[Deathpenalty] death penalty news----ALA., LA., OHIO, ARK.

[Rick Halperin]

Oct. 17



ALABAMA----stay of impending execution

Execution stayed for Alabama man convicted of killing cop



A federal court granted a stay of execution for Alabama death row inmate Torrey 
Twane McNabb, who was scheduled to die by lethal injection on Thursday.

The order was issued on Monday by Chief U.S. District Judge W. Keith Watkins of 
the Middle District of Alabama Northern Division.

The state has appealed the stay.

The execution was scheduled for 6 p.m. Thursday at the Hollman Correctional 
Facility in Atmore.

McNabb has spent the last 18 years on death row, after being convicted of 
fatally shooting Montgomery police officer Anderson Gordon in September 1997. 
McNabb was convicted on 2 capital murder counts -- 1 for killing Gordon while 
he was on duty, and 1 for killing him as Gordon sat in his patrol car. McNabb 
also was found guilty of 2 additional counts of attempted murder.

McNabb's attorney John Anthony Palombi, an assistant federal defender, filed an 
emergency motion for stay of execution on Oct. 11. The defense claims the 
"challenged method of execution presents a substantial risk of serious harm" 
and that there's an alternative that can reduce the risk of severe pain.

A federal court of appeals stayed the execution of Jeffery Lynn Borden on Oct. 
2 on similar grounds.

"Borden, in almost identical circumstances, received a stay of execution," 
Monday's order stated. "Defendants did not appeal, admittedly in part because 
of the late litigation hour. The court, in equity and good conscience, cannot 
treat McNabb differently than Borden when the stakes are this high. There is no 
evidentiary justification for disparate treatment of McNabb."

(source: al.com)








LOUISIANA:

John Thompson Received 18 Wrongful Years On Death Row, Yet Never Received 
Justice----The activist and death row exoneree died without anyone being named 
culpable for his wrongful imprisonment.

John Thompson was many things: death row exoneree, abolitionist, advocate for 
prosecutorial accountability, spokesperson, founder of an exoneree-run re-entry 
program, and mentor. Before the news cycle moves on from John, we are compelled 
to acknowledge the way he most profoundly affected the world.

After his untimely death on October 3rd, the media described him as a man who 
saw the world as it should be, as angry, and as a warrior. To those of us who 
enjoyed the enormous privilege of knowing and loving John, he was so much more.

John survives as a symbol of the impunity with which prosecutors may disregard 
the life and rights of a young black man. Yet he was a wonderfully regular man 
with a sharp wit and irreverent humor. He loved his wife, family - especially 
his grandchildren - and friends. He liked a strong coffee in the morning and a 
beer in the evening. He went to church, and then cursed at the football game. 
John didn't sugarcoat anything. He had 100 big ideas a week. He issued straight 
line challenges - to his colleagues and to the world. Consequently, those who 
truly knew and loved him maintained a more real, raw and rewarding relationship 
with John Thompson, compared to others in their lives. He was our friend, and a 
brilliant, honest, funny, smart, present, and - at times - difficult colleague.

John lived helping and questioning: helping fellow exonerees after release, 
questioning institutions of criminal justice and challenging them to do better.

But mostly, John Thompson will go down in legal history for demanding the kind 
of justice a white man would expect - and being told in 2011 he was not 
entitled to it.

On May 10, 2003, the headline of the Times Picayune read:

Acquitted inmate a free man.

John Thompson, the New Orleans man acquitted this week of a 1984 murder that 
had once placed him on death row, walked out of the parish prison Friday 
afternoon after more than 18 years of incarceration.

Every exoneration story is horrifying and fascinating. John's is extraordinary 
for many reasons, not least of which was a last-minute defense discovery that 
saved him from execution and the 35 minutes a jury took to acquit him at his 
2003 retrial for the murder he was nearly executed for 4 years previously. When 
John walked out of prison, his story could have ended like a movie: a happy and 
satisfying ending after a tough legal battle, dramatic twists, his swift 
acquittal, release and subsequent marriage to his wife of now-14 years. But 
John knew people should not console themselves with a happy ending.

John could have done anything he wanted after 18 years of wrongful 
imprisonment. He chose to become a selfless, tireless advocate, social worker 
and mentor for other returning prisoners, establishing the 1st exoneree-run 
reentry program in the country. He was working there the day he died, 
sustaining a network of support among the formerly incarcerated, reconnecting 
them to the community, and providing education and counseling. He helped 
dozens.

All the while, he traveled the country questioning the status quo of criminal 
justice, trying to prevent injustices like his. Although it was prosecutors who 
nearly had him killed, to his great credit, he did not exclusively focus his 
criticism there. Police, courts and public defenders also failed John and he 
understood that the failing of those institutions too affected the lives of the 
poor and people of color - particularly black people. John increasingly chose 
to use his story as a galvanizing cry for racial justice in America. Until his 
death, John remained a strong advocate for organizations fighting to bring 
equal justice to an unjust system. He advocated for more judicial oversight, 
robust public defense and for the urgent work of freeing innocent prisoners.

Famously, John sued the prosecutors who nearly killed him, arguing that 
prosecutors??? offices need standards to prevent the kind of terrible injustice 
he suffered. He believed he deserved compensation because the New Orleans 
District Attorney did not care to have such standards, and consequently, John 
was ripped from his 6 and 4-year old sons, thrown into solitary confinement for 
14 years to await his execution for a murder he did not commit. John survived 7 
execution dates (including the last - set for the day before his youngest son's 
high school graduation) and lost 18 years of his life. John wanted the 
prosecutors to help him rebuild his life and sanity. He asked for the justice 
any of us would expect if we survived such torture.

A New Orleans judge and jury agreed John's life mattered, and the prosecutor's 
office should pay. But we all know the ending. In 2011 in Connick v. Thompson, 
5 justices of the Supreme Court took John's victory and validation away, saying 
the law is not the way to hold prosecutors accountable and, if district 
attorneys do not train their staff to avoid such injustices, they are not 
liable. Those four white men and Clarence Thomas were mistaken and morally 
wrong. To John, and many others, the Supreme Court said his black life did not 
matter enough for the white prosecutors who nearly killed him to be 
accountable.

To date, not a single prosecutor from John Thompson's case has faced a single 
consequence."

He later wrote in the New York Times he didn't care about the money, he just 
wanted to know why no prosecutor was disbarred or jailed. Swift consequences 
befell prosecutors who committed misconduct in recent high-profile cases of 
white defendants. Ted Stevens, the Duke Lacrosse players, Michael Morton: none 
were nearly killed from prosecutorial misconduct, yet in each case when it was 
revealed, the outrage was palpable and the penalty swift. To date, not a single 
prosecutor from John Thompson's case has faced a single consequence. So he 
filed a complaint with the Justice Department last year, asking for a civil 
rights investigation into those prosecutors. But John Collin Thompson died with 
little faith that Jefferson Beauregard Sessions' Justice Department was 
actively concerned with his complaint.

Michelle Alexander's book, The New Jim Crow, identifies the U.S. as unique in 
the world for the rate at which its prisoners so disproportionately correlate 
with its racial minority: African Americans. Recently her work, and that of 
other criminal justice reform advocates, has increased popular understanding 
that the struggle for a smaller, fairer, more accurate and more accountable 
criminal justice system is a seamless part of the struggle for civil rights and 
racial justice in America. John's life-defining struggle to hold prosecutors to 
account was firmly part of that struggle.

On June 7, 1892, three miles from where John Thompson was convicted and later 
acquitted, Homer Plessy sat in a rail carriage reserved for white people and 
was charged with violating the Louisiana law forbidding people of color and 
white people from sitting in the same carriage. When Homer Plessy took his case 
to the Supreme Court, in another sorry decision, it said, "If one race be 
inferior to the other socially, the Constitution of the United States cannot 
put them upon the same plane." It said that he had been "assigned by officers 
of the company to the coach used for the race to which he belonged, but he 
insisted upon going into a coach used by the race to which he did not belong."

So, too, John Thompson was assigned to be grateful with his acquittal and move 
on. When the U.S. Supreme Court took away the jury's verdict that had 
acknowledged the irreparable but avoidable damage to his life, it effectively 
said: "John Thompson is insisting upon the kind of justice used by the race to 
which he does not belong."

Today, Plessy v. Fergusson is a relic from a morally misguided time. Here in 
New Orleans, the descendants of Homer Plessy and Judge Howard Ferguson - Keith 
Plessy and Phoebe Ferguson - established the Plessy and Ferguson Foundation to 
teach justice and equity and "connect communities to history in an effort to 
bring a greater understanding, respect, and vision for who we are today and who 
we can be tomorrow." They presented John's lawyers with an award at a dinner in 
New Orleans in 2013.

When the Supreme Court overturned Plessy in 1955 with Brown v. Board of 
Education, it prescribed that "separate" is inherently unequal. That decision 
was part of a long social and political struggle for true equality that 
continues today in criminal courts across America. To John, the Connick 
decision said that his black life didn't matter and that, while we may not be 
formally separate, we are still absolutely unequal. This energized thousands of 
people who knew and loved John, and thousands who did not, to work harder for 
true equality. Ironically, this gives John far more power and consequence in 
history than the prosecutors who were at best indifferent to his guilt while 
they tried to kill him in the name of their sorry careers.

In 1898, Homer Plessy was right and the Supreme Court was wrong. 123 years 
later, John Thompson was right and the Supreme Court was wrong. We look forward 
to the day that Connick is considered a relic from a morally misguided time.

There again is the power of John Thompson's story, showing us who we really 
are."

Some of us who have had the monumental privilege of knowing John take a 
perverse satisfaction in seeing last week that the man who argued to reverse 
his jury verdict in the Supreme Court was nominated to the Fifth Circuit Court 
of Appeals. Because if John's legacy speeds all of America's realization that 
its society - as reflected in its courts - does not value black lives as it 
does white lives, he will continue to rest in the incredible power he had in 
life. John died early of a heart attack that was undoubtedly caused by the 
stress of what he had endured at the hands of the State of Louisiana. Days 
before, Kyle Duncan, the man who had argued that the prosecutors need not be 
liable for the terrible damage they caused him and his community, was elevated 
to one of the highest positions in the law. There again is the power of John 
Thompson's story, showing us who we really are.

John spent his life asking us all hard questions. He asked the hardest question 
of the highest court in the country: does my life matter enough? He showed the 
country the answer, and left us to do something about it. We just wish he was 
still here to do it with us.

(source: Emily Maw, Contributor----Director, Innocence Project New Orleans; 
Derwyn Bunton, Contributor, Chief Defender, Orleans Parish----Huffington Post)

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

A Tragedy of Errors----The corkscrew case of Rogers Lacaze.



In "Case in Point," Andrew Cohen examines a single case or character that sheds 
light on the criminal justice system. An audio version of Case in Point is 
broadcast with The Takeaway, a public radio show from WNYC, Public Radio 
International, The New York Times, and WGBH-Boston Public Radio.

Pretend for a moment that you are an 18-year-old black man in Louisiana in 1995 
and you've been charged with murdering a white police officer and 2 others, the 
children of the owner of the restaurant where the crime took place. It's 
sensational news in New Orleans in part because you have a co-defendant in the 
case, herself a police officer, Antoinette Frank, who immediately implicates 
you in the crime. Prosecutors seek the death penalty against you and your judge 
sets your capital case for trial just over 4 months after the crime.

You have a defense attorney who has never tried a death-penalty case before and 
who agrees to do so in exchange for your family's promise to give him a used 
car. Unsurprisingly, the defense he offers on your behalf is feckless from the 
start. He does not raise the question of prejudicial pretrial publicity or 
challenge much of the evidence prosecutors seek to use. He does not move to 
suppress statements you tell him were made only after the police beat you 
during an interrogation. He tells the court he won't challenge the government's 
eyewitness identification of you at trial, a critical concession. Nor does he 
undertake any investigation into any mitigating factors that might spare your 
life. (After trial, such an investigation shows your IQ is 71).

Things get worse from there. Your lawyer says he is getting death threats and 
wants to get paid. Then, on the morning of your trial, your lawyer and the 
judge get into an argument. Your lawyer compares the case with the O.J. Simpson 
murder trial, then at its zenith, and the judge doesn't like it. So he holds 
your attorney in contempt of court and gives him a 6-month jail sentence and a 
$500 fine, with the sentence suspended until after the trial. Your lawyer asks 
to withdraw from the case. The judge orders him to stay, and the trial begins.

Jury selection takes just a few hours. It is over in time for lunch on the 
first day. Neither your attorney, nor an attorney assisting him, asks any of 
the potential jurors questions about their views of the death penalty. Instead, 
your attorney moves to have the trial judge, the one who held him in contempt, 
recused from the case. That doesn't go so well, either. The judge stays and now 
there is clearly tension between him and your lawyer.

The case against you is not compelling. The murder weapon was never found. 
There is no physical evidence linking you to the crime scene. 2 surviving 
witnesses to the shooting do not identify you as the shooter. Indeed, it 
appears more likely that your co-defendant, that rogue cop, was the shooter. 
None of this matters. You made 2 incriminating statements to the police while 
in custody after detectives failed to read you your Miranda rights against 
self-incrimination. At trial prosecutors don't appear to challenge your 
lawyer's assertion that you were coerced, intimidated, and even beaten into 
"confessing." To prosecutors, your co-defendant's pointed finger and your 
incriminating statements are enough, even though you stopped short of 
confessing to the crime.

The trial begins on July 17, 1995 and ends three days later with a guilty 
verdict against you. Deliberations take precisely 1 hour and 36 minutes, 
according to court records. 1 day after that, the same jury that so quickly 
convicted you recommends you receive the death penalty.

Your name is Rogers Lacaze, the above narrative comes from the trial and 
appellate record in the case, and just like that you are headed for Louisiana's 
notorious death row. You also are headed for more than 2 decades of 
head-twisting post-trial litigation, the latest twist earlier this month from 
the U.S. Supreme Court.

What Lacaze and his trial lawyer did not know at the time of his conviction was 
that the jury that so quickly convicted him and sentenced him to death included 
at least 3 people with evident conflicts of interest that were not disclosed to 
the judge or to any of the attorneys. Police and prosecutors, meanwhile, who 
were in a position to know about some of these conflicts, remained silent as 
well and then later defended the inclusions of these jurors in the case.

One juror, a man named David Settle, was employed by the Louisiana State Police 
at the time of the trial. He had been a law enforcement officer for more than a 
decade. Another juror, Lillian Garrett, had lost her 2 brothers to murder in 
New Orleans. 1 of her brothers died the same way one of the victims in the 
Lacaze case had died-- with a gunshot to the head. Remember, the trial on which 
she was sitting in judgment involved the murder of 2 siblings.

\ A 3rd juror, a woman named Victoria Mushatt, was a police dispatcher with the 
New Orleans Police Department, the very same department whose officer was both 
a victim and a co-defendant in the Lacaze case. She was on duty in the dispatch 
room when the 911 call came in for the murders on which the case was based. 
Mushatt attended the funeral for the police victim in the case and was the wife 
of another NOPD officer. She also knew the police witnesses who incriminated 
Lacaze.

Each of these 3 jurors was asked during jury selection to disclose any 
connections they had to law enforcement or to the victims of crime. In Settle's 
case, he remained silent even as other prospective jurors around him conceded 
their connection to local police and left the panel. Mushatt originally did 
disclose that she was a 911 dispatcher and was told by the judge to say so 
again if she made it to individual questioning. But she did not do so. Garrett, 
meanwhile, was asked three times if she had any connection to any crime 
victims. 3 times she said nothing.

Lacaze's attorneys discovered most of this within 5 years of his conviction. 
For the past 17 years they have been arguing that their client could not 
possibly have received a fair trial from jurors who were unable or unwilling to 
follow the trial judge's rules or disclose clear conflicts of interest. And for 
the past 17 years the Louisiana Supreme Court has refused to acknowledge error 
or grant relief to Lacaze. In 2015, for example, a trial judge ordered a new 
trial based on this jury misconduct. The judge also set aside the death 
sentence because Lacaze's attorney had failed to investigate any of those 
"mitigating" factors that are evaluated in the sentencing phase of a capital 
trial. Louisiana has given up on the idea of executing Lacaze (although he 
remains on the state's death row). But the justices on the state's high court 
overturned the grant of a new trial.

If these were the only major shortcoming in Lacaze's trial, they would be 
enough for most courts to grant a new trial. But the problem with Lacaze's jury 
is only the half of it. It took about 14 years for defense attorneys to figure 
out another serious flaw in the trial and it is this flaw that ultimately may 
force the Louisiana court to finally give Lacaze the new trial he seeks.

Orleans Parish Judge Frank Marullo, the same judge who had held Lacaze's lawyer 
in contempt, and who had presided over the botched jury selection, was at the 
time of the trial under investigation for his own role in providing the murder 
weapon to Lacaze's co-defendant, the police officer Antoinette Frank. The judge 
not only did not recuse himself but did not disclose the problem to defense 
attorneys before or during the trial to allow them to seek his recusal. Worse, 
he may have disclosed his conflict in a private meeting with prosecutors (a 
meeting he also didn't disclose to the defense).

Marullo allegedly had signed an order authorizing the release of two weapons 
from the New Orleans Police Department's property and evidence room. Those 
guns, including the murder weapon, had found their way into the hands of 
Officer Frank through another cop named David Talley, who evidently gave the 
weapon to Frank as a favor. When Marullo was questioned about the order he 
denied signing it, essentially accusing Talley of forging his signature.

Investigators tried before and during the trial to get handwriting samples from 
him to compare with the signature on the order authorizing the release of the 
guns. He refused, arguing that he could not do so because he was busy presiding 
over the Lacaze case.

None of this convinced Louisiana's courts that Lacaze's trial was fatally 
flawed. Last week, however, Lacaze got a measure of good news. His current 
attorneys took the case to Washington in March, claiming that the Louisiana 
courts had applied the wrong legal precedent to his claims. The U.S. Supreme 
Court, without even hearing oral argument in the case, ordered the Louisiana 
high court to reevaluate its prior rulings in the case. It wasn't the jury 
misconduct that caught the attention of the justices. It was the judge's 
alleged malfeasance.

In March, in a Nevada case, the justices had overturned a murder conviction and 
death sentence in a case in which the judge was being investigated by 
prosecutors as part of a federal bribery probe. "Under our precedents," the 
justices wrote, "the Due Process Clause may sometimes demand recusal even when 
a judge 'has no actual bias.' Recusal is required when, objectively speaking, 
the probability of actual bias on the part of the judge or decisionmaker is too 
high to be constitutionally tolerable."

Will the Louisiana Supreme Court concede that Lacaze got nothing close to a 
fair trial? It may be another few years before we find out. The justices in 
Washington did not order the state court to give Lacaze a new trial. So there 
will likely be a new round of briefs, and a new round of hearings in New 
Orleans, and a new round of judicial opinions as the curious case of Rogers 
Lacaze rolls into its 3rd decade. No one I talked to about the case said they'd 
be surprised if the case found its way back to Washington before it's finally 
resolved.

(source: themarshallproject.org)








OHIO:

Luis Toledo trial: Testimony continues



Testimony continued Monday for a 4th day in the murder trial of a 35-year-old 
Deltona man who is accused of killing his wife and her 2 children.

Luis Toledo is accused of killing Yessenia Suarez, 28, and her children, Thalia 
Otto, 9, and Michael Otto, 8, who disappeared from their Deltona home in 
October 2013 and were never found.

Investigators said Toledo confessed to killing Suarez but denied killing her 
children. Prosecutors are seeking the death penalty in the deaths of the 
children.

Tyshawn Jackson, who was 21 at the time, was Toledo's neighbor and friend. The 
2 went to barber school together and would often carpool.

Jackson testified Monday about Oct. 23, 2013, the day of Suarez's 
disappearance. He said Toledo knocked on his bedroom window early in the 
morning, asking him to drop off Suarez's car at a Publix parking lot in 
Seminole County.

Jackson said he saw Toledo wiping down the car down and they left in Toledo's 
car to drop off cleaning products and trunk lining from Suarez's car at an 
apartment complex dumpster.

Toledo admitted to killing his Suarez in self-defense, but he claimed Jackson 
killed the children. Jackson denied that Monday.

Jackson said that while they were driving home from dropping off the car, 
Toledo said he "snapped."

Toledo's brother testified Monday that Toledo visited his home early in the 
morning and said that Suarez was cheating on him.

On Friday, jurors heard from 2 neighbors, who are sisters. One woman, who was 
13 years old at the time, said she heard a woman yelling for help around 
midnight on Oct. 23 at Toledo's home.

The woman testified that she found a large knife while walking home from school 
the next day.

Prosecutors believe the knife belongs to Toledo and that he tossed it from his 
car while police officers were following him.

(source: WFTV news)








ARKANSAS:

A stain on conscience



As a concerned citizen, I am writing in regards to the scheduled execution of 
Arkansas death row prisoner Jack Greene. I am shocked to hear that our state 
would pursue the execution of a man as severely ill as Jack Greene. I agree 
that carrying out such an execution would be a stain on the whole state's 
conscience. After all, the death penalty serves no legitimate purpose if the 
person being executed does not understand why he is being put to death.

At the very least, Arkansas should allow Jack Greene a hearing to examine his 
competency to be executed. I hope those who still have the power to intervene 
in Mr. Greene's case will do so and ensure that the state does not carry out 
the execution of this mentally ill man in our names.

BEN WRIGHT

Hot Springs

(source: Letter to the Editor, nwaonline.com