[Deathpenalty] death penalty news----IND., MO., ARIZ., USA

[Rick Halperin]

Sept. 3



INDIANA:

Judge to decide if Michael Overstreet is competent to be executed


Convicted killer Michael Dean Overstreet "is not competent" to be executed 
under federal guidelines, a psychiatrist testified today during a hearing in 
St. Joseph Superior Court.

Dr. Rahn Bailey was the 1st witness called by attorneys for Overstreet during a 
4-day hearing that could determine whether Overstreet is the next person in 
Indiana to be executed.

Overstreet was convicted of murder and sentenced to death in the 1997 in the 
murder and rape of Kelly Eckart, 18, of Boggstown. The Indiana Supreme Court 
last fall granted a request from Overstreet's attorneys for a hearing on 
whether he is competent to be executed. Attorneys for the state had opposed the 
request for the new hearing, and instead asked the court to set an execution 
date.

In court documents, Overstreet's public defender Steve Schutte said mental 
health professionals have determined the convicted killer "does not have, and 
does not have the ability to produce, a rational understanding of why the State 
of Indiana plans to execute him."

The Eighth Amendment prohibits the state from executing a person who is deemed 
insane. Legal rulings addressing that threshold cite a person being "unaware of 
the punishment they are about to suffer or why they are to suffer it" and 
unable to understand the link between a crime and its punishment in a context 
far removed from reality, the court order explains.

Testifying for the defense Tuesday, Bailey said he based his diagnosis and 
determination that Overstreet is not competent for execution on 3 face-to-face 
interviews with Overstreet in 2013 and by watching videos of interviews 2 other 
mental health professionals conducted with the death row inmate in August at 
the Michigan City Correctional Facility.

Bailey said he also had reviewed older mental health records from Overstreet's 
time in prison and before his murder conviction.

Overstreet has schizophrenia with paranoia, Bailey said, and suffers from 
delusions and hallucinations. The delusions include a belief that people are 
not who they appear and that he is influenced by the devil or some other source 
of evil.

Overstreet's most serious delusion - and the one most important to the hearing 
- is that he is in a sort of coma, Bailey said, which Overstreet described as 
"being already dead" and "like he is up in the air, looking down" on himself.

Overstreet thinks that after his execution, Bailey testified, that he will 
still function in a realm of life similar to what is commonly understood as 
living. Bailey called that "remarkably inconsistent" with the understanding of 
the finality of an execution.

Bailey said Overstreet was not speaking metaphorically and repeated that same 
position on numerous occasions.

Bailey said he does not believe Overstreet is attempting to fake symptoms and 
noted the prisoner is on "mega doses" of medications. If Overstreet did not 
have serious mental issues, Bailey said, those medications would physically 
incapacitate him.

Overstreet sat quietly during the hearing, but did not seem intent on the 
testimony being given by Bailey. Wearing a red jail suit with MCC X-Row printed 
on the back, Overstreet rocked in his seat and bobbed and swayed his head 
throughout the hearing.

During cross examination, deputy attorney general James Martin raised questions 
about Bailey's work in other death penalty evaluations and his findings in 
those cases. He also pointed out that much of the background Bailey had 
reviewed regarding Overstreet was old and came from sources hired by the 
defense.

The hearing, which was moved to St. Joseph County due to this illness of the 
Johnson County judge who had presided over the case, opened with brief 
statements by Schutte and Martin.

Schutte noted no mental health professional who has evaluated Overstreet has 
not agreed that he has a psychotic illness, although some disagree over the 
specific diagnosis and seriousness of that illness. The only question to be 
answered, Schutte said, is whether Overstreet grasps his fate and the rational 
connection between the crime he was convicted of and the punishment he now 
faces.

Martin said the issue at hand is not to determine whether Overstreet is 
mentally ill - a point the state is not disputing.

"The question," he said, "becomes whether that mental illness renders Mr. 
Overstreet incapable of understanding" the sentence and its connection to his 
criminal conviction.

Martin said the state's evidence will show that Overstreet is competent to face 
execution under federal standards.

The hearing, which is scheduled to run through Friday, will include testimony 
from additional doctors and mental health professionals, including state 
witnesses expected to testify that Overstreet is competent to be executed.

(source: Indianapolis Star)






MISSOURI:

Missouri Swore It Wouldn't Use A Controversial Execution Drug. It Did.


In Ohio, the execution took 26 minutes, as the inmate gasped and snorted. In 
Oklahoma, it took 43 minutes until a conscious inmate died of what the state 
said was a heart attack. In Arizona, it took nearly 2 hours, with the inmate 
"gulping like a fish on land."

The 3 worst botched executions this year had at least one thing in common: The 
states all used a drug called Midazolam to sedate the inmate, with varying 
levels of success.

Botched executions in other states led to questions in Missouri, a state as 
secretive as the others. Top Missouri officials were asked about the state's 
methods. They defended their own protocol each time, pointing out that Missouri 
doesn't use the same drugs as those other states.

But an investigation by St. Louis Public Radio shows that wasn't entirely true.

According to documents we obtained, Missouri has used Midazolam in every 
execution since November of last year. In all 9 executions since then, 
Missouri's execution team has injected the condemned with significant amounts 
of the sedative.

This is occurring in spite of the fact that Missouri's top corrections 
officials testified Midazolam would never be used in a Missouri execution.

'We Will Not Use Those Drugs'

"Why will there be no use of [Midazolam] in an execution?" a lawyer asked 
Missouri's Director of the Department of Corrections, George Lombardi during a 
deposition in January.

"Because we have no intention to do that. We have Pentobarbital that we use," 
Lombardi responded.

"Well, I -- the subsection B says that if the Department Director -- which is 
you, correct?"

"Right."

"Determines that a sufficient quantity of Pentobarbital is not available, then 
Hydromorphone or Midazolam will be used. Are you saying that --"

"And I'm testifying right now to tell you that will not be the case. We will 
not use those drugs," Lombardi said.

He was under oath.

That deposition took place in mid-January. By then, Missouri had already 
carried out 2 executions in which the inmate received Midazolam, and has since 
carried out seven more using the drug, according to records obtained by St. 
Louis Public Radio.

In a separate deposition that also took place in January, Director of Adult 
Institutions David Dormire originally said Missouri didn't even have Midazolam. 
Later in the deposition, he changed his story.

"I was reminded that we had purchased those items as a back-up," he said.

But the documents show that the Midazolam was not just a back-up: It has in 
fact been used in each execution since November. What's more, these 2 men who 
offered assurances that the drug would not be used have signed off on its use 
each execution.

"We had no idea," Cheryl Pilate, an attorney who has represented several death 
row inmates said, after St. Louis Public Radio provided her with documents 
showing the drug's use. "It's very disturbing that Midazolam hasn't been 
disclosed. State law requires drugs in protocol to be disclosed."

"There may be a serious violation of state law going on."

The new documents raise several concerns. One is that the men carrying out 
executions have been deceptive about the drugs they have used. Another is that 
Midazolam has been one of the drugs used in a growing number of botched 
executions throughout the United States. And finally, there are questions about 
when the Midazolam is administered.

Lombardi acknowledges in a deposition that a drug called "Versed" could be 
given as a sedative, but does not offer that Versed and Midazolam are the same 
drug. He said the sedative is given either at the request of the inmate, at the 
request of the state, or at the request of the state's execution team. Lombardi 
also said the time that the drug is given varies, but is often a few hours 
before the state's main execution drug: Pentobarbital.

If that is the case, Midazolam is being injected without the presence of state 
and press witnesses. In other words: There is no one to provide oversight if 
things go awry.

The Effects Of The Drug

Lombardi said the sedative was used to calm the inmate. However, the doses the 
state has used would do much more than calm the inmate, according to medical 
experts we spoke with.

"A typical sedative dose of Midazolam would be in the range of 0.5 to 2 
milligrams, depending on the patient's size and their individual sensitivity or 
resistance to the drug," said Dr. Mark Heath, an anesthesiologist who has 
testified as an expert against several states' lethal injection protocols.

The amount of Midazolam Missouri has used varies quite a bit - from 2 
milligrams to 6 milligrams - and the dosage has been consistently going up. In 
addition, two inmates have been given Valium on top of the other drugs.

Missouri has previously maintained that Pentobarbital was the only drug in its 
1-drug protocol.

Drugs used in Missouri's executions

Pentobarbital

A barbiturate that induces sleep, similar to sodium pentothal. In large enough 
doses, it stops breathing. Missouri uses a compounded drug that is made to 
imitate pentobarbital. It is injected.

Midazolam Also known as Versed, Midazolam is a benzodiazepine that sedates and 
induces amnesia. A typical dose for sedation during surgery is .5 to 2 
milligrams injected via an IV. A 6 milligram dose would put a patient into a 
deep sleep to the point where breathing could be obstructed.

Valium

A benzodiazepine that is often used to treat anxiety. A 5 milligram tablet 
would calm a patient.

Lidocaine A local anesthetic that numbs where it is injected. The drug is 
usually short-acting. A typical dose depends on the procedure.

(source: KRCU news)

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

Ministers ask Nixon to stop Missouri executions; Missouri set to execute man 
for 1998 double murder in Columbia


Missouri is scheduled to execute another death row inmate in September, but a 
group of Kansas City ministers has asked Gov. Jay Nixon to put a stop to 
capital punishment in the state.

The ministers came to the governor's satellite office in downtown Kansas City 
to request a meeting with Nixon, who was not there.

Earl Ringo Jr. is scheduled to be put to death next week, the 7th death row 
inmate set to die since January. He was convicted of killing 2 employees of a 
Ruby Tuesday restaurant in Columbia during a 1998 robbery.

The ministers wrote Nixon a letter, saying capital punishment contributes to a 
culture of violence and vengeance. They are also concerned about the 
possibility of a botched execution, which has happened in other states this 
year.

"I would say we believe with God, nothing is impossible, to be really out there 
about it," said the Rev. Jane Fisler-Hoffman. "That's what I believe. But we 
also think the tide is turning in this country."

There is no word whether the ministers will get the meeting they're seeking.

During his time as Missouri attorney general and governor, Nixon has overseen 
10 Missouri executions.

(source: KMBC news)






ARIZONA:

Lawyer: 'Why not' give Arias crime scene access?


It's been more than 6 years since Jodi Arias brutally murdered her 
ex-boyfriend, Travis Alexander, inside his Mesa, Arizona, home.

The crime scene - especially the master bathroom featured so heavily in graphic 
evidence photos - has been changed drastically since then, according to the new 
owners who purchased the property in 2009.

Carpets have been replaced, walls repainted, fixtures updated and even new 
shower doors installed. So what could Arias possibly gain by getting permission 
from a judge to send her investigator back to "observe" the home?

The request is one of several Arias has made since being allowed the right to 
represent herself during her upcoming retrial, scheduled for September 29. The 
34-year-old was unanimously convicted in May 2013 of 1st-degree murder in 
Alexander's death. The jury, however, could not come to an agreement on whether 
to sentence her to the death penalty or life in prison. A new jury, tasked with 
making a decision regarding sentencing alone, will be selected for Arias' 
retrial.

Many have been questioning the judge's decision to allow someone from Arias' 
team to visit the home. So we asked Monica Lindstrom, a criminal defense 
attorney and former prosecutor, to help us understand why the judge might make 
such a decision:

HLN: Is it common for a convicted murderer to be granted access to the crime 
scene years after the fact? Do you think this is because of the unusual 
circumstances of the case (a jury hung on sentencing, a penalty phase retrial, 
Arias now representing herself, etc.)?

Lindstrom: "First let me say that there is nothing 'common' or 'typical' about 
the case of State v. Jodi Arias. With that being said, it would not be uncommon 
for a convicted murderer or their team to be granted access to the crime scene 
years after the fact if the crime scene was a business or a location outside. 
In that situation, there would be less people involved to coordinate or 
disrupt.

The fact that the murder scene in this case is a residential home, occupied by 
a family that is not involved in the case, increases the difficulty level. That 
coupled with the fact that any physical evidence has been removed makes it 
uncommon. There are ample pictures and descriptions that can be used by Jodi 
Arias and her investigator to present her defense. It is highly unlikely Jodi 
Arias will ever be granted access to the home; but Judge Stephens has ruled 
that her investigator can visit the crime scene."

HLN: What kind of argument would a defendant have to make in order to be 
granted access like this? Any speculation about what Arias might have said to 
the judge?

Lindstrom: "A defendant would typically need to argue a real need for access to 
the residential home - not a want but a need. A simple, 'I want to see it 
again' or 'I want my investigator to see it' would be insufficient to convince 
a court.

The fact that this is a death penalty case carries great weight and leverage 
and could be enough to push the Court into approving the request, which it did 
here. Remember, the ultimate penalty is at stake here, so Judge Stephens is 
going to do all she can within the limits of the law to minimize appeal issues 
and ensure Arias gets a 'fair trial.'

The better question we should ask is, 'Why not?' Why not allow the access? What 
harm can it do? Yes, it will disrupt the family that lives there now for the 
time of the visit. Yet, if the benefit is that the penalty phase would finally 
go forward and Travis Alexander's family could gain certainty and finality, 
then why not allow the access?"

HLN: What happens to the family who is living there now? Do they have a say in 
this? Or do they just have to let Arias' investigator into their home?

Lindstrom: "The court has power and authority over all the parties to a case 
and over witnesses - to a certain extent. For example, with witnesses, the 
court can subpoena them to appear and testify.

The current owners of the home are not parties to a case and are not witnesses 
in the traditional sense. If they were to refuse access, the court would likely 
hold an evidentiary hearing as to why and subpoena the residents to come to 
court.

Again, the better question is. 'Why not?' Granted the investigator would be a 
stranger to them. However, Juan Martinez and his investigator would be present 
and the residents are familiar with Martinez and have even indicated that they 
like him. In some situations, like this one, it is better to look at the big 
picture than get lost in the forest."

HLN: The new owners, who have spoken anonymously to the media, say the house 
looked like it was vandalized when they moved in and they've indicated that 
they've made several changes. What would Arias' investigator be looking for?

Lindstrom: "There is no doubt in my mind that Jodi Arias wants to, and is 
planning to, retry her case in front of the new jury. She is not going to hold 
back and is going to do everything in her power to bring up the abuse 
allegations and her explanation of what happened that night.

There will not be any new collecting of physical evidence, since it does not 
exist anymore. However, her investigator, with a fresh set of eyes, may see 
something that everyone else did not. Perhaps there is something about the 
height of the shelves or the location that give credence to Arias' side of the 
story.

Her investigator will be looking for anything that confirms and substantiates 
Arias' version of what happened. I doubt there will be anything new discovered, 
but precluding the investigator from viewing the scene would cause more 
problems than allowing it."

HLN: Anything else we should consider about the judge's decision?

Lindstrom: "State v. Jodi Arias has been going on for a very long time. The 
players (maybe except for Arias), the families and the public are ready for it 
to conclude. Everyone wants to see and hear what will happen, how the case will 
end. Almost no one wants the case to come back on appeal and for a retrial to 
take place.

As such, the best course of action is to give Arias the opportunities she 
believes she needs to mount her defense. Let her investigator go back to the 
scene, let her call her witnesses in the penalty phase, give her the 'fair 
trial' she deserves under the law.

At the end of the day, she will still be convicted, she will still be in prison 
for the rest of her life (since I doubt she would ever be given parole) and she 
might even be put to death."

(source HLNTV.com)






USA:

Study examines racial bias in death-penalty decisions


A Latino defendant convicted of murder who is poor is more likely to be 
sentenced to death by white jurors, a new study shows.

The study was conducted by UNL psychology and ethnic studies professor Cynthia 
Willis-Esqueda and her colleague, Russ K.E. Espinoza of California State 
University, Fullerton, who earned his doctorate at UNL.

More than 500 white and Latino people called for jury duty in a southern 
California courthouse participated in the research, and they were asked how 
they would decide a hypothetical murder case.

Based on an actual incident in which a man was sentenced to life in prison for 
killing his wife and her friend, the circumstances of the case were altered by 
researchers to create 8 different scenarios depending upon whether the 
defendant was white or Latino; whether he was rich or poor; and whether 
mitigation evidence was strong or weak. Each mock juror reviewed one 
hypothetical situation.

Published online this week in the journal Cultural Diversity and Ethnic 
Minority Psychology, the study found that white jurors were more likely to 
impose the death penalty in cases where the defendant was Latino and poor. They 
were most likely to impose it if a Latino defendant of low socio-economic 
status had few mitigating circumstances.

"If the defendant was of low socio-economic status and Mexican-American, he 
received the death penalty more often, compared to other conditions," 
Willis-Esqueda said. "We were really saddened by that. They could have chosen 
an alternative sentence, such as life in prison without possibility of parole."

Latino mock jurors did not show the same strong correlation between ethnicity 
and socio-economic status when they imposed the death penalty.

The researchers described their findings as a form of "aversive racism." That 
is an indirect form of bias in which people realize it's offensive to judge 
someone by their skin color and use other reasons to reach a biased decision.

The researchers said the study has important implications for the criminal 
justice system. It makes it even more important for defense attorneys to submit 
mitigating evidence on behalf of Latino defendants. It also raises questions 
whether potential jurors should be educated about ethnic biases in 
decision-making.

(source: phys.org)