[Deathpenalty] death penalty news----PENN., GA., MISS., MO.

[Rick Halperin]

Nov. 3



PENNSYLVANIA:

Attorney defended clients with vigor, success


The son of a Sykesville chicken farmer who became one of the nation's fiercest 
criminal defense attorneys, Gary Zimmerman is remembered as a man who loved the 
law but also his friends and family.

Gary B. Zimmerman of Shadyside died Wednesday, Oct. 28, 2015, of surgical 
complications at UPMC Presbyterian after a bout with lung-scarring pulmonary 
fibrosis. He was 75.

"When it came to defending his clients, he was like a pit bull with a bone. He 
stayed on the case until the end, but there was a side of Gary many people 
didn't see. He quietly worked with clients to turn their lives around, and many 
of them did," said Duquesne University law professor Jane Campbell Moriarty, 
Mr. Zimmerman's wife of 28 years.

Born to Wilson Blaine and Vaughn (Weber) Zimmerman on Aug. 14, 1940, Mr. 
Zimmerman left what was then Slippery Rock College to enlist in the Army. 
Honorably discharged as a sergeant, he returned from Germany to work as a 
private investigator. He graduated from Slippery Rock and then Duquesne 
University School of Law, attending at night, before joining the Allegheny 
County Public Defender's Office.

In 1973, he met Common Pleas President Judge Jeffrey A. Manning, and they 
remained friends for 42 years.

"It was the liberal public defender, Gary, versus the conservative prosecutor, 
me," said Manning, a former assistant district attorney. "They were ferocious 
battles. But the thing about Gary was that he would be a tenacious fighter in 
the courtroom and your best friend in the hallway."

One of their grittiest duels was the 1975 case of Robert Wideman, a Brushton 
man tied to the slaying of an Overbrook car dealer during a botched robbery. 
Mr. Zimmerman convinced jurors that Wideman never pulled the trigger, garnering 
a 2nd-degree murder sentence.

Moriarty said that Mr. Zimmerman defended nearly 100 accused murderers, and not 
one of them drew the death penalty. He never lost an appeal to the Pennsylvania 
Supreme Court.

Monroeville attorney Pat Thomassey also jousted with Mr. Zimmerman as a 
prosecutor, recalling best his litigation on behalf of Tarentum's Stanley Hoss, 
a convicted cop killer and kidnapper implicated in the 1973 death of Walter 
Peterson, the 1st black captain at Western Penitentiary in Pittsburgh.

"They were 3 lifers who trapped him in a room. Through the butcher glass, 
people could see them beat a man to death with wooden chairs. But Hoss didn't 
get the death penalty. He got 2nd-degree murder," Thomassey said.

"He did all that, but his daughters and his grandchildren were always his true 
joy. They meant everything to him, and those are the people he would want 
everyone to think about today," Moriarty said.

Preceded in death by his parents and sister Karen (Zimmerman) Felczak, Mr. 
Zimmerman is survived by his wife; daughters Lisa Krackow of Point Breeze, Amy 
Haldane of Seattle and Kat Zimmerman of Denver; grandchildren Lela and Aaron 
Krackow and Gibson Zimmerman; and sister, Deb Zediak.

A private memorial service is slated for late November, with McCabe Brothers 
Inc., Funeral Homes in Shadyside handling arrangements. Memorial donations may 
be made to the Simmons Center for Interstitial Lung Disease at the University 
of Pittsburgh or the Duquesne University School of Law's Call to Excellence 
Fund.

(source: triblive.com)






GEORGIA----new execution date

Former Dougherty D.A. speaks out on Johnson execution date


The former Dougherty County District Attorney says it's time for a killer who's 
been on death row for nearly 20 years to be executed.

The state set November 19th as the execution date for Ray Johnson.

In 1998, he was convicted of the brutal 1994 rape and murder of Angela 
Sizemore.

Former Dougherty County District Attorney, Ken Hodges, says when he took office 
in 1997 there were 8 pending death penalty cases and Johnson's was one of the 
most horrific.

"There was DNA evidence, there were eyewitnesses and there was a partial 
confession as to what occurred and so it's clear who committed this and it's 
time for justice to be had," said Ken Hodges, Former Dougherty County District 
Attorney.

In 2011, a day before Johnson was supposed to be executed he was granted a stay 
so new DNA testing could be done on evidence.

After years of hearings on those issues a judge in April denied Johnson's 
request for a new trial.

The Georgia Supreme Court upheld that ruling.

(source: WALB news)

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

Supreme Court to Decide if Georgia Went Too Far in Excluding Black Jurors


"We have an arsenal of smoking guns," a lawyer for a death row inmate told the 
Supreme Court on Monday.

The justices were considering a case on race discrimination in jury selection, 
and there seemed to be consensus that prosecutors in Georgia had crossed a 
constitutional line in 1987 in their efforts to exclude all blacks from a jury 
that would hear a capital case against a black man, Timothy T. Foster, who was 
accused of killing a white woman, Queen Madge White.

Prosecutors used peremptory challenges - ones that do not require giving a 
reason - to exclude every potential black juror.

In 1986, in Batson v. Kentucky, the Supreme Court made an exception to the 
centuries-old rule that peremptory challenges are completely discretionary. It 
ruled that race discrimination in jury selection was unconstitutional and 
required lawyers accused of it to provide a nondiscriminatory explanation.

Such challenges are rare, and most lawyers are capable of offering reasons 
unrelated to race. Many legal experts say the Batson ruling has turned out to 
be toothless and symbolic. But Monday's case, Foster v. Chatman, No. 14-8349, 
appeared poised to be an exception.

"Isn't this as clear a Batson violation as this court is likely to see?" 
Justice Elena Kagan asked.

The case certainly had unusually vivid evidence. In notes that did not surface 
until decades after the trial, the result of a public records request, 
prosecutors had marked the names of black prospective jurors with a B and 
highlighted those names in green.

They circled the word "black" where potential jurors had noted their race on 
questionnaires. They ranked the black prospective jurors in case ???it comes 
down to having to pick one of the black jurors," as the prosecution's 
investigator put it in a draft affidavit at the time.

In the end, prosecutors struck all 4 black potential jurors.

When challenged, Stephen Lanier, the lead prosecutor, denied that race had been 
a factor and offered other reasons for the strikes. The black prospective 
jurors were confused, incoherent, hostile, disrespectful or nervous, he said, 
and three did not make enough eye contact.

"All I have to do is have a race-neutral reason," Mr. Lanier said at the time, 
"and all of these reasons that I have given the court are racially neutral." 
The judge rejected the defense's objection.

The Supreme Court's more conservative members mostly discussed potential 
hurdles in the case. Justice Antonin Scalia, for instance, said the trial judge 
was in the best position to assess the prosecutors' intent. "It's sort of hard 
for us to do it on a cold record," he said.

Justice Kagan agreed but added that this was "a case where all the evidence of 
intentional discrimination was not before the judge at the time."

Justice Samuel A. Alito Jr. appeared troubled by some explanations offered by 
prosecutors that seemed to be at odds with the facts.

A 34-year-old black woman, for instance, was said to be too close in age to the 
defendant, who was 19. (The prosecution did not challenge 8 prospective white 
jurors age 35 or under.)

Beth A. Burton, a lawyer representing the State of Georgia, said prosecutors 
had noted the jurors' races and marshaled long lists of race-neutral 
explanations because the Batson decision had just been issued and they were 
unsure how to comply with it.

Justice Stephen G. Breyer asked whether Mr. Lanier or the state had ever said 
such a thing at the time or in the decades before the case arrived at the 
Supreme Court. Ms. Burton said no.

Justice Breyer underscored the concession. "So if that had been his real 
reason, isn't it a little surprising that he never thought of it, or didn't 
tell anybody, until you raise this argument in your main brief?" Justice Breyer 
asked.

Justice Anthony M. Kennedy asked how courts should assess the "laundry list of 
reasons for striking the black jurors" when "some of those are reasonable and 
some are implausible."

Stephen B. Bright, a lawyer for Mr. Foster, said courts should be wary of 
encouraging lawyers "to just give as many reasons as possible and hope that one 
will be acceptable."

Justice Breyer added that the sheer number of explanations offered for striking 
black potential jurors was suspicious. It reminded him, he said, of excuses his 
grandson might offer for not doing homework.

In the jury case, he said, "I think any reasonable person looking at this would 
say, no, his reason was a purpose to discriminate on the basis of race."

Mr. Foster was convicted by an all-white jury and sentenced to death. He has 
spent decades on death row and is seeking a new trial.

(source: New York Times)






MISSISSIPPI:

Federal court says death row inmate can make new appeal


A federal appeals court ruled last week that a Mississippi inmate can try to 
overturn his death sentence by arguing that he is mentally disabled.

A 3-judge panel of the 5th U.S. Circuit Court of Appeals found that Ricky Chase 
can file the petition with a federal district court, without saying how the 
court should rule.

Chase was convicted and sentenced to death in the Aug. 14, 1989, killing of 
70-year-old vegetable salesman Elmer Hart in Copiah County.

The appeals judges said Chase can go ahead because his claims rely on a 2002 
U.S. Supreme Court ruling made after his initial federal appeal.

The state had opposed Chase's efforts, arguing issues over his mental ability 
had already been litigated during the 1st appeal in 2003. At that time, Chase's 
lawyers had argued the original conviction should be overturned because the 
attorney who represented him at trial failed to raise his mental disability as 
a reason he should get a lighter sentence.

The 3-judge panel disagreed, saying the 2002 ruling in Atkins v. Virginia was 
unavailable when Chase 1st began his federal appeal.

"Atkins had not been decided when Chase's 1st federal habeas corpus petition 
was filed and decided in the district court," the panel wrote. It added that 
the mental disability issue "that Chase presented in his 1st federal habeas 
petition was not an Atkins claim."

The inmate already unsuccessfully sought relief from the death penalty based on 
Atkins before a state trial court judge and the state Supreme Court. Chase has 
argued that a pretrial mental examination showed that he was mentally 
incapacitated. Chase said he was examined by 2 doctors. But court regards show 
1 doctor did not find Chase was mentally handicapped.

Mississippi's death penalty is effectively suspended right now because of a 
separate legal action where Chase and 2 other death row inmates have sued. A 
judge agreed in August with their claims that Mississippi plans to use drugs 
that don't meet state law requiring an "ultra short-acting barbiturate" that 
will render a person unconscious almost immediately. The state is appealing the 
ruling, saying the U.S. Supreme Court approved the use of the drug midazolam as 
a sedative in Oklahoma.

Authorities said Hart's body was found on his bedroom floor beside his wife, 
who watched helplessly while gagged.

Hart apparently had come home as his wife was being robbed by Chase and another 
man at the couple's rural home, according to the court records.

His wife had been doused with an ammonia-like substance and tied up, court 
records showed.

(source: Associated Press)






MISSOURI----impending execution

Ernest Johnson cannot be legally executed


Tuesday evening, barring intervention from Gov. Jay Nixon or a court, Missouri 
will execute Ernest Johnson, a man with an IQ of 67. If allowed, Mr. Johnson's 
execution will violate the Supreme Court's ruling in 2002, Atkins v. Virginia, 
that the Constitution prohibits the execution of the intellectually disabled.

Johnson murdered three employees of a convenience store in Columbia in February 
1994. After his initial conviction in 1995, a jury sentenced him to death. The 
state Supreme Court subsequently ordered a new sentencing phase. That jury also 
decided on death. A third sentencing proceeding was held, with a new jury, 
after the Atkins decision, focusing on his mental capacity. That jury, too, 
decided on the death penalty.

But because of his mental condition, Johnson cannot be legally executed. 
Prosecutors consistently have dismissed the significance of his disability and 
advocated for the death penalty. "To decide it's more likely true than not that 
this guy is mentally retarded," the prosecutor argued to a jury in 2005, "is an 
insult, an insult to these victims."

The ethical duty of a prosecutor is to advance the ends of justice, not to rack 
up convictions or maximize sentencing outcomes. Prosecutors are bound by an 
ethical principle best summed up by a 1935 Supreme Court opinion: While the 
prosecutor "may strike hard blows, he is not at liberty to strike foul ones."

Use of incendiary arguments to advocate for a man's death - like those employed 
by the state throughout Johnson's sentencing proceeding - in the face of 
evidence that he is not even eligible for execution, is a subversion of the 
criminal-justice process.

As the court reasoned in Atkins, criminal defendants like Johnson are less 
culpable and more exposed to unjust outcomes because of their disability. In 
2014, the Supreme Court clarified that "established medical practice" and 
"scientific measurement" must determine whether a defendant has intellectual 
disability - not antiquated stereotypes or bright line IQ maximums.

At trial, testing by both the prosecution and defense revealed Johnson had an 
IQ of 67, which is well within the range of intellectual disability. Johnson 
was born with the developmental consequences of fetal alcohol syndrome. In a 
series of IQ tests that began at age 8 and spanned decades, he scored below the 
threshold for intellectual disability 6 times.

His scores on academic achievement tests consistently placed in him in the 
bottom 1st or 2nd percentile in subjects like math and reading. He learned to 
walk and talk much later than his siblings. His brother and sister recounted 
how when they were growing up, he lacked basic abilities like using a knife and 
fork.

So how does a man with such diminished cognitive functioning face execution? 
Unfortunately, the facts of Johnson???s disability were clouded in court by the 
prosecutor's inflammatory rhetoric. Because the prosecutor could not 
empirically contest the truth of Johnson's disability, he instead resorted to 
offensive and incorrect arguments about the intellectually disabled to convince 
the jury to sentence him to death.

The prosecutor first accused Johnson of artificially depressing his scores, but 
in doing so relied on the opinion of a person with no formal training in 
administering IQ testing and no training in making clinical observations. The 
prosecutor then argued to the jury that because Johnson watched television and 
played cards and basketball, he was not "a weak, little skinny, mentally 
retarded kid in prison" - hardly a clinical basis for an opinion on which 
Johnson's very eligibility for the death penalty depended.

After hearing this unreliable evidence and improper argument, the jury 
sentenced Johnson to death.

It is not too late to correct course in this case. Gov. Nixon should commute 
Johnson's sentence to life without parole. The governor could also appoint a 
Board of Inquiry to make an independent determination regarding the severity of 
Johnson's disability.

In any case, to allow this execution to go forward would be to sanction a gross 
injustice.

(source: Opinion; John N. Gallo served as an assistant United States Attorney 
in the Northern District of Illinois from 1989 to 1995----St. Louis 
Post-Dispatch)

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

Malden man will be facing death penalty


A Malden, Mo., man's preliminary hearing was postponed last week after the 
state filed the necessary paperwork declaring its intentions to seek the death 
penalty in his case.

Floyd Mantel Young Jr., 22, was supposed to appear Friday morning before 
Associate Circuit Judge Joe Satterfield for a preliminary hearing on the Class 
A felony of 1st-degree murder or in the alternative the Class A felony of 
2nd-degree murder, the Class B felony of attempted 1st-degree robbery, 2 
unclassified felonies of armed criminal action and the Class D felony of 
unlawful use of a weapon.

Young is accused of causing the death of Dustin Greer of Bloomfield, Mo., by 
shooting him.

The 28-year-old died July 21 at a Cape Girardeau, Mo., hospital after he was 
taken off life support.

Greer died of injuries he suffered when he was shot in the head 3 days earlier 
while seated in his SUV.

On Tuesday, Dunklin County Assistant Prosecuting Attorney Jonce Chidister filed 
a notice of statutory aggravating circumstances with the court.

The filing reportedly puts the defense on notice of what aggravating 
circumstances the state intends to rely on at trial.

The aggravating circumstances Chidister cited are:

-- The murder in the 1st degree was committed while Young was engaged in the 
perpetration of the felony of robbery;

-- The murder in the 1st degree was committed while Young was engaged in the 
perpetration or was aiding or encouraging another person to perpetrate or 
attempt to perpetrate a felony; and

-- The murder in the 1st degree was committed for the purpose of receiving 
money or any other thing of monetary value from the victim.

The charges against Young stem from when Malden police officers began an 
assault investigation at about 3:20 a.m. July 18, according to Missouri State 
Highway Patrol Sgt. Scott Stoelting's probable-cause statement.

"When officers arrived at the rear of 405 N. Edward St., they observed a male, 
later identified as Dustin Greer, sitting in the driver' seat of a white 
Chevrolet Tahoe," Stoelting said. "Greer had an obvious gunshot wound to the 
front, left side of his head."

Stoelting said the officers also noticed what appeared to be a bullet hole in 
the front, left fender of the SUV.

As Greer was taken to the hospital for treatment, Malden and highway patrol 
officers reportedly processed the scene and interviewed witnesses.

Stoelting said a witness identified Young as the alleged shooter.

"The witness told investigators he saw Young point the gun inside the vehicle, 
and as the vehicle accelerated, he heard the gun go off," Stoelting said. 
"Prior to this shooting incident, the same witness observed Young with a 
pistol."

During a follow-up interview, Stoelting said, the witness further told officers 
he was inside the SUV when Greer was shot.

"This witness said ...Floyd pointed a gun inside and told Greer: 'Give me your 
-- -- money,'" Stoelting said. "This witness said Greer was holding $20 in his 
right hand and had his left hand on the steering wheel."

Greer, according to the witness' statement, grabbed the gun Young was holding, 
and "they began struggling over the gun."

"The witness said the gun went off a couple of times and (Greer) then began 
driving away."

Stoelting said the witness reported hearing at least 2 or 3 more shots as the 
SUV "was rolling toward" a carport, which eventually was struck.

Stoelting said investigators found 4 .380-caliber shell casings during their 
examination of the crime scene.

"One casing was found in the vacant lot, where Floyd Young later puts himself 
while drinking," Stoelting said. "Another shell casing was found on the edge of 
East Francis Street."

2 other casings were found near what Stoelting described as acceleration marks 
of Greer's SUV in the alley.

"The 2 casings found in the alley were located about 6 feet from where the 
acceleration marks were located in the gravel," said Stoelting, who was able to 
follow the acceleration marks into the grass yard where Greer's SUV came to a 
stop.

Stoelting said the SUV also was examined and a bullet hole was found in the 
front, left fender.

"The hole was at an angle as if the bullet struck the vehicle as it was driving 
away from the location where the shooter was standing," Stoelting said.

Greer's wound, according to Stoelting, was to the upper left side of his head.

"It appeared the projectile was fired at a downward angle because officers 
observed what they thought was the bullet in his right jaw area," Stoelting 
said. "The suspect shooter in this case is identified as being 6 (feet) 5 
(inches) and weighing approximately 160 pounds."

Stoelting said no shell casings or bullet holes were found inside Greer's SUV.

After a warrant for his arrest was issued, Young turned himself in at the 
Malden Police Department.

During a July 19th interview, Stoelting said, Young told him and Malden Police 
Chief Jarrett Bullock he was at a vacant lot across from where the shooting 
occurred at about 3 a.m.

"Young said he was drinking and 'just hanging out,'" Stoelting said. "During 
this time, Young tells us a subject ... left the lot, walking east toward North 
Edwards Street.

"A short time later, a white SUV pulls into the alley near where he is 
standing. Young tells us (the subject) yells for him, along with 2 other black 
males to come to the truck."

According to his statement, Young told officers the SUV's driver produced a gun 
as he was approaching the vehicle.

"The other 2 black males leave, and Young says he reached inside the vehicle 
and grabs for the gun," Stoelting said. "Young tells us as he's trying to get 
the gun away, it goes off once or twice."

Stoelting said he confronted Young about him not being truthful.

"Young then tells us the story that he gets control of the gun, and the white 
male (Greer) grabs the gun, and it goes off," Stoelting said. "Young claims he 
dropped the gun and ran off."

Stoelting said Young again was confronted with "this lie."

"After a few more minutes of talking, Young agrees to take us to the gun," 
Stoelting said.

A .380-caliber Kel-Tec, which Young indicated was the one used in the alleged 
shooting, was turned over to officers, said Stoelting, who indicated the gun 
had been reported stolen from a Malden residence on May 26.

Young, who continues to be held without bond in the Dunklin County Justice 
Center, is to appear at 1 p.m. Nov. 23 before Satterfield for a hearing in his 
case.

A preliminary hearing date may be set at that time or motions may be heard.

(source: The Daily Statesman)