[Deathpenalty] death penalty news----LA., IOWA, CALIF.

[Rick Halperin]

Jan. 15



LOUISIANA:

U.S. Supreme Court rejects one of condemned killer Todd Wessinger's petitions; 
another pending



More than 2 decades have passed since an East Baton Rouge Parish jury decided 
Todd Wessinger should die for killing 2 Calendar's Restaurant employees during 
a 1995 robbery, and the Baton Rouge man is still fighting for a new trial.

That fight, however, could be nearing an end.

The U.S. Supreme Court on Jan. 8 effectively rejected the 50-year-old 
Wessinger's claims that the performance of his attorneys during the jury 
selection and guilt phases of his 1997 trial was constitutionally deficient, 
and that prosecutors failed to provide his defense team with evidence favorable 
to him.

"We are glad that the Supreme Court has reviewed the claims raised by Wessinger 
in his federal appeal and rejected the vast majority of them," East Baton Rouge 
Parish District Attorney Hillar Moore III said.

Wessinger has another petition pending at the high court challenging the 
performance of his lawyers during the trial's penalty phase.

"At this point, we are awaiting the Supreme Court's decision on the pending 
petition," said Federal Public Defender Rebecca Hudsmith, who represents 
Wessinger.

Moore said his office is hopeful the high court will reject Wessinger's 
remaining claims in the next couple of weeks.

"Obviously, this has been a long and arduous process for the victims' families. 
We hope to bring them some sense of finality in the near future," he added.

Wessinger is on death row for fatally shooting Calendar's manager Stephanie 
Guzzardo, 27, and fellow worker David Breakwell, 46, at the now-closed Perkins 
Road restaurant on Nov. 19, 1995.

Wessinger, a former Calendar's dishwasher at the time, shot a 3rd employee in 
the back. That worker survived. Wessinger's gun jammed when he tried to shoot a 
4th employee in the head.

Guzzardo's father, Wayne Guzzardo, has told The Advocate that Wessinger dying 
for his crimes would mean justice for his daughter.

Last summer, a federal appeals court in New Orleans reinstated Wessinger's 
death sentence, which had been thrown out by Senior U.S. District Judge James 
Brady in 2015. Brady, who passed away last month, had ruled Wessinger's 
attorneys provided him ineffective assistance at the penalty phase of his 
trial.

Wessinger claims his trial attorneys, Greg Rome and the now-deceased Billy 
Hecker, were appointed to represent him just 6 months before the trial began 
and were ill prepared.

In Wessinger's petition, which was denied Jan. 8 by the Supreme Court, Hudsmith 
argued that Wessinger's lawyers failed to interview eyewitnesses and other key 
state witnesses and otherwise failed to conduct an adequate investigation into 
the guilt phase of the trial. She also alleged Wessinger's attorneys failed to 
investigate and present a coherent theory of defense against 1st-degree murder 
and the death penalty.

"The end result was a guilt phase trial at which no defense was presented 
against the State's theory of the crime and the level of (Wessinger's) 
culpability," she wrote. "This lack of investigation and preparation and 
failure of advocacy adversely affected the entire trial and the fundamental 
fairness of the proceeding."

In their opposition to his Supreme Court petition, prosecutors countered that 
Wessinger received constitutionally effective counsel throughout the 
proceedings and has failed to show how any error by his attorneys prejudiced 
him to the point of depriving him of a fair and impartial trial.

"Despite the fact that 2 attorneys represented this petitioner at trial, and he 
had the assistance of experts and investigators, petitioner blatantly argues to 
this Court that no investigation was done," East Baton Rouge Parish Assistant 
District Attorney Dale Lee, Special Assistant Attorney General John Sinquefield 
and Assistant Attorney General Kurt Wall argue in the opposition. "This is 
blatantly inaccurate and contradicted by the state court record."

Sinquefield prosecuted Wessinger.

They also noted that Wessinger "effectively mooted" the efforts of his trial 
attorneys during the guilt phase by admitting the crime to a defense 
psychiatrist. Wessinger told the psychiatrist he had shot at least three 
people, and that after he heard he was a suspect he fled to the Dallas area. 
The psychiatrist testified at the trial.

The main problem encountered by Wessinger's attorneys at the guilt phase of his 
trial was the "overwhelming evidence" against him, the prosecutors added.

That evidence, they said, included eyewitness testimony, the recovery of the 
murder weapon, witnesses who indicated Wessinger test-fired the gun, his 
boasting before and after the crime.

Wessinger's attorneys "had the unenviable task of defending a guilty murderer 
who left a trail of guilt behind him that even a blind man could follow," the 
prosecutors stressed.

Hudsmith also argued in Wessinger's petition that his attorneys failed to 
challenge one of the 12 jurors who Hudsmith says explicitly admitted during 
jury selection that she would vote for the death penalty automatically if a 
guilty verdict was returned.

Prosecutors pointed out, however, that the woman responded affirmatively when 
asked if she could consider mitigating factors.

And although Hudsmith also argued the state suppressed evidence that was both 
material and favorable to the defense, prosecutors said the state provided 
"open file" discovery to Wessinger's attorneys.

(source: theadvocate.com)








IOWA:

Lawmakers will debate returning death penalty to Iowa



Bringing the death penalty back to Iowa likely will get debated but probably 
not approved during the 2018 legislative session, key lawmakers say.

Sen. Brad Zaun, R-Urbandale, chairman of the Senate Judiciary Committee, said 
he plans to assign a subcommittee to take up Senate File 335 with an eye on 
possibly expanding the provisions, but he is uncertain how far the issue may go 
in a session already loaded with more pressing priorities.

S.F. 335, introduced by a group of Senate Republicans last session, would 
restore capital punishment in Iowa for the 1st time since 1965 by establishing 
a 2-pronged process.

A jury or judge could convict a perpetrator of committing multiple class A 
offenses, and separately make a decision whether to execute the offender by 
lethal injection. Any death penalty conviction automatically would be appealed 
to the Iowa Supreme Court, and juvenile offenders would be exempted.

Proponents say it would allow capital punishment in cases where an adult 
kidnaps, rapes and murders a minor. Zaun said there are some who would like to 
expand it to situations where police officers are killed in the line of duty or 
other heinous circumstances.M

"My promises at this point are that I will promise that I will assign a 
subcommittee and the subcommittee will hold a hearing so people could weigh in 
on whether they're for or against that," he said. "I think considering some of 
the tragedies that have happened here in the state of Iowa, and I've heard from 
so many Iowans who would at least like to have the conversation started."

One of those is Sen. Jerry Behn, R-Boone, the bill???s lead sponsor who has 
raised the issue for nearly 2 decades in the Legislature without success in 
getting it passed.

"Right now in Iowa, if you kidnap and rape someone, there's a perverted 
incentive to murder your victim because you're no worse off. I think that's not 
appropriate at any level and we've had a couple horrific crimes of similar 
nature in the past and I would just as soon not wait for another one of those 
horrific crimes before we try to do something about it," Behn said. "That was 
the genesis of introducing the bill in the first place to fix that."

The Boone Republican said he believes the death penalty is a deterrent to crime 
worth considering and believes it would get public backing if it were a topic 
of discussion again in the Legislature, although he has not gauged support for 
it among legislators.

Sen. Rich Taylor, D-Mount Pleasant, a ranking member of the Senate Judiciary 
Committee who worked for 27 years in the Iowa State Penitentiary in Fort 
Madison, said he is willing to listen to the arguments for reinstating capital 
punishment but he doubts there were be enough support for Senate passage.

"For me, it's a no. Somebody's going to have to show me some real good reason 
to change my mind on that," said Taylor.

"There's too many chances for error and we've seen that over the last few years 
with the new DNA sampling. There are a lot of people in prison who really 
shouldn't have been there in the first place. So, if we have the death penalty, 
there's no return from that," he said.

"It rather surprises me that the Republicans on one hand say all life is 
precious and believe that life begins at conception and then are for the death 
penalty on the other end," added Taylor. "It's pretty contradictory."

Taylor said the death penalty is such a divisive issue he questions whether 
lawmakers should take it up in a year already beset with some major issues as 
the GOP-run General Assembly works to erase a projected budget deficit and 
consider a major rewrite of the individual income tax code.

Top lawmakers from both parties had similar views in pre-session interviews.

"I haven't heard from folks in my community about that being a key priority 
this year," said House Majority Leader Chris Hagenow, R-Windsor Heights. "I 
just haven't seen it rise as a priority on our side yet, so I'm not 
particularly concerned about."

Senate Majority Leader Bill Dix, R-Shell Rock, said he is aware there is 
interest within his caucus to have a debate on the issue and he is willing to 
let the process work and see where it goes.

(source: Sioux City Journal)








CALIFORNIA:

Once on Death Row, Redondo Beach woman's killer could possibly gain freedom



Henry Earl Duncan has cast his shadow over Derik De Baun's entire life.

For decades, De Baun's family waited for Duncan to be put to death for the 
brutal 1984 killing of De Baun's mother during a late-night robbery as she 
worked in a Los Angeles International Airport cafeteria.

33 years after that horrific crime, following appeal after appeal to state and 
federal courts as Duncan sat on death row, Duncan no longer faces execution. 
This week, he will be back in Torrance Superior Court, where a jury's decision 
in the next few weeks could either send him back to prison to live out his life 
behind bars, or potentially result in his release for the time he has already 
served.

Determining punishment

The case will not change the fact Duncan was found guilty 3 decades ago of 
nearly decapitating 28-year-old Eileen De Baun of Redondo Beach. But it will - 
for the 3rd time - determine his punishment.

Eileen De Baun's family members - including her husband, Don - already are 
angry that Duncan was never executed. And this latest legal twist has shaken 
their belief in the justice system.

"I feel the guy should have been dead a long time ago," said Derik De Baun, who 
was 20 months old when Duncan stabbed his mother to death during a robbery on 
Nov. 13, 1984. "It's because the victim's side doesn't get to appeal. But the 
offender does. We are not privy to appeals court. We are not a part of the 
appeal process. We can't say, 'No, he does deserve the death penalty.'"

Jurors recommend death

That's what jurors recommended following the original 1986 trial for the 
then-22-year-old defendant. Duncan, a cashier who worked for Eileen De Baun, 
repeatedly stabbed her to death as she worked late at the Host cafeteria at the 
Pan American Airlines terminal. Part of her duties included tallying the day's 
receipts and placing them in safe in the restaurant's tiny back office.

One of De Baun's wounds severed her carotid artery, sending blood spurting 
throughout the room. Police found her killer's palm and shoe prints stamped in 
it, along with a blood-stained cloth beneath an open first-aid kit. Some of the 
bandages were missing, leading investigators to believe De Baun's killer had 
injured himself.

Tied to subsequent burglary

Duncan continued working at the cafeteria until he was tied to a burglary that 
snagged $2,000 from the restaurant's cash box. Police who arrested Duncan found 
shoes under his bed with soles that matched the prints in Eileen De Baun's 
blood from the murder scene, along with a key to the cash box inside his car.

None of the blood at the murder scene matched Duncan's, however, including what 
was found on the cloth under the first-aid kit. That blood wasn???t De Baun's, 
either.

Following a lengthy trial in Torrance Superior Court, jurors found Duncan 
guilty of 1st-degree murder and robbery. They also found true the special 
circumstances allegation that the crime was committed during a robbery, making 
Duncan eligible for either a life prison term without the chance of parole or 
the death penalty, which at the time was the gas chamber.

In imposing the jury's recommendation, Judge Hiroshi Fujisaki cited Duncan's 
"vicious manner, cruelty, callousness and brazenness in continuing working (at 
the cafeteria) and stealing again."

Conviction upheld

The California Supreme Court upheld Duncan's conviction and sentence in 1991, 
but his death penalty appeals continued. In 2008, the federal Ninth Circuit 
Court of Appeal ruled that Duncan's lawyer, John Cheroske, did a poor job in 
representing him. The federal court said that Cheroske, now a Compton Superior 
Court judge, should have argued that the blood on the cloth found under the 
first-aid kit suggested an accomplice committed the actual killing.

The court upheld the murder conviction because Duncan???s shoe and palm prints 
were found at the crime scene, meaning he was there, but overturned the special 
circumstances conviction, saying the prosecution needed to show that Duncan 
intended to kill De Baun. The case was put before another jury in 2010. Those 
jurors found the special circumstances allegation to be true.

The District Attorney's Office, this time, did not seek the death penalty, so 
Duncan was re-sentenced to life in prison without the chance of parole and 
moved off death row.

Duncan again appealed the sentence to the 2nd District Court of Appeal in 
California, saying his new attorney failed to introduce DNA and blood-type 
evidence that might have shown he was not the killer. The 3-justice panel 
agreed and ordered the new trial that is scheduled to begin this week.

Jury to hear details

During the case, Deputy District Attorney Allyson Ostrowski and Deputy Public 
Defender Sam Leonard will again present the case's grisly details, but many of 
the witnesses from his original case have died. Transcripts of earlier 
testimony will be used instead.

Should the panel find the special circumstance to be true, Duncan again would 
be sentenced to life in prison without parole. Otherwise, he would receive a 
standard 1st-degree murder sentence of about 25 years to life, which could work 
to his advantage.

New law aids young offenders

2 years ago, California Gov. Jerry Brown signed a bill making it possible for 
thousands of inmates convicted of serious crimes committed when they were 18 to 
22 years old to earn a chance at parole. Advocates contended the law offered 
young offenders a chance to rehabilitate themselves behind bars and gain a 
opportunity to start new lives once they are older.

In jail and prison for the crime since 1984, Duncan, now 53, could become 
eligible for parole, prosecutors said.

"I'm more bewildered than anything," Derik De Baun said. "I'm not afraid to be 
political about it. With this governor, I'm not surprised, and the climate he's 
created with not just crimes on this level, but releasing criminals at lower 
levels because the state can???t afford to incarcerate them."

Derik De Baun said it is naive to believe people are naturally goodhearted and 
all they need is a chance to prove it.

"I've seen his criminal history and I'm thinking he's had a 2nd chance, a 3rd 
chance, a 4th chance," the victim's son said. "He's a career criminal. I think 
he'll just end up back in jail if it comes to that."

'Really, really angry'

Eileen De Baun's husband, Don, did not respond to an interview request. Derik 
De Baun said his father has spent decades dealing with with emotions that 
affected how his sons experienced life. Although he has another 23-year-old son 
from a relationship, Don De Baun never remarried. Derik's twin brother, Derin, 
died 7 years ago from illness.

"He is just really, really angry, and a lot of it, he blames the political 
establishment for it," Derik said.

In a 2005 article in the Daily Breeze, Don De Baun said he had lost his true 
love, a beautiful woman who tried out to be a Laker Girl and Los Angeles 
Raiders cheerleader. He believed the couple would have flourished, they would 
have had more children, and their sons would have grown up differently with a 
nurturing mother in their lives. At the time, he took the children and moved 
from Redondo Beach to Oceanside.

Spoke in court

In 2010, when Duncan was sentenced to life without parole, Derik De Baun spoke 
in court on behalf of his family, telling Judge Mark Arnold he did not know 
what it was like to have a mother.

Over the years, he has read what he can on the case, and looks periodically 
online to see where Duncan is incarcerated. He plans to attend parts of the 
upcoming trial. His father will not. For the De Baun family, including his 
mother's sister, Darlene Potter, the case simply prolongs the pain of what 
occurred in 1984.

"It's like shoving a needle under your fingernail and it just doesn't stop," 
Derik De Baun said.

If Duncan ends up going to prison forever, he said he believes his father, now 
66, "will take it as a consolation prize." And if he is released, Derik is 
concerned.

"I don't think I'm ready to handle that kind of emotional roller-coaster," 
Derik said. "I think it would have a modifying negative impact on my dad and 
the whole rest of the family. I think everybody in the family would just be 
angry and I don't think my dad would be the same person."

(source: dailybreeze.com)