[Deathpenalty] death penalty news----COLO., CALIF., ORE., USA

[Rick Halperin]

Dec. 12



COLORADO:

Clinic suspect says defense wants to hide truth


"I'm guilty", Robert L. Dear announced at his 1st in-person court appearance 
since he allegedly fired on a busy Planned Parenthood clinic in Colorado 
Springs 3 weeks ago, killing 2 civilians and a police officer in the assault 
and subsequent shootout with police.

Dear was charged with 179 counts - including 8 for 1st-degree murder and 131 
for attempted murder - for the rampage that also left nine people wounded at a 
Planned Parenthood clinic on November 27 in Colorado Springs.

Dear shouted, "You'll never know what I saw in that clinic".

Dear, a native of SC who once earned a living as a self-employed art salesman, 
appeared at Wednesday's hearing in shackles wearing turquoise-coloured jail 
garb.

There was increased security at the El Paso County Courthouse for his hearing.

Of the 9 victims who were shot and survived, 4 were Colorado Springs Police 
Officers and1 was an El Paso County Sheriff?s deputy.

Planned Parenthood was criticized earlier this year after officials of the 
organization were secretly recorded by an anti-abortion group discussing how to 
obtain human tissue from aborted fetuses.

Investigators have not publicly disclosed a motive, but the mayor of Colorado 
Springs, John Suthers, said it can be inferred by the location of the attack.

A portrait of Dear emerged after the shooting, depicting an isolated man who 
entertained survivalist ideas and had rambled to police about "baby parts" 
after his arrest.

King also represented James Holmes during the Aurora theater shooting trial.

King suggested that Dear may not be competent to stand trial, and as NBC 
reports, a hearing to be held on December 23rd will decide his competency. "And 
he wants to do that to me".

Dear also claimed King "drugged" Holmes and that "he wants to do that to me". 
Then he said: "Let's let it all come out".

Authorities say Dear entered the tan single-story clinic around 11:30 a.m. MT, 
shooting at officers and bystanders for almost 5 hours before surrendering 
shortly after SWAT teams crashed armored vehicles into the lobby.

Later, he accused his attorneys of being in "cahoots" with Planned Parenthood 
to "shut me up".

Dear could face the death penalty, but prosecutors have not decided whether to 
seek the death penalty, and that would not occur until after Dear is arraigned, 
May said.

(source: waltonian.com)






CALIFORNIA----female may face death penalty

Prosecutors look at death penalty for Madera mother----Amy Chavoya is an 
adoptive mother accused of torturing and murdering her 12-year-old girl.


An adoptive mother, accused of torturing and murdering her 12-year-old 
daughter, is now on trial.

Madera county prosecutors revealed Friday that they're leaning towards pursuing 
the death penalty against 42-Year old Amy Chavoya.

The victim's brother is the source of a lot of the evidence against Chavoya. He 
just told a judge she used a stun gun and brute force to beat him and some 
siblings. Prosecutors say the abuse eventually killed his sister.

Mariah Flores suffered before her death, there's no doubt about that. The 
forensic pathologist who examined her found bruises and scars all over her 
body. Dr. Mark Super said "first of all, you don't expect to see 12-year-olds 
dead in your morgue very often and when you do see them, all those scars and 
bruises is unusual.

Mariah's brother says abuse was common in the house and he and Mariah took the 
brunt of it from their adopted mother, Amy Chavoya. He says they were sometimes 
forced to sleep outside, they were sometimes starved, and Amy sometimes used a 
stun gun on them as punishment.

He still has the scars to prove it. "Are you saying those are taser marks," a 
prosecutor asked. "Who put them on you?" The Mariah's brother replied: "Amy."

Chavoya's defense attorney says there's evidence the girl inflicted some 
injuries on herself. And Mariah had a fall in the shower shortly before she 
died that could explain other injuries.

But prosecutors say the evidence of abuse leading to murder is clear and they 
may seek the ultimate punishment. "I am treating this as a death penalty case 
at this point in time, Madera County District Attorney David Linn said.

(source: ABC news)

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

DA to seek death penalty in case of GPS-monitored sex offender accused of 
killing 4 women


Prosecutors have decided to seek the death penalty against an Anaheim man 
suspected of kidnapping, raping and killing 4 women, drawing renewed attention 
to a case that raised concerns about the effectiveness of GPS monitoring of sex 
offenders.

The Orange County District Attorney's Office announced Friday that it will seek 
the death penalty against 46-year-old Steven Dean Gordon. He and Franc Cano are 
facing special circumstances murder and forcible rape charges in connection to 
the slayings of several Santa Ana and Anaheim women who were believed to have 
ties to prostitution.

Both men are registered sex offenders who were under the supervision of federal 
probation and state parole officials when the women were killed. Investigators 
believe the pair twice cut off their monitoring bracelets to travel out of 
state.

The 2 men - who a prosecutor described to a grand jury as a "cold, calculated, 
serial-killing machine" - were arrested following the disappearances of 
20-year-old Kianna Jackson, 34-year-old Josephine Vargas and 28-year-old Martha 
Anaya, as well as the discovery at an Anaheim recycling facility of the body of 
21-year-old Jarrae Estepp.

Authorities say that Gordon and Cano, 29, picked up the women at well-known 
prostitution hubs near Harbor Boulevard or First Street and left their bodies 
in trash dumpsters. Police also suspect they might have killed a 5th women, who 
hasn't been identified or found.

Detectives used the men's GPS units to track them to areas where the killings 
were believed to have occurred and to link the duo to each woman's cellphone, 
according to grand jury transcripts.

Anaheim Police detective Julissa Trapp told grand jury members that Gordon, 
during a 13-hour interview shortly after being taken into custody, admitted 
that he and Cano had sexually assaulted and killed Jackson, Vargas, Anaya and 
Estepp.

District Attorney Tony Rauckauckas decided to seek the death penalty against 
Gordon after conferring with a committee consisting of his top officials in the 
homicide unit, as well as prosecutors with experience in capital murder cases. 
The committee also allowed Gordon???s defense attorney to weigh in regarding 
any mitigating circumstances that would dissuade the DA from seeking the death 
penalty.

Senior Deputy District Attorney Larry Yellin, who is prosecuting the case, said 
late Friday that the committee is still determining whether or not to pursue 
the death penalty against Cano.

Several months ago, Orange County Superior Court Judge James A. Stotler agreed 
that Cano and Gordon should be tried separately. Yellin told the judge that 
comments made in Gordon's police interview meant there was no way for Cano to 
receive a fair trial if the 2 men were tried together.

Gordon has appeared increasingly frustrated at the pace of his criminal case, 
and has repeatedly, but unsuccessfully, pushed to represent himself during 
trial.

During a series of hearings over the past year, Gordon has asked for more 
access to law books and case material while in jail, has said that he could 
serve as his own attorney, and has contended that he was "railroaded" in a 
previous trial.

Gordon is scheduled to return to court for a pretrial hearing on Jan. 22. Dates 
for Gordon and Cano's jury trials have not been set.

Meanwhile, as outlined in a months-long Register investigation, the case has 
sparked a larger discussion about the use of GPS to track criminals

State Sen. Pat Bates, R-Laguna Niguel, earlier this year introduced a bill to 
increase prison time for those who cut off their monitoring bracelets.

Jodi Pier-Estepp, the mother of 1 of the victims, has also filed a civil 
lawsuit claiming that the state failed to adequately monitor Gordon and Cano.

(source: The Orange County Register)






OREGON:

Busted immunity deal means Oregon death row inmate should have sentence 
overturned, court says


The Oregon Court of Appeals threw out the sentence of Oregon death row inmate 
Billy Lee Oatney, saying he didn't get adequate representation during a 1998 
trial in the rape and suffocation of a woman who asked him to make jewelry for 
her wedding.

Billy Lee Oatney, 53, challenged his death sentence claiming his attorneys 
didn't move to suppress statements and testimony from his co-defendant, Willard 
Johnston. Johnston's testimony was the centerpiece of the state's case against 
Oatney and the only direct evidence against him, the appeals court said.

Johnston implicated Oatney only after Oatney talked about the killing under an 
immunity deal offered by the Washington County district attorney, the appeals 
court said. Authorities used Oatney's statements to prompt Johnston to 
cooperate and then used the information to convict Oatney -- breaking the 
promise of immunity, the appeals court said.

Susi Larsen, 34, disappeared in August 1996 after telling friends she was going 
to see Oatney, an acquaintance, about making jewelry for her wedding. Her body 
was found two weeks later in a wooded area of Champoeg State Park in Marion 
County. Her funeral was held on what would have been her wedding day.

Johnston testified during the 1998 trial that both he and Oatney tied up Larsen 
and raped her in Oatney's Tigard apartment. He claimed Oatney then held a 
plastic bag over her head until she stopped breathing. Oatney pinned the crimes 
solely on Johnston in his trial testimony.

Oatney was convicted of aggravated murder in 1998 and sentenced to death that 
same year. The Oregon Supreme Court upheld the sentence in 2003 after a review. 
Oatney filed an appeal a year later.

Johnston pleaded guilty to aggravated murder in 1998 and was sentenced to life 
in prison. He agreed to testify against Oatney in exchange for an agreement 
that prosecutors wouldn't seek a death sentence in his case.

Oatney's case now goes back to Washington County Circuit Court for 
reconsideration.

Oatney is the second convicted murderer on death row in Oregon whose sentence 
was overturned in recent weeks. Issac Agee, 38, was ordered last week to get a 
new hearing by the Oregon Supreme Court to consider if he has a mental 
disability. The designation could disqualify him for the death penalty.

Agee and another man were convicted of killing 36-year-old Antonio 
Barrantes-Vasquez while all three men were inmates at the Oregon State 
Penitentiary in 2008.

(source: oregonlive.com)






USA:

What the Number of Veterans on Death Row Really Tells Us


A good friend of mine is a death penalty mitigation specialist. She helps 
exonerate indigent people who have been wrongly convicted of capital crimes. As 
an opponent of capital punishment, I am constantly inspired by her work. It 
often forces me to contemplate the way this country talks about the death 
penalty.

Additionally, I happen to be an Army veteran, who has been working for the past 
decade to improve the public perception of veterans. So, I was doubly 
interested when I saw a headline in The New Yorker that asked "Why Are So Many 
Veterans on Death Row?"

The November 10 piece by Jeffrey Toobin cited the Death Penalty Information 
Center's recent report that "at least 10% of the current death row -- that is, 
over 300 inmates -- are military veterans."

The author noted, "In a nation where roughly seven per cent of the population 
have served in the military, this number alone indicates disproportionate 
representation. But in a nation where military service has traditionally been 
seen as a route into the middle class -- and where being a vet has been seen as 
more of a benefit than a burden -- the military numbers are especially 
disturbing."

I took pause at Toobin's assessment that the proportion of veterans facing 
capital punishment had any bearing on the economic mobility of the average 
law-abiding veteran. I was further shocked at his assertion that a group he 
named "veteran killers" will, according to him, "very often lash out at those 
around them." That seems like a large assumption made from a small sample size.

He continued, "Earlier generations of veterans came home from war to 
ticker-tape parades, a generous G.I. Bill, and a growing economy that offered 
them a chance at upward mobility. Younger veterans returned to P.T.S.D., a 
relatively stagnant economy, especially in rural and semi-rural areas, and an 
epidemic of drug abuse."

Toobin's implication that young veterans are afflicted with PTSD and abuse 
drugs and are therefore more likely to commit crimes worthy of capital 
punishment put me staunchly on the defensive. Many recent reports and 
studies--some of which I have helped to produce or publish--have consistently 
demonstrated that veterans are more employed than their civilian counterparts, 
as well as more likely to vote, volunteer, and help their neighbors. 
Essentially, veterans tend to be good citizens. So, how could they also be 
disproportionately overrepresented on death row?

As I dug into the numbers, I realized that Toobin was right about one thing. 
The number of veterans on death row is disproportionate to their presence in 
the general population -- but the fact is that veterans are underrepresented on 
death row. That seemed more like it.

The math isn't difficult; I simply applied basic tenants of statistical 
analysis. Toobin compared veterans in the general population (6.9 %) to 
veterans on death row (10 %). By doing this, he is assuming that the base 
comparison sets--the general population and the death row population--are 
relatively similar. That's where he went wrong.

No one under the age of 18 is on death row. (The US may be one of the only 
developed countries that systematically executes our criminals, but at least we 
don't extend our barbaric practice to children.) Likewise, by definition, all 
veterans are at least 18 years of age. However, children under 18 make up 
nearly a quarter of the US population. Therefore, to make a fair comparison of 
veteran proportionality, one must exclude children from the general population.

Similarly, gender is a significant differentiator. While the general population 
is split relatively evenly between men and women, the death row population is 
not. According to DPIC, 98-% of death row inmates are males. Meanwhile, 
according to the Department of Veterans Affairs, more than 90 % of living US 
veterans are males.

It becomes abundantly clear that to compare apples to apples, we should compare 
the proportion of veterans on death row to the proportion of veterans in the US 
adult male population.

With appropriate controls for age and gender, the story changes completely. 
Over 16 % of US adult males are veterans, compared to 10 % on death row. To put 
it another way, approximately 1 in 41,000 US adult males are on death row; 
about 1 in 67,000 US male veterans are on death row.

Male veterans are significantly less likely to be on death row compared to all 
US males. And because such a small number of death row inmates are women, this 
conclusion stands for all veterans. Thus, an appropriate statistical 
examination demands an entirely different question: "Why Are So Few Veterans on 
Death Row?"

Along with rethinking the headline, Mr. Toobin and the editors at The New 
Yorker may also want to consider why they took so little care with the 
statistics and what negative effects they have inflicted on the perception of 
all veterans in our country today.

----

[source Note: All population data is taken from best available 2014 data from 
the United States Department of Veterans Affairs, the United States Census 
Bureau, and the Death Penalty Information Center.]

(source: Chris Marvin is a retired Army officer, a former Black Hawk helicopter 
pilot, and a combat-wounded veteran of the war in Afghanistan. He is the 
principal for Marvin Strategies. He is also a fellow with the Truman National 
Security Project----Huffington Post)





***********

Death Penalty Dysfunction in 2015


On December 8, the state of Georgia carried out its 5th and final execution of 
the year, killing 47-year-old Brian Keith Terrell by lethal injection for a 
1992 murder. It was a fight over money, the state said. Terrell forged checks 
belonging to an elderly family friend, then shot the man after he was found 
out. But for years Terrell and his lawyers insisted he was innocent - no 
physical evidence linked him to the crime, and, after 3 trials, the key witness 
against him recanted, telling a defense investigator that he had implicated 
Terrell in order to save himself.

In the end, however, this made no difference to the state of Georgia, nor to 
the U.S. Supreme Court, which denied Terrell's final appeal around 11 p.m. on 
Tuesday. After a prolonged and painful search for a suitable vein - after an 
hour, the nurse finally stuck an IV into his hand, according to the Atlanta 
Journal-Constitution - Terrell died just before 1 a.m. He gave no last 
statement. But witnesses said he mouthed 3 words to a county sheriff in the 
front row: "Didn't do it."

Terrell was the 28th prisoner to be put to death in the United States since 
January, and the last of 2015. This made it a relatively slow year for 
executions. By contrast, 34 people died on the gurney in 2014 and 39 in 2013. 
The steady decline is part of a longer, well-documented trend: U.S. executions 
have fallen precipitously since peaking in the late '90s, while new death 
sentences are down across the country and are handed out in a narrowing number 
of jurisdictions. Even in Texas, only 3 people were sentenced to death this 
year. Nationally, death row populations continued to shrink in 2015. As many 
experts have observed, in historical terms, the death penalty is dying.

Yet 2015 was still a wretched and messy year as far as the death penalty was 
concerned, one that did much to undermine our country's vaunted claims to 
"evolving standards of decency." Missouri executed a man missing 1/5 of his 
frontal lobe. Virginia killed a prisoner whose appeal for a stay of execution 
was still pending before the Supreme Court. Amid little public outcry, Texas 
executed a man named Lester Bower, who insisted he was innocent during his 30 
years on death row - and whose case had quietly fallen apart.

States continued to cluelessly tinker with lethal injection, passing new 
secrecy laws to shield themselves from scrutiny - and relying on those laws to 
illegally obtain execution drugs from sketchy providers as far-flung as India. 
(As a backup for unavailable drugs, Utah went ahead and brought back the firing 
squad.) In Glossip v. Gross, the U.S. Supreme Court gave constitutional cover 
to the states' lethal injection experiments, upholding the use of midazolam for 
executions, despite its short, ugly track record - and telling prisoners it's 
their job to find a suitable alternative. (In Missouri, 2 men now find 
themselves arguing that they should die in the gas chamber instead of by lethal 
injection.) And in a particularly surreal display of incompetence and 
corruption, the state of Oklahoma, fresh off its Supreme Court win, came within 
moments of killing (the likely innocent) Richard Glossip using the wrong drug - 
and later revealed it had used the same drug to kill a man in January.

As a case study in death penalty dysfunction, 2015 would be as good a year as 
any.

THERE WAS SOME GOOD NEWS, of course. Moratoriums remained in place across the 
country. In Connecticut, which abolished the death penalty years back but kept 
11 people on death row, a court ruled that those prisoners should be spared as 
well. In Nebraska, lawmakers made history by overriding a gubernatorial veto to 
abolish the death penalty - the 1st Republican-controlled legislature to do so 
in decades - prompting Gov. Pete Ricketts to desperately pour his own family 
money into a ballot initiative that would repeal the repeal.

There were rare instances of accountability for official misconduct: Texas 
prosecutor Charles Sebesta was disbarred for sending an innocent man to death 
row, while in California an entire DA???s office was removed from a major 
capital case after a defense attorney revealed vast and jaw-dropping misconduct 
in its use of jailhouse snitches.

6 death row prisoners were exonerated in 2015 - both a bright spot and a grim 
wake-up call - while others were officially pardoned and thus given a shot at 
compensation for their wrongful conviction. People facing execution were spared 
at the last minute - in Missouri, home to one of the country's most active 
death chambers, Kimber Edwards had his sentence commuted by Gov. Jay Nixon just 
3 days before he was set to die. And last month the Missouri Supreme Court 
threw out the conviction of Reggie Clemons, whose case became a rallying cry 
for Amnesty International. Both men faced execution despite grave doubts over 
their guilt.

As 2015 comes to a close, the number of death row exonerations now stands at 
156, though many more people have been released without formally being cleared. 
Innocence continued to haunt the death penalty this year: "Serious 
unreliability" was 1 of the "3 fundamental constitutional defects" cited by 
Supreme Court Justice Stephen Breyer in his remarkable, sweeping dissent in 
Glossip, which made the case for abolishing the death penalty completely.

Indeed, this year proved a bleak illustration of much of what Breyer argued in 
his 41-page dissent. One stark example: what Breyer describes as 
"unconscionably long delays that undermine the death penalty's penological 
purpose." Across the country, prisoners spend so many years on death row they 
are more likely to die of natural causes than be executed. It's a slow torture 
(many on death row live in total isolation), not to mention a betrayal of the 
promise of "closure" offered to victims.

Among those who died before reaching the gurney in 2015 were Florida prisoners 
Jerry Wickham (after 27 years on death row) and Clarence Jones (after 26). 
Another Florida man, Gregory David Larkin, committed suicide on death row. He 
was the fourth prisoner to do so in the state since 2000. Prisoners died in 
Nebraska and Tennessee, and, in California, where the execution chamber has 
been dormant for almost 10 years, at least 3 death row prisoners died, the 
oldest at age 70. Most recently, on the night before Thanksgiving, 67-year-old 
Donnis Musgrove died on Alabama???s death row after fighting for almost 30 
years to prove that he was innocent.

For others who lived to see the world outside in 2015, the death penalty 
demonstrated its cruel reach. After a futile fight for compensation, Louisiana 
exoneree Glenn Ford succumbed to lung cancer in June, just one year after his 
release from Angola Prison, where he spent 30 years on death row. In Indiana, a 
woman named Paula Cooper, who was once the youngest death row prisoner in the 
country, committed suicide after struggling to survive in a world that still 
generally saw her only for the crime she committed at 15.

SO WHAT ABOUT the 28 who were actually executed? There's no denying they 
represented some brutal and vicious crimes. But they were also emblematic of 
the lie that we reserve death sentences for the "worst of the worst." Among 
those killed in 2015 were prisoners with severe mental problems, people with 
strong innocence claims, and individuals who were clearly rehabilitated and 
deserving of clemency.

Take Georgia alone, the state that carried out the first and last executions of 
2015. On January 13, Georgia killed 66-year-old Andrew Brannan, a decorated 
Vietnam veteran who survived extensive combat only to unravel upon returning 
home from war. He developed PTSD and was diagnosed as bipolar; by the time he 
shot a police deputy during a traffic stop in 1998, Brannan "was living a 
marginal, fearful life, living in a primitive homemade shack reminiscent of a 
bunker in Vietnam," according to a doctor who examined him. The jury who 
sentenced Brannan never heard about his trauma or mental illness - persistent 
problems among those on death row, 10 % of whom are veterans.

On the night Brannan was executed, The Intercept reported, law enforcement 
outside the Georgia Diagnostic and Classification Prison in Jackson expressed 
misgivings over the fact that Brannan had served in Vietnam. Other fellow 
veterans tried to save his life. "What does putting a man like Andrew Brannan 
to death say to my generation of veterans?" a man who served in Iraq and 
Afghanistan wrote to the Georgia Board of Pardons and Parole. "To me, it says 
that this country can exploit our youth to its gain and then, when it comes 
time ... will discard you like yesterday's forgotten garbage."

Brannan was not alone in being executed despite his severe mental problems. 
Just two weeks later, Georgia killed Warren Hill, a man whose developmental 
history and low IQ had led him to be diagnosed as intellectually disabled by 
seven different doctors. In theory, such executions are forbidden. Atkins v. 
Virginia prohibited the execution of the "mentally retarded" in 2002, while in 
2014, Hall v. Florida reined in states' wildly disparate standards for deciding 
who qualifies. Georgia's own standard of proof is the strictest and most absurd 
among the states: Georgia law dictates that prisoners like Hill must show 
intellectual disability "beyond a reasonable doubt," a gross misapplication of 
a blunt legal concept for the purpose of diagnosing developmental disabilities.

Georgia also reiterated this year its willingness to execute in the face of 
lingering doubts. Marcus Ray Johnson was denied a new trial and executed in 
November despite questionable forensic evidence. But in some ways, the 
execution of a clearly guilty person - Kelly Gissendaner - was perhaps the most 
disturbing. When I asked one death row prisoner what he considered the low 
point of 2015, he pointed to her death.

Gissendaner was sent to death row for convincing a boyfriend to kill her 
husband in 1997. (The boyfriend was given a life sentence.) While on death row, 
Gissendaner came to embody the ideals of rehabilitation and redemption. She 
became a "model inmate," a theologian, and a mentor and counselor to other 
women in prison. Her supporters ranged from prison officials to the Pope. When 
Gissendaner's execution was halted in March due to concerns over "cloudy" 
execution drugs, it seemed briefly conceivable that Georgia might let her live. 
But a few months later, the state denied Gissendaner clemency for a 2nd time. 
She died on the gurney on September 30, singing "Amazing Grace."

Gissendaner's death sent a grim message to prisoners across the country. It 
said that no matter how much you change behind bars, the state will reduce you 
to your worst mistake. For those facing execution, the death row prisoner told 
me, it robbed them of hope. "I'm sure it made a lot of men with worse cases 
feel like they don't stand a chance with mercy alone."

"To sum it up," he said, "her case exemplified the lack of mercy in the 
American justice system at this time."

(source: theintercept.com)

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

Defense lawyers: U.S. leaders' prejudice taints Sept. 11 death-penalty trial


The U.S. Marine lawyer defending the accused 9/11 mastermind said Friday that 
America's political and military leadership had so thoroughly prejudiced the 
case that nothing short of abandoning the death penalty could cure the taint.

"This case here will likely be cited for decades to come as a vivid example of 
what is or is not acceptable in military justice," said Marine Maj. Derek 
Poteet, the Pentagon-appointed defense attorney for Khalid Sheik Mohammed.

He accused "the entire national security apparatus" of announcing the 
inevitable conviction and execution of Mohammed while the man who in 2007 
boasted to a military panel he ran 9/11 "from A to Z' sat silently, clad in 
white gown and turban. It was Friday, Islam's sabbath, and Mohammed, 50, wasn't 
wearing his typical camouflage jacket to court.

The argument appeared to infuriate case prosecutor Robert Swann. He invoked the 
inferno of the World Trade Center, the orphans of Sept. 11 and the 2,976 
"heroes" killed that day and told the judge there was no unlawful political or 
military meddling in this case.

"Accountability for Sept. 11 2001 will be decided in this room not from outside 
participants. These men are presumed innocent until guilt is established by 
legal and competent evidence beyond reasonable doubt," said Swann.

He called former Attorney General Eric Holder's comment that, had the case been 
tried in federal court, the men would already be on death row "unfortunate" but 
that and the remarks of 2 commanders in chief on Mohammed's eventual conviction 
and execution had "no significance in this room."

Defense attorneys for all five men facing a joint trial on charges stemming 
from the worst terror attack on U.S. soil were arguing an all-encompassing 
motion that public remarks by Presidents George W. Bush and Barack Obama, and 
others, as well as Pentagon and U.S. intelligence interference in the defense 
privilege amounted to unlawful influence.

It is an unforgivable sin in U.S. military justice, so much so that the law 
allows judges to offer a remedy to even an appearance of the taint.

Attorney Walter Ruiz, defending an alleged money man in the Sept. 11 plot, 
spent a chunk of Thursday laying out a long list of complaints: Remarks by Bush 
and Obama that the men were guilty and would die, refusal by a Pentagon 
official to initially resource Pentagon-paid defense attorneys for a 
death-penalty case; the CIA's use of a remote control mute button in the court; 
troops mishandling privileged attorney-client communications.

Ruiz, like the others, sought dismissal of the case. Absent that, he asked Army 
Col. James L. Pohl, the judge, to strike the death penalty and let his client, 
Mustafa al Hawsawi, 47, get a separate trial. The message was Hawsawi, who was 
captured with Mohammed and tortured in CIA black sites, deserved not to have 
the taint by association with the man.

Swann, a retired Army colonel, described the argument as a product of the 
imaginations of defense attorneys in the case, both U.S. military officers and 
civilians. He added that President Bush only spoke publicly about the guilt of 
Mohammed after he and co-defendant Ramzi bin al Shibh, 43, still free, did a 
television interview claiming credit for the attack just ahead of the 1st 
anniversary of the crime.

He called the list in the unlawful influence motion "baseless claims" and 
"talking points" that don't deserve "the oxygen of publicity."

A standard for unlawful influence was set in the U.S. Army court martial of Lt. 
William Calley for the 1968 My Lai massacre in Vietnam. Had President Richard 
Nixon said Calley would be executed, Poteet said, "the case would've been 
dismissed."

Judge Pohl at one point raised severing the Sept. 11 case, giving at least some 
of the 5 men separate trials. Prosecutors oppose it, in part, to spare the 
families of those killed that day more than one trial.

"This is the 9/11 Shura Council," Swann replied, casting them as an al Qaida 
parliament.

The charges sheets give the 5 men differing roles in the plot. Bin al Shibh and 
Walid bin Attash, 37, are alleged deputies to Mohammed while Hawsawi and 
Mohammed's nephew, Ammar al Baluchi, 38, are described more as facilitators on 
the 19 hijackers' travel and funds.

(source: Miami Herald)