the State elects 
to seek the death penalty against Chauncy Askew.  The case against Raheem Davis 
remains in District Court and my office will make a charging determination 
about him at a later date.”

Raheem Davis was arrested on October 17, just hours after Conner was shot 
during a trafic stop on Highway 701 in Columbus County.

Investigators say Davis and Askew were together in the truck Trooper Conner 
pulled over. Surveillance video from a convenience store shows Askew getting in 
the driver’s seat of the truck. Just 15 minutes later Conner pulled the truck 
over for speeding and was shot to death.

After a manhunt, officers found Davis in Fair Bluff and arrested him. Several 
days later, law enforcement arrested Askew in South Carolina.

The district attorney says Davis has a probable cause hearing in January. The 
State has filed a notice with the Clerk’s Office to request a Rule 24 hearing 
for Askew at a future date. The purpose of a Rule 24 hearing is for the court 
to determine whether the State has presented sufficient evidence of aggravating 
circumstances to warrant the death penalty designation.

“This alleged crime is reprehensible because it was perpetrated against a law 
enforcement officer who was brutally gunned down in the line of duty,” said 
District Attorney Jon David. “Officers perform a dangerous job when they patrol 
our street to serve and protect our community. The same laws that they seek to 
enforce should also serve to protect them. Given the facts of this case my 
office will pursue nothing less than the maximum punishment.”

(source: WWAY news)




FLORIDA:

Florida sees fewer death penalty cases because of new rule


Fewer convicted killers in the state of Florida are getting the death penalty 
because of a change in the sentencing process.

In 2017, a state Supreme Court ruling forced Florida juries to vote unanimously 
to decide on a death sentence. Before that, it only required a simple majority.

One of the first high-profile trials to play out under the new rules was the 
murder of a 5-year-old Orange County boy killed by his own father. Darell Avant 
Sr. was convicted in June after beating Darell Avant Jr. for getting trouble at 
school one day. When the boy passed out, his father Googled “How to check an 
infant’s pulse” rather than call 911.

The elder Avant was sentenced to life in prison, but only a few years ago, that 
life sentence could have instead been a death penalty.

“There were people on the jury who, if they had their way, would have given him 
the death penalty,” said one of the jurors in Avant’s trial, who talked to 
Channel 9 on the condition of protecting her identity. “None of us thought that 
he meant to kill his son.”

The new rule for juries makes the jury selection process more delicate for 
prosecutors and defense attorneys.

“Now we have a jury of 1, times 12,” said defense attorney Roger Weeden. “Each 
juror makes the decision individually and if one juror votes for life, it’s 
over.”

On the flip side, prosecutors say they’re looking for people who know they 
could vote for the death penalty.

State Attorney Phil Archer said that when potential jurors are asked about the 
death penalty and say, “’I’m not sure I can,’ or ‘I’m not positive,' we would 
have concerns with that person sitting on the jury because it only takes 1 
now.”

Central Florida’s 2 largest judicial circuits have seen 55 potential death 
penalty cases since 2010. Juries recommended 6 of the defendants to be 
executed, and just 2 of those were after the unanimous jury requirement went 
into effect.

“I think you’re definitely going to see a reduction in the number of cases that 
receive or obtain a death penalty sentence,” Archer said.

Prosecutors are still seeking the death penalty despite the confusion. Central 
Florida’s 2 largest judicial circuits have a total of 18 capital cases working 
their way through the courts right now and prosecutors are seeking the death 
penalty in all but 2 of them.

(source: WFTV news)



OHIO:

Prosecutors to decide if man should be resentenced to death


A county prosecutor's office will decide a second time whether to seek a death 
sentence for an Ohio man convicted of raping and killing a woman in 1994.

A federal appeals court overturned the death sentence of Maurice Mason in 2008 
and ordered a new sentencing, saying Mason had ineffective legal help during 
the penalty phase of his Marion County trial.

Appeals have tied up the case since then, with the U.S. Supreme Court refusing 
Monday to hear the 54-year-old Mason's challenge of Ohio's death penalty law.

Mason's attorney, Kort Gotterdam, says he hopes he and prosecutors can agree on 
a non-lethal sentence.

An assistant prosecutor told The Marion Star resentencing is a "big project" 
and that he'd know more after a Nov. 13 status conference.

(source: Associated Press)


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

Clayton man’s death penalty appeal taken to U.S. Supreme Court
local


The death penalty appeal of a Clayton man has been filed in the U.S. Supreme 
Court.

A petition for “writ of certiorari” was filed on Oct. 30 and docketed in the 
nation’s high court in the case of Austin Myers, a Northmont man sentenced to 
death in Warren County for murdering Justin Back, 18, of Warren County.

Such appeals are filed by appeals courts to review pending cases.

Ohio Public Defender Bethany O’Neill filed the motion asking the nation’s high 
court to take up the case, according to the U.S. Supreme Court docket.

Last month, Warren County Prosecutor David Fornshell called the latest motion 
filed in the Ohio Supreme Court to overturn a Clayton man’s death sentence 
“frivolous” and “frustrating.”

In that motion filed in the Ohio Supreme Court, lawyer Elizabeth Orrick 
claimed, among other things, that lawyers previously handling the appeal of 
Austin Myers, now 24, provided “ineffective counsel”.

Orrick also claimed Myers’ trial lawyers erred in his defense, and alleged 
misconduct by prosecutors and errors by Judge Donald Oda II should warrant 
reopening of the appeal.

This morning, Fornshell said, “We will respond to both, and are obviously 
opposing both efforts, as we believe there is no merit to the underlying 
arguments in their motions.”

Myers was convicted in 2014 of murdering Back, a childhood friend. Back was 
about to join the U.S. Navy.

Myers was the youngest person on Ohio’s death row at the time.

Timothy Mosley, the other Clayton man charged in the case, entered a plea to 
life in prison without parole and cooperated with prosecutors.

(source: mydaytondailynews.com)





INDIANA:

Divided justices deny child murderer death penalty relief


The Indiana Supreme Court has upheld the denial of post-conviction relief for a 
convicted child murderer and arsonist sentenced to death, finding that while 
the man’s counsel did make mistakes, those mistakes did not rise to the 
Strickland level of deficient performance. However, Chief Justice Loretta Rush 
dissented and would have allowed the case to proceed to a new penalty phase.

The justices upheld the denial of Jeffrey A. Weisheit’s PCR bid Wednesday in 
Jeffrey A. Weisheit v. State of Indiana, 10S00-1507-PC-413, with Justice 
Geoffrey Slaughter concurring in part and with the judgment and Chief Justice 
Loretta Rush concurring and dissenting in part. Justice Steven David authored 
the majority opinion, which was joined in all respects by justices Mark Massa 
and Christopher Goff.

Weisheit was convicted in 2013 of 2 counts of murder and 1 count of Class A 
felony arson resulting in serious bodily injury after he set fire to his house 
in 2010 and left his girlfriend Lisa Lynch’s 8- and -5-year-old children — 
Alyssa and Caleb — inside. Both children died in the fire. Caleb had been bound 
and gagged.

Weisheit was subsequently sentenced to death, and his convictions and sentence 
were first upheld on direct appeal in 2015. He then sought post-conviction 
relief, alleging his trial and appellate counsel were ineffective, but the 
Clark Circuit Court denied his petition in November 2016.

The Supreme Court heard Weisheit’s case on direct appeal for the 2nd time in 
September 2017, this time considering the denial of his PCR petition. 
Specifically, Weisheit pointed to 6 areas of ineffective assistance of trial 
counsel: “1) errors during the penalty phase; 2) failures regarding the 
admissibility of expert testimony; 3) failure to appropriately question jurors; 
4) failure to adequately present evidence in support of suppressing pretrial 
statement; 5) failure to object to opinion testimony about the nature and 
origin of the fire; and 6) cumulative errors.” Additionally, he claimed his 
appellate counsel failed to “sufficiently identify objectionable jurors on 
direct appeal.”

Looking first to Weisheit’s trial counsel, David wrote for the majority that 
Weisheit’s attorney was not deficient for not making multiple attempts to 
obtain mental health records from the Indiana Boys School; failing to call 
certain witnesses; failing to ask certain jurors follow-up questions about the 
death penalty during voir dire; failing to introduce an officer’s testimony 
about Weisheit’s lack of response to a Miranda waiver form in order to support 
a pretrial suppression motion, and; failing to object to the admission of 
statements from the fire chief and fire marshal. The majority also found 
Weisheit’s cumulative error claim failed.

Further, though the majority noted Weisheit’s trial counsel could have better 
prepared a witness and that the trial court erred in excluding an expert 
witness under Indiana Evidence Rule 702(b), the justices also determined 
Weisheit failed to demonstrate prejudice.

“Indeed, he has not shown that he would be given a different sentence even if 
counsel had committed none of the alleged errors in light of the nature of this 
particular crime — the murder of 2 small children — and the overwhelming 
evidence of his guilt,” David wrote.

The majority likewise rejected Weisheit’s argument that his appellate counsel 
was deficient when he failed to cite to “the clearest expression that Juror 7 
would automatically vote for the death penalty” in the appellant’s brief. The 
justices noted the appellate attorney did cite to Juror 7’s preference for the 
death penalty, and also noted Juror 7 “was not presented with all the facts at 
the time the quoted statements were made.”

“Finally, we note that in the post-conviction court’s 81-page order, some of 
its findings seem to contradict its ultimate conclusions,” David wrote at the 
end of the 22-page majority opinion. “However, after an exhaustive review of 
the record and in light of our standard of review that requires us to affirm 
the post-conviction court unless there’s no way within the law it could have 
come to the result it did … we believe the post-conviction court came to the 
right conclusion on all issues.”

Writing separately in a four-page partial concurrence, Slaughter agreed that 
Weisheit is not entitled to post-conviction relief but said he also believed 
Weisheit’s trial counsel performed deficiently during the penalty phase. But 
despite that deficiency, Slaughter said Weisheit failed to show prejudice.

“As we held on direct appeal, the State proved the existence of aggravating 
circumstances beyond a reasonable doubt, and the jury was entitled to conclude 
the aggravating circumstances outweighed the mitigating circumstances,” 
Slaughter wrote. “The fact that trial counsel should have presented some 
additional mitigating evidence at Weisheit’s penalty phase does not establish a 
reasonable probability on this record that the outcome would have been 
different if they had.”

But in a 40-page partial dissent, Chief Justice Rush said she believed Weisheit 
met his burden on his cumulative-effect claim. While she agreed that Weisheit 
is not entitled to a new trial, she would have remanded the case for a new 
penalty phase.

“It is entirely possible that without counsel’s performance deficiencies 
Weisheit would still have received a death sentence — again, these murders were 
brutal,” Rush wrote. “But there is also a reasonable probability that he 
wouldn’t have.

“So the outcome of his penalty phase does not meet the required level of 
reliability,” she continued. “… Weisheit was thus denied his Sixth Amendment 
right to effective assistance at the penalty phase — though not at the guilt 
phase — of trial.”

Specifically, Rush said Weisheit’s counsel was deficient when he failed to ask 
Dr. Philip Harvey to testify about Weisheit’s mental health; failed to further 
pursue mental health records from the Boys Schools; and failed with regard to a 
desired expert, “to point the trial court to the proper foundational 
requirements and to make an adequate offer of proof.”

“This is not a case where the new evidence presented at the post-conviction 
proceeding ‘would barely have altered the sentencing profile presented’ at 
Weisheit’s penalty phase,” the chief wrote. “… Rather, the jurors were denied 
an accurate picture of Weisheit’s mental health issues and troubled youth. Nor 
did they encounter any expert testimony about Weisheit’s past adjustment to 
imprisonment, which might have served as a basis for a sentence less than 
death.”

“I believe that the majority’s cumulative-effect holding misapplies Strickland 
and deviates from our standard of review,” Rush wrote. “In my view, Weisheit 
was denied his Sixth Amendment right to effective assistance of counsel at the 
penalty phase of trial. And he has carried his burden to show that there is no 
way within the law that the post-conviction court could have arrived at its 
cumulative-effect conclusion.

“Though Weisheit’s offenses were horrific and his guilt is clear, he should be 
afford a penalty phase untainted by constitutional error.”

(source: The Indiana Lawyer)