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

[Rick Halperin]

Nov. 3




TEXAS:

Lawyers agree to DNA testing in Swearingen's death row case



After years of courtroom wrangling, lawyers from both sides are finally 
agreeing to move forward with DNA testing in the 1998 rape and murder of 
Montgomery College student Melissa Trotter.

The agreement, expected to be finalized in court papers in the coming weeks, 
comes just days after a judge called off the pending execution of death row 
inmate Larry Swearingen, who was convicted in the slaying nearly 2 decades ago 
and has since repeatedly professed his innocence.

"They're doing the right thing," defense attorney James Rytting said Sunday, 
pointing to another death row inmate's alleged plan to confess to the crime as 
evidence of the need for testing.

A lab would likely evaluate the rape kit, the ligature used to strangle 
Trotter, finger nail scrapings and hair.

"We're still working out the details, but I'm excited that Mr. Rytting has 
finally agreed to allow us to test this DNA," Montgomery County District 
Attorney Brett Ligon said Sunday. "I'm glad to be moving forward on this 
matter."

Years-long legal battles over DNA testing have become a hallmark of 
Swearingen's case, which even sparked changes to state laws regarding 
post-conviction DNA testing in 2015. Both sides have pushed for DNA testing at 
times, but always using different legal mechanisms and never in agreement.

At least twice, a trial court judge sided with Swearingen's testing requests - 
but each time the state slapped down the lower court's move, ruling that new 
DNA wouldn't be enough to counter the "mountain of evidence" pointing to 
Swearingen's guilt.

In 2013, prosecutors filed a failed bid for DNA testing, but the defense 
opposed.

Now, though, an alleged death row confession plot that could have seen another 
convicted killer confess to Trotter's death has sparked new interest in 
testing.

"Both sides now recognize that there's a need to test the evidence," Rytting 
said.

Swearingen and Trotter were seen in the college's library together on Dec. 8, 
1998 - the day of the teen's disappearance. Afterward, a biology teacher 
spotted Trotter leaving the school with a man.

Hair and fiber evidence later showed that she'd been in Swearingen's car and 
home the day she vanished.

The killer's wife testified that she came home that evening to find the place 
in disarray - and in the middle of it all were Trotter's lighter and 
cigarettes. Swearingen later filed a false burglary report, claiming his home 
had been broken into while he was out of town.

That afternoon, Swearingen placed a call routed through a cell tower near FM 
1097 in Willis - a spot he would have passed while heading from his house to 
the Sam Houston National Forest where Trotter's decomposing body was found 25 
days later.

Swearingen was convicted and sentenced to death in 2000, but on Friday a judge 
approved calling off his Nov. 16 death date - the fifth one scheduled in the 
case - as a result of a filing snafu.

Back in August,, the Montgomery County District Clerk sent notice of the 
November execution scheduling to the Office of the Attorney General's writ 
office instead of to the Office of Capital and Forensic Writs. Because the law 
requires notice to the OCFW - which defends death row convicts - to be mailed 
within 2 days of the setting of an execution, the date had to be called off. It 
has not been rescheduled.

Swearingen's attorneys first pointed out the problem in court papers on 
Wednesday, filing a motion to withdraw the execution in light of the mistake.

But aside from the clerical issues, Rytting also requested calling off the 
execution in order "to investigate newly discovered information suggesting that 
Anthony Shore - a convicted serial killer - has confessed to the murder of 
Melissa Trotter," according to court papers.

"Mr. Swearingen will seek to depose Mr. Shore in order to preserve his 
testimony regarding the nature of any confessions he made, to obtain a DNA 
sample, and to obtain all other relevant information including documents, 
recordings and any other evidence concerning Mr. Shore's connection to Ms. 
Trotter's murder."

Word of the alleged confession scheme emerged on the eve of Shore's scheduled 
execution on Oct. 18.

Hours before he was scheduled to die, Shore won a 90-day stay after prosecutors 
said the 4-time killer admitted to an abandoned plan to admit to Swearingen's 
crime.

Officials first found out about the possibility of a last-minute confession 
attempt back in July, when a death row cell search uncovered materials relating 
to Trotter's killing - including a hand-drawn map marking the supposed location 
of more evidence - stashed in Shore's cell.

The day before his scheduled execution, Shore told investigators he'd only 
considered confessing to get his friend off, and not because he'd actually 
committed the additional crime. The multiple murderer also agreed to answer 
questions about other cases, and a judge greenlit pushing back his first 
scheduled execution date. He is now slated to die by lethal injection on Jan. 
18.

(soruce: Houston Chronicle)

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

Executions under Greg Abbott, Jan. 21, 2015-present----26

Executions in Texas: Dec. 7, 1982----present-----544

Abbott#--------scheduled execution date-----name------------Tx. #

27---------Nov. 8------------------Ruben Cardenas---------545

28---------Dec. 14-----------------Juan Castillo----------546

29---------Jan. 30-----------------William Rayford--------547

30----------Feb. 1-----------------John Battaglia---------548

(sources: TDCJ & Rick Halperin)

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

Prosecutor asks for current medical standards in death penalty evaluations



The top prosecutor in Harris County is proposing a new way for Texas to 
determine if a death-sentenced inmate is intellectually disabled and therefore 
ineligible for execution: use the current clinical books.

When determining whether someone with a death sentence has a mental disability, 
Texas has long used outdated standards partially created by elected judges. Now 
that those standards have been ruled unconstitutional, one district attorney 
wants the state to use a markedly different measuring stick: current medical 
science.

Harris County District Attorney Kim Ogg sent a brief to the Texas Court of 
Criminal Appeals Wednesday afternoon in the case of Bobby Moore, a man 
convicted in the 1980 shooting death of a Houston supermarket clerk. Ogg now 
says Moore is intellectually disabled, but the questions surrounding the 
prisoner's mental capacity led to a March Supreme Court ruling that invalidated 
Texas' method of determining intellectual disability for death row inmates. 
Justice Ruth Bader Ginsburg wrote in the court's opinion that the state's test 
created an "unacceptable risk" of executing intellectually disabled people, a 
practice deemed unconstitutional.

But while the ruling tossed out Texas' old way of determining the disability, 
it didn't create a new one. Instead, cases of death-sentenced inmates who were 
deemed competent for execution under the old test were suddenly ripe for new 
litigation, and at least 2 men who had been on death row for decades had their 
sentences changed to life in prison - all while awaiting a final ruling on 
Moore's intellectual capacity.

Ogg asked for Moore's sentence to be reduced to life in prison, and her brief 
also asked Texas to create a new way of determining intellectual disability - 
one that sticks to the medical books.

'"Unacceptable risk' necessitates that the States should strictly adhere to the 
definitions of intellectual disability as contained within the most current 
versions of the clinical manuals," said the brief.

She implored Texas to conform to the standards set by the American Psychiatric 
Association, similar to how Louisiana and Mississippi determine intellectual 
disability. If the Texas court accepts Ogg's suggestion, death penalty experts 
say it will put Texas in line with the Supreme Court's ruling and will put 
fewer Texas death penalty cases in front of the high court in the future.

"You don't have the same systemic problems in states that are using medical 
definitions," said Robert Dunham, executive director of the Death Penalty 
Information Center, a national organization critical of current death penalty 
practices. "We see persistent problems in states [that] have adopted standards 
that are clearly inconsistent with the contemporary medical standards or have 
created procedures that make it virtually impossible to prove intellectual 
disability."

Dunham said in general that states have sought to conform to previous Supreme 
Court rulings, but others -0 Texas, Georgia, Missouri, Arkansas and Florida - 
have created hurdles for proving the disability. He said the best way for Texas 
to avoid future problems is to use existing medical standards.

The Texas Attorney General's Office, which represents the state in federal 
death penalty appeals, and several district attorneys in counties where 
intellectual disability cases are in play did not return phone calls Thursday.

In 2002, the Supreme Court ruled that executing people with intellectual 
disabilities is unconstitutional under the Eighth Amendment, but it left it up 
to the states to determine how to qualify the condition. The legal definition 
of intellectual disability doesn't have to fully match a medical definition, 
but it does have to be informed by the current medical frameworks, according to 
the court.

The Texas Court of Criminal Appeals created its own method 2 years later. Death 
penalty critic Judge Elsa Alcala wrote in a 2015 opinion that the test was only 
meant to be a temporary solution "in the absence of any legislative guidance." 
The method found inmates facing execution intellectually disabled if their IQ 
was 70 or below. If an IQ was above 70 but close enough to be within a margin 
of error (the state put Moore at 74), the court would look at how well the 
person functioned in daily life by referencing 1992 medical guidelines and a 
controversial set of questions called the "Briseno factors."

The factors included questioning if a neighbor or family member would consider 
the person disabled, the person's ability to lie and the planning involved in 
the murder. In its March ruling, the U.S. Supreme Court said the Briseno 
factors strayed too far from medical-based frameworks.

"The [Court of Criminal Appeals] overemphasized Moore's perceived adaptive 
strengths - living on the streets, mowing lawns, and playing pool for money - 
when the medical community focuses the adaptive-functioning inquiry on adaptive 
deficits,??? Ginsburg wrote.

Chief Justice John Roberts agreed with the incorrect usage of the Briseno 
factors but wrote in a dissenting opinion that the court's majority tossed the 
Texas court's ruling without considering societal standards.

"The Court instead crafts a constitutional holding based solely on what it 
deems to be medical consensus about intellectual disability," Roberts wrote. 
"But clinicians, not judges, should determine clinical standards; and judges, 
not clinicians, should determine the content of the Eighth Amendment."

It's unknown when the Texas court will make a decision in Moore's sentence or a 
new way to determine intellectual disability. In the meantime, the death 
penalty's intersection with intellectual disability is up in the air.

(source: The Texas Tribune)








FLORIDA----impending execution

FL Supreme Court Denies Stay of Wednesday's Execution



Pat Hannon's jury never heard any evidence of mitigation and his codefendant 
received a life sentence for the same crime.

The Florida Supreme Court has refused to grant a stay of execution for Patrick 
Hannon. Justice Barbara Pariente dissented on the (Nov. 1, 2017) denial of a 
stay: "In recommending between life and death in Hannon's case, the jury was 
denied access to 'voluminous evidence of mitigation.' Also Hannon's 
codefendant, who had personal motivation to commit the crime and first attacked 
the targeted victim, received a life sentence of which this Court was unaware 
when it affirmed Hannon's sentences on direct appeal. For all these reasons, I 
dissent from denying Hannon relief from his pending death warrant."

Governor Scott ordered the execution of Patrick Hannon for Wednesday, November 
8th at 6pm ET. Hannon was sentenced to death in 1991 for participating in the 
killing of Brandon Snider and Robert Carter. He has been on death row 26 years. 
Please Take Action!!!

Contact Gov. Rick Scott and urge him to halt the execution of Patrick Hannon 
and convene the Board of Executive Clemency to commute Hannon's sentence to 
Life in Prison With No Parole.

Governor Rick Scott

The Capitol

400 S. Monroe St.

Tallahassee, FL 32399

Phone: 850-488-7146 (Mon-Fri 8am-5pm)

Email: Rick.scott at eog.myflorida.com

When you call or write, please be sure to give your name and where you live. If 
you are not a Floridian, provide a connection (i.e., visit Florida, have 
friends/family there, want to move there someday, etc). The staffer answering 
phones will be very nice and courteous. They won't question or challenge you. 
They simply record the issues that people are calling for and make a tally to 
give to the Governor.

Your voice needs to be heard. When contacting the Governor's office you can use 
the sample script below:

"I'm calling to urge Governor Scott to halt the execution of Patrick Hannon. 
His jury never heard any evidence of mitigation and his codefendant received a 
life sentence for the same crime."

(source: Floridians for Alternatives to the Death Penalty)

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

Luis Toledo declines to testify in death-penalty case



Luis Toledo shook his head and said, "No sir," when the judge asked him on 
Thursday if he wanted to testify before the jury which will recommend whether 
he be sentenced to death.

Toledo, sitting between his attorneys, said he was not aware he would have the 
chance to testify but declined it anyway.

When Circuit Judge Raul Zambrano asked if he wanted to talk to his attorneys 
about testifying, Toledo again said, "No sir."

Zambrano then gave Toledo the option to return to jail in time for a hot meal 
or remain for the conference in which attorneys and the judge work on 
instructions for the jury.

Toledo opted for the hot meal, saying he trusted his attorneys.

Toledo, 35, was convicted last Friday of 2nd-degree murder for killing his wife 
Yessenia Suarez, 28. He faces up to life on that charge. Toledo was also 
convicted of 1st-degree murder in the deaths of her children Thalia Otto, 9, 
and Michael Elijah Otto, 8.

Toledo killed his wife after being enraged when he discovered she was having an 
affair. Then he killed the children to eliminate them as witnesses, prosecutors 
Ryan Will and Mark Johnson said.

The family vanished Oct. 23, 2013, and their bodies have not been found.

The same jury that convicted Toledo must next decide whether to recommend that 
Toledo be sentenced to death. That recommendation must be unanimous for the 
judge to have the option to sentence him to death. If just one juror recommends 
life, then the judge must sentence Toledo to life without parole.

Toledo had already declined to testify during the first portion of the trial 
before the jury found him guilty.

Toledo had even said on Friday that he did not want to allow his attorneys to 
argue against him receiving the death penalty.

"But when I confronted you with the fact that I may appoint an independent 
counsel to do that, then you decided to allow your lawyers to do it for you," 
Zambrano said on Thursday when he referenced the issue while talking to Toledo 
about whether he wanted to testify.

Toledo's day in court on Thursday began with a different talk from the judge: a 
warning.

Zambrano told Toledo to stop making hand gestures, which the judge said were a 
distraction and a security violation. A camera caught Toledo on Thursday making 
the hand gestures. The video showed Toledo bringing his hand close to his face 
and apparently signaling what appeared to be numbers with his fingers.

"I'm going to warn you not to do that again," Zambrano said.

It's unknown what the gestures meant. Toledo was once a top ranking member of 
the Latin Kings gang in Florida. That's a fact that the judge ruled could not 
be told to the jury because it was too prejudicial.

After the warning from the judge, the jury was brought in to continue hearing 
evidence in the penalty phase against Toledo.

Toledo's defense attorneys, Michael Nielsen, Jeff Deen and Michael Nappi, are 
trying to convince at least one juror to recommend life by saying that Toledo 
has an abnormal brain and has suffered traumatic brain injuries and seizures 
since a young child.

Nielsen called psychologists who testified about Toledo losing his father to 
ALS and his mother also dying when he was young. Toledo also spent seven months 
in a psychiatric hospital when he was 9, according to testimony.

Nielsen called Dr. Joseph Wu to testify about PET scan images of Toledo's 
brain. Wu said the scans found a decrease of frontal lobe metabolism which is 
consistent with a traumatic brain injury. Wu said a damaged frontal lobe would 
make it difficult for Toledo to control impulsive and violent behavior.

Toledo also suffered seizures from when he was a child, according to testimony. 
Wu said several times during his testimony that the stress from learning your 
wife was having an affair could trigger a seizure. That in turn could make it 
difficult for Toledo to control his behavior, Wu said.

During cross examination, prosecutor Johnson asked Wu whether he could tell 
just by the PET scan alone that Toledo had suffered a traumatic brain injury. 
Wu said no but that was his opinion based on other evidence, such as medical 
records, including a time when Toledo was hit by a ball in the eye when he was 
a child.

Johnson said the doctors at the time of those other incidences did not find a 
brain injury.

Wu said that traumatic brain injuries are often missed in emergency rooms.

Johnson asked Wu if he asked Toledo about what was going through his mind the 
night of the murders. Wu said no. Wu said his job was to perform the PET scan. 
Johnson asked if it wouldn't have been best to ask Toledo. Wu said it was not 
essential.

Nielsen then came back up and asked Wu whether the defense had asked him to 
interview Toledo. Wu said no. Wu said he usually he does not interview people 
in such cases.

The penalty phase resumes at 11:30 a.m. Friday with closing arguments after 
which jurors will begin deliberations on whether to recommend death.

Johnson later called Larry Holder, a psychiatric expert for the state, who 
testified that he did not see any signs of brain abnormality in Toledo's PET 
scans.

The defense finished the day by calling Toledo's cousin, Madeline Gonzalez, who 
identified Toledo in a family picture when he was 8-years-old.

But Toledo said he did not want the picture viewed by the jury. Zambrano asked 
him if that was his decision.

"Correct," Toledo said.

Gonzalez also said she still cared for Toledo and would continue to support 
him.

So the picture will not be shown to jurors who will return to hear closing 
arguments at the Richard O. Watson Judicial Center.

(source: Orlando Sentinel)

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

Will history repeat itself when it comes to the death penalty in Florida?



Florida requires unanimous juries in death cases, and judges can no longer 
change sentences voted up by juries.

But, Florida is on a path to continue executing people who had less than 
unanimous jury verdicts because of when they were sentenced.

In 2002, in a historic decision known as "Ring," the U.S. Supreme Court said 
juries, not judges, must impose death sentences.

Over the next 14 years, Florida executed 40 men and women, all sentenced by 
judges. All of them argued their sentences were illegal.

Then, in 2016, the nation's high court ruled Florida got it wrong.

"The Florida Supreme Court did not apply Ring after it was issued by the U.S. 
Supreme Court," said Mark Schlakman, a human rights attorney. "The U.S. court 
said, in effect, Ring does apply."

Now, history may repeat itself. More than 170 death row inmates, all sentenced 
before 2002 and most by non-unanimous juries, still face death.

But, those convicted after Ring can't be executed without a new, unanimous 
sentencing hearing.

The practice, known as "partial retroactivity," was challenged at the highest 
levels in the 2 most recent executions with no relief.

Both Mark Assay, who was executed in August, and Michael Lambrix, who was 
executed earlier this month, argued they weren't being treated fairly.

"These legal distinctions, while accepted and appropriate, are far from a 
fundamental fairness perspective," Schlakman explained.

Partial retroactivity won't be an issue for Patrick Hannon. The state is 
preparing for another execution; he's set to die on November 6.

In 1991, his Tampa jury found his crimes so heinous, it recommended death 
twice, both by unanimous verdicts.

The Florida Supreme Court began recommending a unanimous jury verdict to state 
lawmakers in 2005.

The legislature failed to heed their warning until after the U.S. Supreme Court 
declared the sentencing scheme unconstitutional early last year.

(source: Capitol News Service)








MISSISSIPPI:

State high court upholds Curtis Giovanni Flowers' last conviction and death 
sentence



The Mississippi Supreme Court in a 5-4 decision has once again upheld the 
conviction and death sentence of Curtis Giovanni Flowers in his 6th trial 
involving the 1996 killing of Winona furniture store owner Bertha Tardy and 3 
of her employees.

The court's decision comes after being ordered last year by the U.S. Supreme 
Court to take another look at Flowers' claim that African-American jurors were 
excluded from his last trial in 2010 for racial reasons.

"We have thoroughly reviewed the briefs, arguments, record, and trial 
transcript, and we have determined that each issue raised by Flowers is without 
merit," Justice Josiah Coleman wrote in the majority opinion. "Therefore, as 
there are no individual errors, there is no cumulative error. Each issue raised 
by Flowers is without merit. Flowers' 4 convictions for capital murder and 
sentences to death were properly decided by the jury, and we affirm."

In addition to Coleman, Justices Dawn Beam, Mike Randolph, James Maxwell and 
Robert Chamberlin voted to affirm Flowers' convection.

Chief Justice William Waller Jr., Leslie King, Jim Kitchens and David Ishee 
opposed upholding Flowers' conviction and death sentence.

"I find plain error in the prosecution's mischaracterizations, particularly 
given our admonishments in Flowers II," Waller said of misstatements to the 
jury. "Therefore, I would reverse the judgment in this case and remand for a 
new trial."

King wrote in a separate dissenting opinion that he couldn't say Flowers 
received a fair trial.

"The State presented insufficient evidence to meet its burden," King wrote. 
"The most that may be said in this case is that the jury could speculate that 
Flowers committed one of the murders to avoid arrest. There was no evidence 
that he did. In fact, the State argued in the guilt phase that Flowers 
committed the murders for different purposes: revenge and anger over being 
fired as well as to effectuate the robbery. From its opening statement, the 
state's theory of the case was that Flowers possessed a motive to commit the 
murders because he had been fired by Tardy's. This motive - a revenge killing - 
is at odds with a conclusion that he killed out of a necessity to avoid arrest. 
No evidence was presented that Flowers expressed an intent to kill to avoid 
arrest."

In May of last year, the Mississippi Supreme Court, in a unanimous decision, 
refused Flowers' motion to force District Attorney Doug Evans to turn over law 
enforcement and prosecution files in his case as well as Evans' notes, jury 
strike sheets and other documents relating to jury selection in Flowers' 6th 
trial.

After Flowers' conviction in 2010, Circuit Judge Joseph Loper Jr. issued a 
42-page opinion denying Flowers' motion to throw out the jury verdict, or, as 
an alternative grant him a new trial. The state Supreme Court affirmed Flowers' 
conviction. However, Flowers filed a new post-conviction appeal, citing 
prosecutoral misconduct.

Flowers' attorney, David Voisin, said normally there is presumption that the 
prosecution has fully disclosed all information.

"Ordinarily, we presume that public officials have properly discharged their 
duties. However, this is no ordinary case," Voisin said in the motions. 
"Instead, the lengthy and tortured history of this case includes an extensive 
history of prosecutorial misconduct, to be detailed in petitioner's forthcoming 
petition for post-conviction relief."

The state Supreme Court reversed Flowers' conviction 3 previous times.

Flowers, 47, was first convicted in 1997 for killing Bertha Tardy and then in 
1999 for killing Derrick Stewart. He received the death penalty in both trials, 
but the state Supreme Court reversed the convictions on appeal.

In 2004, Flowers was tried when all 4 killings were consolidated into 1 trial, 
and he again received the death penalty. The Supreme Court reversed that 
decision as well.

(source: Clarion Ledger)








OHIO:

Halt Execution of Alva Cambell (USA: UA 247.17)



Urgent Action

OHIO TO EXECUTE 69-YEAR-OLD 'STATE-RAISED' MAN

Alva Campbell, aged 69, is due to be executed in Ohio on 15 November. The 
governor can commute the death sentence despite a parole board vote against 
clemency.

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

* Calling on the Governor to stop Alva Campbell's execution and commute his 
death sentence.

Friendly reminder: If you send an email, please create your own instead of 
forwarding this one!

Contact below official by 15 November, 2017:

Governor John Kasich

Riffe Center, 30th Floor

77 South High Street

Columbus, OH 43215-6117, USA

Fax: +1 614 466 9354

Email (via website): 
http://www.governor.ohio.gov/Contact/ContacttheGovernor.aspx

Twitter: @JohnKasich

Salutation: Dear Governor

(source: Amnesty International USA)