[Deathpenalty] death penalty news----IND., ARK., MO., OKLA., ORE., USA

[Rick Halperin]

Oct. 3



INDIANA:

Indiana Supreme Court to hear death penalty arguments this week



The justices of the Indiana Supreme Court will consider the fate of the state's 
death penalty protocol when it hears arguments this week in a case challenging 
the legality of how the protocol was enacted.

The high court will hold oral arguments in the case of Roy Ward v. Robert 
Carter, Jr., et al., 46S03-1709-PL-00569, on Thursday after unanimously 
granting transfer to the challenge to Indiana's death penalty protocol last 
month. The arguments come after the Indiana Court of Appeals determined the 
Indiana Department of Correction's failure to enact new lethal-injection 
protocols under the Administrative Rules and Procedure Act, subject to public 
comment, made the death penalty protocol adopted in May 2014 "void and without 
effect."

That protocol included a 3-drug cocktail that has not yet been used in any 
state or federal execution. But before the Court of Appeals' ruling, that 
cocktail was meant to be used in a lethal injection that would carry about Roy 
Ward's death sentence. Ward was sentenced in 2007 after he was convicted in the 
2001 rape and murder of 15-year-old Stacy Payne in Spencer County. He is 1 of 
12 people on death row in Indiana.

In the aftermath of the Court of Appeals' opinion, legal experts said the 
decision left the future of the death penalty in Indiana in limbo. Oral 
arguments will begin at 9:45 a.m. Thursday in the Indiana Supreme Court 
courtroom.

Prior to the Ward oral arguments, the justices will hear arguments on petition 
to transfer in the case of Peter Dvorak v. State of Indiana, 
53A01-1604-CR-00923, at 9 a.m. In that case, Peter Dvorak was charged with 
felony offer or sale of an unregistered security and acting as an unregistered 
agent. He moved to dismiss the charges on the basis that they were barred by 
the statute of limitations.

The Monroe Circuit Court disagreed and denied the motion to dismiss, but the 
Indiana Court of Appeals reversed in May, finding the 5-year statute of 
limitations had expired because he committed his offenses in 2007, but was not 
charged until 2015.

The state has petitioned the Supreme Court to accept jurisdiction over the 
case.

(source: The Indiana Lawyer)

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

The death penalty is rare. Could the Southport police shooting be different?



As Marion County Prosecutor Terry Curry stood at a podium Thursday to announce 
his office's pursuit of the death penalty against Jason Dane Brown, he read 
four names.

David Moore. Rod Bradway. Perry Renn.

And now Aaron Allan.

All 4 were police officers who have been killed during Curry's 7 years as the 
county prosecutor.

At Thursday's press conference Curry said he was sending a message in seeking 
the death penalty: Attacks against police officers will not be tolerated.

Recent history suggests that the death penalty case could result in a plea 
agreement. That is what happened in the 2 other police shootings in which the 
suspects were arrested.

Thomas Hardy, who pleaded guilty to Moore's 2011 murder, was sentenced to life 
in prison without the possibility of parole.

Major Davis, who pleaded guilty to killing Renn in a 2014 gun battle, received 
the same sentence.

In the Bradway shooting, the suspect was killed.

Curry said the Moore and Renn cases shouldn't portend what could happen in the 
case against Brown.

"In any given case, we do not know what path it will take," Curry said 
Thursday.

Moore's family wanted resolution, he said, leading to the agreement with Hardy.

As for Davis, Curry said there were "significant mental health issues" that 
complicated the prospect of the death penalty.

To request the death penalty with murder charges in Indiana, prosecutors must 
prove certain aggravating circumstances. One such circumstance is if the victim 
is a police officer killed in the line of duty.

What could complicate seeking the death penalty against Brown is the apparent 
lack of motive, said Jack Crawford, an Indianapolis defense attorney and former 
Lake County prosecutor who has been involved in several death penalty cases.

Investigators are likely scouring Brown's social media and interviewing family 
and friends, Crawford said, to learn why he would kill someone who was trying 
to help him.

Allan, a Southport police lieutenant, was responding to a car crash when, 
authorities say, Brown opened fire while still in the overturned vehicle. 
Baggies of marijuana were found in the vehicle, but Curry said Thursday a 
motive remains unclear.

"The prosecutor does not have to prove a motive. Still, juries want to know 
what the defendant's motive was," Crawford said. "In this case, that's pretty 
obscure."

He also noted how death penalty cases can cost $1 million to $2 million, with 
the county picking up half.

Costs can grow, Crawford said, if the judge approves Brown's request for a 
change of venue to another county. Increased lodging and transportation costs 
could add to the bill.

That is why death penalty cases in general are rare. Crawford knew of 6 that 
were pending in Indiana.

Prior to Thursday's filing against Brown, the most recent case came out of 
Boone County. On Sept. 20, Boone County Prosecutor Todd Meyer said his office 
would seek the death penalty against a teenager accused of fatally stabbing a 
73-year-old Lebanon man.

Prosecutors have leveraged the death penalty to push for plea bargains in the 
past, Crawford said. 2 other recent Marion County cases resulted in such 
agreements.

Johanthan Cruz, 20, avoided the death penalty by pleading guilty to 3 killings 
from 2016. He was sentenced to 3 consecutive life sentences without parole.

And Kenneth "Cody" Rackemann, who avoided the death penalty by agreeing to a 
plea deal, received 4 consecutive life sentences for the murder of 4 people in 
2014.

The prosecution's case against Brown could turn out differently because of the 
public's support for officers who are protecting their communities, Crawford 
said.

"You can build a very strong emotional case that this kind of life-taking 
deserves the maximum penalty," Crawford said.

Proof can be found on Indiana's death row.

1 of the 12 people on death row, according to the most recent Indiana 
Department of Correction information, is Benjamin Ritchie, who killed Beech 
Grove Police Officer William Toney during a 2000 police chase.

In October 2002, he was sentenced to death. Crawford represented Ritchie.

"In some cases, the death sentence is handed out by the judge and the jury," 
Crawford said. "It can happen."

(source: Indianapolis Star)








ARKANSAS:

Lawyers: Condemned Arkansas Man Is Mentally Ill, Shouldn't Be Executed



Lawyers for an Arkansas man scheduled to be executed next month say his life 
should be spared because he suffered sexual abuse as a child and comes from a 
family with a long history of mental illness.

The Arkansas Parole Board will hold a hearing Wednesday for Jack Greene, who is 
scheduled to die Nov. 9 for the 1991 killing of Sidney Jethro Burnett after 
Burnett and his wife accused Greene of arson.

In papers filed Monday, Greene's lawyers say he is mentally ill and that his 
execution would violate the U.S. Constitution and "bring shame on the state of 
Arkansas."

Lawyers for the state have said Burnett's family deserves justice.

(source: Associated Press)








MISSOURI:

Defendant in murder, assault case receives capital counsel



Timothy M. Brokes Jr. represented by capital counsel public defender, following 
prosecutors' decision to puruse death penalty in case

Just weeks after prosecutors announced they would seek the death penalty 
against the man charged with killing a Hannibal woman and severely injuring her 
husband before injuring a police officer in separate January 2016 incidents, a 
new capital counsel public defender appeared on his behalf Monday, Oct. 2.

Timothy M. Brokes Jr., of Hannibal, faces multiple felony charges in Marion and 
Monroe Counties stemming from a crime spree, ending with the death of Brittany 
Gauch and separate assaults of Aaron Gauch and Monroe City officer Travis Pugh. 
Brokes did not appear for the Monday, Oct. 2 hearing due to his current 
incarceration with the Missouri Department of Corrections. Capital Counsel 
Public Defender Charles Hoskins represented the defendant. Marion County 
Prosecuting Attorney David Clayton represented the state.

According to probable cause statements filed in the crimes, Brokes stole his 
father's truck and went to a home just west of the Hannibal city limits, where 
he shot and subsequently ran over Aaron Gauch. He then allegedly went to a home 
on Summer St. in Hannibal and shot Brittany Gauch at close range with a rifle.

Brokes then fled the scene with June Smith. The pair was spotted in Monroe City 
the next day. When officer Pugh engaged with Brokes, a shootout ensued, 
resulting in injuries to both Pugh and Brokes.

(source: Hannibal Courier-Post)








OKLAHOMA:

Alton Nolen Sentenced To Life In Prison, Death Penalty Under Deliberation



A jury has returned their verdict for counts 2 through 6, including multiple 
life sentences, in the murder trial of Alton Nolen.

Nolen has been sentenced to life in prison for count 2, assault and battery 
with deadly weapon; 55 years on count 3; life in prison on count 4; life in 
prison on count 5; and 75 years on count 6.

Nolen was convicted of assault and battery with a deadly weapon for the attack 
on Traci Johnson; assault with a dangerous weapon for his attack on Mark 
Vaughan; assault with a dangerous weapon for his attack on Gary Hazelrigg; 
assault with a dangerous weapon for his attack on Bryan Aylor; and assault with 
a dangerous weapon for his attack on Mark Vanderpool.

The jury will now deliberate on a possible death sentence for Nolen on count 1; 
the 1st-degree murder and beheading of Colleen Hufford.

(source: newson6.com)

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

Nolen's defense trying to prove he is intellectually disabled



After a Cleveland County jury found Alton Nolen guilty of 1st-degree murder for 
the 2014 beheading death of Colleen Hufford last week, he will at least serve 
life in prison. Whether he will he be sentenced to death remains up in the air.

On Monday, the 12-person jury made up of 8 men and 4 women took less than 2 
hours to come back with a sentencing recommendation for 5 assault with weapon 
charges Nolen, 33, faces in connection with the Sept. 25, 2014, attack at 
Vaughan Foods.

The recommendations for Nolen ranged from 55 years to life in prison.

The jury's sentence recommendation for the 1st-degree murder charge is still 
undetermined and probably won't be decided until the end of the week.

Following the announcement by the jury, the court didn't waste any time 
starting the process for the remaining capital crime.

One witness testified Monday, but it was clear what the defense's argument for 
this stage would be - to show the jury Nolen is intellectually disabled and, 
therefore, under Oklahoma law - disqualified from receiving the death penalty.

Because the jury rejected Nolen's insanity defense and found him guilty on all 
counts, the burden shifts to the defense to persuade the jury Nolen is 
intellectually disabled.

To help prove the defense's argument, his attorneys called psychologist Jeanne 
Russell to testify, 1 of 2 psychologists the defense called in the 1st stage of 
the trial to aid in Nolen's insanity defense.

Russell said she conducted an IQ test, which revealed Nolen had an IQ of 69 - a 
score that met the subaverage general intellectual functioning requirement in 
determining whether Nolen is intellectually disabled.

However, state law requires Nolen also would have to display limitations in 
adaptive functioning, and the onset of his disability would have to be 
manifested before the age of 18, to qualify as intellectually disabled.

Russell said Nolen met all of the requirements.

If the jury decides Nolen is intellectually disabled, the most stringent 
punishment he could receive is life in prison without the possibility of 
parole.

If not, the death penalty is still on the table.

(source: normantranscript.com)








OREGON:

Anti-death penalty talks postponed



St. Joseph Sister Helen Prejean, foremost foe of the death penalty in the U.S., 
has postponed appearances slated for this month in Oregon. She is recovering 
from unexpected back surgery and will not be on the road again until the start 
of the year.

Her Oregon visit is planned for the spring. Sister Helen, who wrote the book 
"Dead Man Walking," is still speaking out on Facebook and Twitter as she 
recuperates.

(source: Catholic Sentinel)








USA:

What's Behind the Decline in the Death Penalty?----A new book explores the slow 
demise of the ultimate punishment.



There are 4 men left on death row in Virginia, and only 31 people were 
sentenced to death in the entire U.S. last year, compared with more than 300 
per year in the mid-1990s. The numbers are stark, but if you ask the experts - 
lawyers, scholars, activists, judges - why the death penalty has begun to fade 
in the U.S., you get all sorts of answers, many of them frustratingly vague.

The crime rate dropped, so there have been fewer murders to punish. A few 
states abolished the punishment outright. The cost of death penalty cases went 
up, and prosecutors grew worried about their budgets. States passed laws making 
life without parole an option for certain aggravated murders, meaning there was 
a sufficiently harsh alternative to the death penalty. All those DNA 
exonerations raised the specter of an innocent person being killed. In 
elections for district attorney, voters in Houston and Philadelphia replaced 
death-penalty champions with skeptics.

University of Virginia law professor Brandon Garrett's new book, "End of Its 
Rope: How Killing the Death Penalty Can Revive Criminal Justice," represents a 
major new effort to untangle these factors. He also analyzes the decline for 
lessons that might be applied to the criminal justice system as a whole. We 
discussed his findings by email, and his answers have been edited for length.

Let's start broad: Why has the death penalty declined?

No one expected this to happen. After all, the death penalty has long stood for 
the ultimate in punishment, and it has been very popular for decades. I felt 
that understanding the great death penalty decline might help to show us how we 
can turn away harsh punishment more broadly.

At the county level, my colleagues and I observed a strong statistical 
connection between murder rates and death sentences. But while declining murder 
rates matter, it is not the only explanation. Death sentences fell far more 
steeply than murders did. Unfortunately, while the decline in murders played an 
important role, when Alex Jakubow, Ankur Desai and I analyzed the past 25 years 
of death sentencing data, we found a strong county-level pattern of racial 
bias. Counties with more black residents have more death sentences. And 
counties with more white victims of murder have more death sentences. Call it a 
"white lives matter" effect.

We also found a muscle memory effect. Counties impose far more death sentences 
just as a function of having done so in the past. This inertia is powerful. And 
yet today, when prosecutors seek the death penalty, they are more often failing 
to convince jurors to impose it. That reverses the muscle memory in these 
offices; to lose an expensive death penalty trial is no trivial matter. In 15 
death penalty trials since 2015 in Texas, only 8 have resulted in death 
sentences. In Virginia, prosecutors failed to get death sentences more than 
half of the time in trials since 2005. Rural counties have fallen completely 
off the death penalty map; just a handful of relatively populous counties still 
have death sentences.

What I call a "defense lawyering effect" also played an important role in this 
death penalty decline. The states that created offices for defense lawyers 
experienced significantly more pronounced declines in their death sentences. 
The states that continue to leave it to local judges or counties to decide who 
handles death penalty cases have more death sentences.

What caused defense lawyering to improve? Supreme Court rulings? Culture? 
Something else?

Defendants on trial for their lives long received incompetent lawyers: lawyers 
who fell asleep in court, showed up drunk, used racial slurs to refer to their 
clients, and worse. In the 1980s, states all imposed cut-rate caps on defense 
in death penalty cases. They stacked the deck for prosecutors.

In the decades since, states gradually created offices to handle capital 
defense. They realized that they might risk constitutional challenges in the 
courts if they continued to handicap the defense. But they also discovered that 
defense offices can do the work far more cheaply than independent lawyers 
appointed by judges.

Social workers hired on staff are much cheaper than lawyers paid by the hour. 
And social workers, called mitigation investigators, know how to research a 
person's medical, mental health, foster care and school records. They know how 
to speak to victims of childhood abuse and to addiction counselors. In the 
past, the jury never heard about the background of the person they convicted of 
murder. They had no reason not to sentence a murderer to death. Now, even in 
high-profile cases like the Aurora, Colorado, mass shooting, they hear mental 
health evidence and often choose life.

The worst murders are often committed by people with serious mental health 
problems. It takes minimally adequate resources to piece together a person's 
social history. But in states that continue to deny the defense basic resources 
needed, you see more death sentences. Later this fall, the Supreme Court will 
hear a case, Ayestas v. Davis, about the courts' refusal to grant resources to 
the defense for investigation.The Supreme Court has said that there is a 
constitutional obligation to meaningfully investigate mitigation, or social 
history evidence, in death penalty cases. But my research suggests that it 
takes more than a judge willing to award fees case by case. It takes an office 
to ensure that obligation is met.

We've looked in the past at how rising costs are leading prosecutors to not ask 
for the death penalty. Does that relate in some way to the quality of the 
defense lawyers?

People used to assume that executing someone would save money: You wouldn't 
have to keep a murderer fed and housed in prison for all of those years. Now it 
is common knowledge that, in fact, the death penalty is orders-of-magnitude 
more expensive than imprisonment. Local government spends millions on just a 
single death penalty trial, and states spend hundreds of millions, even 
billions of dollars, on appeals, habeas and everything else involved in keeping 
the death penalty on the books. Those costs are even more troubling, of course, 
if the defense does a more effective job and prosecutors spend millions on a 
trial at which the jury rejects the death penalty in the end. States have fewer 
death sentences to show for the millions and billions they spend. Law 
enforcement has started to push back and say that there are far better uses for 
those vast sums of money.

Another common argument for why the death penalty is disappearing is that 
jurors are responding to the high rate of exonerations - they don't want to be 
wrong and send someone innocent to death. But you've shown that isn't quite 
right. Can you explain?

20 innocent people have walked off of death row in this country after DNA tests 
exonerated them, and over 100 more have been exonerated by other evidence. 
These death row exonerations have forever changed the way we think about the 
death penalty - and we do not even know how many innocent people have been 
executed in this country.

Polling indicates that people are increasingly concerned about sending innocent 
people to death row. That may play a role in declining public support for the 
death penalty. However, people who oppose the death penalty outright cannot sit 
as jurors in a death penalty trial. So, exonerations have so far not stopped 
states like Florida, that have seen the most exonerations, from sentencing 
comparatively more people to death. Death-row exonerations keep happening.

If the crime rate goes back up, do you think there will be more death 
sentences, or have these standards of better lawyering changed the game enough 
to survive big political shifts? What happens if there is a return to the 
murder rates of the 1980s?

The American death penalty has always been more about political posturing than 
a genuine attempt to make the punishment fit the crime. Meanwhile, crime 
continues to decline. If murder rate trends do completely reverse, then there 
could be pressure to take more tough-on-crime approaches. But I think people 
have learned the lesson the hard way that you can't death-sentence or imprison 
your way out of crime. We now know when jurors hear the whole story, even in 
death penalty cases, they are reluctant to impose death sentences. Even if more 
prosecutors suddenly started seeking the death penalty, the results would 
likely not be good for them.

In your book, there is a tension about the future: On the one hand, the decline 
of death sentences has shown how "mercy" among jurors can triumph given the 
right conditions; on the other hand, the decline has led to a massive expansion 
of life-without-parole sentences, which Pope Francis has called "hidden death 
sentences." How do you resolve that tension? What do you think opponents of 
long sentences should do going forward to bring more mercy into the system?

Only about 2,800 prisoners sit on death row today, but over 50,000 prisoners 
are serving life without parole, and about 200,000 prisoners have life 
sentences, according to a Sentencing Project report. I tell the story in my 
book of Joseph Sledge, who received 2 life sentences, and since he did not get 
a death sentence, he was not entitled to receive lawyers from the state once 
his appeals ran out. For decades, he filed habeas petitions himself and wrote 
letters. After almost 40 years in prison in North Carolina, a letter to an 
innocence project led to DNA tests that proved his innocence.

We need to do something about the explosion of these life sentences in America. 
We have replaced the death penalty with the "other death penalty." Even 
juveniles can still get life-without-parole sentences, although the Supreme 
Court has said it cannot be mandatory. To imprison people, sometimes very young 
people, with no hope of release or redemption is inhumane.

(source: Brandon Garrett is the White Burkett Miller Professor of Law and 
Public Affairs and Justice Thurgood Marshall Distinguished Professor of Law at 
the University of Virginia School of Law----The Marshall Project)