[Deathpenalty] death penalty news----CALIF., USA

[Rick Halperin]

Dec. 10




CALIFORNIA:

Justice Delayed: Murder cases still piling up in Stanislaus courts



Judges, attorneys and Stanislaus court administrators have not removed a glut 
of local murder cases, 2 years after The Modesto Bee highlighted the troubling 
backlog with its high costs, financial and emotional.

Adjusted for population, murder cases here remain twice as high as the 
statewide average, according to data gathered from 50 of California's 58 
counties in a new Bee analysis. And old Stanislaus murder cases, defined as 
waiting 5 years or more for trial, continue stacking up at a rate triple the 
statewide average.

2.6 Murder cases in Stanislaus courts, per 100,000 population, waiting at least 
5 years for trial

0.7 California average

Players in the local system insist they're working hard and making progress. 
Others are frustrated that more hasn't been done to move the needle. Some 
families of murder victims are worried that witnesses' memories will fade as 
files grow moldy.

"We're all doing the best we can with what we have," said Ricardo Cordova, 
Stanislaus presiding judge. "There is no easy answer to this situation."

$4.2 million Annual cost for housing Stanislaus' 112 defendants awaiting trial 
for murder

Meanwhile, taxpayers are forced to cough up $4.2 million a year to house, in 
local jails, the 112 murder defendants still waiting for trial. That's about 
$102 a day for each, up from $99 2 years ago.

It wasn't always this way.

The startling rise in unresolved murder cases roughly coincides with 2 events: 
a 2005 change in how judges handle cases, and the 2006 election of District 
Attorney Birgit Fladager. She continues to blame the subsequent spike on the 
2005 change, while some judges have suggested that Fladager's must-win approach 
to justice is bogging down the system. It's clear also that demands for 
continuances from defense teams, whose clients generally benefit from delays, 
have contributed to the logjam.

All agree that limited resources - a shortage of prosecutors, judges and 
courtrooms - is keeping them from clearing the pileup. In that respect, not 
much has changed in the past 2 years.

Evidence blunders cause delays

A new look at the problem turns up another potential factor which could become 
a campaign issue, as Fladager seeks a 4th term in elections next year. Her 
office's problems with handling of evidence has marred some court proceedings, 
including delays in murder cases.

Challenger Patrick Kolasinski said, "It's simple disorganization and 
mismanagement. It's a matter of what are your priorities, what matters most to 
you." He is a defense attorney, but doesn't represent murder suspects.

Another challenger from within the District Attorney's office, John Mayne, does 
prosecute murder cases and acknowledges problems caused by evidence 
mishandling, several documented in Bee reports. But he's not convinced that's a 
significant reason for the glut of 14 old murder cases; currently he's not 
assigned to any of them.

Fladager and members of her technology team say they're nearing a years-old 
goal of providing evidence to all attorneys digitally, erasing the need for 
paper changing hands, as well as chances for muffing it.

We are mindful of families impacted by homicides. Everyone is doing their best 
to try to move these cases so defendants' rights are honored, and victims' 
also. A major focus is to keep them moving through the system.----Birgit 
Fladager, Stanislaus District Attorney

Fladager says her office has made significant progress since The Bee shined a 
light on the accumulation of murder cases 2 years ago. Her prosecutors since 
have resolved 64 murder cases, she said, with a total of 79 defendants; some 
cases have more than one defendant.

"A lot of good work has been done in the last 2 years to address the backlog," 
she said.

The trend ' finishing 64 murder cases in 2 years, while absorbing 45 more in 
that time - suggests gradual improvement.

Making progess

Others say they sense that things are going in the right direction.

"I've noticed in the last few months a concerted effort to try to resolve some 
of these homicides," said Sonny Sandhu, Stanislaus County public defender (he 
is appointed, while Fladager is elected). "It's led to convictions, and good 
results for defendants as well."

For example, Andrew and Alicia Paffendorf in October were convicted in the 
death of their 16-month-old son after a wait of nearly nine years. Also in 
October, Andrew Briseno and Adolfo Leyva were sentenced for their roles in the 
murder of Erik Preciado, in a botched carjacking attempt, in 2007 (the shooter, 
Gary Spray, 2 years ago was sentenced to 30 years in prison).

"I've been waiting 10 1/2 years for this day," sobbed the victim's mother, 
Julie Preciado, at the sentencing for Briseno and Leyva. In an emotion-packed 
proceeding, she forgave the men and hugged their mothers in the audience, and 
both men cried while apologizing to the victim's family, including a 
now-teenage daughter who was 4 when her father was killed.

To take a possible death sentence off the table, Mark Mesiti in October 
admitted to sexually abusing and murdering his 14-year-old daughter, Alycia, 11 
years ago, although he's now trying to withdraw the plea.

And in August, 2 men were sentenced for punching and kicking to death David 
Cingcon Jr., in a parking lot near Sylvan and Oakdale roads more than 9 years 
before.

Assistant Presiding Judge Dawna Reeves said recent resolutions give reason for 
hope.

"There is no blame to place. It is what it is," Reeves said. "The perception 
that things are taking too long - there may not even be a problem. Maybe it's 
just the way things have evolved."

Multiyear delays, however, seem like forever when someone is seeking justice 
for a slain loved one.

"5 years later and I'm still waiting," said Maisy Avila, whose 31-year-old son 
was murdered along with his fiancee and a teenage boy raised as Avila's 
grandson, in an alleged gang hit on McClure Road in early 2012. Prosecutors are 
seeking the death penalty against 3 men, and life sentences for 4 others.

Lack of closure for victims' loved ones

"I want justice to be served," Avila continued. "But the system is not for 
those of us who are left behind. It's for those who stand behind the bars and 
try to fight their way out of something they know they did wrong and they're 
trying to get off. It's not right. We deserve our day in court too."

Modesto Councilwoman Jenny Kenoyer said she attends church with a woman and her 
2 children whose father has been in jail 10 years waiting for trial - longer 
than they were a family before his arrest.

"It just seems to me that something is really wrong with our judicial system if 
we can't bring people to trial within a reasonable amount of time, and 10 years 
is not reasonable," Kenoyer said.

Time standards, adopted for California courts in 1987 and amended in 2004, call 
for all felonies to resolve within one year. Is that realistic?

Some counties get close. For example, Stanislaus' neighbor to the north, San 
Joaquin, closed out 98 % of felonies in 2015, the latest period for which data 
are available; that's tied for best in California, with Sacramento County, 
according to the California Judicial Council.

Stanislaus courts, by comparison, disposed of only 77 % of felonies that year, 
putting us 15th from the bottom in the state. And Stanislaus' achievement rate 
steadily slipped in each of the preceding few years, from a high of 87 % in 
2011.

Stanislaus courts have been confronted with fewer and fewer cases of all types 
over that same 5-year span, from a high of 4,262 filings in 2011 down to 2,785 
in 2015. With that trend, one might expect judges to catch up, but the opposite 
is true: dispositions also have steadily declined each year, from 4,085 per 
judge in 2011 to only 2,530 in 2015, according to the California Judicial 
Council.

118 Trials in Stanislaus courts, in 2011

68 Trials in Stanislaus courts, in 2015

The number of Stanislaus trials also sharply declined, from 118 in 2011 to only 
68 in 2015.

"A high number of trials doesn't equate to more efficient justice," said Hugh 
Swift, executive officer of Stanislaus courts. All sides typically strive to 
resolve cases before trial; perhaps more end that way here because attorneys 
and judges are better at negotiating, said Cordova and Reeves.

And that could be thanks to the 2005 change in the way judges are assigned 
cases, they said. The switch from what was called master calendaring to direct 
calendaring resulted in judges keeping a given case from start to finish 
instead of different judges handling various segments as a case proceeds toward 
trial.

Fladager flatly blames the backlog on direct calendaring; when a trial finally 
begins, that judge's remaining caseload stacks up instead of being sent to 
another judge, she says. But court administrators and some judges dispute that, 
including Reeves, who came up through the district attorney's office.

"A defense attorney) can always say, 'You didn't give me all the discovery 
(evidence), and they can't be sure. I've had cases where the deputy district 
attorney hands me discovery that's already been received and says, 'I don't 
know if I gave you this before.'----Patrick Kolasinski, defense attorney 
Kolasinski says Stanislaus judges have become so accustomed to delay requests, 
often resulting from problems with evidence in the discovery process, that they 
routinely grant continuances without question. That rarely happens in 
neighboring counties, he said.

Unique culture of delay?

"I can get a continuance almost any time I want without batting an eye, because 
there is no pushback from the DA or from the judge," Kolasinski said. "When I 
go to other (counties), it's, 'Oh, hell no.' But here, I say I didn't get 
discovery, or I say I think there's more, and nobody questions it because the 
DA has no way of knowing what they already gave me. There is no centralized way 
of tracking this evidence."

Judges only have so much power to move cases along, Cordova and Reeves said.

"We can force it to go to trial, but the chances of being reversed (on appeal) 
are much greater," Cordova said. "It's extremely frustrating to all of us."

Reeves said, "Everyone is mindful of the age of these cases. You don't want to 
be viewed as an inefficient judge. But you also have to be mindful of 
everyone's rights."

These staff are struggling to function effectively under such burdensome 
caseloads. Mistakes may happen and cause delays as well as potentially 
jeopardize cases all the way through the appellate process.

District attorney narrative, Stanislaus County 2017-18 proposed budget

Budget documents for each of the past 3 years have mentioned Fladager's plan 
for improvement through paperless reports. Her evidence handlers "are 
struggling to function effectively under such burdensome caseloads. Mistakes 
may happen and cause delays," reads the latest narrative for the 2017-18 fiscal 
year.

For example, a preliminary hearing for murder defendant Frank Carson, who also 
is a prominent Modesto defense attorney, dragged on for 18 months partly 
because of evidence lapses by Fladager's office, including failure to turn over 
polygraph results for more than 2 years. A year ago, the exasperated judge 
abruptly released Carson and 2 others charged with murder on their own 
recognizance upon learning about more evidence that had not been shared with 
defense teams.

A preliminary hearing for Martin Martinez, accused of killing his girlfriend, 
Amanda Crews, and 4 others, began in August but was postponed until January 
because prosecutors failed to provide a large amount of evidence to the defense 
team, including Sandhu.

In upcoming budget talks, Fladager will push county leaders to give her office 
more money for more prosecutors, she said. Her people cooperated with county 
executives on a recent study of caseloads in comparable counties (San Joaquin, 
Merced, Sacramento, Fresno, Kern, Tulare and Monterey), with intriguing 
results:

-- Each Stanislaus prosecutor reviews far more new cases than the other 
counties, averaging 417 per year (Merced was 2nd at 360, and the 8-county 
average was 305).

-- We're 2nd in the number of murder cases per prosecutor (1.8), behind only 
Merced (2), while the average is 0.8.

A Bee analysis found an inverse correlation between caseload and trials per 
prosecutor; the more trials accomplished, the fewer murder cases a prosecutor 
has (the exception is Merced, where prosecutors have both a high caseload and 
go to trial more). Stanislaus prosecutors fared worst in this comparison, 
bringing the fewest number to trial (1.6 per deputy district attorney) while 
handling more murder cases than all others, except Merced.

Stanislaus County executives will agree with Fladager's plan to pay for more 
prosecutors with money freed up from clerk positions, which won't be needed as 
much as her office moves toward all-digital reports, she said.

Hemorrhaging prosecutors

Mayne said the office's biggest problem is retaining prosecutors, too many of 
whom have left for greener pastures, or lighter caseloads with less pressure. 
The office was forced to replace 17 prosecutors in the past year, he said, 
among 47 total.

"The current DA wants to place all the blame for slow resolution of cases on 
the courts," Mayne said. "I will look at what we can do better. If our people 
are not overwhelmed, we can avoid some of these delays."

When the backlog became public 2 years ago, major players - courts 
administrators, judges, prosecutors, the public defender, county supervisors 
and the county executive office - vowed to work together to change the delay 
culture and break the murder case logjam. Fladager said she was dismayed when 
the effort was sidetracked in favor of a more pressing concern: courthouse 
security.

A change in funding has provoked an ongoing dispute between county and state 
leaders, all sides said. They soon will return to the murder case backlog, they 
said.

"I guess I'm a little frustrated," said County Supervisor Terry Withrow, part 
of the county's delegation. "This has been going on for 2 years and we have not 
made any progress at all. I think we can do multiple things at once."

County Supervisor Vito Chiesa noted, "Other counties seem to have a method that 
works. We all need to try harder."

Avila, and many others waiting years for justice, would appreciate that.

She misses the "silly dance" that her son, Edward Reinig, would do every 
holiday.

"He's never coming home. He's never dancing again. Every holiday is hard," 
Avila said. "Yet we wait. We wait and we wait. I'm tired. Get your butts in 
gear and do your job, whomever it is. We deserve peace, too."

(source: Modesto Bee)








USA:

States choose new ways of executing prisoners. Their latest idea? Opioids.



The synthetic painkiller fentanyl has been the driving force behind the 
nation's opioid epidemic, killing tens of thousands of Americans last year in 
overdoses. Now 2 states want to use the drug's powerful properties for a new 
purpose: to execute prisoners on death row.

As Nevada and Nebraska push for the country's 1st fentanyl-assisted executions, 
doctors and death penalty opponents are fighting those plans. They have warned 
that such an untested use of fentanyl could lead to painful, botched 
executions, comparing the use of it and other new drugs proposed for lethal 
injection to human experimentation.

States are increasingly pressed for ways to carry out the death penalty because 
of problems obtaining the drugs they long have used, primarily because 
pharmaceutical companies are refusing to supply their drugs for executions.

The situation has led states such as Florida, Ohio and Oklahoma to turn to 
novel drug combinations for executions. Mississippi legalized nitrogen gas this 
spring as a backup method - something no state or country has tried. Officials 
have yet to say whether it would be delivered in a gas chamber or through a gas 
mask.

Other states have passed laws authorizing a return to older methods, such as 
the firing squad and the electric chair.

"We're in a new era," said Deborah Denno, a law professor at Fordham 
University. "States have now gone through all the drugs closest to the original 
ones for lethal injection. And the more they experiment, the more they're 
forced to use new drugs that we know less about in terms of how they might work 
in an execution."

Supporters of capital punishment blame critics for the crisis, which comes amid 
a sharp decline in the number of executions and decreasing public support for 
the death penalty. States have put 23 inmates to death in 2017 - the 2nd-fewest 
executions in more than a quarter-century. 19 states no longer have capital 
punishment, with 1/3 of those banning it in the past decade.

"If death penalty opponents were really concerned about inmates' pain, they 
would help reopen the supply," said Kent Scheidegger of the Criminal Justice 
Legal Foundation, which advocates the rights of crime victims. Opponents 
"caused the problem we're in now by forcing pharmaceuticals to cut off the 
supply to these drugs. That's why states are turning to less-than-optimal 
choices."

Prison officials in Nevada and Nebraska have declined to answer questions about 
why they chose to use fentanyl in their next executions, which could take place 
in early 2018. Many states shroud their procedures in secrecy to try to 
minimize legal challenges.

But fentanyl offers several advantages. The obvious one is potency. The 
synthetic drug is 50 times more powerful than heroin and up to 100 times more 
powerful than morphine.

"There's cruel irony that at the same time these state governments are trying 
to figure out how to stop so many from dying from opioids, that they now want 
to turn and use them to deliberately kill someone," said Austin Sarat, a law 
professor at Amherst College who has studied the death penalty for more than 
four decades.

? Another plus with fentanyl: It is easy to obtain. Although the drug has 
rocketed into the news because of the opioid crisis, doctors frequently use it 
to anesthetize patients for major surgery or to treat severe pain in patients 
with advanced cancer.

Nevada officials say they had no problem buying fentanyl.

"We simply ordered it through our pharmaceutical distributor, just like every 
other medication we purchase, and it was delivered," Brooke Keast, a 
spokeswoman for the Nevada Department of Corrections, said in an email. 
"Nothing out of the ordinary at all."

The state, which last put someone to death in 2006, had planned its first 
fentanyl-assisted execution for November. The inmate involved, 47-year-old 
Scott Dozier, was convicted of killing a man in a Las Vegas hotel, cutting him 
into pieces and stealing his money.

According to documents obtained by The Washington Post, Nevada's protocol calls 
for Dozier first to receive diazepam - a sedative better known as Valium - and 
then fentanyl to cause him to lose consciousness. Large doses of both would 
cause a person to stop breathing, according to 3 anesthesiologists interviewed 
for this report.

Yet Nevada also plans to inject Dozier with a 3rd drug, cisatracurium, to 
paralyze his muscles - a step medical experts say makes the procedure riskier.

"If the first 2 drugs don't work as planned or if they are administered 
incorrectly, which has already happened in so many cases?.?.?. you would be 
awake and conscious, desperate to breathe and terrified but unable to move at 
all," said Mark Heath, a professor of anesthesiology at Columbia University. 
"It would be an agonizing way to die, but the people witnessing wouldn't know 
anything had gone wrong because you wouldn't be able to move."

John M. DiMuro, who helped create the fentanyl execution protocol when he was 
the state's chief medical officer, said he based it on procedures common in 
open-heart surgery. He included cisatracurium because of worries that the 
Valium and fentanyl might not fully stop an inmate's breathing, he said. "The 
paralytic hastens and ensures death. It would be less humane without it."

A judge postponed Dozier's execution last month over concerns about the 
paralytic, and the case is awaiting review by Nevada's Supreme Court. In the 
meantime, Nebraska is looking toward a fentanyl-assisted execution as soon as 
January. Jose Sandoval, the leader of a bank robbery in which 5 people were 
killed, would be the 1st person put to death in that state since 1997.

Sandoval would be injected with the same 3 drugs proposed in Nevada, plus 
potassium chloride to stop his heart.

Even at much lower concentrations, intravenous potassium chloride often causes 
a burning sensation, according to Heath. "So if you weren't properly sedated, a 
highly concentrated dose would feel like someone was taking a blowtorch to your 
arm and burning you alive," he said.

Fentanyl is just the latest in a long line of approaches that have been 
considered for capital punishment in the United States. With each, things have 
often gone wrong.

When hangings fell out of favor in the 19th century - because of botched cases 
and the drunken, carnival-like crowds they attracted - states turned to 
electrocution. The first one in 1890 was a grisly disaster: Spectators noticed 
the inmate was still breathing after the electricity was turned off, and prison 
officials had to zap the man all over again.

Gas chambers were similarly sold as a modern scientific solution. But one of 
the country's last cyanide gas executions, in 1992, went so badly that it left 
witnesses crying and the warden threatening to resign rather than attempt 
another one.

Lethal injection, developed in Oklahoma in 1977, was supposed to solve these 
problems. It triggered concerns from the start, especially because of the 
paralytic drug used. Even so, the 3-drug injection soon became the country's 
dominant method of execution.

In recent years, as access to those drugs has dried up, states have tried 
others. Before the interest in fentanyl, many states tested a sedative called 
midazolam - leading to what Supreme Court Justice Sonia Sotomayor called 
"horrifying deaths."

Dennis McGuire, who raped and killed a pregnant newlywed in Ohio, became the 
1st inmate on whom that state's new protocol was tried. Soon after the 2014 
execution began, his body writhed on the table as he gasped for air and made 
gurgling, snorting noises that sounded as though he was drowning, according to 
witnesses.

The same year, Oklahoma used midazolam on an inmate convicted of kidnapping and 
killing a teenager; authorities aborted the execution after Clayton Lockett 
kicked, writhed and grimaced for 20 minutes, but he died not long after. 3 
months later, Arizona used midazolam on Joseph R. Wood III, who was convicted 
of killing his ex-girlfriend and her father. Officials injected him more than a 
dozen times as he struggled for almost 2 hours.

Like officials in other states, Arizona officials argued that the inmate did 
not suffer and that the procedure was not botched. Later, they said they would 
never again use midazolam in an execution.

Joel Zivot, a professor of anesthesiology and surgery at Emory University, 
called the states' approach ludicrous. "There's no medical or scientific basis 
for any of it," he said. "It's just a series of attempts: obtain certain drugs, 
try them out on prisoners, and see if and how they die."

The bad publicity and continuing problems with drug supply have sent some of 
the 31 states where capital punishment remains legal in search of options 
beyond lethal injection. Turning to nitrogen gas would solve at least 1 issue.

"Nitrogen is literally in the air we breathe - you can't cut off anyone's 
supply to that," said Scheidegger, who strongly supports the idea.

In addition to Mississippi, Oklahoma has authorized nitrogen gas as a backup to 
lethal injection. Corrections officials and legislators in Louisiana and 
Alabama have said they hope to do the same.

And yet, critics note, there is almost no scientific research to suggest that 
nitrogen would be more humane.

Oklahoma's legislature acted in 2015 based on a report solicited from 3 
professors at a local university, none of whom had any medical or scientific 
background. They cited examples of airplane pilots passing out from nitrogen 
hypoxia and accounts of people killing themselves using nitrogen and helium 
gas. A financial analysis prepared for lawmakers said the approach would be 
"relatively cost effective," requiring only a gas mask and a container of 
nitrogen.

Zivot is among those skeptical that nitrogen would work as hoped.

"There's a difference between accidental hypoxia, like with pilots passing out, 
and someone knowing you're trying to kill him and fighting against it," he 
said. "Have you ever seen someone struggle to breathe? They gasp until the end. 
It's terrifying."

Dozier, the inmate Nevada hopes to execute soon with fentanyl has said he would 
prefer death by firing squad over any other method. In more than a dozen 
interviews, experts on both sides of the issue expressed similar views.

Of all the lethal technology humans have invented, the gun has endured as one 
of the most efficient ways to kill, said Denno, who has studied the death 
penalty for a quarter-century.

"The reason we keep looking for something else," she said, "is because it's not 
really for the prisoner. It's for the people who have to watch it happen. We 
don't want to feel squeamish or uncomfortable. We don't want executions to look 
like what they really are: killing someone."

(source: Washington Post)

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

Nevada and Nebraska seeking to use fentanyl to execute death row inmates



2 states want to take a drug from an addict's needle and add it to an 
executioner's arsenal.

Fentanyl has proven so adept at killing drug users that authorities in Nevada 
and Nebraska now want to use it to execute death row inmates.

The effort to weaponize the highly potent opioid has drawn opposition from 
doctors and death penalty opponents who warn that its use could lead to 
painful, botched executions, according to the Washington Post.

The turn toward fentanyl comes as several states have been forced to experiment 
with new drug cocktails due to shortages of traditional execution meds.

"We're in a new era," said Deborah Denno, a law professor at Fordham 
University.

"States have now gone through all the drugs closest to the original ones for 
lethal injection. And the more they experiment, the more they're forced to use 
new drugs that we know less about in terms of how they might work in an 
execution."

A highly addictive synthetic painkiller that's 100 times more potent than 
morphine, fentanyl is driving the nation's opioid epidemic.

As fentanyl deaths have piled up in recent years, an increasing number of 
pharmaceutical companies have stopped supplying the traditional execution 
drugs.

Some states - including Florida, Ohio, and Oklahoma - have started 
experimenting with new drug combinations for executions.

Others have become so desperate that they've passed laws authorizing the return 
to such outdated methods as firing squads and electric chairs.

With its high potency and ample supply, fentanyl has an obvious appeal to 
states looking for new ways to kill - even as public health experts struggle to 
stem an epidemic that claimed the lives of roughly 64,000 Americans last year.

"There's cruel irony that at the same time these state governments are trying 
to figure out how to stop so many from dying from opioids, that they now want 
to turn and use them to deliberately kill someone," Austin Sarat, a law 
professor at Amherst College who has studied the death penalty for more than 4 
decades, told the Washington Post.

(source: nydailynews.com)