[Deathpenalty] death penalty news----TEXAS, FLA., ALA., USA

[Rick Halperin]

Jan. 13



TEXAS----new execution dates

Executions under Greg Abbott, Jan. 21, 2015-present----13

Executions in Texas: Dec. 7, 1982----present-----531

Abbott#--------scheduled execution date-----name------------Tx. #

14---------January 20---------------Richard Masterson-----532

15---------January 27---------------James Freeman---------533

16---------February 16--------------Gustavo Garcia--------534

17---------March 9------------------Coy Wesbrook----------535

18---------March 22-----------------Adam Ward-------------536

19---------March 30-----------------John Battaglia----------537

20---------April 6------------------Pablo Vasquez-----------538

21---------April 27-----------------Robert Pruett------------539

22---------June 2-------------------Charles Flores-----------540

(sources: TDCJ & Rick Halperin)






FLORIDA:

Supreme Court: Florida death penalty system is unconstitutional


Florida's unique system for sentencing people to death is unconstitutional 
because it gives too much power to judges - and not enough to juries - to 
decide capital sentences, the Supreme Court ruled Tuesday.

The 8-1 ruling said that the state's sentencing procedure is flawed because 
juries play only an advisory role in recommending death while the judge can 
reach a different decision.

The decision could trigger new sentencing appeals from some of the 390 inmates 
on the Florida's death row, a number second only to California. But legal 
experts said it may apply only to those whose initial appeals are not yet 
exhausted.

The court sided with Timothy Lee Hurst, who was convicted of the 1998 murder of 
his manager at a Popeye's restaurant in Pensacola. A jury divided 7-5 in favor 
of death, but a judge imposed the sentence.

Florida's solicitor general argued that the system was acceptable because a 
jury first decides if the defendant is eligible for the death penalty.

Writing for the court, Justice Sonia Sotomayor said a jury's "mere 
recommendation is not enough." She said the court was overruling previous 
decisions upholding the state's sentencing process.

"The Sixth Amendment requires a jury, not a judge, to find each fact necessary 
to impose a sentence of death," Sotomayor said.

The justices sent the case back to the Florida Supreme Court to determine 
whether the error in sentencing Hurst was harmless, or whether he should get a 
new sentencing hearing.

Justice Samuel Alito dissented, saying that the trial judge in Florida simply 
performs a reviewing function that duplicates what the jury has done.

Under Florida law, the state requires juries in capital sentencing hearings to 
weigh factors for and against imposing a death sentence. But the judge is not 
bound by those findings and can reach a different conclusion. The judge can 
also weigh other factors independently. So a jury could base its decision on 
one particular aggravating factor, but a judge could then rely on a different 
factor the jury never considered.

In Hurst's case, prosecutors asked the jury to consider 2 aggravating factors: 
the murder was committed during a robbery and it was "especially heinous, 
atrocious or cruel." But Florida law did not require the jury to say how it 
voted on each factor. Hurst's attorney argued that it was possible only 4 
jurors agreed with 1, while 3 agreed with the other.

Sotomayor said Florida's system is flawed because it allows a sentencing judge 
to find aggravating factors "independent of a jury's fact-finding."

3 of Florida's current death row inmates were sentenced over the jury's life 
recommendation. But no judge had overridden a jury recommendation in a death 
penalty case since 1999, according to state officials.

The Supreme Court ruled in 2002 that a defendant has the right to have a jury 
decide whether the circumstances of a crime warrant a sentence of death.

Florida's American Civil Liberties Union is calling on state officials to 
re-examine the sentences of all death row inmates. But Stephen Harper, a law 
professor who runs the Death Penalty Clinic at Florida International 
University, said it's unlikely the Supreme Court ruling will open the door for 
most Florida death-row inmates to new sentencing hearings. He said the Florida 
decision is based on a previous Arizona ruling that was already found not to be 
retroactive.

"In general, it will not be retroactively applied," Harper said.

But he added that Florida inmates whose initial appeals have not been exhausted 
may be able to argue that the latest decision applies to them. And, he said, 
any capital cases that are awaiting trial would likely be delayed while state 
legislators and the Florida Supreme Court sort out the next steps.

Florida Attorney General Pam Bondi said her office is reviewing the ruling.

News of the high court's decision stunned Florida legislators. Florida House 
Speaker Steve Crisafulli, who learned of the ruling while he was giving a 
speech to open the state's annual legislative session, said the Supreme Court 
had "impeccable timing."

Crisafulli said House legal experts would begin to review the ruling. Rep. Matt 
Gaetz, an attorney who has dealt with capital punishment during his legislative 
career, predicted that Florida legislators would act swiftly to get the death 
penalty "right back on track."

Alabama also allows judges to override a jury's findings in death penalty 
sentencing hearings, but it's not clear whether its system is affected by the 
case. Alabama Attorney General Luther Strange issued a statement saying the 
Florida ruling does not affect Alabama law.

Bryan Stevenson, director of the Alabama legal advocacy group Equal Justice 
Initiative, said Alabama's system is identical to Florida's in most respects 
and could be affected.

(source: Associated Press)

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

Florida's death penalty has a long, tortured history


Renegade. Immune to national trends. Often tested, never defeated.

Until this week. On Tuesday, the U.S. Supreme Court struck down Florida's 
unique capital sentencing system, saying the state gives too much power to 
judges, and not enough to juries, to sentence someone to death. The ruling 
threw Florida's nearly 400 death row cases into disarray.

But upheaval is common to capital punishment in Florida, which is compelled 
again to fall into constitutional line.

In 2005, our own state Supreme Court urged the legislature to reform Florida's 
system of capital punishment, which was followed a year later by a warning from 
the American Bar Association that the state law was likely unconstitutional.

Still, executions continued.

In fact, the Sunshine State is always near the top for the number of people put 
to death each year. We also lead the nation in exonerations.

According to the Death Penalty Information Center, 26 inmates have been freed 
from Florida's death row since 1973, either because their charges were 
dismissed, they were pardoned or they were cleared of guilt.

One prisoner walked off death row in 2015. Derral Wayne Hodgkins was cleared in 
June after the Florida Supreme Court ruled that the state's case was "purely 
circumstantial" and skewered prosecutors for mischaracterizing crucial DNA 
evidence. Hodgkins, now 56, had been convicted of the first-degree murder of 
Teresa Lodge, a 46-year-old woman who served breakfast daily at Frank's Cafe in 
Land O'Lakes. Hodgkins, who had earlier been convicted of a violent sexual 
assault on a minor, was freed in October with fewer restrictions on him than if 
he'd never been convicted of murder.

Since 2008, Florida has carried out executions by lethal injection. For seven 
decades before that though, inmates died in the electric chair. Questions about 
the performance of Old Sparky clogged the courts with appeals, and public 
opinion polls showed voters preferred lethal injection. Even after several 
inmates in the 1990s caught fire and bled during their executions, Florida 
lawmakers stood firm.

It took a U.S. Supreme Court review, which threatened to declare the electric 
chair "cruel and unusual punishment" and therefore unconstitutional, to prompt 
the state to switch to lethal injection (though the new law left inmates the 
option of choosing electrocution).

"What I hope is that we become like Texas," then-Gov. Jeb Bush's top policy 
adviser said. "Bring in the witnesses, put (the condemned) on a gurney and 
let's rock 'n' roll."

The new method proceeded until the end of 2006, when convicted killer Angel 
Diaz winced, shuddered and remained alive for 34 minutes until the three-drug 
cocktail finally stopped his heart. Bush halted all executions and convened a 
panel to study procedures. Several changes were made, but executions were 
delayed again when the U.S. Supreme Court agreed to review a challenge to 
lethal injection protocols in Kentucky.

Scrutiny of lethal injection - here and around the country - has amped up again 
in the last couple years because of several botched executions. That, combined 
with a shortage of the drug used in the procedure, has brought the debate full 
circle. Several states once again have begun considering reviving use of the 
electric chair.

And yet, use of the ultimate punishment is on the decline, according to the 
Death Penalty Information Center. Last year, there were 28 executions in 6 
states, the fewest since 1991. 2 were in Florida.

That belies the mood in Tallahassee. In 2014, legislators passed the Timely 
Justice Act, intended to speed up executions. And under Gov. Rick Scott, 
Florida has been executing death row prisoners at a faster rate than under any 
governor since the death penalty came back into use in 1977.

Of course, all of that is in flux now after the Supreme Court ruling.

(source: Tampa Bay Times)

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

Attorneys file motion to remove death penalty in Donald Smith case


Attorneys for the man awaiting trial in the kidnapping, rape, and murder of 
8-year-old Cherish Perrywinkle want the death penalty off the table in his 
upcoming trial.

The motion filed on behalf of Donald Smith came the same day the U.S. Supreme 
Court struck down Florida's death penalty.

In an 8-to-1 ruling, justices said the sentencing procedure is flawed and 
unconstitutional because juries only play an advisory role in deciding a death 
penalty. The judge actually makes the ruling.

Smith's trial is set for April 4, 2016. The state filed a notice to seek the 
death penalty.

According to police, Smith met Cherish Perrywinkle's mother, Rayne, at a local 
store and accepted his offer of help in buying her clothes for Cherish. They 
traveled to another store, and police say Smith managed to walk out with the 
8-year-old girl who was found dead the next morning on the Northside.

(source: news4jax.com)






ALABAMA:

Attorneys for convicted killer argue death penalty 'cruel & unusual'


Attorneys for a convicted killer will be going back to federal court Wednesday 
trying to prove Alabama's death sentence is cruel and unusual punishment.

Tommy Arthur was convicted in the early 80s in a murder for hire scheme out in 
the Shoals. Arthur was sentenced to death in March of 1983 and has managed to 
avoid his execution ever since.

Governors have set several execution dates for Arthur, but each time, attorneys 
have been able to delay it.

Last February, his legal team was able to cancel his execution by arguing that 
the drugs used in Alabama's execution have caused botched executions in other 
states.

This week, his attorneys have been making their case in front of a federal 
judge in Montgomery.

They say the drugs used to sedate prisoners do not work properly. They also 
allege that prison officials don't administer a so-called "pinch test," which 
is done to ensure that prisoners are unconscious before the lethal drugs are 
administered.

They also argue state prison officials have been hiding that information from 
attorneys for years.

According to the Montgomery Advertiser, people who've witnessed recent 
executions in Alabama told the judges yesterday about what they saw, and they 
seemed to back up Arthur's attorney's claims.

Arthur's attorneys are expected to call more witnesses to the stand Wednesday.

(source: Associated Press)






USA:

Con-ui's defense argues death penalty is unconstitutional


The defense for gang assassin Jessie Con-ui argued in court Wednesday morning 
that a district judge should throw out the federal death penalty, finding it 
unconstitutional because there is "no rhyme or reason" to how it is 
implemented.

Con-ui, 38, is slated to stand trial in July on charges alleging he kicked 
correctional officer Eric Williams, a Nanticoke native, down a flight of stairs 
at U.S. Penitentiary Canaan before beating and slashing him to death with 2 
shanks on Feb. 25, 2013. According to prosecutors, Con-ui - who is already 
serving 25 years to life for a 2002 murder - was caught on surveillance video 
during the attack.

He appeared at the hearing by video from U.S. Penitentiary Florence in Arizona, 
wearing an orange jumpsuit. He did not address the court.

During arguments in federal court Wednesday morning, Montclaire, New 
Jersey-based defense attorney David A. Ruhnke argued that evolving standards of 
decency in the community warrant the death penalty being struck down as 
unconstitutional. Although the U.S. Supreme Court has upheld the law, the way 
it has been carried out in recent years makes it ripe for reconsideration, he 
said.

"State after state after state is repealing their capital punishment," Ruhnke 
said. "Things are evolving for sure in the area of capital punishment."

There are currently 60 inmates awaiting execution in the federal system, but 
since the federal death penalty was restored in 1988 there have been only 3 
executions - and none since 2003, Ruhnke argued. Some inmates have been on 
death row for more than 20 years, showing the punishment is not being carried 
out, he said.

"The federal death penalty is essentially fading away," he said.

Ruhnke pointed to the "arbitrary" nature of the death penalty's implementation 
based on region, noting that in Texas 66 % of death row cases result in a death 
sentence, compared to 8 % in New York. About 2 % of counties account for most 
death penalty cases, most of them in the south, he said.

U.S. District Judge A. Richard Caputo cut in and asked if the evolving 
standards of decency argument considered the beliefs of southerners.

"You talk about evolving societal standards. Are we including those states in 
the society?" Caputo asked.

"Even states like Texas and other Southern states, there's a precipitous 
decline," Ruhnke said.

The defense attorney also noted the huge disparity in the death penalty's 
implementation along racial lines, noting that about 75 % of those targeted for 
capital punishment are minorities.

Con-ui, who is an American citizen of Filipino descent, falls into that 
category, he said.

The U.S. Attorney's Office was expected to offer its arguments this afternoon.

Con-ui has expressed an interest in a plea bargain in exchange for taking the 
death penalty off the table, but prosecutors have refused to do so.

As a result, his defense has been seeking to have aggravating factors that 
could result in a death sentence upon conviction stricken from the case. He was 
also seeking to have Caputo declare the federal death penalty entirely 
unconstitutional on grounds that the standards of society have changed since 
the Federal Death Penalty Act was enacted and that the punishment has been 
implemented in an "arbitrary, capricious, irrational and invidious manner."

Prosecutors responded that the death penalty is appropriate in the case because 
of aggravating factors including future dangerousness, that the alleged crime 
was committed in an "especially heinous, cruel or depraved manner," and victim 
impact. The defense, prosecutors argued, has failed to cite any case law to 
back up the assertion that those factors should be removed from consideration.

And the argument that the entire death penalty should be declared 
unconstitutional amounts to little more than a "boiler plate" assault on a 
well-established federal law, they argued.

Con-ui's trial is scheduled to begin with jury selection on July 11.

(source: Citizen's Voice)

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

Could these cases, including some from Louisiana, end America's death penalty?


Last June, Supreme Court Justice Stephen Breyer suggested that the death 
penalty might be close to its ultimate demise. "Rather than try to patch up the 
death penalty's legal wounds one at a time," he wrote in a dissent to Glossip 
v. Gross, to which Justice Ruth Bader Ginsburg added her name, "I would ask for 
a full briefing on a more basic question: whether the death penalty violates 
the Constitution."

Attorneys for death-row inmates, generally a tight-knit group, immediately 
started talking about what to do next. While some urged caution - arguing that 
if the court upholds capital punishment it could set their cause back 
indefinitely - others sensed a rare opportunity.

The most outspoken advocates for a more aggressive strategy have been the 8th 
Amendment Project, a group of lawyers who oppose the death penalty and are 
tracking cases that might allow the court to strike it down for good.

On Friday (Jan. 15), the high court will discuss whether to hear a challenge to 
the death sentence of a Pennsylvania woman named Shonda Walter. Her case is one 
of several posed as direct responses to Breyer's invitation to attack the death 
penalty head-on. The cases include several from Louisiana.

There is no way to know whether the justices will take any of these cases; for 
the court to take a case, four justices must agree, and aside from Breyer and 
Ginsburg, no other justices have indicated their views on whether to take such 
a challenge. If they do take a case, there is also no way of knowing which one 
they will position as the next potential landmark, the next Brown v. Board of 
Education or Miranda v. Arizona or Roe v. Wade.

But each of those historic cases was preceded by numerous appeals of the sort 
that are now reaching the court. Death penalty abolitionists are braiding the 
details of these cases to the legal arguments they believe have the best shot 
at swaying the court.

Shonda Walter, whose case will be discussed in a conference of the judges on 
Friday, was convicted in 2005 of killing 83-year-old James Sementelli with a 
hatchet in the small, central Pennsylvania town of Lock Haven. She was 24 years 
old. Walter's current defense team argues that her trial was unfair in part 
because her trial lawyer openly conceded her guilt to the jury (she tried to 
have a new lawyer appointed, but the judge refused).

In an appeal, the trial lawyer made arguments that one judge described as 
"unintelligible." Her new lawyers argue that Walter "emerged from an arbitrary 
process which fails to limit the death penalty to the worst offenders."

Several independent groups have weighed in on Walter's case with briefs that 
aim to tie it to broad arguments over the death penalty's fairness as it is 
practiced around the country. In one, a group of social scientists declare that 
an "extensive body of academic literature" shows prosecutors pursue the death 
penalty disproportionately against blacks (Walter is black) and discriminate to 
keep blacks off capital juries.

A brief by the group, Witness to Innocence, argues that innocent people are 
often sent to death row. Walter's own petition notes that the kind of bad 
lawyering that got her to death row is present in many of these wrongful 
convictions. A third brief, by several groups of French, British, and Irish 
lawyers, urges the court to follow the lead of other Western countries that 
have abolished the death penalty. They note that prior U.S. Supreme Court 
decisions limiting the death penalty's use have cited foreign law.

Louisiana case may reach Supreme Court

If the court decides not to take Walter's case, they will have another case to 
review almost immediately. In late January, several attorneys will petition the 
Supreme Court to take up the case of a young man named Lamondre Tucker, on 
Louisiana death row for the 2008 murder of his ex-girlfriend Tavia Sills and 
her unborn child. The child counted as a second victim, which made Tucker 
eligible for the death penalty.

His attorneys contend that his age, 18, and his IQ of 74 should have 
disqualified him for the death penalty because the punishment should be 
reserved for the "worst of the worst," and his immaturity made him less 
culpable.

The Supreme Court has generally been sympathetic to this line of thinking; in 
2002, the justices struck down the death penalty for those with an intellectual 
disability, and then in 2014 said that Florida could not rely entirely on an IQ 
score - they were using 70 as the cutoff - in determining whether a person was 
eligible for death. The court has also ruled against the death penalty for 
murders committed by anyone under 18.

There are other cases working their way through the lower courts that hinge on 
issues of intellectual culpability, and form part of the defense community's 
belief that the death penalty as a whole cannot be fixed.

One such case is that of David Dickerson, who was convicted of the murder of 
his ex-girlfriend and assessed to have an IQ of 71. When he lost an appeal to 
the Mississippi Supreme Court, one justice wrote a passionate dissent, arguing 
that the legal standard of intellectual disability remains far from resolved, 
since every state has a different cutoff for who qualifies for death.

Other Caddo Parish raise questions

A 2nd argument that anti-death penalty lawyers are sure to make before the 
court is that the punishment has become arbitrary because so few counties 
currently send people to death row. Breyer pointed to studies of these 
disparities in his dissent, including one by the Death Penalty Information 
Center finding that only 15 percent of U.S. counties account for every death 
sentence handed down since the 1970s.

At least symbolically, it may help these lawyers if the court picks a case that 
emerged from a county known for being particularly strident in its support for 
capital punishment. Tucker, for example, was convicted in Caddo Parish, where 
prosecutor Dale Cox recently told reporters that Louisiana should "kill more 
people."

Tucker's lawyer, Ben Cohen, also represents two other men from Caddo Parish 
whose cases will likely come before the court later this year or next. These 
include Rodricus Crawford, who was sentenced to death in 2013 for the death of 
his infant son, and Marcus Reed, sentenced to death the same year for shooting 
three men he believed were stealing from him.

The Caddo Parish district attorney's office did not respond to requests for 
comment, but other prosecutors argue - and may argue to the Supreme Court - 
that since district attorneys are elected, they are exercising the will of the 
people.

Johnny Holmes, the longtime district attorney in Harris County, Texas, who 
sought and won an average of 12 death sentences every year from 1992 to 2000, 
recently told The Marshall Project, "The public could have thrown me out if 
that's what they wanted."

Justices will have many options

Regardless of what case they pick, the justices have many options; they could 
restrict the death penalty without abolishing it altogether. They could raise 
the age of who qualifies for the punishment or define more stringent tests for 
IQ or other indicators of mental ability.

They could strike down the laws governing how juries make death decisions in 
some states but not others, or strike down laws keeping information about 
execution drugs secret. They could restrict the death penalty to the most 
heinous crimes, such as mass acts of terrorism or killing a police officer or 
prison guard.

These options would pare the death penalty down to a "smaller, more carefully 
defined set of defendants," says Evan Mandery, the author of "A Wild Justice," 
a history of efforts to bring down the death penalty in the 1960s. But this 
could be an unsatisfying victory for abolitionists, since "it might have the 
side effect of making it appear that the problems with the death penalty have 
been fixed and restore public confidence."

The key swing vote in all of this, as in much else, is Justice Anthony Kennedy. 
In the past, he has written opinions striking down both the death penalty and 
life without parole sentences for juveniles - in both cases he cited 
"international opinion," giving hope to death penalty abolitionists - but he 
has never given an unambiguous sign of his views on capital punishment as a 
whole.

During the public arguments over the Glossip case, which spurred the current 
push, Kennedy did not say much. Dale Baich, an Arizona defense attorney, was 
watching. "His head was in his hands," the lawyer recalled, "and he just had a 
troubled look on his face."

(source: New Orleans Times-Picayune)