[Deathpenalty] death penalty news----IND., MO., NEB., UTAH

[Rick Halperin]

Jan. 11


INDIANA:

Court of Appeals denies post-conviction relief for murderer



After years of trying, Franklin County convicted murderer David Ison, now 52, 
won an appeal almost a year ago.

The 3 Court of Appeals judges involved in the March 14, 2017, decision directed 
Franklin Circuit Court Judge Steven Cox "to make specific findings of fact and 
conclusions of law with respect to Ison's claims of ineffective assistance of 
trial counsel and involuntariness of his guilty plea."

The court document summarized the case. "On Sept. 25, 2011, Roy Napier, Angela 
Napier, Melissa Napier, Jacob Napier and Henry Smith (parents, 2 children and a 
neighbor) were murdered in Franklin County (at Stipps Hill Road near Laurel). 
Shortly thereafter, Ison became a suspect and blood and DNA evidence were 
recovered from his (Glenwood) home, as well as 2 firearms that had been used in 
the shootings. At the time of the killings, Ison was on probation for unrelated 
convictions on 10 counts of burglary. In sum, Ison had 20 prior felony 
convictions.

"The state charged Ison with 5 counts of murder (Counts I through V) on Oct. 7, 
2011. Franklin County Prosecutor Melvin Wilhelm struggled with whether to seek 
the death penalty and eventually consulted with the Indiana Prosecuting 
Attorneys Council's capital litigation committee, which advised him to seek the 
death penalty."

Nevertheless, according to the court document, "Wilhelm spoke with Ison's trial 
counsel, Hubert Branstetter, regarding the possibility of a plea agreement in 
which Ison would plead guilty to life imprisonment without parole (LWOP) to 
avoid the death penalty." The defendant signed the document, agreeing to LWOP. 
This document, which Ison believed to be a plea agreement, was never filed with 
Franklin Circuit Court."

On Dec. 28, 2017, Indiana Court of Appeals Judge Mark Bailey wrote a memorandum 
decision, affirmed by Judges James Kirsch and Rudolph Pyle III. Their 
conclusion: "Ison has not demonstrated his entitlement to post-conviction 
relief on grounds of involuntariness of his pleas or the ineffective assistance 
of counsel. The post-conviction court did not erroneously deny Ison 
post-conviction relief."

Ison presented 2 issues for review:

-- Whether he entered his pleas involuntarily due to a lack of waiver of his 
Boykin rights; and

-- Whether his trial counsel was ineffective for engaging in deception to 
secure a plea agreement and for failing to ensure that Ison affirmatively 
waived his Boykin rights.

In Boykin vs. Alabama, the Supreme Court held that it was reversible error for 
the trial court to accept a guilty plea without an affirmative showing that it 
was intelligent and voluntary. "More particularly, Boykin requires that the 
record must show, or there must be an allegation and evidence which show, that 
the defendant was informed of, and waived, 3 specific federal constitutional 
rights: the privilege against compulsory self-incrimination, right to trial by 
jury and the right to confront one's accusers."

On June 9, 2017, Cox "entered findings of fact, conclusions thereon, and an 
order denying Ison post-conviction relief. This appeal ensued."

The court decision noted, "The post-conviction court made factual findings that 
Ison had, at the initial hearing on Amended Count VI, been advised by the trial 
court of his rights and potential penal consequences. Second, the 
post-conviction court concluded that Ison, having entered numerous guilty pleas 
in the past, must have understood that he was waiving his Boykin rights by 
pleading guilty.

"Ison now contends, 'If I would have been given my Boykin rights before I pled 
guilty to counts I, II, III, IV and V, I argue I would have never plead (sic) 
guilty"; "Also the way the hearings were done mislead (sic) me: making me think 
that I did not have the Boykins (sic) for Counts I, II, III, IV and V, only for 
Count VI they gave them to me in the context of Count VI I didn't even know I 
had them for Counts I, II, III, IV and V"; and "If I knew I had the Boykin 
rights for Counts I, II, III, IV and V, I would have insisted on a jury trial," 
noted the appellant's brief.

According to the court document, "At the post-conviction hearing, Ison 
testified in narrative form and, in relevant part, stated: "I didn't understand 
what exactly it was. All I knew is I was coming over here to plead guilty." ... 
However, Ison had been convicted of 20 prior felonies, primarily in guilty plea 
proceedings. As for Ison's claim that his substance use had rendered him unable 
to comprehend and remember prior advisements, it is belied by his assertions at 
the guilty plea hearing. The post-conviction court did not find Ison's claim of 
misunderstanding to be credible ...

"Ison also contends that his trial counsel was ineffective. Specifically, Ison 
claims that his counsel conspired with the prosecutor and the trial court judge 
to withhold information as to the minimum sentence available and to manipulate 
Ison into agreeing to a LWOP sentence. According to Ison, his attorney 
affirmatively misled him into thinking that a death penalty allegation had been 
formally filed, failed to properly pursue Ison's desire to withdraw his guilty 
pleas and failed to ensure that Ison understood his right to appeal."

The Indiana Court of Appeals noted, "We will not second-guess trial counsel's 
strategy and tactics unless they are so unreasonable that they fall outside 
objective standards ... Isolated mistakes, poor strategy, inexperience and 
instances of bad judgment do not necessarily render representation 
ineffective."

The document continued, "We observe that Ison did not call his trial counsel as 
a witness at post-conviction proceedings. Thus, the post-conviction court was 
permitted to infer that Ison's counsel would not have corroborated Ison's 
allegations of deception, collusion and intentional withholding of pertinent 
information. So, too, could the post-conviction court infer that trial counsel 
would not corroborate Ison's testimony that he demanded that counsel attempt 
withdrawal of the guilty pleas and counsel reported back to Ison that he 
attempted withdrawal, but the judge flatly refused and said that Ison was 
fortunate to escape death.

"Without trial counsel's testimony or other witnesses, we are left with Ison's 
testimony that he would have insisted upon going to trial had he known that a 
death penalty request had not been formally filed and that a person convicted 
of murder could potentially receive a minimum sentence of 45 years."

"The State appeared to have overwhelming evidence against Ison, including 
physical evidence, DNA evidence, and a statement from Ison's girlfriend, who 
claimed that she had been outside the residence at the time of the murders. 
Ison's purported motivation was his desire to obtain prescription drugs."

Ison remains incarcerated at the Wabash Valley Correctional Facility, Carlisle.

(source: The Herald-Tribune)








MISSOURI:

Will Craig Wood be put to death? A judge likely to decide sentence Thursday.



A judge is expected to sentence Craig Wood on Thursday for the February 2014 
killing of Springfield 10-year-old Hailey Owens.

A jury convicted Wood of 1st-degree murder in November but could not come to a 
unanimous decision on sentencing.

The decision on whether Wood should get the death penalty or life in prison now 
falls to Judge Thomas Mountjoy.

The sentencing hearing has been scheduled for 2:30 p.m. at the Greene County 
Courthouse.

The 1st order of business at the hearing is for Mountjoy to take up a motion 
for a new trial that was filed by Wood's attorneys.

Wood's defense attorneys filed the motion in December saying Mountjoy made some 
errors at trial that prevented Wood from getting a fair trial.

If Mountjoy denies the motion for a new trial, he will then take up a 2nd 
motion filed by the defense.

That second motion argues Mountjoy should only be able to sentence Wood to life 
in prison since Missouri's procedure of judges imposing death sentences after 
juries deadlock is unconstitutional.

If Mountjoy denies the 2nd motion, then he will proceed to the sentencing, with 
2 options for Wood - life in prison without the possibility of parole or the 
death penalty.

Hailey's mother, Stacey Herman, told reporters after Wood's trial that she 
would be at peace with either sentence.

Missouri is one of only a few states that put the decision on a judge when the 
jury can't reach a consensus on death penalty sentencing.

In federal court and most other states with the death penalty, the sentence is 
automatically life in prison when the jury deadlocks during the sentencing 
phase.

As the defense's motion points out, there's some debate about the 
constitutionality of judge-imposed death sentences.

In 2016, the U.S. Supreme Court decided in Hurst vs. Florida that "the Sixth 
Amendment requires a jury, not a judge, to find each fact necessary to impose a 
sentence of death."

In Wood's case, the jury found that the aggravating factors were proven beyond 
a reasonable doubt and the mitigating factors did not outweigh the aggravating 
factors.

Those findings are necessary for the death penalty to be an option in Missouri, 
but they do not make the death penalty the only option. The jurors - and in 
this case, the judge - still have a choice between life and death.

Prosecutors say the jury made the factual findings in Wood's case, and the 
judge can simply review those findings before making a decision.

A Platte County jury convicted the 49-year-old Wood of first-degree murder 
after a 4-day trial in November.

Wood abducted Hailey while the 10-year-old girl was walking in the 3200 block 
of West Lombard Street on Feb. 18, 2014.

Prosecutors say Wood yanked Hailey into his truck, took her to his home about 
10 minutes away, raped her and shot her in the head while her arms were bound.

Hailey's body was found, hours after the abduction, wrapped in garbage bags in 
the basement of Wood's home on East Stanford Street.

A march and vigil for slain 10-year-old Hailey Owens drew thousands of people 
in 2014. Jackie Rehwald and Dean Curtis

4 days after Hailey's death, an estimated 10,000 people marched in a 
candlelight vigil on Commercial Street in Springfield. The Jefferson Avenue 
Footbridge, where the march ended, was illuminated in purple, Hailey's favorite 
color.

At Wood's trial, several people close to Hailey took the stand and described 
Hailey as a bubbly girl who was always smiling and would often shift between 
"girly girl" and "tomboy."

During the trial, Wood's attorneys did not dispute that Wood killed Hailey. 
They pushed for a 2nd-degree murder conviction, saying Wood did not deliberate 
before acting.

(source: Springfield News-Leader)








NEBRASKA:

As Nebraska death penalty case advances, pace of appeals may increase

2018 will be a busy year for everyone involved in advancing and opposing 
Nebraska's death penalty.

After months of quiet following the 2015 referendum vote re-instating capital 
punishment, a set of developments have kept attorneys busy in response to 
developments.

Here's a rundown of current developments.

Death Row vs. Governor Ricketts.

TIMELINE:

Nebraska & Lethal Injection

December 3, 1997: Robert Williams is the last person to be executed in Nebraska 
using the electric chair.

February 8, 2008: Nebraska Supreme Court rules death by electrocution is "cruel 
and unusual" and thus unconstitutional.

May 28, 2009: Governor David Heineman signs bill replacing the electric chair 
with lethal injection

January 24, 2010: Pharmaceutical company Hospira, the only U.S. based maker of 
sodium pentathol, announces it will no longer sell the drug for use as a lethal 
injection drug.

February 10, 2010: Governor Heineman approves lethal-injection protocol.

July 7, 2010: New facility to be used for lethal injection executions is 
completed.

January 7, 2011: Corrections officials obtain sodium thiopental from 
India-based supplier.

January 21, 2011: Corrections announces it is "prepared to carry 
out...executions."

April 21, 2011: Nebraska Supreme Court sets execution date for Carey Dean 
Moore.

April 2011: U.S. Drug Enforcement Administration informs corrections officials 
they did not have a license to import drug and it can not be used in 
executions.

May 25, 2011: Moore execution postponed as Nebraska Supreme Court considers 
whether the source of lethal injection drugs should be considered.

June 29, 2011: Nebraska gets a proper import license from DEA.

October 25, 2011: Nebraska obtains fresh supply of sodium thiopental.

January 11, 2012: Nebraska Supreme Court issues execution warrant for Michael 
Ryan.

February 22, 2012: Nebraska Supreme Court grants Ryan a stay of execution while 
issues over drug acquisition are reviewed in Richardson District Court. Judge 
later rejects argument.

August 2012: 1st batch of sodium thiopental expires.

October 4, 2013: Attorney General Bruning says Nebraska needs a new lethal 
injection protocol.

December 2013: Last of lethal injection drugs expire. State unable to carry out 
executions.

April 18, 2014: Nebraska Supreme Court denies all of Ryan's requests to delay 
execution.

May 25, 2015: Ryan dies of cancer before new protocol is set and supplies of 
execution drugs located.

May 27, 2015: The Nebraska Legislature overrides a veto of Governor Pete 
Ricketts, removing the death penalty from state law.

November 8, 2016: In a referendum supported by Ricketts, 60% of Nebraska voters 
elect to keep the death penalty and lethal injection as state law.

January 26, 2017: Ricketts signs new, more flexible execution protocol, 
allowing acquisition of necessary drugs to resume.

November 9, 2017: Attorney General informs Jose Sandoval the state is prepared 
to use a four-drug protocol, signaling a death warrant could be issued in 2018. 
Legal challenges begin.

****

On the 1st week of 2018 attorneys for both sides of the issue faced off in 
court. A judge will decide whether to delay or even halt the executions of all 
11 men currently sentenced to die by lethal injection in Nebraska.

The lawsuit, filed by the Nebraska Chapter of the American Civil Liberties 
Union (ACLU) on behalf of 11 men facing the death penalty, challenges the 
legality of the 2016 petition drive and ballot referendum re-instituting the 
death penalty.

In that election 60 % of Nebraskans voted to over-turn the legislature's 
decision to end capital punishment.

Attorneys from the ACLU claims the Governor improperly put the petition drive 
in-motion and then spent hundreds of thousands of dollars to finance the 
campaign, stating in the original complaint the petition drive was "an unlawful 
exercise of power by the executive branch." State Treasurer Don Stenberg also 
played an active role in the initiative.

The ACLU claims elected officials, while in office, should not have the power 
to campaign against laws passed by the Legislative branch, that it should have 
been organized by citizens outside of government. They claim the governor and 
treasurer in the Executive Branch violated a separation of powers.

Stenberg's attorney, J.L. Spray labeled the argument "ridiculous."

Ricketts had previously dismissed the latest legal challenge as "frivolous" and 
"a waste of taxpayer dollars."

At the hearing an attorneys representing those who administered pro-death 
penalty campaign, argued to have the case thrown out immediately.

They claim, in part, if anyone had objections to how the petition drive was 
organized it should have been done so before the election

The ACLU responded the timing is appropriate for its clients: those facing the 
death penalty. The lawsuit was filed after the state gave notice to Jose 
Sandoval he was the next person to be issued a death warrant.

Jose Sandoval awaits a death warrant.

Near the end of 2017 the Nebraska Attorney General sent Sandoval a letter 
listing the 4 drugs that the state intends to use to kill him by way of lethal 
injection. The notice is the 1st step in the process the state must follow to 
advance the execution of a person convicted of capital murder.

He is 1 of 3 men on death row convicted of murdering 5 people during a 2002 
bank robbery in Norfolk.

The state could take the next step, filing a death warrant with the Nebraska 
Supreme Court, at any time.

The state apparently selected Sandoval, in part, because he did not have any 
appeals pending as the end of the year approached. After the state gave notice 
of its intent, he filed a separate appeal late last year.

The appeal, filed in Madison County District Court, claims in 2015 the state 
legislature altered the death sentences at the time of its historic vote to end 
capital punishment. Although voters later elected to stick with capital 
punishment, the lawsuit argues those inmates on death row got a life sentence.

The court filing argues "the State has ping-ponged Mr. Sandoval from death to 
life and to death again. His individual fate became hostage to an ongoing 
political contest between the Legislature, the Governor, and the voters."

The same argument appears in the later lawsuit filed in Lancaster County on 
behalf of the other's sentenced to die.

Judge John Colburn must decide if the state obligated to hold hearings to 
resentence those inmates back to a death sentence or if the case is without 
merit.

Pro-death penalty attorneys argued at the January hearing it represented a big 
stretch in the intent in laws governing sentencing.

Is Nebraska ready for lethal injection?

The state claims to be prepared, having obtained the needed drugs for the 
execution of Sandoval. There are 4 drugs planned for use in the sequence.

The protocol revealed by the Nebraska Department of Correctional Services 
(NDCS) in November uses a sequence of 4 drugs in the specially designed room at 
the Nebraska State Penitentiary.

2 are muscle relaxants in regular use by doctors.

Diazepam, commonly known as Valium, induces drowsiness and reduces muscle 
spasms and Fentanyl Citrate is employed by anesthesiologists for surgery. A 3rd 
drug, Cisatracurium induces paralysis in the body. The 4th and fatal drug is 
potassium chloride.

It appears no executions have ever been carried out using this combination of 
drugs.

The prison system in state of Nevada developed this drug cocktail. There are 
objections from the convicted man scheduled to be the 1st to die using the 
procedure. There have been concerns raised by death penalty opponents about the 
drug that brings on paralysis, fearing if something was amiss and the earlier 
drugs brought on tortuous pain, the paralysis would make the subject unable to 
respond.

A judge has delayed its use indefinitely.

The company who manufactures and sells 2 of those drugs...Pfizer... demanded 
Nebraska return the drugs they sold to the state, claiming they were never 
intended to be used cause the death of a person. According to the Omaha World 
Herald, neither NDCS or the drug company would say if the drugs were returned.

The state has provided limited information about the origin of the drugs and 
the process used to obtain them. The ACLU and the state's 2 largest newspapers 
have sued, believing there are files and data being withheld which should be 
available to the public.

(source: netnebraska.org)








UTAH:

Intellectual disability claim now at the center of decades-old death penalty 
case before Utah Supreme Court



A Utah man who has been on death row for nearly 30 years is back in state court 
fighting his capital murder conviction.

Attorneys for Michael Anthony Archuleta, now 55, argued before the Utah Supreme 
Court on Wednesday that their client is intellectually disabled, and therefore, 
legally cannot be executed.

The claim was initially made in a federal court appeal for Archuleta, who has 
been on Utah's death row since his December 1989 conviction of the brutal 
murder of 28-year-old Southern Utah State College student Gordon Ray Church.

But because the intellectual disability claim had not been brought before the 
state courts before, that portion of the federal appeal was sent to the state's 
highest court for consideration.

Archuleta's attorney, Charlotte Merril, argued Wednesday that her client's 
previous counsel in state court was "conflicted, underqualified and 
underfunded" and failed to see the "red flags" of Archuleta's intellectual 
disability.

Lawyers with the Utah attorney general's office countered by arguing that 
Archuleta's current attorneys waited until the last possible moment to raise 
the concern in an effort to further delay appeals that have stretched for 
decades. He called it a "victory" for a defense team to delay an execution, 
noting that the 2012 federal appeal has been at a near stand-still since 
Archuleta's attorneys raised concerns of intellectual disability.

"A guilty person on death row has every incentive to wait until the last 
possible minute to gum up claims," argued Aaron Murphy, assistant solicitor 
general.

But Merril disagreed.

"Sitting on death row while intellectually disabled is not a victory," she 
said.

The Utah Supreme Court took the matter under advisement, and will issue a 
written ruling. If the high court rejects the arguments - making it the 6th 
time that the state courts has rejected Archuleta's appeals - the federal 
appeal will still continue.

On Nov. 21, 1988, then-parolees Archuleta and Lance Conway Wood drove Church to 
a remote location in Millard County. There, they attached jumper cables to 
Church's testicles, used the car battery to shock him, raped him with a tire 
iron, beat him with a car jack and buried him in a shallow grave.

In separate trials, Archuleta and Wood each were convicted of capital murder. 
Wood was sentenced to life in prison, while Archuleta was sentenced to death.

He is 1 of 9 men currently on Utah's death row.

(source: Salt Lake Tribune)