[Deathpenalty] death penalty news----COLO., NEV., ARIZ., USA

[Rick Halperin]

Nov. 7




COLORADO:

Accused Colorado Walmart shooter Scott Ostrem to be formally charged Monday



The man accused of shooting and killing 3 people at a Thornton Walmart last 
week is expected to be formally charged in the case Monday afternoon.

Scott Allen Ostrem, 47, is expected to have formal charges filed against him at 
a 1:30 p.m. court appearance in Adams County. You can watch the hearing live in 
the player embedded below, or by clicking here.

His arrest warrant carried three first-degree murder after deliberation 
charges, but District Attorney Dave Young said Friday that Ostrem would likely 
see "multiple counts" in the case, possibly including attempted murder.

"When you fire into a crowd of people you don't necessarily need to fire more 
than one shot to be convicted or charged with attempted murder," Young said 
Friday.

Should Ostrem face either 1st-degree murder or felony murder charges and be 
convicted, he could possibly face the death penalty.

Colorado hasn't executed anyone since 1997, though 3 inmates remain on death 
row. Gov. John Hickenlooper has pledged to not execute anyone while he's in 
office, but the state will elect a new governor next November.

Class 1 felony convictions are also punishable by life in prison without the 
possibility of parole.

Should Ostrem face and be convicted of a class 1 felony, like 1st-degree 
murder, a separate sentencing hearing would be held to determine if prosecutors 
would seek the death penalty or not.

Also, if a person is found to be mentally incompetent to be executed, the state 
is barred from executing them in accordance with state law. A law enforcement 
source told Denver7 last week Ostrem's mental health history was being 
evaluated.

Young would not comment Friday on whether he would seek the death penalty for 
Ostrem.

The filing of formal charges against Ostrem could also unveil more details 
about the shooting, which officials have yet to say much about. Thornton police 
are leading the investigation, but the FBI is also involved. Neither had 
determined a motive in the shooting as of Friday, and the affidavit in the case 
has been under seal.

Police arrested Ostrem near 72nd Ave. and Federal Thursday morning more than 12 
hours after the shooting occurred. An anonymous citizen tip alerted authorities 
to his presence in the area, police said, though FBI agents also spotted him in 
the area. Ostrem was arrested just a few blocks from his apartment.

The coroner for Adams and Broomfield counties on Thursday identified the 3 
killed in the shooting as 52-year-old Pamela Marques of Denver, 66-year-old 
Carlos Moreno of Thornton, and 26-year-old Victor Vasquez of Denver.

Ostrem had a history of run-ins with the police - most recently a driving while 
ability impaired conviction in Wheat Ridge in 2014. Neighbors said he was 
"weird" and kept to himself. Another neighbor told Denver7 Ostrem came off as 
rude and unapproachable.

"He was on the edge, not friendly, wouldn't talk to anybody," said neighbor 
Teresa Muniz. "You didn't dare talk to him, because he always looked mad."

Ostrem walked off his roofing job Wednesday morning in Frederick, the company 
confirmed, but was otherwise a "good worker," fellow employees said. He also 
had several failed businesses, and declared bankruptcy in September 2015. He 
was held without bond over the weekend pending the filing of the formal 
charges. Denver7 is expecting to stream is court appearance live on this page 
and on Facebook.

(source: thedenverchannel.com)








NEVADA----impending volunteer execution

Arguments continue over drugs set to be used in execution of Scott Dozier



In just 7 days, the state of Nevada is set to execute a convicted killer.

Scott Dozier has said repeatedly he is ready to die, but defense attorneys want 
to make sure he doesn't suffer.

On Monday, both sides were back in court, still arguing over how the execution 
will happen.

One point of contention for the defense is that the acting Chief Medical 
Officer for the state is a psychiatrist, not an anesthesiologist.

The doctor who will actually oversee the execution isn't either; he's in family 
practice.

The issue for the judge is making sure Dozier's death is not cruel and unusual 
punishment.

"I think the one thing we can agree on is that no one wants a botched 
execution," said David Anthony, Assistant Federal Public Defender.

Anthony says there's no shame in hitting the pause button, as he looks out for 
the interests of Dozier.

The convicted killer has stated in the past that he's ready to die.

The state is ready to move forward Nov. 14, administering a never-before-used 
3-drug cocktail.

After hearing from an anesthesiologist on Friday, the defense worries that 1 of 
those drugs, a paralytic, would amount to suffocating Dozier.

"There's nothing wrong with the protocol as it stands now if it's done right. 
If the dosing is done right, if the administration is done right, and if 
somebody who is experienced in depth of anesthesia, he will not suffer," said 
Judge Jennifer Togliatti.

Still, Anthony points to another execution from 2014 out of Arizona.

The lethal injection death of Joseph Wood took more than 2 hours. Some 
witnesses described Wood as gasping for air -- something Dozier's team is 
trying to avoid.

"After the botch we're talking about in the Wood case, that brought executions 
in Arizona to a standstill, they would rather not execute a person than use a 
paralytic," said Anthony.

But according to the state of Nevada, the decision to stop next week's 
execution sits with one person, the defendant himself.

"If Mr. Dozier decides he doesn't want to go forward, then Mr. Dozier can say 
that. If Mr. Dozier wants a stay, Mr. Dozier can say that," said Jordan Smith, 
Assistant Solicitor General.

On Wednesday, the judge will hear from Dozier 1 more time, appearing via video 
conference from prison.

Togliatti wants to make sure he understands exactly what is being discussed 
when it comes to the drugs and prison protocol for his execution.

(source: NBC News)

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

Against a 'Cruel and Unusual' Death----Nevada must not allow a death-row inmate 
to 'volunteer' for execution by fentanyl and other drugs.



Last Thursday, the ACLU launched a petition drive aimed at convincing Nevada's 
governor to stop the execution of Scott Dozier. A convicted murderer, Dozier 
has ended all of his legal appeals and asked that his capital sentence be 
carried out without further delay. He is scheduled to be put to death on Nov. 
14.

If Dozier gets his wish, he would be the 1st in Nevada since 2006 and the 22nd 
execution in the United States this year. He also would be the 142nd 
"volunteer" to be executed since the United States resumed executing people in 
1976.

Nevada intends to kill Dozier using a previously untested lethal injection 
protocol, including the controversial drug fentanyl, which has played a large 
role in America's opioid epidemic.

But Dozier's execution raises serious questions about whether death-row inmates 
should be allowed to waive their legal rights and volunteer to die, especially 
when the methods used to kill them risk violating the Eighth Amendment's 
prohibition of cruel and unusual punishment.

Dozier is by no means a sympathetic character. Having previously been convicted 
of second degree murder in Arizona, he was found guilty and sentenced a decade 
ago for a gruesome murder. Dozier robbed and killed 22-year-old Jeremiah Miller 
in a Las Vegas motel. He cut his corpse into pieces, and Miller's head, arms 
and legs have never been found.

On Oct. 31, 2016, Dozier wrote to District Judge Jennifer Togliatti, informing 
her that he wished to waive all remaining appeals and be put to death as 
expeditiously as possible. He told friends and family that "he is tired of life 
[and that] he envisions his path to the execution chamber." He told a lawyer, 
"Perhaps there's some fundamental differences in our philosophies of life. And 
I think I recognize this causes you cognitive dissonance because it's just 
never going to make sense. But I think you find life has a deeper inherent 
value than I believe, especially in mine."

While controversial, courts have consistently upheld the right of death-row 
inmates to forgo their appeals, so long as they are "competent" to make that 
decision. As the Supreme Court put it in a 1966 decision, judges hearing such 
requests need to assess whether a death-row inmate "has [the] capacity to 
appreciate his position and make a rational choice with respect to continuing 
or abandoning further litigation."

But can decisions when made on death row ever be "competent" and "rational"? 
Conditions there are dreadful, by any standard, enough to make us question 
whether inmates can feel free in any sense to make life and death decisions. 
And almost 90 percent of those who have waived their appeals in death cases 
suffered from some form of mental illness at the time they made their 
decisions.

In Dozier's case, there is a further complication beyond his request to be 
executed promptly. The method Nevada intends to use for his execution raises 
serious questions. While Dozier has said that if it were up to him he would 
like to die by firing squad, he acknowledges that the decision is not his.

Nevada, having failed in its efforts to obtain other drugs more commonly used 
in American executions, will use a new and untested lethal injection protocol. 
That protocol involves the sedative diazepam (better known as Valium), the 
muscle relaxant and paralytic cisatracurium and the opioid fentanyl.

As one commentator recently observed, "You got something that's killing 
hundreds of people a day across the United States. And you got prisons who 
can't get death penalty drugs, so they're turning to the drug that's killing 
hundreds of people across the United States. This sounds like an article from 
the Onion."

In addition, both the combination and sequence of drugs seem odd, since 
fentanyl and diazepam each cause unconsciousness. If taken in large enough 
doses, either can bring about death.

When other drugs, like midazolam, have been used in executions, there have been 
dosing problems, and one wonders whether the state wishes to administer two 
such drugs as if to circumvent those risks.

And, if the other drugs don't work, cisatracurium will prevent Dozier from 
registering pain, even as he experiences the feeling of being unable to breathe 
and suffocating to death.

We have no idea how this drug cocktail will affect Dozier, but there is little 
reason to have faith in its effectiveness. Lethal injection, even when it used 
a standard drug protocol for decades, was America's most unreliable method of 
execution.

Because Nevada's protocol is at best "experimental," wrote a former county 
prosecutor, "the risk of a botched execution is real."

The late Supreme Court Justice Thurgood Marshall once said that "the Eighth 
Amendment not only protects the right of individuals not to be victims of cruel 
and unusual punishment, but ... also expresses a fundamental interest of 
society in ensuring that state authority is not used to administer barbaric 
punishments."

Nevada's plan to execute Scott Dozier threatens to violate the Eighth 
Amendment. For that reason, the decision to die should not be left to him.

Nevada's governor needs to act to protect the "fundamental interest" that 
Marshall described. The governor can do so by stopping his state from 
proceeding with what can only be deemed a cruel form of human experimentation.

(source: Op-Ed; Austin Sarat is associate dean of the faculty and William 
Nelson Cromwell Professor of Jurisprudence & Political Science at Amherst 
College----US News & World Report)

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

Prisoner wants to die, but debate rages in Nevada over whether to use a new 
lethal drug



Defense attorney David Anthony faced a dilemma Monday as he argued that his 
client shouldn???t be put to death with a new, untested lethal injection 
cocktail: As long as his client professes an unequivocal desire to die, saving 
him might prove difficult, if not impossible.

And time is running short, with Scott Dozier facing execution on Nov. 14

Anthony can't ask for a stay of execution if Dozier doesn't want it - and 
Dozier has said he doesn't want one.

"These issues pose a moral dilemma," the lawyer said outside a Las Vegas 
courtroom where he argued for a delay of the execution.

Anthony said there also remain concerns about the use of a paralytic drug 
during the lethal injection. Testimony by an expert on Friday suggested it 
could lead to pain and suffering for Dozier. And Anthony argued that it was 
especially risky since it would be administered by out-of-practice prison 
personnel, under a new chief medical officer.

Dr. John DiMuro, an anesthesiologist who stepped down from his post as Nevada's 
chief medical officer about a week ago, was replaced by a psychiatrist, 
according to Assistant Solicitor General Jordan Smith.

That change had led to uncertainty in a state that doesn???t carry out 
executions with regularity. The last execution in Nevada was in 2006. Anthony 
argued that a psychiatrist simply didn't have the same experience for 
overseeing the protocols for drug-based executions.

Smith argued there would be an attending physician who oversaw Dozier's 
execution and that there would be trained medical personnel present as well.

The paralytic drug cisatracurium is at the center of the controversy. According 
to the American Civil Liberties Union of Nevada, the state would be the 1st to 
use the paralytic during an execution in combination with fentanyl and 
diazepam. There are fears cisatracurium would simply act as a mask - paralyzing 
Dozier while his body was in pain and he experienced "air hunger" - the 
phenomenon of not being able to breathe.

"It's not a shame for anyone here if we need to push the pause button," Anthony 
said. "If it's the right thing to do, it's the right thing to do."

The 46-year-old death row inmate was convicted in 2007 of murdering and 
dismembering 22-year-old Jeremiah Miller 5 years prior at a Las Vegas motel. He 
also was convicted in Arizona 12 years ago for the murder of 26-year-old Jasen 
Green.

A little more than a year ago, Dozier asked to waive his appeals and sought to 
be put to death as soon as possible. Clark County District Court Judge Jennifer 
Togliatti signed his death warrant, but said she wanted to proceed with "an 
abundance of caution."

Anthony brought in Dr. David Waisel, a Boston-based anesthesiologist, on Friday 
to testify that Nevada's desire to use a paralytic drug could mask any pain and 
suffering by Dozier as his body is injected with fatal doses of fentanyl and 
diazepam.

But Waisel also was critical of the state's lack of practice in administering 
the toxic cocktail of drugs via lethal injection - noting it's been 11 years 
since Nevada executed an inmate.

"Lethal injection in Nevada is ripe for error," Waisel said in brief filed 
Monday. "Nearly every tenet for safety is violated. It is a dramatically 
unfamiliar situation and location for the individuals performing the 
injections. Even for experienced individuals this increases risk; it is 
increased even more for the inexperienced, especially without high quality 
practice."

Smith said the U.S. Supreme Court has ruled that the potential for errors 
during an execution does not violate the cruel and unusual punishment standard. 
And Waisel acknowledged that if the process were carried out correctly and 
exactly, the risk of suffering would be minimal.

"It's never a guarantee that an error wouldn't happen," Smith said.

Atty. Gen. Adam Laxalt's office said it would not comment on pending 
litigation.

Togliatti didn't rule Monday on the use of the paralytic and said she wanted 
Dozier present via video from his cell in Ely when the hearing resumed 
Wednesday.

The judge also said she wanted to give Anthony time to consult with Dozier 
about the risks laid out about the use of the drugs, the issue of a new medical 
director overseeing the state's protocols he didn't establish and how the drugs 
would be administered.

"Part of the struggle I'm having is, we're not a regular execution state," 
Togliatti said. "We don't do this on a regular basis."

(source: Los Angeles Times)

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

Nevada names interim medical officer ahead of execution



Nevada officials are pressing toward the state's 1st execution in 11 years, 
naming the state's top psychiatrist as interim replacement for the 
anesthesiologist who resigned last week after signing off on the lethal 
injection plan.

Jordan Smith, of the state attorney general's office, told a judge Monday in 
Las Vegas that Dr. Leon Ravin (RAY'-vehn) has replaced Dr. John DiMuro as the 
state's top doctor.

That makes Ravin the medical official with primary responsibility for next 
week's scheduled execution of twice-convicted murderer Scott Dozier.

Dozier wants his sentence carried out.

But he's letting federal public defenders challenge the state plan to use a 
never-before-tried combination of drugs for his scheduled Nov. 14 execution at 
Ely State Prison.

The judge says she'll hear from Dozier himself on Wednesday.

(source: Associated Press)








ARIZONA:

Why we want the Supreme Court to nix Arizona's death penalty----The author of 
Arizona's death penalty statue now argues it's unconstitutional. More than 20 
former judges, prosecutors and legal experts want the U.S. Supreme Court to 
agree.



We've been tinkering with the death penalty for 40 years, but haven't been able 
to remove mistakes and unfairness from the system.

As president of Arizona Attorneys for Criminal Justice, I joined with more than 
20 former Arizona judges, former prosecutors and legal experts to urge the U.S. 
Supreme Court to accept a challenge to Arizona's death penalty statute and end 
capital punishment in our state and nationwide.

Former Judge Rudy Gerber, who co-authored Arizona's death penalty statute, has 
joined in our challenge to the statute, agreeing that it is now 
unconstitutional. Why?

Most cases can't be 'worst of the worst'

The court has held that the death penalty is only constitutional if it is 
reserved for the "worst of the worst." To comply with this narrowing 
requirement, prosecutors must prove there is at least one aggravating factor 
before the death penalty can be imposed.

Gerber, to help comply with this requirement, co-drafted the statute with six 
aggravating factors, any one of which qualifies a defendant for the death 
penalty. Over time, the Arizona Legislature has piled on more. Today, 
prosecutors have 14 aggravating circumstances to allege.

There are now so many aggravating factors that Arizona prosecutors can seek the 
death penalty in 99 % of 1st-degree murder cases. 99 % of cases cannot all be 
"the worst."

The Legislature has failed its constitutional duty to narrow the death penalty 
to the most deserving offenders. The prosecuting agency has the right to decide 
in which cases it will pursue the death penalty, and the exercise of that 
discretion varies throughout the state, from zero in some counties to among the 
highest in the country in others.

Maricopa County leads the nation in death penalty sentences, with a far greater 
number of cases prosecuted as capital crimes. The Sixth Amendment guarantees 
that these defendants have the right to counsel and these attorneys must be 
specially trained and qualified.

One consequence is that the county, on multiple occasions, has run out of 
defense attorneys who are qualified to handle capital cases. As a result, 
capital cases often wait - sometimes for years - for justice for all parties 
involved.

There currently are a staggering 56 death penalty cases pending in Maricopa 
County's Superior Court. Capital murder cases cost 8 to 40 times more than 
1st-degree murder cases where the death penalty isn't being sought.

Increased costs include not only attorneys but court administration, housing, 
jury compensation and delays to other cases. And because some counties have the 
money to prosecute death penalty cases and some don't, where the crime occurred 
can become more important than the facts of the case.

As a nation, we have moved away from capital punishment. 31 states have stopped 
using the death penalty. 19 have formally abandoned it, 4 have instituted 
moratoria, and 8 have not had an execution in the past decade.

Other states keep the public safe through sentences of life without parole. 
Arizona, which has already abolished parole for adults, can do the same.

The court should accept review of Hidalgo vs. Arizona and hold capital 
punishment unconstitutional in our state and everywhere else.

Regardless, the State of Arizona should take a hard look at why we are spending 
so much money to continue to engage in this failed experiment. It is time to 
admit that the system is broken beyond repair.

(source: Op-Ed; Amy Kalman is a defense attorney in Maricopa County with 
experience in capital litigation, and is the president of Arizona Attorneys for 
Criminal Justice----azcentral.com)

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

The Arizona Supreme Court has vacated the death sentence for Jasper Phillip 
Rushing, who cut off the penis of a fellow inmate before beating him to death.



In 2010, when the murder took place, Rushing was already serving a 28-year 
prison sentence for killing his stepfather, who he believed had raped a young 
relative of his. (No evidence of the rape ever surfaced.)

At the Arizona State Prison Complex-Lewis, Rushing was forced to share a small 
isolation cell with Shannon Palmer, who had a history of mental illness and had 
been diagnosed with paranoid schizophrenia.

Palmer had been charged with criminal damage after he climbed a Salt River 
Project power pole during a thunderstorm and had to be talked down. He was 
reaching the end of his 3-year sentence when Rushing killed him.

The cell was supposed to house 1 person, not 2, and Palmer's erratic behavior 
aggravated Rushing, as Phoenix New Times detailed in a 2011 cover story.

Eventually, he snapped.

The brutal beating raised questions about the Arizona Department of 
Corrections' policies for housing inmates, as well as the lack of mental health 
services available to people like Shannon Palmer who wind up incarcerated 
because the state doesn't know what else to do with them.

In fact, after the murder, Rushing told Phoenix New Times writer Paul Rubin, 
"It makes no sense at all to put a murderer in a cell living assholes-to-elbows 
with a guy who is crazy and probably shouldn't be in prison at all. Bad things 
can happen in a house like that."

He explained, "Day after day and night after night of his paranoid bullshit, 
and his disrespect for women and children. It was almost pitch-black in there 
because they couldn't fix the lights. I couldn't read or think straight. This 
is what can happen."

During the trial, attorneys presented evidence that Palmer had still been alive 
when Rushing severed his penis with a shank that he'd fashioned from the blade 
of a disposable razor. He'd also wrapped a book in a bedsheet and used it to 
bash Palmer in the head, then gouged Palmer's throat open with the shank.

A Maricopa County jury sentenced Rushing to death in 2015. Shortly afterwards, 
he filed an appeal, arguing that his constitutional rights had been violated 
during the trial.

On Monday, the Arizona Supreme Court rejected the majority of his claims, but 
agreed with him on one point: The trial court had messed up by failing to tell 
jurors that Rushing was ineligible for parole.

The court's newly released opinion states that jurors were given "a 'false 
choice' of death, natural life, or life with the possibility of release." In 
fact, there was no chance of Rushing ever being released, since he was already 
serving a life sentence for murdering his stepfather.

That could potentially have influenced jurors' decision to impose the death 
penalty, the opinion notes:

The prosecutor implied that Rushing could be released by telling jurors in the 
penalty phase opening statement that the court had rejected the State's request 
for a natural life sentence for the stepfather's murder and instead imposed a 
sentence of life with the possibility of release after 25 years. Rushing had 
served 14 years of his life sentence at the time of trial, and he was then 35 
years old. Some jurors might have believed that if the court again refused to 
impose a natural life sentence, Rushing could be released after serving 25 
years of a 2nd life sentence, whether that sentence was concurrent with or 
consecutive to the first sentence. The jury deliberated for most of a day, and 
it is not possible to know whether even the remote prospect of release affected 
any juror's decision to impose the death penalty.

As a result of the error, Rushing's death sentence has been overturned - at 
least for now.

In its decision, the Arizona Supreme Court also upheld his conviction for 
premeditated, 1st-degree murder. That means it's now up to the Maricopa County 
Superior Court to hold a new penalty phase proceeding to determine the sentence 
that he'll face.

(source: Opinion; Amy Silverman is managing editor at Phoenix New Times)








USA:

Leave the death penalty in the past



A rare occurrence indeed, the recent terrorist attack in New York City has 
resulted in a live assailant. Despite killing 8 people, the attacker is alive, 
still espousing his radical causes. The man's act and following lack of remorse 
has sparked many - including the President - to demand his execution. I do see 
the reason behind this: If there were ever a case where capital punishment was 
justified, it would be this. Regardless, the prospect itself still does not sit 
easily with me, for more than just an aversion to death.

Often, the main argument against the death penalty is the inability to make it 
absolutely infallible. If even 1 innocent person is put to death as a result of 
the justice system, that is inexcusable. While this is true in my eyes, and 
while people guilty of no crime have indeed been put to death, that is not the 
case in this circumstance. Even before finalizations of any legal procedures, 
the terrorist behind this act is most certainly the suspect charged.

Apart from the imperfect system of guilt, capital punishment also denies any 
chance at redemption by the perpetrator. An outlook often shared by religious 
groups, the belief stands that letting the wrongdoer live allows them to look 
within and without, perhaps coming to terms with things and seeking repentance. 
Again, though, in this situation, the argument falls apart a bit. As said 
before, the culprit stands by his actions, proclaiming the tenets of ISIS. 
While this could change with time, there is reason to believe his judgment has 
been permanently muddied.

Even beyond these 2 sensible arguments, there is the oft-touted statistic about 
how putting someone to death is more expensive than life in prison. While this 
is certainly true according to some groups, it also may not be exactly 
applicable here. Most sources on this topic are heavily biased one way or 
another, and, even if it is true, I could imagine a world in which the 
attacker's passion and political climate result in an expedited execution, 
regardless of the justice of such a situation.

Well, that seems to be the big 3 in terms of why not to put someone to death 
and it seems the New York terrorist managed to act in a way that refutes all of 
them. I brought up these arguments not to condone the bloodlust for him, 
though, these just serve as a preliminary display of the absurdity of capital 
punishment in the general case.

As for this person, I encourage the President and the public to not lose sight 
of their humanity. Murder is illegal because no one person or entity should be 
able to decide what is truly, physically irreprehensible; the judgment of an 
individual is too biased and emotion-fueled to be regarded as righteous. The 
government should be held to the same standards. While legal judgment strives 
to impartiality, each component of the system is operated by humans. The judge 
draws on not only prior documentation but their own experience. A jury is 
easily swayed by gaps in perception. The lawyers on each side of a case may be 
harshly imbalanced. Even the common law and standards the entirety draws upon 
are based on the biases of society and culture at the time. Justice is supposed 
to be constant, regardless of era or location. While these slight imperfections 
are permissible (if still unfair) for lesser punishments, the finality of the 
death penalty is too much for any debate.

Keep in mind that this is not the defense of a terrorist. While I wish for the 
attacker to find inner peace for his own sake, I have no issue with keeping him 
away from the public for the rest of his life. Let his name be lost to the 
sands of time as it has to this article. This is a defense of the justice 
system from itself. Passion and avenging may be attractive traits for a 
fictional vigilante, but the real world needs to be more level-headed than 
that. Capital punishment should go the way of its Hammurabian ancestors, a 
relic of a more primitive time.

(source: Opinion; Peter Fenteany is a campus correspondent for The (Univ. 
Conn.) Daily Campus)