[Deathpenalty] death penalty news----TEXAS, ARK., IND., KAN.

[Rick Halperin]

May 31



TEXAS:

Texas prison system isn't too keen on openness



The Texas prison system is, by design, a closed shop. Our official contact with 
that inner world comes through the Texas Department of Criminal Justice's 
public information officers.

For many years, Michelle Lyons was the department's top spokeswoman. She was 
the face in front of the prison walls after inmate executions arguing with 
European reporters about the fairness of the Texas death penalty.

Hers was the voice that talked to us about prison escapes, bad behavior by 
prison officials and also the good times, such as they are, within the state 
prison system.

In 2012, Lyons was demoted from director of public information. She was shunted 
to a Siberia-like TDCJ outpost where she was told to handle research requests 
from Texas students. She was no longer allowed to talk to reporters.

Her pay was cut. Eventually, to avoid firing, she resigned.

As one of the youngest members of the TDCJ senior staff (and the rare woman), 
she sued the department, alleging employment discrimination.

I bring this up for a couple of reasons. Usually, as with Vegas, what happens 
in the prison system stays in the prison system. Not this time.

Another reason: I recently told the story of how the Texas Department of Public 
Safety's public information department isn't always forthcoming. Lyons says she 
got crosswise with TDCJ administrators because they decided she was too open 
with the news media, and, by extension, the general public. They wanted to 
clamp down on public information, too, she says.

Lyons says there are similarities between DPS' and TDCJ's public information 
strategies.

She saw it all

As the prison system's spokeswoman, Lyons was eyewitness to almost 300 
executions. She was a staunch defender of the prison system's programs and 
people. A Texas Monthly profile last year called her "a disarmingly friendly, 
upbeat spokesperson for the biggest prison system in the nation."

Friendly and upbeat. Those aren't words usually associated with a prison 
system. But her positive attitude was harder to hold on to once the walls came 
tumbling down on her.

The charge against her: She kept incorrect payroll time sheets of her work 
hours. She was told when she was hired that she was to mark 8 hours for each 
day of the workweek on her time sheet.

As a spokeswoman, she worked odd hours, nights and weekends, often from home. 
That 8-hour notation was supposed to cover her 40-hour week. That's standard. 
That's how I've marked time sheets my entire career.

Her bosses used this flimsiness to take her out. "Suddenly, I was told I had 
been keeping time wrong for the decade I worked there," she says. "If I wasn't 
physically in the office for 8 hours, I had to take vacation or sick time.

"As an example, I had to go back to a day when I was only in the office for 7 
hours and 45 minutes and take 15 minutes of vacation."

That's a violation of labor laws.

Her uncomfortable situation turned into a crisis after a correctional officer 
who published a now-defunct prison news blog wrote her and asked what was 
happening. She answered that there were labor law violations and copied her 
answer to others, including a state senator.

Within hours, her email account was frozen and she was charged with violating 
orders. She had talked to a reporter when she wasn't supposed to, they said. 
Months earlier, they had told her the blogger was not a reporter. Suddenly, 
though, the fellow TDCJ employee was considered one. She had violated policy.

After quitting, she filed for unemployment and won her claim when she proved 
TDCJ had created a hostile work environment.

Court case

She sued in federal court, but a judge tossed the case. Then an appeals judge 
reinstated it. He ruled that there was important evidence that could convince a 
jury she was in the right. Her predecessor had testified that he taught her how 
to fill out her timecard the way she did. She wasn't breaking the rules.

Late last year, the state agreed to a financial settlement to end the case.

When news of her settlement was reported on Scott Henson's Grits for Breakfast 
criminal justice blog in February, Lyons denounced her successor, prisons 
spokesman Jason Clark.

Clark, she maintains, kept track of his hours the same way she did. But when he 
answered questions in the investigation, he didn't support her version. She 
lost. He won.

"My replacement, Jason Clark, should be investigated for perjury," she told the 
blog, a statement she stands behind. "He lied under oath about his own 
timekeeping practices and then was rewarded with a promotion. I'm sure it will 
never happen, but I think any journalist should be wary of the information he 
dispenses to them."

I write to Clark. His underling, Robert Hurst, replies: "Here is TDCJ's 
statement. While TDCJ remains confident of the decisions it made with respect 
to the employment of Michelle Lyons, the prospect of ongoing litigation and 
associated costs were determining factors in settling the case."

When I ask if Clark is available, Hurst answers, "Jason was dealing with other 
issues today."

(source: Dave Lieber, Dallas Morning News)








ARKANSAS:

Decay claims jury selection flawed, seeks new trial



Attorneys for condemned double-murderer Gregory Decay are taking 1 more crack 
at getting his convictions overturned by the Arkansas Supreme Court, arguing 
jury selection in the death penalty case was flawed.

Decay, 29, gunned down Kevin Barkley Jones and Kendall Rachell Rice in their 
Fayetteville apartment April 3, 2007. Both were 24. Decay was convicted and 
given 2 death sentences in April 2008. Decay must exhaust all state court 
remedies before beginning the federal appeals process.

Death penalty convictions in Arkansas automatically are appealed to the 
Arkansas Supreme Court for mandatory review. The court upheld the capital 
convictions in November 2009. A subsequent appeal that claimed ineffective 
counsel was rejected.

The high court has agreed to at least listen to the latest argument. Decay's 
attorneys at the Federal Public Defender's Office in Little Rock this week 
filed motions that ask the court to recall its mandate in the case, vacate the 
convictions and remand the case to settle the record or, if the record in the 
case cannot be reconstructed, a new trial.

They contend the record was not sufficient for the court to fully review the 
case. They argue the high court did not receive a full record of the 
proceedings on appeal, specifically information about juror questionnaires and 
the striking of some potential jurors before trial.

The motion, by Assistant Federal Public Defender Scott Braden, contends 
critical parts of the jury selection were done off the record, outside the 
courtroom and out of Decay's presence.

"30 jurors were excluded before trial began with no record of these exclusions 
or strikes. At least 1 of the jurors stricken by the prosecution prior to trial 
was African American," according to the motion, "Mr. Decay, a black man charged 
with killing 2 white victims, was tried, convicted and sentenced to death by an 
all-white jury."

The other African American in the jury pool was never called during jury 
selection process.

The motion says extensive questionnaires sent to potential jurors before trial 
were destroyed, preventing them from being made part of the appeal record, and 
there was no record from the lower court about how they were used in the jury 
selection process.

"What this court did not know, because the trial court abused its discretion in 
not making the necessary record, was how this 'lengthy questionnaire' was 
created," according to the motion. "On April 17, 2008, thirty jurors were 
peremptorily stricken before trial based solely on this questionnaire and at 
least 1 African American juror was excluded in this process. Conducting or 
allowing this off-the-record proceeding was an abuse of the trial court's 
discretion in jury selection."

The abuse of discretion directly prevented the Supreme Court's mandatory 
review, causing a breakdown in the appellate procedure and deprived Decay of 
his fundamental constitutional rights, according to the motion.

Lawyers from the Arkansas Attorney General's Office have filed a response 
saying there are no grounds to recall the mandate because Decay did not ask for 
the jury selection process to be made a part of the appeal record and his trial 
attorneys agreed to the jury selection format.

"There is no affidavit indicating that these materials were not available in 
defense counsel's files for inclusion on direct review via a motion to settle 
the record or to supplement the record," according to the response. 
"Accordingly, the appellant does not demonstrate that the record was incomplete 
or that the trial court improperly destroyed the juror's questionnaires."

The response, by Assistant Attorney General Karen Wallace, also contends Decay 
has not demonstrated how the court's review of the material would have changed 
the result of his appeal.

Decay walked into the apartment on Sycamore Street and shot Jones in the face 
with a .40-caliber pistol from less than 2 feet away. Then he turned and shot 
Rice in the face. During an interview with police, Decay said he killed Jones 
and Rice because he believed they had broken into his apartment and stolen 
marijuana and a gun.

Jesse Westeen, 28, was convicted of being an accomplice. He pleaded guilty to 
driving Decay to the apartment. He was sentenced to 50 years.

Decay was the 1st person to be given a death sentence in Washington County 
since 1981. A convict from Washington County hasn't been executed since 1920. 
Several others were sentenced to death in the interim, but their sentences were 
either commuted to life in prison when the U.S. Supreme Court declared the 
death penalty unconstitutional in 1972 or their sentences were overturned on 
appeal. The death penalty was reinstated in 1976.

Benton County last had a murderer executed in August 1996 when Frankie Parker 
was put to death for killing his former in-laws and holding his ex-wife hostage 
in 1984 in Rogers.

Death row

Benton County has 3 men on Arkansas' death row. Zachary Holly, 30, was 
sentenced to death earlier this week for the murder, kidnapping and rape of 
6-year-old Jersey Bridgeman. Don Davis was sentenced to die in 1992 for the 
execution-style killing of Jane Daniel of Rogers. Brandon Lacy was sentenced to 
die in 2009 for the murder of Randy Walker. Circuit Judge Robin Green ruled 
that Lacy is entitled to another sentencing hearing, which is on appeal. 
Washington County has 2 men on death row: Decay and Zachariah Marcyniuk. Both 
men were sentenced to death in 2008. Marcyniuk, 36, stabbed University of 
Arkansas student Katie Wood to death after breaking into her apartment and 
laying in wait for her.

(source: nwaonline.com)






INDIANA:

Paula Cooper could not escape the burden of judgment



Those who had the least reason to forgive Paula Cooper eventually did. And then 
the law found a way to give her a 2nd chance, too.

2 million petitioners, plus Pope John Paul II, had asked Indiana to spare her 
life. But Indiana seemed as committed to her death in the electric chair as she 
had been in killing an elderly Gary teacher in 1986.

The Supreme Court soon ruled that 16 was too young to execute anyone in 
America; so Paula Cooper was spared. She would be the last American that young 
to be condemned.

But Cooper could not spare herself. She put a gun to her head and killed 
herself this week in Indianapolis.

In the end, it was Cooper who could not endure the burden of her own life. She 
had been freed from prison 2 years ago. The last 700 days were her only free 
sunrises for the past 30 years.

Cooper's sister, Rhonda Labroi, told reporters 2 years ago that she had high 
hopes for her sister who earned a bachelor's degree, became a tutor and 
seemingly matured in prison.

"She's a very different person," Labroi told Indianapolis reporters. "She is a 
lot more educated and older and wiser now. I think things will be different. 
(She) has paid her price. There are 2nd chances. It seems like God has given 
her another chance. I think if people give her a second chance, she'll do 
fine."

Because many states - Indiana being one of them - execute killers with 
diminishing regularity in the 21st century, we are tempted to exaggerate our 
temperance. Those who remember the heinous brutality of some crimes might think 
the killer has escaped punishment by escaping execution.

Though rates have fallen significantly in the last 20 years, suicide remains 
among the predominant causes of death in both local jails and state prisons. 
Young inmates kill themselves most frequently. Depression follows inmates to 
freedom.

There is one obvious pattern to the suicides. Killers who murdered family 
members in a fit of outraged emotion show up more frequently in the suicide 
roles.

Killers who enter prison as mentally deranged do not accrue more stability 
behind bars. Prison does not fix what is wrong. What brought killers to prison 
is less an isolated event in their lives than a reflection of who they are and 
how they cope.

Within the last 5 years, at least 40 convicted American killers have killed 
themselves either in prison or shortly after having been freed.

In 2014, Purdue student Cody Cousins was sentenced to 64 years after shooting 
and stabbing to death a classmate "because I wanted to." He killed himself with 
a razor at the Michigan City prison in October.

In 1981, King Edward Bell shot to death his 4 young children, then killed his 
estranged wife and her mother. The Indianapolis man pleaded guilty but mentally 
ill and committed suicide in prison in 1987.

John R. Wall Jr., 22, of Logansport murdered his father and 4 other relatives 
in 1979. He also attempted to shoot his mother. Wall was sentenced to 150 years 
but appealed. His conviction was overturned by the Indiana Supreme Court 
because police had continued to question Wall after he asked for an attorney. 
He committed suicide in 1992 at Logansport State Hospital.

Every state, every maximum-security lockup has housed killers who take their 
own lives in prison or shortly after being freed.

Cooper was 15 when she murdered a 78-year-old Gary Bible studies teacher.

She admitted stabbing Ruth Pelke 33 times with a 12-inch butcher knife in a 
robbery that netted $10 and an old car. Cooper's 3 teen female accomplices all 
got lighter sentences and were freed from prison years ago.

It was, even by comparison to other human abominations, a vicious and cruel 
crime. The community was outraged. Then prosecutor Jack Crawford, who now 
opposes the death penalty, said at her release from Rockville State Prison that 
if any teen had ever deserved execution under rules then in effect, it was 
Cooper.

She pleaded guilty and never recanted.

But Cooper eventually worked at becoming a different person. In a 2004 
newspaper interview, she expressed remorse and hope. She had not reflected 
either in earlier years.

"Everybody has a responsibility to do right or wrong, and if you do wrong, you 
should be punished," she said. "Rehabilitation comes from you. If you're not 
ready to be rehabilitated, you won't be."

Her words linger.

(source: Commentary, David Rutter; Chicago Tribune)








KANSAS:

In Flack capital murder case, court documents sealed outstrip documents open to 
public----Ottawa newspaper seeks open records, reopening earlier sealed records



The tally of court documents that are sealed from public view in a quadruple 
murder case in Franklin County District Court outnumber the documents open to 
the public.

As of April 8, 60 court documents had been sealed, a court spokesman was quoted 
as saying at that time. On Friday, a total of 49 were public, according to an 
online court site for the Flack case.

Maxwell Kautsch, a Lawrence attorney representing the Ottawa Herald newspaper, 
is challenging the sealing of the court records.

Kyle Trevor Flack, 29, was bound over March 12, 2014, on charges of capital 
murder in the slayings of Kaylie Smith Bailey, 21, and her daughter, Lana-Leigh 
Bailey, 18 months; the premeditated 1st-degree murders of Andrew Adam Stout, 
30, and Steven White, 31; and criminal possession of a firearm by a felon.

On April 8, John Steelman, court administrator for the 4th Judicial District, 
was quoted as saying 60 court documents had been sealed.

The documents were closed to the public by District Court Judges Thomas Sachse 
and Eric Godderz. Sachse retired in 2014, then Godderz took over the case. As 
of April 8, Godderz had sealed 27 records and before that, Sachse had sealed 33 
records. On Friday, it couldn't be determined how many court documents have 
been sealed since April 8.

The 4th Judicial District encompasses the counties of Franklin, Osage, Anderson 
and Coffey.

Saying the Franklin County District Court had failed to justify sealing court 
records in a quadruple murder case, the Ottawa Herald newspaper filed a motion 
on May 19 seeking a court order:

--To block the sealing of more records.

--To open records earlier sealed.

--To hear future requests to seal documents in open court preceded by a notice 
to the Ottawa Herald so that it might be heard on the request.

"Continuing the seal of the records risks breeding suspicion, distrust and 
cynicism," Kautsch wrote in the court filing, and he will argue it in Franklin 
County District Court on June 9.

The Ottawa Herald "submits that the only way to truly protect the integrity of 
the proceedings is to return to the presumption of openness mandated by law."

The Kahler case

In an interview with a Capital-Journal reporter this week, Kautsch noted that 
during the 2011 capital murder case of James Kraig Kahler in neighboring Osage 
county, court records weren't sealed.

Kahler, of Meriden and earlier of Columbia, Mo., was sentenced to death for the 
killings of his estranged wife, their daughters, 18 and 16, and his wife's 
grandmother, 89. The 4 victims were shot on Nov. 28, 2009.

Kahler, now 52, was sentenced on Oct. 11, 2011, in the Osage County Courthouse 
in Lyndon. He also was sentenced to 31 to 34 months for a conviction of 
aggravated burglary for breaking into the grandmother's home in Burlingame.

The fact the Kahler trial was conducted in a neighboring jurisdiction without 
sealing court records shows "you don't need to seal any records," Kautsch said.

The Kahler case "is an extremely parallel situation," Kautsch said.

Kautsch: Rulings support openness

In Kautsch's filing in the Flack case, he pointed to Kansas Supreme Court 
rulings that support open court proceedings and open court records.

"Beginning with Kansas City Star v. Fossey (a 1981 case), the Kansas Supreme 
Court has long recognized 'a strong presumption in favor of open, judicial 
proceedings and free access to records in a criminal case,'" Kautsch wrote.

A trial judge can close a preliminary hearing, bail hearing or any other 
pretrial hearing and seal a record only if dissemination of information from 
the proceeding and its record would "create a clear and present danger to the 
fairness of the trial" and the prejudicial effect of such information on the 
fairness of the trial can't be avoided by any "reasonable alternative means," 
Kautsch quoted Fossey as saying.

Kansas Supreme Court decisions in Fossey and other cases "and elsewhere reflect 
a widely recognized public right to know about judicial matters, including a 
common law right of access to court records," Kautsch wrote.

"High-profile cases on both a national and state level have demonstrated that 
it is possible to impanel an unbiased jury even in the light of pretrial 
publicity well beyond the scope of publicity in this case," Kautsch wrote.

"The Kansas Supreme Court has been extremely consistent in finding that 
pre-trial publicity did not prevent fair trials," Kautsch wrote.

The Carr case

In the Carr brothers case, the Kansas Supreme Court found that political 
billboards identified the alleged killer, and that was insufficient to rise to 
the level to necessitate a change of venue due to publicity, Kautsch said.

Brothers Jonathan and Reginald Carr were charged and convicted in the killings 
of 4 people in December 2000 in Wichita.

In July 2014, the Kansas Supreme Court overturned death penalty sentences for 
the Carrs based on other factors.

"Fears that pretrial publicity (in the Flack case) would taint the jury pool 
are just unfounded," Kautsch said.

The Franklin County District Court must consider alternatives to sealing court 
records, Kautsch said, noting the Fossey and other Kansas Supreme Court 
rulings.

Early in the Flack case, a prosecutor filed a motion on July 1, 2013, seeking 
to seal all pleadings in the case.

Sachse, the judge at that time, ruled that rather than issuing a blanket order 
to seal all filed documents, he would rule on an individual basis whether to 
seal a document.

Flack's trial is scheduled to start on Sept. 21, 2015.

(source: Topeka Capital-Journal)