[Deathpenalty] death penalty news----OHIO, MO., KAN., CALIF., WASH.
Rick Halperin
rhalperi at smu.edu
Thu Feb 4 11:59:46 CST 2016
Feb. 4
OHIO:
Tragic tales of injustice
Professor Marge Koosed of the UA School of Law hosted a panel to discuss race
and the death penalty this past Tuesday. The event, titled "The Death Lottery:
How Race Impacts the Ohio Death Penalty," featured 4 speakers who have
firsthand experience with the issue.
A modest crowd attended the noontime discussion, which was held in the Student
Union Theater. Koosed opened the event with Ohio capital punishment statistics,
including the fact that 57 % of Ohio's death row inmates are minorities - while
only 12 % of Ohio's population are minorities.
Then she turned the podium over to the afternoon's speakers.
The 1st speaker was Judge Stephen McIntosh, a former member of an Ohio task
force asked to recommend changes to state death penalty laws - recommendations
that included legislation that would prevent seriously mentally ill people from
being executed.
Other recommended pieces of legislation would require absolute certainty that
the defendant committed the crime before he or she could be condemned. McIntosh
expressed frustration that people, especially people of color, are sentenced to
death with little evidence. "You would be surprised to see how many people are
on death row because of a single eyewitness or ... a jailhouse snitch," he
said.
After that, the podium was passed to Jack Sullivan, Jr., an ordained minister
and executive director of Murder Victims' Families for Reconciliation. Sullivan
discussed the mission of his organization, which is primarily to abolish the
death penalty.
Sullivan also recounted the tragic story of his younger sister Rebecca, who was
murdered in Cleveland at the age of 21. He also spoke of the "Imperial 11," 11
African-American women who were kidnapped and killed in an Imperial Avenue
duplex in Cleveland.
He expressed disgust with the legal system's response to both crimes, alleging
that certain law enforcement personnel lack effort when investigating crimes
involving African-Americans. "There's a thread of indifference at best, and a
thread of lack of concern at worst," he said.
He stressed that he wants to see the killers captured, but not executed.
Next, Kwame Ajamu was invited up to the podium. Last year, Ajamu was exonerated
for a 1975 murder that he did not commit.
The only witness for the case was a 12-year-old boy who recently admitted that
law enforcement pressured him to falsely identify the murderers. "Not only did
they fabricate the case, but they actually wrote my part into the story weeks
later," Ajamu said.
For almost 25 minutes he told his tragic story, frequently pausing to dry his
eyes with a handkerchief. He was arrested while playing basketball, assigned an
apathetic defense attorney, and sentenced to death row.
"They came into an all-black neighborhood and left with 3 of its occupants," he
said. "We wouldn't be back for 40 years. So many moments in life. 17 years in
prison. Now, all of the seniors are gone. I'm a senior. My brother is a
senior."
In his freedom, he stands as a staunch opponent of capital punishment. "If I
could go back, man, I would do it all again," he said. "Just to stand as I do
today and represent the eradication of this evil."
After Ajamu's emotional presentation, Abraham J. Bonowitz pointed to relevant
resources and websites, including www.otse.org. He encouraged the audience to
join the fight against wrongful convictions and racial injustice in Ohio.
(source: buchtelite.com)
MISSOURI:
Execution Drug Supplier Won't Say If It Alerted Financial Crimes Unit
Missouri paid a family-run pharmacy in Oklahoma more than $30,000 in cash for
execution drugs. Federal law requires recipients of large amounts of cash alert
a federal financial crimes unit - but the pharmacy isn't saying whether it did.
Over the past 2 1/2 years, the state of Missouri has handed out $250,000 in
cash to members of an execution team in an effort to keep their identities
hidden. Its methods have raised questions about whether the state has followed
federal law - but also whether at least 1 of the recipients of the cash
payments complied with the law.
Most of the execution team payments were in increments of several thousand
dollars. But one recipient, a pharmacy in Oklahoma that provided drugs for
several executions, received payments of $11,091.
As BuzzFeed News revealed last week, the state has not been alerting the
Internal Revenue Service to the payments. Experts said the state's methods
raise the risk that the recipients could be evading taxes, and is likely in
violation of federal tax law.
Further investigation of the "confidential execution team member receipts"
reveals another potential legal issue. Anytime more than $10,000 in cash
changes hands, the recipient is obligated to inform the Treasury Department's
Financial Crimes Enforcement Network (FinCEN), which investigates money
laundering.
The Apothecary Shoppe, the pharmacy that received 2 cash payments of $11,091,
apparently would have been subject to the law, an expert who spoke with
BuzzFeed News explained, and therefore required to alert the Financial Crimes
Enforcement Network of the payments.
"If any one of the payments was more than $10,000, then they should have made
the filing with FinCEN," said Bryan Camp, a former IRS employee who is now a
law professor at Texas Tech.
Attorneys have sometimes balked at the requirement of alerting the financial
crimes unit of large cash payments, arguing it violates attorney-client
privilege and their code of ethics. But a federal appeals court disagreed in a
1992 case, holding that an attorney had to disclose the information to the
unit.
The penalties for not alerting the unit would be the same penalties the state
could face for not disclosing the payments to the IRS. The penalties are
relatively modest, starting at $100. But the penalties can add up, and
increases if the violation was intentional.
The Apothecary Shoppe is currently under a court-ordered receivership. The
receiver did not answer when asked if he would look into whether the pharmacy
had alerted the financial crimes unit, or paid taxes on the large amount of
cash it received. Since Missouri did not issue 1099s, the IRS would have no way
of knowing to check for tax payments on the payments.
The pharmacy began supplying for executions in November 2013. In the 1st
execution, the pharmacy was first paid $8,000. The state then increased its
payments to the pharmacy to $11,091 per execution for another 2 executions. A
corrections official testified that the extra cost was to pay for testing of
the drug before it would be used.
In total, the Apothecary Shoppe received $30,182 for 3 executions.
The other members of the state's execution team did not meet that threshold in
a single transaction. But other members cumulatively received well over $10,000
in cash. The law requires alerting the financial crimes unit if the payments
are more than $10,000 in one "or more related transactions." A tax expert
BuzzFeed News spoke with said it's unclear if the payments counted as "related
transactions" for separate executions - meaning it's unclear if they would also
need to alert the financial crimes unit.
In late 2013, St. Louis Public Radio discovered the pharmacy was selling drugs
to Missouri despite not being licensed to do so in the state. Shortly
thereafter, the pharmacy was sued by a death row inmate facing execution. He
claimed the drugs that the Apothecary Shoppe was making would likely put him
through severe pain.
The case was settled out of court. The terms were confidential, but the
pharmacy agreed to not sell drugs for any more executions. The Apothecary
Shoppe has refused to discuss its involvement in Missouri's executions, and the
state found a new drug supplier.
Since then, the Apothecary Shoppe has defaulted on loans from the bank and
their board resigned en masse. The bank sued the pharmacy, and put in place
David Rhoades, a receiver who specializes in fraud.
Rhoades initially declined to comment on if the pharmacy paid taxes on the
cash, and if it alerted the financial crimes division, since it took place well
before his tenure. But when BuzzFeed News pointed out that the IRS could
collect on the taxes, or could penalize the pharmacy if it did not alert the
financial crimes division, Rhoades offered a brief statement.
"Regardless of what form revenue takes, it would be typical that it is recorded
as income and therefore included in the tax preparation," Rhoades said.
Although he added, "I do not believe that it is a current issue for the
pharmacies," Rhoades would not specifically answer questions as to whether the
pharmacy paid taxes on the payments or alerted the financial crimes division.
The Department of Corrections did not respond when asked for comment. However,
the director of the Department of Corrections, George Lombardi, was asked to
explain the cash payments before the state legislature this week.
Lombardi could not point to an exemption that allowed the department to not
issue 1099s, but defended its practice nonetheless.
"Is it your understanding that there is some sort of exemption for the
department of corrections to skirt that federal requirement?" Rep. Jeremy
LaFaver asked.
"It is my understanding that giving 1099s to these individuals would reveal who
they were, and would mean the end of the death penalty, because these
individuals wouldn't do it," Lombardi said.
Gov. Jay Nixon, who oversees the department of corrections, declined to
comment.
(source: BuzzFeedNews)
**********************
Paul Wieland leads unlikely coalition to end death penalty
I knew Kent Heitholt, the late sports editor of the Columbia (Mo.) Daily
Tribune, who was beaten to death on Halloween night 2001 in the parking lot of
his paper. Kent was a big, tall man, probably close to 300 pounds. He was a
nice person, a pro at his job and pretty mild mannered.
He was set upon by some punks who beat and strangled him.
One of those accused of the killing, Ryan Ferguson, was a 17-year-old high
school student. Based on the testimony of a childhood friend, who himself
pleaded guilty to 2nd-degree murder in the case, and the testimony of a
janitor, Ferguson was arrested in early 2004 and convicted in 2005. By then a
freshman at Mizzou, he was sentenced to 40 years for the killing.
In November 2013, Ferguson's conviction was vacated by a Missouri Court of
Appeals after the 2 witnesses admitted lying on the stand during Ferguson's
trial.
Kent lost his life. Ferguson lost nearly a decade of his.
Anytime there's news of prisoners wrongly accused or freed, or a discussion
about the fairness of the death penalty, I think about Kent and the double
tragedy of his case.
Last week was one of those times as a Missouri Senate committee took up a bill
to formally repeal the death penalty in our state.
State Sen. Paul Wieland (R-Imperial) is the main sponsor and spokesman for the
bill.
Wieland, a devout Catholic, is one of the most ardent and consistent pro-life
members of the Legislature.
He is out front of a movement that may be pushed forward by an odd alliance of
classic pro-lifers and government-can't-do-anything-right believers.
In the past, Republicans generally have been pro-death penalty and pro-law and
order, which aren't necessarily the same thing, but which have a large overlap.
For decades, GOP candidates in campaigns have tried to paint Democrats as being
more concerned about the rights of criminals than police officers.
So how have the Republicans come to be the party of no-death penalty? Because
the party's extreme edge - hard as that may be to identify - has come full
circle.
That element of the GOP has become so virulently anti-government (even as it
presides over it) that it doesn't trust anything the government does, including
executing people.
That growing attitude, coupled with some high-profile exonerations of people on
death row, has joined the always pro-life forces to move this bill forward.
There are practical considerations, too, such as the potentially millions of
dollars in legal costs it takes to execute a prisoner, dragged out over 2
decades or more. There also is a school of thought that says execution is too
easy for them, that suffering in prison for 30 or 40 years is stronger
punishment.
What I would call the classic pro-life stance has never differentiated which
lives it finds sacred. The Catholic Church has been as adamant in its
opposition to the death penalty as it has been to abortion or euthanasia. It's
a 1-sentence stance - only God can make that decision.
To his credit, Wieland has been consistently pro-life. He and his wife, Terri,
sued the federal Department of Health and Human Services in 2013 when Obamacare
regulations forced them to accept health insurance that included contraception
and abortion-inducing drug coverage. At the time, he said he filed the suit on
behalf of his 3 daughters and his family's beliefs.
A federal judge threw the case out in 2014, ruling that the Affordable Care Act
(Obamacare) superseded state law that allowed an opt-out of such coverage. The
Wielands appealed and won that appeal in 2015, allowing the case to go forward.
It has not yet been resolved.
It's always been a curious thing to watch many conservatives pledge their
pro-life credentials on abortion to voters, but at the same time favor the
death penalty.
For the religiously inclined, the Bible doesn't offer a clear answer. The Old
Testament offers contradictory guidance. There are numerous references to "an
eye for eye" which seem to endorse retaliation.
That sentiment is contradicted in Romans 12:19: "Vengeance is mine; I will
repay, saith the Lord." In the New Testament, Matthew 5:38 references the
original eye-for-an-eye quote and refutes it, urging disciples to turn the
other cheek to an enemy.
Most of us, fortunately, have never been in the situation of the Heitholt
family, or the thousands of other families affected by horrible crimes. It
would strain anyone's beliefs to see a criminal smirking for his mug shot if
his victim had been one of your loved ones.
Wieland and his church take a simple approach - all human life is sacred,
period.
Senate Bill 816 was voted out of committee with a "do pass" recommendation last
week. It may not become law, but you have to hand it to Wieland, who has
introduced similar bills in past sessions, for consistently putting his beliefs
on the line.
(source: Column, Patrick Martin; myleaderpaper.com)
KANSAS:
Kansas v. Carr: Procedure and the Death Penalty at the Supreme Court
The debate over the constitutionality of the death penalty took on a renewed
vigor last term in Oklahoma's lethal injection case, Glossip v. Gross, in which
Justice Breyer in dissent suggested it "highly likely that the death penalty
violates the Eighth Amendment." While the Court decided 5-4 that Oklahoma's use
of the lethal injection drug midazolam - part one of a 3-part drug cocktail
meant to numb an individual from the pain caused by the other drugs working to
stop the heart - was constitutional, the close vote and impassioned dissent
highlighted a growing skepticism of capital punishment in the Court.
Flash-forward to this term and the issue was high on the docket with four cases
raising procedural questions about the death penalty. 2 have since been
decided.
First, in Hurst v. Florida the Court deemed unconstitutional a sentencing
scheme that charged the judge, and not a jury, with making the ultimate
sentencing decision in capital cases. Decided 8-1, Hurst seemed to indicate the
direction the Court would take in its three remaining death penalty cases.
Then, just over a week later in Kansas v. Carr/Kansas v. Gleason, the Court
voted 8-1 against recognizing additional Eighth Amendment procedural
protections. What accounts for this difference? And what do these inconsistent
results spell out for the remaining two death penalty cases, Foster v. Chatman
and Williams v. Pennsylvania?
In Carr, the Kansas Supreme Court vacated three death sentences - those of the
Carr brothers and of Gleason, a defendant in an unrelated case - because of the
lower court's failure to affirmatively instruct the jury that mitigating
factors need not be proved beyond a reasonable doubt, and in the case of the
Carr brothers, not allowing severance at the sentencing phase of trial.
Kansas's attorney general challenged this decision, and the Court granted
certiorari on the question of whether the Eighth Amendment demands the
procedural protections recognized by the Kansas Supreme Court.
It became readily apparent that the respondents in Carr were in trouble.
Justice Scalia halted oral argument to recount, at length, the grisly details
of the Carr brothers' crime spree, known as the Wichita Massacre. It came as no
surprise then, when the opinion for the case was handed down, that Justice
Scalia, writing for the majority, used over 2 pages of his 18-page opinion to
again hash out the horrendous facts. In the remaining pages, the Court found
little trouble in dispensing with the respondents' arguments.
The Court first dismissed a jurisdictional objection brought by Gleason that
the Kansas Supreme Court decision was based on adequate and independent state
grounds. Next, the Court ruled that the instruction originally given at
sentencing was sufficient and that "no juror would reasonably have speculated
that mitigating circumstances must be proved by any particular standard, let
alone beyond a reasonable doubt." The Court, legally dissecting the wording of
the original instruction to reach its determination of what a reasonable juror
would conclude, confusingly followed said determination with a reminder that
jurors do not undertake such detailed analysis of jury instructions.
The Court likewise refuted respondents' argument that the joint sentencing
proceeding for the Carr brothers violated their Eighth Amendment right to an
"individualized sentencing determination." Again pointing out the "almost
inconceivable cruelty and depravity" of the crimes, the Court concluded the
joint sentencing proceeding was not fundamentally unfair in this instance and
suggested instead its benefit in promoting reliability and consistency.
In the lone dissent, Justice Sotomayor did not challenge the majority's legal
conclusions, but instead focused her disagreement on the grant of certiorari.
Pointing out the state courts' unique function as "laboratories for
experimenting with how best to guarantee defendants a fair trial," she feared
the Court's intervention would act to dissuade states from implementing
protections above and beyond the constitutionally mandated minimum.
Juxtaposing the result in Carr with recent Court decisions on the death penalty
reveals a palpable shift. Justice Breyer, who previously called into question
the constitutionality of the death penalty writ large, now sides with the
majority. And while the issues did not go to the heart of capital punishment's
validity, it seems unusual, just one week after guaranteeing increased
protections in Hurst, that not one Justice argued that Carr's procedural
protections might be constitutionally mandated.
It is possible that the shocking facts of Carr, which Justice Alito described
as "some of the most horrendous murders that I have seen in my 10 years here,"
are accountable for this result. Undeniably, the facts played a part, with
Justice Scalia sparing no effort in his opinion to remind the reader of their
horrendous nature. But perhaps equally to blame is the nature of the procedural
constitutional issues being raised. Unlike Glossip, which divided the Court 5-4
with a substantive question on "cruel and unusual punishment," procedural
claims tend to be less compelling and pathos-laden than their substantive
counterparts. The question of jury instructions and individualized sentencing
determinations seem relatively insignificant, especially when presented in a
case with such unsympathetic defendants. It is very possible that in Carr, the
procedural questions were simply diminished by the overwhelming shadow of the
facts.
What do these 2 different results in Hurst and Carr mean for the 2 death
penalty cases currently pending before the Supreme Court? Both of the yet
undecided cases involve questions of procedural protections in capital
sentencing. Foster asks whether the Georgia courts erred in failing to
recognize racially motivated juror strikes under Batson v. Kentucky. Williams
asks whether an appeal judge's potential conflict of interest rose to the level
of constitutional violation.
On their face, both issues - whether it is racial discrimination or bias in the
judiciary - seem more cogent than the ones raised in Carr, and neither case
involves crimes rising to the level of the Wichita Massacre. But while the
death row inmates in Foster and Williams may still have hope in receiving a
favorable decision from the Court, 1 thing is clear: The future of the death
penalty at the Supreme Court is anything but certain.
(source: acslaw.org)
CALIFORNIA:
San Jose: DA to seek death penalty in brutal baby killing
Santa Clara County District Attorney Jeff Rosen will seek the death penalty
against a man charged with forcing a 16-month-old boy into a sex act so brutal
that it tore up his lips and throat before suffocating him, the Mercury News
learned Wednesday.
Rosen's decision to pursue a capital case against 42-year-old Alejandro
Benitez, in an era when opposition to the death penalty continues to rise in
California, is the 2nd time he has opted for the ultimate punishment against a
defendant since taking office 5 years ago. Rosen is also seeking the death
penalty against Antolin Garcia-Torres for the alleged 2012 kidnapping and
killing of 15-year-old Sierra LaMar, who disappeared just north of Morgan Hill
on her way to her school bus stop.
Rosen issued a short statement after prosecutors notified the court of his
decision Wednesday afternoon. An autopsy revealed that the boy, Kaden Bernard,
had over 40 different injuries -- both old and new, internal and external --
covering his body from head to toe.
"This was a nightmarish and extremely violent crime against the most vulnerable
of all victims," Rosen said. "It is the worst of the worst."
No decision regarding the death penalty has been made in another chilling case
in which prosecutors charged a 22-year-old San Jose man last month with raping,
beating and suffocating a 2-year-old boy as the child's mother slept in another
room.
Benitez has pleaded not guilty to charges of murder in the commission of a
serious and dangerous felony, which in this case is a lewd act on a child. His
court-appointed lawyers, who had presented their case for life without parole
to senior prosecutors on Rosen's special death penalty advisory committee,
expressed frustration Wednesday. They pointed out that Rosen's decision came on
the same day the National Registry of Exonerations reported a record 149
exonerations in 2015, including 5 inmates who had been sentenced to death. None
of the 5 were in California.
"On the very day a report was issued showing five people sentenced to death
were exonerated last year alone, we are extremely disappointed with Mr. Rosen's
decision to seek the death penalty," said Brian Matthews, the lead attorney for
Benitez. "His decision validates a deeply flawed system and disregards the
substantial cost to the public."
The toddler's ordeal began the morning of April 11, 2012, when his mother
dropped him off at the East San Jose home of baby sitter Juana Ayala. That
afternoon, Ayala called police to report that the child had choked while
drinking the bottle of milk his mother had left for him. Semen consistent with
Benitez' DNA profile was later found on the boy's clothing.
Rosen's announcement comes as a recent Field poll found that 47 % of voters
favor replacing the death penalty with life in prison without the possibility
of parole in California, up from 40 % in 2014.
At the same time, the poll shows that 48 % of registered voters would support
proposals to accelerate the state's notoriously slow system of resolving death
penalty appeals to pick up the pace of executions. However, support for
speeding up the process has dropped since from 52 % in 2014. Death penalty
opponents are preparing a measure for the November ballot that would abolish
California executions, while advocates of capital punishment are proposing a
conflicting measure to reform and speed up the death penalty system. If voters
were to approve both measures in November, the one with the most votes would
settle the death penalty question in California for now.
Benitez's trial is unlikely to start before the November election, meaning if
the ban passes, the prosecution would be forced to stop seeking the death
penalty.
California voters rejected the last effort to abolish California's death
penalty, in 2012, by a 52 to 48 % margin. However, the ban was approved in
seven of the 9 Bay Area counties, except in Solano and Napa. In Santa Clara
County, the proposed ban passed with 54.7 % support.
The state has executed 13 inmates since 1978, but nearly 750 remain on death
row, the largest in the nation.
Matt Cherry, executive director of Death Penalty Focus, which is backing the
measure to abolish capital punishment, said pursuing the Benitez trial will
cost Santa Clara County alone an extra $1 million. Last year, the state
Legislative Analyst's Office found that banning the death penalty would reduce
state and local costs associated with murder trials, appellate litigation and
prisons by about $150 million annually.
But Kent Scheidegger, legal director of the Criminal Justice Legal Foundation,
praised Rosen's decision.
"It's certainly not a waste if it's one of the worst of the worst crimes,"
Scheidegger said. "That's what a DA should do."
(source: Mercury News)
WASHINGTON:
Push For Vote On Death Penalty Fizzling Out In Washington
An effort to abolish the death penalty in Washington state this year seems to
be losing steam.
This fall, the Washington Association of Prosecuting Attorneys called on
lawmakers to put the death penalty up to a statewide vote.
But in a preview of the legislative session, leaders from both parties said
they are too busy working on education funding.
It's disappointing news to King County Prosecutor Dan Satterberg. He points
out, it has been 41 years since Washington voters weighed in on the topic.
Satterberg: "The question about the death penalty is not 'is it some day going
to go away,' the questions is how. The Legislature could vote on it, but
they've never been able to get a bill out of committee. The Supreme Court could
rule on its constitutionality, but that hasn't happened."
The other option is a voter referendum campaign, but Satterberg says the
prosecutor's group is not in a position to pay for that. Meanwhile, nine
inmates currently on Washington's death row are protected by a moratorium on
the death penalty by Governor Jay Inslee.
(source: KUOW news)
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