[Deathpenalty] death penalty news----TEXAS, PENN., MO., USA

[Rick Halperin]

Sept. 22



TEXAS:

Legal team appeals to U.S. Supreme Court to stop Lester Bower's execution


Lester Bower, currently on Texas' death row for the 1983 murder of 4 people at 
an airplane hangar on a Sherman ranch, filed a petition for certiorari earlier 
this month with the U.S. Supreme Court. Bower's execution is scheduled for Feb. 
10, 2015.

If the Court grants certiorari, then it will hear Bower's death penalty appeal.

Bower's appellate counsel, Peter Buscemi, D'Andra Millsap Shu and Christopher 
Banks, present 3 arguments:

1. Whether the former Texas special issues for death penalty sentencing allowed 
the jury to consider mitigating evidence of good character;

2. Whether evidence disclosed by the state after the trial that the rare 
specialty ammunition prosecutors said Bower used to commit the murders was not 
really all that rare constitutes a due process clause violation of the 5th and 
14th Amendments of the U.S. Constitution; and

3. Whether executing a defendant whom has served more than 30 years on death 
row constitutes cruel and unusual punishment, in violation of the 8th and 14th 
Amendments of the U.S. Constitution.

At the time of Bower's conviction, the sentencing procedure in a capital case 
was different.

After a guilty verdict, a jury considered 1) whether the conduct of the 
defendant that caused the death of the deceased was committed deliberately and 
with the reasonable expectation that the death of the deceased would result; 2) 
whether there is a probability that the defendant would commit criminal acts of 
violence that would constitute a continuing threat to society; and 3) if raised 
by the evidence, whether the conduct of the defendant in killing the deceased 
was unreasonable in response to the provocation, if any, by the deceased.

Since the 3rd issue a jury was to consider was not raised by the evidence, then 
it is not an issue in this case. Bower attorneys are raising the issue that the 
jury did not have a chance to give full consideration and effect to any 
mitigating evidence because if the jury answered yes to both questions, then a 
death sentence was mandatory, and there was no mechanism in place for the jury 
to consider any mitigating circumstance.

Bower's attorneys argue that at the very least Bower should be given a life 
sentence without parole because the jury did not get to consider mitigating 
circumstances. The attorneys allege the decisions handed down in the years 
after Bower's convictions show the evolution of the courts' decisions that 
mitigating evidence is a huge consideration in whether or not the death penalty 
is handed down. A change in Bower's sentence would reflect the court's 
interpretation of the issue.

As for the 2nd question, Bower's attorneys are alleging the state erred because 
the ammunition the prosecution used to tie Bower to the crime because of its 
rarity, was in fact not all that rare, and the prosecution knew that at the 
time of trial.

The prosecution has a duty to disclose exculpatory evidence. Exculpatory 
evidence is anything that could establish the defendant's innocence.

Bower's attorneys state that one of the lynch pins of the prosecution's case 
was the introduction of rare, subsonic ammunition which Bower owned and had 
purchased. Prosecutors stated that there were maybe 10 or 15 people in Texas 
that had purchased that ammunition, and the ammunition had no purpose other 
than to kill.

Bower's attorneys claim the state later disclosed there were hundreds of people 
in Texas who owned that ammunition, and that the state's failure to disclose 
that information violated Bower's due process rights to a fair trial.

The 3rd argument in Bower's appeal states that to execute Bower after 30 years 
is cruel and unusual punishment in violation of the 8th Amendment of the U.S. 
Constitution.

Bower's counsel argues Justice Stevens and Justice Bryer have noted over the 
years that an extreme delay is a serious eighth amendment concern. However, it 
is noted that the amount of appeals from death row inmates slow down the 
state's ability to carry out sentence.

The attorneys say Bower's case is different because his appeals are not 
frivolous, spending 30 years under the burden of a death sentence and going 
through several stays of execution is the definition of cruel and unusual 
punishment.

Bower was convicted in 1984 for the October 1983 shooting deaths of Bob Tate, 
51, Philip Good, 29, Jerry Mac Brown, 52, and Ronald Mayes, 39. Good was in the 
process of selling his ultralight plane to Bower, and parts of the plane were 
found in Bower's Arlington garage.

The Supreme Court is expected to decide whether to consider Bower's appeal 
prior to his execution date.

(source: KXII news)






PENNSYLVANIA:

DA to seek death penalty in pregnant woman's death


A prosecutor will pursue the death penalty against a western Pennsylvania man 
jailed on charges that he killed his pregnant girlfriend and her baby.

The public defender for 25-year-old Denver Blough didn't immediately return a 
call after Somerset County District Attorney Lisa Lazzari-Strasiser called a 
news conference to announce her decision Monday.

23-year-old Caressa Kovalcik died after police say Blough shot her in their 
Windber apartment on May 31. Kovalcik, who was 8 1/2 months pregnant, delivered 
by C-section shortly before she died, but her baby died June 20 of 
complications from the shooting. A coroner ruled the baby suffered from a lack 
of oxygenated blood.

Blough remained jailed Monday on 2 counts of criminal homicide and other 
charges in the shooting, which he has said was an accident.

(source: Associated Press)






MISSOURI:

Suspected killer of 5 makes court appearance


A man suspected of killing 5 south Kansas City residents appeared with his 
lawyers in a Jackson County courtroom Monday morning.

A Jackson County associate circuit judge ruled at the hearing that Howell be 
permitted to appear in some upcoming hearings in street clothes and without 
visible shackles.

Howell's lawyers argued that such accommodations were necessary to protect his 
presumption of innocence, given the the likelihood that potential jurors could 
see courtroom video or photographs of him.

Judge Mary Frances Weir denied a request from Howell's lawyers, who had asked 
that any upcoming grand jury testimony in his case be recorded. State grand 
juries in Missouri do not routinely record such testimony with sound recording 
equipment or with court reporters.

After the hearing, Jackson County Prosecutor Jean Peters Baker and her 
spokesman declined to discuss when grand jurors would hear the case.

Officially, Brandon Howell, 34, is charged with 3 counts of 1st-degree murder 
in the Sept. 2 shotgun slayings of Susan Choucroun, 69, Lorene Hurst, 88, and 
her son Darrell Hurst, 63.

Since authorities filed those charges, however, two other victims, George and 
Anna Taylor, have died. Prosecutors have said they are evaluating new charges, 
which could include dropping the assault charges in the Taylor beatings and 
replacing them with additional murder counts.

Jackson County Prosecutor Jean Peters Baker also said recently that "all 
punishments are on the table," signaling that she would consider seeking the 
death penalty for Howell.

In recognition of that possibility, Jackson County public defenders have 
assigned attorney Patrick Berrigan, a noted death penalty specialist, to 
represent Howell, along with Assistant Public Defender Curtis Winegarner.

Berrigan has represented accused killers in state and federal courts in 
Missouri and Kansas. His clients have included such notorious figures as Ray 
Copeland, Keith Nelson and John E. Robinson.

In 2000, Berrigan secured a life sentence for a Colombian man, Plutarco Tello, 
accused of being one of three hit men sent by a drug cartel to Kansas City to 
kill a man accused of stealing money from the traffickers.

Federal jurors voted unanimously for the death penalty for the other 2 killers. 
Lawyers credited the jury's decision to spare Tello's life to a trip Berrigan 
took to Colombia in which he videotaped 14 hours of statements from Tello's 
family, explaining his working class upbringing and pleading for his life.

(source: Kansas City Star)






USA:

Prosecutors to appeal decision overturning death penalty


The U.S. attorney for Vermont will appeal the July decision by federal Judge 
William K. Sessions III to order a new trial in the death-penalty case of 
Donald Fell.

In a 1-sentence statement filed Monday afternoon, U.S. Attorney Tristram Coffin 
and Assistant U.S. Attorney William Darrow, notified the court that the 
government will appeal the ruling to the 2nd U.S. Circuit Court of Appeals.

No details on the basis for the appeal were provided in the notice to the 
court. The government had until this week to signal to the court whether 
prosecutors would accept Sessions' ruling or challenge it.

Sessions, in a 93-page decision he issued July 24, ruled that misconduct by a 
juror during Fell's 2005 trial was so egregious that Fell deserved a new trial, 
and sentencing.

Fell has been on death row at the federal penitentiary in Terre Haute, Ind., 
since shortly after a jury found him guilty of kidnapping Terri King as she was 
arriving for work at a Rutland supermarket on Nov. 27, 2000, and then beating 
her to death in New York as she prayed for her life.

Fell accomplice Robert Lee also was charged, but he killed himself in jail 
before his case was tried. The two men also were accused of killing Fell's 
mother and her boyfriend a day before the King kidnapping, but no charges 
connected to those killings were filed.

The juror misconduct, discovered by a new set of lawyers who began representing 
Fell in 2009, centered on evidence that one member of the jury secretly 
traveled to Rutland during the trial to look at the crime scenes, told a third 
party about what he saw there and shared his observations with the jury panel.

Jurors are required to base their decisions only on what lawyers present in 
court and are prohibited from conducting investigations on their own.

The juror's observations included conclusions regarding the neighborhood where 
Fell lived and the parking lot where King was abducted that were not part of 
the evidence presented in court.

Compounding the misconduct, the juror failed to tell the court at the time what 
he had done, and then lied under oath last August when questioned about his 
conduct during a court hearing before Sessions, the judge stated in his ruling.

The juror was identified only as Juror 143 in Sessions' decision, but a 
Burlington Free Press review of court papers determined Juror 143 was John 
Lepore of Northfield, a longtime Vermont state employee.

Lepore has not responded to past Burlington Free Press requests for comment.

(source: Burlington Free Press)