[Deathpenalty] death penalty news----TEXAS, ARK., NEB., COLO., ORE., USA

[Rick Halperin]

Aug. 3



TEXAS:

Ex-Marine on death row says jurors should have been told more about PTSD ---- 
10 of the 261 inmates awaiting execution in Texas reported they'd served in the 
military, the Texas Department of Criminal Justice says.


To Tim Rojas, it feels like just yesterday that he and his Marine buddy John 
Thuesen were on the battlefield together, looking death in the face and trying 
to make sure they both got home to their families.

In reality, it's been more than a decade since they left Iraq. Rojas works at a 
high-powered Houston investment firm. Thuesen, though, is in a 6-by-10 solitary 
cell, hoping that Texas' highest criminal court will spare him from the death 
penalty.

"Hope is everything," Rojas said.

Thuesen, 31, has been on death row since he was convicted in 2010 of fatally 
shooting his girlfriend Rachel Joiner and her brother Travis Joiner in their 
College Station home.

In July, Brazos County District Judge Travis Bryan III agreed with Thuesen's 
appellate lawyers that the attorneys who defended Thuesen at trial didn't 
adequately inform jurors about their client's post-traumatic stress disorder 
after his return from combat. With more information about PTSD and its effects, 
Bryan said in court documents, the jurors who sentenced Thuesen to death may 
have decided differently. Bryan's ruling is now under review by the Texas Court 
of Criminal Appeals, which will ultimately decide whether Thuesen should get a 
new trial and a chance at a lesser sentence.

Brazos County prosecutors argue the jury heard plenty of evidence about the 
traumatic experiences Thuesen faced, along with evidence that he had a history 
of acting violently toward those he claimed to care for.

The district court ruling in Thuesen's case is particularly important, his 
lawyers and others said, as the criminal justice system deals with an 
increasing number of veterans with PTSD. The National Center for PTSD and the 
RAND Corp. estimate that up to 20 % of veterans who served in Iraq and 
Afghanistan experience it. In 2008, The New York Times reported 121 veterans 
from those battlefields had been charged with killings.

911 call

In Texas, 10 of the 261 death row inmates reported some military service, 
according to the Department of Criminal Justice.

"Someone who has served his country, who's seen traumatic situations while 
serving his country, who's worked to save the lives of his fellow soldiers - 
that's all important for a jury to know about when they consider what the right 
punishment should be," said Kathryn Kase, executive director of the Texas 
Defender Services, a nonprofit organization that represents death row inmates.

Thuesen, who was a football player and champion turkey farmer in high school, 
signed up to be a Marine before he graduated. When he returned to his rural 
Texas home near College Station, his family and friends said, he had changed.

He was depressed and drank too much. A former girlfriend testified at his trial 
that he was violent with her. After an attempted suicide, Thuesen was briefly 
hospitalized, but despite his family's concerns that he needed more treatment, 
doctors from the Veterans Administration sent him home.

About 6 months later, in March 2009, police responded to a 911 call from 
Thuesen and found him with the bullet-riddled bodies of Rachel and Travis 
Joiner. Thuesen told police he killed Rachel, a track star at Texas A&M 
University, because he was angry. He sneaked into her house while she was out 
and waited for hours, jealously stewing about time she spent with someone else. 
When her brother, also an A&M student, came to her aid, Thuesen shot him, too.

At his 2010 trial, jurors were told that Thuesen had lost a Marine buddy. They 
knew he had seen a young boy splattered with his family's blood after Thuesen's 
Marine unit sprayed their car with bullets as it hurtled through a military 
checkpoint. But, his lawyers argue, the jurors didn't hear expert testimony 
that could have helped them understand the lasting effects of PTSD.

Had jurors been presented with such expert testimony, "they would have come to 
a different conclusion," said Cathryn Crawford, who served as special 
litigation counsel in Thuesen's appeal.

Exclusion?

Lisa Jaycox, a senior behavioral health scientist with RAND, said violent 
behavior isn't a hallmark of PTSD, but that the disorder can contribute to it. 
When those who have experienced trauma also struggle with depression and 
self-medicate with alcohol or other drugs, she said, that often causes problems 
at work or in relationships. The combination can be overwhelming.

"It can therefore spiral into people having worse and worse functioning over 
time," Jaycox said.

Anthony Giardino, a lawyer and veteran, argued in a 2009 Fordham Law Review 
article that there should be a categorical exclusion from the death penalty for 
combat veterans who had PTSD at the time of their offenses.

Courts, he wrote, "should find that it is unconscionable for the government to 
sentence soldiers and veterans to death for criminal actions that would likely 
not have happened but for their military service."

Some prosecutors have chosen not to seek the death penalty in capital cases 
against veterans. Though they didn't provide a public explanation, prosecutors 
in Erath County declined to seek the death penalty for Eddie Ray Routh, the 
former Marine convicted of killing Navy SEAL and American Sniper hero Chris 
Kyle and another man. Routh, who was sentenced to life without parole, had a 
history of mental health problems, and PTSD played a key role in his defense.

Complex disorder

Prosecutors in Brazos County have argued that Thuesen had a history of acting 
violently when he was angry. They told Bryan that the former Marine's trial 
lawyers gave jurors all the information needed to understand Thuesen's past. 
Jessica Escue, an assistant district attorney, said the defense did an 
"admirable" job, and that prosecutors will ask the Court of Criminal Appeals to 
affirm Thuesen's death sentence.

Rojas, Thuesen's friend, agrees with prosecutors on one point:

"PTSD is not some sort of allowance to do bad things," he said. He added, 
though, that Thuesen doesn't deserve to die. The disorder, he said, "impacts 
veterans in a unique way that causes horrific situations."

(source: Dallas Morning News)






ARKANSAS:

And justice for all? ---- Ingram murder case based on single witness unravels


Rico Cohn spent 3 years in jail awaiting trial on capital murder charges based 
on the memory of 1witness, who told police 6 years after the killing that Cohn 
had confessed to her.

Prosecutors, citing insufficient evidence, dropped all charges against Cohn on 
July 1 after that witness, Randee Applewhite, died after surgery.

"After she died, we had nothing," said Prosecuting Attorney Matt Durrett. "Her 
testimony led to other witnesses who could corroborate her story. She knew 
things nobody else knew, we lost all that stuff."

Durrett said he felt comfortable with the case he had before Applewhite died.

"If there wasn't enough there, we'd have dropped it a long time ago," Durrett 
said. "I trust the evidence we had this February, before Randee died. If Randee 
hadn't died, we'd still be trying this case."

Tony Pirani, the former deputy public defender who helped win Cohn's release, 
is convinced the case was botched almost from the beginning. The result, Pirani 
said, has been an injustice to the murder victim, 21-year-old Bethany "Nina" 
Ingram, her family and Cohn.

"The bottom line for us is, and I try to be diplomatic, this case was always 
bad and we've been telling them that literally for years and, somehow, this 
train wreck just kept moving forward," he said. "It's been frustrating not to 
be able to show how weak this case was."

Cohn, 29, is back home in Tennessee, staying with his mother, looking for a job 
and trying to pick up the pieces. He was arrested June 6, 2012, and had he been 
convicted of capital murder, he faced life in prison without parole or death.

"Right now, I'm trying to rebuild my life. I had my own life torn apart for no 
reason, and I'm having a rough time trying to rebuild and put things back 
together," he said. "There's 3 years of my life that I can never get back and 
it's something I'm probably going to be scarred from for the rest of my life."

Prosecutors nol prosequi the case when they dropped the charges, which would 
allow it to be re-filed for up to a year if new evidence is obtained.

Prosecutors never sought a delay in bringing the case to trial. The defense 
asked for several delays in order to secure test results. One delay was caused 
by a change of judges.

Fayetteville police say they are maintaining an open investigation into 
Ingram's murder.

Police and Judy Ingram, Nina Ingram's mother, said they hope new evidence will 
turn up and charges will be refiled.

"When is Nina going to get justice?" Judy Ingram said after Cohn's release. "I 
have no doubt in my heart that Rico is the man who took Nina's life."

Ingram said she hoped someone else would step forward because justice hasn't 
been served. Cohn is dangerous, Ingram said at a press conference.

"I have been waiting and waiting and waiting for closure," Ingram said. "This 
is not the closure I wanted."

The defense team isn't done with the case either. They're still investigating 
and having evidence tested and hope to be able to present evidence to the 
police that will lead to the arrest of Ingram's killer, Pirani said.

"This investigation does not need to be closed," Pirani said. "I just don't 
believe that Rico did it. If I'm right, there's still a killer out there."

Randee's Story

The prosecution's case hinged on Applewhite's memory being triggered 6 years 
after Ingram's 2006 slaying by a story about the unsolved case. Judy Ingram 
reminded media annually about her daughter's unsolved case.

Applewhite remembered several things she said Cohn told her about 6 months 
after the death. The 2 had a relationship while Applewhite and her husband were 
having marital difficulties, she told police.

Applewhite told a friend, Brenda Case, she had information about the murder. 
Case then called a police tip line.

Applewhite eventually told police Cohn admitted to her that he killed Ingram.

Applewhite was reluctant to tell police much at first, according to court 
records. She had been a witness in a previous murder trial, when her boyfriend 
at the time, Byron Acey, shot and killed her best friend, Terell Mitchell, in a 
Fayetteville parking lot in 1999. She told police she feared Cohn, didn't want 
to be drawn into the case and did not want to testify.

"Because I know what he can do, and I have children and like I said, I know her 
family wants closure but, you know, like I said, their daughter is gone but my 
children are not, so for the safety of me and my children I kept it to myself," 
Applewhite said in a 2012 police interview.

"And plus I didn't -- I didn't know 100 % if it was true or not -- you know 
what I'm saying -- he could just be bragging."

Durrett said Applewhite's story remained consistent throughout.

"She never once said anything other than that to us, other than what he told 
her," Durrett said. "She said she didn't know what happened -- if he did it or 
not -- because she was not there."

Murder Tales

Ingram was last seen just before midnight on April 21, 2006. Investigators 
believe she left her job at the Walmart Supercenter on Martin Luther King Jr. 
Boulevard and spent time with her boyfriend before returning to her apartment.

A Texas native, Ingram moved to Fayetteville with her mom and 2 brothers for 
her freshman year of high school, while her dad and other brother remained in 
Lillian, Texas. She graduated from Fayetteville High School in 2002.

Ingram attended Northwest Arkansas Community College after high school, where 
she was majoring in business.

Ingram's brother found her body April 22, 2006, on her bed in her apartment on 
Sycamore Street, according to police records.

Autopsy results cited strangulation by ligature as the cause of death. The 
medical examiner said the attack on Ingram was so sudden and violent she had no 
time to fight back. There were no signs of a sexual assault, and police said 
there was no sign of forced entry.

Police said they believed Ingram was killed because she rebuffed Cohn and 
others who made inappropriate comments to her as she left her apartment 5 days 
before her death, according to records. One witness told police Cohn was upset 
because Ingram thought she was too good for him. Cohn felt Ingram had been 
"disrespectful," according to records.

In Applewhite's interviews with police, she said Cohn told her he was going to 
buy marijuana at the apartment complex a few weeks after the initial encounter 
with Ingram when he saw her arrive home. He knocked on her door and, when she 
opened it slightly, he shouldered his way in, strangled her and wiped down the 
door and door knob then left.

Afterward, Cohn went to a friend's home where he watched the news to see if 
Ingram was dead or not, Applewhite recounted.

"When he looked at me and told me, and the way he looked me in my face and told 
me, it felt real," Applewhite told investigators.

She told police Cohn said he choked Ingram to make a point and before he knew 
it, she was dead. Applewhite said Cohn had scratches to his neck and chest, a 
broken knuckle and bloody cuticles when she saw him shortly after Ingram's 
death.

Cohn was described in police interviews by Applewhite and 2 other women he 
dated, Cathleen Slaughter and Margarite Hood, as having a quick, violent temper 
and being very controlling and jealous.

Applewhite said Cohn once grabbed her by the throat, picked her up off the 
floor and choked her. He also put a gun in her face and sabotaged her car, she 
said. Slaughter and Hood also claimed in police interviews that Cohn choked 
them.

None of the domestic incidents were reported to police.

Tunnel Vision

As time went on, Pirani contends, Applewhite's story become more embellished.

"Her testimony at trial was not going to be in line with that statement," 
Pirani said. "She was going to testify she did not believe Rico committed that 
crime and Rico never said 'I killed Nina Ingram.' She made some assumptions. 
People say a lot of things for a lot of reasons. I'm not in her head."

Cathleen Slaughter also told police Cohn told her he killed Ingram, but after 
talking with Slaughter again, prosecutors decided there were too many problems 
and inconsistencies with her testimony. For example, Slaughter said Cohn told 
her he had shot Ingram.

Slaughter's statements were never credible and her statements did not match 
Applewhite's story or the crime scene, Pirani said.

"There was nothing to back up what those girls were saying," he said.

Prosecutors had no DNA evidence. There were no fingerprints. Cohn passed a lie 
detector test commissioned by the defense.

The state crime lab mislabeled and misplaced evidence and potential witnesses 
were never talked to, Pirani said.

The crime lab said there was no DNA, but independent testing by the defense 
found a small amount, likely not enough to produce a profile for comparison 
purposes. The defense is still trying to get a usable profile from that sample, 
Pirani said.

"It was like something out of a bad movie," he said. "The more we looked at it, 
the more things we found that just didn't make sense."

Investigators had cognitive bias, or tunnel vision, and this was a textbook 
case for how not to do an investigation, Pirani said. Police had their suspect 
and would not consider the many things that did not match up.

Pirani is not completely happy with the way the case ended because it did not 
give Cohn a chance to rebut charges in order to clear the cloud of suspicion 
surrounding him. The defense asked Judge Mark Lindsay for a full and complete 
dismissal, which was not granted.

"There is a presumption of innocence. Rico's presumed innocent, and he is 
innocent in the eyes of the law, but there has been no trial," Pirani said.

"We wanted the trial so everyone could see what we see, that there is no 
credible evidence. If all this had been presented, everyone in the courtroom 
would have realized he was not guilty. There would have been no doubt, it's 
just not there."

Pirani said he'd like to be able to lay out the defense's case for Ingram's 
family, including the existence of an individual whose name has come up at 
least 3 times in the investigation since 2008. Neither Pirani nor authorities 
would identify the person.

He advised Cohn not to talk about the case in media interviews because it could 
be refiled.

Not So Speedy Trial

Cohn was in jail for 3 years because the trial was postponed 8 times, most for 
additional evidence testing by experts hired by the defense.

Durrett said prosecutors never sought a delay in the case and did not object to 
additional testing.

"If the evidence points to someone else or another direction or clears someone, 
we need to know that, too," he said. "The evidence is what it is and if it 
points in a different direction, so be it."

Durrett said the prosecution doesn't benefit from delays, particularly in a 
9-year-old case, because people often leave the area and memories fade.

"We're responsible for getting it right," Durrett said. "There's nobody out 
there that fears a wrongful conviction more than a prosecutor. I don't want 
that burden of locking an innocent person up on my head."

After Applewhite died in March, prosecutors said they waited until June to drop 
the charges hoping to find other witnesses they felt comfortable with going to 
court.

Slaughter had told police Cohn once told her he killed Ingram but after 
tracking her down and talking with Slaughter again, prosecutors decided there 
were too many problems and inconsistencies with her testimony.

For example, Slaughter said Cohn told her he shot Ingram, bought pills from 
Ingram and had a prior relationship with Ingram. Prosecutors decided there was 
no evidence any of those things had happened.

Criminal Past

Cohn moved to Fayetteville for a job in March 2005 after a stint at the Cass 
Job Corps in Franklin County. He worked a series of low-paying jobs, moving 
frequently and often staying with friends.

Scott Conduff, owner of a construction company, said Cohn worked for him "on 
and off " for a couple years as a general laborer and was a good employee.

"It blew me away," he said of the arrest. "It seems completely out of 
character. He's just a nice guy. He's the kind of person who would walk up to a 
stranger, shake their hand and ask how their day was going."

"For someone to tell me that Rico killed someone, that just doesn't compute," 
he said. "I would have to see the facts."

Cohn is a convicted criminal. He was arrested in late 2005 for possession of 
cocaine. He pleaded guilty April 24, 2006, 3 days after Ingram was killed, and 
was sentenced to 3 years probation and fined $1,000.

His probation was revoked in October 2006 for not reporting to his probation 
officer, failing a drug test and not making timely payments on his fine and 
fees. He was sentenced to 10 years with 8 suspended. Prosecutors said Cohn 
served about 9 months.

Cohn was convicted again in May 2009 of possessing marijuana and was sentenced 
to 120 days and fined $1,000.

In November 2009, Cohn pleaded guilty to delivery of marijuana and was 
sentenced to 10 years in prison with 5 suspended. He was given credit for 27 
days served in jail and served about 9 months.

True Blessing

After 1,121 days sitting in jail, Cohn asked for a hamburger and ride to his 
mother's house.

"It was the best feeling in the world," Cohn said in a July 20 phone call. "It 
was like it went from no hope to hope. It was a true blessing."

"I am innocent," Cohn said. "I don't know anything about this. All I know is I 
was throwed in jail for it."

Cohn hugged his lawyers and supporters as he walked out of the Washington 
County Jail a free man, a cell phone video shows.

"It was a pretty incredible moment. He wanted to eat, so we went to Sonic," 
Pirani said.

Another cell phone video documents the emotional reunion with his mom, who had 
last seen him July 4, 2011. Cohn celebrated the holiday this year with her and 
other family members.

"We had a handful," Cohn said. "I got to see my grandmother and my uncles and 
aunts and a lot of cousins. It was fun."

Cohn said his grandfather and several other family members passed away while he 
was in jail.

He said he feels Ingram's family has been denied the justice and closure they 
deserve.

"I feel the pain and what the family is going through, and I will continue to 
keep their family in my prayers and pray that justice is served," he said.

Timeline

April 21, 2006 - Bethany Nina June Ingram, 21, is last seen alive between 11:30 
p.m. and midnight when she left her job at the Sixth Street Wal-Mart 
Supercenter. She spent time with her boyfriend, Josh Stewart, before returning 
to her apartment.

April 22, 2006 - Noah Ingram, Nina's brother, finds her body in the bedroom of 
her apartment at the Law Quad, 701 W. Sycamore St. Autopsy determines the cause 
of death was strangulation by ligature.

July 2, 2006 - Fayetteville police say DNA evidence analyzed by the Arkansas 
State Crime Lab has not yielded any leads.

December 23, 2007 - Fayetteville police say they have new DNA evidence that may 
help identify or eliminate suspects. The sample is sent to the FBI.

April 22, 2010 - Police say the investigation remains open. Evidence taken from 
the crime scene is still being analyzed by the FBI to obtain a different DNA 
profile.

June 6, 2012 - Police arrest Rico Tavarous Cohn, 26, of Springdale, in 
connection with capital murder. Cohn is jailed without bond. Police say media 
reports in April on the anniversary of the murder led to information allowing 
them to develop Cohn as a suspect.

June 20, 2012 - Cohn enters a not guilty plea before Magistrate Ray Reynolds. 
Judge sets trial for Aug. 20.

September 24, 2013 - Cohn's defense team, including Tony Pirani and Kao Lee, 
asks the judge to declare the death penalty unconstitutionally cruel and 
excessive, arbitrary and capricious. Washington County Circuit Judge William 
Storey denies defense motions. Prosecutor John Threet says he hasn't decided 
whether to seek the death penalty.

December 31, 2013 - Cohn is found mentally fit to stand trial. Cohn tells 
doctors he is innocent and does not want to pursue a mental disease defense.

January 27, 2014 - Storey grants a request to allow experts hired by the 
defense to test the state's evidence in the case. According to the motion, 
evidence they see as critical has never been tested at the State Crime Lab.

October 17, 2014 - Ongoing testing delays the trial.

January 1, 2015 - Cohn's case is transferred to Judge Mark Lindsay.

January 30, 2015 - Ongoing testing by defense delays trial again.

March 3, 2015 - Randee Applewhite, the state's key witness in the case against 
Cohn, dies unexpectedly following surgery at Northwest Medical Center in 
Springdale.

July 1, 2015 - Cohn, now 29, walks out of the Washington County Detention 
Center at 9:38 a.m. after capital murder charge him is dropped.

(source: arkansasonline.com)






NEBRASKA:

Death penalty senseless


I urge the people of Nebraska to consider the following facts when asked to 
sign the petition to put the death penalty on the ballot, or to vote to 
re-instate the death penalty ("Death penalty referendum campaign spending tops 
half a million dollars," July 31).

Research has revealed that the death penalty does not deter crime in countries 
or states where it is utilized. Life without parole is less expensive than 
putting a person on death row.

The death penalty has been unfairly applied to minorities, the uneducated, the 
lower class and persons of color. Many innocent persons have been executed in 
several states. Over 150 prisoners nationwide have been exonerated by DNA 
evidence. One innocent person executed is one too many.

I understand persons who want murderers executed for the crimes they have 
committed. It is easy to hate people who kill others. Feelings of hate are 
powerful and destructive. Retaliation and retribution usually feels good in the 
short term. However, executing the murderer does not bring back the deceased. 
Hate destroys the person who harbors it. Many family members of victims do not 
support the death penalty. For them, dragging out the legal process through 
multiple appeals keeps the wounds raw, and the pain powerfully alive.

The death penalty does not make sense.

Lee R. Wigert, Hastings

(source: Letter to the Editor, Lincoln Journal Star)

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

Death Penalty


OK, it's August, and the clock is ticking, the days on the desk calendar are 
flipping by and the death penalty petitioners have a couple of dozen more days 
to gather their signatures.

The smart money says they'll get sufficient signatures by the Aug. 27 deadline 
to place the issue on the ballot and probably enough to suspend this year's law 
repealing Nebraska's death penalty until voters decide the issue in November of 
2016.

Suspending the law would mean that Nebraska conceivably could carry out an 
execution before voters weigh in on the issue despite the fact that the 2015 
Legislature decided it was time to abolish the death penalty.

It's hard to believe that an execution really could be carried out during that 
time frame when the state does not yet have the means to perform an execution 
by lethal injection and one of the drugs the state has ordered and purchased 
apparently cannot legally be imported into the United States.

And would supporters of the death penalty really want to perform an execution 
before the people have spoken?

Isn't the whole purpose of the referendum to let the people decide?

One of the intriguing aspects of the death penalty referendum is how it might 
impact voter turnout and affect election results.

The mere fact that 2016 is a presidential year already assures a strong 
turnout.

It looks like the approaching presidential battle is going to be polarizing. 
The death penalty probably bumps up turnout in Nebraska even more.

(source: Lincoln Journal Star)



COLORADO:

Mental illness looms large in Aurora theater deliberations


In her attempt to persuade jurors last week in the Aurora theater shooting 
trial to sentence her client to life in prison, defense attorney Tamara Brady 
focused on one factor above all others.

"It is undisputed," Brady emphasized to jurors, "that he is seriously mentally 
ill."

As the jurors resume deliberations Monday morning over punishment for the 
murders of 12 people, no factor looms so large in their decision as James 
Holmes' mental health. But legal research shows there is no consensus on how 
that factor may affect the jury's decision.

Studies reveal that the presence of mental illness may make jurors more likely 
or less likely to sentence a defendant to death. What inspires mercy in some 
jurors may provoke sternness in others.

In short, depending on how jurors view it, mental illness may be the thing most 
likely to spare Holmes from the death penalty or one of the things most likely 
to condemn him.

"Mental illness can act as a double-edged sword," said Scott Sund by, a 
professor at the University of Miami School of Law who has studied juror 
decision-making in death penalty cases.

The current deliberations are distinct.

For the first time in three months, jurors in the theater shooting trial are 
making a decision that is not based solely on facts. Instead, they must weigh 
the things about Holmes' life that suggest lenience - his mental illness, his 
relatively young age, his happy, trouble-free youth - against his calculated 
attack on the Century Aurora 16 theater that also wounded 70 people in addition 
to the 12 killed.

And, then, jurors must make a moral decision on whether to keep going toward a 
possible death sentence.

In legal terms, this step is when jurors weigh "mitigating" factors against 
"aggravating" factors. Aggravating factors are details - such as the killing of 
multiple people - that make murders especially heinous. The law defines 
mitigating factors as anything that a jury considers as a reason not to 
sentence a defendant to death.

In this scheme, mental illness can be one of the most powerful mitigating 
factors, Sundby said. In addition to mental illness, his research shows jurors 
are most likely not to render a death sentence if a defendant is intellectually 
disabled or young.

"What jurors are generally looking for when deciding to impose death is, 'Did 
this person really choose to go down this path that led to the murders?' " 
Sundby said.

But mental illness is also unique.

The U.S. Supreme Court has ruled that people with severe mental disabilities 
and people who were under the age of 18 when they committed their crimes cannot 
be sentenced to death. No such protection exists for people who were seriously 
mentally ill - but still legally sane - when they committed murder.

In addition, when jurors consider whether mental illness is a reason to spare 
someone's life, they can also find possibly related reasons to sentence that 
person to death, Sundby said.

For instance, a defendant's mental illness - or the medications needed to treat 
their mental illness - can cause them to appear disconnected or stoic in the 
courtroom. Jurors often mistake this for indifference, Sundby said.

"The No. 1 reason jurors tell you they impose a death sentence is because the 
defendant didn't appear remorseful," he said.

Legal experts have long debated the perplexing role mental health evidence 
plays in a death penalty case.

While mental illness is so well established as a mitigating factor that it is 
mentioned in the American Bar Association's guidelines for defending a death 
penalty case, several papers have hinted at jurors' ambivalence toward it. One 
study published in 1987, for instance, found that a mental health defense was 
the least persuasive of several tested strategies in hypothetical capital cases 
shown to mock jurors.

In the theater shooting trial, the judge and attorneys on both sides appear to 
be well aware of the volatile dynamic.

In closing arguments last week, Brady, the defense attorney, specifically 
pointed to Holmes' lack of emotion in the courtroom and told jurors it was the 
result of his mental illness. His impaired judgment leading up to the shooting 
was what made the crime so horrible, she said.

"When does the mitigation outweigh the aggravation?" she began her argument. 
"When the mitigation is the cause of the aggravation."

Arapahoe County District Attorney George Brauchler countered by trying to 
diminish the significance of Holmes' mental illness and arguing that the attack 
was logically planned. For instance, Brauchler pointed to Holmes' decision to 
use steel-penetrating ammunition so that his bullets could tear through seats 
with lethal force.

"The biggest part of this you've heard is the mental illness," he told the 
jury. "But that's not enough."

Jurors will decide in the coming days whether they agree.

(source: Denver Post)






OREGON:

Judge: Oregon death row inmate's lawyers did bad job


An Oregon death row inmate, twice convicted of murder, could get another chance 
to convince a jury he does not deserve the death penalty.

The Register-Guard reports a judge upheld Jason Van Brumwell's murder 
conviction, but ruled that had his lawyers done a better job, the jury might 
have sentenced him to life in prison instead.

The sentence was for the murder of prison inmate David Polin, who suffered a 
crushed skull and 84 stab wounds when Brumwell and a fellow inmate attacked him 
in the Oregon State Penitentiary.

Now, Van Brumwell could return to a Marion County courtroom for a new penalty 
phase.

The 39-year-old Van Brumwell last year informed the court that he waived his 
appeal and was prepared to be executed. He canceled that request several weeks 
later.

(source: Associated Press)






USA:

'There Is Blood, a Lot of Blood, Very Red Blood'----The death penalty in crisis


An honest list of execution devices and methods would include the electric 
chair, the gas chamber, and the guillotine, but also the brazen bull, drawing 
and quartering, and suffocation by elephant. The latter were devised to 
maximize the anguish of the victim, and to elevate the experience of onlookers 
to the level of sublime spectacle. Edmund Burke had some decades before the 
French Revolution speculated that typical European theatergoers, in the middle 
of a gripping tragedy, would, upon hearing of a public execution taking place 
outside, immediately abandon their tragedians to get a glimpse of the real 
thing. Human beings are gawkers, particularly at the suffering of others. And 
yet just as Burke was writing, a transformation was taking place in the way 
capital punishment was carried out in Europe: It migrated from public squares 
to prisons, out of sight of ordinary citizens. This migration was part of a 
broader shift in society's tolerance for open cruelty; the same era also saw 
the retreat of animal butchery from open-air markets to the closed space of the 
abattoir.

Discretion suits our need to think of ourselves as having overcome the cruelty 
of our ancestors. Yet it is also in tension with the ideal of transparency. 
Among the few liberal democracies that still make use of the death penalty, 
there is a basic and likely irresolvable conflict between the modern rejection 
of death as spectacle and the equally modern imperative for popular oversight 
of the things a state does in the name of its citizens.

We are witnessing a resurgence of forms of violence that strike us as terribly 
unmodern, such as ceremonialized beheadings and stonings, often for crimes that 
can count as crimes only to the extent that a closed community works itself 
into a fuss about them: apostasy, adultery, and so on. There has also, of 
course, been an apparent resurgence of nonstate political violence targeting 
civilians over the past few decades - "terrorism," we call it, in unconscious 
allusion to the revolutionary bloodshed in France in the wake of 1789.

There is a basic conflict between the modern rejection of death as spectacle 
and the imperative for popular oversight of the things a state does in the name 
of its citizens.

The 2 forms of violence - state and nonstate, capital punishment and terrorism 
- are linked, and fear of the latter has been consistently manipulated to 
strengthen the former. In the United States, use of the death penalty as a 
regular tool for the punishment of despicable crimes appears to have reached a 
point of crisis, and yet the specter of terrorism nearly ensures that capital 
punishment will not disappear. In this, America continues to straddle a 
significant boundary between the liberal democracies of Europe and the sundry 
authoritarian regimes throughout the world that reject the European conceit of 
abolishing the death penalty as a marker of decency, of respectability, or, in 
a word, of modernity.

It is instructive to consider the fate of the death penalty in Europe, from the 
guillotine to eventual total abolition over the past several decades, although 
in doing so we must be careful not to assume that Europe's history is the 
world's destiny. At the time of the French Revolution, capital punishment was 
not only compatible with the ideals of the Enlightenment, but, with the 
innovation of the guillotine, provided an icon of the abstract values of reason 
and equality at the core of the era's transformations.

Joseph-Ignace Guillotin had proposed his machine as a remedy to the problem of 
suffering; only benighted and barbarous regimes seek to torture the condemned, 
while enlightened regimes are interested only in eliminating them to heal a 
social ill. Though by 1794 the Terror had swallowed up many scientific 
luminaries, the guillotine came to be seen as an instrument of scientific 
measurement, at once of the health of society and of the physiology of death. 
There was a flurry of experiments and speculations on lingering consciousness 
in severed heads, stories of which were compiled in the 1796 brochure 
"Anecdotes sur les decapites." Science could lose no opportunity for its own 
advancement.

The contradictions of the death penalty in the modern era were already in full 
evidence even before the end of the French Revolution. A relatively minor 
change in the method of execution was supposed, somehow, to completely alter 
the moral significance, political valence, even the scientific utility of 
killing human beings.

By 1977, the time of France's final execution before abolition, the guillotine 
had lost its luster, and had turned into a source of shame. Until his 
retirement, in 1981, when capital punishment was outlawed, France employed a 
single state executioner, a functionary named Marcel Chevalier. He was married 
to the daughter of the previous state executioner, and at the moment of the 
abolition of the death penalty his son was in training to succeed him. 
(Revolutions generate their own inheritance structures.) Chevalier was last 
called to duty for the beheading of Hamida Djandoubi, a 28-year-old Tunisian 
immigrant, on September 10, 1977. Djandoubi had murdered his former French 
girlfriend 3 years earlier. He was the sort of criminal who would easily have 
found his way to an electric chair in America.

Remarkable testimony of his death was given by Monique Mabelly, at the time the 
chief examining magistrate of Marseille, who was obligated, in view of her 
position, to bear witness to the execution. She took notes on what she saw, 
which were published in Le Monde in 2013, a year after her death. Mabelly 
relates surprisingly significant details, as when the executioner takes off 
Djandoubi's handcuffs in order to replace them with a cord, and exclaims in 
joking reassurance, "You see, you're free!" She describes how the condemned man 
desperately stalls for time, like a child who does not want to go to bed. She 
recalls turning away just before the blade comes down, not for fear of "losing 
it," "but out of a sort of instinctive, visceral shame (I do not find another 
word)." And she describes what happened next:

I hear a dull sound. I look again - there is blood, a lot of blood, very red 
blood - the body has tumbled into the basket. In one second a life has been cut 
off. The man who spoke less than 1 minute before is now nothing more than a 
blue pair of pajamas in a basket. A guard takes up a spray hose. One must 
quickly remove the traces of a crime. ... I have a sort of nausea, which I 
control. I have in me a cold revulsion.

The United States has gone through several machines meant to sanitize the death 
penalty. Changes in method typically follow some technological innovation.

The guillotine, born of Enlightenment optimism, ends in nausea and shame. 
France had remained with this instrument throughout the 187 years of the death 
penalty's post-Revolutionary application. The United States, by contrast, has 
gone through several machines meant to modernize and sanitize the death 
penalty. Changes in method typically follow some technological innovation. Thus 
the electric chair was developed largely by employees of Thomas Edison, in the 
context of the inventor's "war of currents" against George Westinghouse. 
(Edison preferred DC to Westinghouse's AC.) The guillotine and the noose and 
the firing squad would come to appear backward and brutal, and in time lethal 
injection would in turn cause the electric chair to seem similarly antiquated. 
And now lethal injection is threatened, with state-prison officials struggling 
to procure effective cocktails of poison and to find people competent enough to 
administer them and willing to do so.

Have we now seen enough of this lurching from one method to another to finally 
understand that every new method will pass through exactly the same cycle as 
its ancestors, and, like them, will finish in shame?

In Europe the decline of the death penalty had much to do with the trauma of 
World War II, and with pressure to conform to standards that might help ensure 
that nothing similar ever happens again. That the death penalty was seen as 
having anything at all in common with the Nazi genocide required a shift in the 
political culture from the idea, still widespread in America, that it is 
individual criminals being executed for their individual crimes, to the idea 
that the death penalty is often applied in a way that unfairly targets a 
particular group of people. The last man executed in France was a Tunisian 
immigrant; 16 years earlier, in 1961, somewhere between 40 and 200 North 
Africans, mostly Algerian, were massacred by the Paris police in response to a 
peaceful demonstration against the Algerian war. There is no direct link, of 
course, but the fact remains that whether the victim is a political 
demonstrator or a convicted murderer, in both cases the state is dealing with 
members of a marginalized and often despised minority by means of violence.

It is clear that the disproportionate application of the death penalty to 
persecuted communities is the norm throughout the world. Eight people were 
executed on one day in April in Indonesia. 4 of the victims were African, and 
all but 2 were foreign nationals who lacked understanding of the legal system 
or means of real legal assistance. Saudi Arabia demonstrates similarly 
disproportionate severity toward foreigners.

China openly deploys execution as a political tool to quell ethnic unrest, 
particularly among the Muslim Uighurs. In the United States death rows are 
disproportionately populated by African-Americans. The disproportion is 
relative both to their portion of the total population as well as to the 
population of murderers. The sort of trial in which a death penalty is most 
likely is one in which a black defendant stands accused of murdering a white 
victim. As of April, 41.67 % of death-row inmates were black and 42.77 % white, 
while black Americans make up roughly 12.2 % of the total population.

Death row reflects the great racial disparities of the American carceral system 
as a whole. Jason Stanley and Vesla Weaver, scholars at Yale University, offer 
a thought experiment to drive home the scale of the imbalance: If black America 
were an independent country, and the current level of imprisonment of black 
Americans matched the international average, that country would have to have a 
population of more than 600 million. It is figures such as those that lead 
some, such as the Berkeley sociologist Loic Wacquant, to conclude that America 
is not a society with prisons but a "prison society," and that this role must 
be understood in continuity with the institution of slavery that preceded it.

The prison-industrial complex, and its role in preserving racial inequality in 
the United States, shows no signs of decline. And yet capital punishment seems, 
by some measures, to be in decline. The legitimacy of the practice is being 
chipped away, bit by bit, and the contradictions are being heightened to the 
point of absurdity.

The principal challenge has been the argument that a particular method of 
execution is cruel and unusual. So states are kept in perpetual quest of the 
impossible: a method that can be plausibly passed off as humane. That pressure 
has compelled prison officials to reproduce the very behavior of the drug users 
they are in the habit of imprisoning. Citing the investigative work of the 
journalist Katie Fretland, Jeffrey E. Stern reported in The Atlantic recently 
that prison officials in Oklahoma had been forced, as a result of the 
discontinued supply of sodium thiopental, the only officially approved chemical 
for the job, to charge their employees with finding alternative concoctions, 
often by back-channel means. A new drug, pentobarbital, was paid for out of a 
petty-cash fund with no public oversight. Officials joked by email with their 
counterparts in Texas, calling themselves "Team Pentobarbital" and offering to 
help score this new drug in exchange for a thrown football game between college 
teams in Texas and Oklahoma. With state officials lurking around with bags of 
untraceable cash to buy lethal compounds from shady online operators in 
Britain, India, and Angola, it's no surprise that the Drug Enforcement 
Administration has begun raiding prisons to crack down on their importation of 
illegal drugs.

This most recent phase of the American death penalty looks like a large-scale 
version of one of the many botched executions in recent years: obscene, 
contradictory, impossible to sustain. Many would say that this is the system 
working as it should. The United States is moving toward international norms - 
the ones set by liberal democracies, not by the explicitly postdemocratic 
states in which the death penalty shows no signs of decline - and is doing so 
not out of an aspiration to be more like any other society, but simply by 
allowing the internal rationality of its laws to take its course.

When it comes to capital punishment, the U.S. government adheres to 
international norms recognized and valued principally by its declared enemies.

Still, more will die. After the recent suspension of the death penalty by the 
Nebraska legislature, the governor insisted that the legislature did not have 
the power to reduce court-ordered punishments, and has accordingly promised 
that the sentences of the 10 prisoners on death row will be carried out. It is 
not clear whether he has the chemicals to follow through on that threat, or, if 
he does, whether they would be legal to use.

In June the U.S. Supreme Court decided in a 5-to-4 vote that midazolam, a 
sedative involved in three botched executions last year, does not violate the 
Eighth Amendment's ban on cruel and unusual punishment. The decision was a 
significant setback for death-penalty abolition, but the case concerned only 
the narrow matter of the effects of midazolam. In a dissent, Justices Stephen 
G. Breyer and Ruth Bader Ginsburg suggested that the death penalty itself is 
unconstitutional. We can expect more challenges.

Despite the court's decision, it's clear that capital punishment is in crisis, 
and we may ask why this is happening now. Is America unconsciously distancing 
itself from the world's despotic regimes and realigning itself with liberal 
democracies? It is significant that much of the pressure, and much of the 
research that uncovered the seedy trails by which prison officials had begun 
procuring drugs, has come from human-rights groups, such as the British-based 
Reprieve. Or could recent developments have more to do with the long and 
complicated tension between concealment and spectacle in modern punishment? 
Some states that practice capital punishment do so in a way that is brutal and 
transparent at once: Both Iran and Saudi Arabia routinely stage public 
executions. There is nothing to hide; on the contrary, the power of the state 
is reinforced by the shared public experience of killing citizens. Other 
countries, such as China, carry out death sentences behind prison walls, 
allowing the lesson of state power to filter out by rumor and speculation.

In America there has long been a curious hybrid of the 2 approaches. We deem 
execution to belong to the old, barbarous world. When death-row inmates in Utah 
have on occasion attempted to avail themselves of the right to a firing squad, 
they are intentionally and strategically attempting to turn their own sentences 
into spectacle, and in that way to make their deaths unacceptable in the eyes 
of the squeamish American public.

To my own astonishment, there are journalists who, as part of their job, attend 
executions. They are witnessing and testifying, of course, and that is 
important. Yet it has often seemed to me that they are also abetting. Like the 
attending spiritual advisers, they are playing their role in a ritual, and like 
any ritual, the fact that people show up to fill even secondary roles creates 
an ambiance of legitimacy. Transparency and spectacle are not so easy to pry 
apart. Spectating and bearing witness are related modes of attention.

In the months before the execution of the Oklahoma City bomber, Timothy 
McVeigh, there were calls for the event to be broadcast on television, perhaps 
pay-per-view. The eventual compromise was for it to be broadcast, by 
closed-circuit television, only to the loved ones of the dead. In the United 
States as in Iran, although executions have migrated behind prison walls and 
away from town squares, they have not entirely lost their air of spectacle.

Will the death of Dzhokhar Tsarnaev, the Boston Marathon bomber, be watchable 
online? The use of the death penalty for political crimes, as opposed to those 
committed out of ordinary criminality, is both exceptional and representative. 
The public opinion that leads to the imposition of the death penalty in 
political cases influences the fates of "ordinary" criminals, too. After a 
moratorium, the death penalty was recently revived in Pakistan in response to 
the 2014 Islamist murders at a school in Peshawar. Soon enough, common 
criminals who might previously have expected to live out their lives in prison 
were being hanged, including members of persecuted minority groups, such as 
Aftab Bahadur, a 38-year-old Christian who had been found guilty of murder when 
he was 15.

In Nigeria, following the horrific violence of Boko Haram, 659 people were 
sentenced to death in 2014, up from 141 the year before. In postrevolution 
Egypt, 509 death sentences were handed down in 2014, up from 109 the year 
before. Men who killed out of passion, desperation, mental illness, or moral 
turpitude have had their fates decided as much by geopolitics and ideology as 
by the rule of law. If Tsarnaev is killed, it will be in the name of toughness 
on terrorism, yet it may also breathe new life into an otherwise moribund 
practice.

In Tsarnaev's ancestral homeland, Chechnya, extrajudicial capital punishment, 
as well as torture and imprisonment, is practiced with impunity. It is taken 
for granted that the state, as embodied in the warlord Ramzan Kadyrov, has 
power over the lives and deaths of its citizens. It is thus not surprising that 
Kadyrov, as well as Tsarnaev's mother, denounced the trial as a setup by the 
American government. In Chechnya it is simply assumed that the death penalty is 
always political.

That perspective, however heavy with the contradictions of conspiracy theory, 
gets at a truth about Tsarnaev's case that many Americans miss. It was said at 
the time of the attack that what we had witnessed at the marathon's finish line 
in Boston was not so much another September 11 as "Beslan meets Columbine," 
referring to both the 2004 Islamist siege of a school in Beslan, North Ossetia, 
and the 1999 siege by 2 teenagers of a high school in Colorado. The former case 
is supposed to be unambiguously political, the other a symptom of social 
pathology. The Tsarnaev brothers were able to hybridize the 2 species of 
violence because of their status as both "typical American boys" and immigrants 
from a region known to produce Islamist terrorists.

To make Tsarnaev's crime worthy of a death sentence, the prosecution emphasized 
the political dimension of it. And an important element of the politicization 
of Tsarnaev's deeds has been the racialization of his person.

The irony was lost on most Americans that an actual Caucasian was on trial in 
the United States for murder, while the success of the prosecution's strategy 
hinged on portraying the defendant as something other than Caucasian, in the 
strange sense in which that term is used in American racial discourse. It had 
to be shown that Tsarnaev was, in some way or other, brown. For him to be 
brown, in the way that was sought, meant imbuing him with the sort of soul 
whose violence is a species of terror. True, in the bloody note that he 
scrawled during the manhunt, Tsarnaev speaks of martyrdom, and of his victims 
as "collateral damage" comparable to Muslims killed in Iraq and Afghanistan. 
But in their own scribblings, the Columbine killers spoke of Timothy McVeigh, 
of Waco, of Vietnam. The personal is political, as has been noted in other 
contexts. History flows through lost boys.

The crimes for which Tsarnaev was sentenced were committed in Massachusetts, a 
state that repealed the death penalty in 1984. But he was tried on federal 
charges and is expected to meet his end in the same place McVeigh met his, the 
U.S. Penitentiary in Terre Haute, Ind.

The death penalty may be sputtering out at the state level, but it can still be 
imposed from above. When it comes to capital punishment, the U.S. government 
adheres to international norms recognized and valued principally by its 
declared enemies. America stands with the warlords, whose reigns depend on the 
regular demonstration of power over life and death.

(source: Justin E.H. Smith is a professor of history and philosophy of science 
at the University of Paris Diderot; Chronicle of Higher Education)