[Deathpenalty] death penalty news-----TEXAS, PENN., VA., N.C., S.C., OHIO

[Rick Halperin]

Nov. 30



TEXAS:

Supreme Court Justice Makes Powerful Plea For The Disabled On Death Row


A narrow majority of justices at the U.S. Supreme Court appeared ready to side 
with a Texas death row inmate and further refine the constitutional prohibition 
on executing the mentally deficient.

The justices are charged with deciding whether the courts may use non-clinical 
or outdated medical information in assessing whether a person is intellectually 
disabled, and therefore protected from capital punishment.

The justices found that executing a mentally disabled person is an 
unconstitutionally cruel and unusual punishment in 2002. They further developed 
that ruling in Hall v. Florida in 2014, finding that courts may not use a rigid 
threshold IQ test, but must rely on a range of clinical factors.

In this case, a death row convict named Bobby James Moore challenged the state 
of Texas' use of components called the Briseno factors, which assist courts in 
making findings concerning intellectual disability. These 7 factors are 
derivative of Lennie Smalls, from Steinbeck's "Of Mice and Men." Moore was 
sentenced to die for his role in the robbery of a grocery store which resulted 
in the death of a clerk. He attempted to vacate his execution by proving he is 
intellectually disabled, but failed in a state appeals court. The parties would 
not contest that Moore is developmentally challenged (he could not add or 
subtract until his teenage years, for example), but disagree as to his status 
as intellectually disabled.

Though the Briseno factors are not the primary test the Texas courts use to 
make findings of mental deficiency, they do help inform and shape such 
findings. In this case, the lower court also relied on a 1992 edition of the 
American Association on Mental Retardation, which is no longer current.

Clifford Sloan, Moore's attorney, characterized Texas' non-clinical factors as 
"harmful and inappropriate lay stereotypes." Sloan said reliance on medical 
frameworks is a "life and death question that goes to the human dignity of the 
intellectually disabled."

Chief Justice John Roberts, sounding perturbed, repeatedly wondered if Moore's 
lawyers were raising arguments and issues unrelated to the question the Court 
granted review on. Roberts' concern seemed to draw sympathy from Justices 
Anthony Kennedy and Samuel Alito. Elsewhere in the argument, Kennedy suggested 
a conflict existed between Texas' practice and up to date medical standards. He 
also was troubled by the possibility that a mentally deficint individual could 
fail Briseno factors scrutiny and still be executed, as has happened on at 
least 3 occasions, according to an American Bar Association amicus brief.

Justice Stephen Breyer, the Court's clarion death penalty opponent, made a 
powerful intervention during Sloan's argument, asserting that national 
standards could not possibly be set for assessing mental deficiency, given the 
extreme subjectivity involved in such diagnoses. To his thinking, it follows 
that disparate outcomes will result.

"There will be a bunch of easy cases. And then there are going to be cases like 
your client who has been on death row for 36 years. And there will be 
borderline cases ... what is the Court supposed to do? Are we supposed to have 
all those hearings here? I mean, you've made very good arguments for your 
client. There are probably several others in the country in different states 
which may have different standards. And if you have some view that the law in 
this area should be law, i.e., that it should be uniform across the country, 
point me to something that will tell me how a district judge should go about 
making this determination in borderline cases."

"And if you 23 want my true motive, I don't think there is a way to apply this 
kind of standard uniformly across the country, and therefore, there will be 
disparities, and uncertainties, and different people treated alike, and people 
who are alike treated differently," he added.

Texas Solicitor General Scott Keller argued that the states were not bound to 
strictly adhere to a particular organization's clinical definition of 
intellectual disability. He also argued that the Briseno factors are merely a 
secondary test the Texas courts use in addition to a constitutionally-valid 3 
part test. He also aggressively rebuted the notion that the Briseno factors 
were derived from Lennie Smalls.

"Lennie, and the character from "Of Mice and Men," was never part of the test," 
he said. "It's not part of the test. It was an aside in the opinion, and the 
Court said it was not going to address that separate question and instead 
adopted the clinical standards."

A decision is expected in the coming months.

(source: dailycaller.com)






PENNSYLVANIA:

Manuel Sepulveda is off death row


Convicted killer Manuel Sepulveda is off death row and now serving life in 
prison without parole, following a new sentence imposed Tuesday as the result 
of a Monroe County Court ruling on Sepulveda's challenge to his trial's penalty 
phase.

A jury in 2002 convicted Sepulveda, 37, of Kunkletown, of 1st-degree murder and 
conspiracy to murder in the 2001 deaths of John Mendez, 19, and Ricardo Lopez 
Jr., 20, at the Polk Township home of Daniel Heleva, 55, who was convicted as 
an accomplice and is serving life without parole. Ongoing arguments over stolen 
drugs, money and guns led to Mendez and Lopez being shot and Mendez being 
beaten with an axe and garroted with a bungee cord, according to trial 
testimony.

After convicting Sepulveda in the trial phase of 1st-degree murder, the jury 
had to decide in the penalty phase whether to sentence him to death or life 
without parole, the only 2 penalties for 1st-degree murder convictions. The 
jury chose death.

In 2006, several years after his conviction, Sepulveda filed a Post-Conviction 
Relief Act motion, seeking ultimately a new trial, on grounds that mitigating 
factors weren't available to or raised by his defense at trial. Mitigating 
factors are circumstances that can be cited in a convicted defendant's argument 
for a less severe sentence.

The mitigating factors Sepulveda cited in his PCRA motion include a traumatic 
childhood leading to drug addiction, cognitive disabilities as an adult and 
having no criminal record prior to the murders. His PCRA motion was denied in 
Monroe County Court, appealed up to state Supreme Court and remanded back to 
Monroe County for a hearing on grounds that Sepulveda was raising valid issues.

After the case was remanded back to this county, Sepulveda's defense attorney 
at the time, who was different from the attorney who had represented him at 
trial, became aware of an additional mitigating factor in testimony not 
elicited from Heleva's wife, Robyn Otto, at trial. The defense then requested a 
hearing to have Otto testify to what she hadn't been called to testify about at 
trial.

Otto testified at the April 2015 hearing that Sepulveda was like an uncle to 
her and Heleva's children, who were ages 7 and 5 at the time of the murders. 
Her testimony indicated Sepulveda was protecting the children when killing 
Lopez and Mendez, who had threatened to burn the house down with Otto and the 
children inside.

After hearing this testimony, Mendez's angry relatives told news media Otto was 
lying and that Mendez, not Sepulveda, was the one who looked out for the 
children.

Sepulveda's defense argued the jury had been prejudiced in the trial's penalty 
phase.

Had the jury been allowed to hear Otto's testimony at trial, there's a fair 
chance at least 1 juror would have voted to sentence Sepulveda to life without 
parole, as opposed to death, the defense said. And that 1 juror's dissenting 
vote was all it would've taken to affect the jury's decision, which must be 
unanimous.

Monroe County President Judge Margherita Patti-Worthington later issued a 
ruling in favor of Sepulveda's PCRA motion, saying the jury had indeed been 
prejudiced in the trial's penalty phase. In light of the judge's ruling, 
Sepulveda's sentence was changed Tuesday from death to life without parole.

Sepulveda, who indicated he views this sentence as equally unjust, has the 
right to appeal.

Mendez's family said the injustice is Sepulveda still getting to draw breath 
while Mendez is dead.

"They've taken the death penalty away," Mendez's upset mother, Deborah Murphy, 
told news media afterward. "(Sepulveda) should suffer for the pain he's caused 
me and my family."

When led from the courtroom, Mendez told news media he's very sorry for what 
Mendez's family has been through.

(source: poconorecord.com)






VIRGINIA----imending execution

For January execution of Ricky Gray, Virginia plans to use drug involved in 3 
botched executions elsewhere


On Jan. 18, if all goes according to plan, Virginia will execute Ricky Gray for 
killing a former Virginia Beach homecoming queen and her family in Richmond 
more than a decade ago.

Gray, whose only other option is the electric chair, will likely die by lethal 
injection. But the method the state uses to administer the deadly drugs is 
raising concerns and prompting Gray's lawyers to consider their response, 
including a potential court challenge.

The 3-drug combination that Virginia has chosen for the execution includes 
Midazolam, a drug that the state has never used before and that has been 
involved in botched executions elsewhere.

Furthermore, Virginia would become the 1st state in the country to use a 
version of Midazolam manufactured by a "compounding pharmacy" - one whose 
identity is not released to the public and which does not operate under the 
same federal regulations as the large drug makers.

"It hasn't been done before anywhere, and the drug is new to Virginia 
executions," said Rob Lee, one of Gray's lawyers and the executive director of 
the Virginia Capital Representation Resource Center.

Midazolam would be the 1st of the 3 drugs administered in the execution. State 
officials say other drugs previously used as the 1st in the process have become 
very difficult to get.

"Florida has used this 3-drug protocol many times, starting with a lethal 
injection on Oct. 15, 2013," said state Department of Corrections spokeswoman 
Lisa Kinney.

But the Midazolam used there wasn\'t made in secret by a compound pharmacy, 
said Megan McCracken, a lethal injection expert who works with the Death 
Penalty Clinic at the UC Berkeley School of Law. The drug's use in executions 
was upheld by the U.S. Supreme Court in June 2015.

"It brings 2 sets of concerns together," McCraken said. "It's 2 significant 
changes that introduce risks of pain and suffering."

Gray was convicted of killing 49-year-old Bryan Harvey, 39-year-old Kathryn 
Harvey and their daughters, 9-year-old Stella and 4-year-old Ruby, on New 
Year's Day 2006. The family was bound and beaten and their throats cut in the 
basement of their suburban Richmond home, which was then set on fire.

Bryan was a well-known musician, and Kathryn was a former Cox High School 
homecoming queen who owned a toy store. In all, Gray and his nephew Ray Joseph 
Dandridge are linked to the killings of 9 people.

Gray was arrested 7 days after the murders and confessed to them. He told 
police he and Dandridge were looking for a house to rob and noticed the front 
door was open. After the killings, they stole a computer, wedding ring and 
basket of cookies.

Gray pleaded not guilty to the charges, arguing he should receive leniency 
because of evidence of physical and sexual abuse during his childhood and 
because he used PCP during the killings. He was found guilty in August 2006 and 
sentenced to death that October.

Virginia has executed 111 people since 1982, but only 6 since 2010. Currently 
there are 7 men, including Gray, on death row.

An execution date of March 16, 2016, was set in January but Gray was issued a 
stay in federal court to allow the U.S. Supreme Court to consider 2 petitions. 
The time for the Supreme Court to review those has now expired, and a circuit 
court judge earlier this month set Jan. 18, 2017, as Gray's execution date.

It was questionable whether the state could have executed Gray in March anyway.

For years the drugs used in executions nationwide have been harder and harder 
for states to obtain. Drug-makers do not want their names or their products 
associated with executions and have refused to sell them to states for that 
purpose.

That has led many states to turn to the compounding pharmacies, which make the 
drugs and then provide them to states in secret. Until this year, Virginia did 
not have a law allowing for the use of such drugs.

In February, during the legislative session, Corrections Department officials 
claimed that they did not have enough pentobarbital - then used as the 1st drug 
in the state's 3-drug cocktail - to execute Gray.

DOC officials had obtained 3 vials of pentobarbital from Texas last year, 1 of 
which was used to execute convicted murderer Alfredo Prieto. Though they had 2 
unexpired vials left, state officials claimed they didn't have enough.

The Virginia Death Penalty Coalition, which opposes the death penalty, released 
a statement claiming that the state had the drugs it needed to kill Gray by 
using lethal injection and that the department's claim otherwise was designed 
to put pressure on state legislators to bring back the electric chair.

Inmates condemned to die in Virginia can choose between lethal injection and 
the electric chair, but the state must use lethal injection if an inmate 
refuses to make the choice. That meant that if the drugs weren't available, 
Gray could have refused to choose a method of execution and the execution could 
not move forward.

The General Assembly passed a bill allowing the state to choose the electric 
chair as its method of execution. Rather than sign the bill, McAuliffe amended 
it to allow state officials to obtain execution drugs made by compound 
pharmacies in secret.

McAuliffe, a Democrat who supports capital punishment, said at the time that 
his plan was essential to ensure that the death penalty continues without 
resorting to the electric chair.

"These manufacturers will not do business in Virginia if their identities are 
to be revealed," McAuliffe said at a news conference.

In addition to being the first using Midazolam obtained in secret, Gray's 
execution would also be the 1st under the new law.

"The ongoing issue," said Robert Dunham, executive director of the Death 
Penalty Information Center, "is how do you assure that the drug is as 
advertised when you don't know the producer or what its safety record is? How 
can a prisoner be offered an alternative way of being executed if he doesn't 
know what the source of the drugs is and the state is the only one with that 
information?"

Gray requested additional information about the execution process from the 
state, which refused to provide it.

At a hearing Nov. 21, a judge declined to force the state to release more 
information about its process.

Lee said he is considering appealing the ruling.

In a 3-drug protocol execution, the 1st drug is supposed to render the 
condemned person unconscious, the 2nd to paralyze him and the 3rd to stop his 
heart.

1 of the problems with using Midazolam is that it is not an anesthetic, but an 
anti-anxiety drug, McCracken said.

In 2 of the botched executions using the drug - that of Joseph Wood in Arizona 
in July 2014 and Dennis McGuire in Ohio in January 2015 - Midazolam was part of 
a 2-drug cocktail. The botched execution of Clayton Lockett in April 2014, in 
which there were problems inserting an IV to get the drugs into his 
bloodstream, used 3 drugs.

In all 3 cases, the condemned man at first appeared to be unconscious, then 
gasped for air or struggled in pain.

"It's not used to maintain anesthesia," McCracken said. "So with the 3 botched 
executions using Midazolam, 1 of the similarities ... is the person initially 
loses consciousness or appears to and then regains consciousness."

In all of those, the potency of the drug being used was known because it was 
made by drug makers, not at a compound pharmacy, McCracken said. If Gray is 
executed using a compound version of Midazolam in January, no one will know the 
potency of the drug, she said.

"There is a lot of science out there that this is an inappropriate drug to 
use," she said. "And in Virginia you have the related issue of the new statute 
that makes so much information confidential. ... This is a unique situation."

(source: The Virginian-Pilot)






NORTH CAROLINA:

Death penalty sought for 3rd suspect in double homicide


Prosecutors will seek the death penalty against a 3rd suspect in the in the 
death of 2 men whose bodies were found in a burned-out car in September.

District Attorney David Learner's office made the announcement on Tuesday in 
Burke County Superior Court in the double homicide cases against Scott Devon 
Hemphill.

Hemphill, 33, of 2320 Farmer St., Apt. B, Charlotte, is charged with 2 counts 
of murder for the Sept. 17 deaths of Spencer Murray and Albert Austin, both 
from Forest City, whose bodies were found in the trunk of the burned vehicle.

Nearly 2 weeks ago, prosecutors announced they also will seek the death penalty 
against Icey Chennell Gooden, 26, of 4217 Sundown Road, Morganton, and Brian 
Jerome Robinson, 33, of Connelly Springs, in the case.

Brandy Nicole Davis, 32, of 906 Jamestown Road, Apt. D3, Morganton, has been 
charged with accessory after the fact to homicide in the case.

The bodies of Murray and Austin were discovered around 8 a.m. on Sept. 18 when 
Burke County Sheriff's Office deputies were called to Canoe Creek Way in 
Morganton. When they arrived, deputies found a burned Cadillac Deville with 
human remains inside, according to previous reports.

With the assistance of an investigator with the North Carolina License and 
Theft Bureau, investigators learned the Cadillac belonged to Austin, of 555 
Poors Ford Road, Lot 5, in Forest City, and was registered to Murray, of 165 
Astrid Lane, in Forest City, according to previous reports.

(source: Morganton News Herald))






SOUTH CAROLINA:

SC is paying for Todd Kohlhepp's defense


Though he purchased hundreds of thousands of dollars' worth of property and has 
saved enough money to transfer some to a friend as part of investigators' 
efforts to secure his cooperation, accused serial killer Todd Kohlhepp is being 
represented at least temporarily by an attorney paid by the state of South 
Carolina.

Shane Goranson, who notified the Spartanburg County magistrate Monday night 
that Kohlhepp waived his right to appear at the arraignment for his most recent 
charges, is a capital defender for the South Carolina Commission on Indigent 
Defense, a group that provides legal representation to state residents who 
cannot afford to hire attorneys.

Kohlhepp, 45, a registered sex offender and real-estate broker from Moore, is 
facing 12 charges, including 7 counts of murder, according to warrants.

He's also under investigation in Arizona, where he "admitted to shooting 
somebody," an investigator told the former wife of 1 of Kohlhepp's alleged 
victims.

Kohlhepp could be put to death if found guilty.

Goranson has declined to discuss specifics of the case, but he said he's spoken 
with Kohlhepp and Kohlhepp has welcomed his representation.

A judge will ultimately rule on whether Kohlhepp qualifies for state-provided 
indigent defense throughout his trial, Goranson said.

"The reality is that the cost of a capital defense can be in the hundreds of 
thousands of dollars, and most middle to low-income persons, even those who are 
not indigent, cannot afford to retain a competent lawyer and pay for the 
investigative and expert services that are critical to presenting an adequate 
defense," said John Blume, a Cornell Law School professor and former executive 
director of the South Carolina Death Penalty Resource Center, a nonprofit 
organization since renamed Justice 360 that provides resources to lawyers in 
death-penalty cases.

"If counsel is not appointed, then in many cases the person will run out of 
money, the defense will be inadequate and there is a substantial risk that 
counsel will be found ineffective - thus requiring a new trial all on the 
taxpayers' dime," said Blume, who is not involved in the Kohlhepp case and 
isn't privy to its particulars.

Money to pay for indigent defense comes from the state through the collection 
of criminal fines, tickets and such, Blume said.

Kohlhepp, who's not married and isn't believed to have children, bought his 
house on Windsong Way in Moore for $137,500 in January of 2007, records show.

He bought the 95-acre property near Woodruff - where the bodies of 3 people 
were discovered after a woman was found chained inside a metal container on 
Nov. 3 - for $305,632 in May of 2014, according to property records. He later 
paid about $80,000 to erect a chain-link fence around the property.

After his arrest, in order to secure his cooperation in an investigation where 
he'd already confessed to killing four people in an infamous cold case from 
2003, Kohlhepp was allowed to transfer an undisclosed amount of money to a 
friend to pay for a child's education, according to Spartanburg County Sheriff 
Chuck Wright.

(source: thestate.com)






OHIO:

Prosecutor seeks death penalty against Delphos man in child's killing


Prosecutors are seeking the death penalty against a Delphos man who is charged 
with aggravated murder in the death of a 15-month-old boy.

Christopher M. Peters, 26, also was indicted this week on murder, felonious 
assault and endangering children. He is scheduled to appear at his arraignment 
Wednesday where he will be asked to enter a plea.

The court did not make the indictment known to the public until Peters was 
served a notice of the charges.

The aggravated murder charge includes a death penalty specification.

Few details of the crime that is blamed for the death of a 15-month-old boy 
have been released. Police and others have not released the name of the child 
yet. The child's mother found him unresponsive Nov. 15 inside an apartment at 
24249 Lincoln Highway. She called 911 to make the report.

Another woman got on the phone and asked for police officers at the scene 
saying it was clear the child was dead. The mother said she last checked on her 
son the day before when he was sick and not eating.

Peters was not at the apartment when the child was found dead. He was arrested 
in the days that followed in another county.

(source: limaohio.com)