[Deathpenalty] death penalty news----TEXAS, N.C., MISS., IND., ARK.

[Rick Halperin]

July 27



TEXAS:

Judge: Man cleared of murder shouldn't be declared innocent


A judge refused on Monday to endorse the innocence claims of a former Texas 
death row inmate even though his murder conviction was overturned after a 
prosecution witness admitted lying on the stand.

Kerry Max Cook was twice convicted in the 1977 slaying of Linda Jo Edwards in 
Tyler, about 100 miles east of Dallas. Freed in 1999 after taking a deal to 
plead no contest, Cook has maintained his innocence and finally won the 
dismissal of his conviction earlier this year.

But State District Judge Jack Carter, who approved that dismissal, said Monday 
that Cook and his lawyers hadn't met the higher legal standard necessary to 
declare him "actually innocent."

Cook likely needs to clear that standard to receive millions of dollars in 
benefits Texas pays to the wrongfully convicted - $80,000 for every year of 
wrongful imprisonment, along with an annuity and other benefits.

Earlier this year, authorities found that Edwards' boss and former lover, James 
Mayfield, wasn't truthful when he testified that the 2 had ended their affair 3 
weeks before her death.

After receiving immunity, Mayfield admitted the 2 had had sex the day before 
she was killed.

Carter agreed Cook's conviction could not stand due to Mayfield's false 
testimony at trial. But in an order Monday, Carter declined to go further.

"The ultimate issue in this case is a determination of who murdered Linda 
Edwards, not who had sexual relations with Linda Edwards," Carter said, 
according to the Tyler Morning Telegraph. Mayfield's recantation "is definitely 
helpful to Cook's defense, but this court does not find that it unquestionably 
proves that Cook is actually innocent."

Carter's order will go to the Texas Court of Criminal Appeals, the state's 
highest criminal court, which will make the final decision on Cook's claims.

Smith County District Attorney Matt Bingham told the newspaper he supported 
Carter's order. He has not ruled out retrying Cook.

Cook was not immediately available for comment.

(source: Associated Press)






NORTH CAROLINA:

Iredell County man charged in mother's death


An Iredell County man could face the death penalty after detectives said he 
killed his own mother.

Victim Bobbie Frye, 79, shared a home on Alexander Acres in Mooresville with 
her son, Michael Frye. That is where her niece found her severely beaten before 
she died on Monday.

Her son stood with his hands cuffed and arms crossed Tuesday as the judge 
announced he's charged with her murder. The maximum sentence could be the death 
penalty.

His relative told Eyewitness News Frye suffers from mental health issues. 
Looking at his criminal record, Chief Deputy Marty Byers questions whether Frye 
may have fallen through the cracks.

"It shows how broken our judicial system is, whether you need people to be 
incarcerated or need help, it's obvious that they're not," Byers said.

Eyewitness News learned Frye was supposed to be in court for a DWI charge in 
Rowan County on the day of his mother's death. Over the years, he's been 
arrested on more than a dozen charges in five counties, including resisting an 
officer and assault with a deadly weapon. Some of the charges were dismissed.

Iredell County deputies responded to a call that Frye assaulted his mother in 
2013, but investigators said she signed a waiver asking not to press charges.

"It's sad. You know that people do that. I understand they want to protect 
their families, they want to be forgiven," Byers said. "Unfortunately in this 
case, they had a tragic ending."

The judge decided not to address Frye's bond Tuesday morning.

He is being held at the Iredell County Detention Center without bond. His next 
court date is set for Aug. 16.

(source: WSOC news)






MISSISSIPPI:

Fighting the Lethal Injection


Richard Jordan has been on death row in Mississippi for 40 years for kidnapping 
and murdering Edwina Marter in 1976, even though the average wait time for 
death-row inmates to be killed is about 14 years. Jordan and fellow death-row 
inmate Thomas Loden Jr., convicted in 2001 for sexual assault, rape and murder 
of Leesa Marie Gray in 2000, have filed new challenges to Mississippi's 
lethal-injection drug law in the Mississippi Supreme Court, after the 5th U.S. 
Circuit Court of Appeals sent another drug challenge filed by Jordan, Loden and 
another death-row inmate Ricky Chase, challenge back to the district court. The 
district court has not yet considered the plaintiffs' First and Eighth 
Amendment challenges.

Jordan and Loden Jr. could be executed at any point, however, because as the 
Associated Press reported earlier this month, both men have exhausted their 
appeals.

Gary Carl Simmons was the last man executed by lethal injection in the state of 
Mississippi back in June 2012, MDOC's website says. A federal court's 
injunction froze executions due to three prisoners on death row challenging the 
state's use of the type of sedative drug - the 1st used - in the 3-part 
injection.

On July 6, the 5th U.S. Circuit Court of Appeals vacated the lower court's 
injunction and remanded the case back to the district court system."(B)ecause 
Mississippi's sovereign immunity prevents a federal court from enjoining state 
officials to follow state law, and because plaintiffs have not shown they are 
likely to succeed in establishing a violation of either their procedural and 
substantive due process rights," the 5th Circuit's revised opinion states.

The state courts will be left to interpret challenges to Mississippi's 
death-penalty laws and challenges to drugs used in the lethal-injection 
procedure.

No execution dates were set by press time for Jordan or Loden Jr.

"We certainly hope that they recognize that this is the kind of issue that 
should be vetted and weighed by the federal court prior to them trying to 
precipitate some kind of artificial crisis by setting an execution date," James 
Craig, a lawyer at the MacArthur Justice Center, which represents Jordan and 
Chase, told the Jackson Free Press.

Attorney General Jim Hood's office did not offer any specific comment on the 
numerous cases pending or the new appeals filed. Hood's spokeswoman Rachael 
Ring said the State of Mississippi will respond in court to challenges pending 
in both federal and state courts.

Drug Drama

Immediately before a July 2015 hearing on the prisoners' challenge to 
Mississippi's use of pentobarbital, the Mississippi Department of Corrections 
changed its policy to include more drugs on its list of possible drug "#1s" 
(the sedatives) in its 3-drug injection.

"In the event of the unavailability of sodium pentothal, a sufficient quantity 
of pentobarbital will be acquired and administered in its place. In the event 
of the unavailability of pentobarbital, a sufficient quantity of midazolam will 
be acquired and administered in its place," an MDOC policy request form 
included in court records states.

The form was signed and dated July 28, 2015. In the state's memorandum filed on 
that same day, lawyers from the Attorney General's office wrote, "the state no 
longer has pentobarbital in any form for executions." The memorandum also says 
the policy had to change because the state was unable to obtain the drugs 
anymore.

"MDOC and Commissioner Fisher have absolutely no motivation to change the 
State's lethal injection protocol, an event absolutely sure to produce 
litigation, unless the change was necessary and unavoidable," the July 28 brief 
says.

A year later, Jordan and Loden Jr. are challenging specifically the state's 
proposed use of midazolam, and those fresh appeals were filed in the 
Mississippi Supreme Court earlier this month.

The men's lawyers argue that midazolam is not an "ultra short-acting 
barbiturate" that Mississippi's death-penalty law requires. Instead, they argue 
that "it is a benzodiazepine, an entirely different class of drugs from that 
authorized by Mississippi law."

The "ultra short-acting barbiturate" is supposed to act as the sedative in the 
three-drug injection used to execute prisoners in the state of Mississippi.

The 3-drug injection includes the sedative, the paralytic drug ("so you don't 
see the body flopping around") and the drug that stops the heart, Robert 
Dunham, executive director of the Death Penalty Information Center, told the 
Jackson Free Press. Oklahoma was the 1st state to begin using the 3-drug 
approach back in 1977, and more states "just piggybacked on that," Dunham said. 
In the 1940s and '50s, Mississippi used the electric chair to kill prisoners on 
death row. After 1954, the State used a lethal gas chamber until 1984, MDOC's 
website states, until it introduced lethal injection as a method of execution.

"There's no reason to do that. If you euthanize a horse, you don't use three 
drugs???you use a larger dose of one drug," Dunham said of the execution 
formula.

Only a few states have caught on to the one-drug approach, however, and now 
because fewer drugs are available for lethal injections, they are - perhaps 
consequently - the only states still executing prisoners on death row. Alabama, 
Georgia, Missouri and Texas are among the states that use 1-drug lethal 
injection for prisoners on death row. An April analysis by the Marshall 
Project, a nonprofit journalism outlet dedicated to the criminal-justice 
system, shows that they are the only states currently executing prisoners. 
Eight states have used single-drug lethal injections to execute prisoners, the 
Death Penalty Information Center data shows.

In the meantime, midazolam was a part of the subject of a 2015 U.S. Supreme 
Court decision, Glossip v. Gross. While the U.S. Supreme Court found that 
challenges to Oklahoma's use of midazolam failed, Craig says the Glossip case 
did not approve the use of midazolam - contrary to what his "opponents" say. 
"The federal judge in Oklahoma is still considering whether the use of 
midazolam violates the Eighth Amendment," he told the Jackson Free Press. "Our 
opponents like to say that the Supreme Court approved the use of midazolam, but 
they did no such thing."

Craig said that the Glossip case differs from his clients' situation in 
Mississippi for several reasons. Oklahoma has adopted several safeguards in 
their lethal-injection practices, Craig said, like waiting 5 minutes after 
they've administered the sedative drug and tested the prisoner to make sure 
they are unconscious before the other drugs are administered.

"Mississippi has nothing like that," Craig said.

Court documents show that Mississippi's pre-execution inventory check require 
the injection team to check everything not less than 24 hours and not more than 
96 hours before the scheduled execution. Details of procedural operations of an 
execution are not included in the filing.

Preserving State Secrets

The pushback and stall of state executions in the past few years is largely due 
to large drug manufacturers coming out against their drugs being used to 
execute people.

"Every American manufacturer of sodium pentothal, pentobarbital and midazolam 
are on record as saying that they don't want their drugs to be used in 
executions," Dunham said. "And they have adopted internal regulations on sale 
and distribution of their product to try to keep them out of the hands of 
executioners."

Pfizer came out against the practice most recently, The New York Times reported 
in May, saying they did not want their drugs used for executions. Dunham says 
Pfizer is the 20th company by his count to do so. The drug manufacturers 
backing down from lethal drug sales has, consequently, left many states in 
limbo when it comes to acquiring the drugs necessary to execute prisoners.

Dunham said if states aren't getting drugs from manufacturers, that means they 
are getting them from compounding pharmacies, and compounding pharmacies - in 
general - are not subject to the same types of regulations as major 
pharmaceutical companies.

"As a result, there are significantly greater safety risks," Dunham said.

In the 2016 legislative session, Attorney General Jim Hood asked the 
Legislature to consider a law that would keep the identities of the state's 
execution team, suppliers of lethal injection chemicals and the witnesses of an 
execution all a state secret - exempt from the Mississippi Public Records Act. 
The bill became law July 1.

The law specifies "a supplier of lethal-injection chemicals" as one located 
within the state of Mississippi.

Dunham said he is unaware of any Mississippi drug manufacturer, so that 
provision of the law would most likely protect the identity of any compounding 
pharmacy in the state. Reading Senate Bill 2237, Dunham said the law might 
prevent those on death row from "obtaining information necessary to ascertain 
whether he or she is going to be subjected to a torturous execution."

Information about the drugs themselves, like how they are handled or if they 
are properly mixed or tested are all factors that could come up in court, but 
Dunham said, "if the compounder is a part of the execution team, you never get 
to ask him where they came from because you don't get to know who he is."

Other states have adopted secrecy laws like Mississippi's, but the 
state-specific supplier clause is different than what Dunham has seen in the 
past.

In the cases of Jordan, Chase and Loden Jr., the State of Mississippi has said 
it is unable to obtain pentobarbital.

In a footnote of its June 27 order, the 5th Circuit did not rule on this 
provision specifically. "Because other states retain access to pentobarbital it 
seems possible that Mississippi could regain access in the future," the 
footnote says.

Craig has asked the Missouri Department of Corrections for that state's 
lethal-injection methods to prove that other states have managed to keep 
executing people and finding the drugs to do so.

Missouri uses a 1-drug lethal injection protocol, using pentobarbital. The 
federal court there ruled in Craig and the plaintiffs' favor to access the 
information, but Missouri has appealed that ruling.

Dunham says Mississippi has presented no evidence that the drugs are 
unavailable without secrecy, but with several manufacturers publicly opting out 
anyway, the only thing left to hide is who is mixing the drugs in-state.

"If the drugs are unavailable publicly because everybody has opted out of the 
policy, that's a problem with the policy, not a justification for secrecy," 
Dunham said.

(source: Jackson Free Press)






INDIANA:

Indiana prosecutor to seek death penalty in 'Purge' killings


A central Indiana prosecutor says he will seek the death penalty in the case of 
a 19-year-old Indianapolis man charged with fatally shooting 3 people over 4 
days in May.

Marion County Prosecutor Terry Curry said at a news conference Tuesday that 
Johnathan Cruz killed the 3 "for sport," describing the killings as "beyond 
senseless." Curry says Cruz based the killings on the horror movie "The Purge," 
which is about 1 day a year when murder is legal. Cruz has pleaded not guilty 
in the shootings of Billy Boyd and Jay Higginbotham on May 12 and Jose Ruiz on 
May 15.

According to court documents, detectives said a witness told them that Cruz 
confessed he had been "purging" by shooting and robbing people.

(source: Associated Press)



ARKANSAS:

Arkansas lethal injection drug likely from Pfizer subsidiary


Arkansas' secrecy laws didn't keep photos of a drug used in the state's lethal 
injection protocol from offering some inadvertent transparency. A Pfizer 
subsidiary is now thought to be the provider, despite the company's prior 
statements to the contrary.

The revelation came on Monday following an investigation by the Associated 
Press into redacted photos it had obtained from the Arkansas Department of 
Correction.

The label for vecuronium bromide, a paralytic drug used in lethal injection 
protocols, matched those sent to the National Institutes of Health by Hospira, 
a company that the global pharmaceutical corporation Pfizer bought last year. 
While AP obtained the purchase orders for the drug, the name of the 3rd party 
that sold the drug to the Corrections Department was redacted in order to 
comply with the state's secrecy laws.

In a split decision, the Arkansas State Supreme Court ruled last month that the 
state could execute 8 death row inmates with its 3-drug protocol, while 
upholding a state law that keeps information about lethal injection drugs 
confidential. The 8 inmates are appealing that decision.

In March, Pfizer announced that it would not sell drugs for use in executions.

"Pfizer makes its products to enhance and save the lives of the patients we 
serve. Consistent with these values, Pfizer strongly objects to the use of its 
products as lethal injections for capital punishment," a statement from the 
Pfizer website said.

"Pfizer will consistently monitor the distribution of these 7 products, act 
upon findings that reveal noncompliance, and modify policies when necessary to 
remain consistent with our stated position against the improper use of our 
products in lethal injections," the statement continued.

The company has joined over 20 other drug companies from the US and Europe that 
do not permit their drugs to be used for state executions.

Pfizer spokeswoman Rachel Hooper said the company had restrictions in place to 
prevent the unauthorized use of its drugs, writing "We have implemented a 
comprehensive strategy and enhanced restricted distribution protocols for a 
select group of products to help combat their unauthorized use for capital 
punishment," according to AP.

"Pfizer is currently communicating with states to remind them of our policy," 
she added.

Hooper did not address whether the company was aware of the sale of the 
paralytic drug to Arkansas' Department of Correction.

Despite the fact that the death penalty is legal in nearly 2/3 of US states, 
the number of executions has fallen dramatically since 1999, when 89 were 
carried out. Last year saw 28, and so far in 2016, there have been only 14 
state sanctioned killings, according to the Death Penalty Information Center. 
Just 7 states have executed prisoners since 2014.

(source: rt.com)