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

[Rick Halperin]

Feb. 17



TEXAS:

Lining Up a Conviction----A suggestive photo lineup put Juan Balderas on death 
row. Experts say he may have been wrongfully convicted, but will he get a new 
trial in time?


At first glance, the photo lineup that helped send Juan Balderas to death row 
doesn't look too unusual. It shows 6 young Latino men staring blankly ahead. 
Balderas, in the bottom middle position, looks calm, almost as if he's 
daydreaming.

But according to judges and experts, this lineup is deeply prejudicial. 2 small 
details - the black hoodie Balderas is wearing and the mark on his left cheek - 
may have singled him out to the witness who viewed this lineup. Balderas was 
sentenced to death for a 2005 Houston murder based on the testimony of a single 
eyewitness, and he???s maintained his innocence ever since.

The witness identification procedure in Balderas' case gained the attention of 
the state's highest criminal court, with a majority of judges ruling in 
November that it was suggestive, and 1 judge arguing it was so prejudicial that 
Balderas deserved a new trial. Combined with allegations that prosecutors hid 
evidence from the defense during the trial, and that another witness has 
recanted his account of the shooting, the identification raises the troubling 
question of whether Balderas was wrongfully convicted.

Meanwhile, a panel of experts formed to cut down on wrongful convictions is 
urging state legislators to beef up rules for witness identifications. 
Balderas' case is one example of how small errors in police treatment of 
eyewitnesses can lead to serious problems with a conviction.

On December 6, 2005, 16-year-old Eduardo Hernandez was hanging out with friends 
at an apartment in Alief, a suburb in sprawling southwest Houston. A man in a 
black hoodie barged in, circled the room, and shot Hernandez 9 times in the 
back and head.

Hernandez was part of a local street gang called La Tercera Crips. He had 
angered his fellow members by snitching and throwing hand signs for a rival 
gang, several would later testify.

The only witness who saw the shooter's face was Wendy Bardales, the sister of 
Hernandez's girlfriend. She described the shooter as someone she had never seen 
before, a young Latino man about 5 feet 6 inches tall, skinny and clean-shaven. 
He had short black hair in a fade haircut and was wearing a black hoodie. And 
he had a dark mark on his cheek, she said. The night after the shooting, 
officers showed her a photo lineup, but she told them the shooter wasn't in it.

Over the next few days, Houston police received anonymous tips suggesting that 
Balderas, another member of the gang, was involved. The week after the murder, 
an officer went back to Wendy with a new lineup of 6 photos, which the Observer 
obtained through a Texas Public Information Act request. Wendy recognized 
Balderas - the 2 had lived in the same apartment complex and had known each 
other for about a year. She told the officer that Balderas "could be the 
shooter," and that he "looked like the shooter," even though on the night of 
the murder she had told police that the shooter was someone she had never seen 
before.

The officer returned to her house the next day, trying to pin her down on 
whether Balderas was the shooter, but she still didn't say she was sure. 
Finally, the officer told her to place her hands over the top of the face of 
each subject, in order to simulate the shooter's hoodie. When she did, the 
officer later testified, her eyes "grew wide" and "began to water." Wendy said 
she was positive that Balderas was the shooter.

"A witness's actual memory can be forever changed if suggestive procedures are 
used."

Experts who study witness identification procedures say it's a textbook example 
of an identification gone wrong. The 1st problem is the lineup itself. It 
includes only 1 person - Balderas - who matches the description Wendy gave 
police. None of the other 5 men are wearing a black hoodie or have any marks on 
their faces. They also don't match her description in other ways: Some are 
heavier, others not clean-shaven, others not wearing a fade haircut.

"Given the witness's description, this photo array is extremely suggestive and 
creates enormous potential for a wrongful conviction," said Sandra Guerra 
Thompson, a University of Houston law professor who studies witness 
identification. "The suspect should not stand out, and given that he is the 
only person with those distinctive features, this is highly suggestive." Large 
police departments typically have huge databases of booking photos, so it 
shouldn't be a problem to find "filler" photos that better match a witness's 
description.

The process is also an issue. Research over the past few years has made clear 
that even small, unintentionally leading statements by officers can make 
witnesses feel pressured to choose someone. Coaching, such as when the officer 
urged Wendy to cover parts of the faces, can do the same. Among other research, 
a 2013 study published in Applied Cognitive Psychology found that repeatedly 
showing a witness the same photo can lead to their memory being essentially 
overwritten, with the photo replacing the original recollection of the face. 
"Memory is not like a video that remains constant," Thompson said. "It is very 
malleable and very prone to suggestion; a witness's actual memory can be 
forever changed if suggestive procedures are used."

Once Wendy identified Balderas, he became the only suspect in the murder case. 
3 days later, on December 16, 2005, he was arrested carrying a box of guns that 
included the murder weapon. (Several gang members later testified that the box 
contained guns they shared.) More than 8 years passed before he went to trial 
in early 2014, a delay caused by the judge's overcrowded docket and repeated 
turnover among prosecutors and defense lawyers. At trial, Wendy told the jury 
that she was sure Balderas was the shooter. Balderas' court-appointed attorney 
called only 1 witness - another member of the gang, who said that a different 
gang member had committed the murder. Prosecutors presented no physical 
evidence connecting Balderas to the crime scene, such as fingerprints or DNA. 
After deliberating for 2 days, the jury convicted Balderas and sentenced him to 
death.

In November 2016, the Texas Court of Criminal Appeals, the highest criminal 
court in the state, dismissed Balderas' 1st appeal. But a majority of justices 
on the 9-person court said they were concerned with the use of the photo 
lineup.

"Until this Court disallows tainted identifications based on suggestive photo 
spreads, as occurred in this case, Texas will continue to be a leader in the 
wrongful convictions of innocent people," Judge Elsa Alcala wrote in a dissent. 
She said Balderas deserved a new trial. In a concurring opinion, 4 other judges 
concluded that the witness identification procedure was "suggestive, and 
perhaps impermissibly so," but said they would allow Balderas' conviction to 
stand because of the "totality of the circumstances."

The concerns about witness identification make Balderas' case hardly an 
outlier: Eyewitness misidentification is the leading cause of convictions that 
are later exonerated, according to a study by the Timothy Cole Advisory Panel 
on Wrongful Convictions, a state commission convened by the Legislature. The 
panel found that more than 1/3 of the 56 non-drug-related wrongful convictions 
in Texas since 2010 have come in cases with witness misidentifications. Timothy 
Cole, the wrongfully convicted defendant for whom the panel is named, was 
misidentified using a 6-person photo lineup just like the one used in the 
Balderas case.

There's a pretty clear way to avoid this. Recent research has concluded that 
all witness identifications should be conducted by a "blind" officer who does 
not know which person in a lineup is the suspect, that all identifications 
should be recorded, and that a witness should be informed that the suspect may 
not be in the lineup and that they aren't required to choose anyone. Some 
research also finds that lineups are more dependable when witnesses are shown 
one photo at a time, which prevents them from scanning multiple photos at once 
and choosing the person who seems the most similar to their memory, though that 
conclusion is disputed.

The Texas Legislature passed a law in 2011 that led to the adoption of a state 
model eyewitness policy that includes most of those reforms.

But police departments don't have to follow the model policy. The 2011 law only 
requires departments to have some written policy, whether it meets scientific 
standards or not. "There's no real teeth in it," said David Moore, the 
president-elect of the Texas Criminal Defense Lawyers Association. The law also 
isn't retroactive, so it doesn't do anything to help defendants like Balderas.

John Cannon, a spokesperson for the Houston Police Department, said the 
department's witness identification policy has changed since 2005 and now 
requires "blind" officers. He said he could not discuss Balderas' case because 
his conviction is still being appealed.

In December, the Cole panel released a new report recommending that all Texas 
police departments be required to follow the model policy. Rodney Ellis, who 
wrote the 2011 law as a state senator and is now a Harris County commissioner, 
told the Observer he supported that idea. "There is absolutely room for 
improvement," he said in an email, adding that the law was passed as a 
"compromise."

But even the new reforms proposed by the panel don't go far enough, argued Jeff 
Blackburn, founder of the Texas Innocence Project. His suggestion for the 
Legislature: Pass a simple law that prevents prosecutors from using any witness 
identification that modern research tells us is suggestive or biased.

The Balderas case "is a startling example of why people who believe we're 
making gradual progress in criminal justice reform are wrong," Blackburn said. 
"We need a direct, honest response to this problem, or it's never going to get 
solved."

Aside from the photo lineup, the judges who ruled against Balderas in his 
appeal found that there was more than enough evidence to convict him. They 
noted that he was arrested while in possession of the murder weapon and with a 
magazine clip in his pocket that fit that exact gun. A fellow gang member named 
Israel Diaz also told the jury that Balderas had confessed to him. Wendy's 
identification, the gun and Diaz's testimony added up to sufficient evidence 
for a death sentence, the judges found.

But new questions have also been raised about Diaz's testimony. In court, Diaz 
dramatically recounted meeting Balderas just hours after the murder took place, 
describing an almost biblical scene. "He just hugged everyone like sort of when 
you haven't seen nobody in a long time, like joyful, and he gave each 
individual a hug, and when he got towards me, he gave me a hug and kiss on the 
cheek," Diaz told the jury. "He said he got him, he finally got him."

Diaz has since recanted that testimony, according to an affidavit prepared by 
Balderas' defense investigator. The investigator said Diaz told him in a 2015 
interview that prosecutors pressured Diaz to implicate Balderas. When Diaz 
resisted, "the prosecutor stopped me there and told me that I needed to 'change 
that,'" Diaz is quoted as saying in the investigator's report. "I was told that 
I needed to say in court that Juan told me he killed Eduardo.

"The truth is that Juan never told me that."

On the 1st day of Balderas' trial, Diaz finalized a deal with prosecutors. In 
exchange for testifying, he had charges against him in a separate case reduced 
from capital murder to aggravated robbery. Diaz was sentenced to 20 years in 
prison and has now been released on parole, according to state records.

Investigators for Balderas also found 23 pages of handwritten notes from 
previous interviews with Diaz in prosecutors' files. They say these notes, 
taken by prosecutors during interviews in 2007 and 2008, were never released to 
Balderas' trial lawyers, which is required by law. According to the notes, Diaz 
originally told prosecutors that Balderas said "we took care of that," not that 
Balderas personally confessed to killing Hernandez.

In court filings, the state has defended Balderas' conviction and the witness 
identification procedure. "The witness got a good view of Balderas during the 
murder, she picked him out of the lineup right away, and she has never wavered 
in her identification," Clinton Morgan, an assistant district attorney for 
Harris County, said in a statement.

Balderas, who has served almost 2 years on death row at the Polunsky Unit in 
West Livingston, is now waiting on several appeals. In a letter to the 
Observer, he said he was hopeful about the results. "The photo lineup was 
extremely unfair and even more prejudicial was the process in which the tainted 
identification was obtained," he wrote. "Though at the moment I feel optimistic 
in reaching the light of justice, throughout the night I still feel frightened 
and distressed, aware of the looming death penalty after being wrongfully 
convicted."

(source: Texas Tribune)

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

A Mother Visits Her Son, Who's Condemned to Die in April ---- 'I can't touch 
him and comfort him.'


In 2008, Marilyn Shankle-Grant's son Paul Storey was sentenced to death. He and 
an accomplice had been convicted of shooting and killing 28 year-old Jonas 
Cherry while robbing the putt-putt golf course where Cherry worked in Hurst, 
Texas.

This is Shankle-Grant's account of the experience and the years since.

I was on vacation, in New York, when I found out my son had been arrested. I 
became numb. This is not happening, I thought. This is not true. There is not a 
day since where I don't think about the victim's mother, the devastation she 
must be feeling knowing she's lost her only son.

When I visited Paul in jail before the trial, he was very depressed. He said, 
"I don't want to live if I have to go to prison. I would rather die." I kept 
trying to keep him strong, telling him that miracles happen everyday.

I couldn't understand why Paul was sentenced to death. When you think of the 
death penalty, you think of serial killers. You don't think of a 
robbery-murder, like my son committed. For the first couple of years, I did 
nothing but cry. I remember our 1st visit at death row, a week after he'd 
arrived, he already looked a lot thinner. He seemed like he was starving 
himself. It broke my heart.

I decided I needed to see him as often as I possibly could. I took on extra 
hours at work just to get money to drive the 4 1/2 hours to the prison.

When I'd go to see him, the female prison guards would call me 'Mama,' and say, 
'Mama, he's been good this week.' They say he gives them the utmost respect. 
I've always taught him, no matter where you are, you keep your dignity, so I 
can't tell you how proud I am when the guards say nice things about him. He 
gets letters from pen-pals, and I think a lot of people assume Paul - a black 
man from a single mother in the inner-city - is not that educated. But he 
surprises them, and then they write me to say, 'Wow, he's such a good writer!" 
And that makes me proud, too.

Last year, I lost my job; I was going through so much emotionally that I 
couldn't work. Unemployment benefits were enough to pay the bills, but not to 
travel to see Paul. So I started baking cookies and selling them. I made a 
Facebook page for Marilyn's Old-Fashioned Tea Cakes. I went to car washes and 
beauty shops, anywhere they'd let me sell them.

Appeals take a long time, and we never talked about what might happen. Last 
fall, he got an execution date in April 2017. His younger brother and I went to 
see him. He told us, "You've got 5 minutes to cry, scream, yell, whatever you 
need to do. And then we're going to enjoy our visit."

We didn't talk about it again. We never talk about the execution, or the 
burial, or anything like that. I don't want him to give up hope. We're still 
holding on to our small piece of hope, so we don't reflect on what's coming. I 
have an enormous amount of faith in his lawyers, and I'm praying to God they 
find one thing in his case that gets a stay.

But the closer it gets, the more it weighs on me. I was always the life of the 
party, this fun-loving, outgoing person, but I've totally changed. I exclude 
myself from family and friends. I don't go anywhere.

I get asked all the time if I'm going to witness the execution. As a mother, 
how could I not? I cannot let my child die without me. It's unnatural for a kid 
to not outlive their parents. But this is not a long illness. It's not a sudden 
automobile accident. It's watching your healthy child be strapped to a gurney 
and pumped full of chemicals. And there's nothing you can do.

I try to live it in my head, I think, What will it be like? Am I going to 
survive it? I've had nightmares. I wake up screaming. I tell Paul all the time, 
"We're God-fearing people. God can do anything." But I worry that when he's on 
that gurney he'll look at me and ask, "Mom, did you lie to me?"

When I go to see him on death row, I can't touch him and comfort him. I've 
heard that after the execution, they'll send him to the funeral home. They 
allow you to come in while they're still warm. That will be the 1st time I've 
touched him in more than 10 years.

(source: themarshallproject.org)






PENNSYLVANIA:

Man who killed 3 Pittsburgh police officers gets stay of execution


Richard Poplawski on Thursday received 2 court-appointed attorneys and a stay 
of execution as he seeks to overturn his conviction for killing 3 Pittsburgh 
police officers in 2009.

Poplawski's execution date had been set for March 3.

It's common for death row inmates to file such court actions seeking a new 
trial, regardless of whether they're likely to succeed.

Attorneys Owen Seaman and Brian Sichko have until May 20 to file a new petition 
on Poplawski's behalf.

Poplawski had filed his own petition seeking new counsel, a stay of execution 
and, among other things, dismissal of all charges and protection from 
reprosecution.

Common Pleas President Judge Jeffrey A. Manning told Poplawski he has to decide 
whether he wants to continue representing himself or be appointed counsel.

"We're in a 'what-do-you-want-now' situation," Manning said.

Poplawski, now sporting mutton chops and collar-length hair, was clad in a 
state prison-issued black-and-white striped jumpsuit. His only words in the 
courtroom were to answer questions posed by Manning.

Seaman said that he and Sichko met with Poplawski for the 1st time Thursday.

"He seemed to be in relatively good spirits for someone who was slated to be 
executed in 2 1/2 weeks," he said.

Poplawski had asked for his petition to be incorporated into any future 
proceedings, but Manning noted that he is not entitled to hybrid representation 
- in which some filings would come from Poplawski and some from his attorneys.

"We've seen his petition," Seaman said. "We've read through it, and that's what 
we're going to be spending a lot of time on over the next couple months - going 
through all of the issues he's raised, trying to sort out what might be 
meritless, what might have some merit, and then we will make that decision 
along with (Poplawski) as to which of those issues we're really going to 
proceed on."

He said the stay of execution was logical.

"You can't be executed while there is pending action," Seaman said. "Because 
(Poplawski) filed this petition - it was validly filed by himself as a pro se 
litigant at that time - it really requires a stay."

He stressed that this latest go-round is not an appeal - Poplawski has already 
appealed his conviction and sentencing to the state Supreme Court. The 
Post-Conviction Relief Act, which applies in this case, looks mostly at any 
issues pertaining to ineffective counsel.

Seaman said it's another avenue to ask for a new trial.

In April 2009, Poplawski shot and killed Officers Eric G. Kelly, Stephen J. 
Mayhle and Paul J. Sciullo II outside the home he shared with his mother in 
Stanton Heights.

When Mayhle and Sciullo arrived at Poplawski's house in response to a 911 
domestic disturbance call from Poplawski's mother, Poplawski fired on the 
officers without warning.

Kelly rushed from a few blocks away to help the 2 fallen officers, but 
Poplawski shot and killed Kelly as well.

The city in 2011 condemned the house and razed it.

The state Supreme Court in December upheld Poplawski's conviction and death 
sentence, and his execution warrant was signed Jan. 17.

Poplawski's March 3 execution would likely not have come to pass.

Gov. Tom Wolf has imposed a de facto moratorium on the death penalty, using his 
power to postpone executions until a state task force completes a report on 
whether the death penalty is fair and effective.

(source: triblive.com)






FLORIDA:

Ft. Lauderdale Shooter Cleared As Mentally Competent To Stand Trial


Defense lawyers say the Alaska man accused of fatally shooting 5 people and 
wounding 6 at a major airport in Florida is mentally competent to stand trial.

Attorneys for 26-year-old Esteban Santiago told a federal judge on Thursday 
that he understands court proceedings and can assist in his defense.

Santiago is accused of flying from Anchorage to Florida on January 6th and 
opening fire at a baggage claim area of Fort Lauderdale-Hollywood International 
Airport.

He could face the death penalty if convicted.

Santiago told FBI agents after the shooting that he was under some form of 
government mind control.

Later, he said the shooting was inspired by the Islamic State extremist group.

Not long before the shooting, Santiago was briefly treated at an Alaska 
hospital after telling authorities he had been hearing voices.

(source: tvtv.com)

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

Amid death penalty reform debate, a call for fewer qualifying crimes


In October, the court struck down a reform package passed last year by the 
GOP-controlled legislature, ruling the package's provision allowing for 
supermajority votes by juries for death sentences was unconstitutional. Given 
the gravity of a death sentence, the court decided, only unanimous votes will 
do.

Under the legislation (HB 527/SB 280), unanimity would be required, satisfying 
the court's ruling and, Republicans hope, ending a series of legal setbacks 
that have effectively thrown dozens of death penalty cases into limbo for more 
than a year.

"For me, it's important that there's an orderly system of justice in place for 
families of victims," said Senate President Joe Negron (R-Stuart).

The legislation unanimously passed the House Criminal Justice Subcommittee this 
week, but not before a bipartisan chorus of critics testified in support of 
expanding the measure to shorten the list of crimes that qualify for death 
sentences. Those aggravating and mitigating factors, as they're known in legal 
parlance, have caused Florida's docket of capital cases to explode, prompting 
questions about their constitutionality.

"It will give us a constitutional death penalty process for now," Florida 
Public Defenders Association President Rex Demmig said of the House bill. "What 
it does not do is correct or address the myriad of other constitutional 
problems that have been raised over the course of years."

Another point of contention is how to handle the cases of hundreds of death row 
inmates sentenced under the now-unconstitutional scheme. In its ruling, the 
Florida Supreme Court ordered that some, but not all, of the inmates should 
receive new sentencing trials. Reformers are now advocating for a legislative 
mandate that any inmate sentenced with less than a unanimous jury 
recommendation should receive a new trial.

"In short, what the bill does is resolve the constitutional crisis de jour, 
while kicking the can, or in this case, perhaps, the barrel of other problems 
further down the road," Demmig said

(source: mynews13.com)






ALABAMA:

Court Finds Extraordinary Misconduct by Attorney for Alabama Death Row Prisoner


The Alabama Court of Criminal Appeals held on Friday that death row inmate John 
Ward's attorney's failure to file an appeal on time was egregious 
unprofessional conduct.

John Ward was convicted of capital murder and sentenced to death in 1998. In 
July 2002, his family hired a lawyer to file a petition in state court to 
challenge Mr. Ward's conviction and sentence. The petition was due on August 1, 
2003. The lawyer assured Mr. Ward that he would file the petition on time, but 
without telling Mr. Ward or his family, he decided not to file a petition in 
state court as he was hired to do.

Mr. Ward wrote dozens of letters and called his attorney multiple times about 
the status of his petition. When he couldn't reach his lawyer, he wrote to the 
court, which notified him that no petition had been filed. Mr. Ward asked the 
court for more time and a new lawyer to file his petition, but it was already 
too late.

In 2005, a different lawyer finally filed Mr. Ward's petition in state court, 
but it was dismissed because it was filed long after the deadline. On appeal, 
the Alabama Supreme Court acknowledged that a late filing can be excused if the 
attorney's actions are "far enough outside the range of behavior that 
reasonably could be expected by a client that they may be considered 
'extraordinary.'" The court ruled that Mr. Ward should have a chance to prove 
that the late filing was not his fault and should be excused because of his 
lawyer's unprofessional conduct.

On Friday, the Alabama Court of Criminal appeals agreed that his attorney's 
conduct was sufficiently egregious to excuse Mr. Ward's late filing. "Ward 
instructed his retained attorney to file a postconviction petition in the 
circuit court," the court explained. "Instead, the attorney disregarded his 
client's express wishes . . . thereby violating one of his basic obligations as 
an attorney - the obligation to defer to his client's wishes on major 
decisions." Further, the court found that "Ward did not sit on his rights but 
that he repeatedly sought help in both state court and federal court."

The failure to provide adequate counsel to capital defendants and death row 
prisoners is a defining feature of the American death penalty. There is no 
statewide public defender office to provide legal assistance to people on 
Alabama's death row, and the United States Supreme Court has detailed the 
deficiencies in the state's death penalty system.

(source: eji.org)

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

Inmate's lawyers argue last execution went 'horribly wrong'


Lawyers for a condemned Alabama inmate urged the state to hold off on his 
execution date, arguing that the state's last lethal injection went "horribly 
wrong."

The state is seeking an execution date for Robert Melson, who was convicted of 
killing 3 fast food employees during a 1995 robbery of a Popeye's restaurant in 
Gadsden.

In a filing with the Alabama Supreme Court, Melson's attorneys argued that the 
state's last execution went wrong after the inmate coughed for the first 13 
minutes of the procedure and appeared to move after a consciousness check.

"This Court should not set any execution dates until the question of the 
constitutionality of Alabama's method of execution is resolved, particularly 
after Ronald Smith's execution was badly botched," lawyers for Melson wrote.

During a lethal injection in December, inmate Ronald Bert Smith heaved and 
coughed repeatedly and briefly moved his hands after 2 consciousness checks. 
Lawyers for Smith say the movements showed he was never fully anesthetized 
during the procedure.

Corrections Commissioner Jeff Dunn said in December that there was no evidence 
that the execution went awry or that there was suffering.

Lawyers with the Alabama's attorney general's office, in asking for an 
execution date, argued last month that the federal courts have upheld Alabama's 
lethal injection process as constitutional. Dunn said in December that the 
state properly followed that protocol.

Alabama uses the sedative midazolam as the 1st drug in a 3-drug lethal 
injection combination. Inmates have argued in a court case that the drug was an 
unreliable sedative and could cause them to feel pain, citing its use in 
problematic executions.

Melson last year joined litigation challenging the state's lethal injection 
process as unconstitutional. The state argued that similar claims have already 
been rejected.

(source: The Republic)

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

The rare, bipartisan push to end judicial override in Alabama


There was a rare show of bipartisanship during Wednesday's House Judiciary 
Committee meeting, and even rarer step taken to end a long-outdated practice.

A bill that would bring an end to judicial override - the power that only 
Alabama now grants judges to overturn the decisions of juries and sentence a 
defendant to death - passed through the committee with bipartisan support.

The bill, sponsored by Rep. Chris England, D-Tuscaloosa, now goes to the floor 
for a vote.

"I think it just makes good common sense," England said. "I believe a large 
number of juries aren't giving the death penalty the proper weight and 
consideration because they know it will go to the judge who will have the 
ultimate say. This puts an end to that and I believe it will lead to a more 
thoughtful consideration."

England's bill also requires that juries be unanimous in deciding on the death 
penalty - a change from the current law, which requires at least 10 members of 
the 12-person jury.

An amendment that would have struck that language and kept the current law was 
also defeated by the committee.

"If it has to be unanimous to convict, it should be unanimous to sentence a 
person to die," England said.

The attempt to strike the unanimity language was the only real pushback 
England's bill received. Barry Matson, who heads the Office of Prosecution 
services, said district attorneys were more in favor of maintaining current law 
because of the reluctance of many people to impose death on another.

"I can do that, because I know I signed up for that," Matson said. "The judge 
signed up for that. The jurors got a summons in the mail. It's a tough thing 
for them."

England said it should be.

"The death penalty is our most severe punishment," he said. "It should be 
reserved for the worst of the worst."

The bill now moves to the full House for consideration. A similar bill in the 
Senate - which doesn't contain the unanimity language - was approved by 
committee last week and awaits a Senate vote.

(source: Alabama Political Reporter)






OHIO:

Trial set for April in fire that killed firefighters ---- Building owner could 
get death penalty

Lucas County's only pending death-penalty case is set to go to trial April 3, a 
judge confirmed Thursday.

Ray Abou-Arab, 63, of Oregon is accused of setting a fire more than 3 years ago 
that killed 2 Toledo firefighters. He could receive the death penalty if he is 
convicted in Lucas County Common Pleas Court of 2 counts of aggravated murder 
for the Jan. 26, 2014, deaths of Toledo fire Pvts. Stephen Machcinski, 42, and 
James Dickman, 31.

Mr. Abou-Arab also is charged with 2 counts of murder, 8 counts of aggravated 
arson, and 1 count of tampering with evidence for allegedly setting fire to a 
Magnolia Street building that he owned.

At a brief pretrial hearing, Judge Stacy Cook asked prosecutors and defense 
attorneys if they were ready for the trial, which could last 3 weeks or more, 
including a sentencing phase that would be held if Mr. Abou-Arab is found 
guilty. During that phase, the defense would offer mitigating evidence, or 
reasons why the defendant should not be sentenced to death.

"The state will be prepared April 3," Robert Miller, chief of the criminal 
division of the Lucas County Prosecutor's Office, replied.

Mr. Abou-Arab's attorney, Pete Rost, told the court the defense was "making 
every effort to be" ready.

Mr. Miller told the court he anticipated filing a motion seeking to have the 
jury taken to the crime scene to view.

Judge Cook approved a motion filed by the defense seeking an additional $5,000 
to pay its mitigation investigator. She did not act on a defense motion that 
asks the court to dismiss the death-penalty specifications.

In it, attorneys for Mr. Abou-Arab argue that the capital sentencing scheme in 
Ohio is unconstitutional "because it is the judge, not the jury, who determines 
that death is the sentence to be imposed. And the Constitution requires a jury 
to find any fact necessary to qualify a capital defendant for a death 
sentence."

In a lengthy response, prosecutors opposed the motion, saying Ohio judges may 
not impose a death sentence when a jury fails to find the defendant guilty of 
the capital specification or when the jury fails to find that the mitigating 
factors outweigh the aggravating circumstances.

"A more accurate statement is that it is the judge who may impose a death 
sentence based on the jury's findings," the response states.

(source: Toledo Blade)