[Deathpenalty] death penalty news----NEB., CALIF., GUAM

[Rick Halperin]

Aug. 23



NEBRASKA:

Longtime death penalty attorney questions past death penalty decisions


Execution protocol -- lethal injection

This is the state's lethal injection protocol as stated in the Nebraska 
Administrative Code.

Identification. Executions shall be accomplished by the intravenous injection 
of the following substances into the condemned inmate by the method described 
in this protocol.

Sodium thiopental

Pancuronium bromide

Potassium chloride

Administration of the lethal substances. The lethal substances shall be 
administered to the condemned inmate by the mechanism described in this 
protocol. They shall be administered in the following order and dosages.

Sodium thiopental will initially be administered in one 3 gram dose. There will 
be a waiting period of at least one minute between the administration of the 
sodium thiopental and conducting the consciousness checks. If unconsciousness 
is not verified by the Warden after the administration of the initial dose, 
additional 3 gram doses will be administered and consciousness checks conducted 
after the administration of each dose until unconsciousness is verified.

Once unconsciousness is verified, pancuronium bromide will be administered in 
one dose of 50 mg/100 ml.

Once the pancuronium bromide has been administered, potassium chloride will be 
the third lethal substance administered in one dose of 240 Meq.

A 50cc saline flush will be administered following each injection of a lethal 
substance.

If the coroner does not pronounce the condemned inmate dead at the conclusion 
of this process, the director shall order the execution process repeated in the 
manner described by this protocol.

--

J. Kirk Brown has raised eyebrows and ire among some former co-workers since he 
retired 15 months ago from the state's top law enforcement agency.

The former solicitor general had worked on death penalty cases for almost 40 
years, most of that time in the Nebraska Department of Justice except for 6 
years with the Texas Department of Corrections.

In Nebraska, he worked for numerous attorneys general beginning in 1976.

But his last 4 years, under former Attorney General Jon Bruning, were not easy 
after he was unceremoniously pushed out of decision-making circles on death 
penalty issues. Then-Chief Deputy Attorney General David Cookson said Brown was 
removed because of his work performance.

But since his retirement in May 2014, Brown has publicly questioned decisions 
made during that time -- and those who made them -- that he felt weakened the 
state's ability to carry out death sentences. In particular, he has been 
critical of the failure to change the state's problematic lethal injection 
protocol.

Doing so, Brown said, "would have allowed us a sense of moving forward."

"Otherwise we were at a basic standstill for the next 2 to 3 years."

And by that time, he said, the drugs would have expired.

By law, Nebraska must use a 3-drug cocktail of sodium thiopental, pancuronium 
bromide and potassium chloride to kill an inmate. State officials have been 
trying -- including efforts in recent months -- to get hold of the first 2 from 
a supplier in India, but have not been successful. Among other reasons, federal 
law prohibits importing sodium thiopental.

Changing the law that dictates the protocol would have delayed executions by 
only a few months, Brown said.

The Attorney General's Office had cases that were ready to move toward 
execution, including that of murderers Michael Ryan, who since died of cancer, 
Carey Dean Moore and John Lotter.

But as long as litigation over the propriety of the drugs or their purchase was 
in place, he said, the office could not assure the Nebraska Supreme Court that 
the Department of Correctional Services was prepared to carry out an execution.

The state has not executed an inmate since John Joubert, Robert Williams and 
Harold Lamont "Wili" Otey were put to death in the electric chair in the 
mid-1990s.

Ten men now sit on death row, with repeal of the death penalty set to become 
effective at the end of this month, barring a successful referendum petition 
drive.

About 115,000 verified signatures would be required to stop the repeal from 
going into effect until a vote could be taken in November 2016. About half that 
many would be needed to put it on the ballot.

* * *

Brown says he is still baffled by the change in his status from solicitor 
general to senior assistant attorney general, and an order he got from Chief 
Deputy Cookson at that time to have no further communication with anyone at the 
Corrections Department.

"I was presented with a list of complaints that they had, some of which went 
back several years and I'd never heard of before," he said.

But right or wrong, Brown said, attorneys in the Justice Department serve at 
the pleasure of the attorney general, who has the right to organize the office 
any way he wants.

Cookson said this week that Brown was relieved of his death penalty duties 
because of performance issues, and it was because of those performance issues 
that he was told not to communicate with anyone in Corrections.

"Because obviously if he doesn't know what's going on he's not going to give 
them accurate information," he said.

Regardless of what path the attorney general's office chose, Cookson said, 
"there was not going to be a quick or easy solution as we anticipated 
litigation on anything we did in trying to carry out the death penalty."

Brown said former Gov. Dave Heineman would have been the one to make the 
administrative decision not to change the protocol.

"I don't know who else it could have come from," Brown said. "Jon Bruning 
couldn't order the Department of Corrections not to do something."

Heineman reiterated last week that he strongly supports the death penalty. He 
said his office worked closely with Bruning's to try to carry out death 
sentences.

"Death penalty sentences in Nebraska have been complicated by constant legal 
challenges, the availability of the drugs necessary for an execution and the 
expiration of those drugs before being used," he said.

"The attorney general and I talked several times about changing the protocol 
but moving forward was complicated by the ongoing legal challenges and the 
Department of Corrections' sentencing problems."

Bruning also said last week that he remains -- as he always has been -- a 
strong supporter of the death penalty.

"Any claims to the contrary are patently false," he said.

Moving forward, Gov. Pete Ricketts' office said changing the execution protocol 
still is a possibility.

"The governor and attorney general continue to explore all options," said 
Taylor Gage, the governor's spokesman.

Lincoln Sen. Adam Morfeld, who opposes the death penalty, said he would be 
against any attempt to change the protocol before a vote of the people on the 
issue. And, he said, any attempt to carry out an execution would be unlawful.

"I'm assuming that if they attempt to execute somebody, I think that the 
Legislature and other people will hold them accountable," he said.

Attorney General Doug Peterson, who succeeded Bruning, has argued that moving 
inmates off of death row violates the Nebraska Board of Pardons' 
constitutionally exclusive power to change final sentences imposed by the 
courts.

* * *

Brown has always been comfortable with the death penalty as a criminal sanction 
in appropriate cases, he said.

But he never saw himself as an advocate for it. His role was to work on appeals 
and death penalty issues, and when called upon, to give people accurate 
information on the process.

"I wasn't a zealot for the death penalty but the litigation around the death 
penalty was cutting-edge stuff," he said. "It was challenging. And I always 
thought you learn more about a system under stress than you do when it's not 
under stress. And the death penalty, clearly, for both sides, stresses the 
system."

He was fascinated to see where that system was strong and where it would crack, 
he said.

There aren't too many more important questions, he said.

There may be many issues about the death penalty that can be debated, but in 
Brown's mind, it boils down to this: Can a human being do something so contrary 
to society's values that he or she should lose their life for it? Or can death 
never be an appropriate punishment, no matter what someone has done?

Most people don't want to deal with the fundamental question, he said. They 
want to argue that the system is too flawed, or it takes too long to go through 
appeals, or that's arbitrary, doesn't deter crime or costs too much.

Those questions are legitimate, Brown said, but they can be manipulated either 
way.

People opposed to the death penalty don't want to win the argument, he said. 
They want the argument to not reach the public.

"They think it's worth $400,000 to prevent the citizens in the state from 
getting to answer that question. And that troubles me," he said.

Morfeld said the initiative process is part of the democratic process in 
Nebraska and people should have the right to decide. But that doesn't mean 
people with opposing views can't raise money and educate people on one side of 
the issue or another.

"For the pro-death penalty folks to suggest that because other people are 
exercising their right to be a part of the democratic process is somehow 
suppressing other people's rights is just ludicrous," he said.

(source: Lincoln Journal Star)

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

Midlands Voices: Death sentence no deterrent


Many of my fellow Nebraskans are being urged to sign, or choosing to decline to 
sign, a petition seeking to reverse the Legislature's repeal of the death 
penalty. Although I forthrightly say that declining to sign is the better 
position, I'd like to share some of my reasoning.

Readers may want to know my qualifications before they consider what weight to 
give my opinions. I'm an attorney by education and profession, and I served as 
a district judge for over 32 years.

I served as a member or presiding judge of at least 6 3-judge panels to 
determine whether a sentence of death should be imposed. I was the presiding 
judge of the panel that sentenced John Joubert to death, a sentence carried out 
in 1996. I also presided over many homicide cases not involving the death 
penalty.

The basic reasons for criminal sentences, aside from rehabilitation, are to 
deter the offender from committing additional crimes (a specific deterrent), or 
to deter others from committing similar crimes (a general deterrent). The 
question to ask, as I'm sure our senators have done, is whether the death 
penalty satisfies these reasons.

There is no question a sentence of death, if carried out, specifically deters 
that offender from committing other murders. But a sentence of life 
imprisonment, under appropriate conditions, does the same.

So the only real reason to keep death as a penalty would be if it were a 
general deterrent. Is our homicide rate lower because such a sentence is 
possible? My experience, and all statistics, show that isn't the case.

Nearly all states with a death penalty also have higher per capita murder rates 
than the states without a death penalty. My experience with homicide cases 
clearly shows that offenders give no thought to apprehension - and even less to 
punishment.

No clearer example could be given than Joubert, an extremely intelligent 
individual who committed monstrous acts. He easily could have transported his 
first Nebraska victim, Danny Joe Eberle, 2 or 3 miles east to Iowa, a state 
without a death penalty, rather than four to five miles south of Bellevue.

There is a widespread opinion that the death penalty would be a general 
deterrent if it were imposed and carried out in a more expeditious manner. That 
involves another issue I'm sure our senators considered - the fairness in its 
application.

There is no question the penalty has been imposed upon some who were actually 
innocent. I don't believe that to be possible under our present procedures and 
judicial system, but shortening or limiting appeal times or issues would 
increase the likelihood of such a result - a result that has no remedy.

The issue of fairness in application cannot overlook the fact that in our 
system, the 1st decision in a death penalty case is made by a locally elected 
official - 1 of 93 county attorneys with essentially complete prosecutorial 
discretion. I have great respect for most of those with whom I have dealt, but 
any thought that a decision to seek a death penalty is never influenced by 
political (votes) or financial (budget) considerations is delusional.

And there's another other aspect of this discretion - a death penalty is 
sometimes threatened to induce a guilty plea to other or lesser crimes, 
notwithstanding a defendant's actual innocence.

There are other factors I'm sure our senators considered, such as expense, 
inability to obtain the means of execution, religious philosophies and more. 
I'm certain individual senators placed differing weights upon each factor. I 
would urge anyone approached for a petition signature to first call his or her 
senator, particularly those who voted for repeal, and ask them to explain their 
reasoning.

I think I understand what might be described as a normal human response to want 
revenge or retribution, particularly if the crimes involve moral depravity. But 
revenge and retribution are poor or nonexistent reasons for sentencing.

The Legislature made a thoughtful decision based on all the facts and arguments 
presented by both sides. It overwhelmingly adopted a smart alternative to the 
death penalty without compromising public safety, our moral values, or our 
fiscal values - life in prison with no parole.

The fact the death penalty has no deterrent value is alone a sufficient reason 
to accept senators' decision. But there is at least one more practical reason: 
It is a step toward removing the United States from the list of countries 
continuing to impose a death penalty, a list that includes China, Iran, Saudi 
Arabia, Iraq, North Korea and Sudan.

And it acknowledges an evolving standard of decency, which does not permit the 
state to kill under a premise that it will dissuade others from killing.

(source: Ronald Reagan; The author, a retired Sarpy County district judge, sat 
on the judicial panel that sentenced John Joubert to death----omaha.com)






CALIFORNIA:

Stephen Wayne Anderson, a murderous creep with an IQ of 136, earned admiration 
and awards from the literary community while writing on death row


Stephen Wayne Anderson was known in some circles as the Poet Laureate of 
America's Damned, a man whose way with words earned him admiration and awards, 
even though his literary gems were penned on death row.

His talent for capturing the regret and despair of the condemned also aroused 
great waves of sympathy, especially among people who appreciate an elegant line 
of verse.

I miss listening to the sounds of night,

crickets chirping and birds calling each other,

I miss watching life unfold and hearing echoes

continuing through winter's cold.

I miss so much living behind these walls,

cloistered away from the world beyond: but sometimes

I hear the rain across the roof, and

smell it upon the sidewalks cleaned.

A man who could conjure up images like these, his literary fans argued, 
couldn't possibly be capable of the crime that placed him among the monsters 
awaiting execution.

They could not resolve the idea of the brilliant poet, with an IQ of 136, with 
the other Stephen Wayne Anderson, the thug who shot a grandmother point blank 
in the face, a life-long crook, who had spent half his life in and out of jail.

Anderson was born in 1953 in St. Louis, the older of 2 sons of a mentally 
unbalanced couple. Dad was an alcoholic with a temper and mom so hated her 
offspring that she told them that she "dreaded the days" they were born. 
Stephen tried to protect his younger brother from beatings and abuse. At 14 he 
was kicked out of his home. By then the family had moved to New Mexico, and the 
teen ran into the hills, surviving on his wits, luck and stealing.

By the time he was 18, he was behind bars in Utah, convicted of burglary. He 
was there long enough to murder an inmate and assault another inmate and a 
corrections officer. Then, in November 1979, he busted out of prison.

Nothing more was heard of him until Memorial Day weekend, 1980, when police 
received a phone call from worried neighbors of Elizabeth Lyman, 81, a retired 
piano teacher. They had heard dogs barking and noticed a strange man walking 
around in Lyman's Bloomington, California, house.

When the officers arrived, they found the 26-year-old fugitive sitting in 
Lyman's kitchen, watching television and dining on a bowl of noodles and a 
glass of milk. Money, he told them, was his motivation for breaking into the 
house, which he chose because he believed Lyman was away on vacation. Still, he 
took the precaution of cutting the phone wires before he entered.

According to his story, he had no intention of killing her. As he crept into 
the bedroom, around midnight, Lyman woke and sat up in bed. Startled, Anderson 
shot wildly into the darkness, or so he told the police.

The wound, from a .45-caliber, told a different story. Lyman died from a single 
bullet under her left eye, delivered from a distance of 8 to 20 inches away.

After pocketing all the cash he could find, about $100, Anderson turned on all 
the lights, opened the curtains, cooked his wee-hours snack, and sat down to 
watch TV. He was still there 3 hours later when police arrived. He freely 
confessed to her murder, as well as 6 other unsolved murders in Utah.

"She didn't deserve that. I was very wrong," he told the court during his 
trial. It did not take long for the jury to find Anderson guilty and worthy of 
the ultimate penalty. He was shipped off to death row at San Quentin to wait.

There, he filled his time with intellectual pursuits and started writing, 
churning out poems by the hundreds, as well as novels and plays. In 1998, he 
sent a letter to Professor Bell Gale Chevigny, chair of the prison program of 
the Poets, Essayists, and Novelists (PEN) American Center. "I was passing 
through California when I shot someone during an $80 bungled burglary and found 
myself a permanent resident. That residency grows short; my lease is coming 
due," he started his letter.

Chevigny was impressed with his work, which eventually won two PEN awards, was 
showcased in an off-Broadway play, and included in the anthology of prison 
writing, "Doing Time." Believing he was fully rehabilitated, the professor took 
up his cause. Even the most unlikely of supporters - the families of the 2 
people he was known to have murdered - called for clemency.

But all appeals failed and after 22 years, on Jan. 29, 2002, Anderson's time 
was up.

Many groups oppoing capital punishment protested against giving Anderson the 
death penalty, saying that he 'still had so much more to contribute to the 
world.'

Hundreds of protesters held a vigil the night of the execution, but Anderson 
reacted to his impending doom with an eerie calm. He silently downed the 2nd 
headline-grabbing meal of his life - a last supper of grilled cheese 
sandwiches, a pint of cottage cheese, hominy and corn, radishes, peach pie, and 
a pint of chocolate chip ice cream.

No last words crossed his lips, until one of his attorneys, Margo Rocconi, 
mouthed, "I love you." He silently replied, "Thank you."

Despite his supporters' insistence that he "still had so much more to 
contribute to the world," more signs would emerge decades later to strengthen 
the notion that, sensitive poetry aside, this man was a stone-cold serial 
killer.

In June 2015, Utah police said that after 35 years they found enough evidence 
to pin another murder, the contract killing for a drug deal gone bad, on the 
bard of damned.

(source: New York Daily News)



GUAM:

Capital punishment in Guam


Trying to piece together the history of capital punishment on Guam is like 
trying to put a jigsaw puzzle together with some pieces missing and others 
scattered about. For this reason, I cautiously relay my findings in this column 
with a warning that I am well aware of its many deficiencies. I am hopeful that 
knowledgeable readers will help fill in the gaps through their comments on the 
online version of this week's article. My focus is on executions ordered since 
the arrival of foreign powers to the island.

As stated in prior columns, I define capital punishment as the state-approved 
execution of criminal offenders. A loose interpretation might give Magellan the 
dubious distinction of ordering the 1st execution on Guam. During his 3-day 
stay on the island in 1521, a group of Chamorros took one of the ship's skiffs. 
Enraged by this act of theft, he ordered his men to retaliate. As a result, 
several islanders were killed.

Nearly 150 years later, with the establishment of Father Diego De San Vitores' 
mission on Guam in 1668, conflict between the Spanish colonizers and Chamorros 
soon erupted. One day, a young Spaniard boy ventured into the jungle. He was 
ambushed and killed by several Chamorros. The Spanish commander ordered the 
arrest of the offenders. When one Hagatna chief refused to cooperate, the 
commander had the chief killed.

In 1672, San Vitores himself was slain in Tumon by Chief Matapang. Prior to his 
death, San Vitores tempered the religious zeal of Spanish soldiers, insisting 
that the islanders' conversion to Catholicism be voluntary. With his death, the 
military unleashed brutal conversion tactics. Islanders were presented with 
only 1 option, convert or die. Countless unrepentant Chamorros were summarily 
executed, seemingly under official approval of the military command.

With the passage of time, greater legal formalities were required before a 
death sentence could be imposed on Guam. Persons accused of more serious 
crimes, including capital crimes, were transported to Manila, where they stood 
trial for their offenses. Defendants sentenced to death were executed in 
Manila. However, there was at least one exception to this usual arrangement.

In 1884, Guam Gov. Angel de Pazos Vela-Hidalgo was assassinated by 20-year-old 
Chamorro sentry Jose de Salas y Santos. He was alleged to be part of a 
conspiracy of local guards to take control of the island. Jose soon surrendered 
and he and the other co-conspirators were transported to Manila for trial. 
Following the trial, 12 were set free, 31 received jail terms, and 4 were 
sentenced to death. Perhaps as a warning to other would-be conspirators, those 
who received death sentences were returned to Guam and shot on a Hagatna beach.

In 1898, the American colonial administration replaced Spain's. The U.S. Naval 
government oversaw the island's legal system and maintained capital punishment 
as the ultimate punishment. However, the number of executions that were 
actually carried out in the early years of the American administration is 
unclear. I did find a notation that on March 23, 1933, Gov. Root signed an 
order authorizing the execution of 22-year-old Antonio M. Cepeda for the murder 
of Jose S. Quintinilla. Apparently, Cepeda was hanged on April 3, 1933.

During the Japanese occupation from 1941 to 1944, the Japanese military command 
executed numerous Chamorros. In 1942, soon after the Japanese captured Guam, 2 
islanders were publicly executed for what appear to be relatively minor 
offenses to demonstrate Japanese intolerance for acts of disobedience. Over the 
2-1/2 years of the Japanese occupation, many Chamorros were slain.

After World War II, war-crime trials were conducted on Guam. Between 1947 and 
1949, scores of legal proceedings were conducted and about 10 Japanese war 
criminals were hanged.

After the war, Guam's legal system came under civilian control. Guam's revised 
criminal code continued to authorize the death penalty for 1st-degree murder. 
In 1966, only those defendants who murdered law enforcement officials faced the 
possibility of execution. In 1970, the list was expanded to include those who 
killed the governor, lieutenant governor or political candidates. In 1978, 
following an overhaul of Guam???s statutes by the Guam Law Revision Commission, 
the Guam Legislature eliminated capital punishment.

I found no reference to any post-war civilian executions. However, on Jan. 28, 
1954, following the U.S. Supreme Court's refusal to reverse their convictions, 
the military hanged 2 black Air Force airmen, Robert Burns and Herman Dennis 
Jr., for rape and murder.

The possibility of a death sentence for Guam criminals remains because capital 
punishment is still authorized for certain federal crimes. However, a Guam 
execution is unlikely; only 3 federal criminals have been executed in the past 
50 years.

Bill Pesch is a family law attorney with the Guam Family Law Office in Hagatna; 
Pacific Daily News)