[Deathpenalty] death penalty news----TEXAS, N.H., GA., ALA., OHIO

[Rick Halperin]

March 3



TEXAS:

Texas still doesn’t have a law on intellectual disability and the death 
penalty. Will that change this year?



Texas judges have begged the state Legislature for years to come up with a 
process for determining whether death penalty defendants are intellectually 
disabled and therefore ineligible for execution.

After the U.S. Supreme Court ruled in 2002 that executing people with 
intellectual disabilities is cruel and unusual punishment, states were left to 
come up with their own methods of defining the condition. But the Texas 
Legislature hasn’t done so, leaving that job to the courts — resulting in a 
hodgepodge system of deciding the crucial question of whether a person facing a 
death sentence should be spared from execution.

Texas’ top criminal appeals court stepped in and created its own test for 
deciding intellectual disability for death row inmates, but in 2017, the U.S. 
Supreme Court struck it down as unconstitutional because it used decades-old 
medical standards and a set of nonclinical questions the Supreme Court said 
advanced stereotypes, including how well an inmate could lie.

The Texas court later said it would use current science in its test, but the 
inmate whose case sparked the Supreme Court ruling is arguing to the high court 
that Texas’ system remains just as flawed as before.

A handful of Texas Democrats are hoping that the controversy and the threat of 
another defeat in the Supreme Court will motivate their colleagues in the 
Legislature to finally establish a procedure to determine if someone is 
ineligible for execution — before a capital murder trial even begins. Similar 
legislation has been proposed for years and gone nowhere.

“There’s a disconnect between the U.S. Supreme Court and our court down here,” 
state Rep. Senfronia Thompson, D-Houston, told The Texas Tribune. “We just want 
to make sure that we’re doing justice, that we’re following the law.”

Thompson and state Sen. Borris Miles, another Democrat from Houston, have filed 
bills this session that would allow a capital murder defendant to request a 
hearing to determine intellectual disability before trial. Under the proposed 
legislation, if a judge determines the defendant is intellectually disabled — 
defined as having a low IQ with deficits in practical and social skills since 
youth — the death penalty would be taken off the table and the defendant would 
receive an automatic life sentence without the possibility of parole if 
convicted.

2 other House Democrats, Joe Moody of El Paso and Armando Walle of Houston, 
signed on as co-authors of Thompson’s legislation when she filed the bill 
earlier this week.

Advocates for the bill point out that legislatures in most other death penalty 
states have created a uniform pretrial procedure guiding courts on how to 
determine whether a defendant is intellectually disabled. In Texas, prosecutors 
often simply don’t seek the death penalty when there is a credible claim of 
intellectual disability, and sometimes juries are told to weigh the issue after 
convicting someone — when they’re deciding between life and death during a 
trial’s punishment phase.

In at least one case, a Texas judge granted a pretrial hearing on the question 
— just as the current legislation proposes — only to have that decision 
appealed by prosecutors. The case landed in the lap of the Texas Court of 
Criminal Appeals, which slammed the Legislature for not taking action.

“Without a unified procedure, intellectual-disability determinations may vary 
from county to county, court to court, and case to case,” Court of Criminal 
Appeals Judge Michael Keasler wrote in a 2015 opinion in the case. “The gravity 
of defendants’ intellectual-disability claims are too weighty to be subject to 
such disparity.”

Prosecutors largely agree that a determination of intellectual disability 
should be handled before a sentence is handed down, according to Shannon 
Edmonds, director of governmental relations at the Texas District and County 
Attorneys Association. But he said past legislation has failed in part because 
of disagreements over timing: Should the decision be made by a judge before a 
trial begins or by jurors after hearing the facts of a case?

“Part of the fundamental problem is not the standards or the science, it’s who 
gets to decide and when do they get to decide it,” he said. “That’s been a 
sticking point for 20 years.”

Edmonds also said the bill could add costs to death penalty trials by adding 
another hearing to an already lengthy trial process. Thompson, meanwhile, 
argued that the hearings would likely save millions by reducing appeals and, in 
cases where a judge finds a defendant intellectually disabled and takes the 
death penalty off the table, eliminating the punishment phase of the trial.

Hoping to spark change

Elsa Alcala was a judge on the Texas Court of Criminal Appeals and has watched 
as previous bills to address this issue have died quickly and quietly, usually 
without any hearings.

This year, she is hoping Bobby Moore will act as a catalyst at the Capitol.

Moore was sentenced to death more than 38 years ago after fatally shooting a 
Houston store clerk during a robbery. For the last five years, the question of 
his mental capacity has wound through the courts.

After a lower court ruled in 2014 that Moore was disabled, the Texas Court of 
Criminal Appeals reversed the decision, faulting the court’s use of current 
medical standards to reach its conclusion rather than the Court of Criminal 
Appeals’ test — which used older standards and its own set of questions.

When the Supreme Court tossed out the Texas appeals court’s ruling in 2017 and 
sent Moore’s case back for further review using a test based on current medical 
standards, even the prosecutor handling Moore’s case requested that his 
sentence be changed to life in prison. The Court of Criminal Appeals again 
rejected the plea, ruling that Moore wasn’t intellectually disabled under 
either set of medical standards.

Moore’s lawyers have again appealed the decision to the Supreme Court, where 
the pending decision from the justices has caught the attention of many death 
penalty critics.

“The Bobby Moore case has given the state of Texas a black eye in many ways in 
the sense that we just haven’t done a good job in this area of the law,” said 
Alcala, a Republican who was on the appeals court during both Moore rulings but 
voted against the majority both times.

After not seeking re-election last year, Alcala now serves as a policy director 
for the Texas Defender Service, an advocacy group critical of Texas’ death 
penalty practices. She told the Tribune she hopes the problems highlighted in 
Moore’s case push lawmakers to take action this year.

“Maybe the Legislature will view it as a ripe opportunity to step in and to 
correct it,” she said.

But in a Republican state with the busiest execution chamber in the nation by 
far, state lawmakers have generally been wary of any changes that appear to 
weaken the state’s tough death penalty laws. Edmonds warned that many of those 
pushing for a tweak to this aspect of the death penalty have a bigger agenda as 
well.

“The goal of many pushing a change in this area is not to exclude just people 
with intellectual disability from the death penalty,” he said. “Their goal is 
to exclude everyone from the death penalty.”

But the climate may be shifting. At a Texas Tribune event in November, 
conservative state Rep. Jeff Leach, R-Plano, said he’s not afraid of tackling 
changes to the death penalty, “nor should any legislator be.” He went on to say 
that there are innocent men on death row and he’d consider a moratorium on 
capital punishment.

Still, even the lawmakers proposing the legislation say their bill is not an 
attack on the death penalty.

Miles said he’s not against executing those convicted of heinous crimes, but “I 
want to make sure that before we do that, they’re at the right mental 
capacity.”

(source: Lubbock Avalanche-Journal)

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

2 people charged with capital murder of toddler



2 San Angelo residents are in the Tom Green County jail on capital murder 
charges.

Andrew Fernandez and Lesley Moreno were booked last night with a 1 million 
dollar bond.

They're charged with killing a 21 month old child.

In March of last year police were called to a home in the 2600 block of Junius 
street.

When they arrived paramedics were performing CPR on the unresponsive toddler.

21 month old Nathaniel Quezada was later pronounced dead at Shannon Medical 
Center.

An autopsy report later showed that the toddler died as a result of multiple 
vertebral fractures and blunt impact trauma.

Fernandez and Moreno could both recieve the death penalty if convicted.

(source: conchovalleyhomepage.com)








NEW HAMPSHIRE:

New Hampshire can live without the death penalty



On Thursday March 7, the full House will vote on whether to repeal the death 
penalty in NH. The bill received an “ought to pass” recommendation from the 
Criminal Justice and Public Safety Committee.

Ninety-five out of the 100 people who spoke at the public hearing on Feb. 19 
supported House Bill 455. These included murder victim family members, police 
officers, former judges, attorneys general, and clergy members. The testimony 
was incredibly moving and touched on all the different perspectives on this 
issue.

As a scientist and former House Representative, I was first struck by the data 
on the death penalty. States without the death penalty consistently have lower 
homicide rates, including law enforcement, proving that the death penalty isn’t 
a deterrent. NH has already spent over $5.5 million on a single death penalty 
case and will spend millions more. This is far more than the cost of life in 
prison which is less than $2 million for 40 years.

I was also struck by personal conversations with death row exonerees who were 
wrongly convicted. For a variety of reasons, we sometimes get it wrong and a 
death penalty cannot be reversed.

I also heard important messages from physicians who are ethically barred from 
direct involvement in putting someone to death, and former prosecutors who 
talked about stress associated with having to be a part of the complicated 
legal process. Prison guards and other attendants at executions suffer from 
PTSD and higher rates of drug abuse and suicide.

But to me, the most important messages were from the family members of the 
murdered victims who suffer re-traumatization from years and years of appeals. 
I also heard the pain from family members of victims about the assumption that 
killing another person on their behalf is ultimately the solution to the loss 
of their loved one.

As a mother of 2 young men, I would like to be able to say that in 2019 NH has 
proudly sent a clear message that we do not support this “eye for an eye” 
mentality, and murder is wrong no matter who carries it out.

Please help support the death penalty repeal and HB455 by contacting your House 
Representatives and Senators to express your thoughts.

(source: Opinion; Democrat Mindi Messmer of Rye is a former state 
representative----fosters.com)








GEORGIA:

5 things to know about Georgia death row case with ‘racist juror’



The U.S. Supreme Court on Monday is expected to decide whether it will reopen 
an appeal brought by Georgia inmate Keith Tharpe who contends a juror’s racist 
views prejudiced his decision to send Tharpe to death row.

The justices met privately last week to mull over Tharpe’s case. It’s possible 
the court could postpone issuing its decision, but lawyers who are following 
the case are expecting a resolution this Monday. If the court sides with 
Tharpe, it could order the lower courts to take a closer look at his racial 
bias claims. If it rejects Tharpe’s appeal, the state could soon schedule 
Tharpe’s execution.

Here are 5 things you need to know about this unusual — and highly 
controversial — case:

1. The stay of execution. In September 2017, the U.S. Supreme Court issued an 
extraordinary stay of execution three hours after Tharpe had been scheduled to 
be put to death by lethal injection.

He had already eaten his last meal and was preparing to die. The high court’s 
last-minute decision to halt the execution was the first time it had done so in 
a Georgia case in almost a decade.

2. The murder. On Sept. 25, 1990, Tharpe drove a borrowed pickup truck to 
intercept his estranged wife and her sister-in-law, Jaquelin Freeman, on a 
Jones County road as they set out for their jobs in Macon. Tharpe blocked their 
car, dragged the 29-year-old Freeman out and fatally shot her three times with 
a shotgun. Moments later, Freeman’s husband drove by, taking their children to 
school, and he saw his wife’s body in a ditch. By then, Tharpe had kidnapped 
his wife. He allegedly sexually assaulted her on the side of the road and drove 
her to Macon, telling her to take money out of her credit union account for 
him. Instead, she called police and Tharpe was soon arrested.

3. Tharpe’s death-penalty trial. Tharpe’s case went to trial a little more than 
3 months after his arrest — a short span of time unheard of today for a 
defendant facing a capital prosecution. During the trial, jurors found Tharpe 
guilty of murder and kidnapping and sentenced him to death on Jan. 10, 1991.

4. The juror. Seven years after the trial, Tharpe’s lawyers interviewed Barney 
Gattie, a white man who served on the jury. Gattie, who is now deceased, signed 
a sworn statement in which he said, “After studying the Bible, I have wondered 
if black people even have souls.”

Gattie, who said his wife warned him about using racial slurs when talking 
about black people, used a racial slur when referring to Tharpe. “In my 
experience, there are two types of black people: 1. Black folks and 2. 
(n-word),” he said.

Gattie also said that Freeman, the murder victim, came from a family of “nice 
black folks. … If they had been the type Tharpe is, then picking between life 
and death for Tharpe wouldn’t have mattered so much. My feeling is, what would 
be the difference?”

Gattie said he felt Tharpe, “who wasn’t in the ‘good’ black folks category in 
my book, should get the electric chair for what he did.” (Georgia has changed 
its method of execution to lethal injection since Tharpe’s 1991 trial.)

After learning about Gattie’s affidavit, state attorneys rushed to his house 
and got him to sign yet another sworn statement in which he changed his tune.

“I believe Keith Tharpe was a cold, calculated murderer,” Gattie said. “I did 
not vote to impose the death penalty because he was a black man.”

5. Tharpe’s appeal. After the U.S. Supreme Court stayed Tharpe’s execution, the 
high court sent his case back to the federal appeals court in Atlanta.

Last August, a 3-judge panel of the 11th U.S. Circuit Court of Appeals 
unanimously rejected Tharpe’s juror bias claims, saying they were barred on 
procedural grounds. The court declined to hear arguments on the issue and said 
a 2017 opinion by the U.S. Supreme Court that allows courts to consider 
evidence of racial animus by jurors could not be applied retroactively to 
Tharpe’s case.

Even so, one 11th Circuit judge expressed discomfort with the outcome. 
“Gattie’s repugnant comments were rife with racial slurs (and) deeply seeded 
views regarding integration, interracial marriage and the like; a comment 
inquiring whether black people even had souls; and even an explicit statement 
that the juror’s decision to sentence Tharpe to death was at least, in part, 
based on race,” Judge Charles Wilson wrote separately.

Absent intervention from the U.S. Supreme Court, Wilson said, “it seems that we 
would have approved of the idea that Mr. Gattie’s affidavit would not have 
amounted to prejudice. I do not stand by that idea.”

In what could be their final appeal, Tharpe’s lawyers are asking the high court 
to direct the 11th Circuit to hear arguments on the jury bias issue. In 
December, the NAACP Legal Defense & Educational Fund submitted its own motion 
to the Supreme Court, asking it to reopen Tharpe’s appeal.

(source: Atlanta Journal Constitution)








ALABAMA:

An Inmate Doesn’t Understand Why He Is to Be Executed. Should He Be 
Spared?----The Supreme Court this week rightly ordered Alabama courts to 
reconsider the death sentence of Vernon Madison, whose memory was damaged by 
stroke.



In a series of rulings over the past several decades interpreting the Eighth 
Amendment’s prohibition on cruel and unusual punishment, the Supreme Court has 
prohibited the execution of some of the most helpless people in the nation, 
including children and people with intellectual disabilities.

On Wednesday, the court spared from execution Vernon Madison, who cannot 
remember the circumstances surrounding his 1985 conviction in Alabama for the 
murder of a police officer. Mr. Madison suffered at least two severe strokes 
after his conviction, and his lawyers had told the justices that he had 
vascular dementia and attendant cognitive decline.

As Justice Elena Kagan explained in a 5-to-3 decision siding with Mr. Madison, 
a faulty memory alone does not trigger the protections of the Eighth Amendment, 
just as the diagnosis of a mental illness alone would not. Instead, Justice 
Kagan wrote, what’s relevant is whether the person possesses a “rational 
understanding” of why the state wants to impose the ultimate punishment. 
(Justice Brett Kavanaugh, who hadn’t yet been confirmed when the court first 
heard the dispute, did not participate in Mr. Madison’s case.)

In prior cases laying the foundation for this principle, the Supreme Court 
justices have reasoned that executing someone who can’t rationally understand 
his crime or punishment “simply offends humanity” and would serve no 
“retributive value.” Which is to say: If a man condemned to die can’t 
comprehend the true meaning of society’s judgment against him, what is the 
value of that condemnation?

“Do you have an independent recollection of the Civil War?” asked Justice Kagan 
in her opinion in Madison v. Alabama. “Obviously not. But you may still be able 
to reach a rational — indeed, a sophisticated — understanding of that conflict 
and its consequences.”

The justice went on, “Do you recall your first day of school? Probably not. But 
if your mother told you years later that you were sent home for hitting a 
classmate, you would have no trouble grasping the story.”

The same goes for a person who blacks out before committing a crime: She may 
still come to appreciate why a prosecutor seeks to punish her.

In Mr. Madison’s case, the Supreme Court recognized that the Alabama court that 
weighed his mental capacities offered a cursory ruling, with “only one sentence 
of explanation” that didn’t take into account the “sole question” that matters: 
“whether he can reach a ‘rational understanding’ of why the State wants to 
execute him.”

The high court sent the case back to the lower courts for what Justice Kagan 
called a “do-over.”

The lower courts may again conclude, based on the Supreme Court’s guidance and 
expert medical testimony, that executing Mr. Madison doesn’t qualify as cruel 
and unusual. But until then, the Supreme Court’s decision — joined by the rest 
of the liberal bloc and Chief Justice John Roberts Jr. — provides hope that 
officials may yet realize that it’s inhumane to put to death someone too 
impaired to remember the crime he committed or comprehend the punishment he is 
facing.

(source: Editorial Board, New York Times)








OHIO:

Ohio joins growing number of states stopping executions



In late January, Ohio’s newly-elected governor, Mike DeWine, granted a 
six-month reprieve to Warren Keith Henness. Recently, DeWine halted all 
executions in the state until the Department of Rehabilitation and Correction 
is able to develop a new execution protocol approved by the courts. Ohio joins 
Pennsylvania and six other states with some sort of formal hold on executions.

DeWine’s “moratorium” on executions comes in response to Dayton Federal 
Magistrate Judge Michael Merz’s opinion suggesting the state’s current 3-drug 
execution protocol is a combination of “waterboarding and a chemical fire.”

“If Ohio executes Warren Henness under its present protocol, it will almost 
certainly subject him to severe pain and needless suffering ... enough to 
constitute cruel and unusual punishment,” wrote Judge Merz.

He did not stop Henness’ execution but De- Wine, who sponsored Ohio’s capital 
punishment law as a state senator in 1981 and later represented the state in 
death-penalty cases as attorney general, did.

This is not Judge Merz’s 1st shot at Ohio’s death penalty. Two years ago, he 
ruled that there was a “substantial risk of serious harm” in using midazolam, a 
sedative for executions. He granted an injunction blocking all executions.

A three-judge panel of the 6th U.S. Circuit Court of Appeals ruled 2-1 to 
uphold the injunction. The panel also barred the use of any protocol that 
contained potassium chloride, which stops the heart, and any drug that acts as 
a paralytic agent.

The case returned to the 6th Circuit to be heard en banc – all of the judges 
would rehear the case. This time, in an 8-6 ruling the 6th Circuit rejected 
Merz’s injunction.

Twice in 2 years Judge Merz found lethal injection in Ohio violated the Eighth 
Amendment’s ban on cruel and unusual punishment. This is in spite of a 2008 
U.S. Supreme Court decision out of Kentucky that ruled lethal injection was not 
cruel and unusual punishment. In fact, the Supreme Court has never found a 
method of execution to be cruel and unusual. That list includes hanging, firing 
squad, electric chair and gas chamber.

This latest twist in Ohio’s death-penalty saga is in stark contrast to the 
state’s recent history with the death penalty. Between 2009 and 2011, Ohio 
carried out 17 executions second only to Texas, a state that has carried out 
more executions than the other top 5 states combined.

4 of those 17 men executed – Jason Getsy, Kenneth Biros, Mark Brown and 
Roderick Davies – were from either Trumbull or Mahoning counties.

There is real concern about Ohio’s death chamber. The state has had its share 
of executions gone awry.

In 2009, Romell Broom was scheduled to be executed. Corrections officials tried 
for two hours to maintain an IV for injecting the lethal drugs, reported the 
Washington Post. Finally, Ohio Gov. Ted Strickland intervened. Broom survived 
his execution and remains on death row today.

In 2014, Ohio became the 1st state in the nation to use a new and untried 
lethal-injection protocol involving midazolam and hydromorphone, a sedative and 
morphine derivative.

It did not go well. Convicted killer Dennis McGuire took 25 minutes to die. 
Prior executions took about 12 to 15 minutes. McGurie appeared to gasp several 
times during the execution, according to the Cleveland Plain Dealer.

He made several loud snorting or snoring sounds during the time it took him to 
die. It was one of the long- est executions since Ohio resumed capital 
punishment in 1999, reported the Associated Press.

In November of 2017, 69-year-old Alva Campbell was scheduled to die by lethal 
injection. Campbell’s attorney said he watched as his client was stuck with 
needles 4 times in different parts of his body, and cried out in pain.

After about 25 minutes, Ohio Gov. John Kasich halted the execution, reported 
NBC News. For the second time in less than 10 years a condemned inmate in Ohio 
survived his execution. Campbell died of natural causes 3 months later.

DeWine did not say when he expects executions to resume, “[a]s long as the 
status quo remains, where we don’t have a protocol that has been found to be 
OK, we certainly cannot have any executions in Ohio.”

(source: Opinion; Matthew T. Mangino is of counsel with Luxenberg, Garbett, 
Kelly & George P.C. His book “The Executioner’s Toll, 2010” was released by 
McFarland Publishing----Youngstown Vindicator)

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

Officials reflect on Lawson case after death sentence



With Arron Lawson, 24, of Pedro, Ohio, now being moved to more permanent 
accommodations on Ohio's death row after he was convicted Thursday in Lawrence 
County Common Pleas Court of killing 4 family members in 2017, Lawrence County 
officials reflected on the horrific case.

In a detailed post released on Facebook on Friday, Lawrence County Sheriff Jeff 
Lawless said the end result of the trial was fair.

(source: herald-dispatch.com)