[Deathpenalty] death penalty news----TEXAS, PENN., GA., ALA., OHIO

[Rick Halperin]

Nov. 6



TEXAS:

U.S. death sentences wane, even in Texas county with most executions


In the Texas county known as the buckle on the "execution belt" for sending 
more people to the death chamber than any other nationwide, both candidates in 
the campaign for top prosecutor are calling for moderation in capital 
punishment.

What is happening in Harris County, Texas, reflects a change across the United 
States, where new death sentences are set this year to hit the lowest levels 
since capital punishment was reinstated in 1976 as many prominent prosecution 
offices lose their zeal for execution.

In Harris County and other district attorney offices across the country, 
prosecutors have increasingly sought life in prison without the possibility of 
parole instead of death sentences. While support for the death penalty is still 
high, it has fallen over the years due to factors including troubled 
prosecutions that have lead to more than 150 people on death row being 
exonerated.

"Harris County is generally considered to be 'Exhibit A' when it comes to the 
death penalty in the United States," said Robert Dunham, executive director of 
the Death Penalty Information Center, which monitors U.S. capital punishment. 
"It has also experienced some of the greatest changes in attitude of any county 
in the United States."

The county, which includes Houston and is Texas' largest with about 4.5 million 
people, has sentenced 116 people to be executed since 1976.

In past races for the county's top prosecutor, campaigns boasted about how many 
people they sent to death row. But no more.

"It is a terrible image for our city and our county," said Democratic candidate 
Kim Ogg, who is leading Republican incumbent Devon Anderson in public opinion 
polls ahead of Tuesday's election.

A LIKELY RECORD LOW

Across the United States, 49 new death sentences were handed down in 2015, a 
drop from a recent peak of 315 in 1996, according to the Death Penalty 
Information Center.

This year's number is not yet available but it is expected to be lower than 
last year and below the 137 in 1977, the year after capital punishment was 
reinstated, the center said.

In Harris County, 27 % of people polled this year by Rice University's Kinder 
Institute said they felt the death penalty was generally the appropriate 
sentence for a 1st-degree murder, down from 41 % in 2000.

According to a Harvard University Law School study this year, 3 people 
sentenced to death in Harris County have been exonerated and there have been 
dozens of instances of prosecutorial misconduct in death penalty cases.

One of those cases involved Alfred Brown, whose murder conviction and death 
sentence were overturned in 2014 after an appeals court determined evidence 
that showed he was nowhere near the crime scene at the time of the killing had 
been wrongfully withheld.

Anderson, the incumbent district attorney, has called for greater restraint in 
capital punishment cases. She will not send inmates to death row if they can be 
reformed, campaign spokeswoman Sara Kinney said.

Since Anderson took office in 2013, there have been 4 new death verdicts and 
none since 2014, according to her office. Between 1993 and 1998, the county 
averaged about 12 a year.

"She has shown that she will consider far less than any of her predecessors and 
she is doing that in the best interests of justice," Kinney said in an 
interview.

Prosecutors across the United States have been considering the death penalty 
far less in recent years, especially as the option of life in prison without 
parole has been used as a sentencing option in more states, such as Texas, 
where it was put on the books a decade ago.

Capital punishment advocates have balked at the idea that expenses or drug 
shortages should be a factor when deciding punishment, saying the death penalty 
is an instrument of justice and must used for those who deserve it.

Ogg said in an interview that, if she wins, she wants to set the bar for 
pursuing death sentences as high as possible.

"Under an Ogg administration, you will see very few death penalty 
prosecutions," she said.

(source: KFGO news)






PENNSYLVANIA:

Attorneys: Move 'Scotty' murder trial out of Chester County


Attorneys for the man and woman accused of the brutal torture and murder of 
3-year-old Scott "Scotty" McMillan want the trial of their clients moved from 
Chester County, or to have the jurors in the capital case chosen from another 
locale and brought here, saying the extensive pre-trial press and social media 
accounts of his death have forever tainted the local jury pool against them.

The requests come among a multitude of pre-trial motions filed by both 
defendants and the prosecution in the case, which began 2 years ago with the 
discovery of McMillan's lifeless body on Nov. 4, 2014, in the home he shared 
with his mother, brother, and the man who authorities said assaulted him 
repeatedly over the course of some weeks.

In pre-trial motions filed recently with Common Pleas Judge William P. Mahon, 
defense attorney George S. Yacoubian Jr. of Radnor, who represents Gary Lee 
Fellenbaum, said that his client's constitutional right to a fair trial had 
been hopelessly compromised by the pre-trial publicity the case had received in 
newspaper articles, television broadcasts, and internet posting.

"The self-evident conclusion is that this county has been so saturated with the 
facts underlying this case that it is impossible for defendant to receive a 
fair trial before a jury of impartial persons who learn of the case only 
through the evidence properly admitted during trial," Yacoubian wrote in his 
request for a change of venue.

Laurence Harmelin of West Chester, a veteran county defense attorney 
representing Jillian Tait, McMillan's mother and Fellenbaum's girlfriend, also 
filed a motion requesting the trial be moved.

Harmelin made mention of almost one dozen articles about the McMillan murder 
and the upcoming trial in the Daily Local News, as well as an online poll that 
appeared in 2015 asking "Death Penalty for Couple Who Tortured Boy?" He noted 
that many of the stories included graphic descriptions of McMillan's death and 
the allegations against Tait.

"The wide dissemination of such gruesome, sympathy-engendering, front-page news 
stories, Facebook articles and internet polls, has created a substantial 
likelihood that a fair trial cannot be provided, as it will be impossible for 
the defendant to select a fair and impartial jury of citizens from Chester 
County," Harmelin wrote.

Both attorneys ask Mahon to either move to trial to another county in the 
state, or in the alternative to bring residents of another county here to hear 
the case.

A hearing on that motion, as well as the 3 dozen or more others that were filed 
by the deadline Mahon imposed earlier of Nov. 1, will be held on Jan. 5, 2017. 
The trial is scheduled to start April 3, 2017, with jury selection.

Mahon has reportedly expressed concern privately about the jury selection 
process in the case of both Fellenbaum and Tait, who at this point will be 
tried together. Not only is the trial one in which the prosecution is seeking 
the death penalty against both defendants, which would require extensive 
questioning of each panelist to see whether they could impose a death sentence, 
but it also has been the subject of much discussion in the media, both locally 
and nationally.

In addition, the allegations themselves that have been made against both 
defendants - that they participated in the beating and torture of 3-year-old 
Scotty and his older brother, now 8, and kept him from medical care in the West 
Caln trailer home they shared with Fellenbuam's wife, Amber Marie Fellenbaum, 
and the Fellenbaum's young child - could make it extraordinarily difficult to 
impanel a jury made up of people who declare they could judge the case fairly 
on the facts alone and not on sympathy for the victims.

Mahon is reportedly considering calling in dozens more prospective jurors from 
the county than the 124 he had summoned in the last death penalty case over 
which he presided, that of Coatesville chainsaw killer Laquanta Chapman. He has 
also noted that extra alternate jurors might need to be empaneled because of 
the possibility that some jurors chosen might not be emotionally able to 
complete the trial.

The last time a trial for a county crime was tried out of the county was 
reportedly the escape case involving then-convicted murderer Nicholas Yarris, 
who jumped out of a constable's car in West Whiteland and fled while being 
transported from state prison to Delaware County. That was held in Carlisle, 
Cumberland County in the mid-1980s.

The infamous Johnston Brothers murder trials were also heard by out-of-county 
juries in the early 1980s.

Yacoubian, the private attorney who was hired by Gary Fellenbaum's family to 
replace the county's Public Defender's Office over the summer, has made it 
clear in his motions that he is very concerned about the way the jurors are 
given the evidence in the case.

In his motions, he asks Mahon to forbid all "in-life photographs" of McMillan 
that might prove inflammatory to the jurors; shield them from knowing 
beforehand what case they might be hearing; and order that there be strict 
rules about behavior by those attending the trial, including no talking or 
shaking heads during testimony, or displaying signs, banners, or clothing that 
might be prejudicial, both in the courtroom and outside the courthouse.

For its part, the prosecution also filed motions in the case last week. In 
them, they ask Mahon to allow a computer simulation of the case to be used in 
opening statements, and to have McMillan's older brother, who is expected to 
testify, give his testimony outside the presence of Fellenbaum. First District 
Attorney Michael Noone, who is leading the prosecution, also asked Mahon to 
allow an unidentified "support person" to be with the older child when he 
testifies.

The Daily Local News is not reporting the name of the older brother.

Gary Fellenbaum, 25, Tait, 32, and Amber Fellenbaum, 25, all worked at the 
Walmart in western Chester County in the summer and early fall of 2014. Tait 
moved in with the Fellenbaums at a trailer home on Hope Lane sometime in 
September, 2014.

Beginning in October 2014, according to the allegations set forth in the case 
against the Fellenbaums and Tait, Gary Fellenbaum began physically abusing both 
of Tait's sons. The abuse included punches and beatings, but also whipping with 
a crudely fashioned "cat o'nine tails," and tying the boys to chairs or hanging 
them upside down by their feet.

Allegedly Fellenbaum's beating of Scott McMillan escalated to the point where 
the boy could not hold down his food. Angered, Fellenbaum allegedly punched him 
in the face so hard he fell out of his chair, and later punched him in the 
stomach. The boy began vomiting and later passed out. Although Fellenbaum and 
Tait tried to revive him, they left him alone in a bedroom for several hours 
before finding him completely unresponsive in the evening of Nov. 4, 2014.

Both allegedly gave incriminating statements to police investigators after 
their arrests. Yacoubian and Harmelin have asked Mahon, in their motions, to 
suppress those statements, saying they were given under duress.

Amber Fellenbaum, who did not participate in the alleged abuse, called 911. She 
is not charged with murder, but rather with endangering the welfare of children 
and recklessly endangering another person.

(source: Daily Local News)






GEORGIA----impending execution//volunteer

'No joy in the victory' as Lumpkin County man faces execution for 2001 
slaying----Spears scheduled to die by injection Nov. 16

Of all the details from the 2007 prosecution of Steven Frederick Spears, Enotah 
Judicial Circuit Superior Court Judge Stan Gunter said the defendant's attitude 
stands out the most.

Spears, who was charged with the strangling death of Sherri Holland in 2001, 
sounded "almost gleeful about what he had done, almost bragging about it" in 
his statements with law enforcement, Gunter said.

"As the trial went on, I think he had some time to reflect and mellowed back a 
bit on that attitude," Gunter said, who was the lead prosecutor in the case in 
2007. "He was very defiant going through the trial process with the court and 
with his attorneys."

Spears, of Lumpkin County, is set for execution by lethal injection Nov. 16. He 
will have a clemency hearing the day before.

At the news of Spears' pending execution, Gunter said the move was coming 
quicker than he would have thought.

"It's the verdict you had been asking for, but there's no joy in the victory," 
he said.

Spears was accused of breaking into Holland's home on Aug. 25, 2001, and 
strangling her. He had reportedly come up with multiple plans to kill her, 
including bludgeoning, electrocution and shooting.

"Breaking into her home with that intent made it a burglary, which is an 
aggravating circumstance for a death penalty," Gunter said. The other 
circumstances included the manner of death, he said.

If executed, Spears would be the 8th Georgia inmate to die by lethal injection 
this year. It has been 40 years since the Gregg v. Georgia decision by the U.S. 
Supreme Court in 1976.

In 1972, the high court in Furman v. Georgia had struck down the death penalty 
as unconstitutional.

"Georgia's legislature rewrote the statute to conform to the objections 
expressed by the court in the Furman ruling," said professor Douglas Young, who 
lectures on capital punishment at the University of North Georgia.

After the 1976 court ruling, executions of inmates resumed in 1977, according 
to the Bureau of Justice Statistics.

The number of inmates sentenced to death rose steadily until 2000, when the 
number began to fall, according to BJS.

When teaching his students, Young said the majority still is largely in favor 
of the death penalty.

"Now there's a much larger minority of students who are troubled by capital 
punishment," Young said.

When asked why the number of inmates sentenced to death may have fallen, Young 
pointed to the crime rate and murder rate decreasing as well as public 
perception.

According to historical Gallup polling on people in favor of the death penalty 
since 1936, the high point was 80 % in favor in 1994. When the pollsters asked 
in October 2015, 61 % said they were in favor of the death penalty.

Young also said some high publicity cases of convictions being overturned by 
later DNA exonerations may play a part.

"I think that spooked some folks," he said.

Northeastern Judicial Circuit District Attorney Lee Darragh said the 
availability of the life without parole option may also explain some of this 
statistical phenomenon.

Georgia executed 1 inmate in 2013 and 2 in 2014. In 2015, the number increased 
to 5.

"As to an increased number of executions in recent years, it is important to 
note that some of these cases involved decades of redundant appeals that 
eventually end," Darragh wrote in a statement. "This extremely long process 
should be shortened."

The court system has held that those facing the death penalty have more 
appellate rights than other convicted persons, Young said.

"The death penalty remains, as it should continue to, an important sentencing 
option in eligible cases involving the most egregious murders, multiple 
murders, serial killers and the like," Darragh said. "Without it, those 
sentenced merely to life without parole for example, would have free rein to 
kill at will in the prison system, among many other legitimate reasons."

(source: gainesvilletimes.com)






ALABAMA:

Courtesy Votes Offer Evidence Justices Are Working Together


An Alabama death row inmate may be alive today because a transgender Virginia 
high school student was denied the use of the bathroom of his choice this year.

The 2 seemingly unrelated cases have one thing in common: In each, a Supreme 
Court justice switched sides to provide a needed 5th vote to preserve the 
status quo.

In August, Justice Stephen Breyer broke with liberal colleagues to provide the 
requisite 5th vote against high school senior Gavin Grimm in what he called "a 
courtesy" to 4 conservative justices. Late Thursday, conservative Chief Justice 
John Roberts did a similar favor, switching sides to stay the execution of 
inmate Tommy Arthur, convicted in the 1982 murder-for-hire of a woman's 
husband.

The 2 votes in emergency appeals offer a rare peek behind the curtain about how 
the high court operates, especially at a time when it is one justice short of 
its 9-member strength because of the death in February of conservative Antonin 
Scalia. They could portend a return to a time a generation ago when the court 
more often halted an execution when only 4 justices initially wanted to do so.

Some liberal commentators puzzled over Breyer's vote on the transgender 
student's case in August, because he typically is part of the liberal bloc in 
civil rights cases. But the court's last-minute vote to halt the execution may 
provide an explanation, said Supreme Court lawyer Tom Goldstein.

"The chief justice seems to have, in a sense, returned the favor for Justice 
Breyer agreeing to put on hold a ruling in favor of a transgender student," 
Goldstein said.

Goldstein said he sees the votes as a signal to a politically polarized country 
that the court can still function collegially.

Providing a fifth vote to halt executions had once been more common, but it's 
been less in evidence in recent years. 8 years ago, Breyer complained in 
another eleventh-hour death penalty appeal that "it is particularly 
disappointing that no member of the majority has proved willing to provide a 
courtesy vote for a stay," even though 4 justices wanted one.

Scalia's death has deprived the court of a vocal opponent of efforts to delay 
executions. Breyer, on the other hand, has become a more outspoken critic of 
the death penalty. He was joined by Justice Ruth Bader Ginsburg in his 2015 
opinion in which he concluded after more than 20 years as a justice that the 
death penalty probably is unconstitutional.

The issue of courtesy votes arose at Roberts' 2005 Senate confirmation hearing. 
Democratic Sen. Patrick Leahy of Vermont asked Roberts what he would do if four 
other justices favored blocking an execution.

Speaking of the court's requirement for 5 votes to take action, Leahy asked, 
"Do you feel, as chief, you should do the courtesy of the rule of 5 and kick in 
the 5th one?"

Roberts was equivocal. "I don't want to commit to pursue a particular practice. 
But it obviously makes great sense," he said.

Hofstra University law professor Eric Freedman said Roberts' vote "does 
indicate a return to a prior practice in capital cases, which is a desirable 
practice."

Courtesy votes grow out of the court's differing vote requirements. To accept a 
case for review takes 4 votes. Issuing a decision or court order needs at least 
5.

A courtesy 5th vote could allow the other four to reconsider their views, as 
Roberts spelled out Thursday when he said Arthur's appeal "does not merit the 
court's review." Roberts said that perhaps some more time would allow the other 
justices to "more fully consider the suitability of this case."

"It's a very significant development that shows the justices working together 
despite their disagreements. The court's ideological center is trying to bridge 
the gap between its wings," Goldstein said.

The split, now with the possibility of 4-4 tie votes, may have been heightened 
by the prolonged vacancy in Scalia's seat. It's not clear when a 9th justice 
might be confirmed, and some Senate Republicans have suggested they might never 
to vote to confirm a nominee of Democratic candidate Hillary Clinton's if she 
wins the presidency.

Judge Merrick Garland's nomination for Scalia's seat has been in limbo since 
March.

(source: Associated Press)

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

Why John Roberts blocked an execution


Here's how much Chief Justice John Roberts cares these days that his branch of 
government functions as a collegial body.

Around midnight Thursday, the conservative justice cast the deciding vote to 
put the pending execution of Thomas D. Arthur on hold. In an unusual statement, 
he said he acted not because he thought the inmate's last minute plea merited 
the court's review.

The move comes as the court continues with only 8 justices since February's 
death of Justice Antonin Scalia. With 4 conservative-leaning justices and 4 
liberals.

"I do not believe that this application meets our ordinary criteria for a 
stay," Roberts wrote. Instead, he said, he stepped in because 4 of his 
colleagues voted to grant a stay.

While it takes only 4 justices to agree to take up a case, it takes 5 to stay 
an execution.

"To afford them the opportunity to more fully consider the suitability of this 
case for review," Roberts wrote, "I vote to grant the stay as a courtesy."

Granting a so-called "courtesy vote" is not a novel concept, says expert Eric 
M. Freedman of Hofstra Law School. During the 1980s the court did so routinely 
in capital cases.

But in the recent past, the court has allowed executions to go forward, even 
though four justices wanted to grant the stay.

"Chief Justice John Roberts did the right thing last night, " said Freedman, 
the author of a Law Review article on the subject.

"In giving the Court the time to consider fully a case where life is at stake, 
all those concerned about the court's decision making process hopes the 
practice continues once the court is back to full strength," he said.

Arthur's case concerned Alabama's lethal injection protocol, an issue that has 
deeply divided the justices in the past in other cases. He was convicted for 
the 1982 contract killing of Troy Wicker.

"I am inclined to guess the Chief thought it particularly useful to showcase 
this particular kind of collegiality at this particular moment,"said Douglas A. 
Berman of the Ohio State University Moritz College of Law.

(source: CNN)






OHIO:

Douglas Shine guilty of murder in Warrensville Heights barbershop triple 
killing


The man accused of killing 3 people at a barbershop to settle a gang score and 
then conspiring to kill a witness has been convicted.

Douglas Shine Jr. now faces the possibility of execution after jurors on Friday 
convicted him in a spree of violence that culminated Feb. 5, 2015, when he 
walked into Chalk Linez Barbershop and executed 1 man, killed 2 others and 
wounded 3 more.

Jurors found Shine guilty of 44 out of 49 counts in a string of shootings that 
prosecutors said started that January when Shine, a Heartless Felon, stole a 
handgun from a member of the Loyal Always gang.

Walter Barfield, William Gonzalez and Brandon White were killed inside the 
barbershop. 4 months later White's brother, Aaron "Pudge" Ladson, was slain in 
his driveway as he prepared for a court hearing in an unrelated case.

Ladson named Shine as the barbershop gunman days after the shooting and would 
have likely testified at Shine's trial. But jurors found Shine conspired from 
jail to have Ladson killed before he could.

Ladson's videotaped statement to Warrensville heights police was played during 
the trial.

Shine's brother, Kevin McKinney, is slated to go to trial next week on 
conspiracy and aggravated murder charges, but that trial will likely be 
delayed.

Cuyahoga County sheriff's deputies handcuffed Shine after Common Pleas Judge 
Joan Synenberg read the 1st guilty verdict.

Shine kept stoic throughout much of the hearing, but joked with sheriff's 
deputies during a brief recess to fix a typo in 1 count on the indictment.

The death penalty phase of the trial will start Nov. 16, and will likely last 
several days before jurors reach their recommendation. Even then, Synenberg has 
the final say whether Shine will be put to death.

Shine faces the death penalty after jurors found that he carried out the 
barbershop massacre while committing aggravated burglary. They also found that 
the killings were part of a course of conduct that showed a pattern of 
violence.

The jury also found Shine carried out the shootings while he was a member of 
the Heartless Felons gang. Shine has the words "Heartless" and "Longwood Gun 
Gang" tattooed on his torso.

The case epitomized what prosecutors and police described as a "gangland 
mentality" among a relatively small group of people with guns who are quick to 
seek retribution for a perceived slight, willing to violate unwritten rules and 
open fire in front of women and children, and will brazenly enforce the 
"no-snitch" code by intimidating - or even killing - witnesses, prosecutors 
argued.

But that mentality has "no place in our society," Assistant Prosecutor Mahmoud 
Awadallah said during trial.

Shine's conviction is perhaps a final major victory for Cuyahoga County 
Prosecutor Timothy J. McGinty in what is likely the final time he will sit at 
the prosecution table. McGinty was defeated in his re-election bid this year by 
former assistant prosecutor and Parma Safety Director Michael O'Malley.

Shine was just the second person to go to trial facing the death penalty under 
McGinty.

Angela Ladson, the mother of White and Aaron Ladson, said she had been holding 
her breath since the White's shooting. Friday's verdict, she said, finally 
allowed her to breath.

"I am finally able to really cry to know that my sons got justice," Angela 
Ladson said.

"My heart can beat a little bit."

(source: cleveland.com)