[Deathpenalty] death penalty news----OHIO, TENN., MONT., ID., USA

[Rick Halperin]

Jan. 27



OHIO:

Ohio bill would spare severely mentally ill from execution


A person judged to suffer from severe mental illness at the time of a killing 
that could result in a death sentence would be spared from capital punishment 
under a bill before Ohio lawmakers.

The Senate Criminal Justice Committee was scheduled to hear additional 
testimony on the bill Wednesday.

The legislation would allow a hearing before trial on an offender's mental 
illness and permit a judge to rule out the death penalty if severe mental 
illness is proven. Current death row inmates also could challenge their 
sentences on the basis of mental illness at the time of their crimes.

Offenders still would face life in prison even if they're judged to have a 
severe mental illness.

Diagnosed illnesses could include schizophrenia, bipolar disorder and major 
depressive disorder.

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

Justices hear Toledoan's appeal of death sentence


A Toledo man who killed a convenience store clerk during a 2008 robbery should 
have been allowed to have a jury consider his sentence rather than the 3-judge 
panel he initially opted for, his attorney argued Tuesday before the Ohio 
Supreme Court.

That 3-judge panel sentenced Anthony Belton to death.

Belton pleaded no contest to aggravated murder and 2 counts of aggravated 
robbery for shooting Matthew Dugan, 34, a clerk in the back of the head during 
a holdup at the former BP gas station at Dorr Street and Secor Road, on Aug. 
13, 2008. He waived his right to a jury, and a 3-judge Lucas County Common 
Pleas Court panel convicted him.

But then Belton asked that a jury weigh the factors that would determine 
whether he would be executed or serve life in prison without parole.

The judicial bench rejected that motion and ruled that the fact that Belton 
committed the murder during the commission of a felony, a robbery, was 
sufficient to outweigh mitigating factors such as Belton???s troubled 
childhood.

"Your client [waived his right to a jury] on 3 occasions," Justice Terrence 
O'Donnell told Belton's Toledo attorney, Spiros Cocoves. "3 times your client 
had signed a waiver of this very argument you're making."

Mr. Cocoves responded, "It's the nature of the death penalty."

Lucas County Assistant Prosecutor Evy Jarrett argued that there is no such 
thing as a hybrid process.

"The strategy behind that, of course, is to attempt to get a favorable judicial 
panel for the guilt phase followed by perhaps a more favorable review by the 
jury on the penalty phase," she said.

Mr. Cocoves also urged the court to reweigh the mitigating and aggravating 
factors considered by the judicial panel when it opted for death over a life 
sentence. He pointed to Belton's youth, growing up with an addict and 
prostitute mother before moving to California to live with his father.

But he also urged the justices to consider another factor, the cost to the 
public of litigating death penalty cases.

"I think we all know intrinsically that it's expensive," he said.

Chief Justice Maureen O'Connor said she didn't see this as justification for a 
lesser sentence.

"Wasn't it always the case that it's more expensive to litigate a death penalty 
case than it is to impose life without parole?" she asked. "Some would argue 
that that's an appropriate use of state resources."

Ms. Jarrett argued that the 3-judge panel properly weighed the sentencing 
factors.

"There was actual video recording of the crime itself that showed the defendant 
leaned in to take the shot at the clerk that was cooperating with his demands," 
she said. "The clerk clearly posed no threat to the defendant and yet was 
essentially executed."

The Supreme Court did not issue an immediate ruling.

Belton, 30, is on death row at the Chillicothe Correctional Institution.

(source: toledoblade.com)






TENNESSEE:

Tennessee Supreme Court to tackle warrant issue in torture-slaying case


The ringleader of a January 2007 torture-slaying will try Wednesday to convince 
the state's highest court a flawed search warrant should rate him a new trial.

The Tennessee Supreme Court will hear oral arguments Wednesday in Knoxville in 
an appeal of Lemaricus Davidson's conviction and death sentence in the 
carjacking, kidnapping, rape and slayings of Channon Christian, 21, and 
Christopher Newsom, 23.

The appeal - granted as a matter of legal right in capital murder cases - will 
cover a plethora of topics, from the constitutionality of the death penalty to 
the victims' families' wearing of buttons bearing the couple's photo.

But of all the issues facing the high court, one is particularly thorny for the 
state - the validity of the search warrant for Davidson's Chipman Street house 
that led to the discovery of Christian's body.

The Tennessee Court of Criminal Appeals already deemed the warrant flawed, 
thanks to a wrong paper size which led to a missing signature line which then 
led a Knoxville Police Department investigator to sign his name where it did 
not belong. It was in executing that search warrant that Christian's body was 
found stuffed inside a trash can.

Under the law, if the search warrant is flawed, whatever is discovered as a 
result of it cannot be used at trial. There are exceptions, though, and the 
midlevel appellate court cited one in its March 2015 opinion upholding both the 
guilty verdicts and death sentence in Davidson's case.

The Court of Criminal Appeals held that because police already had amassed 
evidence against Davidson as a suspect and had discovered Newsom's body and 
Christian's missing vehicle near his house, authorities inevitably would have 
found her body through legal means. It's known as the doctrine of inevitable 
discovery and, in Davidson's case, saved the day for prosecutors.

Davidson's attorney, David Eldridge, will be asking the high court to take 
another look at the issue in today's arguments.

The warrant snafu occurred because lead investigator Todd Childress chose the 
wrong size paper to fax a copy of the document and supporting affidavit to a 
Knox County General Sessions Court judge for approval. The signature line wound 
up cut off from the document, and Childress inadvertently signed the document 
in the wrong place.

The mistake was discovered within minutes of the initial entry into Davidson's 
home, by then left vacant, but an officer found Christian's body before 
commanders ordered the raiding team to back out. A 2nd search warrant - with 
the proper signature line and signature - was then obtained.

Christian and Newsom were carjacked and kidnapped outside the Washington Ridge 
Apartments and taken to Davidson's house, where both were beaten and raped. 
Newsom was taken from the house to nearby railroad tracks, where he was shot 
execution-style and his body set on fire. Christian was held captive for 
several more hours and repeatedly raped. She was stuffed alive inside the trash 
can and left to die.

(source: Knoxville News Sentinel)






MONTANA:

Inside Montana's death row, 1985


I spend a lot of time in The Gazette photo archives, searching for pictures 
that might be interesting to readers and fans of Billings and Montana history. 
Though much of what I find might interest only a small number of readers, every 
so often I come across a photo or set of photos with a really interesting 
backstory that I think might appeal to a wider audience.

I was recently scanning some photos that our chief photographer, Larry Mayer, 
took during a visit to the Montana State Prison in Deer Lodge in October, 1985. 
I figured we could use the photos if we ever had a story about the history of 
the prison.

I knew there was some special feature story or package that these photographs 
accompanied in the paper, because it has always been rare for The Gazette to 
send photographers so far away for a story (Deer Lodge is 260 miles from 
Billings). But while I was looking at a photo from an envelope labeled "Death 
Row Inmates," Larry saw one and came over to my desk to see what I was working 
on.

"That's a great photo," Larry said. He's a humble guy, so I knew he wasn't just 
praising his own work. What he meant was that the photo had real historical 
significance.

The photo, which shows three men in prison clothes walking through a narrow 
corridor enclosed by chain link fence, does, indeed, have an interesting 
backstory. Or, rather, 3 interesting backstories.

The men depicted in the photo, captured through the chain link fence, are 
Bernard Fitzpatrick, Dewey Coleman and Duncan McKenzie. All 3 men were 
convicted in separate murder cases and sentenced to death.

At the time, Montana had not executed any prisoners since the 1943 hanging of 
Philip J. Coleman. It would be nearly a decade before the next execution.

Bernard James Fitzpatrick was on death row for the kidnapping, robbery and 
murder of 18-year-old Monte Dyckman, a Hardin grocery store clerk, on April 5, 
1975.

Fitzpatrick and his accomplices, Gary Radi, Travis Holliday, Paul Bad Horse Jr. 
and Edwin Bushman, were tried together. Radi, like Fitzpatrick, received a 
death sentence, and Holliday and Bad Horse were given 40-year sentences. 
Bushman was granted immunity in exchange for testimony against the other 4.

In October, 1977, 2 years after the trial ended, the Montana Supreme Court 
determined that the state had erred in trying all 5 defendants together. The 
convictions were reversed, and the men were tried separately. Fitzpatrick, who 
was determined to have shot Dyckman, was the only one to receive a death 
sentence on retrial. Radi was acquitted in his 2nd trial.

Fitzpatrick had previously spent a number of years in prison for various 
incidents, including shooting his then-wife's ex-husband outside of a Billings 
bar, and for shooting another man in the cheek outside of the Western Cafe in 
1971. He was also implicated in a burglary at a Billings pharmacy the same 
year, and was a suspect in several other killings and crimes in the area in the 
1960s and 1970s.

During his prison stint, Fitzpatrick was charged with killing a fellow inmate, 
which added years to his existing sentence for the earlier shooting. However, 
the Montana Supreme Court vacated the sentence for the killing after 
determining that Fitzpatrick was wrongfully convicted. Fitzpatrick was released 
from prison shortly thereafter.

During his time in the Montana State Prison, guards claimed Fitzpatrick 
essentially ran the prison from the inside, exerting power over much of the 
inmate population.

In 1981, Bernard Fitzpatrick wrote to The Gazette after reading that 
15-year-old Tammy Miller was in need of a kidney transplant. Fitzpatrick 
offered to donate one of his kidneys and suggested transferring him to the 
Yellowstone County Jail to carry out the procedure. The offer was declined.

While incarcerated, Fitzpatrick read a Gazette story about a Billings teenager 
who was in need of a kidney transplant. He offered to provide one of his 
kidneys, and suggested that officials transfer him to the Yellowstone County 
Jail, then located in an upper floor of the county courthouse, to carry out the 
procedure. The offer was declined.

After a number of appeals, Fitzpatrick had his death sentence commuted in 1988.

In March, 1990, Fitzpatrick was being temporarily held in the then-new 
Yellowstone County Detention Facility while he was being transferred to a 
federal prison in Leavenworth, Kan. On March 30, 1990, he and six other inmates 
escaped from the jail by cutting a hole in the chain link fence of the jail's 
recreation yard.

Fitzpatrick and another escapee broke into Billings Senior High School and 
stole clothing and other items. The 2 were captured the following morning next 
to a house on O'Malley Drive. All of the other inmates were eventually 
captured.

Following the escape, Fitzpatrick was handed sentences for the escape and 
burglary, and an additional 200 years as a persistent felony offender. He 
currently resides in a federal correctional institution in Sheridan, Ore.

On July 4, 1974, 21-year-old Peggy Lee Harstad went missing. Her car was found 
the next day, abandoned just a few miles from her home in Rosebud. Her purse 
was found in a culvert a few more miles away.

Harstad was driving between Rosebud and Harlowton when she offered a ride to 
two hitchhikers, later identified as Dewey Eugene Coleman and Robert Dennis 
Nank. Her body was discovered in late August on the north bank of the 
Yellowstone River near Forsyth.

Nank and Coleman were arrested in October, 1974 in Boise. Nank confessed that 
he and Coleman had raped, beaten and drowned Harstad, while Coleman denied that 
he was involved. Both were charged with deliberate homicide, aggravated 
kidnapping and sexual intercourse without consent.

At the time, a conviction of aggravated kidnapping had a mandatory death 
sentence attached, but that law was repealed in 1977.

Nank entered a plea agreement, allowing him to have the kidnapping charges 
dropped, and thus avoid the death penalty, in exchange for testifying against 
Coleman. Coleman was convicted on all 3 counts, and was sentenced to 100 years 
for the homicide and 40 years for the rape charge. For the kidnapping, he 
received the mandatory death sentence.

Nank later escaped from the Nevada prison in which he was being held in 1981, 
along with 3 other convicted murderers. He was transferred to the prison from 
Deer Lodge out of fear of retribution for testifying against Coleman.

Coleman appealed the sentence, and the Montana Supreme Court determined the 
mandatory death sentence to be unconstitutional. Coleman was again sentenced to 
death in 1978 under a new statute.

The execution was scheduled for late November of 1981. Though no executions had 
been carried out in Montana for more than 39 years, the primary means of 
execution was still hanging. However, Montana State Prison Warden Hank Risley 
had the prison's gallows removed, stating that he didn't want his institution 
to carry out executions. Yellowstone County Sheriff Richard Shaffer took 
matters into his own hands, secretly constructing a gallows over a stairwell on 
the ninth floor of the Yellowstone County Courthouse.

Just days before the hanging was to take place, Coleman was granted a stay of 
execution. The gallows were dismantled. Shaffer is said to have taken the 
gallows when he left office, and they haven't been seen since.

Coleman later argued that his death sentence was handed down because he was 
black, and that Nank was given preferential treatment because he was white.

The 9th U.S. Circuit Court of Appeals ruled in favor of Coleman in 1988, 
commuting his death sentence to life imprisonment.

Coleman is eligible for parole this year, though his previous hearing with the 
Montana Board of Pardons and Parole in 2011 did not go in his favor. His inmate 
profile on the Montana Department of Corrections' Correctional Offender Network 
Search says that he is currently held at the Department of Corrections' 
Lewistown Infirmary.

The 3rd man in the photo, Duncan Peder McKenzie Jr., was not as lucky as the 
other 2 in his attempts to avoid capital punishment.

McKenzie was convicted of the January 21, 1974 kidnapping, rape and strangling 
death of Conrad teacher Lana Harding. He received the same mandatory death 
sentence for aggravated kidnapping that both Bernard Fitzpatrick and Dewey 
Coleman did. Just like those 2 men, Duncan McKenzie hoped to use the 
unconstitutional death sentence statute to argue that his sentence should be 
repealed.

8 stays of execution were granted to McKenzie, which drew his time on death row 
out to more than 2 decades. Ironically, McKenzie argued for a 9th stay of 
execution by saying that his lengthy stay on death row had constituted cruel 
and unusual punishment on the part of the state.

The 9th stay was denied, and on May 10, 1995, McKenzie became the 1st inmate to 
be executed in Montana in nearly 52 years. He was also the 1st in Montana to 
ever be executed by lethal injection, and the 1st in U.S. history to spend more 
than 20 years on death row and not be exonerated, pardoned or have his sentence 
commuted.

Stories about the execution noted that one of McKenzie's last requests, which 
was granted, was to be allowed to listen to a Marty Robbins album while he 
received his injection. His last meal consisted of a steak, French fries, a 
salad, orange sherbet and a glass of milk.

According to Larry, the photo was not planned. He and the reporter assigned to 
write the 1985 story that the photos were to accompany were on their way out of 
the prison when they saw the three men coming out of the maximum security area 
together.

The story was part of a Sunday magazine package entitled "Inside the Montana 
State Prison," which ran on November 17, 1985.

Duncan McKenzie saw the article and wrote a letter to Larry requesting 3 prints 
of the photo - 1 for each man. Larry obliged.

(source: Chase Doak, Billings Gazette)






IDAHO:

Canyon County prosecution may seek death penalty for Shaw


An Emmett man accused of stabbing his girlfriend to death in Nampa could face 
the death penalty if convicted.

Canyon County prosecutors have filed a notice of their intent to seek the death 
penalty against 23-year-old Brandon Shaw. He is accused of stabbing his 
girlfriend Chelsey Malone to death in the street outside her home in November.

Prosecutors filed the notice Jan. 7, citing aggravating circumstances that made 
the alleged crime eligible for a sentence of death. He is charged with 
1st-degree murder with an enhancement for the use of a deadly weapon, assault 
with the intent to commit a serious felony and another enhancement for the use 
of a deadly weapon and burglary.

According to court documents, police say Shaw admitted to stabbing Malone after 
he went to the house and used a credit card to open the door. He had a rifle in 
hand, according to court documents.

Shaw is scheduled to appear in Canyon County 3rd District Court on Friday.

Malone was a single mother of 3 children.

(source: Messenger Index)






USA:

Fell death penalty trial to February, 2017


The federal death penalty retrial of a Vermont man charged with killing a 
Rutland supermarket worker in 2000 is being delayed until February 2017.

In an order filed Tuesday, federal Judge Geoffrey Crawford said it would be too 
difficult to meet what had been the anticipated Oct. 3 start date for the 2nd 
death penalty trial of Donald Fell.

Fell was convicted in 2005 and sentenced to death for the abduction and killing 
of Terry King in New York. A judge ordered a new trial because of juror 
misconduct.

In his order, Crawford said one of Fell's attorneys will be busy with another 
case until late summer and he noted it would be too hard to find hotel rooms 
for potential jurors in Rutland during foliage season.

(source: Associated Press)

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

Judge orders some Tsarnaev trial documents released


A federal judge has ordered the US District Court clerk's office to 
"expeditiously" unseal dozens of documents and exhibits related to the Boston 
Marathon bombing trial.

US District Judge George A. O'Toole Jr. had allowed lawyers and prosecutors to 
file the documents under seal while preparing for and during the death-penalty 
trial of Dzhokhar Tsarnaev. But after the trial, O'Toole ordered the parties to 
reach agreement on what documents to make public.

Documents to be made available include FBI recordings of confessions and 
interviews, search warrant results, concerns raised during the jury selection 
process, and documents related to the controversial testimony of Sister Helen 
Prejean.

(source: Boston Globe)