[Deathpenalty] death penalty news----COLO., N.MEX., ARIZ., CALIF., WASH., USA

[Rick Halperin]

Sept. 4



COLORADO:

Firearms witness will be allowed to testify at movie theater shooting trial


The judge in the Colorado theater shooting case says a firearms expert can 
testify at the trial of defendant James Holmes.

The judge rejected a defense motion to prevent the testimony. He said Wednesday 
that forensic scientist Dale Higashi is credible and his testimony would be 
reliable. Higashi works for the Colorado Bureau of Investigation.

At a hearing in July, defense attorneys argued that firearms analysis is 
subjective and lacks statistics to measure its accuracy.

Holmes has pleaded not guilty by reason of insanity to charges of killing 12 
people and injuring 70 in the July 20, 2012, attack at a Denver-area movie 
theater. Prosecutors are seeking the death penalty.

His trial is scheduled to start Dec. 8.

(source: Associated Press)






NEW MEXICO:

New Mexico high court to hear death-row appeals


New Mexico's remaining death row inmates are asking the state's highest court 
to spare them from potential execution because lawmakers repealed capital 
punishment after they were sentenced to die by lethal injection.

Timothy Allen and Robert Fry contend their death sentences violate state and 
federal constitutional protections because New Mexico abolished capital 
punishment in 2009 for future murders but left it in place for them. Both men 
were convicted and sentenced to death for murders committed years before the 
repeal.

The state Supreme Court will hear arguments from lawyers on Oct. 1, but a 
decision by the 5 justices likely wouldn't be made until months later.

No execution has been scheduled for either Fry or Allen, and both have pending 
habeas corpus post-conviction appeals in state district court. The Supreme 
Court has previously upheld their convictions and sentences.

Attorney General Gary King, representing the state, contends the death 
sentences for Fry and Allen are constitutional and should remain in place.

The Legislature's decision to apply the repeal to future murders "furthers the 
long-standing policy of ensuring that criminals are punished according to the 
law that existed at the time of their crimes," Assistant Attorney General M. 
Victoria Wilson said in written arguments to the court.

A group of University of New Mexico law professors and the New Mexico Criminal 
Defense Lawyers Association is supporting the latest legal challenge brought by 
attorneys for Fry and Allen.

"These capital sentences are political vestiges of an abolished state system of 
death. New Mexico has no compelling interest distinguishing Mr. Allen and Mr. 
Fry from future defendants who will escape execution because of repeal," the 
defense attorneys' group said in written arguments submitted to the court.

Fry, the last person sentenced to death in New Mexico, was convicted of killing 
Betty Lee in 2000. The mother of 5 was stabbed and bludgeoned with a 
sledgehammer in a remote area of San Juan County. Fry also has been sentenced 
to life in prison for 3 other murders in 1996 and 1998.

Allen was sentenced to die for strangling 17-year-old Sandra Phillips in 
northwestern New Mexico in 1994. He also was convicted of the kidnapping and 
attempted rape of the Flora Vista teenager.

New Mexico's repeal of the death penalty took effect on July 1, 2009, and it 
applied to crimes committed after that date. Lethal injection was replaced with 
a sentence of life in prison without the possibility of parole.

Then Gov. Bill Richardson didn't commute the death sentences of Fry and Allen. 
At the time of the repeal, one potential death-penalty case was pending. 
Michael Astora was later sentenced to life imprisonment for murdering a 
Bernalillo County sheriff's deputy in 2006.

Lawyers for Fry and Allen contend that their clients' death sentences, in light 
of the 2009 repeal, violate state and federal constitutional provisions against 
cruel and unusual punishment and equal-protection guarantees.

"Executing Mr. Fry but not other members of the same class of offenders based 
only on a date is arbitrary and freakish" and violates the state constitution, 
Fry's lawyer, Kathleen McGarry, said in written arguments.

She said Wednesday in a telephone interview that Connecticut's highest court is 
considering a similar legal challenge involving death-row inmates sentenced 
before that state abolished the death penalty in 2012.

New Mexico's last execution was in 2001. Child-killer Terry Clark's execution 
was the 1st in the state in 41 years.

(source: Associated Press)






ARIZONA:

With Retrial Looming, Jodi Arias Sends Investigator To Crime Scene In Gory 2008 
Murder


Jodi Arias wants to take things back to the scene of the crime.

The convicted murderer, in her penalty phase retrial, has successfully 
petitioned the court to allow an investigator she's hired to the Mesa, Ari. 
home where she gored former boyfriend Travis Alexander with a series of knife 
plunges and a gunshot in June 2008.

An investigator for the infamous killer, who will represent herself at the 
upcoming proceedings, is expected to be let into the home to gather info 
sometime this week, per an Maricopa County Superior Court order.

After a months-long trial that captivated the country's attention with its 
lurid details of sex, obsession and violence, the 34-year-old 
waitress-photographer was convicted of 1st-degree murder in May 2013.

Arias' retrial - in which her fate of life in prison, or the death penalty, 
will be decided after the initial attempt wound up in a deadlocked jury - hits 
court Sept. 29.

(source: radaronline.com)






CALIFORNIA:

Death Penalty Possible for Man Suspected in Triple Slaying


A man accused of fatally shooting 3 people - including 2 killed in a car 
outside the Westfield Mission Valley mall last Christmas Eve ??? was ordered 
Wednesday to stand trial on triple murder charges that could lead to the death 
penalty.

Carlo Gallopa Mercado, 29, is accused in the deaths of Ilona Flint and 
Salvatore Belvedere, who were shot at 1:11 a.m. Dec. 24 in the mall parking 
lot, and Belvedere's older brother, who was Flint's fiance. Gianni Belvedere's 
decomposed body was found in the trunk of his car in Riverside on Jan. 17.

All 3 were shot in the head with a .22-caliber handgun belonging to Mercado, 
according to evidence produced at a 2-day preliminary hearing. A motive was not 
disclosed.

Deputy District Attorney Brian Erickson told Judge Eugenia Eyherabide that 
Gianni Belvedere, 24, was last heard from about 11:30 p.m. on Dec. 23 when his 
phone conversation with a man abruptly ended.

Salvatore Belvedere and Flint, both 22, were shot at point-blank range about 90 
minutes later, the prosecutor said, adding that a silencer was probably used in 
the killings because no gunshots were heard on a 911 call from Flint as she was 
shot.

Erickson alleged that on the day of the shootings, Mercado used his cell phone 
to search for information on the Mission Valley Mall shootings.

The defendant's DNA was found on a can of air freshener and tape used to hold 
down the trigger to quash the smell of Gianni Belvedere's decomposing body in 
the trunk of his car, Erickson alleged.

Mercado's DNA was also found on duct tape near the license plate of the 
victim's car and on the gas cap, according to court testimony.

On Jan. 18, a "despondent" Mercado was stopped about 4:45 a.m. at the San 
Clemente checkpoint when an agent noticed a weapons case in the back seat of 
his Ford Explorer, Erickson said.

Mercado admitted having an assault rifle in the car, but didn't mention 2 
loaded handguns - a .22-caliber and a .45-caliber - magazines and boxes of 
ammunition found in a backpack on the front seat.

A homemade silencer was also found in the vehicle.

The weapons were seized, Mercado was released, and the case was referred to the 
state Department of Justice.

Mercado was arrested for the shootings of Flint and the Belvedere brothers in 
late June. At the time, he was awaiting sentencing after pleading guilty to 
possession of a silencer.

"Guns play a very big role in his (Mercado's) life," the prosecutor told the 
judge.

Mercado used the password "assassin" to sync his cell phone to his computer and 
had saved on his "favorites" a list of the top 50 assassin movies, Erickson 
said.

Defense attorney Gary Gibson told the judge that Mercado had the gun used to 
shoot the victims, but beyond that, there were still many unanswered questions 
as to who killed the 3.

Gibson acknowledged that his client was involved in some way in Gianni 
Belvedere's murder, but told the judge it was "frightening" to think that 
Mercado faced a possible death sentence with the evidence presented regarding 
the other 2 killings.

Eyherabide found that enough evidence was presented for Mercado to stand trial 
and scheduled arraignment in Superior Court for Sept. 17.

District Attorney Bonnie Dumanis has yet to decide whether the defendant will 
face the death penalty or life in prison without parole if convicted.

(source: timesofsandiego.com)






WASHINGTON----female may face death penalty

Carnation deaths: No closed courtroom when psychologists testify----Balancing a 
defendant's right to a fair trial and the public's right to open courts is a 
"minefield," said a King County judge who denied 2 defense motions on the 1st 
day of a hearing to decide if Michele Anderson is competent to stand trial for 
allegedly killing 6


A 2-day hearing began Wednesday in King County Superior Court to determine if 
Michele Anderson is mentally competent to stand trial, and potentially face the 
death penalty, for allegedly killing 6 members of her family on Christmas Eve 
2007 in Carnation.

Juror summonses have already been mailed out for the upcoming trial of 
Anderson's co-defendant and former boyfriend Joseph McEnroe, who is also 
charged with 6 counts of aggravated 1st-degree murder. Pretrial motions in the 
capital case against McEnroe are to begin later this month, with opening 
statements expected sometime in October.

Should Anderson be found competent, she will be tried after McEnroe. The 
charges against both carry 2 possible sentences: life in prison without parole 
or the death penalty.

Anderson's attorneys, Colleen O'Connor and David Sorenson, argued Wednesday 
morning that the courtroom should be closed to the public during testimony by 2 
psychologists - one hired by the defense and the other by the state - and that 
their competency evaluations be sealed.

Anderson's right to counsel and a fair trial would be violated if certain, 
unspecified information contained in the competency evaluations were to be made 
public, O'Connor said.

King County prosecutors, McEnroe's defense team and The Seattle Times objected 
to the closure of the courtroom and the sealing of the reports.

Judge Jeffrey Ramsdell denied both defense motions, saying Anderson's attorneys 
did not provide specific, compelling reasons to close the court and seal the 
reports. He acknowledged that balancing Anderson's rights with the public's 
right to open courts and interest in seeing that only competent people stand 
trial is "a minefield."

"The remedy will be reversal (on appeal) if we get it wrong," Ramsdell said.

Whereas competency evaluations were routinely sealed in the past, that all 
changed last year when the state Supreme Court unanimously agreed with the 
public release of a redacted psychological evaluation that found Dr. Louis Chen 
competent to stand trial on two counts of aggravated 1st-degree murder in the 
August 2011 deaths of his partner and their young son in Seattle.

Though Ramsdell denied a blanket sealing order, he said he would entertain 
limited redactions to the psychologists' reports provided the attorneys cited 
specific legal authority for each one.

Ramsdell granted the state and Anderson's defense team a 30-minute recess to 
see if the two sides could agree on redactions to Anderson's competency 
evaluations. When court resumed, Senior Deputy Prosecutor Scott O'Toole told 
the judge the 2 sides weren't in agreement and asked for more time to consult 
with prosecutors in his office's appellate unit in order to come up with 
proposed redactions.

Ramsdell is expected to address the proposed redactions and decide on their 
legal basis on Thursday. Dr. Mark Cunningham, a psychologist from Austin, 
Texas, retained by the defense, and Dr. Brian Judd, a state-retained 
psychologist from Olympia, are to testify Thursday about the conclusions they 
reached on the issue of Anderson's competency to stand trial.

According to court documents, Anderson repeatedly refused to meet with 
Cunningham, citing "a conflict of interest."

So far, it's unclear if she later agreed to be evaluated by Cunningham or if he 
based his report on Judd's evaluation of Anderson, which the judge previously 
ruled could be video-recorded and viewed by the defense psychologist.

Anderson, who spent several months at Western State Hospital earlier this year, 
has undergone at least 2 prior evaluations that found her competent to stand 
trial.

Anderson and McEnroe are accused of fatally shooting Anderson's family in her 
parents' Carnation-area home on Dec. 24, 2007. Killed were her parents, Wayne 
and Judy Anderson; her brother and his wife, Scott and Erica Anderson; and that 
couple's children, 5-year-old Olivia and 3-year-old Nathan.

(source: Seattle Times)


USA:

Last-ditch bid: Cop-killer Ronell Wilson was mentally impaired, lawyers 
contend; seek new hearing


In a last-ditch bid to spare his life, lawyers for convicted cop-killer Ronell 
Wilson contend a federal judge relied too heavily on IQ scores and failed to 
consider other factors in determining Wilson was not intellectually disabled 
and therefore eligible for the death penalty.

Wilson's attorneys filed a brief this week asking District Judge Nicholas G. 
Garaufis to reevaluate his ruling from last year and hold additional hearings 
regarding Wilson's mental competency. Wilson remains on death row in a federal 
prison in Indiana.

"Contrary to the approach followed by this court, the intellectual functioning 
element is not determined exclusively by resort to IQ scores, with their 
inherent imprecision," wrote attorneys David Stern and Michael Burt.

"Instead, IQ scores are but one factor to be considered, in the exercise of 
clinical judgment, along with the full range of clinically relevant 
information, including, especially, adaptive functioning evidence, to determine 
whether a person has significant limitations in intellectual functioning," the 
attorneys wrote.

In June, a federal appeals court ordered Garaufis, of Brooklyn federal court, 
to reconsider his decision on Wilson's intellectual capacity in light of a 
recent Supreme Court decision.

The country's highest court found that Florida had adopted a too-rigid cutoff 
for IQ test results in deciding who could be spared the death penalty due to 
intellectual disabilities.

Wilson's lawyers had contended the former Stapleton gang member was mentally 
impaired as evidenced by his low IQ and severe emotional and behavioral 
problems while growing up.

In a landmark 2002 ruling, the U.S. Supreme Court found that executing the 
mentally retarded violates the Eighth Amendment's ban on cruel and unusual 
punishments. Such persons typically have an IQ below 70.

Wilson, 32, was sentenced to death last year in a penalty-phase retrial after 
Garaufis ruled he was not mentally incapacitated.

The defendant was convicted of murdering Detectives Rodney J. Andrews, 34, and 
Detective James V. Nemorin, 36, during an undercover gun buy-and-bust operation 
in Tompkinsville on March 10, 2003.

In a July hearing after the ruling by the U.S. Court of Appeals for the Second 
Circuit, Garaufis said he would consider what steps, if any, should be taken 
after Wilson's lawyers submit their briefs and prosecutors respond by Sept. 19.

Assistant U.S. Attorney James McGovern said then he was "very confident" the 
Florida case "has no applicablility" to the outcome of Wilson's case.

In the Florida case, Hall v. Florida, the Supreme Court ruled 5 to 4 that some 
states draw a too-rigid line on IQ-test results. Such a standard doesn't 
account for the margin of error that professionals say is inherent in IQ tests, 
the court said.

In his ruling last year, Garaufis said the evidence belied Wilson's claims of 
mental incapacity.

The judge said he relied on clinical standards that define mental retardation 
as significantly subaverage intellectual functioning and significant deficits 
in adaptive behavior skills, such as communication, self-care and 
self-direction.

Those conditions must manifest themselves before the age of 18, and Wilson also 
had to be found mentally deficient at the time of the crime, said Garaufis.

He said 7 of the 8 IQ tests Wilson took at various times between the ages of 6 
and 30 "point(ed) away from mental retardation," as did the opinions of all his 
test administrators.

While Wilson's score on an IQ test in 1994 was "indicative" of mental 
retardation, the judge viewed that result as an "outlier."

Garaufis also noted that a defense psychologist "rule(d) out the likelihood of 
mental retardation" in his October 2003 evaluation of Wilson, 7 months after 
the murders.

Wilson's attorneys maintain Garaufis didn't consider whether evidence of the 
defendant's deficits in adaptive functioning indicated intellectual impairment.

Since the time of Garaufis ruling, the American Psychiatric Association has 
revised its definition of intellectual disability and its diagnostic criteria, 
contend Wilson's attorneys.

"While maintaining the traditional diagnostic elements, the ... new formulation 
of the diagnostic criteria emphatically underscores a shift away from any 
suggestion that IQ scores predominate and toward a concurrent assessment of 
both elements: 'Intellectual disability ... includes both intellectual and 
adaptive functioning in conceptual, social and practical domains,'" wrote 
Wilson's lawyers.

"Indeed, the shift suggests a new preeminence for the adaptive functioning 
element," they wrote. "Intellectual disability is a condition, not a number."

As for Wilson's IQ test scores, his legal team maintains Garaufis failed to 
take into account the possibility the results could have been inflated by his 
repeated taking of the exams, even across an extended period of time.

(source: Staten Island Advance)