[Deathpenalty] death penalty news----TEXAS, N.C., GA., ALA., OHIO
Rick Halperin
rhalperi at smu.edu
Tue Sep 9 14:23:51 CDT 2014
Sept. 9
TEXAS----impending execution
Trottie to die over 1992 murder
While many students will be attending classes and going about their daily
business tomorrow at Sam Houston State University, three blocks away from
campus the Texas Department of Criminal Justice will be carrying out the death
penalty against Willie Tryon Trottie, after having served more than 2 decades
in prison.
A native of Harris County, Trottie, was only 23-years-old when he was convicted
in the murders of his former partner Barbara Nell Canada, 24, and her brother
Titus C. Canada, 29.
After Trottie and Barbara Canada's relationship ended in September 1992,
Trottie, who had a restraining order against him, threatened to kill her if she
did not return to him by May 1, 1993.
2 days later, in response to Canada's lack of compliance with his request,
Trottie kicked down the door to the house where Canada was staying with her
mother and other family members and began opening fire with a 9 mm pistol.
Reacting quickly, Titus Canada grabbed hold of his own pistol and began firing
back at Trottie successfully hitting the perpetrator, before Titus himself
became wounded. Trottie then went to the back of the house where he found
Barbara Canada in a rear bedroom and proceeded to shoot her 6 more times in the
presence of 7 children.
Trottie then returned to the living room where Titus Canada was wounded and
continued to shoot him execution-style in the back of the head.
After driving himself to the hospital in Barbara Canada's car, Trottie was
arrested.
Tomorrow at 6 p.m. Trottie will face the death penalty for his actions made
more than 21 years ago in the Walls Unit of the Texas Prison System.
(source: The Houstonian)
*********************
Potentially Innocent Texas Man Will Die on Death Row Anyway
Max Soffar already knows he's about to die, but it's not because he's on death
row. The 58-year-old man has maybe a shot at seeing 2015, but even that is in
doubt, due to advanced, inoperable liver cancer. Despite already spending over
3 decades behind bars, Soffar is likely to never see outside the Texas prison
he has been held at since his 1st death penalty conviction in 1981. Now, with
maybe weeks of life left to him, his lawyers are hoping he can have one last
shot at freedom as his lawyers petition for clemency.
Soffar was convicted of murder in the early 1980s, but his conviction relied
heavily on a recorded confession that Soffar claims was coerced. The tape held
just two hours worth of what lawyers say was over 24 hours of interrogation,
some of which was believed to be strong-armed and leading, and potentially
abusive.
"Richard A. Leo, who teaches at the University of San Francisco School of Law
and has written several books on police interrogation procedures, analyzed Mr.
Soffar's tape and determined that officers in the case used verbal techniques
like accusation, forceful pressure, repetition and confrontation," reported the
New York Times in 2012. "All of these, Dr. Leo wrote in an affidavit, 'create a
risk of eliciting false confessions when misapplied to the innocent.' Mr.
Soffar, sleep-deprived and coming down from drug use, was particularly
susceptible, Dr. Leo said."
Although Soffar's 1st conviction was overturned because a judge felt the lawyer
mishandled the case, a retrial still found him guilty, and still based that
decision squarely on the taped confession even though a witness prior to the
shooting ID'ed a different suspect.
Under normal circumstances Soffar could potentially still get off death row
with a new appeal, since the state hasn't even set a date for his execution and
he isn't even out of his fifties. His terminal diagnosis, however, makes it
impossible for that to ever happen in time, which is why his lawyers are
arguing for clemency. "The reality is that the federal court process will
likely not be completed before Mr. Soffar dies," his lawyers said in the
petition, according to the Associated Press. "The exigency of this situation is
the driving force behind what Mr. Soffar admits is an unusual request for
clemency at this stage of a capital case."
The District Attorney's office has already said they plan to turn the request
down.
Even if Soffar dies of his cancer before the process plays out, Texans see the
battle to get him out of jail as a worthy exercise in pushing for fairness and
leniency in one of the more virulently pro-death penalty states in the nation.
"It's a good bet Soffar doesn't get that relief, and it's a good bet that
cancer will take him before appeals are exhausted and the executioner is
cleared to proceed in Huntsville," writes the Dallas Morning News editorial
team. "Still, the clemency request serves a righteous purpose. It lays out
another Texas capital case where the facts consist of many hazy shades of gray.
Texans should know the uncomfortable truth about who's cleared to be executed
in their name."
Soffar, a man who was interrogated while not at full mental capacity, whose
"confessions" were used as evidence in his own murder trials, who saw evidence
thrown out during his trial that could have cleared his name, such as new
suspects or news articles, and who had a cop speak out as a character witness
to say that he likely wasn't capable of the crime, is going to die in jail 3
decades after being put behind bars, all for a crime he likely didn't commit.
He will be denied even a few short months or weeks to compassionately receive
palliative care and end his life in his own bed. Because of his terminal
illness, he will not have a chance to join the nearly 150 people on death row
cleared of their crimes before they died.
He will die on death row, not through a lethal injection, but at the hands of a
prison system that would rather be sure every crime is punished than guarantee
the right person is punished for that crime.
(source: care2.com)
NORTH CAROLINA:
Overturned death penalty conviction sparks debate in NC
The release of a death row inmate wrongly imprisoned for 30 years has shed new
light on the conflicted state of the death penalty in North Carolina.
On Sept. 2, a Robeson County judge vacated the convictions of Henry McCollum
and his half brother Leon Brown after the state's Innocence Inquiry Commission
tested DNA from the crime scene and found that the evidence implicated a
different man.
McCollum and Brown were convicted in 1984 of 1st-degree murder and rape. Both
men spent time on death row, though Brown's sentence was later changed to a
life sentence in prison.
DEATH PENALTY IN NC
North Carolina is 1 of 32 states with a death penalty:
--Since 2000, the number of death sentences given in N.C. each year has
declined.
--The state carried out its last death row execution on Aug. 18, 2006.
--The Racial Justice Act was passed by state lawmakers in 2009 and repealed in
2013.
--Death row inmate Henry McCollum was released on Sept. 3, 2014 after DNA
evidence proved his innocence.
"If these men had been executed years ago, we almost certainly would have never
learned of this grave injustice," said Richard Dieter, executive director of
the Death Penalty Information Center, in a statement.
McCollum's release leaves 152 inmates on North Carolina's death row.
Death row executions in North Carolina have halted since 2006 due to a variety
of legal challenges, including several under the state's former Racial Justice
Act, which allowed defendants to use claims of racial discrimination to have
their death row sentences converted to life in prison without parole.
The 2009 act was repealed by the N.C. General Assembly in 2013. Still, 4 case
appeals are pending involving the Racial Justice Act in the N.C. Supreme Court,
said Vernetta Alston, an attorney with the Durham-based Center for Death
Penalty Litigation.
Until the court decides those cases, Alston said, the future of the law's role
in state death penalty litigation remains unclear.
"It's our position that everyone who has an RJA motion currently pending - that
those motions are not rendered mute by the repeal of a law," she said.
Lawyers filed a motion under the Racial Justice Act in McCollum's case, but his
release was based on separate litigation, she said.
Jennifer Marsh, director of research and community services at UNC School of
Law, said critics of the Racial Justice Act wrongly argued the act would lead
people to be released from prison.
"That is not and was never a remedy under the act," she said.
Support for the death penalty for people convicted of murder stands around 60 %
nationally, according to the most recent Gallup poll on the issue. But capital
punishment's approval is at its lowest point in more than 40 years.
And Sarah Preston, policy director for North Carolina's chapter of the American
Civil Liberties Union, said she thinks there has been national and state
momentum against the use of capital punishment.
A national advocacy group called Conservatives Concerned About the Death
Penalty launched in 2013 to push for an end to the death penalty, Preston said,
and North Carolina has a chapter of the organization.
"What we're starting to see is recognition that is sort of bipartisan - and
lots of groups and categories of people are starting to recognize that the
death penalty is broken in a variety of different ways," she said. "It feels
different from how it's felt in the past."
(source: Daily Tar Heel)
************************
More proof the NC death penalty lives up to no conservative standards
Like most people in North Carolina, I watched last week as an innocent man was
released after 30 years on death row. Henry McCollum walked free because DNA
evidence found by the N.C. Innocence Inquiry Commission showed that another man
was the likely perpetrator in the rape and murder of an 11-year-old girl.
Also freed was McCollum's half-brother, Leon Brown, who was serving a life
sentence for the same crime, which McCollum, as a scared 19-year-old, had
falsely confessed to.
I am sure many of us had the same thought: What a terrible waste of 2 lives. As
former state auditor, I also can't help but think: Not only were 2 innocent men
sent to prison for 30 years, but the state spent millions of dollars of its
scarce resources to house, feed and provide medical care to men who could have
been contributing, productive members of society. But that expense is minor
compared with the amount North Carolina spent on the legal fight to execute
Henry McCollum. That cost is incalculable.
Capital prosecutions cost millions more than noncapital murder trials, and
McCollum's 1984 trial was just the beginning. As with most death penalty
prosecutions, the initial conviction was followed by years of appeals, which go
on far longer than those in noncapital cases.
In the years since he was sentenced to death, McCollum has had attorneys
fighting to stop his execution - and prosecutors fighting to make it happen.
Countless experts have been hired, and thousands of hours have been spent
poring over documents and evidence. As happens in most death penalty cases,
taxpayers footed the bill for all his defense and prosecution costs.
Thankfully, the N.C. Innocence Inquiry Commission, which is funded in part by
state and federal dollars, took on this case. The commission spent 4 years and
hundreds of thousands of dollars digging up evidence and conducting
state-of-the-art biological testing.
I do not argue that any of these steps was unnecessary. If not for every one of
them, an innocent man would have been executed.
As a conservative, I believe in swift and sure justice for people who commit
crimes. I also believe in a system that is efficient and effective. As Henry
McCollum's case clearly illustrates, our capital punishment system lives up to
none of those standards.
This case suggests there are many areas of our justice system needing
improvements. One of the first should be to replace the death penalty with life
in prison without parole and let the worst offenders die in prison. At least
then we would be assured that North Carolina never again spends millions in an
effort to execute an innocent man.
(source: Les Merritt, state auditor from 2005 to 2009, is a member of North
Carolina Conservatives Concerned about the Death Penalty; News & Observer)
*****************************
Exonerated death row inmate had Boston legal team behind him
After countless hours of pro bono work and roughly a half dozen trips to North
Carolina, Richard Johnston, a partner in WilmerHale's Boston office, was not
expecting the fate of his client, the longest-serving death row inmate in North
Carolina's history, to turn on a dime. But turn it did when long-awaited DNA
evidence cleared Henry Lee McCollum of raping and murdering an 11-year-old
girl, a conviction that had put McCollum behind bars for 30 years. McCollum's
half brother Leon Brown, who was serving a life sentence for the 1983 crime,
also was cleared, though Johnston did not represent him.
Once the DNA evidence emerged this summer, clearing McCollum and linking
another man to the crime, "everything moved at dizzying speed," said Johnston,
in a recent interview with the BBJ. Johnston was WilmerHale's lead partner on
the case, working along with 2 other Boston-based WilmerHale attorneys. The
group from WilmerHale serve as co-counsel with The Center for Death Penalty
Litigation, based in North Carolina.
In the past 20 years,15 different WilmerHale attorneys have worked pro bono on
McCollum's case, some of them from the law firm's Boston office and others from
the Washington D.C. office, a spokeswoman said.
"We'd had (Roscoe Artis) in our sights for several years," Johnston said,
referring to the man whose DNA matched evidence found on a cigarette butt and
connected him to the murder. "We never had the slam dunk (against him) until
this final DNA evidence came."
The North Carolina Innocence Inquiry Commission, an independent agency,
gathered the DNA evidence through its broad subpoena powers. "As lawyers, we
wouldn't have been able to get the evidence they were able to get," Johnston
said. WilmerHale first got involved with McCollum's cause 20 years ago when a
former partner convinced the firm there had been a miscarriage of justice. In
the early days of the case, Johnston said, DNA evidence was "hard to come by"
and efforts by WilmerHale to get it were unsuccessful.
"We asked in 2002 to have DNA testing done on our client. Some was done and it
showed that our client's DNA wasn't on a particular piece of evidence. But it
wasn't enough to convince the judge and the D.A. that there wasn't some other
evidence out there that implicated our client," Johnston said.
Given the difficulties of obtaining DNA evidence, Johnston said, the legal
strategy was to get the death penalty revoked because of McCollum's mental
disability.
One of the most disappointing moments in the case came in May, Johnston said,
when the defense team argued that McCollum was mentally disabled and, as a
matter of law, he should not be on death row. Instead, a judge decided to hold
a hearing in August to determine if McCollum was mentally disabled.
When the new DNA evidence emerged, Johnston said, the discussion suddenly
shifted and focused on McCollum's overall innocence.
Johnston said he plans to stay involved with McCollum, and the next step
includes securing compensation for him for the years he spent wrongfully
convicted. Meanwhile, Johnston is still absorbing the surprising and unexpected
outcome last week.
"I don't think any of us had any idea that (the case) would end up quite this
way or become the magnetic issue that it has become," Johnston said.
(source: bizjournals.com)
***************************
Another death knell for the death penalty
The practical reasons for ending America's status as one of the "killingest"
countries on the planet when it comes to executing its citizens (along with
Iran, Iraq, China and a few other paragons of human rights) are so obvious and
numerous that it seems almost silly and repetitive to list them yet again. It's
kind of like making the case against drunk driving or the international sex
trade.
For the record, though, let it be noted for the umpteenth time that the death
penalty:
--does not deter Americans from committing crime in the states (like North
Carolina) in which it still exists,
--is applied with wild degrees of inconsistency, bias and general unfairness,
--costs more than long-term imprisonment, and
--leads with stomach-turning frequency to one of the greatest crimes a
government can commit - namely, the intentional killing of an innocent person.
Sadly, however, decisions about the death penalty (both generally and in
specific cases) are rarely made based upon a dispassionate assessment of the
facts. For whatever reason, we Americans find it hard to put our emotions aside
in assessing the death penalty - especially when it comes to its retention and
actual application.
There's simply something so heinous about some murders that gut emotions are
often relied upon (and even accepted and respected by many in the public) as
the legitimate bases for life and death decisions. 26 years ago, many American
voters cited Presidential candidate Michael Dukakis' failure to respond with
sufficient emotion to a hypothetical debate question about his wife's murder as
grounds for electing his opponent.
An emotional symbol crumbles
What happens, though, when the basis for our emotional response to murder and
the imposition of the death penalty turns out to be based on a lie? North
Carolinians (and, hopefully, all Americans) are about to grapple with this
question in the days ahead in the aftermath of yesterday's ruling in Robeson
County overturning the sentences of Leon Brown (life in prison) and Henry
McCollum (who was sentenced to death) 3 decades after they were convicted of
one of the most heinous murders imaginable.
It turns out, thanks to the dogged work of lots of people - including the
state's Center for Death Penalty Litigation - that there is abundant and
compelling evidence to show that both men are not guilty of the crime for which
they were sentenced. This is from a summary of the situation provided by
advocates at the North Carolina Coalition for Alternatives to the Death
Penalty:
New DNA testing by the N.C. Innocence Inquiry Commission proves beyond a doubt
that Henry McCollum, N.C.'s longest serving death row inmate, and his brother,
Leon Brown, who is serving a life sentence for the same crime, are innocent.
Henry and Leon were sentenced to death in 1984 for the murder of Sabrina Buie,
an 11-year-old who was raped and suffocated in the Robeson County town of Red
Springs. DNA testing now shows that the true killer was Roscoe Artis, a
convicted rapist and murderer who lived 1 block from the crime scene. Artis is
a serial rapist who was sent to death row for killing another young woman, less
than a month after Sabrina's murder, in eerily similar circumstances.
This long-delayed DNA test finally corrects a wrong that began 30 years ago,
when police coerced false confessions from 2 intellectually disabled teenagers.
Of course, this is far from the first death row inmate in recent decades for
whom reasonable doubt has been discovered years after conviction. The Death
Penalty Information Center has catalogued 140 such exonerations - 7 in North
Carolina - in the last 40 years. What makes this latest development even more
noteworthy than "normal" however is that Mr. McCollum's case did not involve a
run-of-the-mill death sentence.
As Daily Tar Heel staff writer and UNC-Chapel Hill senior Political Science
major Seth Rose explained in a column published yesterday, McCollum was
actually used by one of the American death penalty's best-known and most
powerful defenders as a symbol for why it should be retained during one of the
most famous debates on the subject.
Here's Rose:
20 years ago, Supreme Court Justice Harry A. Blackmun offered a statement
rarely heard from a figure of his stature. He passionately renounced the death
penalty, proclaiming that he would "no longer tinker with the machinery of
death."
Blackmun argued that decisions involving the death penalty were too subjective
and prone to human error to be consistently administered constitutionally. His
appeal, shocking in an era of overwhelming public support for capital
punishment, did not go uncontested.
Justice Antonin Scalia offered a scathing rebuttal to his colleague, whom he
accused of attempting to "thrust a minority's views upon the people." Scalia
argued the need for the death penalty as an appropriate punishment for the most
heinous of crimes. He wrote about two cases before the Supreme Court at the
time, which he believed made death by lethal injection look "enviable." One of
those cases, notably, concerned the brutal rape and murder of 11-year-old
Sabrina Buie, committed in Red Springs, North Carolina [i.e. the case in which
McCollum was convicted].
After detailing the particulars of McCollum's case and wrongful conviction,
Rose concludes this way:
Justice Scalia believed the Red Springs murder proved the necessity of the
death penalty. If this was the strongest case a Supreme Court justice could
make for the continuation of the death penalty, McCollum's innocence is an even
stronger one for why we are incapable of justly administering a punishment of
such finality.
Moving toward abolition
Rose is absolutely right, of course. If what was supposedly one of America's
most potent symbols for retaining the death penalty has turned out to be a
fraud, there is an especially powerful symbolism in its public demise. Perhaps
that's 1 reason the story is receiving international attention - that plus the
rank (and rankling) hypocrisy of a nation that purports to lecture the bullies
of the world about human rights being found to have sanctioned such a debacle.
Sadly, even full exoneration will not bring back the 3 decades that McCollum
and Brown have lost in this tragedy. As the Robesonian newspaper editorialized
over the weekend:
But even if they walk free, there isn't much left for Leon Brown, now 46, and
half-brother Henry McCollum, now 50, to reclaim beyond whatever satisfaction
comes with the shedding of the labels rapist and murderer .... We don't know
what [Judge] Sasser and perhaps [District Attorney] Britt will decide, but
justice delayed is justice denied. It was long ago too late for McCollum and
Brown.
Moreover, the issue remains terribly convoluted for the families of the victim
as well. Advocates at the group Murder Victims' Families for Reconciliation
captured this truth in a statement Tuesday:
As a community of people who have had loved ones taken by murder, we at Murder
Victims' Families for Reconciliation (MVFR) know the deep pain of senseless
violence. We also know that, in many cases, the death penalty deepens, prolongs
and complicates that pain.
When our judicial system punishes the wrong person, both the person convicted
and the victim's family are denied justice. Imagine Sabrina Buie's family going
through 30 years of appeals, seeing the accused killer's face in the paper
again and again, waiting for an execution that never came. Imagine knowing that
the man the state almost executed "in their name" was innocent. Imagine finding
out that the person who actually committed this awful crime was never held
accountable. As in so many cases, the death penalty has been nothing but a
false promise for a family that has suffered way too much.
All that said; it is never too late for the truth to be told and injustice to
be exposed - either with respect to the lives of wronged individuals or a
system as a whole. Right now in North Carolina we are witnessing both of these
phenomena in action. Let's hope the process continues to its logical conclusion
- the complete and permanent abolition of the death penalty - as rapidly as
possible.
(source: Rob Schofield is the Director of Research at N.C. Policy Watch;
Jefferson Post)
*****************************
Getting It Dead Wrong for 30 Years
According to Supreme Court Justice Antonin Scalia, Henry Lee McCollum deserved
to die for the brutal rape and murder of 11-year-old Sabrina Buie. There's just
one problem, and a frequent one in death penalty cases: Henry Lee McCollum
didn't do it.
Instead of tracking down the true killer, police and prosecutors went after
Henry Lee McCollum and his half-brother Leon Brown, two intellectually disabled
and innocent teenagers. While his mother wept in the hallway, not allowed to
see her son, officers interrogated McCollum for 5 hours, ultimately coercing
him to sign a confession they had written. In a trial without forensic evidence
and plagued by racial bias, these 2 half-brothers with IQs in the 50s and 60s
were sent to death row. Henry Lee McCollum and Leon Brown, whose sentence was
later reduced to life in prison, have been behind bars for the last 30 years.
Last week, they were finally exonerated in another disturbing example of how
deeply flawed the death penalty is, particularly for African-American men in
the South.
Death penalty supporters have long cast Henry Lee McCollum as a mythic
boogeyman. After North Carolinians passed the Racial Justice Act, a law
outlawing racial bias in capital cases, opponents of the law mailed
sensationalized fliers showing McCollum's mug shot, claiming it would lead to
the release of convicted killers like him. Justice Scalia depicted McCollum as
a strong argument against death penalty abolition because of the gruesomeness
of Sabrina Buie's murder.
There is a perverse irony here. Henry McCollum, long invoked as an argument for
the death penalty, is innocent. Instead of the ultimate threat, he represents
the ultimate injustice: a government condemning an innocent man to die.
McCollum is not a boogeyman. Rather he is a case study of everything wrong with
a broken capital punishment system that has no place in this country.
In another cruel irony, McCollum's boogeyman status was successfully used to
thwart the Racial Justice Act, which proved racial bias in four cases before it
was repealed last year. And that's tragic because North Carolina and other
southern states desperately need laws like these to protect the innocent from
racial bias.
Southern states, like North Carolina, are the most likely to wrongfully convict
and sentence innocent people to death. And in those states, black defendants
bear the greatest burden of wrongful convictions. Of the 9 men wrongfully
convicted and sentenced to death in North Carolina, 8 are men of color and 7 -
including McCollum and his half-brother - are black.
Race showed up in McCollum's trial from the start. The trial prosecutors in
McCollum's case deliberately and unconstitutionally struck multiple qualified
black jurors from jury service. This is a common practice: statewide,
prosecutors were more than twice as likely to strike qualified black jurors as
all other jurors.
For years now, North Carolina prosecutors have known about the statistical
evidence showing widespread bias in the way they pursue capital convictions.
Rather than addressing the findings and changing their practices, they have
fought the Racial Justice Act and tried to keep statistical evidence of racial
bias out of court. These misplaced priorities further erode the capital
punishment system's ability to produce accurate and just results, leading to
errors that can never be erased.
North Carolina's legislators now need to take a close look at Henry Lee
McCollum and Leon Brown and see how racial bias distorts and undermines the
state's criminal justice system. 2 innocent men are now middle aged, leaving
prison after being locked up since they were teenage boys. Sabrina Buie's loved
ones have been strung along for 3 decades by police and prosecutors, believing
2 innocent men took their little girl from them in a rural North Carolina
soybean field. And a community's trust in the ability of its courts to produce
a just outcome - accurate and untainted by racial bias - has been eroded.
After 3 decades of needless injustice, it is good to celebrate the fact that
Henry McCollum and Leon Brown are going home. But the statistics tell us that
there are many more like them, many who made it to death row only because of a
broken and biased system. We need more protections, not fewer, to reduce the
risk of wrongful convictions and eliminate racial bias. Ending the death
penalty would be a good start.
(source: Cassandra Stubbs, Director, ACLU Capital Punishment Project)
GEORGIA:
Charges in hot car death are strong
Justin Ross Harris was indicted last week on 8 counts in the hot-car death of
his 22-month-old son, Cooper. Harris could face the death penalty if
prosecutors decide to seek it and he's convicted of the most serious charge.
However, the felony murder charge predicated on second-degree child neglect -
which was the original charge at the probable cause hearing months ago - still
poses the biggest threat to Harris' freedom. That, and, of course, the sexting
charges, which will likely be the easiest to prove.
But make no mistake: That felony murder charge will be how the prosecution can
convict Harris of his son's murder, even if the killing was unintentional, and,
in Georgia, if the underlying felony was unintentional.
Each of the 8 counts plays a key strategic role in maximizing the state's
chances of a conviction against Harris. Following is a breakdown of these
carefully calculated charges. The brilliance of the strategy is in the details.
Murder in Georgia: Most states divide murder into degrees. Georgia does not. In
Georgia, there's only 1 degree of murder, but with very different kinds of
killings qualifying as murder.
In this case, 2 types of murder are alleged: 1) an intentional killing called
"malice" murder, and 2) "felony murder," an enigmatic unintentional killing,
that is still classified as murder because it is the result of an enumerated
felony.
Even more complicated, in this case, two different subcategories of felony
murder are alleged using child neglect crimes as the predicate felony. Any of
these convictions carries a minimum life sentence, but only malice murder is
eligible for the death penalty.
Count 1 -- malice murder: This is the murder with which we are all familiar.
It's the kind committed in the Rue Morgue, or by Professor Plum with the
candlestick in the billiard room; or any of the "Murders She Wrote." Film,
literature and even our board games reflect our cultural assumptions about
murder -- that it's an evil crime reserved for the most wicked intent. In
Georgia, that's called malice murder, which is defined as a killing with
"malice aforethought," or intent to kill.
There are 2 kinds of malice: express and implied. Express malice is that
deliberate, manifested intention to end another's life. The reality is,
however, that direct evidence of deliberate intent is a rarity. Defendants
don't always volunteer: "I shot the sheriff."
It's quite the opposite. Nearly all defendants steadfastly maintain their
innocence; they're more likely to deny shooting the deputy. That's why the law
allows for malice to also be implied from the circumstances, as long as the
defendant's behavior demonstrates an "abandoned and malignant heart."
Whether express or implied, to convict here the prosecution has a heavy burden
to prove this mental element. That's why felony murder is a much more appealing
and devastating weapon in the charging arsenal.
Counts 2 and 3 -- felony murder (which are predicated on counts 4 and 5,
respectively): Felony murder is more of a legal fiction than it is traditional
"murder." It is an unintentional killing, but one that happens during the
commission of another crime.
The rationale is that if you commit an inherently dangerous felony, you accept
the high possibility that a person will die during the act.
An example would be that if you were robbing a bank and 1 of your
co-conspirators went crazy and shot a teller and a cop? Well, you'd be charged
with felony murder, even though you didn't pull the trigger. You committed a
felony, and a death resulted.
So, to prove felony murder, the prosecution need not prove intent to kill. It
only need prove: 1) commission of the underlying felony and 2) a resulting
death.
Count 2 is felony murder based upon count 4: intentional child neglect. So, if
the defendant acted intending to cause his child cruel and excessive physical
pain, and death resulted, he has committed felony "murder" under count 2.
Still the most problematic for this defendant, however, is count 3, which is
the original charge from the preliminary/probable cause hearing. This is felony
murder predicated on another felony, count 5, 2nd degree child cruelty. But,
instead of having to prove the defendant intentionally caused excessive
physical pain (1st degree), the prosecution here need only prove that he caused
pain with criminal negligence (second degree), even if it was unintentional.
The traditional felonies eligible for felony murder were intentional crimes:
burglary, arson, rape, robbery and kidnapping.
To allow felony murder for an accident seems inconsistent, but Georgia courts
hold that this crime of criminal negligence can be the predicate crime for
felony murder. That's right: In Georgia, you can be convicted of murder --
society's most heinous crime -- for your unintentional negligence.
Count 6 -- criminal attempt: As a society, we punish not only completed crimes
but also attempts to commit crimes. It makes sense: suppose a bank robber trips
and breaks his leg on his way into the bank with his Glock and his President
Nixon mask. He is then arrested without even entering the bank to rob it.
We all agree that he cannot escape punishment simply because he's unsuccessful
at robbing banks. At the same time, if the would-be robber simply fills up his
gas on the way to buy a Glock and a Nixon mask, so he can rob a bank in the
future, has he "attempted" a robbery yet? Where's the line?
To the courts, as long as whatever the defendant does is a "substantial step,"
then he's guilty of attempt. Here, the attempt is connected not to the death of
his child but rather to the alleged sexual exploitation of another minor -- the
target of the text messaging.
Counts 7 and 8 -- dissemination of harmful material to minors: To many, these
charges seem like they are tacked on, but they are anything but. In fact, they
are devastating to the defendant tactically. Here's why:
Harris is now additionally charged with knowingly disseminating and furnishing
to a minor female sexually explicit printed matter and photographs -- or, as
the detective testified at the preliminary hearing: sexting. The Cobb County
detective testified that while Cooper was in the car, Harris sent a photo of
his erect penis to an underage girl and was sexting with several women.
At that hearing, the defendant had a strong argument that the sexting was
improper character evidence (generally not admissible to prove criminality),
and more, that evidence that Harris was a creep was not admissible on the
neglect or murder charges.
But watch what happens now that he's been indicted on these charges: evidence
supporting the sexting charges is now relevant. That evidence will at a minimum
cause a jury to dislike Harris. At worst, it will be viewed as motive to be rid
of his child.
Second, of all the charges, these are arguably the easiest to prove, thanks to
technology. Did phone 1 send something to phone 2? Was that something
considered "harmful material"? Was a recipient a minor? Most of those elements
can be established with phone records and a birth certificate. As for the
"harmful material," so far, if the allegations are true, it sounds like it
could fit.
Ultimately, this is hardly a scatter-shot indictment. Each charge plays a vital
role, but the most potentially damaging is still the same charge from the
preliminary hearing: the felony murder based upon the 2nd-degree criminal
neglect.
After all, whether you condemn this defendant or sympathize with him, there is
a preliminary consensus that at minimum he did something tragically and
massively careless. And under modern law, that is apparently what we call
"murder."
(source: CNN)
ALABAMA:
Prosecutors seeking death for man in killing of 91-year-old neighbor must cite
reasons
Prosecutors have to spell out their reasons for seeking the death penalty in
the case of a Huntsville man charged with strangling his 91???year-old neighbor
in August 2011, a Madison County judge has ruled.
Madison County Circuit Judge Bill Bell last week granted a defense request
which will require the Madison County District Attorney's office to disclose
within 30 days the "aggravating circumstances" they will cite in seeking the
death penalty for John Clayton Owens.
Bell also denied a motion by Owens' attorneys Brian Clark and Ron Smith to
throw out the capital murder indictment. The defense had argued the indictment
should be dismissed because it didn't include the aggravators alleged against
Owens.
He is charged with burglarizing the Bide-A-Wee Drive home of Doris Richardson
and strangling her to death. Owens lived with his uncle in the house next door
to Richardson's and he sometimes mowed her lawn. Her body was found on Aug. 26,
2011.
During Owens' November 2011 preliminary hearing a Huntsville Police Department
investigator testified Owens admitted burglarizing the home, but denied killing
his elderly neighbor.
Capital murder trials in Alabama have two phases, the guilt or innocence phase
and, if the defendant is convicted, a penalty phase. There are only 2 possible
sentences, life without parole or the death penalty. In cases where the
prosecution is seeking the death penalty it argues that aggravating factors in
the crime mean the death penalty is appropriate.
The defense present s mitigating factors in an effort to persuade jurors
against a death sentence and the jury is then asked to recommend a sentence.
The jury's recommendation is considered as part of the sentencing but the
decision on life or death is up to the trial judge.
The defense has argued the Owens indictment only lists 1 aggravator - that the
killing occurred during a burglary - but state law has many more other possible
aggravating factors and the prosecution is likely to cite more than 1 of those
aggravators in seeking the death penalty.
Aggravators listed under Alabama Code section 13A-5-49, include, the murder
was: especially cruel; committed by someone for financial gain; created a risk
of death to more than 1 person; 1 in a series of killings; done to disrupt
enforcement of the law; committed to effect an escape or avoid arrest;
committed by a person already under a sentence for a different offense.
Alabama law also includes mitigating factors in section 13A-5-51 that can be
cited during the sentencing phase and used to argue against the death penalty.
Those mitigating factors include: no significant history of criminal activity,
the defendant was under extreme mental or emotional duress, the victim was a
participant in the defendant's conduct, the defendant was an accomplice, the
defendant was dominated by another person or the defendant's ability to
appreciate the wrongfulness of his actions was substantially impaired.
A defendant's age can also be considered as a possible mitigating factor, under
the law.
The case is being prosecuted by Madison County Assistant District Attorney Bill
Starnes.
The trial is set to begin Nov. 3
(source: al.com)
OHIO:
Jury considers death penalty
By mid-afternoon Tuesday, Judge Gregory Singer was in the process of holding a
hearing in the sentencing phase of the murder trial of Anthony Stargell, Jr.,
23, of Dayton, who was found guilty of all charges including 3 counts of
aggravated murder last week in the death of former Scioto County resident Tommy
Nickles in April of 2012.
The jury was directed to return one of four possible sentences - the death
penalty; life without the possibility of parole; life without the chance of
parole for 25 years, or life without the chance of parole for 30 years.
On Tuesday, attorneys for both sides gave opening statements dealing with
mitigating factors as opposed to aggravating circumstances in determining
whether to return the death penalty.
During the trial, a surveillance video reportedly showed Stargell shooting
Nickles, who operated Quality One Electric, in Dayton. Stargell was convicted
of shooting Nickles and his dog Rusty and attempting to set fire to the
business. He was additionally found guilty of stealing Nickles' van and taking
surveillance equipment from the business.
Stargell's attorney utilized self defense in the trial saying Stargell believed
Nickles was reaching in his desk for a gun when he fired the shots.
(source: Portsmouth Daily Times)
*****************
Man Accused Of Killing 4 In Bucyrus Could Face The Death Penalty
A man accused of killing four people in Bucyrus has been indicted on 21 counts.
Donald Hoffman, 41, could now face the death penalty.
The Marion Star says Hoffman faces aggravated murder charges in the deaths of
Billy Jack Chatman, Freelin Hensley, Darrell E. Lewis, and Gerald Lee Smith.
"The nature and the seriousness of the charges leaves little other choice other
than to seek the death penalty," Crawford County Prosecutor Matthew Crall told
the newspaper.
Crall said there are 2 murder charges per victim. 1 is for taking the life of a
victim, and the other is committing a felony in which someone ends up dead.
Other charges against Hoffman include 4 counts of aggravated robbery, 4 counts
of kidnapping, 4 counts of felonious assault, and 1 count of abuse of a corpse.
Hoffman is being held on a $10 million bond.
(source: 10tv news)
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