[Deathpenalty] death penalty news----TEXAS, DEL., GA., FLA.

[Rick Halperin]

Dec. 1



TEXAS:

Will the Supreme Court Stop Texas from Executing the Intellectually Disabled?


Since the Supreme Court reinstated the death penalty in the United States, in 
1976, Texas has been responsible for more than 1/3 of the country's executions 
- 538 out of 1440. The most egregious reason is the state's unique and grudging 
approach in cases where the defendant claims intellectual disability.

In 2002, in Atkins v. Virginia, the Supreme Court reached the decision that, no 
matter how heinous the crime, an intellectually disabled person cannot be 
sentenced to death. Disabilities of reasoning, judgment, and control of 
impulses, the Court said, do not allow a person to "act with the level of moral 
culpability that characterizes the most serious adult criminal conduct." 
Because offenders with intellectual disabilities are less blameworthy, the 
Court said, imposing the death penalty contributes neither to deterrence of 
capital crimes nor to retribution for them, and so it causes "purposeless and 
needless" pain and is cruel and unusual punishment.

The Court recognized that there was "serious disagreement" about which 
offenders were intellectually disabled. "Not all people who claim to be 
mentally retarded will be so impaired as to fall within the range of mentally 
retarded offenders about whom there is a national consensus," the majority 
opinion said. ("Intellectual disability" has replaced "mental retardation" as 
the favored term.) The Court anticipated a variety of approaches to enforcing 
its prohibition, and left to the states "the task of developing appropriate 
ways to enforce the constitutional restriction upon its execution of 
sentences."

Most states with the death penalty rely on a combination of intelligence 
testing and clinical assessment to confirm that a defendant has severe 
intellectual disabilities. In 2004, the Texas Court of Criminal Appeals, the 
state's highest criminal court, created its own definition of intellectual 
disability, in a case called Ex Parte Jose Garcia Briseno. In the Briseno 
opinion, the C.C.A. said that reliance on clinical testing is "exceedingly 
subjective." The court's responsibility, it said, was "to define that level and 
degree of mental retardation at which a consensus of Texas citizens would agree 
that a person should be exempted from the death penalty." The court decided it 
was possible to be intellectually disabled according to medical and scientific 
standards, which apply to no more than three per cent of Americans, yet not 
disabled enough to be exempt from execution in Texas.

The Texas approach to intellectual disability is so different from national 
standards that, according to the American Bar Association, the state has 
regularly sentenced to death "defendants with intellectual disabilities whom 
other jurisdictions almost certainly would have recognized as exempt." Jordan 
Steiker, a professor at the University of Texas Law School, and Richard Burr, 
the lawyer who represented Jose Briseno before the C.C.A., estimate that Texas 
has executed 30 to 40 people with strong claims of intellectual disability, and 
that between 30 and 40 of the 242 people on the state's death row have 
similarly strong claims to exemption. This week in the Washington Post, Steiker 
and his sister, Carol Steiker, a professor at Harvard Law School, wrote that 
Texas "focuses on questions that no medical professional would deem appropriate 
in diagnosing intellectual disability, such as whether an offender's family and 
friends thought he had intellectual disability." They continued, "Instead of 
relying on the same approach to intellectual disability that Texas uses in 
every other context (such as placement in special education or eligibility for 
disability benefits), the court sought to redefine the condition in the capital 
context so that only offenders who meet crude stereotypes about intellectual 
disability are shielded from execution."

On Tuesday, the Supreme Court heard oral arguments in Moore v. Texas, about 
whether the state is violating the Constitution by prohibiting judges from 
using current medical standards in deciding whether a defendant, Bobby James 
Moore, is exempt from capital punishment. Moore, now 57, has been on death row 
for 37 years for his part in a failed supermarket robbery in Houston, in which 
he shot and killed a sales associate. (Moore has said the shooting was 
accidental.)

In 1995, a federal district court granted Moore a new sentencing hearing after 
the court found that his lawyers had "grossly mishandled the representation of 
Moore and violated their oath as members of the bar with astonishing frequency" 
by, among other ways, failing to present any mitigating evidence, including of 
the defendant's impaired mental development and functioning. In 2001, he was 
sentenced to death again, after a jury determined that there was not sufficient 
mitigating evidence to warrant a sentence of life imprisonment.

While Moore was waiting for the C.C.A. to review that sentence, the Supreme 
Court issued its ruling in Atkins, and Moore's lawyer petitioned the state 
trial court for another hearing. In that hearing, in 2014, the judge found that 
Moore was intellectually disabled, and recommended that the C.C.A. grant his 
claim. The C.C.A. rejected that recommendation, because that court "erred by 
disregarding our case law" in defining intellectual disability. The appeals 
court said, "We conclude that, at this juncture, the legal test we established 
in Briseno remains adequately 'informed by the medical community's diagnostic 
framework.' " Last June, the Supreme Court granted Moore's request to hear his 
case, which will likely determine whether Moore lives or dies, and whether many 
others in Texas will live or die as well.

Moore is, by any reasonable account, intellectually disabled. He failed 1st 
grade twice, and was promoted to 2nd grade only because his school thought he 
should be with children close to his age. In 5th grade, as one of a group of 
African-American students assigned to a largely Hispanic school, he was hit in 
the head with a chain and a brick, which left his whole head swollen and very 
possibly caused a traumatic brain injury. He has that problem, according to 
Shawanda Williams-Anderson, a neuropsychologist, and Robert P. Borda, a 
clinical neuropsychologist, each of whom examined him in 2013. Borda gave Moore 
a Tinkertoy test in which he was instructed to "make something." A score below 
7 generally equates with the inability to live independently. Borda testified 
about Moore, "He had a score of 1, which is the lowest score I've ever 
recorded, and I've done a lot of testing of brain-injury people."

Throughout elementary and middle school, Moore failed to grasp academic skills; 
he continued to get social promotions until he failed all his subjects in 9th 
grade and dropped out. His father, who was generally abusive, beat him for 
being "stupid." When Moore was 13, he could not tell time, the days of the 
week, the months of the year, the seasons, or the standards of measure. He also 
met each of the basic requirements for intellectual disability. On 7 I.Q. tests 
taken between 1971 and 1989, his average score was 70.66, which reflects 
significant cognitive impairment. (In Atkins, the Supreme Court noted that 
between 1 and 3 % of the population has an I.Q. lower than 75.) Borda concluded 
that Moore has "a significant Intellectual and Developmental Deficiency, and by 
any current standards should be considered to have functioned within the 
Mentally Deficient (or Mentally Retarded) range for all of his teen and adult 
life."

The Texas Court of Criminal Appeals is infamous for rejecting the vast majority 
of death-sentence appeals in the state. The best-known example is its denial, 
in 1995, of an appeal by Calvin Jerold Burdine on the ground of ineffective 
counsel, because Burdine's lawyer had slept through long stretches of the 
defendant's trial. It wasn't clear to the C.C.A. that the lawyer was asleep 
during the important parts of the trial, so the court upheld Burdine's death 
sentence. A few years later, when a federal district judge ordered Texas to 
release the defendant or give him a new trial, the judge stated the obvious: 
"Sleeping counsel is equivalent to no counsel at all." The state missed the 
deadline for the trial, so the judge ordered Texas to release Burdine. He 
wrote, "Throughout its brief, the state seeks to minimize its failure to comply 
with established procedural rules as 'excusable neglect.' However, a similar 
procedural error by defense counsel in a capital case could result in a 
defendant's execution."

Last June, Judge Elsa Alcala, of the C.C.A., called for her court "to 
reconsider whether the death penalty remains a constitutionally acceptable form 
of punishment under the current Texas scheme." One of the reasons she gave was 
that the C.C.A. "misapplies Supreme Court law on intellectual disability." One 
obvious example is the case of Elroy Chester, who pleaded guilty to murder, in 
1998. The Texas court denied Chester's claim of intellectual disability, in 
2007. In 2012, the Supreme Court denied to review his case. The following year, 
Texas executed him.

Chester showed significant intellectual limitations from childhood. His younger 
sister had to help him identify colors and sort laundry. He did not seem to 
understand what people meant when they spoke to him. He was given his 1st I.Q. 
test when he was 7 1/2, and scored 69. He was given his second I.Q. test when 
he was 12, and scored 59. He had the vocabulary of a 6-year-old. When he was 29 
and in prison after pleading guilty, he scored 66.

But the Texas court, relying on the Briseno factors, found that Chester did not 
show "significant deficits in adaptive behavior," overlooking behavior that 
indicated the many limitations on his adaptive functioning. He lived with his 
parents or one of his sisters until he was imprisoned, and was not capable of 
living on his own. He could not read well enough to fill out a job application 
without help from one of his sisters. He could not write well enough to 
communicate. He did not shop by himself for food or clothes. The only food he 
knew how to cook was an egg. He never had a bank account. He could not read a 
map. He was clearly intellectually disabled and should not have been put to 
death.

In their brief for Bobby James Moore, his lawyers told the Supreme Court that 
"Texas's approach defies both the Constitution and common sense." They said 
that it "squarely presents the deeply troubling prospect that intellectually 
disabled individuals - like Moore - will be executed in violation of their 
Eighth Amendment rights." But as the execution of Elroy Chester underscored, it 
is not only a prospect; it is a reality, and has been for almost a decade and a 
half.

(source: Lincoln Caplan, a former New Yorker staff writer, is a senior research 
scholar at Yale Law School----The New Yorker)

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

Lawyer Who Helped Save Death Row Inmate Didn't Make Partner


Brian Stolarz was picking up signs everywhere that his time as a lawyer at K&L 
Gates was limited.

A chance encounter in the Baltimore airport with a partner who had recently 
departed the firm left Stolarz convinced about the nature of the problem: He 
was spending too much time working on pro bono, when he could be billing hours, 
Stolarz recalled. Associates in his class had told him the same thing - when 
they received bonuses that he didn't, and when he was passed over for partner, 
he said.

As Stolarz tells it, in 2007, the firm assigned him to work on its pro bono 
representation of Alfred Dewayne Brown, who already was on death row in Houston 
for a 2005 conviction of shooting and killing a police officer. Stolarz was 
only a mid- to senior-level associate but had previously worked as a public 
defender in Brooklyn. During the next several years, he devoted thousands of 
hours to working on Brown's writ of habeas corpus, convinced of the client's 
innocence, he said.

"This was something that nobody expected to be this involved," Stolarz said. 
"It wasn't just writing a few briefs and appearances in court, it was a full-on 
innocence investigation."

Ultimately, in a rare storybook ending, a judge found prosecutors had withheld 
potentially exculpatory evidence, prosecutors dropped the charges and released 
Brown in 2015 - by which point Stolarz already had left the firm and passed 
responsibility for the case to other lawyers.

Grace and Justice on Death Row

The quest to clear Brown's name and his critique of the death penalty is the 
main subject of Stolarz' book, "Grace and Justice on Death Row," released Oct. 
25 by Skyhorse Publishing.

But the book also probes a different question: As global firms pick up pro bono 
work, to what do they owe the associates who do most of the labor? Stolarz 
claims he felt immense stress in trying to balance his pro bono work for Brown 
with his other work for paying clients. The latter counted much more for his 
career track, he claims, arguing his pro bono hours largely were unrecognized 
under the one metric that counted most - a billable hour requirement.

"Looking back, I sort of should have said, 'I'm not going to take on this case 
unless the firm protects me,'" he told Big Law Business. "I should have gotten 
a guarantee that the firm wouldn't marginalize me for doing the work."

Instead of joining the partnership, he was made of counsel, and Stolarz said in 
an interview that outgoing chairman Peter Kalis had said in a town hall style 
meeting that of counsel was a disfavored title at the firm - an incident that 
is also mentioned in the book.

"People would walk around and call me Mr. Disfavored, and those were my friends 
so I didn't mind, but the joke was on me," he said. "There's absolutely no 
doubt that the perception of me at that firm was that I was spending too much 
time on the case."

Through a spokesman, K&L Gates, Kalis, and the partner David Case, who brought 
the Brown matter into the firm, declined repeated requests for comment.

The firm has, however, changed some of the policies that Stolarz criticized: 
For instance, while Stolarz was at K&L Gates, only 50 hours of pro bono work 
counted toward his billable hour requirement of around 1950 hours, which meant 
hundreds of hours of work per year were not recognized, he said. K&L Gates 
subsequently changed its policy, Stolarz said. Today, it "treats all hours 
reasonably recorded on approved pro bono matters as the equivalent of billable 
hours in determining associate bonus eligibility," according to its website.

"Of course they have to give you the same amount of credit [for pro bono 
cases]," said Eric Freedman, a law professor at Hofstra University, who worked 
on a capital case pro bono as a Paul Weiss associate earlier in his career.

Freedman said that part of managing a pro bono program includes taking steps to 
ensure the work is being performed at an optimal level, that commercial work 
isn't taking priority and that individual attorneys' careers aren't being hurt 
by working on pro bono cases.

According to the National Association for Law Placement report on pro bono at 
law firms, the most recent of which was from 2010, 83 % of law firms with at 
least 700 lawyers said pro bono hours were equivalent to billable hours for 
bonus purposes. But another statistic in the report showed that nearly every 
firm has a maximum number of pro bono hours, between 25 and 100, that count for 
bonus purposes.

Other attorneys interviewed for this article also said that whatever official 
policies were at their firms, their careers were often judged based on the 
hours billed.

Stolarz is not the first associate from a large firm to write a book about his 
pro bono experience. In 2014, Ian Graham, published "Unbillable Hours," a 
reflection on his time as an associate at Latham & Watkins in Los Angeles where 
he represented pro bono, Mario Rocha, a man serving a 35-year sentence for 
murder. Rocha's conviction was overturned and ignited a passion in Graham for 
such work.

In an interview, he had largely positive things to say about Latham but also 
said that the time he devoted to Rocha's case did not always help him advance 
his career at the firm. The committee that reviewed his progress as an 
associate wasn't always as grateful for the hours he put in on the case as the 
supervising partner was, he said. But making partner wasn't his goal at the 
firm.

"I realized pretty quickly that I didn't want to spend the next 40 years 
working there," said Graham, who now has his own law firm.

In a statement, the firm said it is proud of its pro bono program, which it 
called a "hallmark of our culture" and also noted that it treats pro bono hours 
the same as billable hours.

Most attorneys interviewed for this article who were associates that worked on 
major pro bono programs said they were not bitter toward their former firms and 
were proud of the pro bono matters they worked on.

Despite his criticisms, Stolarz said that he is grateful to K&L for giving him 
the Brown case, which will mark a high point of his career. He said doing pro 
bono work is an important part of his career, and he has won a number of awards 
for his continued efforts in this area.

Much of his book serves as his critique of the death penalty, told through what 
happened to his client Alfred Dewayne Brown, who spent more than 12 years 
behind bars, including a decade on death row, before his conviction was vacated 
and prosecutors dropped charges. His story was also the subject of a Pulitzer 
Prize-winning series by the Houston Chronicle and Stolarz and Brown remain 
close friends.

But he also pointed at ways in which he believes law firms fall down or 
mismanage their pro bono programs. In an interview, Stolarz credited Dave Case, 
the partner who brought the case into the firm, with trying to protect him from 
negative repercussions from working on the case, but said it became difficult.

"Instead of billing 2,000 hours billable, I was probably billing 1,400, and 
[around] 500 pro bono," he said. "I was still every day focused on billing 
hours, it was just the other case was taking a lot of time."

>From the book:

It was a difficult experience, personally and professionally. I was working on 
other cases, but I kept thinking about Dewayne and how we needed more and more. 
I was stricken with self-doubt and wondered whether I would be sitting at his 
execution, kicking myself for not finding something new we hadn't found before, 
and being mocked by some of the attorneys in my office who didn't want to take 
the case in the first place and who thought it was a waste of precious 
resources and time.

He also wrote about how, following a trend in the legal industry of the last 
decade, the firm vastly expanded. His time at K&L Gates, between 2004 and 2011, 
roughly coincided with the firm's transformation through a series of mergers 
from a Pittsburgh-based regional heavyweight to its present iteration as a 
2,000-plus lawyer firm with offices on 5 continents.

About the global growth, and the cost-saving measures and pressure to bill that 
followed, he wrote in his book: "It breeds a corporate mindset, a cold 
business, a place where the 5 minutes by the water cooler talking about your 
kids with a colleague cost the firm 5 minutes of billable time. Towards the end 
of my time there, a lot of people spent their whole day working with their 
doors closed."

He also said in an interview that the paradox of such large global law firms is 
that they have more resources, which has opened new opportunities for 
associates to work on pro bono cases.

Such programs serve many purposes at law firms, including as a recruiting tool 
to law school graduates, he writes in his book. Pro bono also provides 
associates with opportunities to take the lead on a client-relationship, set 
strategy, make court appearances and operate with greater autonomy, according 
to Stolarz and a number of lawyers interviewed for this article.

Kathryn Kase, executive director of the Texas Defender Service, who referred 
Brown's case to K&L Gates, praised large firms and the associates who work 
there for playing a key role in the legal system. Few defendants on death row 
can afford a lawyer, let alone a legal team that can match prosecutors' 
resources, she said.

"It's critically important that these big firms take on capital cases," said 
Kase. "These cases tend to be sprawling and have many issues, and [big] firms 
are uniquely suited to handling them. They have a lot more resources."

There are countless examples of large firms using their resources to help 
indigent clients. Earlier this year, Debevoise & Plimpton announced that it 
helped secure clemency for a man serving a life sentence in prison for 
distributing around 50 grams of crack cocaine. Jones Day, meanwhile, recently 
announced that it is investing money and attorney-time to help set up a network 
to help military veterans obtain legal services.

Freedman, the Hofstra professor, said many smaller firms may be more likely to 
make donations to a legal non-profit than to take on pro bono capital or 
extremely complex cases because, unlike larger firms, they often lack the 
resources, including lawyers with expertise, to take on such matters.

In practice, policies at law firms can vary considerably, with some firms 
giving only partial credit for pro bono hours when reviewing the billable hour 
requirement, which is often a key factor in whether a bonus is awarded and 
whether someone's career advances. But some firms give 1:1 credit for hours 
worked on approved pro bono matters, according to lawyers interviewed for this 
story. Indeed, some law firms make a certain amount of pro bono work mandatory.

Kase credited the lawyers at K&L Gates with "a real dedication" to the Brown 
case.

In promotional materials for its pro bono work, the firm says its partner Dave 
Case led the charge on the case with assistance from an unspecified group of 
attorneys, paralegals and staff. And Stolarz notes in his book that other 
associates took a laboring oar on the case after he left the firm. The 
litigation to vacate Brown's conviction continued for years after Stolarz 
departed.

Leaving aside the question of who deserves the most credit for Brown's liberty, 
Stolarz takes us inside a pro bono capital case and offers a critique of the 
U.S. death penalty and its reliance on giant law firms to represent the 
defendants in these cases.

In his book, he wrote:

The profitmaking law firm will almost inevitably treat pro bono death penalty 
cases as a form of charity, high-minded and worthy perhaps, but not central to 
the institutional mission. In a pinch, providing justice for someone like 
Dewayne was not a priority, and anyone who acted like it was would pay a price 
for his convictions. Such a conflicted profession cannot be counted on to fix 
the dysfunctional death penalty system.

Stolarz, who departed K&L Gates and is now a partner at LeClairRyan, said he 
feels conflicted criticizing K&L Gates because it gave him "the case of my 
life" and allowed him to help save a man's life. Even as a public defender in 
Brooklyn - he was a staff attorney in the criminal division of the Legal Aid 
Society - he never handled cases with such importance, he said.

But his emphasis is on firms paying better attention to how they manage pro 
bono programs. "I wish we would have done it better, and firms need to do it 
better because guys like this, his life was on the line," said Stolarz.

(source: bna.com)

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

Death Watch: Matters of Incompetence----How smart must one be to stand for 
execution? In Texas, not that smart.


As of press time, Dallas County District Judge Robert Burns was still 
considering the merits of an appeal argued Monday, Nov. 14, by attorneys for 
death row inmate John Battaglia, who believe their client is mentally 
incompetent for execution. Battaglia is currently scheduled for the state's 
death gurney on Wednesday, Dec. 7. State law prohibits the execution of inmates 
who either do not understand why they're being executed or cannot comprehend 
that their execution is imminent.

The 61-year-old was originally sentenced to death in 2002 after he was found 
guilty of murdering his 2 daughters, 9-year-old Faith and 6-year-old Liberty, 
in a particularly grizzly manner - shooting them both in his downtown Dallas 
loft while on the phone with their mother, his ex-wife, Mary Jean Pearle. 
(After the murders, Battaglia went to a tattoo parlor to get 2 roses tattooed 
onto his arm, one for each daughter. He was arrested that day outside the 
parlor.) Prosecutors were able to establish a pattern of violence from 
Battaglia, mostly directed toward his ex-wives, Pearle and first wife Michelle 
Ghetti. A jury rejected defense attorney arguments that their client was 
mentally unstable.

Battaglia was originally slated for execution in late March, but had his 
execution stayed just hours before he hit the gurney when the 5th Circuit Court 
of Appeals issued a stay and ordered the state court to reconsider Battaglia's 
claims of mental incompetence. "Battaglia effectively lacked counsel to prepare 
his claim of incompetency," the appeals court stated in its ruling. "In our 
view, it would be improper to approve his execution before his newly appointed 
counsel has time to develop his Ford claim" - a reference to the 1974 case out 
of Florida that spared Alvin Ford's life. The Dallas Morning News reports that 
3 psychologists testified on Battaglia's behalf on Nov. 14 that the inmate 
suffers from delusional disorder.

Bobby Moore Goes to Washington

The U.S. Supreme Court on Tuesday heard arguments in the case of Bobby James 
Moore, a 57-year-old from Houston who was sentenced to death in 1981 for the 
capital murder of 72-year-old supermarket clerk James McCarble. Moore's 
attorneys have argued that he, too, is too incompetent for execution - 
something that Moore's attorneys weren't able to challenge during his trial 35 
years ago. (Intellectual incompetence did not become an issue that could bar 
someone from execution until Atkins v. Virginia in 2002.) Lawyers for Moore, 
according to press outlets who attended the hearing, argued that Texas' 
standard for assessing adaptive behaviors are "non-clinical" and 
"anti-scientific." Attorney Clifford Sloan suggested that the state's 
application of the Supreme Court's intellectual disability standard is "very 
extreme and stands alone." No ruling is expected to come down until mid-2017.

(source: Austin Chronicle)






DELAWARE:

Delaware Supreme Court to weigh fate of death row inmates----Court to hear 
arguments over whether a ruling to end the death penalty should be applied to 
those still on death row


Even though the Delaware Supreme Court found the state's death penalty law 
unconstitutional in August, the debate over whether 12 men on death row should 
still be executed will heat up next week when the arguments make it to a 
courtroom.

The court will have to decide whether its landmark ruling, which barred death 
sentences unless Delaware law is re-written to comply with the U.S. 
Constitution, should be applied retroactively to those already on death row.

The top court is now poised to hear arguments Dec. 7 in Dover from state 
prosecutors and attorneys representing Derrick Powell, a 29 year old sentenced 
to death for the fatal shooting of Georgetown police officer Chad Spicer.

"The issue becomes will the court apply the constitution to everybody or invoke 
a procedural technicality to arbitrarily apply the decision to some but not 
others?" said Robert Dunham, executive director of the nonprofit Death Penalty 
Information Center.

Prosecutors will urge the 5 justices to not apply the court decision to the men 
on death row because of a long-standing rule against doing so after a criminal 
case is completed. Powell's attorneys, however, will argue it would be 
draconian to execute him after the court already deemed the sentencing scheme 
unconstitutional.

The issue first arose when the U.S. Supreme Court in January struck down 
Florida's death penalty law saying it violated the U.S. Constitution by giving 
judges, and not juries, the final say to impose a death sentence.

Alabama and Delaware were the only other states that, like Florida, allowed 
judges to override a jury's recommendation of life.

In light of the U.S. Supreme Court decision, the state Supreme Court found that 
Delaware's capital punishment law was also unconstitutional.

The court, however, did not say in August whether its decision would apply to 
those on death row, leaving open the possibility of further litigation. 
Powell's case will now be the test to determine the court's stance.

Powell is Delaware's youngest inmate on death row.

In September 2009, he and 2 men arranged to rob another man during a marijuana 
deal. The robbery attempt went awry, and Powell fired at the fleeing man in the 
parking lot of a Georgetown McDonald's, according to court documents.

The incident led to a police chase that ended when Powell fired a shot at a 
police car, fatally wounding the 29-year-old officer and father, court 
documents said.

Powell was found guilty of 1st-degree murder and other charges in February 
2011. He was sentenced to death in May of that year.

When his case is heard by the Delaware Supreme Court next week, his attorneys, 
Patrick Collins and Natalie Woloshin, will argue that it would be "unjust" to 
execute Powell just because he had the misfortune of being sentenced to death 
before the Florida decision.

"This court should recognize that truth, and give meaning to the venerates 
phrase, 'death is different,' and vacate his sentence," his attorneys wrote in 
an argument filed with the court.

Chief of Appeals Elizabeth McFarlan and Deputy Attorney General John Williams 
argued in their own written brief that the court should use a U.S. Supreme 
Court case known as Teague v. Lane to determine that it is not appropriate to 
apply a new decision to closed cases.

Delaware has not wavered from the Teague rule against retroactivity for 26 
years and should not start to now, they wrote.

"When criminal convictions are subject to later review because of subsequent 
legal changes, additional burdens are placed upon the state criminal justice 
system," they wrote. "This court recognized the burden of repeated review not 
just of convictions but also of sentences, in determining the retroactivity of 
a recent legislative change to permit concurrent sentencing under certain 
circumstances."

Powell's attorneys, however, said executing their client would be unfair and 
unjust. They pointed to other states, such as New York, Maryland and 
Connecticut, that had retroactively applied the decision to eliminate the death 
penalty to those already sentenced to death

(source: delawareonline.com)






GEORGIA----impending execution

Lawyers: Executing Georgia Inmate Would Be Unconstitutional


The act of executing a Georgia death row inmate scheduled to die next week 
would violate his constitutional rights, his lawyers argued in a court filing 
Wednesday.

William Sallie, 50, is scheduled for execution Tuesday. He was convicted in the 
March 1990 slaying of his father-in-law.

While his lawyers assert that the imposition of a death sentence by a jury is, 
itself, unconstitutional, that's not the issue they're raising in the petition 
filed the Superior Court of Butts County, which is the county where Georgia's 
death row is located. Instead they argue that the act of carrying out the 
execution next week in Georgia would be unconstitutional.

The state attorney general's office did not immediately have a comment 
Wednesday, spokeswoman Katelyn McCreary said in an email.

Executing Sallie would be arbitrary, and thus would amount to unconstitutional 
cruel and unusual punishment, and would also violate his rights to due process, 
the petition says.

"The dramatic difference between prisoners under sentence of death in Georgia 
and those in almost every other jurisdiction that has the death penalty is that 
the vast majority of death sentences elsewhere will never be carried out," his 
lawyers argue.

While a Georgia death row inmate is generally set for execution soon after his 
post-conviction appeals are exhausted, those in other states often linger in 
prison long beyond the completion of those appeals, in effect a life prison 
sentence, Sallie's lawyers argue. They note that there are at least 18 
California death row inmates who have completed their appeals but who remain on 
death row with no execution date set, while Sallie is the only one in Georgia 
and his execution date was set within days of his appeals ending.

They also cite studies that have found that the death penalty is 
disproportionately imposed based on the race of the defendant and the victim, 
as well as where in the state the crime happened. When the victim is white and 
the crime happened in a rural area, both of which are true in Sallie's case, 
there is a much higher chance of getting death.

"Thus by ordering the infliction of (Sallie's) execution on December 6, 2016, 
Georgia has selected Mr. Sallie to be executed from a pool of individuals 
assembled by a flawed scheme," his lawyers argue.

That Georgia obtains an execution order from a judge simply by requesting one 
and then sets and carries out an execution in a very short timeframe denies a 
death row inmate due process, the petition says. Under state law, a Georgia 
execution order sets a 7-day period for the execution to be carried out that 
"shall commence not less than 10 nor more than 20 days from the date of the 
order."

By contrast, Texas law says an execution date may not be earlier than the 91st 
day after a judge enters the order. Even Texas, which has executed far more 
inmates than any other state since the death penalty was reinstated in 1976, 
gives inmates a longer window of time to file challenges in the courts, 
Sallie's lawyers argue.

Sallie's wife was living with her parents in rural south Georgia after having 
filed for divorce, and the 2 had been embroiled in a bitter custody battle over 
their young son.

After cutting his in-laws' phone lines and breaking into their house about 
12:45 a.m. March 29, 1990, Sallie went to the master bedroom and shot John and 
Linda Moore, according to a Georgia Supreme Court summary of the case. John 
Moore died from his injuries, and his wife was injured.

Sallie then took his wife and her sister to his mobile home, leaving his son 
behind, the summary says. Sallie released his wife and her sister that night 
and was arrested a short time later.

(source: Associated Press)






FLORIDA:

Lehigh Acres couple facing death penalty in Clewiston murder


The state attorney's office will seek the death penalty against a Lehigh Acres 
couple charged with 1st-degree murder

Bubba Wayne O'Connor, 42, and Wendy Michelle Soucier, 49, were indicted Oct. 11 
in connection to the death of 72-year-old Clewiston resident Cherry Ermine. 
They're also charged with attempted 1st-degree murder, robbery with a deadly 
weapon and 1st degree burglary.

Ermine was found dead inside her Clewiston home after authorities said O'Connor 
and Soucier attempted to rob her. Frank Jansson, 69, was critically injured 
during the incident.

O'Connor and Soucier were armed when they went to the home where Ermine and 
Jansson lived, investigators said. A fight broke out when O'Connor and Soucier 
attempted to rob them, according to the Florida Department of Law Enforcement.

(source: WINK news)