[Deathpenalty] death penalty news----MO., ARIZ., CALIF., USA

[Rick Halperin]

Jan. 21



MISSOURI:

U.S. Supreme Court faults St. Louis lawyers in death penalty ruling



The U.S. Supreme Court on Tuesday reversed 2 lower courts and said that a 
triple murderer on Missouri's death row, whose execution last fall was delayed, 
should be granted a replacement of the 2 St. Louis lawyers on his case.

The ruling also means convicted killer Mark Christeson can argue that he should 
be allowed to appeal his case in federal court, an avenue that was blocked when 
the lawyers missed a deadline.

The ruling says Christeson's attorneys, Eric Butts and Phil Horwitz, admitted 
failing to meet with Christeson until 6 weeks after his federal appeal was due. 
It also says there was no evidence they had communicated with him before that. 
The lawyers filed the appeal 117 days late and subsequently blamed it on a 
miscalculation.

The high court said both attorneys now have a "conflict of interest" in arguing 
that the deadline should be waived because of their mistake.

"Advancing such a claim would have required Horwitz and Butts to denigrate 
their own performance. Counsel cannot reasonably be expected to make such an 
argument, which threatens their professional reputation and livelihood," reads 
the unsigned 7-2 opinion.

Justices Samuel Alito and Clarence Thomas said they would not reopen the case 
without "briefing and argument" to show whether the lawyers' conduct was merely 
an error or "the kind of abandonment" that needs intervention.

Tuesday's ruling notes that Christeson still must demonstrate "extraordinary 
circumstances" to justify the reopening of the case.

Horwitz and Butts did not return phone calls and emails seeking comment 
Tuesday.

Christeson was too poor to afford counsel. He was represented at trial by the 
state public defender's office. A federal judge in western Missouri appointed 
Horwitz and Butts, who are paid for their work, in 2004 to handle the federal 
appeals after state court appeals were exhausted.

Christeson was convicted in 1999 and sentenced to death for raping Susan Brouk, 
36, and murdering her and her 2 children in 1998, near Vichy, Mo.

Christeson, then 18, and his cousin, Jesse Carter, then 17, wanted to steal 
Brouk's SUV and drive to California, court records show. The documents say 
Christeson raped Brouk, and that she recognized Carter.

Officials said the men drove the victims to a nearby pond, where Christeson cut 
Brouk's throat, then cut the throat of her son, Kyle, 9, and held him under the 
water. Christeson then suffocated Brouk's son Adrian, 12, and threw Brouk into 
the water, where she drowned.

Tuesday's ruling represents a victory for St. Louis University Law School 
adjunct professors and Death Penalty Clinic students, who began looking into 
the case last year at the request of Butts and Horwitz.

1 of the SLU lawyers, Joseph Perkovich, said his team met with Christeson and 
realized the condemned man was unaware his appeals had been exhausted.

After Butts and Horwitz refused to turn over their files, Perkovich said, he 
and his colleagues began attempting to oust them, to make the argument in court 
that Christeson was not represented effectively.

Perkovich and his colleagues from the "public interest, nonprofit" law firm 
Phillips Black have argued Christeson has "severe cognitive disabilities" 
making him totally reliant on his lawyers.

Butts and Horwitz fought to remain on the case, and lower courts, including the 
8th Circuit U.S. Court of Appeals in St. Louis, agreed multiple times.

U.S. District Judge Dean Whipple wrote in October that the two lawyers had 
appeared on behalf of Christeson in other legal challenges to the death 
penalty. He also warned of an "untenable precedent" that outside lawyers could 
delay an execution "by simply waiting until the 11th hour and then 2nd-guessing 
the work of appointed counsel."

But Perkovich said Butts and Horwitz had merely signed on to legal challenges 
being filed by other inmates.

The SLU team helped Christeson win a stay of his execution just hours before it 
was scheduled on Oct. 29.

The Missouri attorney general's office, which argued against the delay, did not 
respond Tuesday to a request for comment.

Perkovich said the case was partly a product of a "beleaguered" system that 
represents the poor in capital cases. He said the process was further strained 
by a series of execution dates recently set by the Missouri Supreme Court.

Perkovich said he and his colleagues "have no appetite for taking down 
attorneys" but were ethically bound to protect Christeson's interests.

Horwitz and Butts, who do criminal defense work here, continue to be appointed 
to federal defense work. In U.S. District Court in St. Louis, it was as 
recently as December for Butts and July for Horwitz.

(source: St. Louis Post-Dispatch)

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

The Near Death of Mark Christeson ---- He was nearly executed because his 
lawyers missed a filing deadline. Now the Supreme Court has weighed in on what 
should happen next.



In a case emblematic of a law that has cost scores of condemned inmates their 
final appeals, the U.S. Supreme Court ruled today that in the "interests of 
justice," a Missouri death row inmate whose attorneys missed a crucial filing 
deadline should be entitled to new lawyers.

The ruling marks the latest development in the case of Mark Christeson, who in 
October received a stay of execution mere hours before he was to die by lethal 
injection.

Christeson's is 1 of at least 80 capital cases where attorneys have missed a 
1-year deadline established by Congress in 1996 for filing federal habeas 
corpus petitions, according to an investigation published by The Marshall 
Project and The Washington Post in November. Because of the late filings, most 
of those inmates lost access to what is arguably the country's most critical 
safeguard in death-penalty cases.

Christeson was sentenced to death for 3 murders committed in south-central 
Missouri in 1998. He was convicted of raping 36-year-old Susan Brouk, then 
cutting her throat. He was also convicted of killing Brouk's 12-year-old 
daughter and 9-year-old son.

After the Missouri Supreme Court denied Christeson's 1st 2 appeals, a U.S. 
District Court judge in 2004 appointed 2 St. Louis-area attorneys, Eric Butts 
and Philip Horwitz, to represent Christeson in preparing his final appeal in 
federal court. Under the Antiterrorism and Effective Death Penalty Act (or 
AEDPA), which was signed by President Clinton to streamline capital appeals, 
Christeson's filing deadline was April 10, 2005.

But Butts and Horwitz didn't meet with Christeson until more than 6 weeks after 
the deadline. When they filed the petition, it was 117 days late. The 2 
attorneys, who did not respond to interview requests, attributed their 
miscalculation to a lack of clarity in court rulings in how to determine the 
deadline, according to court records.

Under a previous Supreme Court ruling, a missed filing deadline can be forgiven 
only in "serious instances of attorney misconduct." But the U.S. District Court 
and a federal court of appeals refused to substitute in attorneys to make that 
argument for Christeson, leaving Butts and Horwitz with what the U.S. Supreme 
Court today called an "obvious conflict of interest."

"Advancing such a claim would have required Horwitz and Butts to denigrate 
their own performance," the Supreme Court wrote. "Counsel cannot reasonably be 
expected to make such an argument, which threatens their professional 
reputation and livelihood."

The court reached its decision without briefing or oral argument, which is 
typically done when justices believe that a legal principle is sufficiently 
settled, making such steps unnecessary. Justices Samuel Alito and Clarence 
Thomas dissented, saying the court should have asked for the arguments to be 
more fully developed before acting.

Joseph Perkovich, a New York City attorney who had asked to be substituted in 
as counsel for Christeson, said today that AEDPA makes it "extremely onerous" 
for condemned inmates to overcome procedural obstacles. "So it's a red-letter 
day for us to get a positive result from any court, much less the highest court 
in the land," he said.

2 other attorneys - Jennifer Merrigan of Philadelphia and John Mills of San 
Francisco - have been working with Perkovich to argue that Christeson is 
entitled to new attorneys free of any conflict of interest. All have been 
working on the case without compensation.

Christeson's request to have his petition reviewed despite the missed deadline 
received support from more than a dozen former state and federal judges, who 
filed a brief on Christeson's behalf with the U.S. Supreme Court.

"Cases, including this one, are falling through the cracks of the system," they 
wrote. "And when the stakes are this high, such failures unacceptably threaten 
the very legitimacy of the judicial process."

(source: The Marshall Project)

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

Missouri group calls for moratorium on death penalty, next execution scheduled 
for next week



Opponents of the state's death penalty say Missouri is engaged in a rush to 
execution and should place a moratorium on them while the death penalty is 
studied.

Staci Pratt is the state coordinator for Missourians for Alternatives to the 
Death Penalty. She says the scheduled execution of Marcellus Williams on Jan. 
28 lends increased urgency to legislation targeting the state's death penalty 
policies and procedures.

Democratic Rep. John Rizzo, of Kansas City, has filed a bill to create a task 
force to evaluate the death penalty and halt executions until at least January 
2018.

Missouri executed 10 men last year.

Bills also have been filed this year to evaluate the costs of carrying out the 
death penalty, abolish it and require a review of every case.

(source: Associated Press)








ARIZONA:

Arias jury hears statements from scared witnesses



The Jodi Arias trial continued with the defense's expert witness describing 
Arias's relationship with Travis Alexander and statements from witnesses who 
claim they're too scared to testify in open court.

Dr. Robert Geffner took the stand again Tuesday morning. Geffner's testimony 
had been on hold from previous trial dates while the defense team called 
witnesses out of order.

Geffner testified he interviewed Arias and read transcripts of emails, chats 
and text messages that she and Alexander sent, both to each other and to other 
people.

Those text messages, at times explicit, show Alexander was communicating with 
several women at the same time as Arias. The defense claims Arias was a victim 
of emotional and physical abuse as a way to mitigate her punishment.

Geffner testified Arias was a victim of abuse based on Alexander's 
relationships with other women. Geffner told the jury Alexander engaged in a 
pattern of using women for sex.

Defense attorneys also attempted to admit statements by witnesses who were 
reportedly afraid to testify in open court. They claim they were harassed after 
the 1st trial and were afraid of the repercussions if they were seen to be 
supporting Arias."They're in love with him," Geffner said. "They're interacting 
with him without necessarily knowing the others are."

Prosecutor Juan Martinez made a lengthy objection in which he went through the 
statements paragraph by paragraph, asking for certain statements to be 
excluded.

Some of those statements dealt with the witness's opinion of the fairness of 
the guilt phase of the trial, or of Jodi Arias's innocence.

After a lengthy sidebar and deliberation, parts of those statements were 
admitted.

Arias was convicted of stabbing, shooting and slashing the throat of her 
boyfriend, Travis Alexander, in 2008. She stabbed him 27 times and shot him 
once in the head.

After a jury was unable to reach a decision about whether she should receive 
life in prison or the death penalty, a new jury was impaneled to retry the 
sentencing phase of the trial. That retrial has now lasted 4 months.

(source: The Arizona Republic)








CALIFORNIA:

Brown appointees to Supreme Court renew hopes in death penalty cases



On the day justices Mariano-Florentino Cuellar and Leondra R. Kruger were sworn 
in this month, the California Supreme Court issued a 4-3 ruling leaving in 
place a death sentence for a man with a long criminal record..

With Gov. Jerry Brown's newest appointees now on the court, the death row 
inmate plans to ask the justices to reconsider. If both new justices join the 
dissenters, the ruling could be overturned before becoming final.

"I am never optimistic," said Cliff Gardner, the lawyer for the condemned man. 
"On the other hand, it was a 4-3 decision, and the court is changing."

Past turnover on the state's highest court has led to some immediate, dramatic 
reversals. In the long run, the new composition could affect an array of cases, 
including medical malpractice and medical marijuana, but probably will be most 
felt in the criminal arena. The court, long dominated by former prosecutors, 
has affirmed about 90% of the death sentences it has reviewed. Criminal 
defendants rarely win.

"Brown certainly seems to have reshaped this court in a fairly dramatic way," 
said Jan Stiglitz, a co-founder of the California Innocence Project, which is 
representing a client in a case before the newly constituted court.

Instead of appointing former prosecutors, Stiglitz said, "Brown has brought in 
not just people from the outside but people who don't have this background that 
sort of predisposes them to be cynical in criminal cases."

But little experience in criminal law also can be a handicap, critics said.

Former prosecutors have "stared evil in the face and know what it looks like," 
said Kent Scheidegger, legal director of the Criminal Justice Legal Foundation, 
which supports the death penalty. None of the Brown appointees have had prior 
judicial experience.

"The academic view of criminal law is what produces bad decisions," Scheidegger 
said.

Cuellar, the court's only Latino, is a former Stanford law professor. Kruger, 
the only African American justice, has worked primarily in Washington, where 
she represented the federal government in cases before the U.S. Supreme Court. 
Justice Goodwin Liu, Brown's first appointee last term, was a law professor at 
UC Berkeley.

Cuellar and Kruger both asked questions and followed arguments closely when 
they attended their first hearing on the court this month. Cuellar was animated 
and eager, Kruger soft-spoken and serious.

Legal analysts expect the Brown justices may form a new majority with Justice 
Kathryn Mickle Werdegar, a moderate to liberal Republican appointee. Unlike the 
other Republican appointees, she was never a prosecutor. She worked for the 
federal government on civil rights matters and as staff attorney on appellate 
courts.

Werdegar was among the dissenters in the Jan. 5 death penalty ruling, which is 
technically still pending. Court decisions generally do not become final for 30 
days, and the losing side may ask for reconsideration. Such requests are 
routinely denied - except in times of court turnover.

"I would not be surprised if they decide to reconsider" the death penalty case, 
Santa Clara University School of Law professor Gerald Uelmen said. "And I base 
that on the precedent. It has happened before."

When new justices were added to the court in 1996, a 4-3 ruling that upheld a 
state law requiring minors to obtain a parent's permission for an abortion was 
not yet legally final. The newly constituted court decided to rehear the case.

1 of the new justices joined the 3 dissenters, and the abortion law was struck 
down.

When conservatives replaced liberals after an election that ousted former Chief 
Justice Rose Bird and two colleagues, the new majority decided to reconsider a 
death penalty sentence the Bird court had just overturned. The conservatives 
issued a new ruling upholding the death sentence.

Courts are loathe to take such actions because "it highlights all too much how 
the content of the law may be determined by the membership of the court," UC 
Davis School of Law professor Vikram Amar said.

"We like to believe the law is this thing that exists independently of 
personality," Amar said. "And if courts rapidly changed course in a case that 
was just decided, it says to the public that it matters who is on the court."

And of course it does matter, he acknowledged.

"We change the meaning of law over time by changing the membership of courts," 
Amar said. "That is a reality, but that reality exists alongside this fiction 
that law is this objective thing."

In the 4-3 ruling Jan. 5, the majority of the California Supreme Court agreed 
to uphold the death sentence of Gary Lee Grimes, a Shasta County man who 
participated in a 1995 home invasion that resulted in the killing of Betty 
Bone, 98.

An accomplice who committed suicide had said he killed Bone - and only his DNA 
was found on a weapon. Regardless of who actually killed her, Grimes was 
legally subject to the death penalty.

The jury found him guilty. During a separate proceeding to decide whether 
Grimes should be sentenced to death or life without parole, the trial judge 
excluded testimony that would have shored up evidence that Grimes was not the 
actual killer.

Chief Justice Tani Cantil-Sakauye, writing for the majority, said the excluded 
evidence would not have changed the jury's mind about the death sentence.

"We conclude that the exclusion of ... statements regarding defendant's lack of 
participation in the killing was harmless beyond a reasonable doubt," 
Cantil-Sakauye wrote.

Werdegar, Liu and another justice assigned temporarily to fill a court vacancy 
said the excluded testimony should have been permitted.

The 3 justices would have upheld the guilty verdict but overturned the death 
sentence. The dissenters said testimony that Grimes did not perform the killing 
might have swayed the jury to spare his life.

Liu, until this month the only Democratic appointee on the court, may finally 
have enough votes to change the outcome in other cases as well.

He has expressed concern in minority opinions about the court's readiness to 
uphold verdicts in the face of racial bias in jury selection and to overlook 
legal errors as harmless.

Liu "probably is looking to build a consensus and become a leader of a working 
majority," UC Davis' Amar said.

That could come quickly in another case as well.

Liu wrote a dissent in a 4-3 decision in 2012 that upheld the murder verdict 
against William Richards, a San Bernardino man convicted of killing his wife, 
Pamela, in 1993. Richards, 65, was tried three times.

Juries were hung in the first 2 trials. In the 3rd, a dental expert testified 
that a lesion on the body was a bite mark that matched Richards' unusual tooth 
pattern. The jury returned a guilty verdict. The expert later recanted, saying 
he had been mistaken.

In response to the case, the Legislature passed a bill that said discredited 
forensic testimony amounts to false evidence and is grounds for a new trial. 
The California Innocence Project has asked the California Supreme Court to 
consider the case again in light of the new law.

2 of the 4 justices who voted to uphold Richards' conviction are no longer on 
the court.

"It is our hope that the California Supreme Court is going to take this very 
seriously, and the other justices are going to see that Justice Liu's minority 
opinion is the one that should carry the day," said Alexander Simpson, 
associate director of the innocence group.

(source: Los Angeles Times)








USA:

The U.S. needs a more humane death penalty



With the execution of Charles Warner on Thursday, Oklahoma carried out its 1st 
execution in over 8 months. This delay came after the botched April execution 
of Clayton Lockett. After several attempts to find a usable vein to insert the 
IV, the physician finally located one in the groin area. The execution went 
wrong when it was discovered that Lockett's vein had exploded and that he was 
still conscious. This led to Lockett writhing in pain before finally dying of a 
heart attack 43 minutes after the initial injection. These 2 executions 
initially sparked debate over the use of capital punishment, but the real 
debate should focus on the method of execution.

32 states still use the death penalty, and all 32 of them use lethal injection 
as their mode of execution.

Until recently, most states used a 3-injection method: the 1st used for general 
anesthesia, the 2nd being a muscle relaxer and the final drug stopping the 
heart. The recent discontinuation of this method came about when major 
pharmaceutical companies stopped selling the drugs needed to carry out 
executions.

To counteract this shortage, many states have had to turn to other 
less-regulated pharmaceutical companies. This turn has led to the emergence of 
several variations of one and two drug lethal injection methods. Many states, 
including Oklahoma, have also refused to disclose the cocktails being used in 
lethal injections. All of this has led to several botched executions and many 
court cases.

According to one Amherst study, 3 % of all executions in the U.S. have been 
botched in some way. While this percentage is relatively low - considering the 
extreme pain one endures during a botched execution - that number is way too 
high.

In 2014 alone, there were 3 major botched executions including Ohio man Dennis 
McGuire, previously mentioned Oklahoman Clayton Lockett and local Arizonan 
Joseph R. Wood. According to witness at the Ohio execution, McGuire "gasped for 
air" for over 25 minutes before dying, all while making "choking sounds."

In July, Joseph R. Wood was executed at Florence State Prison in Arizona. The 
execution lasted 1 hour and 40 minutes. According to eye witnesses, Wood gasped 
for air for a majority of the duration of the execution, while state officials 
claim that he was simply snoring. All 3 of these cases clearly demonstrate how 
terribly wrong lethal injection can go.

With the increased number of botched executions, the question remains on how to 
humanely execute prisoners. Ironically enough the answer may come from a 
convicted murderer. During the 1990s, euthanasia activist Jack Kevorkian 
carried out 130 assisted suicides with the use of carbon monoxide. While the 
practice of assisted suicide remains a hotly debated subject, Kevorkian's 
long-time assistant firmly believes that carbon monoxide might be the most 
humane way of executing prisoners. Assistant Neal Nicol states that their 
method is "an extremely painless way of passing" and that "there are no 
twitches, movements, or signs of discomfort at all." While the idea of using 
Kevorkian's method may seem unethical, if there is any chance that it may help 
people pass more painlessly, the method should be explored further.

While the death of Clayton Lockett has rightly ignited the debate over the 
death penalty, the honest truth is that the U.S. will continue to execute 
prisoners for the foreseeable future. Lawyers and prisoners will continue to 
question the constitutionality of the death penalty and courts will continue to 
uphold the previous rulings. The case that should be made instead is that the 
current form of lethal injection is performed under less-than-ideal 
circumstances and should be considered a form of cruel and unusual punishment.

(source: Alec Grafil, statepress.com)