[Deathpenalty] death penalty news----IND., KAN., NEB., UTAH, CALIF.

[Rick Halperin]

March 24




INDIANA:

Appeal sought on death penalty----Dansby seeks high court ruling



A man facing the death penalty for the alleged murders of 4 people – 1, his 
unborn child – wants the Indiana Supreme Court to decide whether an Allen 
County judge erred when she rejected a request to exclude the death penalty as 
punishment for the killings.

Lawyers for Marcus Dansby, 23, had asked Allen Superior Court Judge Fran Gull 
to declare the state's capital punishment unconstitutional and throw out the 
death penalty because of his age – 20 – at the time of the slayings. Gull 
denied both requests last month.

Defense attorneys Michelle Kraus and Robert Gevers raised the issues again this 
week, asking Gull in a 4-page petition to sign off on allowing Indiana's 
highest court to weigh in.

Proceedings in the case would stop until justices made a decision, if the local 
judge agrees to the move. A trial is scheduled Oct. 1 and is expected to last a 
month. Gull has not ruled on the latest request, court records show.

“The issue of the propriety of the death sentence is better addressed prior to 
a jury trial and judgment rather than as a direct appeal after a conviction and 
possible death sentence,” the motion states.

Dansby is charged with four counts of murder in the Sept. 11, 2016, killings of 
Traeven Harris, 18, Consuela Arrington, 37, Dajahiona Arrington, 18, and the 
fetus she was carrying. Trinity Hairston was shot and stabbed but survived, and 
Dansby is charged with attempted murder in that attack.

Prosecutors sought the death penalty in January 2017.

Kraus and Gevers wrote in a nearly 100-page filing last year that the state's 
death penalty law violates several portions of the U.S. and state constitutions 
and should be thrown out. Capital punishment is “disproportionate and 
vindictive” and “has no deterrent effect,” according to their motion.

That was followed by another motion arguing that executing someone who was 
under 21 when crimes were committed violates constitutional prohibitions on 
cruel and unusual punishment.

The argument is based on a landmark U.S. Supreme Court ruling in 2005 that 
found it is unconstitutional to execute defendants who were younger than 18 at 
the time their crimes were committed.

Dansby's lawyers want the age raised to 21 and cite shifting opinions on the 
age at which offenders can be put to death; recent court decisions invalidating 
death sentences for young defendants; and research on the maturity of young 
people's brains.

A Temple University psychologist testified in court here in December that human 
brains continue to mature until at least age 22, meaning younger people have 
trouble controlling their actions and considering the consequences of those 
actions.

Gull referred to the claims as “interesting” in court documents but said she 
was unconvinced. Prosecutors have opposed Dansby's requests.

It is the 2nd time defense attorneys have asked for an interlocutory appeal – 
essentially a pause in the case to seek a ruling from an appellate court.

They sought to ask the Indiana Supreme Court last year whether the trial court 
“abused its discretion” when it removed defense attorney Nikos Nakos from the 
case last year amid questions about his qualifications to work on a capital 
punishment case. The request was dismissed in April.

(source: The Fort Wayne Journal Gazette)








KANSAS:

Kansas Death Penalty Case Has Implications for Mentally Ill



The day after Thanksgiving in 2009, James Kahler went to the home of his 
estranged wife’s grandmother, where he shot the two women, along with his 2 
teenage daughters.

No one — not even Kahler’s attorneys — disputes that he killed the four 
relatives. Instead, his lawyers argue that he was suffering from depression so 
severe that he experienced extreme emotional disturbance, dissociating him from 
reality.

What had been an open-and-shut death penalty case — Kahler was convicted and 
sentenced in 2011 — was upended when the U.S. Supreme Court said this past week 
that it would consider whether Kansas unconstitutionally abolished his right to 
use insanity as a defense. A ruling from the nation’s highest court could have 
far-reaching implications for mentally ill defendants across the nation.

Kansas is 1 of 5 states where a traditional insanity defense in which a person 
must understand the difference between right and wrong before being found 
guilty of a crime isn’t allowed. Instead, someone can cite “mental disease or 
defect” as a partial defense but must prove that he didn’t intend to commit the 
crime. The other states with similar laws are Alaska, Idaho, Montana and Utah.

“A favorable decision in this case would make it clear that the Constitution 
requires that a defendant be able to understand the difference between right 
and wrong before being found guilty, and, in cases like Mr. Kahler’s, put to 
death,” his defense attorney, Meryle Carver-Allmond, said in an email.

Kahler’s lawyers argued in their petition to the Supreme Court that although 
Kahler knew that he was shooting human beings, his mental state was so 
disturbed at the time that he was unable to control his actions.

“We’re hopeful that, in taking Mr. Kahler’s case, the United States Supreme 
Court has indicated a desire to find that the Constitution requires better of 
us in our treatment of mentally ill defendants,” Carver-Allmond said.

The state argues that it hasn’t abolished the insanity defense, just modified 
it.

“We think the state’s approach, providing for an insanity defense based on 
mental disease or defect, satisfies constitutional requirements,” Kansas 
Attorney General Derek Schmidt said in an emailed statement. “We look forward 
to defending the statute and arguing our case before the Justices in the fall.”

Kahler was in the middle of a contentious divorce when he went to Dorothy 
Wight’s home in Burlingame, where his wife, Karen, and three children were 
spending the Thanksgiving holiday amid contentious divorce proceedings. He 
found Karen in the kitchen and shot her twice, then shot Wright and his 
daughter Emily in the living room. He found his daughter Lauren in an upstairs 
bedroom. His son, Sean, fled to a neighboring house.

Sherrie Baughn, executive director of the Kansas chapter of the National 
Alliance for Mental Illness, said her organization opposes execution of 
individuals who have a serious mental illness or mental disability when 
committing a crime.

“I am happy that they are looking at it and reviewing this,” Baughn said of the 
Supreme Court decision to take up the Kansas case. “Despite constitutional 
protections, the death penalty is still somewhat applied to people with mental 
illness or mental disabilities.”

It is unclear how often an insanity defense would be used in Kansas, because 
the state hasn’t really had one for so many years now, Carver-Allmond said. 
Without the option, seriously mentally ill defendants are often left to go to 
trial with little-to-no defense or forced to plead guilty on bad terms.

(source: Associated Press)








NEBRASKA:

Secrecy on execution drugs not paying off



While we as a state may have our disagreement about the overall topic of 
capital punishment, it is the law. There are state laws pertaining to its 
administration, and Nebraskans expect their elected officials to follow the 
law.

At some point, though, defending unwarranted secrecy around the death penalty 
will end – and Nebraskans will no doubt learn the truth.

A federal judge ordered Nebraska must provide documents detailing how it 
obtained the fentanyl used last August as part of Carey Dean Moore’s execution. 
This decision came as a victory for Arkansas’ death-row inmates, who were 
seeking to determine whether fentanyl could be used within their state’s death 
penalty protocol to prevent them from suffering “cruel and unusual punishment.”

Last week’s ruling, coincidentally, came during Sunshine Week – an annual 
celebration of transparent government and open records, both of which help hold 
elected officials accountable.

Nebraska has been neither transparent nor open about Moore’s execution.

Remember that a judge ruled last June that the Journal Star and other entities 
were correct in their presumption that most records related to the death 
penalty protocol were public. Again, these documents were determined by a judge 
to belong to the people of Nebraska – even though the government of Nebraska 
has instead appealed to the Nebraska Supreme Court.

In the interim, the state executed the convicted double murderer. Also in the 
interim, a Lancaster County judge has ordered the state to pay nearly $60,000 
in attorneys fees and court costs because the plaintiffs were ruled to have 
substantially prevailed in the case.

That’s a lot of money the state paid fighting its losing battle. 
Coincidentally, that figure falls very close to the nearly $55,000 Nebraska 
spent in 2015 to obtain sodium thiopental and pancuronium bromide from a vendor 
in India.

One problem: The state never got its execution drugs delivered – or money back 
– in this high-profile embarrassment.

Four years later, this episode mustn’t be forgotten. Above all else, it 
underscores the importance of open government. The more information that’s made 
publicly available by a government, the better the people it serves can ensure 
it does so effectively and efficiently.

Rather than merely being taken at its word, government must constantly prove 
that it is earning trust. If it’s being a good steward of tax dollars, it must 
demonstrate that – and no better way exists to achieve that end than through 
transparency.

It would be preferable if Nebraska did so voluntarily. However, the state’s 
resistance is instead requiring expensive litigation to force it to uphold 
these responsibilities. The recent ruling in the Arkansas case only reiterates 
the folly of this approach.

The truth will eventually emerge regarding the sourcing of Nebraska’s execution 
drugs and records. Until then, continued opposition will only delay the 
inevitable – and ring up additional costs.

(source: Editorial Board, Lincoln Journal Star)








UTAH:

Utah's high court orders fresh review of evidence for man on death row



The Utah Supreme Court has ordered a new hearing for a man on death row, 
pointing to "damning revelations" from star witnesses in his case who later 
said police had threatened them, given them gifts and told them to lie about 
the financial help.

If those details had come to light before Douglas Carter was sentenced to die, 
"a significant possibility exists that the outcome would have been different," 
according to the court's written opinion released late Friday.

Douglas Stewart Carter, 63, was convicted in 1985 of murdering 57-year-old Eva 
Olesen, who was stabbed and shot during a home-invasion robbery.

Jurors in the case relied on Carter's confession and his bragging to friends 
Epifanio and Lucia Tovar that he killed a woman. He appealed the sentence in 
1992, and another jury upheld the death penalty.

Carter, originally from Chicago, appealed again based on sworn statements from 
the Tovars, whom prosecutors tracked down in 2011.

The Tovars revealed officers had threatened them with deportation, prison time 
and possibly taking away their infant son. After relocating them twice to 
protect them from Carter, Provo officers paid the couple's rent of about $400, 
plus utility and phone bills, and instructed them to lie under oath about the 
benefits during the trial, court documents say. According to the Tovars, 
officers also brought them groceries, a Christmas tree and toys for their son.

On the stand, the couple's testimony was at times inconsistent and is "tainted 
as a whole" by the new evidence, the opinion states.

Yet it was "crucial" to the state's case, Justice Deno Himonas wrote in the 
decision, noting that fingerprints and blood were found at the scene but no 
physical evidence tied Carter to the crime.

Prosecutors also relied on the testimony to explain why they sought the death 
penalty, arguing Carter told Epifanio Tovar the night of the killing that he 
intended to "rape, break and drive." They pointed to Lucia Tovar's statement 
that Carter also laughed when he returned, arguing he was "a man who delighted 
in killing," the opinion says. But the couple's recollections of those moments 
varied throughout the case.

"Carter has a colorable claim that the Tovars’ testimony evolved over time to 
become more damaging to Carter in an attempt to please the people who had 
provided them with rent money and threatened them with deportation and 
separation if they did not cooperate," the decision says.

The state, however, has contended inconsistencies could stem from fear of 
retaliation from Carter and that his defense attorneys have never challenged 
his own confession to police. They have said the testimony from Carter's 
friends mirrored his own admission to police about killing Olesen, the aunt of 
a former Provo police chief.

A lower court in 2017 said the new details would likely not have led to a more 
favorable outcome. The decision countered that there was actually a "signifcant 
possibility" of a different outcome, though not for certain.

The justices ordered a 4th District Court to conduct a fresh review of the new 
evidence. A hearing date has not yet been set.

(source: Deseret News)








CALIFORNIA:

Newsom’s death penalty reprieves ignores will of voters



Gov. Gavin Newsom’s move to order reprieves for 737 death row prisoners may 
have gained him more national exposure, but it also brought up a troubling 
question: Whether the new governor can be trusted to faithfully carry out the 
will of the voters who put him in office.

So far, the answer is, no.

Make no mistake, the death penalty in California, and elsewhere, should be 
abolished — but not this way, not after voters in perhaps the most politically 
liberal state in the union have twice in this decade rejected ballot measures 
that would have ended capital punishment. The most recent vote in 2016 resulted 
in 53 percent of voters rejecting the ballot proposition to end executions.

And Newsom, who has long expressed his opposition to the death penalty, was 
quoted in public forums before he was elected governor that he would not let 
his personal opinions sway what Californians had already decided in terms of 
public policy.

So much for that pledge.

Newsom justified his announcement by saying, “The will of the voters is also 
entrusted in me on the basis of my constitutional right” as governor to grant a 
reprieve to condemned prisoners. “I’ve had to process this in a way I didn’t 
frankly anticipate.” The governor then cited ongoing legal questions regarding 
California’s mode of execution, lethal injection, which he repealed, along with 
shutting down the death chamber at San Quentin.

Again, the arguments against capital punishment, moral and legal, are 
compelling. And California’s non-administration of the death penalty undercuts 
any thought that if applied in a timely manner in the most heinous of crimes, 
it can be a deterrent. In the face of legal challenges, no one has been 
executed in California since 2006.

Newsom’s predecessor, former Gov. Jerry Brown, also was opposed to the death 
penalty. Despite pleas from opponents, however, he refused to do what Newsom 
has done: offer a blanket reprieve to death row prisoners. Brown may have 
disagreed with voters, but respected their decision to uphold capital 
punishment.

This is not the first time Newsom has disregarded voters. Back in 2004, as 
mayor of San Francisco, he ordered city officials to issue marriage licenses to 
same-sex couples, although state voters had previously voted against this 
change. His stand on gay marriage, however, ended up on the right side of the 
issue, especially after the U.S. Supreme Court came to a similar conclusion.

Newsom’s bold move at that time brought him state and national recognition. And 
so has his decision on the death penalty. The difference is that in San 
Francisco, clearly it was the will of a majority of residents that same-sex 
marriages be recognized. But he’s taking a political gamble on the death 
penalty, where his decision has already brought opposition from prosecutors and 
advocates for victims’ families and friends.

Yes, voters who cared to read about his views should have known Newsom was 
opposed to capital punishment. But he also said his preference was to restart 
the conversation on repeal.

Newsom had an alternative to governing essentially by fiat: He could lead the 
way to another ballot measure that would, if voters so decided, stop executions 
in California once and for all.

The governor could have used the power of his pulpit to convince voters who 
favor the death penalty that state-sanctioned executions do not stop people 
from killing other people and that the death penalty more often than not falls 
on those without the means to acquire high-powered legal help. Moreover, there 
have been innocent men and women who have been sentenced to death, although 
Newsom did not cite any such innocent individuals currently on death row when 
he pronounced the blanket reprieve.

But instead of working to convince a majority of voters the death penalty 
should be abolished, he’s now made this issue about him and whether he can be 
trusted and about what other personal opinions he’ll use to justify 
disregarding voters’ decisions, much less the laws and justice system in place 
when sentences were ordered.

Stopping state-sanctioned executions of convicted criminals is an important and 
profound issue that deserves far more public debate than a unilateral decision.

(source: Editorial Board, Santa Cruz Sentinel)