[Deathpenalty] death penalty news----TEXAS, PENN., N.C., MISS., OHIO, CALIF.

[Rick Halperin]

Sept. 25




TEXAS:

Death Watch: Appeals, Waived Appeals, and Conflicting Findings----5th Circuit 
strikes down request to test death drugs


The 5th Circuit Court of Appeals has denied a motion for stay of execution 
pending appeal for Terry Edwards and Ramiro Gonzales, 2 death row inmates named 
in the 5-inmate petition seeking to require that the state of Texas test their 
doses of compounded pentobarbital (the drug used for executions) before 
carrying out each killing. 3 judges from the federal court were "not persuaded 
these prisoners have made the showing required" for the stay, the 5th stated in 
a Sept. 12 opinion. Circuit judge Patrick Higginbotham wrote that the 
petitioning inmates "failed to reach the Eighth Amendment bar on unnecessarily 
severe pain that is sure, very likely, and imminent." The 3 other named inmates 
- Jeffery Wood, Rolando Ruiz, and Robert Jennings - have each received stays on 
their executions for reasons outside of this particular issue.

In the court's denial, Higginbotham wrote that since unconsciousness precedes 
death when pentobarbital is the sole drug used to execute, the "problem of 
conscious pain and suffering" is "effectively obviat[ed]." Essentially, if 
inmates aren't alert to feel and express their pain, does it really matter if 
their death is painful? The logic is rooted in part on the belief that the 
state has used compounded pentobarbital to execute 32 inmates "without issue" 
since turning to the compounded drug in 2013. But the inmates have argued that 
this thinking is flawed: The state's acquisition of compounded pentobarbital is 
hardly an aboveboard process, with shipments of the drug coming to Huntsville 
from unidentified compounding pharmacies, and a Department of Criminal Justice 
that won't disclose what's in the cocktail.

The state granted 1 inmate the right to have his dose tested for purity before 
his execution in 2015 when the Attorney General's Office extended the courtesy 
to Perry Williams. But then a state district judge withdrew Williams' July 14, 
2016, execution date when TDCJ curiously failed to run its promised test in the 
6 months after Williams received his death date. Wood et al.'s attorneys have 
argued that if the state sees fit to grant Williams new testing, it should 
serve as precedent for other inmates. Higgin???botham's brief indicates that 
the 5th Circuit will rule otherwise, writing that an equal protection claim 
premised on differential treatment for those not considered a "class" (as 
inmates aren't) may only be reviewed in the context of a "class of one." That, 
he said, would apply to Williams, not the other 5 inmates: "The prisoners' 
primary contention now is that re-testing in [Williams' case] created a right 
to re-testing for all prisoners, a novel and flawed invocation of equal 
protection doctrine."

Edwards is currently scheduled for execution on Oct. 19. Gonzales is set for 
the gurney two weeks later: Nov. 2. They await word on their appeal alongside 
Wood, Ruiz, and Jennings.

"A knowing, intelligent, and voluntary decision"

Barney Fuller was the 6th inmate with a death date as of Aug. 12 - the only one 
not named on the petition seeking new testing on compounded drugs. Last 
December, Fuller filed a motion to hold a hearing on whether he's competent 
enough to waive his outstanding appeals and get on with his execution. The 
58-year-old was sentenced to death in July 2004 for the grisly double murder of 
his Houston County neighbors, Annette and Nathan Copeland, with whom Fuller had 
a court date to determine what should be done about his habit of shooting guns 
off at their house. (Fuller pleaded guilty to the charge of capital murder at 
his trial.)

A federal appeal filed in January indicates that efforts to save Fuller's life 
hinged on arguments that his trial attorneys provided him with weak counsel, 
but in late May Fuller went before U.S. federal judge Ron Clark in an effort to 
waive the appeal. In a June 1 opinion and order of dismissal, Clark wrote that 
Fuller "understands his legal position and the options available to him. He 
understands that a determination that he is competent to waive any further 
proceedings would stop his habeas review and allow the State to proceed with 
his execution." He said Fuller feels deserving of the punishment and is "ready 
to move on."

Fuller is scheduled for execution on Wednesday, Oct 5. He'll be the 538th Texan 
executed since 1976 but only the 7th put to death this year. He'll be the 1st 
since Pablo Vasquez, killed on April 6.

Supplemental copies of supplemental findings of Reed's facts

Bastrop Visiting Judge Doug Shaver has taken rubber stamping to a new level. On 
Sept. 9, the retired judge appointed to consider the re-testing of DNA evidence 
in Rodney Reed's case, signed 2 pre-prepared Findings of Fact - one presented 
to him by the state and one by the defense - and sent both off to the Court of 
Criminal Appeals to rule on Reed's July 2014 motion. Naturally, those findings 
differed: The state's copy determined that the chain of custody had been 
disrupted, and DNA on certain items of evidence could be contaminated; the 
version Reed's camp sent to Shaver proposed testing could still be done. The 
Bastrop County District Attorney's Office has requested that the CCA return 
both docs to Shaver for clarification on his standing. Reed's attorney Bryce 
Benjet told the Austin American-Statesman last Friday that he intends to object 
to that suggestion, and will request that a new judge handle the case on the 
district level. "When you have an error of this magnitude, we think it's 
appropriate for the court to reassign the case to a judge who can issue orders 
based on the record," Benjet told the daily.

(source: Austin Chronicle)






PENNSYLVANIA:

Death penalty in doubt


Jimmy Dennis has been on death row since 1992 for a crime he likely did not 
commit. Recently, the Third Circuit Court of Appeals ruled that prosecutors 
kept evidence of Dennis' innocence out of his trial. In the words of Judge 
Marjorie Rendell, this evidence "effectively gutted the commonwealth's case 
against Dennis."

Of all of the possible mistakes in our justice system, a wrongful execution is, 
by far, the most unacceptable. Dennis' story shows the all-too-real possibility 
that an innocent person could be executed. Dennis has spent the past 24 years 
on the verge of being executed. Now he may become the seventh person exonerated 
from death row in Pennsylvania.

As a society, we must do better than allowing a man to come this close to being 
wrongfully executed. We must repeal the death penalty in Pennsylvania or risk 
killing an innocent person.

Isaac Finkelman

South Oakland

(source: Letter to the Editor, triblive.com)






NORTH CAROLINA:

Racial Justice Act may have new use -- overturning death penalty


Opponents of North Carolina's Racial Justice Act of 2009 contended the 
anti-discrimination law was a back-door attempt to end the death penalty in 
North Carolina.

That was untrue, said lawmakers who pushed for the controversial law. The act 
gave death-row inmates a chance to convert their death sentences to life in 
prison without parole, if they could prove that racial bias in the court system 
influenced their trials.

But now, lawyer Ken Rose of the Center for Death Penalty Litigation says the 
Racial Justice Act can be used to try to overturn capital punishment here.

Rose told me this month the findings that Cumberland County's retired Senior 
Resident Superior Court Judge Greg Weeks made in 2012 for the state's first 4 
Racial Justice Act defendants show that North Carolina's courts unfairly issued 
death sentences.

Weeks had reviewed a statistical analysis of jury selection in North Carolina's 
capital trials. He concluded that prosecutors illegally considered the race of 
potential jurors when deciding which ones to strike from their cases - that 
prosecutors illegally prevented black citizens from serving on juries that 
would have to consider the death penalty.

This pattern was perhaps in light of a perception that black people are less 
likely to sentence someone to death than white people.

"I would say that the argument's going to be made that there have been 
discriminatory use of strikes by prosecutors throughout the state so that race 
was a significant factor in the decisions to seek or impose the death penalty," 
Rose said. "Whether it's intentional, unintentional, it happened. And as a 
result, race was a significant factor in the use of the death penalty in North 
Carolina."

Weeks commuted the sentences of the first 4 Racial Justice Act cases to life 
without parole, but the N.C. Supreme Court last year reversed his decisions and 
said the hearings need to be done over. The Supreme Court ruled that Weeks did 
not give the prosecutors enough time to prepare for the hearings and should 
have conducted four separate hearings instead of 2.

In the meantime, the legislature in 2013 ended the Racial Justice Act. Despite 
this, its litigation is continuing in the state and federal courts. Those who 
tried to use the law say it's unconstitutional for the state to give it to 
them, let them try to use it and then take it back.

Of the 150 death row inmates, at least 141 have filed Racial Justice Act 
claims, according to the North Carolina Attorney General's Office. 8 chose not 
to use the Racial Justice Act, and the status of one in light of the act was 
not available.

Theoretically, North Carolina could start executing the non-Racial Justice Act 
inmates as soon as an unrelated matter before the courts - North Carolina's 
execution protocols and practices - is resolved. That litigation started in 
January 2007 and because of it, no one has been executed here since August 
2006.

But Rose argues it would be wrong to resume executions for the 8 or 9 who don't 
have Racial Justice Act claims.

"If the death penalty has been applied discriminatorily in the state, then it 
should be struck down across the board," Rose said.

Because of the litigation over North Carolina's execution protocol and the 
unresolved Racial Justice Act matters, it will be years until anyone on death 
row is put to death.

(source: Fayetteville Observer)






MISSISSIPPI:

Life after freedom for the wrongly convicted


Sabrina Butler-Porter's nightmare began when her 9-month-old son died on April 
11, 1989.

It should have ended in 1995 when she left death row and gained her freedom 
after being exonerated of killing him.

But the Columbus woman didn't fully regain freedom outside those prison walls.

>From 1995 to 2009, she couldn't find a job. "No one would hire me after they 
looked up the case," Butler-Porter said.

"It was torture to be sentenced to die and serve time on death row for 
something you know you didn't do, and then to have to deal with life after 
getting out," she said.

Mississippi is paying compensation to Butler-Porter and nine other wrongly 
convicted individuals or their estates and have completed paying the maximum 
$500,000 to 21 others or their estates. As of the 2016 fiscal year, which ended 
June 30, more than $6.1 million has been awarded and the state has paid out 
$4.4 million through the fund, leaving $1.7 million due.

But these people didn't walk out of prison with money. Some states don't even 
have compensation plans and it can take years to get money in those states with 
compensation plans, said Karen Wolfe, a social worker with the national 
Innocence Project in New York.

Mississippi passed its compensation law in 2009, more than a decade after 
Butler-Porter's release. The amount the wrongly convicted receive is based on 
the amount of time they were incarcerated.

The state awarded Butler-Porter $329,000. Through the 2016 fiscal year, she had 
received $250,000.

But money alone couldn't compensate for the years, for many more than a decade, 
in prison and like Butler-Porter on death row.

They were returned to society like unwanted refugees in a foreign land, Wolfe 
said.

They have no money. They can't get a bank account. They can't get a driver's 
license.

Often they - especially African-Americans - are afraid to walk on the street 
for fear someone will ask for their ID because they don't have identification, 
Wolfe said. They fear they will be accused again of a crime they didn't commit.

"If you can imagine being dropped in Tupelo from another country as a refugee, 
at the age of 45, it is very similar to what an exoneree would be going 
through," Wolfe said. "They are often coming to a place they don't recognize 
with virtually no identity. Most of these exonerees don???t have 
identification. They usually have to get their birth certificate and Social 
Security card. They really can't do anything until they get that straight."

Wolfe said it can be very difficult for some to readjust to society because 
often they have spent the prime time for developing job skills and personal 
relations in prison.

"Really, they are like ghosts until they can recreate their identity," Wolfe 
said. "It's really tough, and you don't know your way around anymore ... 
Everything has changed."

Wolfe said many of her clients were in prison for 15 to 25 years. "They miss a 
lot of life experiences," Wolfe said.

Years of rejection

Butler-Porter, then known as Sabrina Butler, was 18 when she was wrongly 
convicted in March 1990 of felony child abuse in the death of her 9-month old 
son on April 11, 1989. The infant had a heart murmur, and when he stopped 
breathing in his crib he was taken to a hospital emergency room where doctors 
were unable to revive him.

Based upon a medical examiner's report, Butler-Porter was charged with felony 
child abuse the next day based on the bruises caused by the doctor's efforts to 
revive the child.

Butler-Porter was convicted on testimony that she caused the bruises by abusing 
her child - even though there was no evidence of any abuse and she wasn't 
present when the child stopped breathing.

A Lowndes County Circuit Court jury convicted Butler of capital murder and 
sentenced her to die. The state Supreme Court reversed the conviction Aug. 26, 
1992, after she spent 2 years and 9 months on death row. She then waited 3 more 
years in the Lowndes County Jail for a second trial. Panola County jurors heard 
the case because of extensive pre-trial publicity in Lowndes County and found 
her innocent.

In that 2nd trial, the medical examiner changed his original opinion, stating 
the child died of an internal kidney malady, and a neighbor testified the 
bruises occurred during an unsuccessful attempt to administer CPR, the 
Innocence Project says.

She was a high school dropout when she was sent to death row. She got her GED 
while in custody.

After years of being rejected for jobs, Butler-Porter recently had her record 
expunged.

These days, she has been speaking at events across the country about innocent 
individuals wrongly convicted.

Butler-Porter and husband Joe are raising 3 children.

She works with an organization called Witness to Innocence, comprised of 
exonerees once on death row.

"We speak all over about the justice system and its approach to who gets the 
death penalty and who doesn't," Butler-Porter said. "It is racially motivated 
on every level and needs to be fixed. I have been doing advocacy work since I 
got out in 1995. I know that if I don't speak out, and people like me, then 
when will it ever change? Too many innocent people have been tortured by this 
unjust system. It must change, and one way is to get rid of the death penalty 
and put new laws in place. And hold people accountable for theiractions who 
intentionally put people in prison unjustly."

(source: Clarion-Ledger)






OHIO:

Death penalty phase of double murder trial to begin Monday


A Montgomery County jury found a Dayton man guilty in a double murder trial 
Saturday.

Jurors deliberated for 2 days before finding Harvey Jones guilty.

It was an emotional day in court for both victims' families as they listened to 
the jury find 37-year-old Harvey Jones guilty of murdering his ex-girlfriend 
32-year-old Carly Hughley and her friend 29-year-old Demetrius Beckwith. The 
same jury who found Jones guilty, will now decide if he should get the death 
penalty.

Emotions were high Saturday as the court read all 8 counts 1-by-1.

The jury found 37-year-old Harvey Jones guilty on 4 counts of aggravated 
murder, 2 counts of aggravated burglary and 2 counts of aggravated robbery. 
Prosecutors argue Jones shot and killed his ex-girlfriend 32-year-old Carly 
Hughley and her friend 29-year-old Demetrius Beckwith inside a Harrison 
Township apartment in January 2013.

Hughley's son who was 10-years-old witnessed the murders according to the 
prosecution. Beckwith's sister Danada Beckwith - who we spoke with earlier this 
week says faith has helped her and her family cope throughout the trial.

"We're strong in our faith," Beckwith said. "And that's what's gotten us 
through this for the last 3 years."

The same jury who convicted Jones will now decide what happens to him.

"This concludes phase 1 of this trial," Judge Steven Dankof said. "Phase 2 of 
the trial the mitigation phase will begin Monday morning."

Starting Monday, the jury will decide if Jones should get the death penalty. 
Before then, all 12 jurors - who have been sequestered throughout the trial - 
have strict rules to follow.

"You know you are not to investigate or attempt to obtain additional 
information," Judge Dankof said. "About this case outside the walls of the 
court room."

Harvey Jones' death penalty trial will begins Monday morning at 8:30 a.m.

(source: WDTN news)






CALIFORNIA:

Death penalty is dying across America. Will California save it?


The last inmate executed in California was 76-year-old Clarence Ray Allen, 
legally blind and suffering from diabetes, who had his heart stopped with a 
lethal chemical cocktail as punishment for a triple homicide in Fresno he'd 
ordered from a Folsom Prison cell a quarter century earlier.

It was more than a decade ago when Allen spoke his last words - "Hoka Hey, it's 
a good day to die" - and the poisons flowed into his veins at San Quentin State 
Prison.

Now, with the death penalty dying across America, the nation is watching 
California as its voters weigh competing initiatives meant to either revive 
executions or abolish capital punishment. Several states in recent years ended 
their death penalties through court decisions or legislation, but California is 
a test of whether voters think executions are worth trying to save.

"The death penalty system has been so broken for so long in California that it 
seems there is a uniquely compelling argument for abolition, to say, 'Let's 
just cut our losses,'" said Douglas Berman, an Ohio State University law 
professor and criminal sentencing expert. "If abolition can't succeed in 
California I have a hard time thinking that it can succeed by plebiscite 
anywhere."

Proposition 62 on the November ballot would end the death penalty and convert 
the sentences to life without parole. Proposition 66 aims to speed up 
executions with - among other things - limits on appeals and deadlines on court 
rulings. Should both measures pass, the one with the most votes becomes law.

California's decision comes as the death penalty withers in the rest of the 
nation. There were 28 executions in America last year, the lowest number since 
the death penalty was reinstated in 1976, and a 70 % decline from the peak in 
1998.

Only 6 states had executions last year, most of them in the cotton belt. Even 
America's execution capital of Texas is slowing down, with a 68 % decline in 
inmates put to death over the past 15 years.

A new Harvard University study found that just 16 counties in the U.S.'s 3,143 
had imposed at least 5 death sentences since 2010. Supreme Court Justice 
Stephen Breyer noted last year that "the number of active death penalty 
counties is small and getting smaller."

Reasons include legal challenges to death sentences, botched executions - 
including a 2011 Oklahoma injection where the condemned man writhed and moaned 
as it took him more than 40 minutes to die - difficulty obtaining lethal drugs 
from pharmaceutical companies reluctant to play a role in ending lives, and 
wrongful convictions.

More than 150 people on death row nationwide have been exonerated since 1973, 
according to the Death Penalty Information Center, including 3 in California. 
Wrongful convictions doomed the death penalty in Illinois, which passed 
legislation to abolish it in 2011.

States are also balking at costs of a death penalty case and appeals. Lawmakers 
in conservative Nebraska voted to join the states shedding the death penalty 
last year, citing expenses and religious objections. The issue will go to 
Nebraska's voters in a November referendum.

The death penalty is on hold in California, Arizona, Arkansas, Colorado, 
Kentucky, Louisiana, Montana, North Carolina, Ohio, Oklahoma, Oregon, 
Pennsylvania and Washington state as a result of legal challenges or 
moratoriums imposed by governors.

Capital punishment has been abolished in 8 other states over the past decade 
and is in limbo in Florida, which has the nation's 2nd-most-populous death row 
after California, following a Supreme Court decision striking down the state's 
death penalty statute.

Polls find that a majority of Americans still support the death penalty, but 
the numbers are falling. The Pew Research Center found 78 % support in 1996 and 
56 % last year.

"The death penalty is in decline by any objective measure," said Robert Dunham, 
executive director of the Death Penalty Information Center in Washington, D.C.

Sacramento County District Attorney Anne Marie Schubert said that regardless of 
what was happening in the rest of the nation she saw the death penalty as 
appropriate justice for the "worst of the worst" killers in California.

"It's a policy that Californians continue to support but they want the system 
fixed," Schubert said.

California voters supported keeping the death penalty in 2012 with 53 % of the 
vote. Recent polling suggests this year's initiative campaign to end capital 
punishment is struggling to win majority support.

No state has repealed the death penalty by public vote since Oregon in 1964 - 
and voters there reinstated it in 1978. While courts and legislatures around 
the nation are abolishing capital punishment, when it goes to a public vote the 
hard line tends to have the advantage, said Franklin Zimring, a criminal 
justice expert at the University of California, Berkeley.

"The question is what do you do with the worst criminals you have?" Zimring 
said. "And if that ever becomes a question of sentiment the answer is boil them 
in oil."

California has the largest death row population in the Western Hemisphere, with 
746 inmates who are sentenced to die. The nonpartisan Legislative Analyst's 
Office estimates that eliminating California's death penalty would save around 
$150 million a year, including reduced costs for trials and challenges to death 
sentences.

According to the study from Harvard's Fair Punishment Project, 5 of the 16 U.S. 
counties in the U.S. that imposed at least 5 death sentences since 2010 are in 
Southern California - Kern, Los Angeles, Orange, Riverside and San Bernardino. 
Riverside County has become the nation's leader in death sentences - with 8 
people sent to death row last year alone.

Meanwhile, no one is actually being executed in California.

A federal judge ruled in 2006 that the state's lethal injection procedures 
risked a painful and inhumane death. Other legal challenges followed, and the 
state is now considering a single lethal barbiturate dose to replace the 
3-chemical method barred by the courts.

Cal-Berkeley's Zimring predicts the initiative designed to speed executions in 
California will have minimal impact if it passes. The main result would be 
litigation and delay, he said, since the ballot measure has so many pieces open 
to challenge.

That's disputed by Kent Scheidegger, legal director of the pro-death penalty 
Criminal Justice Legal Foundation in Sacramento.

"The most important reforms of this carefully drafted initiative are virtually 
bulletproof," he asserted.

California's vote in November will be "hugely significant" in the national 
debate over the death penalty, said Ohio State University criminal sentencing 
expert Berman. Politicians and judges pay attention to signals of the public's 
view on the death penalty, and the vote of a state like California carries 
weight.

"If it is a conclusive victory for 1 side or the other, that could be 
profound," Berman said.

(source: sacbee.com)