[Deathpenalty] death penalty news----DEL., VA., N.C., KY., MO., NEB.

[Rick Halperin]

Aug. 3




DELAWARE:

Delaware Supreme Court Rules State's Death Penalty Unconstitutional


Delaware's rules for imposing the death penalty are unconstitutional, the 
state's Supreme Court ruled on Tuesday, a decision that could mean an effective 
end to capital punishment in Delaware.

In a 148-page opinion, the court held that Delaware's death penalty law gave 
judges, rather than juries, too great a role in imposing death sentences, 
violating constitutional requirements that the United States Supreme Court laid 
out in a January decision that has brought executions in Florida to a temporary 
halt.

The Delaware legislature came close to abolishing the death penalty directly 
this year, but the debate was put on hold to await the ruling by the state's 
highest court.

Delaware's attorney general said in a statement Tuesday that he was reviewing 
the court's decision and could not comment on whether Delaware would appeal to 
the federal Supreme Court.

But there appeared to be little chance, in any case, that the Supreme Court 
would overturn the decision, said Eric M. Freedman, an expert on capital 
punishment at Hofstra University's law school. "This probably means, as a 
practical matter, the end of the death penalty in Delaware," he said.

Delaware carried out its last execution in 2012 and has 14 prisoners on death 
row. The death penalty has been abolished in 18 other states, and executions 
have been delayed in many others because of a scarcity of lethal injection 
drugs and disputes over execution procedures.

In the case decided Tuesday, Delaware officials had said they would seek the 
execution of Benjamin Rauf, a New Yorker who is charged with murdering a fellow 
law school classmate last year during a drug deal in Delaware. But Mr. Rauf's 
lawyers argued that Delaware's procedures violated Supreme Court requirements 
for the primacy of jury decisions in capital cases.

Until recently, Delaware was 1 of 3 states, along with Florida and Alabama, 
that allowed judges to decide if the circumstances of a crime warranted the 
death penalty. Judges in those 3 states were also allowed to override a jury 
decision and impose such a penalty.

In January, the federal Supreme Court ruled, in Hurst v. Florida, that 
Florida's capital sentencing law was unconstitutional because "the Sixth 
Amendment requires a jury, not a judge, to find each fact necessary to impose a 
sentence of death."

Florida's subsequent effort to revise its law, allowing imposition of the death 
penalty by a jury vote of 10 to 2, rather than a unanimous vote, is also under 
challenge.

The new decision by the Delaware justices is significant and could have 
national repercussions because it accepts the principles in the Hurst decision 
and takes them to their logical conclusion, clarifying issues that the federal 
Supreme Court did not address, said Robert Dunham, the executive director of 
the Death Penalty Information Center, a private research group.

The Delaware court found that a jury not only must decide whether there were 
"aggravating circumstances" that could justify a death penalty, but also must 
find, "unanimously and beyond a reasonable doubt," that such aggravating 
factors outweigh any mitigating circumstances - the critical determination in 
imposing a death sentence.

In Tuesday's decision, issued unsigned by a majority, the Delaware Supreme 
Court said the General Assembly would have to decide whether to reinstate the 
death penalty and to draft new legal procedures.

The State Senate voted this year to end capital punishment, and the governor 
said he would sign such a bill. Abolition was contested in the House, with 
final resolution delayed pending the state's Supreme Court decision in the Rauf 
case. A new drive to revive the death penalty in Delaware, experts said, would 
clearly face an uphill battle.

(source: New York Times)






VIRGINIA:

Death penalty sought in 2008 murder


A man accused of killing a Norfolk Botanical Gardens employee will face the 
death penalty.

13News Now obtained court documents that show the prosecution thinks Michael 
Brown should be executed for the 2008 murder of Angie Lechlitner.

Brown is accused of strangling, stabbing and sexually assaulting Lechlitner 
inside her Norfolk home.

Police charged Brown with capital murder last year.

Lechlitner, a horticulturist at Norfolk Botanical Garden, was a member of 
Tabernacle Church of Norfolk. People there planted a tree in her memory shortly 
after her death.

"Love, joy, peace, patience," said family friend Juliette Doyle, reading the 
marker at the base of the tree. "It describes Angie. I don't know who came up 
with it, but it was just perfect."

The Norfolk Police Department's Homicide Section and Cold Case Section followed 
leads in the case for seven years. Detectives said that information eventually 
led them to 27-year-old Michael Brown of North Carolina.

(source: WVEC news)






NORTH CAROLINA:

Anthony's attorney asks for resentencing without death penalty option


An attorney asked a judge to take the death penalty off the table for Antwan 
Andre Anthony as a sanction against the Pitt County Sheriff's Office because 
one of its employees talked to a juror during Anthony's triple homicide trial.

Tuesday was the second day of a hearing for Superior Court Judge Robert H. 
Hobgood to decide whether Anthony should get a new trial and/or a new 
sentencing hearing because the public information officer for the sheriff's 
office, Christy Wallace, spoke to a juror despite strict rules by the court 
that the jurors and anyone associated with the case were not to have any 
contact with each other either inside or outside of the courtroom.

On Monday, jurors, detectives, Sheriff Neil Elks and Wallace testified during 
the special hearing. Wallace admitted she spoke to a juror, an old friend of 
hers, who was taking a break outside of the courthouse but said she only 
stopped by to say hello and ask about the juror's family.

The juror and other jurors who were nearby, however, testified Wallace asked 
how the trial was going and how long the juror thought they would continue 
working that night.

A detective and a member of the district attorney's staff also testified that 
Wallace told them she had two friends on the jury and that she told them that 
she would buy them pizza if they stayed late to continue working that night.

Anthony's attorneys, Terry Alford and Philip Lane, argued that Hobgood should 
order at least a new sentencing hearing if not a new trial since the juror 
contact apparently occurred just before the jurors were to begin deliberating 
on whether to sentence Anthony to life in prison or to death.

The jury did recommend the death penalty, and Hobgood sentenced Anthony to 
death for each of the 3 young men he shot and killed during a robbery at the 
Hustle Mart-3 on April 1, 2012.

Wallace's asking the juror about their progress and her offer to buy them pizza 
implied they should hurry up and make a decision to sentence Anthony, Alford 
said.

Assistant District Attorney Clark Everett agreed that what Wallace did was 
wrong, and he did not want to try to defend her actions, but said what she said 
did not influence the juror or any of the other jurors.

"It was said there were no opinions expressed about the case. There was no new 
evidence about this case," Everett said. "It was chitchat."

The defense attorneys argued that despite the fact that jurors saw Wallace 
contact a juror and that Wallace told several law enforcement officers she had 
talked to 2 jurors who were her friends, no one told the judge about that 
contact.

If they had, Alford said, the judge could have taken care of the issue 
immediately.

Lane concluded the arguments by saying that Wallace had to know she was not 
supposed to talk to a juror.

"She knew it was wrong, and she did it," Lane said.

He asked Hobgood to find that Wallace engaged in inappropriate conduct and 
order a new sentencing hearing.

"After that, declare this case a non capital for the inappropriate actions by a 
sheriff's department employee," Lane said.

The judge is expected to make his decision on Thursday.

(source: reflector.com)






KENTUCKY:

Support grows for suspending Ky. death penalty


Ever heard this one? "Don't confuse me with facts. My mind's made up!"

It might bring a chuckle, but this bumper sticker flippancy also sends the 
message that factual information is wasted on someone whose opinion cannot be 
swayed under any circumstances.

Fortunately, that is not the case with a majority of Kentuckians, as a recent 
poll by the University of Kentucky Survey Research Center makes clear. In this 
case, the question at hand is whether Kentucky should call a halt to executions 
until the state fixes the many problems that plague its capital punishment 
system.

Kentuckians, in fact, overwhelmingly support such a suspension in executions - 
and most believe that lengthy prison sentences, including life without parole, 
are preferable to the death penalty as punishment for people convicted of 
1st-degree murder.

Here is the question the interviewers asked in the poll, which was conducted 
between March 4 and April 30, 2016, and included interviews with 684 
Kentuckians over the age of 18 (with a margin of error of plus or minus 3.8 %).

A 2-year study by a panel of Kentucky law professors, judges, and other legal 
scholars found major problems in the administration of the death penalty in 
Kentucky and recommended that the state should suspend executions until those 
problems were fixed. In light of these problems, would you support a decision 
by the governor to halt all executions until these problems can be addressed?

Nearly 3/4 of the respondents, 72.4 %, told interviewers they would support the 
governor taking such an action. That exceeded the level of support for the 
death penalty reflected in the poll (69.3 %). Even among those who support the 
death penalty, 62.6 % said there should be a halt in executions until the 
system's problems are addressed.

We have written before about the study referenced in the poll question and its 
many troubling findings that included:

--An error rate of more than 60 % on death penalty cases - meaning most death 
sentences have been overturned on appeal by Kentucky or federal courts.

--The lack of a requirement that evidence in criminal cases be retained as long 
as a defendant remains incarcerated.

--The absence of uniform standards on eyewitness identifications and 
interrogations.

--Public defender caseloads far in excess of national averages and salaries 
that are far below those of attorneys with similar experience in surrounding 
states.

--No statewide standards governing the qualifications and training of attorneys 
appointed to handle capital cases.

When the report was released in 2011, along with a recommendation that Kentucky 
suspend executions until the issues were adequately addressed, a poll found 62 
% of likely Kentucky voters supporting a temporary halt to executions. The 
increase in support of the suspension is noteworthy.

The recent UK poll also found that support for the death penalty declined when 
respondents could choose among possible punishments for people convicted of 
1st-degree murder. They were asked the following question:

Which of the following punishments do you personally think is most appropriate 
for persons convicted of 1st-degree murder in Kentucky?

Responses in support of the different punishments were:

--Death penalty - 42.2 %

--Life in prison with no chance of parole - 35.4 % --Life in prison with no 
chance of parole for 25 years - 7.4 % --Life in prison with no chance of parole 
for 20 years - 2.1 % --A sentence of 20-50 years with a chance of parole after 
85 % of the sentence is served - 13 %

Asked about the high cost of administering the death penalty as a result of 
mandated appeals, as well as additional trials and associated housing costs, 68 
% of the respondents strongly or somewhat support replacing it with life 
imprisonment without parole.

Their concerns about possibly executing an innocent defendant were reflected in 
their agreement (at 71.6 %) with a statement that the capital punishment system 
risks doing just that. Even most of those who support the death penalty agreed 
(at 61.4 %) that there are risks of executing the innocent.

These poll results make it clear that Kentuckians' concern about the fairness 
of the state's criminal justice system is growing. As we have written before, 
replacing the death penalty with life without parole is the best approach for 
our state - protecting public safety, providing justice to the families of 
victims, removing the possibility that an innocent person will be executed and 
saving limited tax dollars.

(source: Joseph P. Gutmann is a former Jefferson County Assistant 
Commonwealth's Attorney. Stephen Ryan is a retired circuit court judge and 
former prosecutor, defense attorney and probation and parole officer. J. 
Stewart Schneider is stated supply speaker of Community Presbyterian Church of 
Bellefonte and former Commonwealth's Attorney for the 32nd Judicial Circuit in 
Boyd County----Courier-Journal)



MISSOURI:

Death row inmate asks to be the first person executed by NITROGEN GAS because 
he claims the lethal injection would end his life too painfully


A Missouri death row inmate whose lethal injection was put on hold because he 
has a hole in his brain is arguing that the state could end his life by using 
nitrogen gas.

Lawyers for Ernest Lee Johnson, 56, were able to halt his scheduled execution 
last November by claiming that the drugs used to carry out the execution could 
trigger uncontrollable, painful seizures that would be in direct violation of 
the constitutional protection against 'cruel and unusual punishment.'

He claimed the execution drug could trigger severe pain and convulsions due to 
the remnants of a brain tumor and the damage caused by surgery to remove it.

New papers filed this week show that having objected to one method of 
execution, Johnson's lawyers are required to suggest an alternate, to which 
they have suggested nitrogen gas hypoxia, which starves the brain of oxygen.

It would be the first time Nitrogen gas has been used as part of an execution 
and any move to use the untested gas would likely delay Johnson's execution 
further.

'The available literature regarding the nitrogen gas method of execution 
strongly suggests that the subject will have no allergic reaction to the gas, 
will experience a loss of consciousness, and will suffer no pain,' the 
attorneys wrote.

Prosecutors from the Supreme Court are expected to file their response.

A portion of the benign tumor was removed in 2008, but some of it remains. The 
operation also required removal of about 20 % of Johnson's brain tissue.

Missouri's execution drug is a form of pentobarbital believed to be 
manufactured by a compounding pharmacy - the state won't say where it gets it. 
Weis said the drug 'is likely to cause seizures' for Johnson 'given his history 
and the brain tumor.'

Weis cites a medical review by Dr. Joel Zivot, who examined MRI images of 
Johnson's brain and found 'significant brain damage and defects that resulted 
from the tumor and the surgical procedure,' according to court filings.

'Mr. Johnson faces a significant medical risk for a serious seizure as the 
direct result of the combination of the Missouri lethal injection protocol and 
Mr. Johnson's permanent and disabling neurologic disease,' Zivot wrote.

The Missouri attorney general's office declined comment. But in court filings, 
the state dismissed questions about the danger posed by the execution drug, 
noting that Missouri has carried out 'rapid and painless' executions since it 
went to the 1-drug method in November 2013.

Johnson was a frequent customer at a Casey's General Store in Columbia. On 
February 12, 1994, store workers Mary Bratcher, 46, Mable Scruggs, 57, and Fred 
Jones, 58, were closing for the night when Johnson arrived. He robbed the store 
seeking money to buy drugs, beat all three workers to death with a claw hammer 
and hid their bodies in a cooler.

Police arrested Johnson after finding a bank bag, stolen money and store 
receipts at his home.

Other death row inmates have filed similar arguments claiming medical 
conditions should preclude them from execution, with mixed success.

In 2014, the U.S. Supreme Court stepped in hours before Russell Bucklew was 
scheduled to die in Missouri for a 1996 killing, after Bucklew argued that pain 
and suffering were possible due to a rare congenital condition that causes 
weakened and malformed blood vessels as well as tumors in his nose and throat. 
The case was sent back, and is still pending in U.S. District Court in St. 
Louis.

Missouri executed 74-year-old Cecil Clayton in March after the U.S. Supreme 
Court rejected claims that Clayton had diminished mental capacity due to a 
1970s sawmill accident that cost him part of his brain's frontal lobe.

In 2007, Oklahoma executed 2-time killer Jimmy Dale Bland, even though doctors 
had said he would likely die of cancer within six months anyway. Death penalty 
opponents called the execution pointless, but prosecutors said Bland's health 
was no reason for mercy.

Johnson's death sentence for the Missouri convenience store killings has been 
overturned twice over his mental competency. It was first set aside in 2001 
after the U.S. Supreme Court ruled that executing the mentally impaired was 
unconstitutionally cruel, and again in 2003 when the Missouri Supreme Court 
cited evidence that Johnson was mentally disabled. In both cases, the death 
penalty was restored.

Weis has filed a new appeal with the state Supreme Court on the issue of mental 
competency, claiming Johnson has an IQ of 67.

(source: dailymail.co.uk)






NEBRASKA:

State Senator Says A Vote for Death Penalty Will Renew Nebraska Futility


Death penalty opposition group "Retain a Just Nebraska" is reporting reaction 
to Nebraska Attorney General Doug Peterson's statement that there is no way to 
know how long it would take for the state Legislature to get the death penalty 
functioning again should voters approve bringing it back in November.

Nebraska's last execution was in 1997 and Republican State Sen. Colby Coash 
noted that despite governors, state attorneys and lawmakers, who have pledged 
to get the death penalty functioning, the system was not fixed after 19 years 
of trying.

"This was a driving force for the supermajority of Senators - 16 Republicans, 
13 Democrats, and 1 Independent - who voted to end our death penalty system 
last year. We've all studied the issue and its history carefully. We have spent 
years and years attempting to find a constitutional execution method, and 'fix' 
the system. But it wasn't possible," Coash said.

Retain a Just Nebraska says former Attorney General Jon Bruning told news 
outlets in 2009 that the death penalty would be fixed in 2 years, but that was 
7 years ago.

"Voters should know they're not voting to fix a system," Coash said. "They're 
voting to keep a system that hasn't worked for 20 years and will continue to 
not work should the Legislature's decision be reversed."

(source: KWBE news)