[Deathpenalty] death penalty news----CONN., PENN., DEL., VA., FLA.

[Rick Halperin]

Sept. 15



CONNECTICUT:

Steiker study influential in Connecticut's decision to abolish death penalty


A study on capital punishment co-authored by Harvard Law School Professor Carol 
Steiker '86 and her brother Jordan Steiker '88 a professor at the University of 
Texas School of Law, was influential in Connecticut's recent decision to 
abolish the death penalty in that state.

In August, the Connecticut Supreme Court ruled that executing inmates on the 
state's death row would violate the constitution of Connecticut, effectively 
striking down the death penalty. This decision came 3 years after Connecticut 
abolished capital punishment, but left death sentences intact for inmates 
already on death row.

In its decision, the court relied heavily on a report commissioned by The 
American Law Institute, the nation's most influential non-partisan law reform 
organization. The 2009 study, "Report to the ALI Concerning Capital 
Punishment," completed by Carol Steiker and Jordan Steiker, examined the 
effectiveness of the Model Penal Code's death penalty provisions, which were 
enacted by the ALI in 1962 and were designed to make the administration of the 
death penalty less arbitrary.

"It is gratifying to have our ALI report read by jurists and cited in this 
pathbreaking decision," said Carol Steiker. "This kind of impact is exactly why 
Jordan and I took on the project at the ALI's request."

The Steikers' study found that there are too many insuperable obstacles, both 
structural and institutional, to administering the death penalty in a 
non-arbitrary way, and recommended against a new death penalty reform project 
on the grounds of its likely futility. The report led to The American Law 
Institute's vote to withdraw the capital punishment provisions in the Model 
Penal Code.

In support of the decision to strike down the death penalty, the Connecticut 
Supreme Court opinion cited declining death penalty use across most 
jurisdictions, as found in the 2009 study. The total number of executions 
carried out nationally has fallen by more than 60 % from the post-Furman peak 
of 1999, dropping from 98 in 1999 to 39 in 2013, and then falling again to 35 - 
a 20 year low - in 2014. Of the 35 executions carried out in 2014, 
approximately 90 % occurred in just 4 states: Texas, Missouri, Florida, and 
Oklahoma.

The court's opinion also cited the conclusions reached by the ALI study to the 
effect that "the preconditions for an adequately administered regime of capital 
punishment do not currently exist and cannot reasonably be expected to be 
achieved" (emphasis added by the Connecticut Supreme Court). Read the full 
opinion online.

The Steikers have been frequent collaborators in scholarship, litigation, and 
law reform. They are currently co-writing a book about the past half-century's 
experiment with the constitutional regulation of capital punishment in America.

Carol Steiker currently directs, with Professor of Practice Alex Whiting, the 
new Criminal Justice Program of Study, Research, and Advocacy, a new initiative 
at Harvard Law School that seeks to analyze problems within the U.S. criminal 
justice system and look for solutions. The program was made possible by a 
recent gift that allowed the school to expand the mission of its existing 
Criminal Justice Program of Study beyond advising students to include research 
and policy advising in partnership with criminal justice agencies and NGOs.

In an interview with the Harvard Gazette in February, Steiker, who has done 
extensive research on capital cases, said her interest in criminal justice was 
sparked during law school. "It began to appear to me that criminal justice was 
a great engine of American inequality," she said.

As a 2014-2015 Rita E. Hauser Fellow at the Radcliffe Institute for Advanced 
Study at Harvard University, Steiker focused her research on providing a better 
understanding of the roles played by the Constitution and the Supreme Court in 
the past, present, and future of the death penalty in America. In May, Steiker 
gave a talk on Capital Punishment and American Law.

(source: Harvard Law Today)






PENNSYLVANIA:

Pa. mom to pursue mental health defense in death of child


A mother accused of killing her 20-month-old son by pushing him off a bridge 
into an eastern Pennsylvania river before jumping in herself will pursue an 
insanity or mental health defense at trial, according to court documents.

Johnesha Perry, 20, is charged with criminal homicide and child endangerment in 
the May death of Zymeir Perry. Lehigh County prosecutors say they plan to seek 
the death penalty if she is convicted of first-degree murder.

Defense attorneys said in a recent motion that their client has a long history 
of mental illness, The (Allentown) Morning Call reported. Public defender 
Kimberly Makoul said Perry has had "severe and substantial mental infirmities" 
- including paranoid schizophrenia and delusional disorder - since she was a 
teenager.

Authorities say Perry gave Zymeir a kiss before pushing him off the Hamilton 
Street Bridge in Allentown into the Lehigh River 50 feet below on May 3. She 
then jumped but managed to reach shore with a broken arm. The child was pulled 
out of the water about 700 yards downstream but died 6 days later.

Makoul wrote that lawyers are still investigating Perry's mental condition and 
plan to call a psychologist as an expert witness.

(source: WPVI news)

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

Saylor Offers a Lonely Voice in Death-Penalty Appeals


In February of this year, just weeks after his inauguration as governor of 
Pennsylvania, Tom Wolf issued a moratorium on the death penalty, temporarily 
halting any executions in the state until he receives the report of the 
Pennsylvania Task Force and Advisory Committee on Capital Punishment. Although 
Pennsylvania has the 5th-largest death row in the nation - with 183 condemned 
prisoners - it has carried out only 3 death sentences in the 4 decades since 
the U.S. Supreme Court allowed executions to resume. And it has not executed 
anyone in more than 16 years, since Gary Heidnik was put to death in July 1999.

Despite the dearth of actual executions, the large death-row population keeps 
the Pennsylvania Supreme Court busy, as the court has exclusive appellate 
jurisdiction in capital cases. Recently, the court has averaged almost 2 dozen 
substantive decisions per year in direct appeals from judgments imposing death 
sentences and collateral, post-conviction appeals in capital cases.

In the vast majority of those cases, the court affirms the death sentence or 
the lower court decision rejecting a prisoner's claims in a collateral 
proceeding. And in an exceptionally high number of those cases, a single 
justice - current Chief Justice Thomas G. Saylor - dissents from the court's 
decision or writes a concurring opinion parting ways with the rest of his 
colleagues.

While Saylor frequently dissents from decisions (and equally frequently concurs 
in judgments but declines to join majority opinions) upholding death sentences, 
his separate opinions offer little reason to believe that he harbors any 
outright opposition to the death penalty itself. Rather, although addressing 
many different aspects of the death-penalty process and the specific 
circumstances of individual cases, Saylor's opinions often focus on concerns 
about the effective representation - or, more accurately, the lack thereof - of 
capital defendants and the serious consequences that result from such 
inadequate representation.

For example, in a dissent from an Aug. 17 decision affirming the denial of 
post-conviction relief for a death-row inmate in Commonwealth v. Treiber, No. 
656 CAP, Saylor found the trial counsel's decision not to take steps to 
counteract key prosecution expert evidence egregious enough to overcome any 
presumption of effective assistance of counsel and sufficiently prejudicial to 
warrant a new trial. He was the lone dissenter in the case.

In another typical case decided late last year, Commonwealth v. Rivera, 108 
A.3d 779, Saylor dissented from the affirmance of the dismissal of a Post 
Conviction Relief Act petition without a hearing, arguing that the death-row 
inmate's "petition should be addressed on a developed evidentiary record, 
consistent with applicable protocols and fundamental fairness."

In his dissent, Saylor incorporated his comments from many other cases, in 
which he bemoaned the "pattern of gross underrepresentation we have seen in the 
Pennsylvania death-penalty cases" and "the inconsistent fashion in which some 
post-conviction courts afford evidentiary hearing and others decide cases 
summarily." Again, he dissented alone.

These 2 recent examples are emblematic of Saylor's concerns, expressed 
frequently in dissents and equally often in concurrences that argue for a 
different (and more searching) approach to the court's appellate review in 
capital cases. His focus invariably remains on the constitutional requirement 
of effective assistance of counsel, as well as the importance of full and fair 
procedures for ensuring that claims of ineffective assistance (or other flaws 
in the trial process) are considered by trial courts and the state Supreme 
Court before a death sentence is affirmed and, in post-conviction proceedings, 
reaffirmed.

A cursory look at the numbers confirms that Saylor is a frequent - and usually 
solo - voice bemoaning the court's willingness to affirm death sentences in 
what he sees as problematic cases. In the past 5 years, the court has issued a 
substantive ruling in favor of the state in a capital case 91 times and has 
sided with the capital defendant only 18 times (usually vacating the dismissal 
of a PCRA petition and remanding for further proceedings). Of the 91 cases in 
which the state prevailed, Saylor wrote a separate opinion an astounding 62 
times - about 2/3 of the cases.

Saylor's separate opinions were roughly evenly divided between dissents (32) 
and concurrences (30). While he agreed with the court's ultimate ruling in the 
latter cases, he often disagreed significantly with the court's reasoning. In 
50 of those 62 cases, he walked his separate path alone, with no other justice 
joining his dissent or concurrence. In fact, in 3 separate years - 2012, 2013 
and thus far in 2015 - every one of Saylor's 28 total concurring and dissenting 
opinions in capital cases was a solo effort.

Notably, during this period, no other justice came anywhere close to matching 
his record of differing with the court in capital cases. For example, in only 3 
of the 91 rulings in favor of the state did Saylor join the majority opinion in 
full while another justice even partially dissented. In other words, while 
Saylor wrote a solitary dissent or concurrence more than 1/2 the time the court 
ruled in favor of the state in a death-penalty appeal, in barely 3 % of the 
capital cases in which the state prevailed did any other justice concur or 
dissent without Saylor's support.

For the most part, these trends have held true throughout the past 5 years, 
with Saylor writing separately in capital cases at a clip of between 63 and 72 
% each year. His dissent rate in capital cases, however, has ranged from a low 
of 16 % in 2013 to a high of 57 % so far in 2015 (and 50 % in 2011, the highest 
rate in any full calendar year).

These numbers are notable not only for how far Saylor stands out from his 
colleagues, but for the identity of the justice who has become the lone 
protesting voice in so many capital cases. For those who think that a state 
jurist's party affiliation remains relevant even after he ascends to the bench, 
it is worth noting that Saylor is a Republican. He also is a former prosecutor 
and top official in the state Attorney General's Office.

Little in Saylor's pre-jurist career or even his early days on the Supreme 
Court hinted at his later prolific opposition to the court's capital 
jurisprudence. While he penned some notable dissents from opinions affirming 
death sentences in his first few years on the court, he did so with much less 
frequency than he does now. In his first 5 years on the court, he wrote or 
joined 11 dissenting opinions in capital cases, roughly one-third as many as in 
the most recent five years, despite the court's much heavier capital caseload 
during those early years.

Although Saylor increasingly has charted his own path in the death-penalty 
arena, his solo journey will come to an end before too long, as he reaches the 
court's mandatory retirement age of 70 next year. Perhaps 1 of the 3 new 
justices joining the court in early 2016 will take up the departing chief 
justice's mantle and continue to call attention to what he has seen as some of 
the court's shortcomings in its capital jurisprudence.

Whether or not that is the case, Saylor will leave a legacy of continuously 
endeavoring to fulfill the high court's important role of carefully reviewing 
sentences and post-conviction appeals for the scores of inmates who reside on 
Pennsylvania's death row.

(source: Bruce P. Merenstein is a partner and vice-chairperson of the 
litigation department at Schnader Harrison Segal & Lewis. He has a 
comprehensive appellate and trial litigation practice, and has served for a 
number of years as a special master in multidistrict litigation in federal 
court---- thelegalintelligencer.com)






DELAWARE:

Hearing postponed for Ummad Rushdi, charged with killing toddler


Common Pleas Judge James Nilon has set a new status conference date of Nov. 16 
for accused baby killer Ummad Rushdi.

Rushdi, 32, is facing the death penalty for allegedly killing 7-month-old Hamza 
Ali in August 2013 at his parent's home in the 6600 block of Chestnut Street, 
Upper Darby, then transporting the body elsewhere and burying it at an unknown 
location.

He has been charged with 1st-, 2nd- and 3rd-degree murder, kidnapping and abuse 
of a corpse. Deputy District Attorney Stephanie Wills is prosecuting.

Rushdi, represented by defense attorney Mike Malloy, attempted to deliver a 
letter he had written to Nilon during the short status conference Monday 
morning, but was rebuffed. Nilon said he would not accept anything from Rushdi 
because it could be used at trial, and advised him to instead hand it off to 
his attorneys.

"If they think it requires action, they'll take action on it, and then it can't 
be attributed directly to you, and it can't be used against you in a trial," he 
told the defendant.

Nilon also was set to hear a defense motion Monday afternoon that had been 
filed under seal by Malloy. Malloy indicated during the status conference that 
the substance of that motion was intertwined with an evaluation being performed 
by Dr. Anthony Pisa, Ph.D., and likened the situation to a medical doctor 
finding an additional issue while performing an examination.

"This case is more than a little bit complicated in that sense," he said.

Rushdi, who is additionally represented by death penalty council Scott 
Galloway, is also being evaluated by death penalty mitigation specialist 
Delores Andrews and psychiatrist Dr. Muhamad Aly Rifai.

(source: Daily Times)






VIRGINIA:

Convicted murderer of 7 people appeals death penalty


Lawyers for Ricky Gray, the man sentenced to death for the 2006 New Year's Day 
murders in Richmond, will argue his case in federal court Tuesday.

Gray was convicted in the brutal murders of the Harvey family. The family was 
found slain in their Woodland Heights home, which was robbed and set on fire.

In a brief filed in April, Gray's lawyers say he should be able to argue that 
his trial lawyers did not perform to acceptable standards.

Gray was convicted in a series of murders that grabbed national attention 
because of the brutality and number of victims. The youngest were sisters 
Stella and Ruby Harvey.

Ricky Gray, with the help of Ray Dandridge, also killed the girls' parents, 
Bryan and Kathryn. Then they set the Woodland Heights home on fire.

A week later, Percyell Tucker, his wife Mary and their daughter, Ashley 
Baskerville - who was an accomplice in the Harveys' murder - were also killed.

Gray was sentenced to death for the girls' murders.

(source: WWBT news)






FLORIDA:

Costa Rica seeks clemency for Terence Valentine, on death row for brutal 
Florida murder


In 1990, Terence Valentine, a Costa Rican man living in Texas, was convicted of 
the gruesome 1988 killing of Ferdinand Porsche and the attempted murder of 
Valentine's ex-wife, Libia Romero. Romero, who is also Costa Rican and who was 
divorced from Valentine at the time, testified in court that her ex-husband 
broke into the couple's home in Tampa, Florida, shot Porsche in the back, 
"trussed him like an animal" while Porsche was naked and stabbed him several 
times before he shot him in the head, according to court documents. Valentine 
was found guilty of Porsche's murder and sentenced to death in 1990. Valentine 
- now 66 - has maintained his innocence.

Valentine's death sentence has tested the limits of Costa Rican influence in 
the United States during the last decade as the country's embassy works to 
commute Valentine's sentence in accordance with Costa Rica's long-standing 
disapproval of the death penalty. Valentine is the only Costa Rica in the 
United States facing capital punishment.

National Liberation Party lawmaker Sandra Piszk brought Valentine's situation 
back into national news last week when she called on the Foreign Ministry to 
bolster its support for Valentine and make a full report of its efforts to 
assist him. Piszk told local media that she believed Valentine's race (he is 
black) and the fact that he's a Latin American immigrant prejudiced the jury 
against him in his sentencing.

"Without getting into the details of the case, yes, we believe it's reasonable 
to question the prisoner's conditions," Piszk told the newspaper Prensa Libre 
on Sept. 7. "It appears he did not have the necessary legal counsel."

Piszk's concerns are not unfounded. Robert Dunham, executive director of the 
Death Penalty Information Project in Washington, D.C., told The Tico Times that 
there was reason for concern about foreign nationals on death row.

"The experience throughout the United States is that race, ethnicity and 
foreign nationality make a difference when you're a capital defendant," said 
Dunham.

Dunham said that he could not comment on the specifics of Valentine's case but 
that a disproportionately high percentage of African Americans are on death row 
- 38 % - compared to the general population in the state of Florida. 
Additionally, Dunham noted that Florida has the 3rd highest number of foreign 
nationals on death row (21) after California (61) and Texas (22).

Valentine and Romero married in Costa Rica in 1973, according to records from 
the Civil Registry. The couple emigrated to the United States in 1975, settling 
in New Orleans. Court documents said the marriage was "not a happy one" and 
Romero tried to divorce Valentine in 1986. She married Ferdinand Porsche in 
1988 and moved to Tampa. The legality of the divorce was under dispute, though, 
and Valentine, believing he and Romero were still married, started making 
threatening phone calls to Romero and Porsche's home in Tampa between 1987 and 
September 1988.

On Sept. 9, 1988, Valentine forced his way into the couple's home and shot 
Porsche in the back, paralyzing him from the waist down. Valentine then forced 
Porsche to crawl to the couple's bedroom where Romero - who was pregnant at the 
time, according to court records - was gagged and tied up naked on the bedroom 
floor. She told authorities that Valentine told Porsche, "this is my revenge."

"I'm gonna kill you, but you're gonna suffer. This is not going to be easy," 
Valentine said, according to Romero's testimony. Valentine pistol whipped 
Porsche, beat him and stabbed him before driving him and Romero to an isolated 
area. Valentine shot and killed Porsche with a gunshot to the eye. He shot 
Romero but did not kill her.

When Romero recovered after several weeks in the hospital she started receiving 
more threatening phone calls from Valentine. One of these calls she recorded 
and handed it over to the authorities.

Valentine said he was not in the United States at the time of the homicide.

Valentine successfully appealed his 1990 conviction and was granted a retrail 
on the basis of jury selection by the Florida Supreme Court in 1994. He was 
convicted again of murdering Porsche. He was not convicted of the attempted 
murder of Romero. Valentine appealed his case to the U.S. Supreme Court but the 
court refused to hear his appeal against the Florida Supreme Court that 
reaffirmed his death sentence. Since then, Valentine has argued that he 
received ineffective counsel from his public defenders.

Foreign Ministry Legal Director Gioconda Ubeda told The Tico Times that the 
ministry has not taken a position on Valentine's guilt or innocence. "There are 
many other ways to punish someone. We do not share belief in the death penalty, 
regardless if someone is guilty or not. We are not defending any specific acts 
but we are keeping an eye on the case to ensure his due process rights are 
respected," Ubeda said.

Costa Rica's death penalty stance and the Terence Valentine case

Costa Rica banned the death penalty in 1871, a prohibition that was codified in 
the 1948 Constitution. The maximum sentence for a crime in Costa Rica is 50 
years in prison.

The Foreign Ministry and the Costa Rican diplomatic mission in the United 
States have been working on behalf of Valentine since 2005, Ubeda said, to try 
to secure an alternative sentence. In February 2012, the Costa Rican Embassy in 
Washington, D.C. sent a letter addressed to Florida Governor Rick Scott through 
diplomatic channels requesting that Scott consider commuting Valentine's 
sentence. Ubeda said the Costa Rican Embassy never confirmed that the letter 
was received.

"The letter to reconsider the sentence has no position on the innocence or not 
of Mr. Valentine," Ubeda said. "At the time, in 2012, the sentence was against 
the beliefs of Costa Rica and we requested changing it for a non-capital 
sentence."

Clemency rules are different in every U.S. state. In Florida the governor needs 
the recommendation of the Clemency Board, on which the governor has a seat, to 
take action on a prisoner's sentence. Only 6 clemencies have been granted in 
Florida since 1976, according to the Death Penalty Information Center. The 
state executed 90 people during that time period.

Ubeda said the Foreign Ministry has since refocused its efforts on helping 
Valentine secure conflict-free counsel.

Ubeda said the embassy has helped put Valentine in touch with a nongovernmental 
organization that specializes in death sentence cases but would not say which 
one. According to the Aug. 26 letter, Valentine had petitioned for Marie Louise 
Samuels to be named his new counsel. "Get these bums off my case," Valentine 
wrote to Julie Jones, secretary of the Florida Department of Corrections, in a 
letter she received Aug. 26 following the denial of his latest motion for 
appointment for new counsel.

Though Valentine's Supreme Court appeal was denied, there is another case 
pending before the Supreme Court, Hurst v. Florida, challenging the 
constitutionality of Florida's death-sentencing scheme, arguing that it 
violates the sixth and eighth amendments.

The Supreme Court of Florida denied Valentine's petition for a writ of habeas 
corpus in 2012. He appealed that decision and is currently awaiting a ruling on 
his petition for a writ of habeas corpus in the U.S. District Court of Middle 
Florida. No date has yet been set for Valentine's execution.

(source: ticotimes.net)

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

Donald Smith, suspect in 8-year-old Cherish Perrywinkle's abduction death, is 
back in court


Donald James Smith, the man charged in the abduction, sexual assault and 
strangulation of 8-year-old Cherish Perrywinkle, is scheduled for another court 
appearance Tuesday that could lead to a trial date being set.

Smith, 59, is facing the death penalty. He was previously supposed to be in 
court Monday, but that got delayed a day.

Circuit Judge Mallory Cooper has said she'd like to get a trial date set, but 
defense attorneys have said they are still examining the evidence in the case 
and don't want to move forward until they have a good handle on the evidence 
against Smith.

It is likely that defense attorneys Julie Schlax and Charles Fletcher will end 
up arguing that Smith is insane or too mentally handicapped to face the death 
penalty. But the lawyers have not yet indicated what their defense will be.

Smith is charged with 1st-degree murder, kidnapping and sexual battery. He is a 
registered sex offender who was released from prison 3 weeks before Cherish was 
killed.

He is accused of befriending Cherish, her mother, Rayne Perrywinkle, and 
siblings at a Dollar General store in June 2013 and convincing them to go to 
Wal-Mart on Lem Turner Road in his van after offering to buy them clothes and 
food.

Perrywinkle told police that Smith offered to buy the family hamburgers at the 
McDonald's inside the Wal-Mart.

Cherish went with him to get the food, and they did not return.

Cherish's body was found near a creek off Broward Road the next morning.

(source: jacksonville.com)