[Deathpenalty] death penalty news----TENN., KY., NEB., ARIZ., CALIF.

[Rick Halperin]

December 6



TENNESSEE----impending execution

Clemency application: Death row inmate 'is not the worst of the worst'



Gov. Bill Haslam is reviewing a clemency application received last week, asking 
him to commute the sentence of David Earl Miller to life in prison without 
parole. Miller was convicted of beating to death Lee Standifer -- a woman he 
was seeing – with a fireplace poker in 1981.

“David Miller accepts responsibility for the death of his friend,” Miller’s 
attorney Stephen Kissinger writes in a 12-page letter to the governor.

Kissinger claims Miller had been suffering from “severe mental illness” at the 
time of his crime, and that his mental state places him “far outside that group 
of offenders who are the worst and for whom the death penalty is reserved."

Kissinger also argues the jury that convicted Miller in 1981 didn’t have the 
benefit of a mental health expert to explain how mental illness may have 
prompted Miller’s crime – something now afforded to “indigent, mentally ill” 
defendants following a 1982 Supreme Court ruling. Kissinger argues, had the 
jury heard from such an expert, Miller wouldn’t have been sentenced to death, 
and may not have even been convicted of 1st-degree murder.

Haslam refused to grant clemency to either of the two death row inmates 
executed so far during his governorship, though he granted a 10-day reprieve to 
Edmund Zagorski so the state could have adequate time to prepare the electric 
chair for its 1st use in 11 years.

Haslam’s prior refusals to grant clemency suggest an uphill battle for Miller, 
who is the last inmate scheduled to be executed during Haslam's time as 
governor.

Miller is scheduled to be executed in the electric chair Thursday at 7 p.m.

Miller is also asking the U.S. Supreme Court to issue a stay of execution to 
address 2 separate legal issues. The high court declined to issue stays for 
either of the 2 other inmates executed this year.

Miller’s clemency application to the governor argues that the “thousands of 
traumas” Miller suffered as a child led to “brain damage, substance abuse, 
disassociation and psychosis,” leading up to the killing of Standifer.

Kissinger says that Gov. Haslam is the “fail safe” in the state and federal 
criminal justice system and is “the only person presently able to consider all 
the facts and dispense mercy."

The application concludes: "David Miller is not the worst of the worst."

(source: WTVF news)

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

Tennessee Plans to Electrocute Its 2nd Inmate in as Many Months



A Tennessee inmate is scheduled to become the 2nd person to die in the state’s 
electric chair in as many months Thursday evening, nearly 2 decades after 
Tennessee adopted lethal injection as its preferred method of execution.

Both David Earl Miller, 61, and Edmund Zagorski before him chose the electric 
chair over lethal injection, a process that proponents said would be painless 
and humane.

But the inmates argued in court that Tennessee’s current midazolam-based method 
causes a prolonged and torturous death. They pointed to the August execution of 
Billy Ray Irick, which took around 20 minutes during which he was observed 
coughing and huffing before turning a dark purple.

Their case was thrown out, largely because a judge said they failed to prove 
that a more humane alternative was available. Zagorski was executed Nov. 1.

In recent decades, states have moved away from the electric chair, and no state 
now uses electrocution as its main execution method, said Robert Dunham. Dunham 
is the executive director of the Death Penalty Information Center, which 
doesn’t take a stand on the death penalty but is critical of its application.

Georgia and Nebraska courts both have ruled the electric chair 
unconstitutional, and about 2 decades ago it looked as though the U.S. Supreme 
Court would weigh in on the issue. It agreed to hear a case out of Florida 
after a series of botched executions there. But Florida adopted lethal 
injection, and the case was dropped.

Dunham said he wasn’t aware of any state other than Tennessee where inmates 
were choosing electrocution over lethal injection.

In Tennessee, inmates whose crimes were committed before 1999 can chose 
electrocution over lethal injection. Zagorski’s execution was delayed about 3 
weeks after he requested the electric chair amid a last-minute flurry of legal 
maneuvers. The state initially refused his request until a federal court judge 
ordered the state to comply.

Gov. Bill Haslam ordered a brief reprieve to “give all involved the time 
necessary to carry out the sentence in an orderly and careful manner.”

The builder of Tennessee’s electric chair warned that it could malfunction, but 
Zagorski’s execution seemed to be carried out without incident. It was only the 
2nd time Tennessee had put an inmate to death in the electric chair since 1960.

The courts have said Miller can’t challenge the constitutionality of the 
electric chair because he chose it, even though his attorneys have argued the 
choice was coerced by the threat of something even worse.

Miller was convicted of killing 23-year-old Lee Standifer in 1981 in Knoxville. 
Standifer was a mentally handicapped woman who had been on a date with Miller 
the night she was repeatedly beaten, stabbed and then dragged into some woods.

Miller has spent 36 years on Tennessee’s death row, the longest of any inmate.

(source: time.com)

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

Death-row inmate awaiting word from court on stay of execution



A Tennessee death row inmate has selected a last meal as he awaits word on his 
execution from the U.S. Supreme Court.

The Tennessee Department of Correction says David Earl Miller will be served 
the meal on Thursday afternoon.

The 61-year-old inmate is scheduled to die in the electric chair at 7 p.m. that 
day.

Miller chose electrocution, as did Edmund Zagorski a month ago. They lost a 
lawsuit claiming Tennessee’s midazolam-based lethal injection method causes a 
prolonged and torturous death.

Miller still has 2 last-minute petitions asking the justices to halt his 
execution.

He was convicted of killing a 23-year-old mentally handicapped woman in 1981 in 
Knoxville. He has spent 36 years on death row, the longest of any Tennessee 
inmate.

(source: Associated Press)








KENTUCKY:

Murder victims' family pushes for death penalty in Kentucky----It has been 
decades since Sharon Vaughn McGeorge has been able to hug her father and she 
hates that his killer's execution has been delayed.



10 years ago was the last time Kentucky executed a death row inmate. Now, a 
judge who put executions on hold eight years ago, has the legal filings from 
both sides that could lead to hearings or a ruling.

In the meantime, victim's families are left to wait and question justice. One 
family spoke with WHAS11’s Chris Williams about the toll that years of 
uncertainty takes on survivors of brutal killings.

“Dad wouldn’t want to see me like this,” said Sharon Vaughn McGeorge as she 
cleaned the headstones of her father and uncle. “Me hurting and hating somebody 
so bad.”

Her father, Rodney Vaughn and his brother Lynn were murdered in 1991 by 
Kentucky’s most prolific killer. Her last memories of them are through the eyes 
of a devastated child.

More than 200 miles away, behind the razor wire and granite walls of Eddyville 
State Penitentiary lives Robert Foley, 62. His death row address is just feet 
from the room that houses "Old Sparky" and the gurney used to execute 
Kentucky's death row inmates.

The killings of the Vaughn brothers, and four other people in an unrelated 
case, earned Foley 2 separate death sentences.

“When the legislators passed lethal injection, they wasn't trying to be kind to 
us. The end results are the same electrocution or lethal injection,” Foley said 
during a 1998 interview with former WHAS11 reporter Stephanie Collins.

Kentucky law had just changed, introducing lethal injection and, since Foley's 
sentences came before March 31, 1998, he could choose between the chair or the 
needle.

“I hadn't gave it any real thought, but it's nice to have that kind of choice. 
If nothing else, like I said, more for my family than for myself,” Foley told 
Collins.

According to Foley, he determined his fate with the flip of a medallion. He 
chose lethal injection, but his date with the needle has been delayed due to a 
judge’s stay on executions.

Some have questioned whether families of victims ever truly get resolution when 
a judge hands down a death sentence.

It has been decades since Vaughn McGeorge has been able to hug her father and 
she hates that Foley’s execution has been delayed. She describes her wait as 
torture.

“I would love to be the one to push the button for him. That's how I feel about 
it. To me, that IV is an easy way for him. That IV is not enough pain for him. 
It couldn't come close to it. That IV is nothing of what he should feel,” 
Vaughn McGeorge said.

Since Kentucky resumed executions in 1976, only three have had their sentences 
carried out. The Kentucky Department of Public Advocacy said natural causes 
claimed nine others before the executioner could act.

Vaughn McGeorge’s hope is that Kentucky will reinstate the death penalty soon 
and she gets a front row seat at Foley’s execution.

“I will make sure he will split hell wide open,” Vaughn McGeorge said.

(source: WHAS-TV news)






NEBRASKA:

ACLU of Nebraska argues death penalty case in Supreme Court



The ACLU of Nebraska was back in court Wednesday, this time the state Supreme 
Court, arguing its case on behalf of eight men on death row, challenging the 
referendum that reinstated the death penalty in Nebraska.

And the state and attorneys representing individual defendants were there, too, 
after they had been successful in Lancaster County District Court in getting 
the lawsuit dismissed.

The lower court, when it dismissed the case, had agreed the plaintiffs' 
arguments could be taken care of in post-conviction motions in their criminal 
cases. Post-conviction motions are reviews by a court of convictions or 
sentences to determine if any mistakes were made along the way.

That question also came up Wednesday with the Supreme Court.

Brian Stull, a senior staff attorney with the ACLU Capital Punishment Project, 
said post-conviction relief is a "very narrow category of relief, available 
only to remedy prejudicial constitutional violations."

This claim is not that, he said, but rather for relief of the uncertainty of 
the plaintiffs not knowing whether they are subject to the death penalty or 
not.

Stull argued the Legislature's repeal of Nebraska's death penalty became 
effective Aug. 30, 2015, changing the punishments for the condemned men - 
including Jose Sandoval, Roy Ellis, Jorge Galindo, Nikko Jenkins, John Lotter, 
Raymond Mata, Marco Torres and Erick Vela - from death to life in prison. The 
lower court erred in dismissing that complaint, he said.

The law was not suspended before it went into effect, he said, because the 
signatures on the death penalty referendum to repeal the Legislature's action 
were not counted and verified by the Secretary of State's office until Oct. 16, 
2015. The law required that counting and verification to suspend the death 
penalty, he argued.

The court asked Stull if, under his interpretation, it would ever be possible 
to suspend a statute.

Yes, Stull said, but the requirement is onerous, as it should be, for 
suspending a law.

Also under his interpretation, would it allow the secretary of state, who 
oversees the referendum process, to drag his or her feet to prevent the 
suspension of a law?

"That is possible," he said, but added: "I don't think the court should presume 
the bad faith of the secretary of state."

Even with that, the ballot petitioners would have an opportunity in court to 
get the state official to follow the law, although there is no time limit on 
certification in the law.

Retroactive suspension of a law is unworkable, Stull told the court.

On the state side, Assistant Attorney General Ryan Post argued the death 
penalty repeal was suspended and never took effect, because the referendum is 
invoked when the signatures are filed.

He said the Constitution provides the procedure for how and when a referendum 
is invoked, and his interpretation is that suspension happens prior to the act 
taking effect.

Otherwise, he said, "it would place the ultimate decision on when a law was 
suspended in the hands of 93 counties, as this court ... rightly recognized, 
that could possibly drag their feet. And that would not facilitate the 
referendum process and would be contrary to the Constitution."

Post also argued that because in this case the plaintiffs are challenging their 
final criminal sentence, it should be done through post-conviction remedies, 
not in this manner.

Danielle Conrad, executive director of ACLU of Nebraska, said in a news release 
"The irreversible punishment of execution — the maximum and most solemn penalty 
our government can mete out — is a process that requires our government to be 
working fairly, even-handedly and transparently."

The case, she said, goes beyond the concerns of the ACLU clients in addressing 
the respect for good and workable governance in the referendum process and the 
Legislature’s ability to reform unduly harsh punishments in the thousands of 
cases beyond the death penalty.

"Today’s argument concerns Nebraska’s ability to reflect on whether overly 
harsh punishments are consistent with Nebraska values and effective criminal 
justice policy," she said.

In 2016, Nebraska voters approved the referendum ballot question 61 % to 39 %, 
reversing the Legislature's repeal of the death penalty and restoring capital 
punishment in the state.

In August, the state executed condemned prisoner Carey Dean Moore. It has also 
notified Sandoval of the drugs that would be used in his execution, but has not 
issued a death warrant.

Sandoval was convicted with Galindo and Vela of shooting and killing Lisa 
Bryant, Lola Elwood and Samuel Sun, all Norfolk; Jo Mausbach of Humphrey; and 
Evonne Tuttle of Stanton in a 2002 botched bank robbery in Norfolk.

Lotter is now the man who has been on death row the longest, but he has 
received no notification of lethal injection drugs to be used in his sentence.

(source: Lincoln Journal Star)

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

Nebraska's death penalty repeal was temporary, but it changed inmates' 
sentences, ACLU argues



Was the State Legislature’s repeal of the death penalty in effect long enough 
to give the members of Nebraska’s death row a new sentence of life in prison?

Yes, an attorney with a leading civil rights organization told the Nebraska 
Supreme Court on Wednesday.

Brian Stull, a North Carolina-based lawyer with the American Civil Liberties 
Union, told judges that the repeal went into effect on Aug. 30, 2015, and 
wasn’t suspended until Oct. 16, when petition signatures were verified as 
sufficient to force a voter referendum on the future of capital punishment.

“Because a repeal was in effect, my clients no longer face the death penalty,” 
he said.

That was disputed by attorneys representing the state, Gov. Pete Ricketts and 
sponsors of the referendum. They argued that a Lancaster County judge was 
correct in dismissing the ACLU’s lawsuit 10 months ago. The repeal of the death 
penalty never went into effect, they said, because, 4 days before it was to be 
enacted, it was suspended when the referendum signatures were turned in.

Ryan Post of the Nebraska Attorney General’s Office also maintained that the 
power to change final criminal sentences is reserved only for the State Pardons 
Board.

“I don’t believe the Legislature can change the final sentences,” Post said. 
“They can change sentences (only) going forward.”

Supreme Court judges, who will rule later on the case, had several questions 
for the attorneys, who presented conflicting arguments on whether a law is 
suspended when referendum petitions are turned in or later, when they are 
verified as sufficient to force a vote.

Nebraska voters, by a large margin, restored the state’s death penalty at the 
ballot box in 2016. A year later, the ACLU of Nebraska filed suit, seeking a 
judgment that death row inmates’ sentences had been changed to life in prison 
because the Legislature’s 2015 repeal had gone into effect, if only for a few 
weeks. Lancaster County District Judge John Colburn rejected those arguments in 
February, prompting an appeal and Wednesday’s oral arguments.

The ACLU had argued earlier this year that the planned execution in August of 
death row inmate Carey Dean Moore should be postponed until their appeal was 
decided. But that claim was rejected and the execution of Moore — the state’s 
1st in 21 years — was carried out.

On Wednesday, Stull argued that if the Legislature lacks the power to change 
sentences, that could prevent lawmakers from reforming overly harsh criminal 
sentences. He added that allowing the mere submission of petitions — before 
they are counted and verified — to suspend a law would frustrate the powers of 
the Legislature.

He also argued that the case wasn’t about jurisdiction but about clarifying 
that the death penalty repeal had gone into effect.

Post, meanwhile, said the signatures turned into the Nebraska Secretary of 
State on Aug. 26, 2015, exceeded the requirement - more than 10 percent of 
registered votes in the state - necessary to suspend the repeal of the death 
penalty until voters decided. So the repeal never went into effect, he said.

“The only way we can read the state constitution,” he said, was that the repeal 
was suspended “upon filing” of the petitions. There is no requirement that they 
be verified first, Post said.

Attorney J.L. Spray, who represented the sponsors of the referendum to restore 
the death penalty, said that changing the death row sentences to life in prison 
would “frustrate, chill or destroy” the right of voters to override decisions 
by the Legislature.

(source: Omaha World-Herald)








ARIZONA:

Mesa man, charged in 3 deaths, deemed mentally fit



A man charged with killing 3 people in burglaries in metro Phoenix nearly 6 
years ago that ended with the victims' homes set on fire has been deemed by a 
judge to be mentally fit to move forward with his criminal case.

Michael Lee Crane, of Mesa, faces murder, kidnapping and other charges in the 
January 2012 killings of Bruce Gaudet at his Phoenix townhome and of Lawrence 
and Glenna Shapiro at the couple's home in upscale suburb of Paradise Valley. 
Prosecutors are seeking the death penalty.

Superior Court Judge Warren Granville said in a ruling last week that Crane 
wanted to plead guilty in the murder case in February 2017, but the judge held 
off on resolving the case and instead ordered a mental health evaluation to 
determine Crane's mental competency.

Crane had claimed he was Lucifer at a 2015 hearing over his mental competency 
and was removed from the courtroom at several hearings after making obscene 
statements to people inside the courtroom, according to court records.

It's unclear whether Crane intends to follow through on his earlier plans to 
plead guilty in the killings. His attorney, Herman Alcantar, did not return 
telephone messages seeking comment.

Granville wrote that there's no dispute that Crane, who earlier in the case had 
refused to cooperate with his attorneys and tried unsuccessfully to represent 
himself, is aware of the circumstances and nature of the court proceedings.

The judge said the only issue over Crane's mental fitness is whether his 
failure to consult with his lawyers was the result of a mental disease or a 
choice he made.

The latest ruling by Granville found Crane to be mentally fit to move forward 
and repeatedly noted that Crane cooperated with court proceedings when he was 
working toward a goal, such as making sure he could be excused from attending a 
court hearing.

"This court's experience, over a long period of time and on many occasions, 
reflects a calculating decision-making process rather than an impelled 
compulsive behavior," Granville wrote.

Most of the litigation in the murder case over the past 21 months has focused 
on Crane's mental fitness.

Crane, 38, is still awaiting sentencing after pleading guilty in 2017 to 
separate but related crimes that were carried out in the days after the 3 
killings.

In that case, Crane pleaded guilty to burglary, attempted burglary, aggravated 
assault and robbery charges in a February 2012 spree at several homes in metro 
Phoenix.

Authorities say shoes recovered at an attempted burglary scene during the spree 
had been stolen days earlier from Gaudet's home. They said Crane's DNA was 
found on the shoes. Prosecutors say Crane was known for removing his shoes 
before entering homes during burglaries.

Authorities say a gun used in the 3 killings was found in Crane's possession 
when he was arrested in the separate crime spree.

In the killings, prosecutors say Crane bound and fatally shot the 3 victims at 
their homes, stole their jewelry and other valuables, and torched their homes. 
The Shapiros were killed 4 days after Gaudet.

Authorities have said Maricela Otilia Sanchez, 32, of Phoenix was found driving 
Gaudet's SUV near Yuma on the same day he was killed. She has since pleaded 
guilty to first-degree murder and kidnapping in Gaudet's death.

Sanchez was sentenced to nearly 9 years in prison for the car theft, but is 
awaiting sentencing on her murder and kidnapping convictions.

3 other people accused of possessing items stolen in both fatal burglaries have 
since pleaded guilty to charges.

2 additional people also pleaded guilty to hindering prosecution for 
suppressing evidence that authorities believed would have led to Crane.

(source: azcentral.com)








CALIFORNIA----2 death row inmates die

Probe of drugs in San Quentin death row; 2 inmates die in 2 days



An investigation is underway to determine how drugs made it to death row at San 
Quentin State Prison, where 2 inmates died in their cells this week, 
corrections officials said Wednesday.

Officials were awaiting the results of an autopsy to determine if the deaths 
were related to drug use, according to a statement from the California 
Department of Corrections and Rehabilitation.

The statement said health care staff is increasing outreach and education to 
inmates about the dangers of drugs.

Corrections spokeswoman Terry Thornton declined to say what drugs were brought 
into the prison.

Joseph A. Perez, Jr. from Contra Costa County died Tuesday at the prison, the 
department said Wednesday.

Perez was found unresponsive in his cell at 9:11 p.m. Emergency lifesaving 
measures were started immediately, but Perez was pronounced dead at 9:21 p.m., 
the department said.

Perez was sentenced to death in Contra Costa County on Jan. 25, 2002, for the 
March 24, 1998, murder of Janet Daher, 46, who was strangled and stabbed in her 
Lafayette home during a home-invasion robbery.

On Monday, Herminio “Spankio” Serna, 53, a gang member sentenced to death in 
1997 for multiple murders in San Jose, died at the prison, according to the 
department.

Serna was found unresponsive in his cell, the department said. Prison personnel 
gave Serna CPR and called an ambulance, but he was pronounced dead about 8:35 
p.m.

Since 1978, when California reinstated capital punishment, 79 condemned inmates 
have died from natural causes, 25 have committed suicide, 13 have been executed 
in California, 1 was executed in Missouri, 1 was executed in Virginia, 11 have 
died from other causes and 4 – including Perez – are pending a cause of death. 
There are currently 740 offenders on California’s death row.

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

Man guilty of San Jose murders dies on San Quentin death row



A gang member sentenced to death in 1997 for multiple murders in San Jose died 
at San Quentin State Prison on Monday, according to the California Department 
of Corrections and Rehabilitation.

Herminio “Spankio” Serna, 53, was found unresponsive in his one-person cell on 
death row, said CDCR spokeswoman Terry Thornton. Prison personnel gave Serna 
CPR and called an ambulance, but he was pronounced dead about 8:35 p.m. A cause 
of death is pending.

“The circumstances of his death are being investigated,” Thornton said.

Serna belonged to the notorious Northern California Latino prison gang Nuestra 
Familia. During his trial, prosecutors said members wanted to control San 
Jose’s drug trade and command respect on the streets, and to achieve those 
goals, members killed associates who disobeyed orders and witnesses who 
threatened to expose them.

Serna was sentenced to death by a Santa Clara County jury on Nov. 21, 1997, for 
the murders of Esteban Guzman, Marcos Baca and Sheila Apodaca. His partners in 
crime, 66-year-old James Trujeque and 53-year-old Bobby Lopez Jr., were also 
sentenced to death that year for a series of gang-related murders in the San 
Jose area.

Serna had been on death row since Nov. 26, 1997.

Since 1978, when California reinstated capital punishment, 79 condemned inmates 
have died of natural causes, 24 have committed suicide, 15 have been executed, 
11 have died of other causes and 3 — including Serna — are pending a cause of 
death, according to the CDCR. There are currently 741 offenders on death row in 
the state.

(source for both: Marin Independent Journal)