[Deathpenalty] death penalty news----GA., KY., OKLA., WYO., ARIZ., CALIF., USA

[Rick Halperin]

Jan. 26



GEORGIA----impending execution

It's illegal for Georgia to execute Warren Hill. But state won't let him prove 
his disability.



To put it simply: If Warren Hill, a man with a lifelong, documented 
intellectual disability, did not live in Georgia, he would not be facing 
execution Tuesday.

Hill was sentenced to life in prison in 1986 for killing his girlfriend. 4 
years later, he beat and killed a fellow inmate, Joseph Handspike. At his 1991 
capital trial, Hill was sentenced to death.

Hill grew up in a violent, poor household in rural Georgia. In 1967, at age 7, 
he scored a 70 on a public school intelligence test, putting him in the bottom 
2 % of the population. All 7 doctors who've examined Hill - including the 3 
retained by Georgia's attorneygGeneral - unanimously agree that he has an 
intellectual disability. The Georgia courts have twice found, by a 
preponderance of the evidence, the same.

That should be enough to keep him from the death penalty.

In 2002, the U.S. Supreme Court ruled that executing people with intellectual 
disabilities is unconstitutional, a violation of the Eighth Amendment's ban on 
cruel and unusual punishment. The court made its Atkins ruling after numerous 
states enacted statutes prohibiting the execution of people with intellectual 
disabilities. Georgia was the first to do so.

Why, then, is Hill slated to be executed? Because in Georgia, the burden of 
proof is unreasonably high.

There, a defendant must prove that he has an intellectual disability "beyond a 
reasonable doubt" to come under the protection of the Atkins decision. Georgia 
is the only state that requires proof beyond a reasonable doubt, the heaviest 
burden of proof the law can require.

This standard means that you could have multiple expert clinicians agree that a 
defendant has an intellectual disability, as is the case here. But any 
"reasonable" doubt cast on their diagnoses will cancel the protection afforded 
under the U.S? Constitution. Medical diagnoses are made to a reasonable degree 
of scientific certainty and are not necessarily free from "reasonable doubt" as 
that phrase is used in a legal context.

This mismatch makes it nearly impossible to prove intellectual disability for 
defendants in Georgia.

In rejecting guidance from medical experts, Georgia has created a uniquely 
stringent burden of proof that is simply unfair. Even the Supreme Court agrees. 
In Hall v. Florida, the justices held that states must look to the medical 
community's diagnostic and clinical practices in determining intellectual 
disability, writing:

"The death penalty is the gravest sentence our society may impose. Persons 
facing that most severe sanction must have a fair opportunity to show that the 
Constitution prohibits their execution."

Without a medical or scientific anchor, the system runs the risk of making 
irreversible mistakes based on stereotypes about people with intellectual 
disabilities.

Imposing the death penalty on people such as Hill, as the court in Atkins 
stated, "is nothing more than the purposeless and needless imposition of pain 
and suffering." We should listen to the doctors who diagnosed Hill as a person 
with an intellectual disability, prevent this execution and ensure his human 
dignity - as well as our own.

(source: Peter Berns is the Chief Executive Officer of The Arc, the largest 
national community-based organization advocating for and serving people with 
intellectual and developmental disabilities and their families----Washington 
Post)

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

Parole board to hold clemency hearing for Georgia death row inmate set to be 
executed Tuesday



The State Board of Pardons and Paroles is set to hear from supporters of a 
death row inmate set to be executed this week.

The board plans to hold a clemency hearing for Warren Lee Hill Monday morning. 
Hill is set to die Tuesday at 7 p.m. at the state prison in Jackson.

Hill was serving a life sentence in 1990 for the 1986 slaying of his girlfriend 
when he killed a fellow inmate. A jury in 1991 convicted Hill of murder and 
sentenced him to death.

Hill's lawyers have long argued that he is intellectually disabled and 
therefore shouldn't be executed.

The Parole Board is the only entity in Georgia with the authority to reduce a 
death sentence to life without parole.

(source: Associated Press)








KENTUCKY:

Family of Alex Johnson slowly accepting but still grieving his death



A year later, Alex Johnson's family continues to grieve.

"Alex, we miss you every minute of every day," Judy Johnson wrote on a lantern 
during a recent birthday celebration for her son, Alex.

More than 50 people gathered with chairs and blankets at a lake near Johnson's 
hometown in Bowling Green earlier this month to share stories and memories. 
They lit 34 paper lanterns and wrote a memory in honor of Johnson, who would 
have turned 34 on Jan. 16.

Since his death, his parents, Judy and Lee Johnson, and relatives have 
attempted to find a degree of peace. They've asked friends to support local 
organizations instead of sending flowers to express their condolences.

But the last year has taken a toll on the entire family, Judy Johnson said.

Lee Johnson lost 45 pounds and the stress caused him to retire from his job as 
a banker. Their daughter, Cayce, took some time off from work. Therapy has 
helped, she said.

"Well, there's nothing we can do to bring Alex back," Lee Johnson said. "Me 
personally, I've accepted the fact that Alex is dead and we won't see him on 
this Earth again. But hopefully we'll see him in heaven. That's about all we 
can do. Over time we'll get better, gradually. But, as of now, we're still 
suffering."

In December 2013, Alex Johnson, then 32, was reported missing after relatives 
became concerned when he didn't return calls, follow through with plans he had 
made with friends, or attend a meeting at work Dec. 21. The last person to 
speak with him was his girlfriend, Lisa Horobin, who said Alex ended the call 
after he heard a knock at the door of his North Hanover apartment in Lexington.

Johnson's missing-persons case garnered national attention as a Facebook page 
was created and billboards were put up around the state. The Facebook page, 
JusticeforAlexJohnson, has over 14,000 likes. More than a month later, on Jan. 
24, 2014, Lexington police and firefighters found Johnson's body in the 
Kentucky River.

Police have charged Robert Markham Taylor and Timothy Ballard with the slaying 
of Johnson. Taylor, 29, is charged with murder, kidnapping and tampering with 
physical evidence. Ballard, 43, is charged with kidnapping, tampering with 
evidence and being a persistent felon.

Johnson, Taylor and Ballard were all acquaintances, police have said.

Their trial is scheduled to begin Oct. 5. If convicted, the Fayette 
Commonwealth's Attorney's office will seek the death penalty for Taylor.

Calls made to the attorneys of Taylor and Ballard were not immediately 
returned.

Late last year, Judy and Lee Johnson filed a wrongful death lawsuit against 
numerous city officials alleging police and call takers acted poorly during the 
initial stages of the investigation.

Susan Straub, the city's spokeswoman, declined to comment on the status of that 
lawsuit Thursday.

"I cannot comment on a pending lawsuit," she said.

However, Judy Johnson said things were much different during the most recent 
holiday season than the previous year.

"This past Christmas wasn't nearly as bad it was last Christmas with him 
missing," she said. "We were just in a state of anguish and torture from 
Christmas Eve to, basically, when they recovered his body. ... We were aware of 
the date, but we didn't want to think about it and just focused on his 
birthday."

Judy and Lee took a trip to the Bahamas over the holidays to watch their 
favorite basketball team play. It served as a "distraction" for them and a 
getaway, Judy Johnson said.

Even though they admit that closure isn't near, they've found solace in a 
therapy group that caters to parents who have lost children.

"We always told him we loved him and we always knew he loved us," Judy Johnson 
said.

(source: Herald-Leader)








OKLAHOMA----impending execution

Suspend His Execution



Attorneys representing Oklahoma death row inmate Richard Glossip, who is 
scheduled to die Thursday, plan to file a request to stay his execution in 
light of the recent news that the U.S. Supreme Court will review his case.

Dale Baitch, the public defender representing Glossip, wouldn't specify whether 
he and his colleagues will ask the country's highest court or Oklahoma Gov. 
Mary Fallin (R) to suspend the execution, adding that he'd "rather not predict" 
what the specifics of a Supreme Court decision could mean for Glossip's future. 
"At this moment, we're in a 'wait and see' posture," he told The Huffington 
Post.

Glossip and 2 other inmates claim Oklahoma's lethal injection procedure can 
cause severe pain that violates the U.S. Constitution's ban on cruel and 
unusual punishment. On Friday, the Supreme Court agreed to take up their case.

"It's the 1st time in a long time that I let myself get a little more excited 
than normal," Glossip, 51, told HuffPost after hearing the Supreme Court news. 
"I finally got a victory. A small victory -- but it uplifted me."

Oklahoma's execution methods came under scrutiny last April after death row 
inmate Clayton Lockett died 45 minutes after being injected with a combination 
of drugs that had never been used together before. Lockett allegedly writhed, 
clenched his teeth and struggled against the restraints holding him to a gurney 
before prison officials halted the execution. He then died from a heart attack.

"It was a horrible thing to witness," Lockett's attorney, David Autry, told The 
Associated Press at the time. "This was totally botched."

Earlier this month, the Supreme Court declined to stay the execution of Charles 
Warner, another Oklahoma death row inmate. "My body is on fire," Warner, the 
1st to be killed since Lockett, said after he was injected.

Glossip was convicted of 1st-degree murder in 1998 based on the testimony of 1 
witness, Justin Sneed, who claimed Glossip hired him to kill his boss. Glossip 
has staunchly maintained his innocence from the beginning.

His situation has drawn the support of several death penalty opponents, 
including Sister Helen Prejean, a nun best known for her memoir Dead Man 
Walking. Prejean, who serves as Glossip's spiritual adviser and plans to be 
present the day he's executed, will hold a press conference Tuesday to bring 
more attention to his case.

"We need to get out to the public just how flimsy and vulnerable our whole 
system is that a man could be condemned on [Sneed's testimony] and be moving to 
his execution," Prejean told HuffPost last week. "It???s really unworthy of us 
to do that as a people."

Sneed, a contract handyman who worked and lived at the Best Budget Inn that 
Glossip managed in Oklahoma City, confessed to beating motel owner Barry Van 
Treese to death with a baseball bat on Jan. 7, 1997. Prosecutors said Glossip 
was afraid he was about to be fired, and Sneed later testified that Glossip 
offered to pay him $10,000 to carry out the murder. In exchange for his 
testimony, Sneed received a life sentence without parole.

A judge told Glossip that if he admitted his involvement in Van Treese's death, 
he would be sentenced to life in prison and eligible for parole after 20 years. 
Glossip refused, saying he wouldn't perjure himself by admitting to something 
he didn't do.

"A lot of people ask if I hate [Sneed]," Glossip told HuffPost last week. "I 
don't hate him. Hatred ain't gonna do anything for you."

Death penalty opponents argue that it's unfair to convict someone based on only 
one individual's story. A Change.org petition calling on Fallin to halt the 
execution had garnered nearly 27,000 signatures as of Monday. It noted that 
Sneed's daughter recently wrote a letter to the Oklahoma clemency board 
claiming her father wished he could recant his testimony.

HuffPost obtained a copy of the letter. "For a couple of years now, my father 
has been talking to me about recanting his original testimony. But has been 
afraid to act upon it, in fear of being charged with the Death Penalty," it 
reads. "His fear of recanting, but guilt about not doing so, makes it obvious 
that information he is sitting on would exonerate Mr. Glossip."

Prejean believes Sneed recanting would change everything for Glossip. "The one 
thing that got Richard the death sentence was the testimony of Sneed," she 
said. "All the jury heard was this man. There was no forensic evidence at all."

Glossip told HuffPost he has a small TV in his cell, which he keeps on most of 
the time. He first learned the Supreme Court would take up his case late on 
Friday, when he noticed something different about the news reports regarding 
his case.

"When they came on the TV in Oklahoma, on the news, they used to always say 
'convicted murderer Richard Glossip,'" he said. "They changed that now: Richard 
Glossip, who is accused of being in a murder-for-hire plot.' It's the 1st time 
they've ever done that, and it's a step in the right direction."

While the Supreme Court needs only 4 votes to review a case, it needs 5 to stay 
an execution. The other 2 inmates involved in the Supreme Court case, John 
Grant and Benjamin Cole, aren't set to die until Feb. 19 and March 5, 
respectively.

"Over the next couple of days, the issues the [Supreme Court] wants to hear 
will become clear," Baich said. "The fact that 4 justices wanted to hear the 
case suggests that they don???t want it mooted out by the 3 petitioners being 
executed."

In the meantime, Glossip remains optimistic, vowing to fight until the very 
end. "I don't give up hope in any way, shape or form," he told HuffPost. 
"Because until they lay you on that table and stick them needles in you and 
you're completely dead, you always have hope. I'll never let them take that 
away from me, no matter what."

(source: Huffington Post)

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

Oklahoma AG says he will to defend state execution protocol



Oklahoma Attorney General Scott Pruitt says his office will defend the 
constitutionality of the state's method for executing death row inmates as the 
U.S. Supreme Court considers a challenge by three death row inmates.

The nation's high court announced Friday it will hear arguments by inmates who 
are challenging the state's method for conducting executions.

Pruitt says Oklahoma's method has been deemed constitutional by 2 federal 
courts and has been successfully implemented in the state as well as in 
Florida.

Pruitt says his office will work to preserve the Department of Corrections' 
ability to proceed with death sentences given to each inmate by a jury of their 
peers.

Death row inmate Richard Eugene Glossip is scheduled to die on Thursday. Pruitt 
says there is no pending request for a stay.

(source: Associated Press)

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

Witnessing an execution



Charles Warner raped and murdered an 11-month-old baby girl and a jury 
determined he deserved to die.

But, when the curtain was raised to reveal him strapped on a gurney with only 
moments to live, I didn't feel the way I thought I would.

I thought I would hate Charles Frederick Warner, knowing about the details of 
the crime he committed. Instead, I felt pity.

It is the responsibility of a journalist and a member of the free press to 
witness and report on executions. It is our job to watch over the government 
and ensure protocol is being followed and citizens know what their government 
is and is not doing.

I don't think many of us want to see someone die. There may be a few with a 
morbid curiosity. I was not one of them.

I was still in college when I accepted the crime and courts beat writer job at 
the News-Capital. It was made clear to me part of the position would be 
witnessing executions. I was never excited about doing this, and a little 
relieved when the state halted further ones just weeks before I started 
working. I knew the time was going to come, though, and I was prepared.

With that said, I did not think I was going to be a witness for Charles 
Warner's execution. There were more than 40 journalists in the media room 
outside the Oklahoma State Penitentiary vying for 1 of 5 spots. They chose who 
was going to be a witness by picking names written on small white sheets of 
paper, which were then picked out of a basket. After they selected the Oklahoma 
City representative - that's where Warner did his hideous crime and therefore 
they got an automatic representative - my name was the next one drawn.

It was then that it really hit me that I was going to watch a human being die.

Barely 5 minutes went by before I was being searched and directed to a van. An 
Associated Press reporter, 2 Oklahoma City television reporters, a Tulsa 
television reporter and I was shuttled away.

As I was getting into the van, I could hear cameras clicking.

We headed off to H-Unit, which is home to death row and the execution chamber. 
We parked outside and were told we would have to wait in the van until we 
received word to enter the chamber.

We waited maybe 10 or 15 minutes and suddenly Department of Corrections 
Director Robert Patton was walking towards the van. He introduced himself and 
we introduced ourselves.

I was surprised to see him. Patton has gotten a reputation of not speaking with 
media, at all. This was the 1st time I spoke to him. He told us the Supreme 
Court had yet to rule on a motion filed by Warner's attorney. Patton said he 
expected a decision soon and then told us he would not answer any questions "so 
don't ask."

To be fair, he was under a lot of stress.

And so was I.

They drove us back to the media room, and I was starting to feel it. I was 
nervous. And now I had about an hour and a half to think about it. I did a 
television interview and, along with everyone else, waited. The media room was 
buzzing the entire time. When the phone rang, everyone ran to their cameras to 
get a shot of DOC spokesperson Terri Watkins answering it. The first phone call 
she said was someone wanting to make sure there was enough water in the media 
room. That did not stop everyone from running to their cameras every time the 
phone rang.

I couldn't take the heat. I admit it. I escaped outside to catch some fresh 
air. I then called my grandmother, who I am very close to, to let her know what 
was happening. It helped calm me down a little. I was still on edge. She is for 
the death penalty, but wasn't sure if I should be there when it happens. I 
wasn't either, but there was no doubt I would be.

Right after the phone call, outside the media room, longtime DOC spokesperson 
Jerry Massie came outside. He walked up to me and asked if I was OK. I assured 
him I was and he explained to me what he has heard from other journalists in my 
position.

He told me I would probably not feel anything in the chamber. He told me I 
probably would be working hard and taking notes and it would not really dawn on 
me what I was watching. He told me he had heard from others it would be the 
hours following the execution where it would hit me. He advised I be prepared 
for it. This was valuable advice and I thank him for it.

Finally the phone call came. Watkins announced the motion to stay the execution 
was denied and the execution would begin shortly. Again, we were loaded into 
the van and sent to H-unit. This time we did not wait outside. We were led 
right inside and pointed to our seats.

I sat down and the curtains were shut. I could see shadows moving behind but I 
couldn't make anything out. About a minute after we were sent in, Warner's 
attorneys, his spiritual advisor and his sister and mother walked in.

I did not realize family of Warner would be there. This would be the toughest 
part of witnessing this execution.

A judge and a law enforcement officer followed them.

After everyone was inside, the curtain was raised and I saw Warner strapped to 
a gurney.

Immediately, Warner raised his head and looked to his family. He kept mouthing 
the words "I love you, too." and "Bye." That hit home for me a little bit. He 
was saying goodbye to people who loved him despite what he did.

The microphone was turned on in the death chamber and the death warrant was 
read to Warner. Warner had a lengthy last statement. He complained about being 
poked and how the saline felt like acid.

After his statement, they turned off the microphone and you could hear the 
machine inject Warner with the 1st drug, Midazolam. This drug is used to put 
the condemned in a coma-like deep sleep.

It worked.

Warner kept talking throughout the process. He kept saying good-bye to loved 
ones and said something like "My body feels numb." He was in mid-sentence when 
the drug took his ability to speak away. It was a couple seconds after he 
fainted and his head hit the gurney.

Warner collapsed. In the days following that may have "haunted" me a little. 
Watching him get hit so hard and so fast with the drugs played over and over in 
my mind.

Warner was silent from that point.

The rest of the time - some 10 to 12 minutes - was spent watching Warner sleep 
and die. His mother and sister held each other crying. His attorneys wrote 
notes about what was going on. At one point Warner's mother turned around to 
look at Sean Murphy of the Associated Press. She shook her head. You could feel 
the agony she was going through. It was awful.

Director Patton came out and announced Warner was dead. And, slowly, people 
were removed from the witnessing area until it was just us 5 journalists again. 
To me, Warner did not suffer at all. He was put out by the drug Midazolam. I 
believe the drugs were effective.

We were transported back to the media room. Murphy took the lead and told the 
details of Warner's final statement.

My Editor, Glenn Puit, was present for the execution and he had most of the 
story already written up. We filled in the blanks and it was ready to be laid 
on the page.

I was told I could go home if I wanted. But, being a single 22-year-old man who 
just witnessed an execution, I did not want to be alone so I went back to the 
office.

It was nice to be around co-workers in the hours following it.

I wasn't emotionally distressed. I wasn't panicking. And, if I was told right 
then and there I needed to go back and witness another one, I could do it. But 
I am also not a psychopath. Death affected me. Watching someone die got in my 
head and I did feel different than before, even if Warner deserved it.

I did end up making my way home. I called my grandma and my dad and told them 
what I experienced. It was good talking to them about it. I fell asleep easily 
at around 11 p.m. that night.

But my slumber did not last long. I woke up at 1 a.m. and started thinking 
about what I had just seen. I started watching TV and could not get back to 
bed. My thoughts were swirling. I was not able to fall back asleep until 9 or 
10 p.m. Friday night.

I think I am back to normal. Watching Warner's execution is something I will 
never be able to unsee. I am not looking forward to going back, but I will. It 
is my responsibility to do so. I take the job as a journalist seriously. I hope 
my commitment shows in my work.

(source: Parker Perry, McAlester News)








WYOMING:

Wyoming may allow firing squads in executions



With numerous questions swirling around lethal injections as a method of 
execution in the US, 1 state has voted to revert to the use of a firing squad 
to ensure prisoners get executed even if lethal injections aren't possible.

The Wyoming state Senate earlier this month passed a piece of legislation that 
would authorize firing squads to become the back-up method of execution in the 
state, according to a report from the Wall Street Journal.

Lethal injections have come under fire in the US in the last year after the 
state of Oklahoma botched the execution of a death row inmate in April. Clayton 
Lockett was to be put to death last year via lethal injection, but officials 
had trouble administering his IV and Lockett was alive for 43 minutes, at times 
writhing in pain.

An independent investigation found the poorly placed IV caused Lockett???s 
drawn-out execution, not the combination of drugs used. But that hasn't stopped 
3 Oklahoma death-row inmates from bringing a case claiming lethal injections 
qualify as cruel and unusual punishment.

The US Supreme Court last week announced it would hear the Oklahoma case and a 
ruling there could impact lethal injections across the US. Wyoming's 
legislation again legalizing firing squads provides the state with a fall back 
in the event the Supreme Court rules that lethal injections are 
unconstitutional.

But even if the status of lethal injections as the preferred method of 
execution in the US remains, states have sometimes found it difficult to get 
the drugs, as pharmaceutics companies have been hesitant to sell the drugs, not 
wishing to associate themselves with executions.

If the Wyoming bill becomes law, it would be the only state that allows the 
firing squad as a method of execution. Utah banned the firing squad in 2004, 
except in the case of a death-row inmate elected to face the firing square 
prior to 2004. The last time Utah executed a prisoner by firing squad was 2010, 
according to reports.

Utah's state government is considering a bill that would reinstate the option 
of a firing squad, but no decision has been made. 9 additional states have a 
backup plan for executions, including both hanging and the electric chair.

Even if Wyoming starts allowing execution by firing squad, it's not guaranteed 
any such execution would happen. Wyoming is the least populated state in the US 
and has no one on death row. Only 1 prisoner has been executed in the state 
since 1976, according to reports.

(source: The Independent)








ARIZONA:

Killer's death row message: I'm ready to die----Nelson, convicted in 2009, 
bought rubber mallet and murdered his niece with it



A little more than 5 years after he was sentenced to death for the 2006 killing 
of his niece, a Golden Valley man has asked for a date with the executioner.

Brad Lee Nelson, 44, has fired his attorneys and seeks to put an end to any 
future appeals of his death sentence, which was handed down in December of 2009 
and confirmed upon appeal in 2012.

Last Tuesday, Judge Richard Weiss ordered Mohave County Attorney Matt Smith and 
Nelson's defense attorney, David Goldberg, to file court papers to determine if 
Nelson should have a mental health exam, according to a report in the Mohave 
Daily News.

In June of 2006, Nelson bludgeoned to death his 14-year-old niece, Amber Leann 
Graff, in a motel room on Andy Devine Avenue. He was caring for the girl and 
her 13-year-old brother while their mother - and his half-sister - was 
hospitalized.

He was charged with first-degree murder and child molestation. Nelson was found 
guilty of the murder, but was acquitted of the child molestation charge after 
the Mohave County Medical Examiner determined there was no evidence of sexual 
penetration.

There was evidence that Nelson, 36 at the time of the killing, was infatuated 
with his niece. He wrote her a letter telling her as much about nine months 
before the killing.

For whatever reason, Nelson struck the girl in the head at least twice with a 
rubber mallet he purchased from a Kingman store on the day of the killing.

Nelson later told a detention officer at the Mohave County jail that he killed 
his niece, and his attorneys admitted he killed the girl and that he had an 
"unnatural" attraction to her. However, they argued the murder was not 
premeditated in their efforts to spare him the death penalty.

The victim's 13-year-old brother discovered his sister's body. Just days after 
Nelson was sentenced to death, Nelson's sister and the children's mother died 
of a drug overdose that was ruled accidental.

Attorneys have until Feb. 20 to file court papers regarding Nelson's mental 
competence.

(source: Daily Miner)








CALIFORNIA:

Defense in Los Al Death Penalty Case Files 'Nightmare' 20,000 Page Motion----An 
attorney for Daniel Wozniak, an actor accused of murder at a Los Alamitos 
theater, is seeking to have all OC prosecutors recused.



A defense attorney filed a motion today seeking to have the Orange County 
District Attorney's Office removed from the prosecution of a double-murder 
defendant's death penalty trial.

The motion was filed at the end of the day following chiding from Orange County 
Superior Court Judge James Stotler, who said he could not consider the 
attorney's requests to compel prosecutors to turn over requested evidence 
without the recusal motion.

Stotler also said he viewed an expected 20,000-page motion alleging outrageous 
governmental misconduct in the case of Daniel Wozniak as a "nightmare" to read 
and consider.

Wozniak's attorney, Assistant Public Defender Scott Sanders, wants to postpone 
his client's trial, which is scheduled to begin Feb. 13, so he can have 
evidentiary hearings to back up his claims that Orange County Sheriff's 
officials illegally used jailhouse snitches to solicit incriminating statements 
from defendants, including Wozniak.

A hearing today on the issue featured multiple testy exchanges between Sanders 
and Senior Deputy District Attorney Matt Murphy as well as Stotler.

Stotler said he felt relieved Thursday when Sanders filed an 81-page motion 
summarizing his claims of governmental misconduct, thinking that was all that 
he would have to consider.

"Then I started to think I don't know what this is and then my ultimate 
nightmare -- this is a summary of the motion and I still might get 20,000 pages 
and 70 volumes" to rule on, Stotler said.

Sanders argued that Murphy's dismissive attitude toward the defense attorney's 
claims of misconduct guarantee that Wozniak can't trust prosecutors to get a 
fair trial.

Sanders also doubts a claim by an MSNBC producer that she did not work with 
Wozniak's jailers to put him on the network's show, "Lockup," so he would make 
damaging statements.

The producer told investigators she picked Wozniak out as a subject for the 
show based on an ill-fitting jailhouse jump suit and his "fake actor's smile."

Murphy said Sanders found out about the interview when the prosecutor told him 
about it as a courtesy. The father of one of the victims saw an ad for the show 
and called Murphy about it, the prosecutor said.

Murphy mocked Sanders' proposed 20,000-page motion.

"If you took the 'Illiad' and the 'Odyssey,' 'War and Peace,' 'Moby Dick,' the 
U.S. Constitution, the Gettysburg Address, 'The Communist Manifesto,' 'Mein 
Kampf,' (the) Letter from Birmingham Jail, the Koran, the new King James Bible, 
a 'Brief History of Time,' that would leave you with less than 5,962 pages," 
Murphy said.

"What possible intellectual concept needs 20,000 pages? This is delay and he's 
dumping it on you at the last minute ... It's obscene that he would dump 20,000 
pages on you that has nothing to do with Daniel Wozniak."

Sanders complained that Murphy "sandbagged" him at a December hearing with 
claims that the defense attorney is a serial accuser of prosecutors to make him 
look bad to Stotler.

Sanders argued that because Murphy brought up the subject he wants to see all 
correspondence between the prosecutor and others in his office about the 
Wozniak case, including 2 former prosecutors who are now judges.

Sanders, who also represents Scott Dekraai, the worst mass killer in Orange 
County history, filed a motion late Thursday seeking a delay in the trial. In a 
motion filed this week, Murphy slammed Sanders' tactics, accusing him of filing 
misconduct claims against nearly every prosecutor he has faced.

Those claims from Murphy has prompted Sanders to signal that he will ask all 
judges in the county to recuse themselves from overseeing Wozniak's trial.

Sanders wants Stotler to schedule a pretrial hearing for Feb. 27, well past the 
scheduled Feb. 13 trial date, which has been postponed several times. Sanders 
wants to file his full motion alleging governmental misconduct on Feb. 27.

Stotler told the attorneys to return to court Monday when he may rule on 
Sanders' recusal motion and other issues.

In the Dekraai case, Sanders' motion was more than 500 pages and led to months 
of evidentiary hearings before another judge, who found misconduct occurred, 
but that it was due to negligence, not a criminal conspiracy.

However, Orange County Superior Court Judge Thomas Goethals said he limited his 
analysis to just Dekraai's case and will hold a Feb. 5 hearing based on 
newfound evidence that may contradict testimony from sheriff's officials, who 
said they had nothing to do with placing Dekraai in a cell next to a government 
informant to collect damning information from the defendant, which would have 
violated Dekraai's constitutional rights because he was by then represented by 
attorneys.

Informants can listen for incriminating statements but cannot elicit them.

Sanders is now arguing there's a new tactic involving snitches lying to fellow 
inmates that they face retaliation against the Mexican Mafia unless they come 
clean about what they did.

Sanders has been pushing prosecutors to provide any correspondence between 
Murphy and his fellow prosecutors as well as the 2 judges.

Murphy argued in his response that Sanders' request is overly broad, that he is 
not entitled to that information, and that there has been no correspondence 
anyway.

Murphy also contradicted Sanders' arguments that his claims all had merit and 
that the attorney misrepresented what happened in each case.

"Mr. Sanders has accused 16 different prosecutors of misconduct in 13 separate 
cases," Murphy said in his motion.

(source: patch.com)








USA:

Method-of-execution claims and the "courtesy 5th"



In the New York Times, Adam Liptak has an interesting story on the "courtesy 
5th," the common practice at the Supreme Court of a 5th Justice voting to stay 
an execution if 4 Justices vote to grant cert in a capital case. The basic idea 
is that it takes four votes to grant cert but 5 votes to stop an execution. If 
4 Justices want to hear a capital case but 5 Justices don't, the case could be 
granted and docketed but the petitioner executed before the case is decided. 
The Court would never decide the legal issue if that happens, as the case would 
be mooted by the execution. In recent years, there has been a Justice willing 
to provide a "courtesy 5th" to ensure that won't happen.

As Liptak explains, it's at least possible that this won't be happening for the 
Court's latest capital case grant, on method of execution claims used by 
Oklahoma. The granted case originally had 4 petitioners on death row, and the 
Court allowed 1 of them to be executed just 8 days before voting to grant the 
petitions. We don't yet know if that means that the Court won???t follow the 
usual practice of a courtesy 5th in the granted case for some or all of the 3 
remaining petitioners. We'll know soon, though, as the new lead petitioner in 
the granted case is scheduled to be executed Thursday. We'll see if the Court 
grants the stay before then.

Liptak's story raises an obvious question: Why might method-of-execution claims 
not get the usual courtesy 5th? Recognizing that this is just speculation about 
a hypothetical, I wonder if the nature of method-of-execution claims might 
alter the dynamic to some Justices. Here's my thinking. By their nature, 
method-of-execution claims apply to everyone on death row who would face that 
method of execution. If there are multiple death row inmates involved in a 
case, the execution of 1 doesn't moot the case. And if a grant means a courtesy 
5th and a stay, granting on a method-of-execution claim stops the death penalty 
in its entirety for every state that follows that method of execution until the 
cases are decided many months later. Given that methods of execution are 
currently in flux, and the Court might want to grant in multiple 
method-of-execution claims over the next few years, some Justices may worry 
that the courtesy 5th will amount in practice to a 4-Justice-imposed death 
penalty moratorium for a few years while the Court works through the various 
methods and claims. If there are 5 Justices on the Court who think the relevant 
methods of execution are constitutional, that 5-Justice majority may not want 
to let the 4-Justice minority do that.

Of course, to readers who oppose the death penalty, a moratorium is a good 
thing rather than a bad thing. But for the Justices who don't see 
constitutional problems with the death penalty generally, this dynamic might 
give some Justices 2nd thoughts about the use of the courtesy 5th for 
method-of-execution claims. Or at least it's a possibility. We'll know more 
later in the week. Stay tuned, as always.

(source: Orin Kerr is the Fred C. Stevenson Research Professor at The George 
Washington University Law School, where he has taught since 2001----Washington 
Post)

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

In taking up execution case, justices highlight importance of 1 vote



There are 9 justices on the Supreme Court. It takes 4 votes to hear a case, but 
it takes 5 to stay an execution. That can leave a lethal gap.

A death penalty case can be important enough to claim a spot on the court's 
docket of perhaps 75 cases a year. But the prisoner who brought it may not live 
to see the decision.

In agreeing on Friday to hear a challenge to the chemicals Oklahoma uses to 
execute condemned prisoners, the court brought fresh attention to the 
life-or-death importance of a single vote.

The lead petitioner in Friday's case, Charles F. Warner, was already dead. He 
was executed 8 days earlier, after the Supreme Court refused to stay his 
execution. The vote was 5-4.

"What happened to Charles Warner was not an isolated glitch," said Eric M. 
Freedman, a law professor at Hofstra University and the author of a new article 
on the court's voting procedures in capital cases. "It was a typical, if 
high-visibility, example of a systemic flaw in the machinery of justice that 
has gone unrepaired for far too long."

The case the court agreed to hear used to be called Warner v. Gross, No. 
14-7955. On Friday, taking account of Warner's death, the court changed the 
caption to Glossip v. Gross, No. 14-7955.

It may change again. The new lead petitioner, Richard Glossip, is scheduled to 
be executed on Thursday.

The other 3 petitioners in the case also have execution dates in coming weeks, 
all of them well before the court is expected to hear arguments in the case, in 
late April.

The Supreme Court did not say on Friday whether it would stay the other 3 
executions. In a statement, Scott Pruitt, Oklahoma's attorney general, made a 
pointed reference to the fact that it took only four votes to grant review. He 
seemed to indicate that the state was prepared to proceed with the executions.

The petitioners' lawyers will doubtless seek stays. In Glossip's case, they 
will have to act quickly.

How the court responds will illuminate the current vitality of its fitful 
commitment to a procedure it sometimes uses to bridge the voting gap: the 
"courtesy 5th" vote to stay executions. Such votes are said to be available 
once the court makes a formal decision to grant review of a condemned 
prisoner's case.

Justice Lewis F. Powell explained his reluctant decision to cast such a 
courtesy vote in a 1985 concurrence. The inmate's case had "no merit whatever," 
he wrote. "But in view of the unusual situation in which 4 justices have voted" 
to hear it, he wrote, "and in view of the fact that this is a capital case with 
petitioner's life at stake, and further in view of the fact that the justices 
are scattered geographically and unable to meet for a conference, I feel 
obligated to join in granting the application for a stay."

But such a 5th vote is not always forthcoming. In the late 1980s, the question 
of when courtesy votes were warranted was a source of tension on the court, and 
by 1990 the consensus broke down entirely.

"For the 1st time in recent memory," Justice William J. Brennan Jr. wrote in a 
dissent that year, "a man will be executed after the court has decided to hear 
his claim."

Thomas C. Goldstein, the publisher of Scotusblog, has written that a courtesy 
5th has been uniformly available since the later part of the tenure of Chief 
Justice William H. Rehnquist, who served from 1986 to 2005. If there are 4 
votes formally to grant review, Goldstein wrote, a courtesy 5th vote for a stay 
will always materialize.

But "Supreme Court Practice," the leading manual on Supreme Court procedure, is 
agnostic. Goldstein's observation "may well be true," its authors wrote.

"On the other hand," they added, "no statute or Supreme Court rule requires 
such a practice, no judicial opinion states that this is the current internal 
voting procedure of the court, votes on certiorari are generally kept 
confidential, and the experience of the 1980s reveals that such a practice can 
break down under pressure."

The courtesy 5th is, then, a convention rather than a rule, and one that 
requires an actual vote from an actual justice whose inclinations are 
necessarily to the contrary. And it seems to apply only after a formal vote to 
grant review.

In other settings, the gap persists. At least 4 inmates have been put to death 
since August over the objections of 4 justices.

"The court's willingness to allow executions to go forward with 4 justices 
voting for a stay seems coldblooded to me," said Elizabeth Unger Carlyle, a 
lawyer for Leon Taylor, 1 of the inmates.

At the confirmation hearing of Chief Justice John G. Roberts Jr. in 2005, Sen. 
Patrick J. Leahy, D-Vt., asked him to commit to providing a 5th vote.

"How do you feel if you were chief, if you had 4 other justices now voting for 
a stay of execution?" Leahy asked. "Do you feel, as chief, you should do the 
courtesy of the rule of 5 and kick in the 5th one?"

The nominee seemed receptive, if a little tentative.

"I don't want to commit to pursue a particular practice," he said. "But it 
obviously makes great sense."

In his new article, to be published in The Hofstra Law Review, Freedman 
considered the history of the court's practices in this area and made a 
recommendation. "I propose that in any capital case, regardless of its 
procedural posture, an execution will be stayed if 4 justices so desire," he 
wrote.

"The justices deserve time to think," he said. "A statement by 4 of them that 
they want that time should suffice to postpone a potentially fatal deadline."

Whatever it does, he wrote, "the court should address the problem in a reasoned 
and public way."

(source: Adam Liptak, New York Times)

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

Panic Attack, Bad Back: Theater Shooting Brings Jury Excuses



One prospective juror said she had a panic attack. Another claimed to have a 
bad back. A 3rd is in the military and worried he would be deployed during the 
trial of Colorado theater shooter James Holmes.

Even as an unprecedented 9,000 prospective jurors were summoned for 
questioning, both sides in the mass murder trial are worried about letting too 
many potential jurors go.

Prosecutors have asked the judge not to reveal why he releases jurors, for fear 
of handing out a road map for others trying to avoid serving.

And defense attorney Daniel King warned the judge who was listing off the 
reasons to let people go: "You have to consider the fact that people may not 
want to sit on this jury."

It won't be easy for those picked. Jury selection alone could last until June, 
and the trial could run into October. The court will pay jurors just $50 a day 
during that time, and employers only have to pay their workers for the first 3 
days of jury service.

It's unusual for a mass shooter even to see a trial. Many killers take their 
own lives; others end up with plea agreements. Prosecutors in the Holmes case 
rejected a plea offer from defense lawyers, pushing the case toward a grueling 
trial that will replay the massacre.

The chosen 24, including 12 alternates, won't be allowed to talk to anyone - 
even each other - about the case, which means bearing the stressful experience 
alone. Mental health counseling will be available, but only after jurors reach 
a verdict.

"The length that you have to be on this case, and then to tell someone they 
can't talk about it, that is a huge burden," said Thaddeus Hoffmeister, a 
University of Dayton law professor. "Who wants to live in that bubble?"

The jury's job will be not only to decide whether Holmes was insane when he 
killed 12 people and wounded 70 others during the July 2012 attack, but they 
also might be asked to decide whether he should be executed.

Jurors will be shown graphic photos from the theater, where police say Holmes 
slipped in through a back door wearing a gas mask and body armor, threw gas 
canisters into the audience and opened fire during a midnight showing of a new 
Batman movie on July 20, 2012. They will hear harrowing testimony from people 
who scrambled for exits or dived for cover, shielding loved ones amid gunshots, 
screams and the blaring movie soundtrack.

Research has shown jurors in death penalty cases have suffered nightmares, 
flashbacks and symptoms similar to post-traumatic stress disorder, said James 
Acker, a researcher on death penalty juries at the State University of New York 
in Albany.

"They'll be barred from sharing what they're going through and thus not be able 
to share their feelings, either," Acker said.

Federal prosecutors in Boston are confronting a similar dilemma as they try to 
find people to serve as jurors for the murder trial of accused Boston marathon 
bomber Dzhokhar Tsarnaev, another death penalty case.

Some of those potential jurors have also cited personal hardships that would 
make it difficult to serve on the trial, which is expected to last 3 to 4 
months. Several have said they run their own businesses and can't afford to 
miss work for that long. Others have said they are the primary caregivers for 
their children, have prepaid vacations scheduled or have business trips 
planned. One man told the judge he runs a delicatessen with his wife, who is 5 
1/2 months pregnant.

But the Holmes case is even more challenging, as evidenced by the far greater 
number of jurors called. The 9,000 jurors - more than have ever been summoned 
for a court case in American history, according to experts - represent nearly 1 
out of every 50 residents of suburban Arapahoe County.

So many notices went out that witnesses to the attack received them, as did 
relatives of staffers in the local district attorney's office. They were 
immediately dismissed. The number has already been whittled to 7,000 because 
many summonses were undeliverable.

Judge Carlos Samour last week dismissed 213 potential jurors who either had 
doctors' notes, couldn't speak English or weren't residents of Arapahoe County, 
where the trial is unfolding.

The potential juror excuses are treated with heavy scrutiny. Samour wouldn't 
dismiss a woman who said she was so sick she needed an ambulance; he just 
allowed her to come back another day.

The judge on Thursday dismissed the woman who complained of a panic attack 
after making her describe her condition under oath. Later that afternoon, 
another woman also cited panic attacks as a reason she couldn't serve. This 
time, Samour just asked her to come back another day.

Excuses vary, and they show the broad cross-section of those called: One 
potential juror is the sole caretaker of his severely disabled wife. Another 
worried his orthodontics business would suffer. Still another needed to find 
day care.

The financial strain will be difficult. Some businesses pay for more than the 
three days of service required by Colorado law, but many don't. That limits 
jury service to those who won't suffer serious financial hardship - retirees, 
government employees, those who work for large corporations - which can alter 
the panel, said Joseph Rice, managing partner of the Jury Research Institute, a 
California-based trial consulting firm.

"All of a sudden, you've taken a jury of your peers, which is supposed to be a 
random cross-section of the community, and now it has become dramatically 
skewed," he said.

(source: Associated Press)

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

Boston bombing jury excludes some Catholics



As the quest for a jury in the Boston Marathon bombing trial approaches its 4th 
week, some of the area's 2 million Roman Catholics are growing frustrated with 
criteria that effectively disqualify followers of church teachings.

Potential jurors in bombing suspect Dzhokhar Tsarnaev's trial must be able to 
impose the death penalty or a life sentence with no possibility of release. 
That standard eliminates Catholics who heed the catechism of the Catholic 
Church, which says a death sentence is not to be used when "non-lethal means 
are sufficient to defend and protect people's safety from the aggressor." Cases 
warranting the death penalty "are very rare, if not practically non-existent," 
according to the catechism, because government has other means to keep the 
public safe from convicts.

"It is both ironic and unfortunate that Catholics who understand and embrace 
this teaching will be systematically excluded from the trial," says the Rev. 
James Bretzke, professor of moral theology at Boston College. "It is 
frustrating."

Judge George O'Toole had hoped to hear opening arguments Monday, but they have 
been delayed because individual questioning of jurors, which began Jan. 15 
after questionnaires were filled out, is taking longer than anticipated. A new 
start date has not been scheduled.

O'Toole has denied 2 defense motions to move the trial out of Boston, but the 
protracted jury selection process is keeping the issue alive. On Thursday, 
Tsarnaev's lawyers filed a third motion for a change of venue, asking the court 
to give juror questionnaires "fresh evaluation."

The defense cited the attitudes of prospective jurors, saying of the 1,373 who 
filled out questionnaires, 68% already believe Tsarnaev is guilty and 69% have 
a connection or allegiance to people, places or events in the case.

Finding a jury in Boston is already proving to be a challenge.

1 prospective juror fought back tears as she recalled having met Martin 
Richards, an 8-year-old who was among the 3 people killed in the April 15, 
2013, twin bomb explosions, which also injured more than 260. Others described 
personal ties to injured victims or police, or expressed a belief that Tsarnaev 
is guilty. A Catholic theologian said he couldn't impose the death penalty.

With hurdles to overcome in jury selection, some local Catholics lament that 
the pool is likely to be purged of people trained in their faith to grapple 
with matters of justice and mercy.

Refusing on religious grounds to impose the death penalty "shouldn't be enough 
to disqualify them," said Michele Dillon, a University of New Hampshire 
sociologist and co-author of American Catholics in Transition. "We're supposed 
to have a jury of one's peers. And if one's peers are informed by this sort of 
religious ethos, then that surely deserves some kind of recognition."

Not all local Catholics have qualms about the way jurors are being chosen. The 
Rev. Michael McGarry, director of a socially progressive Catholic congregation 
called The Paulist Center in downtown Boston, is a longtime activist for 
abolition of capital punishment. Still, he isn't bothered by the fact that he, 
like others who would refuse to impose death, would be ineligible for the jury 
if summoned.

"They're doing the right thing by saying you shouldn't allow people who are not 
open to the death penalty at all," McGarry said. "Nor should you allow people 
who are eager for blood."

Greater Boston is 46% Catholic, according to Georgetown University's Center for 
Applied Research in the Apostolate, but religion isn't necessarily a strong 
shaper of local attitudes. Massachusetts is the fourth least religious state 
after nearby New Hampshire, Vermont and Maine, according to the Gallup Poll, 
which looks at worship attendance and how important people say religion is in 
their daily lives.

Yet when faced with extraordinary decisions, even less-observant Catholics turn 
to church teachings for guidance, according to Dillon. They're apt to do so if 
tapped for the Tsarnaev trial, she said.

"If they identify as Catholic, part and parcel of why they do that is because 
they believe these teachings have a lot of value," Dillon said. "They make up 
their own minds, but it gives them pause" to consider what the church teaches.

Nationwide, 62% of Catholics favor the death penalty for murderers, according 
to the General Social Survey's most recent data from 2012. That is a 
substantial decline from 30 years ago, when 82% of Catholics favored it.

In the interim, the Catholic Church ended its support for routine use of 
capital punishment via Pope John Paul II's 1995 encyclical, Evangelium Vitae.

Catholics aren't obligated to heed church teaching on the death penalty, 
Bretzke said, because the teaching is not considered infallible.

"I don't think it much matters from the defense side" whether a potential juror 
is Catholic, said Karen Fleming-Gill, a Walnut Creek, Calif.-based jury 
consultant who's worked on 60 capital cases. "There are plenty of Catholics who 
will impose the death penalty."

(source: USA Today)