[Deathpenalty] death penalty news----N.C., FLA., ALA., N.DAK., MONT., USA

[Rick Halperin]

February 9




NORTH CAROLINA:

Man accused of killing pregnant girlfriend in High Point could face death 
penalty



A judge told William Hayes III, 20, that he could face the death penalty or 
life in prison without patrol for the alleged killing of his girlfriend 
Tontoria York.

Hayes made his 1st court appearance on Friday, just 1 day after police say he 
killed York, who was 9-months pregnant.

The appearance lasted less than 5 minutes. A judge told Hayes that he will be 
held without a bond.

Family members of both the victim and the suspect appeared in court, including 
York’s 2-year-old daughter.

Hayes' next court date is scheduled for March 8.

(source: Fox News)








FLORIDA:

Miami man accused of double murder must be tried by a jury of 12, appeals court 
rules----Prosecutors appealed a Miami judge's decision to seat a 6-person jury 
in a 1st-degree murder case. Defense lawyers for Ivan Wong also want 12 jurors.



A man accused of murdering his wife and her brother must be judged by a jury of 
12 people, not 6, a Miami appeals court ruled Thursday.


The decision by the Third District Court of Appeal overturned a ruling by 
Miami-Dade Circuit Judge Mark Blumstein, who insisted that Ivan Wong be tried 
by a jury of 6 people — even though both prosecutors and defense attorneys 
wanted the larger group of jurors.

Wong is accused of murdering his wife, Mabel Figueroa, and her brother, Michel 
Figueroa, in December 2013 after she decided to leave him.

He is charged with first-degree murder. Prosecutors last year waived the death 
penalty but Wong still faces a mandatory life prison sentence if convicted.

Blumstein, however, claimed last week that the case was no longer considered 
“capital” because execution was no longer a possible punishment. The jury 
selection was halted as prosecutors decided to file an emergency appeal.

The State Attorney’s Office, mindful that a conviction could get overturned and 
traumatized witnesses might have to testify again at a 2nd trial, agreed with 
defense lawyers that Wong deserved a 12-person jury.

The Third DCA agreed, saying it still remained a “capital” case. “Although the 
state has waived the death penalty, the defendant has not waived his right to a 
12-person jury,” appeals Judge Eric Hendon wrote in the 3-page opinion.

Wong returns to court on Friday so that lawyers can choose a date to resume the 
trial.

(source: Miami Herald)

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

State wants death penalty for man accused of killing 5 women 'execution-style' 
at bank----Zephen Xaver is accused of shooting and killing 5 women inside a 
SunTrust bank in Sebring, Fla.



A 21-year-old man has been indicted by a grand jury on 5 counts of 1st-degree 
murder after 5 women were shot to death inside a SunTrust bank last month.

The state of Florida has filed a notice of intent to seek the death penalty for 
Zephen Xaver, who is accused of killing the women after opening fire inside the 
bank on Jan. 23

Police don't yet have a motive for the killings, but they believe it to be a 
random act.

Timeline: Deadly shooting at Sebring bank leaves 5 women dead

Police said Xaver called 911 to say he had fired shots inside the SunTrust bank 
off U.S. Highway 27 near Tubbs Road. He told dispatchers he had "shot 5 
people."

Less than 10 minutes later, a SWAT team arrived, but Sebring Police Chief Karl 
Hoglund said crisis negotiators realized Xaver wasn't allowing any law 
enforcement into the building.

Around 1:54 p.m., the SWAT team was able to get inside the bank. An arrest 
report said the team found Xaver in one of the bank's rear offices with a 9 mm 
handgun and a bulletproof vest.

On Jan. 24, Xaver appeared in court for the 1st time. A Highlands County judge 
granted no bond, so Xaver remains in jail.

(source: WTSP news)








ALABAMA:

The liberals on the Supreme Court are right, conservatives wrong on Muslim 
execution case



The Supreme Court got it horribly wrong this week when it vacated a stay of 
execution for a Muslim inmate whose request that his imam be at his side in the 
death chamber was blocked by Alabama state officials.

Adding insult to injury, the 5 Supreme Court justices who failed to advocate 
for Domineque Ray’s reasonable religious accommodation offered no detailed 
explanation for their decision.

Justices Neil Gorsuch, Clarence Thomas, John Roberts, Samuel Alito, and Brett 
Kavanaugh didn’t even sign their names to the application vacating the stay of 
execution entered by the 11th U.S. Circuit Court of Appeals at Atlanta, which 
found that denying Imam Yusef Maisonet access to the execution chamber while 
allowing the same for a Christian pastor raised legitimate questions about 
religious discrimination.

For an explanation of the Supreme Court’s decision this week, we have to look 
to Justice Elena Kagan’s dissenting opinion, where she mentions that a majority 
of her colleagues agreed that Ray waited too long to bring his request before 
the Alabama Department of Corrections. Kagan is joined in her dissent by 
Justices Ruth Bader Ginsburg and Sonia Sotomayor.

Ray, 42, was found guilty in 1999 of the brutal rape and murder of a 
15-year-old girl, whose decomposing remains were discovered in a cotton field 
near Selma, Ala. Ray was also involved in the murder of two brothers, 
13-year-old Reinhard Mabins and 18-year-old Ernest Mabins. In 2006, as he 
awaited death, Ray reportedly converted to Islam. Ten days before his scheduled 
execution this month, he requested that his imam be present in the chamber with 
him. State officials declined Ray’s request, arguing that it was both submitted 
too late and that it was also an obvious delay tactic. Officials offered Ray a 
Christian pastor for his execution. He declined the offer.

Prison officials said it was fine for Ray to meet with his imam before his 
execution. They also said that the imam could stand in the viewing room looking 
into the execution chamber. But they absolutely would not allow the imam to be 
in the execution chamber.

The Supreme Court’s you-snooze-you-lose reasoning for allowing Ray’s execution 
to go forward sans religious accommodations is identical to what was argued in 
an emergency application filed by Alabama Attorney General Steve Marshall 
following the 11th Circuit’s ruling.

Marshall claimed Ray’s request for an imam was obviously timed to stall the 
proceedings. The state attorney general argued that allowing the imam into the 
chamber posed a security risk to the “execution team.” Marshall also explained 
that the prison allows a Christian pastor to enter the death chamber, and only 
a Christian pastor, because he is a member of the staff who has been trained in 
execution protocol.

Lastly, Marshall argued that the requested stay “would substantially harm the 
public and the State’s interest in the timely enforcement of criminal 
judgments.”

First, Ray had been on death row since 1999. Timely enforcement indeed. Surely, 
Alabama could have spared a few more weeks, months even, to allow for more time 
to sort out the imam issue. After all, it’s not like Ray was going anywhere. 
Also, there’s the important point that the 11th Circuit placed the prisoner’s 
appeal on a “fast track,” as the New York Times put it, “with briefing to have 
been completed in a little more than a month.” It’s not as if the stay of 
execution was primed to languish in a multiyear limbo.

Secondly, as noted in the Supreme Court’s dissent, Ray’s request for an imam 
was indeed late, but there’s a reasonable explanation for that: He was denied a 
copy of the prison's own practices and procedures, which clearly defines who is 
and isn't allowed in the chamber. Ray was notified when his execution date was 
set in Nov. 6, 2018, but "the relevant statute would not have placed Ray on 
notice that the prison would deny his request. To the contrary, that statute 
provides that both the chaplain of the prison and the inmate’s spiritual 
adviser of choice 'may be present at an execution,'" Kagan and the 11th Circuit 
found.

The statute "makes no distinction between persons who may be present within the 
execution chamber and those who may enter only the viewing room," Kagan added, 
noting the prison "refused" to give Ray a copy of its procedures. "So there is 
no reason Ray should have known, prior to January 23 [when Ray's request was 
denied by the warden], that his imam would be granted less access than the 
Christian chaplain to the execution chamber."

Ray’s request was denied on Jan. 23. He followed up five days later, asking in 
more forceful terms for the presence of his imam. That doesn’t sound like the 
behavior of someone who was intentionally dragging his feet.

Lastly, the idea that Imam Yusef Maisonet posed a security risk is absurd. He 
has spent years volunteering at that facility. He goes to the Death Row at 
Holman Correctional Facility about once a month to lead the Muslim inmates in 
prayer. For the prisoners and the prison staff, he is a known and trusted 
entity.

Perhaps Ray was trying to game the system. Perhaps he was legitimately confused 
and assumed wrongly that his spiritual adviser would be allowed in the 
execution chamber. In cases like this, the most prudent option is to err on the 
side of liberty. Even if Ray’s request was a delay tactic, the biggest downside 
to granting it would have been the mere delaying of the inevitable. But if Ray 
was sincere in his ask, well, the state of Alabama and the Supreme Court just 
denied him a basic, protected right. That’s a much greater danger to the public 
than any inmate’s temporary gaming of the system could ever hope to accomplish.

Kagan got it right when she said, “Ray has put forward a powerful claim that 
his religious rights will be violated at the moment the State puts him to 
death. The Eleventh Circuit wanted to hear that claim in full. Instead, this 
Court short-circuits that ordinary process—and itself rejects the claim with 
little briefing and no argument – just so the State can meet its preferred 
execution date. I respectfully dissent.”

Ray, who was pronounced dead at a little past 10:00 p.m. EST Thursday evening 
from lethal injection, was, by all accounts, a monster. He was in prison for 
three brutal murders.

But even monsters deserve equal treatment under the law.

(source: Opinion, Becket Adams, Washington Examiner)








NORTH DAKOTA:

Capital Punishment



When the Dakota Territories first made laws in 1865, they based them on the New 
York penal code, which dictated that murder was always punishable by hanging. 
In 1883, the option of life in prison was added. Subsequently, imposition the 
death penalty began to fall off as North Dakota juries were reluctant to make 
such final decisions.

Many immigrants from totalitarian regimes distrusted capital punishment. In 
1915 citizens petitioned against execution, and later that year the state 
struck it down except for treason or when murder was committed by an inmate 
already sentenced to life. That latter provision was removed in 1973.

The first attempt to reinstate a death penalty came in 1926. People had begun 
to wonder if capital punishment actually had been a deterrent for hard 
criminals. From the beginning of 1926 to the end of 1927, the Bismarck Tribune 
published 37 articles favoring capital punishment. Attorney General George 
Schafer did believe it served as a deterrent, and he thought life sentences 
were too soft. Soon the legislative committee of the North Dakota Association 
of State Attorneys voiced support for the death penalty. In early January there 
was a bill in the legislature.

Many of the arguments in the senate reflected modern debates over capital 
punishment – deterrent vs. legalized murder. However, one discussion, left out 
of most modern debates, is whether it should apply to women as well as men. 
Some legislators felt the laws tended to be too lenient towards women, which 
encouraged them to kill their spouses in domestic disputes. However, one 
legislator felt the death penalty should apply only to men even if this was the 
case, because in his words, “[I]f a woman kills a man, the chances are he 
should have been killed long ago anyway.”

Ultimately, the death penalty was not reinstated. After the senate voted it 
down 30 to 19, the house followed suit about this time in February of 1927. 
Since then, there have been two more attempts to reinstate capital punishment, 
but there seems to be little chance of it returning.

(source: Public Prairie News)








MONTANA:

Guest view: Montana's death penalty should be abolished



Montana has no functioning death penalty. Since 2009, the lethal injection 
portion of the death penalty has been stopped because the drugs required by 
statute are not available. Even if these drugs somehow became available, a 
highly unlikely prospect, Montana’s capital punishment regime contains numerous 
additional elements that are at odds with U.S. Supreme Court decisions. In 
short, Montana’s death penalty system is broken beyond repair.

Capital punishment is off the table as an actual punishment, but because the 
legislature has not formally abolished it, the legal structure governing the 
crimes identified as capital offenses and the processes to deal with those 
crimes remain. That is a problem.

Once a county attorney decides to charge a person with a capital offense, 
safeguards and standards for capital offenses are triggered. These additional 
safeguards, designed to reduce the likelihood of the state executing an 
innocent person, make a capital case much more expensive than a case where the 
maximum penalty is life without parole. Over the past decade, there have been 
at least four individuals charged with a capital offense. The prosecution of 
these offenses has cost the taxpayers at least $5 million, although none of the 
defendants were convicted of a capital offense.

There is one solution — abolish the death penalty and replace it with a 
punishment of permanent imprisonment. This move would save tax dollars without 
undermining public safety.

Abolition of the death penalty will not adversely affect the prosecution of 
criminal defendants. Indeed, it will not change the landscape of the criminal 
law at all since for at least the past decade, the criminal justice system has 
functioned without an effective death penalty. Abolition would remove the 
ability of county prosecutors to threaten an accused of seeking the death 
penalty, and that would be a good thing. Such conduct has been challenged as 
being ethically questionable and given the reality of not having a functioning 
death penalty, any such threat advanced now would be minimized by any 
knowledgeable criminal defense counsel.

There is no question that the death penalty does not act as a deterrent. The 
death penalty does not deter homicide. Between 2010 and 2016 the murder rate 
was 23 percent lower in non-death penalty states compared to death penalty 
states.

Montana has paid the price of having capital offenses on the books without any 
ability to carry out a death sentence. When county attorneys charge individuals 
capitally and then have to back down, they have spent substantial public funds 
to provide the defense required because a capital offense was charged.

Life in prison without possibility of parole is the option the majority of 
citizens support in lieu of the death penalty. It is time that Montana should 
join close to half of the states in the union and abolish the death penalty. 
Our capital punishment system is broken. Montana has no functioning death 
penalty. The Legislature should act and remove from the books a broken set of 
laws currently incapable of being enforced.

(source: Ron Waterman, Montana Standard)








USA:

Jurors’ Use of N-Word Confronts Supreme Court Divided on Race



“They should just take the nigger out and shoot him behind the jail.”

“I have wondered if black people even have souls.”

Death-row inmates point to evidence that jurors from their long-ago trials said 
those things about the men they were tasked with judging impartially.

If the U.S. Supreme Court takes up their appeals, then the justices will be 
asked to decide if the clear racism so tainted these proceedings in Oklahoma 
and Georgia that the men should be spared the ultimate punishment.

Dale Baich, attorney for Julius Jones, whose trial would’ve ended with a bullet 
in the back of an Oklahoma jail if a juror had his alleged druthers, said the 
issue at hand is the “impact of race on the criminal justice system and the 
death penalty in particular.”

The cases pose a particularly crucial test for Chief Justice John G. Roberts 
Jr., who has voted both ways in criminal cases tainted by racism and may hold 
the deciding vote. The Georgia case already caught the court’s eye last year, 
producing a contentious split among the justices and promising another heated 
round if the same dividing lines hold.

The appeal from Georgia inmate Keith Tharpe, whose possession of a soul was 
doubted by a man who sent him to death row, “raises the question of whether we, 
as a society, are willing to tolerate the blatant, in-your-face racism that 
reared its head in Mr. Tharpe’s case and tainted his death sentence,” said his 
attorney, Marcy Widder.

The Georgia Attorney General’s office declined comment on Tharpe’s case, citing 
the ongoing litigation. The Oklahoma Attorney General’s office said it plans to 
file a response to Jones’ petition by the beginning of March, and will let that 
filing “speak for itself.”

The petitions are the latest salvos in the long-running legal sagas of both 
murder convicts.

Tharpe was sentenced to death for the 1990 murder of his sister-in-law. He shot 
her, rolled her into a ditch, reloaded, and shot her again, a state court 
opinion recounted.

Years later, one of his jurors swore in an affidavit that “there are 2 types of 
black people: 1. Black folks and 2. Niggers"; that Tharpe, “who wasn’t in the 
‘good’ black folks category in my book, should get the electric chair for what 
he did"; and that some of the jurors voted for death because they felt Tharpe 
“should be an example to other blacks who kill blacks.”

The juror also said that, after studying the Bible, he “wondered if black 
people even have souls.”

Jones was sent to death row for a 1999 shooting death for which he has 
maintained his innocence. His case was featured, recently, in the ABC series 
The Last Defense, which noted the racist juror issue as well as racial tensions 
generally in Edmond, Okla., where the crime occurred.

In 2017, one of the jurors told Jones’ legal team in a Facebook message that 
another juror had described the trial as a “waste of time” and expressed his 
belief that “they should just take the nigger out and shoot him behind the 
jail.”

Despite these stark allegations, state and federal courts have blocked both men 
from pressing the juror claims, citing procedural hurdles as well as the 
longstanding prohibition against probing the prized secrecy of jury 
deliberations.

But the high court recently put a dent in that longstanding jury rule when it 
comes to race, one that both Tharpe and Jones hope they can use to their 
advantage.

Race Rulings, Startling Development

In 2017’s Pena-Rodriguez v. Colorado, the high court said that, if a juror 
makes a clear statement showing they relied on racial stereotypes or animus to 
convict a defendant, then courts can consider the juror’s statement as evidence 
of a Sixth Amendment violation. The amendment protects the right to impartial 
jury.

It was a 5-3 decision authored by Justice Anthony M. Kennedy, joined by 
Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor, and Elena 
Kagan.

Miguel Angel Pena-Rodriguez was convicted of unlawful sexual contact and 
harassment. After the jury was dismissed, two jurors told Pena-Rodriguez’s 
lawyer that another juror said he thought the defendant was guilty “because 
he’s Mexican and Mexican men take whatever they want.”

Kennedy’s opinion crafted a racial exception to the longstanding rule that 
prevents courts from examining jury deliberations.

Justice Samuel A. Alito Jr. dissented, joined by Roberts and Justice Clarence 
Thomas. Though the majority’s intentions are “admirable,” Alito wrote, the 
decision nonetheless marks “a startling development” in allowing courts to 
effectively peer into the jury room.

But just weeks prior to the Pena-Rodriguez decision, Roberts aligned with the 
five justices from the Pena-Rodriguez majority in a case raising similar 
issues. In fact, he wrote the majority opinion in the case, Buck v. Davis, 
where an expert witness told the jury considering the fate of the defendant, 
Duane Buck, that he’s more dangerous because he’s black.

“Buck may have been sentenced to death in part because of his race,” Roberts 
wrote, finding this “a disturbing departure from a basic premise of our 
criminal justice system: Our law punishes people for what they do, not who they 
are.” Thomas and Alito dissented again.

Both the Buck and Pena-Rodriguez cases were decided by an 8-member court after 
Justice Antonin Scalia’s death, shortly before Justice Neil M. Gorsuch filled 
Scalia’s seat. Since his arrival, Gorsuch has sided with Alito and Thomas 
against death row inmates’ attempts to avoid execution.

Remarkable Affidavit, Handwringing

That trio dissented last year from a brief, unsigned opinion in which the 
justices vacated a federal appeals court decision that went against Tharpe.

The “remarkable affidavit,” the majority said, “presents a strong factual basis 
for the argument that Tharpe’s race affected” the juror’s vote for a death 
verdict. “At the very least, jurists of reason could debate whether Tharpe has 
shown by clear and convincing evidence that the state court’s factual 
determination was wrong. The Eleventh Circuit erred when it concluded 
otherwise,” it said, sending the case back for further review on the question 
whether Tharpe is still procedurally blocked from pressing the juror claim.

Thomas, the court’s only black justice, wrote the dissent. He accused his 
colleagues of engaging in a “pointless exercise” that accomplishes “little more 
than a do-over in the Court of Appeals.” He said “the only possible 
explanation” for the majority’s ruling was its concern with “a juror affidavit 
that expresses racist opinions about blacks.”

Though the juror’s opinions “are certainly odious,” Thomas conceded, “their 
odiousness does not excuse us from doing our job correctly, or allow us to 
pretend that the lower courts have not done theirs.” He accused his colleagues 
of “bending the rules here to show its concern for a black capital inmate.”

The court’s decision “will only delay justice for Jaquelin Freeman, who was 
also black, who is ignored by the majority, and who was murdered by Tharpe 27 
years ago,” Thomas wrote in the dissent joined by Alito and Gorsuch, referring 
to Tharpe’s victim.

As presaged by Thomas, the Eleventh Circuit ruled against Tharpe again after 
the justices sent the case back there, setting the stage for his latest high 
court appeal.

Stage Set: How to Apply Race Rulings?

In their latest Supreme Court filings, Tharpe and the state disagree about 
whether Pena-Rodriguez should apply retroactively to his case and whether 
procedural hurdles should block him from pressing his claim, with Tharpe 
alleging that the lower court keeps moving the goalposts.

The state says courts were correct in blocking Tharpe’s juror claim, reasoning 
he should have raised it earlier in the appeals process and can’t justify his 
failure to do so. Like Thomas’ dissent last year, the state further points out 
that there’s no evidence that racial bias was discussed during deliberations, 
seeking to distinguish Tharpe’s case from Pena-Rodriguez. In the end, the state 
says Tharpe’s appeal simply doesn’t present an important enough legal question 
to warrant the justices’ attention, and that it seeks “mere error correction,” 
something that the Supreme Court, in theory at least, is not in the business of 
doing.

While the state points to procedure, Tharpe and the NAACP Legal Defense & 
Educational Fund, Inc., which is supporting him at the high court, pin their 
hopes on the larger themes of the high court’s recent race rulings. They argue 
that Pena-Rodriguez should apply even more forcefully here, because this is a 
death penalty case and Pena-Rodriguez wasn’t.

The NAACP LDF brief argues that Tharpe’s claim is even stronger than Buck’s, 
because there the court was concerned with the mere possibility that the jury 
sentenced Buck to death because he was black. Based on the juror affidavit in 
Tharpe’s case, there is no “may” about it, the NAACP LDF argues.

Samuel Spital, lead counsel on the NAACP LDF brief who also represented Buck, 
sees a connection between Buck and the Tharpe and Jones cases. “We know that 
these two men are facing execution at least in part because they’re black,” he 
said. “Under those circumstances, the state just doesn’t have an interest in 
enforcing a death sentence, and for that reason, the procedural obstacles that 
you would have with respect to certain other claims should not be part of the 
analysis.”

And if Tharpe’s case is more serious than Pena-Rodriguez and Buck, Jones argues 
that his case is more serious than Tharpe’s.

Like Tharpe, Jones also argues that lower courts have essentially manufactured 
reasons to keep him from airing his juror claim.

But he also says that his case “reveals far more than simply another juror’s 
racist and dehumanizing view of Mr. Jones as a ‘nigger.’” He notes that the 
juror in his case allegedly referred to the proceedings as a “waste of time,” 
and, further, that the juror’s alleged wish that they “take the nigger out and 
shoot him behind the jail” reveals an endorsement of “lynch-mob racism 
reminiscent of Reconstruction days,” quoting a 1988 dissent by Justice Thurgood 
Marshall.

In that case, Marshall, the court’s 1st black justice, dissented from his 
colleagues’ refusal to take up a death penalty case in which a juror handed the 
bailiff a napkin with a drawing of a man on a gallows above the inscription, 
“Hang the Niggers.”

Marshall retired a few years later. Thomas took his place.

(source: Bloomberg News)