[Deathpenalty] death penalty news----MO., UTAH, WYO., CALIF.

[Rick Halperin]

January 1




MISSOURI:

Juror who voted to execute killer now hopes for mercy


18 years ago, Andrew Dazey thought David Barnett's murder of his grandparents 
in Glendale was so heinous that he and 11 other jurors voted to put Barnett to 
death.

But a federal judge overturned the sentence in August. If the state's appeal of 
that order fails, it will leave prosecutors to decide whether to settle for a 
life term or seek a new hearing to try again for an execution, the St. Louis 
Post-Dispatch (http://bit.ly/1J8kBvN ) reports.

U.S. District Judge E. Richard Webber wrote that although some of the evidence 
about Barnett's difficult past had been presented at his murder trial, 
"horrors," including sexual abuse, were missed.

Webber reasoned that "at least 1 juror would have determined the balance of 
aggravating and mitigating circumstances did not warrant death in Mr. Barnett's 
case."

Dazey would have been that juror.

"David should not be on death row," said the former jury foreman in a recent 
interview. "There's no way" he would vote for death, knowing what he now knows, 
he explained.

Dazey, now 63, said that he was "very, very comfortable" with what the jury did 
at the time. Even as recently as 2013, Dazey wrote to Barnett in prison, 
telling him that although he thought of Barnett and prayed for the condemned 
man, his actions had been "reprehensible."

But after reading Webber's opinion, Dazey believes that the majority of jurors 
would have decided differently "had a fraction of this information been 
available."

That part remains unknown.

Juror James Chickos said he had not reviewed Webber's ruling in detail. "I 
don't know if I would have changed my mind," he said. "I'm glad that the 
federal judge did what he did. It certainly could have made a difference."

Another juror declined to review the new data, saying that she had needed 
therapy after the trial. The others either could not be reached or didn't 
respond to messages.

St. Louis County Prosecuting Attorney Robert McCulloch's office referred 
questions to Missouri Attorney General Chris Koster's office, which has filed 
the appeal of Webber's ruling.

Koster's office declined to comment.

5 different knives

On Feb. 4, 1996, Barnett, now 39, used 5 knives to stab Clifford Barnett, 82, 
and Leona Barnett, 75, more than 20 times. He broke into their home and waited 
for them to return from church and brunch. They were his adoptive father's 
parents.

Barnett then stole their car and $120 in cash.

The next morning, he confessed and later even re-enacted the crime for 
investigators.

After his conviction on two counts of first-degree murder, his attorneys argued 
for leniency in the penalty phase, saying he had suffered from depression, 
bipolar disorder and post-traumatic stress disorder from a troubled and 
unstable childhood. Barnett had mulled suicide at 8 and again at 15, and later 
overdosed on prescription drugs and once set himself on fire.

Prosecutors cited aggravating factors, including that Barnett had murdered for 
money and the crime was "outrageously vile."

After deliberating for 16 hours over two days, jurors voted for death. They 
found aggravating circumstances, including that the killings were "unreasonably 
brutal," that he "committed repeated and excessive acts of physical abuse" on 
each grandparent, and that each murder took place while Barnett was committing 
other crimes, Webber's ruling says.

Trial failures

Barnett's current attorneys have long argued that Dazey and other jurors should 
have been presented in the penalty phase of the trial with more evidence to 
mitigate the severity of his crime.

Barnett's 1999 appeal did not detail the witnesses who should have been called. 
It was a failure that would dog him through years of unsuccessful appeals.

In 2012, his attorneys appealed again, citing a new U.S. Supreme Court ruling. 
Again, they were turned down.

But Barnett's attorneys asked Webber to reconsider and he did, triggering nine 
days of hearings in August and September of 2014.

"The increased quantity and detail of the evidence presented before this Court 
cannot be ignored, as they are directly relevant in determining how much the 
scales would likely have shifted in favor of Mr. Barnett in the eyes of the 
jury," Webber wrote in his opinion a year later. He called the sexual abuse 
allegations "powerful evidence" for the jury to weigh.

Dazey said the jury had heard some claims about physical and sexual abuse.

But with more time and more people to work on the case, Barnett's appellate 
lawyers had found his biological father, and new information about alleged 
physical and sexual abuse.

Jurors didn't hear 11 witnesses with "critically important (and potentially 
juror-persuading) evidence," including Barnett's mother, Shirley Pullen Acree, 
the judge noted.

During her pregnancy, Acree allegedly drank and took diet pills so she could 
stay awake and "party" more.

She would have left the newborn Barnett in the hospital had her friend not 
intervened, and repeatedly gave him away - once to a suicidal, drug-addicted 
prostitute with the nickname "Crazy Jane," and several times to the boyfriend 
of the sister of a friend, according to testimony.

That man was a mean, violent alcoholic, court testimony said. In his care, 
Barnett recalled being touched sexually by female house guests, having his nose 
smashed in by someone and having someone pour dishwashing liquid down his 
throat.

At age 5, Barnett was taken away and shuffled through a series of foster homes 
before being adopted by the son of his eventual victims. There were new 
allegations of abuse by a relative, who in a recent brief interview with the 
Post-Dispatch denied it.

Said Dazey, the juror: "I have never read where there was so much rejection in 
one life."

He also said, "If this wasn't a case I was involved in, I would have thought it 
was a fiction novel. Everybody failed to recognize what was going on here."

Moving forward

The attorney general's office has focused on the technical aspects of Barnett's 
case, rules and procedures, not the abuse.

The state said Barnett's time to appeal had expired, and complained that 
Webber's overturning of the sentence was a "novel proposition" unsupported by 
the law. They also raised concerns about a flood of state and federal prisoners 
launching new appeals using the same grounds.

Defense attorney Richard Sindel hopes that Dazey can influence politicians to 
change their minds about pursuing a fresh penalty hearing.

"We're hopeful that anyone who could have a decision in the process would be 
willing to look at what the jurors thought," he said.

Sindel said information from Dazey is compelling, as only jurors would know 
what had happened in their deliberations.

He also said that Barnett "is a totally different human being than he was when 
he went in."

(source: St. Louis Post-Dispatch)






UTAH:

Utah death row inmate asks judge to order his former attorney to hand over case 
file


A new murder trial begins for Douglas Anderson Lovell, 57, center, charged with 
aggravated murder for allegedly kidnapping and killing 39-year-old Joyce Yost 
in 1985 to keep her from testifying against him in a rape case. Lovell who 
appeared in 2nd District Court, in Ogden on Monday, March, 16, 2015, is seen 
facing into the courtroom gallery where the jury was being selected for his 
trial.

Francisco Kjolseth | The Salt Lake Tribune) A new murder trial begins for 
Douglas Anderson Lovell, 57, charged with aggravated murder for allegedly 
kidnapping and killing 39-year-old Joyce Yost in 1985 to keep her from 
testifying against him in a rape case. Lovell who appeared in 2nd District 
Court, in Ogden on Monday, March, 16, 2015, is seen facing into the courtroom 
gallery where the jury was being selected for his trial.

Rick Egan | The Salt Lake Tribune) Douglas Anderson Lovell, in court for the 
death penalty phase, in Judge Michael DiReda's 2nd District Court in Ogden, 
Friday, March 27, 2015. Lovell, has been convicted of aggravated murder for 
kidnapping and killing 39-year-old Joyce Yost in 1985 to keep her from 
testifying against him in a rape case.

Francisco Kjolseth | The Salt Lake Tribune) A new murder trial begins for 
Douglas Anderson Lovell, 57, center, charged with aggravated murder for 
allegedly kidnapping and killing 39-year-old Joyce Yost in 1985 to keep her 
from testifying against him in a rape case. Lovell who appeared in 2nd District 
Court, in Ogden on Monday, March, 16, 2015, is seen facing into the courtroom 
gallery where the jury was being selected for his trial.

Douglas Lovell -- Sentenced to death for aggravated murder.

9 months after Douglas Anderson Lovell was sentenced to die for killing a woman 
in 1985, he will back in an Ogden courtroom - this time fighting against his 
former attorney.

Lovell, 57, was found guilty in March of aggravated murder in Joyce Yost's 
strangulation death. Two weeks later, jurors determined Lovell should be 
executed for killing the woman to prevent her from testifying against him in a 
rape case.

The defendant is expected to be in court in mid-January as his appellate 
attorney asks 2nd District Judge Michael DiReda to order one of Lovell's trial 
attorneys, Sean Young, to hand over all of the papers he has gathered while 
representing Lovell the past 4 years.

Lovell's appellate attorney, Samuel Newton, wrote in court papers filed in 
October that he has tried for months to get Young to give him his case file. 
Newton said Lovell's lead lawyer at trial, Michael Bouwhuis, had turned over 
his entire case - which included a large electronic file and several boxes of 
materials - to the appellate attorneys within days of their request.

Newton said he talked with Young numerous times about handing over his 
materials, but the public defender never did so.

Newton references a number of emails in which he asks Young for the materials, 
and Young responds by telling him, "I don't have much else to turn over," 
saying he only had the same evidence Bouwhuis had already sent over, as well as 
his own notes taken during trial and during prison visits with Lovell.

In a May email, Young wrote to Newton, "I am more than willing to meet with you 
and hand over whatever you deem necessary. I just don't see the relevance of my 
work product notes, but if you think they are important, we can meet, discuss 
and [hand] over whatever you need."

Newton said that meeting never happened, and he is now asking the district 
court judge to order Young to give him those documents.

"Appellate counsel cannot be reasonably prepared for a capital appeal without 
reviewing prior counsel's file," Newton wrote. "The preparation necessary in 
this case is not minimal. ... Mr. Lovell cannot make claims about the adequacy 
of the defense representation or the effectiveness of his trial counsel without 
having an opportunity to review counsel's file."

Lovell's attorneys filed a notice of appeal with the Utah Supreme Court in 
August, though the case has had little movement since then. In October, the 
Supreme Court case was stayed so the issue over Young's case materials could be 
decided at the district court level, according to court records. Oral arguments 
on the case will be held in DiReda's courtroom Jan. 13.

Newton said in a Wednesday email to The Salt Lake Tribune that Young's refusal 
to turn over his case file has stalled the appellate process.

"The takeaway is that citizens of the state of Utah would feel that before we 
choose to execute a person, we should ensure that he was represented by 
competent counsel who zealously represented his client at a trial," Newton 
said. "Giving that file to his appellate attorney is the very minimum standard 
an attorney should follow. ... Unfortunately, the jury [in Lovell's case] did 
not get to hear a lot of compelling testimony about Doug because his lawyer was 
not adequately prepared for trial."

Young did not respond Thursday to a request for comment for this story.

In April 1985, Lovell followed Yost, 39, home from a Clearfield restaurant, 
kidnapping her from her apartment parking lot and sexually assaulting her in 
the parking lot and at his home, according to trial testimony.

After she reported the crime to authorities, Lovell began to plot the woman's 
death to keep her from testifying at his upcoming trial, according to testimony 
at Lovell's murder trial. He tried twice to hire men to kill the woman, then 
decided to do it himself Aug. 10, 1985.

He kidnapped the woman again from her South Ogden apartment and took her to the 
mountains east of Ogden, where he strangled her and left her body under 
handfuls of dirt and leaves.

The body was never found - despite an extensive search of the area by police in 
1993, after Lovell struck a plea deal that spared him the death penalty if he 
could lead authorities to her body.

After the fruitless 1993 search, an Ogden judge sentenced Lovell to death by 
lethal injection. But, in 2011, the Utah Supreme Court ruled he could withdraw 
his guilty plea because he should have been better informed of his rights 
during court proceedings.

(source: Salt Lake Tribune)






WYOMING:

Prosecutor: Wyoming needs to reconsider death penalty


A prosecutor who secured a death sentence against Dale Wayne Eaton for the 
murder of a woman nearly 30 years ago says the lingering appeal in the case 
shows the Wyoming Legislature must decide if it's willing to provide the 
resources necessary to handle capital punishment.

The call came from Casper District Attorney Mike Blonigen, who prosecuted Eaton 
in 2004 for the 1988 killing of Lisa Kimmell of Billings, Montana.

For years, Eaton was the only man on death row in Wyoming. His death sentence 
was overturned last year.

"You keep going, and you tell yourself that this is about what the man actually 
did," Blonigen said.

"But it seems the further we get removed from what he actually did, and out 
from his trial, the less and less that seems to matter," Blonigen said of 
Eaton. "Instead, we're tied up in all this other stuff that has nothing to do 
with the truth or untruth of any of the allegations made, but have everything 
to do with the procedure."

Kimmell disappeared while driving across Wyoming and fishermen later found her 
body in the North Platte River. In 2002, DNA evidence linked Eaton to the case 
while he was in prison on unrelated charges.

The Wyoming Supreme Court upheld Eaton's death sentence, but U.S. District 
Judge Alan B. Johnson of Cheyenne overturned it last year, ruling that ruled 
that Eaton hadn't received an adequate defense. Johnson said the Wyoming Public 
Defender's Office had tried to scrimp on expenses and failed to follow American 
Bar Association staffing recommendations on providing qualified lawyers, an 
investigator and a mitigation expert.

Johnson gave the state the choice of allowing Eaton to serve life in prison or 
seeking the death penalty against him at a new sentencing hearing with the 
requirement that the state appoint lawyers for him not associated with the 
Wyoming Public Defender's Office.

Blonigen began pressing in state court to hold a new death penalty hearing for 
Eaton.

But Johnson ruled this summer that the state had failed to follow his order by 
not appointing new lawyers for Eaton fast enough. In his order last week, 
Johnson prohibited the state from holding a new death penalty hearing while 
Eaton appeals aspects of the order Johnson issued last year.

Eaton's current legal team is asking a federal appeals court in Denver to rule 
that too much time has passed for Eaton to get a fair death penalty hearing.

Gov. Matt Mead's budget recommendations, released before Johnson's order, 
called for the Legislature to appropriate over $1 million for the coming 2-year 
state funding cycle to pay for Eaton's defense in state court. Mead also is 
calling for $25,000 to study whether prosecutors and the Public Defender's 
Office are receiving adequate funding.

Wyoming last carried out the death penalty in 1992, when it executed convicted 
murderer Mark Hopkinson. Several other death sentences have been overturned on 
appeal since then on the grounds of ineffective legal representation from the 
Public Defender's Office.

Attempts to reach Wyoming Public Defender Diane Lozano and Cheyenne lawyer 
Terry Harris, who represents Eaton, for comment Thursday were not immediately 
successful.

The Legislature has rejected bills to abolish the death penalty in recent years 
despite support from religious groups.

Blonigen said Eaton's case underscores the need for the state to provide 
adequate support if it wants to keep the death penalty on the books.

"You've got to have the resources and have the commitment to it to carry 
through with it," Blonigen said. "I think the Legislature has to decide do we 
really want this or not. If we really want it, then we have to change some 
things."

(source: Associated Press)






CALIFORNIA:

Stealth juror poisoned Scott Peterson's trial, death sentence appeal says


A woman assaulted when she was 4 1/2 months pregnant wanted so badly to sit in 
judgment of Modesto's Scott Peterson a little more than 3 years later that she 
lied before being picked as a juror, then helped send him to death row in 2004, 
Peterson's latest appeal says.

The 285-page document, filed Nov. 24, also heaps blame on Peterson's celebrity 
defense attorney, Mark Geragos, for lapses in the sensational trial, including 
failing to fulfill promises to jurors that he would prove Peterson "stone cold 
innocent" or to call witnesses who might have debunked prosecution evidence, 
the appeal says.

"In view of (Geragos') broken promises, the jury - not without reason - 
concluded that Scott was 'stone cold guilty,'" says the document, written by 
Berkeley appeals attorney Lawrence Gibbs.

Substitute teacher Laci Peterson, 27, was 8 months pregnant when she 
disappeared on Christmas Eve 2002. Her husband, then 30 and now 43, said he had 
been fishing in a newly purchased boat in San Francisco Bay and returned to an 
empty house, and the badly decomposed bodies of mother and fetus washed ashore 
nearly 4 months later.

The revelation of juror Richelle Nice's deception, combined with recent 
testimony from prospective witnesses ignored by Geragos, constitute new 
evidence warranting reversal of Peterson's conviction and death sentence, Gibbs 
says in the habeas corpus appeal aimed at winning Peterson's release.

"It turns out that (Richelle Nice), herself, had been a victim of a crime that 
endangered the life of her unborn child - a crime similar to that for which 
Scott stood accused. Ms. Nice suppressed this information, however, in an 
apparent attempt to gain a spot on Mr. Peterson's jury."----Lawrence Gibbs, 
appellate attorney

A 2nd legal team based in Oakland previously presented separate pending appeals 
claiming missteps by Judge Al Delucchi, who died of cancer in 2008. California 
Supreme Court justices could elect to weigh the appeals separately or together.

Media, afforded a rare visit on Tuesday to California's death row at San 
Quentin Prison, reported seeing Peterson playing basketball with other inmates 
in a section housing those with the fewest behavioral problems. He turned his 
back to photographers and declined to speak, reporters said.

Gibbs' appeal details 19 reasons for overturning the conviction that captivated 
people across the United States and beyond. Some points cover ground similar to 
the previous appeals, casting doubt that a certified dog with a poor track 
record could have picked up Laci Peterson's scent at the Berkeley Marina four 
days after authorities believe her husband launched his 14-foot boat to dump 
her body, and on expert testimony about water currents carrying bodies.

"In each of these forensic areas (gestational age, scent-tracking dogs, water 
currents), police told their experts the result they hoped the experts would 
arrive at, thus introducing a form of 'expectation bias.'"----Lawrence Gibbs, 
appellate attorney

But Gibbs delves into other areas, often blaming authorities for overstepping, 
and concluding that Geragos was sloppy.

"It turns out that the jury deciding this case did not have the whole truth - 
or anything close," Gibbs said in the appeal.

Geragos, of Los Angeles, initially provided television legal commentary on the 
Peterson matter before taking over the defense team as the case ballooned to 
blockbuster status. He came on strong early in the trial but jurors ultimately 
did not buy his theory that unidentified vagrants must have kidnapped Laci 
Peterson and disposed of her body in the bay to frame her husband.

Nice, nicknamed "Strawberry Shortcake" by observers during the trial for her 
flamboyant hair dye, was asked in a pretrial questionnaire for prospective 
jurors whether she had ever been in a lawsuit or trial and whether she, family 
or friends had been crime victims. She checked "no" boxes - all false answers, 
the appeal reveals.

In 2000, when Nice was pregnant, her boyfriend's ex-girlfriend stalked and 
threatened them and spent a week in jail, and Nice said nothing about it when 
she was considered for Peterson's jury.

In fact, Delucchi, knowing the trial would stretch several months, started to 
excuse Nice because her job would stop paying her after 2 weeks, but she asked 
to stay on anyway and later bummed $1,000 from a fellow juror, Gibbs said.

"Ms. Nice wanted to sit in judgment of Mr. Peterson in part to punish him for a 
crime of harming his unborn child - a crime that she personally experienced 
when (the assailant) threatened her life and the life of her unborn child," the 
appeal reads.

Gibbs quoted from 6 letters sent by Nice after the trial to Peterson on death 
row, all fixating on his dead boy, including one in which she visualized what 
he might have looked like.

"My heart aches for your son. Why couldn't he have the same chances (in) life 
as you were given? You should have been dreaming of your son being the best at 
whatever he did in life, not planning a way to get rid of him!"----Richelle 
Nice, in a post-trial letter to Scott Peterson

"Damit (sic) Scott that was your son! Your first born. If you never wanted 
children you should have married someone with the same wants as you," reads 
one.

Gibbs later obtained a statement from Geragos, who said he would have kept Nice 
off the panel had he known her history. "There is no way in the world I would 
have wanted a juror to sit in judgment of Mr. Peterson, when that juror had 
been a victim of the very crime for which Mr. Peterson was on trial," Geragos 
reportedly said.

Geragos told jurors early in the trial that he would call to the stand people 
who had seen Laci Peterson walking the family dog after the time authorities 
said she was killed, but he never produced those witnesses. Geragos later 
admitted, in Gibbs' investigation, that he had not read a "critical police 
report" and said he would have called the eyewitnesses had he realized that the 
document undermined the prosecution timeline.

"(Geragos') broken promises deprived Scott of effective assistance of counsel," 
Gibbs said.

"Mr. Geragos' deficient representation - in which he gave an opening statement 
in which he promised the jury it would hear these witnesses, but then failed to 
call a single one of them - was prejudicial."

----Lawrence Gibbs, appellate attorney

Also, a man convicted of burglarizing a house across the street from the 
Petersons' Covena Avenue home later told people that he verbally threatened 
Laci Peterson when she confronted him, Gibbs said. The burglary occurred 
shortly after her husband left to go fishing; if the burglar's story is true, 
Scott Peterson must be innocent, Gibbs said.

The appeal castigates Geragos for calling a fertility doctor, whose testimony 
ended in a train wreck, to estimate the gestational age of Conner Peterson. The 
prosecution's counter-expert, using a special computation, calculated that 
Conner died by Dec. 23, 2002 - fitting authorities' theory. But Gibbs tracked 
down the doctor who invented the computation, and he told Gibbs that the 
prosecution's witness botched the calculation.

In fact, Conner probably died Jan. 3, 2003, and might have lived as late as 
Jan. 5, the doctor told Gibbs, who wrote, "The jury never knew any of this."

"The state's case was riddled with false evidence," Gibbs said. "(Geragos) 
failed to expose the falsity of this evidence, he failed to deliver on promises 
made to jurors in opening statements, and he failed to support the theory of 
defense he himself had selected."

Gibbs' appeal also claims that the death penalty amounts to unconstitutional 
cruel and unusual punishment.

California has 745 condemned inmates but has not executed any since 2006. A 
federal judge declared executions unconstitutional last year, but appellate 
justices overturned that ruling and competing initiatives could appear on the 
ballot next fall, one asking to abolish the death penalty and the other hoping 
to fast-track it.

(source: modbee.com)