[Deathpenalty] death penalty news----NEB., ARIZ., CALIF.

[Rick Halperin]

Oct. 10



NEBRASKA:

Death penalty in Nebraska: Rarely used, does it get another try?


Voters will consider a historic ballot measure next month to restore Nebraska's 
death penalty after the Legislature repealed it in 2015. The World-Herald will 
explore several aspects of capital punishment. Today: the death penalty in the 
justice system.

* * * * *

To the folks on the front lines - in courthouse hallways, judges' chambers and 
prosecutors' offices - capital punishment in Nebraska has been languishing so 
long that it now feels more like far-off legal theory.

An exercise in futility rather than a punishment in reality.

Consider:

-- Since mass killer Charles Starkweather was executed in 1959, just 3 
death-row inmates in Nebraska have been put to death. Twice as many death-row 
residents, 6, have died of natural causes.

-- No Nebraska prisoner has been executed in almost 19 years. 1 death-row 
inmate, Carey Dean Moore, has been awaiting execution for 36 years. To put that 
time span into perspective, Moore has lingered on death row for as long as, or 
longer than, 4 of his fellow death-row inmates have been alive.

-- 1 man, Marco Torres of Grand Island, has been sentenced to death this 
decade. Since his arrival on death row in January 2010, at least 7 
death-penalty cases have been litigated. None resulted in a death sentence.

The last decade during which only 1 person was sentenced to death: the 1960s.

In short: Without an execution this century - and the state currently without 
the lethal-injection drugs needed to execute - Nebraska's death penalty is 
flailing.

"It has been frustrating and disappointing," said Madison County Attorney Joe 
Smith, a death penalty proponent who has prosecuted 3 people now on death row. 
"For us. And for the victims even more so."

"As far as the state of the death penalty in Nebraska - it's a mess," said 
Douglas County Attorney Don Kleine, a proponent who has helped send 2 people to 
death row. "And that's really on the state (government officials). Obviously, 
they've been inept at carrying out the state's wishes."

Prosecutors still hold out hope. Both Smith and Kleine say the rarity with 
which defendants are sent to death row proves that Nebraska is measured in its 
application.

But in order for it to be effective, they say, it has to be revived - and 
applied.

Right now, that's a long way off in Nebraska and, to an extent, across the 
nation. In 2015, just 28 U.S. prisoners were put to death and just 49 killers 
were sentenced to death. Both numbers are the lowest in 25 years - a 
precipitous drop from the late 1990s, according to the national Death Penalty 
Information Center.

Nowhere is the withering felt more in Nebraska than on the front lines of the 
justice system.

Legal experts say several factors have led to the death penalty languishing in 
court: a sense that prosecutors are now using capital punishment primarily as a 
plea-bargaining tool; a staggering Omaha case that caused legal observers to 
question why the death penalty wouldn't apply in the killing of a family; 
precedents that have sharply narrowed who can be killed and for what; and 
veteran Nebraska defense attorneys who have used high-court rulings to extend 
their clients??? appeals and their lives.

Plea bargains are used to win guilty pleas

Since Marco Torres took up residency on death row on Jan. 29, 2010, prosecutors 
have filed 10 death-penalty cases.

3 are pending - including the death-penalty hearing against Omahan Nikko 
Jenkins, who killed 4 people, and the trials of Anthony Garcia and Dontevous 
Loyd, who are accused of killing multiple Omaha residents.

But none of the 7 others led to the ultimate punishment.

The number of death sentences imposed over the previous 4 decades: 11 in the 
1970s; 9 in the 1980s; 4 in the 1990s; and 7 from 2000 through 2009.

The major factor that has derailed death sentences this decade? Plea bargains.

In the past 6 years, prosecutors have dropped their pursuit of the death 
penalty in return for guilty pleas by:

-- A 25-year-old Omaha man who killed his mother by bludgeoning her and 
stabbing her to death and killed his 4-year-old brother by throwing him into a 
river from a bridge. His sentence: life in prison.

-- A 19-year-old man who raped and killed a 93-year-old Omaha woman. His 
sentence: life.

-- A 29-year-old Omaha man who helped kill his boss and then hanged his boss's 
wife and 7-year-old son. In the middle of his own trial, he admitted his guilt 
and helped the state by testifying against the ringleader of the crimes. His 
sentence: 10 years.

-- A 32-year-old Mitchell, Nebraska, man who raped his 8-year-old 
stepdaughter, strangled and bludgeoned her and dumped her body on ranchland. 
His sentence: life.

The net effect? The death penalty's real power is in securing life sentences, 
said Jerry Soucie, a defense attorney and former member of the Nebraska 
Commission on Public Advocacy.

"When you talk about its practicality now, its real purpose is to hold it over 
defendants' heads to get a plea without a trial," Soucie said. "It's an onerous 
punishment designed to force pleas and life sentences. In the wrong hands, 
that's a dangerous tool."

Both Soucie and Omaha defense attorney Alan Stoler say Nebraskans don't have to 
look far to see the potential danger of plea bargains in death-penalty cases. 
In the Beatrice 6 wrongful conviction case, several defendants chose a plea 
bargain rather than face the possibility of the death penalty in the 1985 rape 
and slaying of Helen Wilson.

Only 1 of those 6, Joseph White, refused a plea bargain. After he was 
convicted, he was just a judge's decision away from the possibility of a death 
sentence. The judge chose life. Good thing: DNA connected another man to 
Wilson's murder - and White and the 5 others were exonerated after serving 19 
years in prison.

"Where would we be now had he received the death penalty?" Stoler asked.

Prosecutors bristled at the suggestion that they are filing for the death 
penalty to try to secure guilty pleas and avoid trial.

Kleine noted that high courts have ruled prosecutors must file for the death 
penalty early in any murder case.

In turn, that means Kleine's prosecutors immediately file notice of aggravators 
- factors that could lead to the death penalty. Further evaluation of the 
defendant's criminal history or mental state can lead prosecutors to conclude 
that obtaining the death penalty is unlikely, Kleine said.

"Sometimes it's a close call as to whether a defendant would get the death 
penalty," Kleine said. "So we'll take it off the table if the person would be 
willing to plead. It's certainly not appropriate to use as a threat."

Douglas County Public Defender Tom Riley was involved in 2 of the cases that 
led to guilty pleas to life sentences. Roberto Martinez-Marinero had confessed 
to killing his mother in a feud over money - then killing a witness, his 
4-year-old brother, by throwing him from an Elkhorn River bridge in May 2015.

Sergio Martinez-Perez beat and rapes a 93-year-old Omaha woman. Police found 
him passed out drunk on her body.

Sergio Martinez-Perez had been caught passed out on top of the 93-year-old 
woman he raped and killed in 2013.

"What's the defense? There's no realistic defense in either of those cases," 
Riley said of his reason for the pleas.

"Do I think the death penalty can be used to coerce pleas in cases with 
questionable evidence? Absolutely it can. ... I just haven't seen it in my 
cases."

After heinous crime, 1 man free in Brazil

3 men. 3 victims. 3 vastly different court outcomes.

A 2013 Omaha court case caused legal observers to question everything they knew 
about the death penalty in Nebraska.

Jose Oliveira-Coutinho was the foreman of a crew working in Omaha for the 
Brazilian missionary Vanderlei Szczepanik. Oliveira recruited 2 friends to 
illegally enter the U.S. and work for the boss as he renovated a former South 
Omaha school. Upset about his pay, Oliveira eventually hatched his plan to kill 
Szczepanik.

On Dec. 17, 2009, the men did, bludgeoning Szczepanik to death in the entryway 
of the former school. At Oliveira's instruction they systematically bound 
Szczepanik's wife, Jaqueline, and 7-year-old son, Christopher. They stole 
Szczepanik's debit card and ordered his despondent wife to turn over the PIN 
for the ATM.

One stood watch over Jaqueline and Christopher while the 2 others drove to an 
ATM to make sure the PIN was correct. Upon their return, they walked Jaqueline 
to a back stairwell. Wailing, she begged them to spare her and her son. The men 
did not. They hung Jaqueline.

They then attempted to hang Christopher. However, his body didn't weigh enough 
to strangle him.

He was alive, though unconscious, when he was loaded into the back of a van and 
driven to the river. 1 of the men slit the torsos of all 3 victims and dumped 
them into the Missouri River.

1 of the men was deported to Brazil after prosecutors determined they didn't 
have enough to hold him. He remains free there.

A 2nd man turned state's evidence, agreeing to testify against the crew leader. 
His sentence: 10 years.

And then there was Oliveira, the crew leader and ringleader.

? A 3-judge panel of Douglas County District Judge Thomas Otepka, Sarpy County 
District Judge William Zastera and District Judge Mark Kozisek of western 
Nebraska voted 2-1 for death.

Because it wasn't unanimous, Oliveira was spared. 1 judge - the panel didn't 
name which one - believed that Oliveira may not have been the ringleader, 
despite evidence presented throughout the trial. Judges also mentioned the 
potential disparity in sentences.

Prosecutors were dumbfounded. If eradicating a family doesn't get you the death 
penalty, they asked, what does?

"That's a very difficult one for me to understand," Kleine said.

He isn't the only one.

"I used to think there were some people that just deserved to die based on the 
heinous nature of the crime," said J. William Gallup, an Omaha attorney who has 
helped get 3 men off of death row. "But then you look at cases where a guy like 
(Oliveira) doesn't get it. ... It's the disparity in punishments that offends 
so many people. It often doesn't make any sense why one guy gets it and another 
doesn't."

The Brazilians' case lives in infamy in courthouse hallways. One of Oliveira's 
former attorneys, now a judge, called securing the life sentence "the greatest 
achievement of my legal career."

"It shows 1 of the most glaring problems in capital punishment," said Riley, 
the Douglas County public defender. "It's so unevenly applied."

Smith, the Madison County attorney, takes the opposite view. He suggested that 
the Brazil case is further proof of how many safeguards the system has and how 
sparingly the death penalty is used in Nebraska.

"The system is designed to give the benefit of the doubt at each stage to the 
defendant," Smith said. "You don't say 'This guy should have gotten the death 
penalty and he didn't, therefore no one should get the death penalty.'

"That kind of thinking defies logic."

'Plenty of issues'

Over the past 25 years, high courts have put the death penalty through a 
wringer. U.S. Supreme Court rulings have banned it for people with low IQs, 
non-homicide offenses, and underage and mentally disabled defendants.

As the court limits who can be killed it opens avenues for who can appeal, 
according to Stoler, a veteran defense attorney who has gotten 2 people off 
death row. 1 death-row resident, for example, has filed appeals arguing that he 
has a low IQ and should not be executed.

Stoler calls himself an "issue creator."

"And the death penalty has had plenty of issues," he said.

Stoler is just one of a handful of veteran Nebraska attorneys forging those 
appellate avenues. Riley, Soucie, Gallup, the recently retired James Mowbray 
and members of the Nebraska Commission on Public Advocacy have been doing 
death-penalty work for 3 decades or longer.

"(They) are able to get results because they've been in the battle so long," 
Soucie said.

The battle has chipped away at the death penalty.

In 2008 the Nebraska Supreme Court became the 1st and only state court to 
declare the electric chair unconstitutional, stripping Nebraska of the method 
of execution it was using.

Nebraska's high court also ruled that jurors couldn't consider the mental 
anguish of the victim as they considered whether the killing was "especially 
heinous, atrocious or cruel."

And in the early 2000s, the U.S. Supreme Court ruled that defendants are 
entitled to have a jury - rather than judges - determine whether aggravating 
factors exist that might merit the death penalty.

Along those lines, Stoler and his colleagues think a similar issue may be the 
next frontier in the fight against Nebraska's death penalty.

A recent U.S. Supreme Court decision out of Florida struck down that state's 
method of determining the death penalty because jurors had only an advisory 
role in Florida's process.

Stoler argues that Nebraska is no different from Florida. In Nebraska, jurors 
determine only whether aggravating circumstances apply; they aren't allowed to 
make ultimate determinations of death. A 3-judge panel weighs mitigating 
factors and then ultimately decides whether a defendant deserves death.

Just as defendants have a right to have a jury decide their guilt, Stoler said, 
defendants have a right to have jurors decide whether they get a death 
sentence.

The Nebraska Attorney General's Office disagrees, saying Nebraska's system is 
significantly different from Florida's.

A national expert said the ruling doesn't specifically undermine Nebraska's 
system.

But "it's something that invites a legal challenge and will have to be sorted 
out by the court," said Robert Dunham of the Death Penalty Information Center 
in Washington, D.C.

Stoler already has filed that legal challenge on behalf of 1 death-row inmate.

"If I'm right, it throws our whole sentencing scheme into question," Stoler 
said. "It's an issue that I think is definitely going to slow down the train."

6 times, stays of execution

2 Nebraska court cases - 1 old, 1 newer - have caused lawyers, even judges, to 
question whether the train can get any slower.

Carey Dean Moore has been on death row since 1980 for the murders of Omaha 
cabdrivers Reuel Van Ness Jr. and Maynard Helgeland, both 47.

His court history reads like a song on repeat. 6 times, the Nebraska Supreme 
Court has set an execution date for Moore: 1982, 1984, 1997, 1999, 2007 and 
2011. 6 times, the execution date has been stayed.

Twice in that time span, Moore has asked the court to disregard his appeals and 
put him to death. Both times, he has changed his mind and reinstated his 
appeals.

"A guy sitting on death row for 36 years? If it weren't so serious, it would be 
laughable," Gallup said. "Even the judges are sick of this."

Retired Sarpy County District Judge Ronald Reagan, who sentenced child killer 
John Joubert to death, stepped out from behind a judge's typical code of 
silence to publicly declare that most current judges would speak out against 
the death penalty if they could. Judicial code bars such out-of-court 
statements.

In court, Riley said, judges have conducted hearings dutifully, patiently and 
by the book.

"But to think they don't have personal viewpoints on the wisdom of this is 
foolish," Riley said.

And then there's the case of Nikko Jenkins. In March 2014, he was found guilty 
of 4 murders.

In the 2 1/2 years since that plea, his death-penalty hearing has been delayed 
3 times as a judge had Jenkins evaluated for competency to face the hearing.

The delays have led prosecutors to gripe that Jenkins is mocking the road to 
death row. Every time a death hearing comes near, they say, he slices a part of 
his anatomy.

Riley, his attorney, disputes that Jenkins' behavior is exaggerated because of 
the death penalty.

"It has more to do with his mental health," Riley said. "Now could you argue 
that this case would have been completed had the death penalty not been 
present? Perhaps."

Madison County Attorney Joe Smith believes prosecutors should have the option 
to pursue capital punishment.

'They relished' their evil deeds

Smith, the Madison County attorney, wants voters to restore the death penalty.

He and Kleine - along with Lancaster County Attorney Joe Kelly, Nebraska 
Attorney General Doug Peterson and the Nebraska County Attorneys Association - 
think prosecutors should have the option of pursuing it.

Their reasons are rooted in philosophies of punishment and deterrence. The 
death penalty still is needed for the worst of the worst, prosecutors say. Of 
the 10 men on death row, 4 killed children, 3 of them after raping or abducting 
the child. 5 were robbers who killed multiple people. And 1 man is on death row 
for the murders of 3 people, including a young woman who was living as a man.

"Look at those 10 people," Smith said. "Name one of them who doesn't deserve to 
die for his crimes. These are people who did terrible, terrible things to women 
and children - and in some cases they relished it. There's always going to be a 
place for the death penalty. You just can't tolerate certain crimes."

Kleine is more measured.

"I'll vote to restore it," Kleine said. "I still believe it's something that 
should be on the books in very unique circumstances.

"But I think everyone needs to make their own determination of whether this 
should be the law. ... Give it the weight it deserves, which is enormous."

Defense attorneys from Riley to Stoler to Soucie said they would be just fine 
if voters put them out of the death-penalty business. They view the death 
penalty as inefficient and unevenly applied - a costly "colossal waste of 
time," Soucie said.

That said, defense attorneys are weighing their legal options if voters restore 
the death penalty. Riley promises to challenge how organizers certified the 
signatures for the ballot issue.

Stoler will press on with his challenge, saying that Nebraska's procedure for 
imposing a death sentence violates a defendant's right to have a jury decide 
his fate.

And the state, which has been unable to secure 1 of the 3 drugs in its 
lethal-injection protocol, will have to fix its execution means. A half-dozen 
defense attorneys interviewed said they anticipate legal challenges to any new 
protocol Nebraska might put in place.

Bottom line, defense attorneys said: Expect a long fight, not a quick 
execution.

Said Soucie: "Right now there is no legal way by which the state can get the 
current drugs. It's incredibly problematic. There is so much litigation left to 
be done."

Riley agreed.

"I can tell you this," he said. "As long as there's a legitimate avenue to 
take, we're never going to stop appealing this thing."

(source: omaha.com)






ARIZONA:

The Arizona hanging that ended all Arizona hangings


The event took place just before dawn below the Coolidge Dam, in a secluded 
gorge at a rock-crushing quarry.

The place was almost at the intersection of three counties - Graham, Gila and 
Pinal - although it was officially in Gila County. The hanging was to take 
place at sunrise on July 13, 1936, but the incident proved to be the fatal blow 
to all Arizona hangings.

The story started with an undersized Apache Indian boy named Earl Gardner, 
growing up on the San Carlos Reservation. He was bullied and picked on because 
of his small size and soon developed a fierce temper. That temper made him 
despised for his cruelty by his fellow tribesmen.

The boy was always in trouble and became much of an outcast by those on the 
reservation. In 1925, at age 19, he became enraged with a fellow Apache and 
stabbed him to death. He received a 13-year sentence for the murder and was 
sent to the La Tuna, Texas, federal prison.

He was released in 1932, returned to the reservation and married a young girl 
named Nancy. Reports indicate that he continuously physically abused her during 
their marriage and, when she told him that she wanted to go to church on 
Christmas night 1935, around midnight, Earl, in his drunken rage took a hatchet 
and chopped her to death. He then turned to his 27-day-old baby, Edward, who 
received the same fate. Earl never said what drove him to such a horrible 
crime, but fellow Apaches reported it was just in his nature, "like a mad dog."

When Gardner appeared in court in February 1936 before federal Judge Sames in 
Globe, he tried to plead guilty but was refused. Gardner said, "Get a good rope 
and get it over with," but Judge Sames ordered a trial; and Gardner was found 
guilty and sentenced to die.

In 1916, Arizona voters had passed a law replacing the death penalty with life 
imprisonment, but, in October 1933, the death penalty was again introduced in 
Arizona, but by lethal gas. Since this was a federal case, hanging could still 
be used in Arizona - that is, until the sordid results of this hanging filtered 
out.

By July 12, 1936, federal Marshal Ben McKinney had deputized more than 3 dozen 
men to act as federal deputies to conduct the execution, including reporters. 
The large number was due to rumors that Apache tribal members would revolt, 
rumors that proved completely false. The marshal bought a black suit and took 
it to Gardner, who said, "You must be getting me ready for cool weather." That 
day, Earl Gardner performed a chant that is said to be sung by Apaches when 
death comes.

A crowd of spectators started to grow early in the evening outside the jail, as 
word spread that Earl was to be taken to the gallows before midnight. 
McKinney's auto finally pulled up next to the jail's side door and Gardner was 
hurried to the vehicle, where he was situated between 2 guards in the rear 
seat, while McKinney and another guard with a submachine gun were in the front 
seat.

Gardner was trussed in a "Tom Horn"-type harness consisting of a leather belt 
and handcuffs. Several autos crammed full of the deputies joined the 
procession. The convoy drove at high speed toward Coolidge Dam, a trip that 
took about 45 minutes.

Guards at the dam looked into each car before allowing it to proceed. The lead 
car, carrying Gardner, wound its way up the dirt road and parked about 25 yards 
from the gravel pit with the 20-foot-high wood scaffold built on top.

Gardner sat for almost 5 hours in the back seat of the car waiting for sunrise. 
He was seated next to Reverend Uplegger, from the reservation, who prayed and 
counseled with Gardner. Gardner did not speak; rather, he sat silent while 
chewing gum.

Gathered among the onlookers were some of Arizona's prominent county sheriffs, 
including Charles Byrne, of Gila; Harold Brown, of Santa Cruz; Lon Jordan, of 
Maricopa; and Peter Newman, of Yuma.

During the night, the deputies lounged around campfires, laughing and telling 
stories between sips of spirits.

Finally, the time had come, just before dawn, and Gardner was taken from the 
auto and walked to the scaffold, where he stood silently as Deputy Marshal 
Henry C. Smith read the death warrant by flashlight.

Gardner was positioned on top of the trapdoor and was asked if he had anything 
to say. He said, "I'll be glad to get it over with."

The trapdoor was sprung at 5:06 a.m., but the rope had slipped to the front of 
Gardner's neck, allowing him to hit the side of the opening on the way down. 
His neck snapped back, but his neck did not break, so he hung there, gasping 
for air, for a reported 33 minutes.

Doctor Joseph Snyder checked him for death numerous times before Sheriff 
Jordon, of Maricopa County, stepped down through the trapdoor and pushed 
Gardner???s body down with a foot on his shoulder to cut off his breathing and 
to end the ordeal. Death was reported at 5:39 a.m. A black hearse arrived soon 
afterward from Globe to remove the body.

Although the actual execution did not go well, preparations under the direction 
of Deputy U.S. Marshal John Snedde were first-rate. He began by stretching the 
rope to be used in a garage below the Gila County jail. A barrel of oil and 
sacks of sand weighing 500 pounds dangled from one end of the rope to take out 
the slack. When that was completed, the rope was soaped and further dressed. 
Snedde also built the scaffold, applied the blindfold and most likely pulled 
the trapdoor arm, although that has remained a closely guarded secret over the 
years.

Months later when word reached Washington, D.C. about the botched hanging, a 
law was passed saying that all federal executions would follow state law rather 
than the antiquated federal provision allowing hanging, making Earl Gardner the 
last to hang in Arizona.

(source: Eastern Arizona Courier)






CALIFORNIA:

2 Officers Shot Dead in Palm Springs, Suspect John Felix Arrested


The man suspected of fatally shooting 2 Palm Springs, California, police 
officers could face the death penalty, police said Sunday.

John Felix, 27, was taken into custody after he allegedly opened fire on 
officers who were responding to a family dispute on Cypress Road in the north 
part of the city on Saturday evening, police said.

The slain officers were Jose Gilbert Vega, 63, a 35-year veteran of the 
department who was due to retire in December, and Lesley Zerebny, 26, who had 
recently returned to duty after giving birth to a daughter 4 months ago. A 3rd 
officer was wounded and remained hospitalized Sunday, according to authorities.

Felix was also being treated at a local hospital. After the shooting, he had 
barricaded himself inside of the home officers responded to, and police had to 
use chemicals to force him out, said Palm Springs Police Department spokesman 
William Hutchinson. When Felix finally surrendered hours after the shooting, he 
was wearing body armor, Hutchinson said.

"It was a simple family disturbance and he elected to open fire on a few of the 
guardians of the city," Palm Springs police chief Bryan Reyes told a news 
conference Saturday.

"The officers from what I understand were near the front door trying to 
negotiate with the suspect to just comply."

Felix, who had a criminal record, will be booked into the Robert Presley 
Detention Center on 2 counts of murder of a police officer, the Palm Springs 
police department said in a statement. Felix will be eligible for the death 
penalty, said Riverside County District Attorney Michael Hestrin.

(source: NBC news)