[Deathpenalty] death penalty news----TEXAS, PENN., FLA., LA., IND.

[Rick Halperin]

May 21




TEXAS----impending execution

Charles Flores, the next person in America scheduled to be executed, has filed 
his final appeal


The next person in America scheduled to be executed has filed his final appeal, 
arguing that his conviction for murder was based on "flimsy" evidence and was 
racially motivated.

Charles Flores, a Texas inmate who is schedule to receive a lethal injection on 
June 2, filed a legal brief to the Texas Court of Criminal Appeals late 
Thursday afternoon. He currently has 13 days to live.

As Fusion reported earlier this month, Flores was convicted for the 1998 murder 
of Elizabeth "Betty" Black in a Dallas suburb. He was sentenced to death even 
though the prosecution presented no physical evidence linking him to the crime, 
and the only witness who saw him at the scene was improperly hypnotized by 
police. Meanwhile, Flores' white co-defendant, who was also charged with the 
murder, pled guilty, received a 35-year prison sentence, and is now out on 
parole.

The brief Flores' lawyers filed Thursday is an application for a writ of habeas 
corpus, essentially a petition asking the Texas court for a new trial or at 
least to postpone the execution to allow a hearing on the evidence.

"In a case involving drugs, money, greed, and family, Flores was implicated 
based solely on conduct preceding the murder and conduct that occurred many 
weeks following the crime," his lawyers write. "No gun - no bullet - no money - 
no fingerprints - no DNA - no map - nothing, absolutely nothing directly links 
Flores to this crime."

What is likely Flores' strongest argument concerns the hypnosis used in the 
investigation of the case. Jill Barganier, a neighbor of the victim's, was 
hypnotized by police officers to help her recover her memory of the morning of 
the murder. Even after the hypnosis, she couldn't pick Flores out of a police 
lineup. But 13 months later, when she was on the witness stand, she said she 
was "100% sure" she had seen Flores. Barganier was the only eyewitness who said 
she saw Flores at the scene of the crime.

Now, Flores' lawyers are arguing that Barganier's testimony should be thrown 
out under the state's junk science law. The brief includes an affidavit from 
Steven Lynn, a Binghamton University professor who is an expert in hypnosis and 
recovered memories. According to Lynn, who reviewed the trial transcript and 
the video of the hypnosis, new scientific research on hypnosis since the '90s 
suggests that the hypnosis conducted on Barganier could have led to the 
creation of false memories.

"Serious consideration should be given to the possibility that a miscarriage of 
justice was perpetrated in the ease of Mr. Flores," Lynn writes. Specifically, 
he says, the police officer who conducted the hypnosis used a technique known 
as the "movie theater technique," in which he encouraged her to imagine she was 
in a movie theater watching a movie of her memories. That strategy, Lynn says, 
has been discredited, and can cause people to have unwarranted confidence in 
false memories. "Clearly, the techniques that were used to refresh Ms. 
Bargainer's memory would be eschewed today by anyone at all familiar with the 
extant research on hypnosis and memory," Lynn writes.

Without the testimony of Barganier - the only witness who identified him at the 
crime scene - Flores would not be convicted, his lawyers argue.

"[Barganier's] flawed testimony is literally the only glue holding together the 
States tenuous circumstantial case. Without it, there is no way a Texas jury 
would have found Flores guilty of capital murder," the brief states. (Barganier 
did not respond to several requests for comment last month.)

The brief also spends considerable time discussing Flores' childhood. He says 
he was given drugs by his brothers at an early age, and was huffing gas to get 
high when he was only 5. Another psychologist who the defense had evaluate 
Flores said that this may have led to abnormal brain development. One of 
Flores' earliest memories, the brief notes, is a violent fight between his 
parents. Flores also reported that he was sexually assaulted by relatives.

But Flores' trial attorneys didn't investigate any of this or present this 
mitigating evidence to the jury. During the sentencing phase of his trial, 
Flores' attorneys didn't call a single witness. They didn't try to contact any 
of his brothers or childhood friends.

"Had the jury heard about Flores's upbringing, childhood drug use, and brain 
impairment, it would have been presented with a vastly different picture than 
the State's depiction of a violent, remorseless, inhuman monster. Because 
Flores's attorneys did little to challenge the State's narrative, the jury was 
left with no real options," the brief states.

Finally, the brief argues that the deep discrepancy in sentencing that Flores 
received as compared to his white co-defendant, Richard Childs, means the death 
penalty as applied to him is unconstitutional. Childs, who was also charged 
with the murder and pled guilty to shooting Black, received 35 years in prison, 
served 17, and is now out on parole. (In a later appeal, however, Childs 
claimed that it was in fact Flores who shot Black, not him.)

"The only real difference between the 2 men is the color of their skin," 
Flores' brief states.

Since 1973, it notes, almost 2/3 of the defendants sent to death row from 
Dallas County have been nonwhite, even though the county has a majority white 
population. And Dallas County has never sent a white inmate to death row for 
killing a minority victim.

The brief also cites Fusion's interview with the lead prosecutor in the case, 
Jason January, who told me that "If you talk to the jury, they didn't much care 
whether [Flores] pulled the trigger or not, he was participating fully and 
wholeheartedly in the crime."

"The jury might not have cared, but the constitution does," his lawyers respond 
in the brief.

The state will likely file a response to the brief within the next day or so, 
and a ruling from the Texas Court of Criminal Appeals is expected next week.

Gregory Gardner, 1 of Flores' attorneys, says he's optimistic about the 
application's chances. If the Texas court denies the brief, Flores' lawyers are 
likely to appeal to federal courts and eventually the U.S. Supreme Court. 
Recent opinions by Justices Stephen Breyer and Ruth Bader Ginsburg questioning 
the constitutionality of the death penalty suggest that they might be 
interested in the questions of race involved in the different sentences Flores 
and Charles received.

"We think there's a potential they might want to revisit that," Gardner told 
me. "It's just so unfair and arbitrary who gets put to death and who doesn't 
... even if you don't want to look at the race, it's just so massively 
disparate that it shocks the conscience."

Flores' lawyers have also filed a petition for clemency to the Texas Board of 
Pardons and Paroles, but clemency for Texas death row inmates is exceedingly 
rare.

While Flores watches his final appeal play out, he's been given some very bad 
news: His father Catarino, who has been in a nursing home, died yesterday 
morning. "For the circumstances he's doing well, but it's been kind of a lot 
all at once," Gardner said. "He's hanging in there."

(source: fusion.net)

************************** new death sentence

Brownlow given death penalty


The jury in the capital murder case of Charles E. Brownlow Jr. of Terrell has 
given him the death penalty. After Brownlow was found guilty of the murder of 
Luis Gerardo Leal-Carillo at Ali's Market in Terrell Oct. 28, 2013, they had to 
decide whether he received a life prison sentence without parole or the death 
penalty.

The sentence was handed down in district court in Kaufman Friday afternoon. The 
sentencing phase of the trial has been ongoing since the guilty verdict was 
reached April 28.

Brownlow is also accused of 4 other murders, all on the night of Oct. 28, 2013.

(source: The Terrell Tribune)

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

Death Penalty Sought in Store Clerk Death


Prosecutors announced Friday they will seek the death penalty in connection 
with an armed robbery that left a convenience store clerk dead.

23-year old James Elizalde is accused of shooting and killing 50-year old 
Ignacio Rodriguez back in October of last year at the Stripes store at South 
Staples and Carroll Lane. Elizalde was arrested after police say he robbed the 
store then shot and killed Rodriguez.

Elizalde pled not guilty.

(source: KIII news)






PENNSYLVANIA:

Compulsion to rape and kill: Inside killer's mind


For more than 2 decades, people have been trying to get inside the mind of 
Joseph D. "Joey" Miller. In a way, the convicted serial killer from Steelton 
has become his own Rorschach test for the detectives, defense attorneys, 
prosecutors, psychologists and judges who played a role in his protracted, 
high-profile case.

Some look at him and see a mentally challenged, parentally abused, perennially 
bullied victim whose rage is a product of his environment, upbringing and 
post-traumatic stress.

Others take into account the manner in which Miller maintained a domestic home 
life, complete with a wife and 3 children, while simultaneously getting away 
with the rape and murder of up to 5 women, and brutal assaults of 2 others. 
They see a cunning killer leading a duplicitous double life who was always 
careful about procuring victims from society's margins, packing a murder kit 
complete with beer, and then disposing of the bodies; some of the remains 
wouldn't be found for a decade.

Miller's mysterious, murderous mind has been the subject of 2 murder trials 
covering 3 of his victims and resulting in 3 convictions and a double death 
sentence. Then came a flurry of capital punishment appeals that reached all the 
way to the Pennsylvania Supreme Court.

Miller confessed to a 4th murder, for which another man had been convicted. 
That man was later released, yet Miller was never charged. Then in April - 3 
decades after 26-year-old Kelly Ann Ward disappeared - Miller was charged in 
Dauphin County with her murder, as well.

If the allegations are true, Joseph Miller stands, at 5 feet, 9 inches, as the 
midstate's most prolific killer ever. He ranks as a genuine serial killer, 
bearing all the signature traits straight out of a horror movie, according to 
the detectives who profiled him and district attorneys who prosecuted him.

"It was more Hollywood than Harrisburg," Dauphin County District Attorney 
Edward M. Marsico Jr. remembered of the Miller case, which broke in the early 
1990s, just after the hit horror film, "The Silence of the Lambs," turned 
Anthony Hopkins' portrayal of serial killer Hannibal Lecter into a pop-culture 
sensation.

This was the age of the serial killer as celebrity, and sure enough, Central 
Pennsylvania had spawned one of its own.

"Ted Bundy was still fresh in our minds," recalled Marsico. "Son of Sam. All of 
that. Now we had in Dauphin and Perry counties someone who was a true serial 
killer. He targeted a certain type of victim, and raped and killed them. He 
would keep a trinket or memento of the victim and have a little shrine to them. 
He would go back to where the bodies were."

Dauphin County Judge Richard Lewis, who as county district attorney won twin 
murder convictions and secured the death penalty against Miller, is more 
succinct:

"His crimes were monstrous," Lewis said. "It defied description what he did."

Now, with the Ward case, Miller is again capturing headlines, adding to the 
hundreds of law enforcement hours already spent on his case and the thousands 
of words written about him.

Yet the mystery of Miller's mind endures.

Is it that of a mentally challenged man incapable of fully understanding his 
horrible crimes? Or is it the mind of a cold, calculating serial killer driven 
by a compulsion to rape and murder his minority victims?

More than two decades later, insight into Joseph Miller's mind remains as 
confounding, conflicting and as polarizing as ever.

2 Sides of Joseph Miller

Time has transformed Joseph Miller from the wiry, short-statured, tattooed 
murder suspect into a wizened, haunted, hollowed-eyed convict staring out in a 
state prison mugshot at age 51.

His thousand-yard prison stare seems to defy the viewer to project upon him any 
view they wish. So does his conflicting tattoos, which include ink of both 
Jesus and the grim reaper.

And how about Miller's pronounced lisp, caused from a boyhood fall after 
leaping from a couch, a la Superman. Does it intone meekness or snake-like 
duplicity?

History shows that Miller can be the taciturn type who confesses to several of 
his murders with such relish and emotion that it becomes a physical 
performance.

Conversely, Miller isn't above laughing in the face of investigators 
desperately attempting to tie up loose ends from a 30-year-old homicide in 
which the victim, Kelly Ann Ward, wasn't found for a decade, and remained 
faceless and nameless for almost 2 more decades.

Joseph Miller remains a conundrum. This, despite the best attempts of 
detectives, defense lawyers, prosecutors, psychologists and even judges to 
define him by peering into that murky mind of his.

"Who can explain what goes on in the head of a fellow with a 4th-grade 
education and a low IQ?" Perry County Public Defender Shaubut Walz once asked 
during Miller's murder trial for killing victim Kathi Shenck with his car at a 
Duncannon dumping ground after she tried to flee his sexual assaults in 1990.

After examining Miller, Camp Hill psychologist Stanley E. Schneider, now 
retired, testified that he found a mix of borderline mental retardation, 
emotional difficulties and learning disabilities, raised in a "violent, 
abusive, alcoholic home."

Despite this, Miller, a mentally challenged man with a criminally checkered 
past, managed to get his life together and achieve a degree of seeming 
normalcy.

In the end, Miller's marriage and his role as a father would prove a mirage, if 
not an elaborate double life.

For in Uptown Harrisburg, young African-American and minority women began 
disappearing, one by one.

The Victims

Shortly after Joseph Miller began his own family, women began vanishing from 
their families. Despite some clues and maddening coincidence, it would be years 
before the cause and effect could be tied together.

On May 16, 1987, Selina Franklin, 18, of Harrisburg, disappeared, last seen by 
friends with a man named "Joey" who gave the girls a ride.

Stephanie McDuffey, 8 months' pregnant, failed to return to her Bellevue 
Street, Harrisburg, home on Nov. 6, 1989. The 23-year-old woman's mother 
reported her missing, but police turn up nothing.

On Jan. 11, 1990, Jeannette Thomas, 25, disappeared after leaving an Allison 
Hill bar with a man fitting Miller's description. She was never seen alive 
again.

The body of Kathy Novena Shenck, also known as Phoenix Bell, was found at a 
roadside dump in Penn Twp., Perry County, on Feb. 27, 1990. The Harrisburg 
woman was run over by a car several times, until dead.

On June 30, 1992, a Harrisburg woman with a history of prostitution staggered 
to a secluded home in Perry County, telling a horrific story of rape and forced 
oral sex. Her assailant stabbed her more than 25 times in the head with a 
screwdriver, then left her for dead. But she lived to tell her tale.

Before all of them, there was Kelly Ann Ward, police say. The 26-year-old 
Harrisburg woman disappeared in 1986, but her skeletal remains were not found 
until 1997. Even then, those remains would not be positively identified as 
Ward's for decades.

Throughout the string of disappearances and the many intervening years during 
which those cases went unsolved, Joseph Miller emerged as a common denominator.

Miller was questioned in Selina Franklin's disappearance but told police he 
dropped her off following their ride.

In the Jeannette Thomas case, Miller fit the suspect's description, but a 
mentally challenged 31-year-old man confessed to her homicide.

In the screwdriver assault in Perry County, Miller was photographed withdrawing 
money from an automated teller machine at Harrisburg's Uptown Plaza with the 
victim in his car. This prompted state police to place him under surveillance 
for the 1st time.

Yet for years, Joseph Miller was able to maintain his double life.

"I think it's a fair description," Judge Lewis agreed.

For Marsico, who fought Miller's death sentence appeals all the way to the 
Pennsylvania Supreme Court, the murderer's duplicitous nature proved to be the 
prosecution's main argument that Joseph Miller had adequate mental capacity to 
be executed.

"We focused on his adaptive functioning," Marsico recounted. "The fact that he 
was married, with kids and a job, and he planned and carried out these crimes 
without being caught for years, including the case he was just arrested on 30 
years later. That's not what you think of when you think of mentally retarded."

Miller's murderous reign might have gone on longer. But law enforcement was 
about to get a major break in the case.

Call it luck. Or call it a serial killer going for 1 victim too many.

The Beginning of the End

The date is Aug. 6, 1992. By this time, Joseph Miller has gotten away with the 
murders of 5 women, police say. (He has since been convicted of 3, confessed to 
a 4th and been charged with a 5th.)

Miller's compulsion for sex, rape and murder has brought him to the seemingly 
quiet, deserted Conrail property in Susquehanna Township. Then fate intervenes.

Headlights approach along a service road. A startled Miller flees on foot, 
leaving his car and everything else behind.

A Conrail security guard encounters the scene, but doesn't immediately 
recognize the significance. At first, the guard doesn't see the nude victim, 
already bound and gagged and lying in the dirt near the burial hole. Then, she 
begins squirming for help.

"The woman who lived only lived by a miracle," recounted Lewis, who was 
district attorney when Miller was prosecuted. "The hole was already dug. It was 
a matter of seconds. It was by the grace of God that headlights came up the 
road. Joe panics and runs, and the security guard finds the woman bound and 
gagged who couldn't make a sound. She moved around in the dirt to make noise."

Miller's so-called murder kit, left behind at the Conrail scene, contained a 
knife, duct tape, a cooler of beer and mats to lay the victim on. But it was 
his car that led police to Miller and his Steelton residence. There, Miller 
engaged in a rooftop standoff with police, threatening suicide before 
ultimately surrendering.

Shortly after his capture, Miller seemed eager to confess.

"You could see the veins on his neck pumping," Brennan told the Patriot-News in 
2000, describing how Miller would relive his murders while recounting the 
attacks to interrogators.

"It was almost like he was working out in a gym," Brennan said.

On Aug. 12, 1992, Miller led police to the skeletons of McDuffey and Franklin, 
admitting to bludgeoning both to death following sex.

By the time he was finished, Miller had admitted to four murders, confirming a 
predilection for preying upon young minority women from Harrisburg, some of 
whom may have been prostitutes. The pattern proved to be the quintessential 
signature of a serial killer.

"He is cold and calculating," Marsico said of Miller. "Look who he selected. He 
purposely selected African-American (and minority) females, usually bigger 
women. He figured there wouldn't be an outcry or much attention paid to their 
disappearance. He went to secluded areas to torture and kill them. There was 
some planning and thought that went into this. Cunning is a good word."

But knowing what Miller had done and proving it to a jury beyond a reasonable 
doubt were 2 different things.

Miller's double-murder trial in Dauphin County would come down to the testimony 
of the surviving victim from the Conrail property. The woman's narrative of her 
near-death experience at the hands of Joseph Miller would rivet the jury and 
cinch both convictions, as well as his dual death penalty punishment, Lewis 
recalled.

As a result, Joseph Miller was now a twice-convicted murderer, condemned to 
death. A conviction for Kathy Novena Shenck's murder in Perry County would make 
it 3 murder convictions.

But Joseph Miller was about to turn the tables on the justice system, itself. 
And none other than the U.S. Supreme Court would lay the legal groundwork that 
just might spare his life.

Mind Games

If the disturbing tours of Joseph Miller's mind were peripheral issues during 
his murder trials, they became the central focus in his death sentence appeals.

Joseph Miller was cooling his heels on Pennsylvania's Death Row when, in 2002, 
a ruling by the U.S. Supreme Court changed everything. The land's highest court 
ruled that killers suffering from mental retardation could not be executed.

The legal shockwaves of that ruling soon reached Dauphin County, where Judge 
Jeannine Turgeon, who presided over Miller's trial and sentencing, acted to 
vacate the double death sentence she had handed down. This converted Miller's 
punishment to three life prison sentences, two from Dauphin County and one from 
Perry County.

The reaction to Turgeon's ruling was both immediate and sharp.

Marsico, now Dauphin County's district attorney, was livid in vowing an all-out 
appeal:

"Joey Miller is a poster child for the death penalty," Marsico proclaimed at 
the time. "He cold-bloodedly planned his rapes and murders, choosing a 
particular type of woman, luring them to a secluded location where he would 
rape, torture, and kill them.

For the defense, however, Miller's flawed mind, for once, worked in his favor. 
It literally would keep him alive under the law:

"He was diagnosed mentally retarded before he even started elementary school," 
Robert Dunham of the Defenders' Association of Philadelphia countered at the 
time. "This is nothing new. This is something that has been well documented for 
many, many years."

The legal battle over Joseph Miller's mind would last another 6 years. In the 
end, when the appeal reached the Pennsylvania's highest court in 2008, 
Turgeon's ruling would stand.

Joseph Miller would live.

It's an outcome with which Judge Lewis, the original DA in the case, has long 
since made peace. Even if Miller's death penalty had stood, Lewis said the 
state was already moving away from executions, meaning Miller likely would have 
remained alive anyway.

As for the conundrum of Miller's mind, Lewis saw both sides.

"There is an element of cunning in his psyche. That was evident," Lewis said. 
"But the experts felt strongly that he has this mental retardation. It may be a 
combination of both."

In an interview, Turgeon rejected the notion of citing Miller's murders as 
evidence of intelligence.

"The reality is that sort of animal-like behavior doesn't indicate 
intelligence," she said. "We see animals all the time stalking and killing. He 
was sort of raised like an animal. He had a horrible childhood. He had none of 
the human social intelligence that we would want for people to function."

By contrast, Marsico remains adamant, insisting that if anyone should be put to 
death, it's Joseph Miller.

"Our stance has been consistent that Joey Miller was not mentally retarded to 
the degree necessary that would prohibit capital punishment," he said. "I'm 
disappointed that Joey Miller will not receive the death penalty."

Yet, if the ultimate punishment had been carried out, Joseph Miller wouldn't be 
around to answer for Kelly Ann Ward and her cry for justice from beyond the 
grave.

Ever the Conundrum<:P> Kelly Ann Ward has the distinction of being the 1st and 
the last.

If Miller is convicted, the 26-year-old from Harrisburg would become his 1st 
murder victim, having disappeared in 1986. Yet, because her skeletal remains 
were not found in Swatara Township until 1997 and then not positively 
identified until recently, Ward would be the last to get justice.

Identification of her remains in spring 2014 heated up a cold case and led 
investigators to the state prison at Smithfield, where Joseph Miller is serving 
multiple life sentences.

Similarities between Miller's known homicides and the Ward case are more than 
eerie: Ward's skeleton was found near a site where Miller had discarded 2 other 
bodies. What is more, Ward closely matches the type of victim Miller preferred 
to prey upon: Young. African-American. Living on the margins in Harrisburg.

This time, however, a taciturn Miller is being no help by providing a 
confession. Instead, Miller, ever the conundrum, laughed in investigators' 
faces as they attempted to question him about Ward in May 2015.

In arrest records and notes from the interrogation led by Swatara Township 
police Lieutenant Darrell Reider, Miller is described as "very hesitant to 
speak." Yet when asked if he had killed Ward, Miller "did not deny doing 
anything, but stated, 'I don't remember, I was in a dark place then, doing a 
lot of drugs.'"

Just as quickly, Miller dismissed the detectives, saying in effect, "don't call 
me, I'll call you."

Detectives may not have been able to get inside Miller's head, but they did 
listen to recordings of his phone calls to family members, including a 
conversation in which he talked about his other murders in detail. During the 
call, Miller "indicates that there was another body that was found, but he 
didn't do that one," the arrest affidavit in the Ward case states.

Was this Miller being cunning, knowing cops could be listening?

It was worth another prison visit, this time with retired Dauphin County Chief 
Detective Tom Brennan in tow. After all, Brennan helped elicit Miller's 
confession in the pair of Dauphin County homicides in 1992. Could he do it 
again?

At first Miller puts up a solid front, flatly denying killing Ward: "It's just 
a coincidence, a mere (expletive) coincidence. I am not the only serial killer 
that was killing girls," he is quoted in court papers as saying.

Then Brennan shows Miller a photo of a metal pipe found near Ward's remains. 
The retired detective adds that Ward was killed by a blow to the head, just 
like Miller's known victims.

This seems to catch the convicted killer's attention.

"That pipe looks pretty big," Miller is quoted by detectives as responding.

Later, Miller allegedly tells the officers that the pipe he used was smaller, 
before once again retreating to his blanket denials regarding Ward.

"There are other serial killers out there," Miller is quoted telling the 
detectives. "You just haven't caught them yet. I didn't do this one."

More mind games from a serial killer? Or confusion on the part of an 
intellectually disabled man, imprisoned for the past 24 years?

For detectives working the Ward case, the pieces are all there - and they fit.

Court papers also refer to Miller's original 1992 statement. In it, Miller 
allegedly told Brennan that he had disposed of another woman's body but said he 
didn't know her name. Miller claimed to have picked up the victim at a city 
restaurant, before driving her to the same landfill, having sex with her, and 
then killing her with a pipe and covering her corpse with tires and shingles.

At the time, Miller told Brennan that her body was "the one by the road."

Now, all these years later, authorities believe Miller was actually describing 
the murder of Kelly Ann Ward.

Could she be the first - and now the last victim - who even the convicted 
serial killer had forgotten?

Only time, and the wheels of justice, will tell.

As for the mystery of Joseph Miller's mind and the still-unknown source of his 
compulsion to rape and kill? Perhaps this quote from a seen-it-all detective 
comes closest to providing an answer:

"What our society has to learn is that there are individuals out there who 
commit these kind of crimes for no other reason than they like it," Brennan 
told the late Patriot-News investigative reporter, Pete Shellem, in April 2000.

"They enjoy seeing the fear that they place in the victim and the control that 
they hold over that victim," the detective added. "And finally, they really 
enjoy that godlike feeling of taking a life."

Online: http://bit.ly/1XsKxXC

(source: njherald.com)






FLORIDA:

Fix Florida's death penalty - again


Despite being repeatedly chastised by the courts over our death penalty 
procedures, the Florida Legislature, this spring, rushed to pass yet another 
flawed statute to keep death row moving. And once again, the courts have had to 
stop another unconstitutional process.

This time, it was Miami-Dade Circuit Judge Milton Hirsch who halted an 
execution after observing that the new state capital punishment statute 
allowing the death penalty to be imposed without a unanimous jury verdict was 
unconstitutional. Critics of the revised law pointed out this problem before 
the law was passed in March. It lacks common sense that there must be unanimity 
upon conviction, but not in imposing a death penalty.

Yes, our legislative leaders' efforts to create a fair and constitutional 
system have reached a pathetic low point. And yes, they still have to fix it - 
again.

This latest failure came after the U.S. Supreme Court, in an 8-1 ruling, tossed 
out the old law, halting executions. The high court observed that Florida's 
process for imposing the death penalty allows only juries to recommend a death 
sentence, but gives judges the power to decide whether to impose it. The court 
majority recognized that Americans have a Sixth Amendment right to trial by 
jury.

But the Legislature, instead of passing a law requiring a unanimous jury 
verdict, came up with a revision requiring only a 10-2 verdict to impose the 
death penalty. As Hirsch pointed out in an 18-page ruling, there are no Florida 
cases, no Florida law review articles and no Florida legal history to support 
the state???s position allowing less than a unanimous verdict to result in 
death.

Even in the absence of the Constitution, basic notions of fairness and common 
sense should point to unanimity.

The Post Editorial Board, after the U.S. Supreme Court rebuke earlier this year 
- and with more than 390 individuals awaiting death - suggested our legislators 
use the time to thoughtfully and carefully design a better capital punishment 
system. We noted then that Florida's death penalty record is filled with 
troubling questions. For example, there is application of the death penalty to 
mentally incompetent inmates, and disproportionately to minorities. Blacks make 
up 16 % of Florida's population, but 37 % of death row inmates.

Lest we forget, Florida trumps every other state with its record of 23 death 
penalty exonerations. And the unsettling controversy surrounding the lethal 
injection process has caused more than 20 U.S. and European pharmaceutical 
companies - including Pfizer last week - to take active steps to prevent the 
use of their products for executions. This leaves states with few options, and 
potentially flawed drug cocktails.

With all of these flaws in the system and the latest court ruling, why would 
our legislators insist on making it easier to impose the ultimate sanction on a 
human being? Why not require a unanimous verdict? Why risk the wave of lawsuits 
sure to follow?

Take a thoughtful, careful look at our death penalty process. And this time, 
get it right.

(soruce: Editorial, Palm Beach Post)

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

Death row inmate asks court to ignore lawyer's request


A death row inmate whose execution is on hold has asked the Florida Supreme 
Court to abandon in his case consideration of a U.S. Supreme Court decision 
that struck down the state's death-penalty sentencing process.

The Florida Supreme Court earlier this year indefinitely postponed the 
execution of Mark James Asay, a convicted double murderer who was scheduled to 
be put to death on March 17. The ruling was prompted by a U.S. Supreme Court 
decision that found Florida's death penalty sentencing system gave too much 
power to judges, and not juries.

The state's high court has focused on the fallout of the decision, which came 
in a case known as Hurst v. Florida, in more than a dozen Florida death penalty 
cases since the opinion was issued in January.

But the circumstances of Asay's case drew even more attention.

Asay was convicted in 1988 of the murders of Robert Lee Booker and Robert 
McDowell in downtown Jacksonville. Asay allegedly shot Booker, who was black, 
after calling him a racial epithet. He then killed McDowell, who was dressed as 
a woman, after agreeing to pay him for oral sex. According to court documents, 
Asay later told a friend that McDowell had previously cheated him out of money 
in a drug deal.

After being sentenced to die, Asay went for a decade without legal 
representation, and almost all of the paper records involving his case went 
missing or were destroyed. His lawyer, Marty McClain, was appointed five days 
after Gov. Rick Scott signed Asay's death warrant earlier this year.

Asay's case is one of many caught up in the wake of the U.S. Supreme Court 
decision, which dealt with the sentencing phase of death-penalty cases after 
defendants are found guilty and focused on what are known as aggravating 
circumstances that must be determined before defendants can be sentenced to 
death.

During the legislative session that ended in March, Florida lawmakers hurriedly 
crafted a "fix" to the state law --- which defense lawyers contend is flawed 
--- in response to the Jan. 12 ruling,

Under Florida's new law, juries will have to unanimously determine "the 
existence of at least one aggravating factor" before defendants can be eligible 
for death sentences. The law also requires at least 10 jurors to recommend the 
death penalty in order for the sentence to be imposed, and it did away with a 
feature of the old law that allowed judges to override juries' recommendations 
of life in prison instead of death.

A jury in Asay's case recommended death on both 1st-degree murder counts with a 
vote of 9-3.

Since the Hurst ruling, McClain, on Asay's behalf, has argued that the new law 
should apply to Asay and that the prisoner should receive a life sentence, 
based on a 1972 Florida law that required death sentences to be reduced to life 
imprisonment without parole if the death penalty is overturned.

But this week, Asay asked the court to ignore the filings related to the Hurst 
decision and the new law.

"While Mr. McLain (sic) is indeed an honorable and excellent attorney in the 
rush and exigency of proceeding under a death warrant counsel has moved this 
court to review and to address claims relating to sentencing issues that 
petitioner simply is not interested in seeking relief from and now wishes to 
waive," Asay wrote in a handwritten, 2-page document filed with the Supreme 
Court on Monday.

Documents filed by Asay on Monday and Thursday appear to indicate that he is 
interested in pursuing appeals based on new or rejected evidence related to his 
case.

The court could ignore Asay's request, ask the state to weigh in, ask McClain 
to respond, or send the case back to the trial court, according to legal 
experts.

"It's not clear what he wants. If I were the Supreme Court, I would want him to 
talk with his lawyer and to resolve whatever, if any, differences exist between 
them," Florida International University law professor Stephen Harper, who runs 
the school's Death Penalty Clinic, told The News Service of Florida in a 
telephone interview Friday.

It is not uncommon for death row inmates like Asay, who has spent nearly three 
decades awaiting execution, to abandon hope or to look for ways to expedite 
resolution to their cases, experts say.

"When someone's case goes unattended as long as this one did, or they believe 
their case has gone unattended as long as this one did, they get depressed. 
They get suicidal. They start to lose hope, and Mr. Asay, I believe, wants to 
focus on the claims that he believes will give him a new trial and potentially 
see the light of day sometime," Pete Mills, 10th Judicial Circuit assistant 
public defender who is chairman of Florida Public Defender Association's death 
penalty steering committee, said in an interview Friday.

(source: news4jax.com)






LOUISIANA:

Correcting Prosecutorial Misconduct and Judicial Error in Louisiana


It seems incontestable that Louisiana's criminal justice system is in a state 
of collapse. The state judiciary appears to be oblivious to violations of the 
constitutional rights of criminal defendants; prosecutors continue to violate 
the rights of accused with impunity, especially by suppressing exculpatory 
evidence; public defenders are so overwhelmed by huge caseloads they have 
refused to take new cases; and the state prisons have the highest incarceration 
rate in the nation. Although the Supreme Court and lower federal courts have 
intervened in numerous cases to correct abuses, they can do so only piecemeal, 
and only when the abuse is so flagrant that deference typically given to the 
conduct of state officials is inappropriate. For example, the Supreme Court and 
lower federal courts have vacated numerous Louisiana convictions - many in 
death penalty cases - because of serious prosecutorial misconduct, and often 
after the Louisiana courts found no wrongdoing. Moreover, in several of these 
cases the defendant was innocent and ultimately exonerated after spending many 
years in prison.

The Supreme Court is poised to take up yet another misconduct case from 
Louisiana involving prosecutors who suppressed evidence favorable to the 
defendant that likely would have changed the jury's decision to execute him. 
David Brown, one of the Angola 5 defendants convicted of murdering a prison 
guard during an escape attempt and sentenced to death, is asking the Supreme 
Court to review his case. Brown claims, and it is not disputed, that 
prosecutors obtained a confession from 1 of Brown's co-defendants who admitted 
to being the actual killer and who intimated that Brown was not involved in the 
killing. The prosecutors never disclosed this confession to Brown's lawyers, 
who obviously would have used it to persuade the jury to spare Brown's life. 
Despite clear constitutional authority establishing that prosecutors violated 
Brown's due process rights, the Louisiana courts found no misconduct, and also 
held that the prosecutor's failure to disclose the statement would not have 
changed the result.

There is abundant evidence that prosecutors in Louisiana have for years 
consistently violated the rights of defendants by failing to disclose to 
defendants favorable evidence that could alter the verdict, and that Louisiana 
courts in reviewing criminal convictions, especially capital murder conviction, 
consistently failed to correct these prosecutorial violations, and in fact 
concluded that no violations occurred. Thus, for example, in a Louisiana 
capital murder case decided by the Supreme Court in March, Wearry v. Cain, the 
prosecution hid critical evidence from the defense that almost certainly would 
have altered the verdict. The Louisiana courts agreed that the prosecutor 
should have disclosed the evidence but nevertheless affirmed the conviction, 
concluding that the withheld evidence would have made no difference to the 
result. The Supreme Court overturned this ruling, finding "beyond doubt" that 
the undisclosed evidence destroyed confidence in the jury's verdict.

In another Louisiana capital murder case decided by the Supreme Court three 
years ago, Smith v. Cain, critical evidence that would have discredited the 
prosecution's only witness was hidden from the defense. Every Louisiana judge 
who reviewed the conviction found no violation; all 1 state judges believed it 
was a slam dunk conviction. The Supreme Court felt otherwise. At oral argument 
and in its 8-1 ruling overturning the conviction, the Court was incredulous 
that the state prosecutor arguing the case was so oblivious to such clear 
misconduct.

The current capital murder case of David Brown is a mirror image of the 
landmark ruling of the Supreme Court in Brady v. Maryland, decided 53 years 
ago. In that case, as in Brown, there was no doubt that Brady participated with 
an accomplice in a murder. But the prosecutor failed to disclose to Brady's 
lawyer a statement made by the accomplice in which he identified himself as the 
actual killer. Clearly, if the jury knew about the statement, it might have 
persuaded them to spare Brady's life. The Supreme Court found that by not 
revealing the statement to Brady the prosecutor violated Brady's due process 
right to a fair determination of his punishment.

Brown makes the same argument. He claims, and the trial judge agreed, that the 
prosecutor deliberately withheld from the defense the co-defendant's 
inculpatory statement identifying himself the actual killer and suggesting that 
Brown was not involved in the killing. As in Brady, although the statement 
would not have absolved Brown of complicity in the killing under the theory of 
accomplice liability - Brown did participate in the escape during which the 
guard was killed - the trial judge found that the suppressed statement would 
have lessened Brown's overall culpability, and might very well have persuaded 
the jury not to sentence him to death. At the very least, the prosecutor by 
suppressing the statement denied Brown's lawyer the opportunity to make that 
argument to the jury. The trial judge vacated the death sentence.

The Louisiana appellate courts once again sided with the prosecutor. They found 
that even if the prosecutor suppressed the statement, it would not have changed 
the result. The statement, the reviewing courts concluded, was not favorable to 
Brown, and certainly not material to his punishment. In making this 
determination, the appellate judges viewed the co-defendant's statement as not 
exculpatory to Brown, but simply as proof of the guilt of the confessing 
co-defendant. As shown in many earlier cases that were overturned by federal 
courts, the Louisiana judges were confused about how to analyze exculpatory 
evidence under the Brady rule; they appeared to consider such evidence in a 
light most favorable to the prosecution rather than to examine how a jury might 
use it, and how the failure to give the jury the proof erodes confidence in the 
jury verdict. Moreover, and of critical significance, the consistent failure of 
these courts to understand and apply correct legal rules sends a terrible 
message to prosecutors to follow the erroneous rulings of the state courts and 
be indifferent to the result.

As with the many other instances of misconduct by prosecutors and errors by the 
Louisiana judiciary, the Supreme Court again is being asked to step in to 
correct a clear constitutional violation. It seems like such a disproportionate 
investment of Supreme Court resources to have to continue to monitor one 
state's dysfunctional criminal justice system. But if Louisiana continues to be 
indifferent to and flaunt constitutional norms, Supreme Court intervention 
again is mandated.

(source: Bennett L. Gershman Professor of Law, Pace -- Huffington Post)






INDIANA:

Suspected serial killer's trial postponed


The July 25 trial for accused serial killer Darren Vann was postponed Friday at 
the request of defense attorneys, who said they needed more time to prepare.

Lake County Criminal Judge Samuel Cappas did not set a new trial date, but 
scheduled a status hearing for 10 a.m. Aug. 19.

Lake County Deputy Prosecutor Michelle Jatkiewicz did not object to the delay 
during Friday's short hearing.

Vann, 44, faces murder charges in the strangling deaths of Afrikka Hardy and 
Anith Jones. The Lake County prosecutor's office is seeking the death penalty 
against him.

In a separate case, Vann is facing murder charges in the homicides of Teaira 
Batey, Kristine Williams, Tracy L. Martin, Sonya Billingsley and Tanya Gatlin. 
All 5 women were found dead in vacant buildings in Gary in October 2014. The 
state is also seeking death sentences for Vann in that case.

(source: nwitimes.com)