[Deathpenalty] death penalty news----KAN., NEB., COLO., USA

[Rick Halperin]

Dec. 11



KANSAS:

Capital cases before the Kansas Supreme Court challenge death penalty, 
premeditation


2 of the final cases the Kansas Supreme Court will consider in 2016 are capital 
murder cases, including a quadruple murder case challenging the 
constitutionality of executing mentally ill inmates.

The state's high court will hear 5 days of oral arguments in 16 cases beginning 
Monday. The court will then take a 5-week break from arguments as it writes 
opinions in pending cases.

On Thursday, the court will consider a challenge by Billy Frank Davis Jr., who 
was sentenced to life in prison for the 2012 beating, rape and murder of 
8-year-old Ah'liyah Irvin in a Topeka apartment building. Davis was spared the 
death penalty by a single juror who opposed it.

Davis makes 5 claims in his appeal to the Supreme Court, chief among them that 
there was insufficient evidence to support a conviction of premeditated and 
intentional murder.

Sarah Johnson, a capital appellate defender representing Davis, claims her 
client never intended to kill Irvin, only to cause her to lose consciousness. 
During his interrogation, he repeatedly expressed shock when told Irvin had 
died.

"Mr. Davis' actions that night were far from the acts of a premeditating, 
intentional killer," Johnson wrote in a brief. "His actions were rash, not 
thought out, and haphazard. They do not support a finding of guilt on 
premeditated, intentional murder."

Shawnee County assistant district attorney Jodi Litfin disagrees. Davis' mode 
of murder - strangulation - strongly suggests it was premeditated, she argues 
in a brief. Davis watched his victim sleep for several minutes before 
kidnapping her and killing her, a crime that took at least 10 minutes. That is 
further evidence of premeditation, Litfin argues.

In Kansas, appellate courts, including the Supreme Court, don't reweigh 
evidence. Instead, the court, viewing evidence in a light most favorable to 
Litfin and the prosecution, will determine whether a reasonable person could 
have found Davis guilty beyond a reasonable doubt.

The Supreme Court has set aside Friday morning for the State of Kansas v. James 
Kraig Kahler. In most cases, the court schedules 15 minutes each for the 2 
sides to argue. For the Kahler case, however, each side will have 1 hour to 
make its arguments.

Kahler was sentenced to die in 2011 for the November 2009 murder of his 
estranged wife, his 2 daughters and his wife's grandmother over Thanksgiving 
weekend in Burlingame. His defense attorney never disputed that he committed 
the crimes but claimed that Kahler was severely mentally impaired because of 
major depression.

In lengthy court filings that total more than 200 pages, Johnson, representing 
Kahler, raises 10 issues on appeal and asks that Kahler's convictions and death 
sentence be vacated.

"The trial of Kraig Kahler was marred by numerous errors by both a prosecution 
who thought different rules applied to the 2 sides and by a district court who 
seemingly agreed," Johnson wrote.

For example, Johnson alleges, Osage County Judge Phillip Fromme admonished 
Kahler's defense attorney for quoting from a recording that had been introduced 
as evidence but allowed a prosecutor to do so without admonishment.

Other arguments by Johnson delve deep into constitutional disputes. A state law 
outlining when the insanity defense can be applied is unconstitutional, she 
argues, so reading it to jurors violated Kahler's right to a fair trial.

Beyond challenges to Kahler's convictions, Johnson also challenges his death 
sentence and, in turn, the state's death penalty laws. For defendants with 
severe mental illness, such as Kahler, the death penalty is a violation of the 
Eighth Amendment's protection against cruel and unusual punishment, she writes.

"Evolving standards of decency show a consistent direction of change against 
executing the severely mentally ill," Johnson's brief states.

Deputy solicitor general Kristafer Ailslieger will argue the case for the 
state. In legal briefs, he called Johnson's claims of prosecutorial and 
judicial misconduct "without merit." The jury was properly instructed on Kansas 
law, he wrote, and the state law dictating insanity defenses is constitutional.

The insanity defense law in question, Ailslieger notes, was determined by the 
Kansas Supreme Court to be constitutional in 2003. "Indeed, (the) defendant 
does nothing more than rehash the same arguments that were rejected," he wrote.

Turning to Johnson's proposed ban on the death penalty for mentally ill 
defendants, Ailslieger says Kahler and Johnson failed to name which mental 
illness the defendant suffers from and how it prevents the court from enacting 
the death penalty.

"That failure, coupled with his failure to even attempt to define the 
parameters of what constitutes a serious mental illness, leaves this court 
without any manner of analyzing an actual categorical rule prohibiting the 
death penalty," Ailslieger argues.

Capital murder cases in Kansas can be appealed directly to the Kansas Supreme 
Court, which has a mixed record on the death penalty. In perhaps its most 
talked-about opinion in recent years, the court overturned the death sentences 
of Jonathan and Reginald Carr, a 2014 decision that was reversed by the U.S. 
Supreme Court but not before it earned Kansas justices the scorn of 
conservatives and victims groups. In other cases, however, the court has upheld 
the death penalty.

(source: Topeka Capital-Journal)






NEBRASKA:

Don't misuse threat of execution


Now that Nebraska voters have put the death penalty back on the books, 
investigators and prosecutors ought to adopt policies to guard against misusing 
the threat of execution when investigators question murder suspects.

Experience has demonstrated that such threats can persuade suspects to confess, 
even if they are innocent.

The false confessions in the case of the Beatrice 6 are a prime example of how 
the death penalty can be used to derail the search for justice.

Anti-death penalty advocates drove that point home with television 
advertisements featuring JoAnn Taylor, who told how she confessed after Gage 
County officials told her she was about to become the 1st woman on death row in 
Nebraska.

The prosecutor told her he would take the death penalty off the table if she 
pleaded guilty and cooperated.

She agreed, even though her confession was totally bogus. She agreed even 
though it meant she would lose custody of her baby son. She agreed even though 
it meant she would spend more than 19 years behind bars.

The murder to which Taylor pleaded guilty actually was committed by a drifter 
named Bruce Smith, according to DNA evidence found at the scene.

The miscarriage of justice threatens to bankrupt Gage County, which apparently 
did not have insurance coverage although it's still researching the question.

The Beatrice 6 case is believed to be the largest false confession case in 
American history.

But it's not that uncommon.

Last week, law enforcement received another reminder of the need to avoid false 
confessions when U.S. District Judge Joseph F. Bataillon ordered Douglas 
County's insurance carrier to pay $5 million to 2 cousins wrongfully arrested 
for the murder of a Murdock couple in 2006.

Nick Sampson and Matthew Livers will split the money. Livers falsely confessed 
after an investigator told him he would hang him from the highest tree. Livers, 
who has a learning disability, tried to recant the next day, but investigators 
refused to listen until DNA evidence linked a Wisconsin couple with the crime.

The head of the Douglas County crime lab later was convicted of planting blood 
evidence to link Livers and Sampson to the crime.

The millions of dollars in damages and the lives ruined by these high-profile 
false confession cases should stand as constant reminders of how threats of the 
death penalty can warp the justice system. The lessons should be incorporated 
in law enforcement interrogation practices.

(source: Editorial Board, Lincoln Journal Star)






COLORADO:

Make no mistake, Brauchler is choosing the death penalty


All 3 people on Colorado's death row are black men who were prosecuted in 
Arapahoe County, Colorado's 18th Judicial District.

George Brauchler, the current District Attorney in the 18th, announced this 
month that he would seek the death penalty against another black man, Brandon 
Johnson.

Discussing his decision to seek the death penalty in this case, Brauchler 
disclaimed responsibility for the decision: "This is Colorado law. This isn't 
my law." Through this statement and others like it, Brauchler is seeking to 
deflect responsibility for this decision by implying that he has no choice 
under Colorado law but to seek death in this case.

Nothing could be farther from the truth.

In 2012 we published a study examining every homicide in Colorado for a 12 year 
period. Among our starkest findings was a showing that the vast majority of 
murders in Colorado could be charged as death penalty cases but that 
vanishingly few actually were. Indeed, we showed that in approximately 90 % of 
all 1st degree murder cases the prosecutor could, if he or she chose to do so, 
seek the death penalty.

The United States Supreme Court has mandated that the determination of who is 
eligible for the death penalty be made according to legislative rules rather 
than being left to the unbounded choice of a single person or office.

We concluded that Colorado's statute fails to live up to this constitutional 
requirement because it is so open-ended that it imposes essentially no check on 
prosecutorial discretion. Our study further showed - as many studies before it 
have - that whether death is sought in a particular case depends to a 
disturbing degree on the race of the defendant and the geographic location 
where his crime was committed. We were reminded of Justice William O. Douglas' 
warning in Furman vs. Georgia that discretionary death penalty statutes "are 
pregnant with discrimination and discrimination is an ingredient not compatible 
with the idea of equal protection of the laws that is implicit in the ban on 
'cruel and unusual' punishments."

Brauchler clearly understands the important role that discretion plays in our 
capital system. He has previously published a paper exclaiming that he is 
"pro-death penalty [and] . . . in favor of the potential use of the death 
penalty as an exercise of prosecutorial discretion."

The decision to seek the death penalty against Brandon Johnson was made by 
Brauchler and his office - not Colorado law - and it will cost the state and 
county millions of dollars whether the death penalty is ultimately imposed or 
not. Brauchler has tried to deflect responsibility by stating that the decision 
to seek the death penalty was largely outside of his hands: "This is what 
Colorado has said makes for an aggravated murder, not what I've said."

But the reality is otherwise: Colorado law is agnostic on the question of 
whether a death sentence is actually sought in a particular case; all our 
statute does is set forth the preconditions for a death prosecution. It is up 
to the prosecutor to determine whether to seek death in an individual case.

Imagine if Brauchler were correct and that Colorado law mandated that 
prosecutors seek the death penalty in every case where that punishment is 
available.

If every (or even just most) "aggravated" murders require the prosecution to 
seek the death penalty, then there would have to be dozens of death penalty 
prosecutions per year in our state, and there would have been hundreds of death 
penalty prosecutions over the past quarter century rather than just a couple of 
dozen. This increased use of our capital statute would have cost the state tens 
of millions of dollars (imagine 10 or more James Holmes trials per year, every 
year).

Such a rate of capital prosecution is not palatable to mainstream Coloradans, 
and thankfully it is not at all what Colorado law requires.

(source: Opinion Columnists; Sam Kamin and Justin Marceau are professors at the 
University of Denver Strum College of Law who have written extensively about 
the death penalty both in Colorado and throughout the country----The Denver 
Post)






USA:

We Can't Forget the Consequences of America's Death Penalty Battle


When Ronald B. Smith was convicted in 1995 of murdering convenience store clerk 
Casey Wilson in a robbery attempt, an Alabama jury recommended that he be 
sentenced to life in prison without parole. But the judge in the case, using an 
override power now only available in Alabama, sentenced Smith to death.

On Thursday, Smith was executed in a manner that likely violated the Eighth 
Amendment's prohibition on cruel and unusual punishment. The drug that was 
supposed to render him unconscious for his lethal cocktail, midazolam, clearly 
did not have its intended effect.

For the next 13 minutes Smith struggled for breath, heaved, and coughed on the 
execution table, according to those that were there, with no attempts to halt 
the procedure.

This is not the 1st time that midazolam has been ineffective.

In Arizona and Ohio, 2 of the few states that use midazolam, the use of the 
drug has created botched executions. Within a year of its initial use for 
capital punishment in 2013, it was deemed problematic in 1/3 of executions. The 
Supreme Court delayed executions in Oklahoma using the drug in 2015 after both 
the state and lawyers representing 3 inmates on death row asked for the 
temporary stay.

Justice Sonia Sotomayor, in a dissent to the Supreme Court's decision to allow 
a similar execution to proceed, implied the court's failure to uphold the 
Constitution, saying:

"Petitioners have committed horrific crimes, and should be punished. But the 
Eighth Amendment guarantees that no one should be subjected to an execution 
that causes searing, unnecessary pain before death. I hope that our failure to 
act today does not portend our unwillingness to consider these questions."

Advocates against the death penalty point to botched executions like Smith's 
and more than 100 death row exonerations as evidence that the practice is, 
among other things, too flawed to be carried out.

While proponents of the death penalty believe that it can serve as a powerful 
deterrent to would-be criminals and a source of justice to their victims or 
their victims' families, others aren't so sure.

In addition to the District of Columbia, 19 states have banned the death 
penalty. Some groups, such as the American Civil Liberties Union, consider the 
entire practice to violate the Constitution's prohibition of "cruel" punishment 
and note that it is more costly - and sometimes more permanent - than life in 
prison.

Groups like Oregonians for Alternatives to the Death Penalty have argued that 
the money wasted on capital punishment should be spent on preventative and 
restorative justice solutions such as investments in early childhood education, 
mental health programs, drug courts, and counseling for the family of victims. 
Such tactics come out of the belief that justice cannot be taken through 
violent revenge, but only gained through reducing the conditions that led to 
violence or the harm caused by violence.

(source: Joel Findlay, attn.com)

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

Many states still execute inmates with severe mental illnesses


More than 10 years ago, the Supreme Court ruled in 2 separate cases that the 
death penalty is unconstitutional when applied to juveniles or the 
intellectually disabled.

But today, over a decade later, many states still execute inmates with severe 
mental illnesses, such as schizophrenia, bipolar disorder and post-traumatic 
stress disorder.

And Catholic advocates say the rules need to change.

"As Catholics we are called to uphold the dignity of all life, and supporting a 
Severe Mental Illness exemption bill is a vital part of our call to live where 
justice and mercy meet," said Karen Clifton, executive director of the Catholic 
Mobilizing Network. The group advocates for an end to the use of capital 
punishment.

The death penalty for the severely mentally ill "does not further the 
retributive goals of the punishment, as this population simply does not have 
the requisite moral culpability," a new report by the American Bar Association 
on the death penalty stated.

"Their illnesses can impair the ability to interpret reality accurately, 
comprehend fully the consequences of their actions, and control their actions."

2 years ago, a federal court halted at the last minute the execution of a man 
diagnosed with schizophrenia. Advocates are citing his case in favor of a death 
penalty ban for the severely mentally ill.

Scott Pinetti, the man at the center of the Texas case, killed his in-laws in 
1992 and was sentenced to death in 1995.

Before his crime, he had been hospitalized 14 times in 11 years for symptoms of 
mental illness. Pinetti was diagnosed with paranoid schizophrenia and suffered 
from hallucinations. At his trial, he dressed in a purple cowboy outfit and 
attempted to subpoena John F. Kennedy, the Pope, and Jesus Christ. Yet he 
testified in court against the wishes of his attorney, and the jury sentenced 
him to death.

A federal appeals court granted a temporary halt to his scheduled execution in 
2014, just hours before it was to take place. Texas' Catholic bishops approved 
of the move and restated their opposition to his execution.

"The Texas Bishops have long taught about the immorality of the death penalty 
and were particularly vocal seeking mercy for Panetti, who has been diagnosed 
by several doctors as suffering from severe mental illness," they stated, 
adding that "the death penalty in his case would violate the constitution's 
prohibition on cruel and unusual punishment."

Yet despite prohibitions on the execution of juveniles and persons with 
Intellectual Disability (formerly referred to as mental retardation), decided 
by the Supreme Court in 2002 and 2005 respectively, many states that use the 
death penalty have no specific prohibition on the its use on persons who had 
severe mental illness at the time of their crime.

Thus, controversial executions of people with evidence of mental illness 
continue. For instance, in 2015 Georgia executed Andrew Brannan, a Vietnam War 
veteran whose lawyers said was ruled 100 percent disabled with PTSD by the 
Department of Veterans Affairs and was diagnosed with bipolar disorder before 
he shot and killed a police officer.

A coalition of groups, including the Catholic Mobilizing Network, the American 
Bar Association and the National Alliance on Mental Illness, and other 
religious and mental health groups have been pushing for this legal protection.

Several states, including Ohio, Tennessee, Texas, Virginia, and North Carolina, 
are "expected to consider severe mental illness exemptions" to their death 
penalty law next year, said Hilarie Bass, president-elect of the American Bar 
Association. These legislative proposals are bipartisan, she added, speaking at 
a keynote luncheon on severe mental illness and the death penalty at Georgetown 
University.

Getting into the details

What might this prohibition look like and why is it so important to this 
coalition?

In its new report, the American Bar Association quoted from the American 
Psychological Association's definition to clarify what mentally ill person 
might be exempt from the death penalty.

Someone with "severe mental illness" would have a specific diagnosis like 
schizophrenia, bipolar disorder, or post-traumatic stress disorder, would have 
had it for at least a year, and would have "comparatively severe impairment in 
major areas of functioning."

Before a capital murder trial, the judge would need testimony "from a licensed 
psychiatrist or psychologist who would reevaluate the defendant and his or her 
health history," Bass explained. Witnesses familiar with the defendant could 
give testimony for or against their claim of severe mental illness.

It would have to be clear that the judgment of the defendant would have been 
impaired at the time of their crime, and not just in the present moment.

And these exemptions "would not create a total defense for murder, or mean that 
the defendant would not be punished if found guilty," Bass insisted, as someone 
committing a capital crime could still receive a life sentence without parole.

Severe mental illness like schizophrenia can clearly impair someone's judgment 
to the extent that their guilt for a capital crime is reduced as it is for 
juvenile offenders and the Intellectually Disabled, Bass argued.

In those cases, she said, "our society considers both groups less morally 
culpable than the worst of the worst," and "less able to appreciate the 
consequences of their actions, less able to participate fully in their defense, 
and more likely to be wrongfully convicted."

Yet the same applies for persons with severe mental illness, she said. Someone 
could competently plot a crime yet be delusional while doing so - which was the 
case of Russell Weston, who drove from Illinois to Washington, D.C. and shot 2 
Capitol Hill police officers in 1998.

According to the Washington Post, Weston afterward told a court-appointed 
psychologist that he had come to the Capitol seeking "the ruby satellite" which 
would protect citizens from diseases spread by cannibalism. He had also 
previously stayed 53 days in a mental hospital.

Calls for greater action

There are some ways that a defendant with mental illness can currently escape a 
death sentence. Juries can consider their mental health, they can plead 
insanity, they could be judged incompetent to stand trial, or be judged 
incompetent at the time of their execution.

However, these aren't reliable methods of ensuring a just sentence, Bass said.

For one, a defendant with severe mental illness could be seriously impaired in 
court. "It can strongly affect defendants' decision-making about their defense, 
leading them to refuse to cooperate with their attorneys or reject the 
presentation of any mitigating evidence related to their illness," the American 
Bar Association noted in its report.

However, mental illness can also be an aggravating factor for the jury in 
someone's sentence, "and it is worsened when a defendant has a bizarre or flat 
affect in the courtroom," the report said. Juries can also "view people with 
mental illness as intrinsically dangerous," thus bringing "a significant risk" 
that a death sentence may be imposed because of - not simply in spite of - a 
defendant's mental illness.

The delusion that can haunt a person with severe mental illness is all the more 
reason why they should receive treatment - not the death penalty, advocates 
insist.

The U.S. bishops have advocated for the overall repeal of the death penalty, 
but also emphasized what they called particular abuses of it, in their 2000 
statement on criminal justice reform, "Responsibility, Rehabilitation, and 
Restoration."

"While government has an obligation to protect the community from those who 
become aggressive or violent because of mental illness, it also has a 
responsibility to see that the offender receives the proper treatment for his 
or her illness," the bishops stated.

Mentally ill inmates need treatment for their condition and not just 
punishment, they said. "Far too often mental illness goes undiagnosed, and many 
in our prison system would do better in other settings more equipped to handle 
their particular needs."

And 1 of the bishops' recommendations was to push for a death penalty ban for 
the mentally ill: "In states that sanction the death penalty, join 
organizations that work to curtail its use (e.g., prohibit the execution of 
teenagers or the mentally ill) and those that call for its abolition."

Catholic Mobilizing Network agrees that treatment and rehabilitation can be 
more effective ways of dealing with crime in cases where criminals are severely 
mentally ill.

Another reason why a death penalty exemption must be considered for them, the 
network added, is because such persons are overrepresented in the prison 
population and on death row. According to one estimate, around 20 % of those on 
death row suffer from severe mental illness.

Ultimately, protecting those with serious mental disorders from the death 
penalty is part of Catholic practice, Clifton stressed, and "a vital part of 
our Church's pro-life mission."

(source: Catholic World Report)

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

Clashes between defense attorney, judge mark legal tension in Roof trial's 
opening days


The revelations in a federal courtroom last week were gruesome - difficult to 
hear and to watch.

But an underlying tension in the horrific hate crimes trial of Dylann Roof is 
the battle between 2 key players who started their careers in Columbia: defense 
attorney David Bruck and trial judge Richard Gergel. At stake? Nothing less 
than the life of Roof.

Bruck and Gergel are clashing over Bruck's repeated motions and efforts to 
allow the jury to hear evidence about Roof's mental state. Roof is charged with 
the June 2015 execution-style killings of 9 African-Americans at Emanuel AME 
Church in Charleston.

In the past week, Gergel has rebuffed Bruck's efforts to delay the trial and 
grant a mistrial. Although the judge has sometimes granted Bruck's motions on 
various issues, he sometimes scolds Bruck as if addressing a child.

And, as frequently as Bruck tries to get Roof's mental condition before the 
jury, Gergel cites numerous legal rules and court decisions that say Bruck 
can't put that kind of evidence before the jury during the guilt-or-innocence 
phase of the ongoing death penalty trial.

If Roof had been found insane earlier, he wouldn't be standing trial. But 
mental competency tests have so far found Roof is legally competent - meaning 
he is able to understand the legal proceedings and assist lawyers in his 
defense - and so has to stand trial.

So Bruck is pushing to get to the jurors as early as he can anything that would 
make Roof seem more human - and perhaps less responsible for his actions.

Bruck has even made the sparring personal. On Thursday, the defense attorney 
suggested Gergel might not be living up to a noble legal standard set by 
Gergel's legal hero, the late U.S. Judge Waties Waring of Charleston.

"This courthouse is named for Judge Waring largely due to your efforts," Bruck 
told Gergel last week with the jury out of the room, noting that Gergel had led 
an effort to put a statue of Waring in the Charleston federal courthouse plaza.

"We revere Judge Waring," Bruck said, his voice rising across a packed 
courtroom, "Not because he did right - but because he did right when it was 
hard." Bruck, who usually speaks in a patient, almost gentle, voice, emphasized 
the word "hard," implying Gergel was taking the easy way out over a dispute 
about a prosecution witness' statement that Roof should be punished "in the pit 
of hell."

Gergel ignored Bruck's jibe about Waring, a legendary Charleston judge who in 
1951 wrote a courageous legal opinion that eventually helped lead to the 
country's end of segregated public schools.

'Turn over every stone'

On 1 occasion, Gergel appears to scoff at Bruck's repeated efforts to get 
mental evidence before the jury by using a semi-legal term with its origins in 
the beer industry.

Granting 1 motion Bruck made "would be a back door to insanity lite," Gergel 
told Bruck on Friday morning before the jury was brought in.

"Insanity lite" - a take off on low-alcohol-content beer - refers to a defense 
team efforts to place a defendant's mental state before a jury without having 
to actually claim that defendant is insane.

That morning, Bruck and his legal team had just moved to summon some of Roof's 
middle school teachers to testify during the guilt-or-innocence phase of the 
trial, which was in its 3rd day.

"I understand your position," Gergel told Bruck. "You need to turn over every 
stone in a capital case, and I respect that."

Bruck kept arguing the point. Gergel sighed. "Now, Mr. Bruck, here we go 
again."

Bruck didn't stop, telling Gergel that Roof has vital constitutional rights at 
stake, including the right to call witnesses, such as middle school teachers, 
who could testify on his behalf in the guilt or innocence phase.

People familiar with death penalty cases aren't surprised at Bruck's 
aggressiveness.

"In a fully contested capital trial, it is not unusual for the defense to be on 
the nerves of the judge," said Charles Adams, a Charleston attorney who has 
been involved in some 75 death penalty cases around the nation and South 
Carolina.

Still, Bruck's efforts are especially crucial in this case.

That's because Roof has already told Gergel he wants to represent himself 
during the trial's death penalty phase, if it comes to that.

If that happens, Roof may try to explain to the jury that he killed 9 innocent 
African-Americans as a political act - not because he has any mental defect. 
That would be sure to anger the jury rather than buy sympathy, legal observers 
say.

According to evidence in the case, Roof is a "self-radicalized" white 
supremacist who likely wants to try to convince the jury he acted out of 
sincere political beliefs, according to various court documents. Prosecutors 
contend he learned his toxic racist beliefs from extremist websites that spread 
inflammatory false information, then made a twisted, but sane, decision to 
kill.

Neither Bruck nor Gergel is giving interviews while the trial is going on.

Legal experts, however, say that Bruck has to keep pushing points he believes 
are valid.

"You have the ethical duty to raise all potential issues and make sure they are 
preserved," Adams said.

"A lot of courts have kicked out appellate issues because they weren't properly 
preserved. A lawyer is responsible for objecting in a timely way on all the 
different grounds that are available," Adams said. "If you skip one of the 
grounds, and it was the right one, an otherwise valid appeal could be kicked 
out, and your client could lose his life."

Head to head

Both Gergel and Bruck have sterling reputations.

At 67, Bruck is 1 of the nation's top capital defense attorneys, appointed at 
taxpayer's expense to defend Roof by Gergel. Death penalty trials are highly 
complicated affairs, and to avoid mistakes that would lead to a case being 
overturned on appeal, judges want the best lawyers trying them.

Bruck, who runs a death penalty defense clinic at Washington & Lee University, 
has been involved in hundreds of death penalty cases, either as a lawyer or 
adviser.

He has won 5 death penalty cases before the U.S. Supreme Court and dozens more 
before the S.C. Supreme Court. A Canadian who went to law school at the 
University of South Carolina, Bruck cut his teeth in the Columbia legal 
community.

In 1995, he won national attention for winning a life sentence for child killer 
Susan Smith, who's now in state prison for drowning her 2 young boys in a Union 
County lake. Most recently, he failed to hold off the death penalty for the 
surviving brother in the Boston Marathon bomber case.

Gergel, 62, before becoming a federal judge in 2010 and moving to Charleston, 
was known for a series of crusading law cases. Many of the decisions led to 
changes in laws. He also successfully represented clients who had been wronged 
by governments, institutions and businesses.

Also a USC law school graduate, Gergel has handled several high-profile cases 
since becoming a judge. They include writing a landmark 2015 opinion that 
opened the doors to same-sex marriage in South Carolina.

'Other killers'

Numerous laws and legal opinions support Gergel's position about withholding 
mental condition evidence to a jury during the guilt-or-innocence phase of a 
death penalty trial.

Federal prosecutor and assistant U.S. Attorney Jay Richardson and other 
prosecutors insist Roof is a hardened criminal and want no mental health 
evidence to go the jury in the guilt-or-innocence phase.

"This is a case about a crime that occurred on one night, the planning and 
preparation that came into it, and what he did afterward," Richardson told 
Gergel Friday in one dispute. Only evidence that directly goes to guilt or 
innocence should be admitted, Richardson said.

Late Friday, prosecutors continued portraying Roof as a man responsible for his 
actions, putting FBI agent Michael Stansbury on the witness stand. Along with 
FBI agent Craig Januchowski, Stansbury had conducted a chilling 2-plus hour 
video in which Roof confessed to the agents.

Asked what Roof's demeanor was by prosecutor Stephen Curran, Stansbury told the 
jury that Roof had no regrets, "Like other killers I have interviewed. ... It 
was like he did what he did and wanted to explain it."

Bruck, of course, immediately objected to the comparison of Roof with "other 
killers."

Although Gergel instructed Curran to ask the question another way, Bruck 
objected to that one, too, and a legal dispute arose where at one point, Gergel 
- with his mouth half-opened in apparent disbelief at Bruck's persistence - 
appeared to squinting at Bruck.

"It's not fair!" Bruck told Gergel.

AT THE COURTHOUSE

Highlights from last week

-- Defense attorney David Bruck, speaking almost in a whisper, told the jury 
in his opening statements Wednesday that Dylann Roof is guilty and that the 
real issue before the jury, to come in the trial's 2nd phase, is whether to 
give Roof life, without possibility of parole, or a death sentence.

-- Lead prosecutor, assistant U.S. Attorney Jay Richardson, speaking without 
notes for almost an hour, characterized Roof as a man who made a free choice to 
become a killer. Richardson brought each of the nine victims to life. And then 
he described in cinematic detail how Roof executed them each. Richardson told 
the jury he also later would show how Roof absorbed toxic white supremacist 
postings on the Internet.

-- Roof's mother, sitting in the audience, suffered a heart attack shortly 
after Richardson's remarks.

-- The prosecution opened its case with Felicia Sanders, one of three 
survivors, describing what happened the night Roof came to Emanuel AME's 
Wednesday night Bible study class. One by one, she talked about the people who 
were there - people she loved who never made it home.

-- Prosecutors played for the jury a more than 2-hour-long video confession 
Roof gave to 2 FBI agents in North Carolina the day after the shootings. Jurors 
and family members of victims heard Roof's voice for the 1st time. He said he 
considered himself a white supremacist who had to kill black people. And he 
said he chose Emanuel because it was historic and because a Wednesday crowd 
would be small. The court made the video available for public viewing after it 
was played in court.

Coming up this week

-- Among the evidence offered this week could be testimony about the extremist 
websites that helped Roof become a self-radicalized white supremacist.

-- Prosecutors expect to finish making their case by Wednesday or Thursday but 
couldn't say for certain.

-- The defense could begin presenting its case after the prosecution rests. -- 
Although Roof has allowed defense attorney David Bruck and his legal team to 
represent him for the guilt or innocence phase of the trial, Roof still plans 
to represent himself if there is a death penalty phase.

(source: thestate.com)