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

[Rick Halperin]

Jan. 14




TEXAS:

Supreme Court to review Texas death penalty case----The U.S. Supreme Court said 
Friday it would review the legal complexities in a Texas death penalty case, 
where a man killed a 5-year-old and her grandmother.


The U.S. Supreme Court will review the death penalty case of a Fort Worth man 
who shot and killed a 5-year-old girl and her grandmother at a children's 
birthday party. The high court said Friday it would look into a legal 
distinction between ineffective lawyering in the trial court and during state 
appeals.

Erick Davila, 29, received the death penalty for the 2008 shooting deaths of 
Annette Stevenson, 47, and her 5-year-old granddaughter, Queshawn, according to 
Davila's brief filed to the U.S. Supreme Court. Davila, a gang member, drove up 
to a house where he knew a rival gang member, Jerry Stevenson, was and shot 
into the house and front porch. Instead of killing the man, Davila killed 
Stevenson's daughter and mother.

During his trial, defense attorneys said Davila didn't intend to kill multiple 
people, only Jerry Stevenson, which would make the case ineligible for a 
capital murder conviction and the death penalty. To be convicted of capital 
murder in this case, Davila must have knowingly and intentionally killed 
multiple people.

In his brief to the high court, Texas Attorney General Ken Paxton said Davila 
did intend to kill multiple people because he said after his arrest that he 
wanted to shoot "the guys on the porch and ... [was] trying to get the fat 
dude." Aside from Jerry Stevenson, only women and children were at the party, 
the brief said.

The trial jury seemed to hesitate on the intent issue, submitting a question to 
the court during deliberations asking: "Are you asking us did he intentionally 
murder the specific victims, or are you asking us did he intend to murder a 
person and in the process took the lives of 2 others."

The court sent legal definitions and included a charge that said Davila would 
be responsible for a crime if the only difference between what happened and 
what he wanted was that a different person was hurt, the brief said. The 
defense objected, saying it was an improper jury instruction, but the court 
overruled the objection. Within an hour, the jury came back with a capital 
murder conviction, later sentencing Davila to death.

The crux of Davila's current legal argument rests on this jury instruction and 
how his subsequent appellate lawyers dealt with it.

Davila's direct appeal began after his sentence, but his appellate lawyer 
didn't raise improper jury instruction as an issue - a mistake Davila's current 
lawyer says was "life-threatening."

"The judge gave a bad instruction. The lawyer on direct appeal did not raise 
it," said Seth Kretzer, Davila's federal appellate attorney. "Had she attacked 
it and won, he might have gotten a new trial, not death-eligible."

After his direct appeal, Davila's state habeas appeal, where one raises issues 
outside of the trial, didn't argue that his lawyer in the direct appeal was 
ineffective for not raising the jury issue - another mistake, Kretzer said.

Paxton said in Texas' brief that Davila's arguments are meritless, that a 
federal district court looked into the jury instruction in question and found 
no fault against it.

Death row inmates can also appeal their case in the federal courts system, but 
it is generally ruled that issues that could be raised at the state level - 
like the jury instruction - can't be reviewed at the federal level until they 
have gone through the state courts. One exception to this rule is if the state 
habeas lawyers failed to raise the issue of ineffective trial counsel.

Now, Kretzer is trying to argue that exception should also apply to state 
habeas lawyers who fail to raise the issue of ineffective appellate counsel as 
well. In that case, Davila could argue that because his state habeas lawyer 
didn't fault his direct appeals' lawyer for not bringing up the jury 
instruction, the federal courts can now hear it.

"The way the law works right now is if the trial counsel made a mistake, the 
federal court could save the inmate's life, but if the appellate counsel made 
the mistake, they would have to go ahead and execute," Kretzer said.

The Supreme Court has gotten involved because different federal appeals courts 
have ruled differently on the distinction between ineffective trial counsel and 
appellate counsel. In previous rulings, the 9th Circuit Court of Appeals has 
said that there is no distinction between the 2, but the 5th Circuit, which 
covers Texas, as well as the 6th, 7th, 8th and 10th circuit courts, all have 
ruled that the 2 shouldn't be treated the same, the state's brief said.

"If the Court was willing to address a potential circuit split, Davila's case 
is not an appropriate vehicle for doing so," Paxton wrote, re-emphasizing that 
the federal district court rejected the case based on both procedure and merit.

The Supreme Court will review the case soon, however, according to Kretzer. He 
said the court told him it wished to fast-track the merits review and hold oral 
arguments as soon as April.

(source: Texas Tribune)

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

Erick Daniel Davila was convicted in 2009 of killing Annette Stevenson and her 
5-year-old granddaughter, Queshawn Stevenson, at a 2008 birthday party in Fort 
Worth, Texas.


Davila, a member of the Bloods gang, opened fire on guests who were on the 
porch using a semiautomatic assault rifle.

He confessed to driving by and deciding to "shoot 'em up," saying he was 
"trying to get the fat dude," whose name he did not know. Multiple children and 
adults were shot, but only Stevenson and her granddaughter died from their 
injuries.

Prosecutors introduced aggravating evidence at Davila's punishment phase, 
claiming he tried to escape from jail and committed another murder just 2 days 
before the birthday party shooting.

Unconvinced by the defense's mitigation arguments, the jury returned a sentence 
of death. Davila's requests for a writ of habeas corpus were denied by the 
trial court and the Texas Court of Criminal Appeals.

He then sought federal habeas corpus relief, arguing that his trial, appellate 
and state habeas counsel were ineffective. The district court denied him habeas 
relief and the Fifth Circuit denied him a certificate of appealability last 
May.

Davila filed a petition for writ of certiorari with the Supreme Court in 
September, arguing that the jury was improperly instructed on intent for 
capital murder. His attorneys argued he only intended to shoot his rival, not 
the grandmother and the little girl.

He argued the trial judge gave misleading jury instructions for intent, and his 
appellate counsel did not raise the charge-error claim. He also says his state 
habeas counsel did not raise the issue of ineffective appellate counsel.

Davila claims in his certiorari petition that a circuit split exists over 
whether defaulted ineffective assistance of appellate counsel claims can be 
considered in federal habeas court, based on two prior Supreme Court rulings - 
Martinez v. Ryan and Trevino v. Thaler.

On Friday, the Supreme Court agreed to answer whether the rule established in 
those cases - that ineffective state habeas counsel can overcome the procedural 
default of an ineffective assistance of trial counsel claim - also applies to 
procedurally defaulted ineffective assistance of appellate counsel claims.

Per its custom, the high court did not comment on its decision to take up 
Davila's or McWilliams' cases.

(source: Courthouse News)






VIRGINIA----impending execution

Ricky Gray's final day looms; federal court denies stay of execution


The Fourth Circuit Court of Appeals late Friday afternoon denied an emergency 
appeal for a stay of execution for convicted killer Ricky Gray.

Earlier this week Judge Henry Hudson denied a request from Gray's attorneys to 
delay his execution. Gray's legal team argued the lethal injection that will be 
used to execute Gray amounted to cruel and unusual punishment.

Gray's execution is scheduled for January 18.

He is a central figure in one of the most horrific crime sprees the Richmond 
area has ever seen. Gray is on death row for the killings of Kathryn and Bryan 
Harvey and their 2 young daughters, Ruby, age 4, and Stella, age 9. On New 
Year's Day 2006, the Harveys were found bound, beaten, and stabbed inside the 
basement of their Woodland Heights home.

The home was also set on fire.

Gray was also involved, though not convicted, in the murders of Ashley 
Baskerville, 21; her mother, Mary Tucker, 47; and stepdad, Percyell Tucker, 55.

Several groups have petitioned Governor Terry McAuliffe for executive clemency 
for Gray.

A video released recently by Virginians for Alternatives to the Death Penalty 
shows Gray apologizing for the deaths of the Harvey family.

"It's never left my mind, because I understand exactly what I took from the 
world by looking at my 2 sisters. I'm reminded each time I talk and see them 
that this is what I took from the world. You know, the potential for greatness 
in those kids."

The 18-minute video also examines the impact of the severe childhood sexual 
abuse Gray suffered, and the group argued that the jury never heard testimony 
detailing the abuse, nor did they hear about the drug use that ensued from said 
abuse.

Gray's lawyers requested that Governor McAuliffe commute Gray's sentence to 
life in prison without parole - the same sentence the Commonwealth agreed to 
for Dandridge.

The ACLU also asked the governor for clemency.

In a letter to the governor, ACLU-VA Executive Director Claire Guthrie 
Gastanaga referred to the civil rights organization's blanket opposition to the 
death penalty, calling it "demonstrably ineffective and cruel and unusual 
punishment that should not be imposed in a just society, particularly where the 
penalty is applied arbitrarily and the procedure itself is inhumane." She 
suggested Gray's sentence be commuted to life in prison.

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

Ricky Gray apologizes for Harvey murders as groups urge clemency


"I've stolen something from the world," says death row killer Ricky Gray, at 
the start of a video created by attorneys seeking his clemency.

Earlier this week Judge Henry Hudson denied Gray's request to delay his 
execution. Gray's legal team argued the lethal injection used to execute Gray 
amounted to cruel and unusual punishment.

Gray's execution is scheduled for January 18, but it remains unclear if the 
execution will take place on that date. His legal team has 30 days to file an 
appeal after the recent court ruling by Judge Hudson.

Gray is a central figure in one of the most horrific crime sprees the Richmond 
area has ever seen. He is on death row for the killings of Kathryn and Bryan 
Harvey and their 2 young daughters, Ruby, age 4, and Stella, age 9. On New 
Year's Day 2006, the Harveys were found bound, beaten, and stabbed inside the 
basement of their Woodland Heights home.

The home was also set on fire.

Gray was also involved, though not convicted, in the murders of Ashley 
Baskerville, 21; her mother, Mary Tucker, 47; and stepdad, Percyell Tucker, 55.

The video, released by Virginians for Alternatives to the Death Penalty, shows 
Gray apologizing for the deaths of the Harvey family.

It's never left my mind, because I understand exactly what I took from the 
world by looking at my 2 sisters. I'm reminded each time I talk and see them 
that this is what I took from the world. You know, the potential for greatness 
in those kids.

The 18-minute video also examines the impact of the severe childhood sexual 
abuse Gray suffered.

In the video, Gray's family members and the experts who have met with him since 
his trial describe and explain the evidence that jurors who sentenced Gray to 
death did not hear. Gray became addicted to drugs as a child as a way to cope 
with the horrific sexual and physical abuse he suffered for years at the hands 
of his family members, they said. In addition, he was high on PCP and other 
drugs at the time of his crimes with Ray Dandridge, they said in the video.

Gray became addicted to drugs as a child as a way to cope with the horrific 
sexual and physical abuse he suffered for years at the hands of his family 
members, according to the video. In addition, he was high on PCP and other 
drugs at the time of his crimes with Ray Dandridge. Dandridge was convicted in 
the Tucker-Baskerville murders and is serving a life-prison sentence.

The video was provided to Governor Terry McAuliffe by Gray's lawyers, along 
with other materials, in support of a petition for executive clemency. Gray's 
lawyers requested that Governor McAuliffe

Gray's lawyers requested that Governor McAuliffe commute Gray's sentence to 
life in prison without parole - the same sentence the Commonwealth agreed to 
for Dandridge.

(source for both: WTVR news)

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


Urgent Action

MENTAL HEALTH EXPERTS SUPPORT CLEMENCY FOR VIRGINIA MAN FACING EXECUTION

Ricky Gray is scheduled to be executed in Virginia on 18 January. More than 50 
mental health professionals have written to the state governor in support of 
clemency in view of the prisoner's childhood of severe sexual and physical 
abuse and its impact on him.

Write a letter, send an email, call, fax or tweet:

* Calling for Ricky Gray to be granted clemency and for his death sentence to 
be commuted;

* Noting his childhood of physical and sexual abuse and his use of alcohol and 
drugs from an early age;

* Noting that dozens of mental health professionals have called for clemency 
for Ricky Gray;

* Explaining that you are not seeking to excuse violent crime or to downplay 
the suffering caused.

Contact below official by 18 January, 2017:

Important note: Please do not forward this Urgent Action email directly to 
these officials. Instead of forwarding this email that you have received, 
please open up a new email message in which to write your appeals to each 
official. This will help ensure that your emails are not rejected. Thank you 
for your deeply valued activism!

Governor Terry McAuliffe

Common Ground for Virginia

PO Box 1475

Richmond, VA 23218

USA

Fax: +1 804-371-6531
Email (via website):

https://governor.virginia.gov/constituent-services/communicating-with-the-governors-office/

Salutation: Dear Governor

(source: Amnesty International)






GEORGIA:

Catholic Bishops calling to remove death penalty in case of murdered priest


3 Catholic bishops from Florida and Georgia are asking the district attorney to 
reverse her decision to seek the death penalty in the case against Steven 
Murray, accused priest killer.

They are holding an 11 a.m. joint news conference on Tuesday, Jan. 31, outside 
the Richmond County Courthouse. That's when Bishop Felipe J. Estevez of the 
Diocese of St. Augustine, Archbishop Wilton D. Gregory of the Archdiocese of 
Atlanta and Bishop Gregory J. Hartmayer, OFM Conv. of the Diocese of Savannah, 
will ask Ashley Wright, district attorney for the Augusta Judicial Circuit to 
reverse her decision to seek the death penalty in the case against Steven 
Murray in the Superior Court of Burke County.

Steven Murray was indicted on May 25, 2016 by a Burke County Grand Jury for the 
April 11, 2016 killing of Father Rene Robert, a priest from St. Augustine, 
Florida.

District Attorney Wright filed a notice of intent to seek the death penalty 
citing four aggravating circumstances in the retired priest's murder including 
that it was committed during the commission of a kidnapping with bodily injury 
and that it was "outrageously or wantonly vile, horrible, or inhumane in that 
it involved torture, depravity of mind, or an aggravated battery to the 
victim."

On May 26, Bishop Estevez wrote to Wright explaining that Father Robert left a 
signed and notarized 4-page "Declaration of Life" declaring that should he die 
as a result of a violent crime, he does not want the person or persons found 
guilty of homicide for his killing to be subject to or put in jeopardy of the 
death penalty under any circumstances, no matter how heinous their crime or how 
much he may have suffered.

Bishop Estevez says he did not receive a reply to his letter from Wright.

In December, Bishop Estevez says he received signatures from nearly 7,000 
Catholics in his diocese asking that Father Rene's request in his "Declaration 
of Life" be honored by the Georgia courts.

The collected signatures will be taken to Wright following the news conference.

(source: WRDW news)






FLORIDA:

Accused killer moves to strike death penalty


A man accused of killing 3 people has asked a judge to strike the death penalty 
in his case.

Investigators say Derrick Thompson killed Steven and Debra Zachowski of Milton 
and then murdered Allen Johnson in Bay County all within a week.

He's been charged with 1st degree murder and faces the death penalty.

However, the state Supreme Court recently required the legislature to clarify 
the state's death penalty laws.

That could happen as soon as April.

However, the Supreme Court could ultimately decide the issue before then.

Even if a judge removes the death penalty from this case, Thompson is still 
eligible for life in prison.

(source: WEAR TV news)

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

Court stays trial of Kimberly Lucas in Jupiter tot's drowning


With myriad questions swirling around Florida's capital punishment law, the 4th 
District Court of Appeal has stayed the upcoming trial of Kimberly Lucas, who 
could be sentenced to death if convicted of drowning her former Jupiter 
partner's 2-year-old daughter and trying to kill her 10-year-old son.

The Florida Attorney General's Office asked the appeals court to delay the Jan. 
26 trial after Palm Beach County Circuit Judge Charles Burton said he would not 
ask the jury to impose the death penalty against Lucas as state prosecutors 
wanted.

But, Burton declined to take the death penalty off the table. If Lucas is 
convicted and the legal issues are resolved, he said he would summon another 
jury to decide if the 43-year-old Jupiter woman should die for the May 2014 
drowning of toddler Elliana Lucas-Jamason and alleged drugging of Ethan 
Lucas-Jamason.

In an appeal to the West Palm Beach-based appeals court, Assistant Attorney 
General Leslie Campbell said Burton overstepped his powers.

"Such a ruling was an improper interference with the State Attorney's 
discretion to try (Lucas's) case as a death penalty case," she wrote. 
"Additionally, the trial court departed from the essential requirements of the 
law by refusing to develop new jury instructions."

Noting that the Florida Supreme Court in October struck down a new state death 
penalty law as constitutional, Burton said he couldn't simply write a new one. 
Until a new law is passed, there is no way to sentence someone to death, he 
said.

However, state judges elsewhere have taken different views.

The state's high court is considering 2 cases in which judges have decided to 
fashion new ways to implement the death penalty. Florida's death penalty was 
struck down by the U.S. Supreme Court in January 2016 because juries were only 
asked to make recommendations. It was up to judges to decide if a person was 
sentenced to death.

The Legislature then passed a new law, requiring that 10 out of 12 jurors agree 
to impose death. The state Supreme Court rejected it, saying such decisions 
must be unanimous.

In staying Lucas' trial, the appeals court gave attorneys until next week to 
explain whether her trial should be delayed until the Florida Supreme Court 
decides the pending cases. It could rule that Lucas' trial should be held as 
planned.

Assistant State Attorney Terri Skiles said she is preparing for trial. On 
Friday, she got the go-ahead to hire Dr. Wade Myers, a psychiatrist who is a 
professor at Brown University, to evaluate Lucas. Her attorneys are planning an 
insanity defense.

(source; mypalmbeachpost.com)






ALABAMA:

Death-Row Inmate Granted High Court Review


The Supreme Court said Friday it will decide the fate of a death-row inmate 
whose case hinges on procedural questions about ineffective legal assistance 
and court-appointed psychiatric experts.

James Edmund McWilliams Jr. challenges his death sentence for robbing, raping 
and killing convenience store clerk Patricia Reynolds in Tuscaloosa, Ala., in 
1984.

Months before he murdered Reynolds, McWilliams attended couple's therapy with 
his pregnant wife and underwent psychological testing, which found that he is 
"extremely disturbed" and "has much internal anxiety."

While e doctors nevertheless concluded he was competent to stand trial, his 
defense counsel portrayed McWilliams during the penalty phase of his trial as 
someone who grew up with significant psychological problems. McWilliams and his 
mother testified that he sustained head injuries as a child and had a history 
of blacking out and hallucinating.

An expert appointed by the trial judge reported his findings simultaneously to 
the court, the prosecution and the defense 2 days before McWilliams' sentencing 
hearing.

The expert diagnosed McWilliams with organic personality syndrome, but defense 
counsel did not have a chance to discuss the findings with the expert or learn 
what the diagnosis meant for the purposes of mitigation.

In July, McWilliams petitioned the U.S. Supreme Court for a writ of certiorari, 
arguing he was "precluded from meaningfully participating in the judicial 
sentencing hearing and did not receive a fair opportunity to rebut the state's 
psychiatric experts."

"Defense counsel had no opportunity to consult with the expert or have him 
review voluminous medical and psychological records that were not made 
available to the defense until the start of the sentencing hearing," the 
petition states.

The Supreme Court agreed Friday to decide whether an expert helping an indigent 
defendant in his defense should be completely independent of the prosecution.

(source: Courthouse News)

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

Madison County DA's office seeking death penalty in 2 upcoming murder trials


The Madison County District Attorney's office will be seeking the death penalty 
in 2 cases that are set for trial in the next few months.

Stephen Marc Stone is set to go on trial March 6 on capital murder charges in 
the February 2013 killings of his wife, Krista Stone and their 7-year-old son, 
Zachary.

Richard Burgin has a May 1 trial date in the May 2013 stabbing deaths of 2 
elderly brothers, Terry and Louis Jackson. The 2 men were volunteering at a 
church food bank when they were fatally stabbed.

Tim Gann, chief trial attorney for the Madison County DA's office, said the 
state is seeking the death penalty for Stone because of the nature of the 
offense.

"It happened in their home, the basic facts were he came home late one morning, 
he and his wife Krista had words, and he strangled her in the living room," 
Gann said. "And then went into his son Zachary's bedroom, as he was sleeping, 
and strangled and then drowned him in the bathtub."

The couple had no history of domestic violence, Gann said.

"As a parent you can't imagine doing this to any child, much less your own. So 
we are ... we are definitely seeking the death penalty in this case," he said.

Stone is represented by court-appointed attorneys Brian Clark and Larry 
Marsili. Gann said he expects the defense to use an insanity defense - that 
Stone was suffering from a mental disease or defect that left him incapable of 
telling right from wrong at the time of the offense.

Marsili said the defense is still working on its trial strategy. Stone appeared 
disturbed at a hearing a year ago, rocking back and forth and paying little 
attention to the proceedings.

Burgin's trial had been set for September, but has since been moved back to May 
1.

Madison County Assistant DA Jay Town said the killing of the 2 brothers at West 
Huntsville United Methodist Church on May 21, 2013 meets the state's definition 
of "heinous, atrocious and cruel."

"It was operated by 2 brothers, Terry and Louis Jackson," Town said. "And Mr. 
Burgin is accused of coming into that church early, prior to the kitchen 
opening, and literally slaughtering these 2 brothers in a very heinous way.

Town said the manner of their deaths justifies seeking the death penalty for 
Burgin.

"They did so slowly and with fear of impending death," he said.

Unlike in the Stone case, where he admitted the killings to investigators, 
Burgin maintains his innocence.

Defense attorney Larry Marsili, who represents Burgin with co-counsel Chad 
Morgan, said the defense is straightforward.

"Mr. Burgin has been very clear from the beginning that he didn't commit the 
crime and that he denies that he had any involvement in it, and that's why 
we're going to forward on trial with this," Marsili said.

(source: WHNT news)






OHIO:

Death penalty sought in Lorain homicide


Prosecutors are seeking the death penalty for a Lorain man accused of killing 
Jimmie Holland Jr. during a burglary last year.

Elliott Kirkland, 27, had been facing aggravated murder, murder, aggravated 
robbery, aggravated burglary and other charges in the killing, but Lorain 
County Prosecutor Dennis Will said new information learned in the investigation 
led to the decision to take the case back to a grand jury and seek a death 
specification.

"We were able to identify him as the shooter," Will said.

Lorain police were called to Holland's Lexington Avenue apartment Aug. 29 by 
Jasmine Schafer, who told officers she had gone to the apartment to braid 
Holland's hair. She said when she arrived, she grabbed 2 cans of root beer out 
of the fridge before she found Holland's body.

She told police she tried to given Holland CPR before she fled the scene and 
called 911. Police have said the relationship between Holland and Schafer is 
unclear.

Police have said Schafer was initially cooperative, but said their 
investigation revealed she was lying about key parts of her story and was 
involved in stealing from Holland's ransacked apartment.

Police recovered several missing items, including electronics and 2 cans of A&W 
root beer, from the borrowed Jeep Liberty that Schafer and a second woman, 
Latrice Thomas, were driving that night.

When officers confronted Schafer, she blamed Kirkland and Mark Sanchez for the 
robbery. A witness reported seeing Kirkland, who told police he had been with 
his girlfriend the entire night, enter the apartment armed with a handgun.

Will said because the robbery was planned, it elevated the killing to the level 
where prosecutors could seek the death penalty.

Sanchez is facing similar charges to those Kirkland faces, although he doesn't 
have a potential death specification attached to his case.

Schafer is facing aggravated robbery, aggravated burglary and obstructing 
justice charges, while Thomas is charged with obstructing justice in the case.

(source: The Chronicle-Telegram)

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

Ohio officials seek drug that reverses lethal injection process----Executions 
have been on hold in Ohio since 2014; Death sentences decline sharply as public 
attitudes shift


Ohio's prisons agency is trying to obtain a drug that could reverse the lethal 
injection process if needed by stopping the effects of another drug previously 
used in problematic executions.

The request to use the drug would come if executioners weren't confident the 
first of three lethal drugs would render a prisoner unconscious, Gary Mohr, 
director of the Department of Rehabilitation and Correction, said in federal 
court testimony on Jan. 6.

Mohr said he would inform Republican Gov. John Kasich and ask for a reprieve at 
that point. "Governor, I am not confident that we, in fact, can achieve a 
successful execution. I want to reverse the effects of this," Mohr testified, 
describing the language he would use in such a circumstance.

Mohr said that Ohio planned to order the drug, flumazenil, but didn't currently 
have it.

(source: KRMG news)