[Deathpenalty] death penalty news----NEV., CALIF., USA

[Rick Halperin]

June 21




NEVADA:

Sentence reversal makes murder victim's wife relive loss



Tracy Smith says she's been waiting for justice for the murder of her husband 
for nearly 25 years. She's just learned her wait is far from over.

"I'm angry and sad altogether," Smith says, sitting in her home in a rural 
neighborhood near Fallon. "It's really hard to bring it all back up."

Death penalty overturned in I-80 Good Samaritan murder

It's been nearly 25 years since a sheriff's deputy knocked on her door and 
delivered the devastating news, but it's a wound that remains fresh.

Ed Smith--everyone knew him as Smitty--and Tracy were high school sweethearts 
who married and made a life together.

By 1994, he had served a tour in the Air Force, spent time in the Middle East 
during the first Gulf War. They'd settled in Fallon and were raising a young 
daughter.

Smitty was returning to Fallon from Reno. He spotted a stranded motorist on 
I-80 in the Truckee Canyon near Derby Dam and, acting as a Good Samaritan, he 
stopped to help.

He was found the next day. He'd been struck over the head, then shot.

A week later Avram Nika was arrested in Chicago driving Smith's car. He was 
convicted and given the death sentence.

Since then his case has wound through the court system on various appeals. Last 
week, his conviction was once again upheld, but his sentence was reversed by a 
federal judge in Las Vegas.

Tracy learned the news through the KOLO website. It was a mistake. She should 
have been called first by a victim's advocate. Apologies have been made, but 
she says it was a 'tough way to learn" and once again she's reliving the loss.

"Every time he decides his rights have been violated or something's wrong with 
him, well let's just bring it all back up and put it out there in the public 
again."

In fact, she's carried that loss with her in all its ugly detail for all these 
years.

It's not unusual to find pictures of a lost loved one in a home, but Tracy 
keeps a box of clippings, tapes of news stories and court documents--a complete 
history of the case. It's more than a wife mourning the loss of her husband. 
She says she reviews it all whenever Nika is scheduled for a court appearance 
just so she'll be accurate if called for a victim's impact statement.

"My husband's in heaven and he's in no more pain. We live the pain yearly, 
daily, every time this person goes to do something and we're notified. We have 
to live all of the things in this box. He can't stand for himself. I have to 
stand and say 'This was the man and he wronged our family."

The judge's order called for a new penalty hearing within 180 days, but we're 
told it will be appealed and it may be years before the case is back in a 
Washoe County court.

Whenever that happens, Tracy says she'll be there.

"I'm going to wait. I will wait as long as I have to and as long as I'm 
physically and mentally able to be there, I will be there for him."

(source: KOLO TV news)








CALIFORNIA:

Jurors deliberate life or death for Charles Merritt in McStay family slaying



Jurors began deliberating Thursday the fate of Charles “Chase” Merritt, 
deciding whether to recommend death by lethal injection or life in prison 
without parole for the man convicted of first-degree murder of the McStay 
family of Fallbrook.

The panel left the downtown San Bernardino Justice Center courtroom of Judge 
Michael A. Smith shortly before noon after Smith gave them some final 
instructions.

Jurors ended their deliberations Thursday afternoon, and are scheduled to 
return Friday morning, court records show.

Merritt, 62, was convicted June 10 of 1st-degree murder in the deaths of former 
business associate Joseph McStay, 40, his wife, Summer, 43, and their two 
children, Gianni, 4, and Joseph Jr., 3. Jurors also agreed with a special 
circumstance of multiple murders.

The same panel that convicted Merritt has since heard testimony from McStay 
family relatives, called by the prosecution, and arguments from both defense 
and prosecution in the penalty phase.

For the penalty phase, defense attorneys declined to present any testimony, 
refusing to concede the jury’s finding of McStay’s guilt.

They instead used their final argument to make a granular review of the trial’s 
evidence, seeking to convince the panel there was enough “lingering doubt” 
after conviction to vote to recommend life in prison rather than death.

“People sometimes in a collaborative effort remain quiet,” defense attorney 
Rajan Maline told the panel. “But they also have their own, individual opinion. 
And so lingering doubt allows those folks to be heard, in their own way.”

“This case is filled with unanswered questions,” Maline told the panel. 
“There’s not one single shred, speck, molecule – you name it of evidence, blood 
or otherwise, that ties Mr. Merritt to this crime. Not one,” he said.

Prosecutors have told jurors their case was circumstantial, and said Wednesday 
that was largely because of the time lapse between the disappearance of the 
family on Feb. 4, 2010 and discovery of their remains in the desert near 
Victorville nearly 4 years later.

They said Merritt was to blame for hiding and covering up the evidence, and 
asked jurors to recommend the death penalty.

During an address to jurors that lasted about and hour and 20 minutes, Maline 
reviewed the defense’s DNA presentations, its challenges to the prosecution’s 
theory that Merritt was looting Joseph McStay’s bank account by forging checks 
to himself, the prosecution’s timeline for Merritt in early February 2010, and 
cell phone location evidence, among other items.

Maline’s address to jurors was live-streamed on Law & Crime Network’s website, 
which cannot show the jury panel.

“It’s hard for me to say these things to you, and it’s hard for you to listen 
to me, I can tell,” Maline said in the last few minutes of his address. “Some 
of you have already tuned me out, and that’s OK. I understand that you don’t 
want to hear this,” saying the jury’s conviction already means Merritt will die 
in prison, either by natural causes or lethal injection.

“But that doesn’t mean we have to agree with it, and that’s what the concept of 
lingering doubt is about,” saying jurors after the trial will be able to review 
the trial on the internet when it’s over. “And you’ll say, ‘There was no 
evidence. There was a lot of barking, and a lot of screaming, and a lot of 
shouting, but there was no evidence.’"

Merritt, a former Apple Valley resident, was arrested in November 2014 – a year 
after the McStay family’s skeletal remains were discovered in two shallow 
graves west of the 15 Freeway near Victorville. A three-pound sledge hammer 
investigators said was used to kill the family was buried there as well.

McStay and Merritt had worked together in the sale, design and building of 
large-scale custom waterworks for clients that included Paul Mitchell salons. 
McStay found customers, and Merritt, whose business was separate from McStay’s, 
built the pieces.

Prosecutors said Merritt was being cut out of the relationship by McStay for 
poor performance, and on Feb. 1, 2010, McStay sent an email to Merritt stating 
Merritt owed him $42,845. The McStay family was last heard from three days 
later.

Investigators said Merritt looted Joseph McStay’s business bank account after 
he disappeared; defense attorneys said Merritt was trying to keep the business 
afloat in McStay’s absence.

(source: San Bernardino Sun)








USA----impending/scheduled executions



With the execution of Marion Wilson Jr. in Georgia on June 20, the USA has now 
executed 1,500 condemned individuals since the death penalty was re-legalized 
on July 2, 1976 in the US Supreme Court Gregg v Georgia decision.

Gary Gilmore was the 1st person executed, in Utah, on January 17, 1977. Below 
is a list of further scheduled executions as the nation continues its shameful 
practice of state-sponsored killings.

NOTE: The list is likely to change over the coming months as new execution 
dates are added and possible stays of execution occur.

1501------July 31-------------Ruben Gutierrez----------Texas

1502------Aug. 15-------------Dexter Johnson-----------Texas

1503-------Aug. 15------------Stephen West-------------Tennessee

1504-------Aug. 21------------Larry Swearingen---------Texas

1505-------Aug. 22------------Gary Ray Bowles----------Florida

1506-------Sept. 4------------Billy Crutsinger---------Texas

1507-------Sept. 10-----------Mark Anthony Soliz-------Texas

1508-------Sept. 12-----------Warren Henness-----------Ohio

1509-------Oct. 2-------------Stephen Barbee-----------Texas

1510-------Oct. 16------------Randall Mays-------------Texas

(source: Rick Halperin)

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

Man with intellectual disability freed from death sentence



An Arkansas man sentenced to death for murdering a teenage girl in Texas 25 
years ago has been granted his petition for habeas corpus after a federal judge 
determined him to be ineligible for the death penalty due to his intellectual 
disability. The man will be resentenced in Texas.

Bruce Carneil Webster was convicted and sentenced to death in on several 
counts, including kidnapping, for the rape and murder of 16-year-old Lisa Rene. 
Webster was subsequently denied a motion to vacate his conviction and sentence, 
as well as a motion for relief and an application for an order authorizing a 
successive § 2255 proceeding.

Webster, who is housed at the United States Penitentiary in Terre Haute, was 
further denied a petition for habeas corpus by the U.S. District Court for the 
Southern District of Indiana in 2013. In his petition, Webster challenged his 
death sentence based on “previously unavailable” evidence from Social Security 
records that he alleged established his intellectual disability, therefore 
making him ineligible for the death penalty under Atkins v. Virginia, 536 U.S. 
304 (2002) and Hall v. Florida, 572 U.S. 701 (2014).

Although the Southern District and the 7th Circuit Court of Appeals denied his 
petition, en banc review was granted, and the en banc court reversed the 
decision and remanded for further proceedings.

On remand, the southern district court concluded that the alleged Social 
Security records were, in fact, unavailable to Webster and his counsel at the 
time of trial despite the trial counsel’s due diligence. Those records 
indicated that when Webster applied for social security benefits – just one 
year before the crime – he was examined by two psychologists and one physician, 
all of whom found him to be “mentally retarded and antisocial.” Test results 
also concluded Webster had a full-scale IQ of 59, and psychologist Charles 
Spellman concluded Webster’s “intellectual functioning was quite limited.”

Psychologist Edward Hackett found Webster’s behavior to be “somewhat bizarre” 
and that he was not capable of managing his own benefits. Additionally, the 
Social Security records contained a letter from a Special Education Supervisor 
from Webster’s former school, stating that he had been involved in special 
education classes. Webster’s application for benefits itself, the 7th Circuit 
found, was “rife with errors in syntax, spelling, punctuation, grammar, and 
thought.”

Southern District Senior Judge William T. Lawrence concluded Tuesday that 
Webster met his burden and showed by a preponderance of the evidence that he is 
intellectually disabled, and therefore granted the petition for habeas corpus 
in Bruce Carneil Webster v. Charles Lockett, 2:12-cv-86.

Lawrence concluded Webster had significant limitations in intellectual 
functioning based on 7 different IQ tests taken between 1992 and 2018 with 
varying results ranging from 59 to 65 — 2 standard deviations or more below the 
population mean.

“The scores themselves were obtained over a period of 25 years and consistently 
demonstrate that Webster has an IQ that falls within the range of someone with 
intellectual deficits,” Lawrence wrote. “In reaching this conclusion, the Court 
finds that the evidence does not support a finding of malingering such that the 
tests are invalid.”

The federal judge rejected arguments that Webster was motivated to underperform 
on the testing as part of his application for Social Security benefits.

Likewise, the federal judge found Webster had significant limitations in his 
adaptive functioning based in part on the formerly unavailable Social Security 
records that revealed Webster to be “barely literate,” based on his responses.

“The Court finds that Webster has met his burden and shown by a preponderance 
of the evidence that he is intellectually disabled, as he meets all 3 prongs of 
intellectual disability: 1) Webster has intellectual-functioning deficits; 2) 
Webster has adaptive deficits; and 3) the onset of these deficits was while 
Webster was a minor,” the federal judge concluded. “In making this ruling, the 
Court has carefully considered the totality of the evidence and weighed the 
testimony in accordance with its credibility assessment of each witness.”

It therefore granted Webster’s habeas corpus petition and vacated his death 
sentence, ordering resentencing to take place in the Northern District of 
Texas.

(source: Indiana Lawyer)

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

Dorsey Secures Groundbreaking Reversal of Death Sentence----1st time any court 
in the United States has vacated a death sentence based on newly discovered 
evidence of intellectual disability. This is a groundbreaking and just outcome 
for Mr. Webster, an intellectually disabled man who never should have been 
sentenced to death.



After 11 years and more than 12,000 pro bono hours, international law firm 
Dorsey & Whitney LLP successfully convinced the U.S. District Court Southern 
District of Indiana on Wednesday, June 18, to vacate the death sentence of 
Bruce Webster, who was convicted and sentenced to death in a Texas federal 
court in June 1996 for kidnapping and murder. In the first case of its kind, 
the court considered newly discovered evidence that Mr. Webster is 
intellectually disabled, and ruled that Mr. Webster’s death sentence is 
unconstitutional.

The court, applying the instructions of the Seventh Circuit Court of Appeals, 
considered newly discovered evidence of Mr. Webster’s intellectual disability, 
and determined, based on that and other evidence, that Mr. Webster is 
intellectually disabled and therefore ineligible for execution under Atkins v. 
Virginia.

“This is a groundbreaking and just outcome for Mr. Webster, an intellectually 
disabled man who never should have been sentenced to death,” said Dorsey Trial 
Partner Steven Wells. “Without the skill and perseverance of a dedicated legal 
team from Dorsey & Whitney and the Capital Project of the Federal Defender’s 
Office over the last 11 years, Mr. Webster faced an unconstitutional 
execution.”

At his 1996 trial, Mr. Webster presented substantial evidence that he was 
mentally retarded (now called “intellectual disability”), and therefore 
ineligible for execution under a federal statute that prohibited the execution 
of mentally retarded defendants. The Government called expert witnesses who 
testified, without ever performing a full-scale IQ test on Mr. Webster, that he 
was faking mental retardation to avoid the death penalty. Mr. Webster’s appeals 
and his initial habeas petition were rejected.

Dorsey took the case as pro bono in 2008, initially to present a clemency 
petition to the President on Mr. Webster’s behalf. However, during the course 
of their investigation, Dorsey discovered Social Security records in which SSA 
psychologists diagnosed Mr. Webster – 2 years before the commission of the 
crime – as “mentally retarded.” The discovery of those records started an 
11-year quest that involved dozens of Dorsey lawyers, paralegals and summer 
associates and 12,200 hours to get this new information before a federal court 
to evaluate his intellectual disability.

Although there is a federal habeas statute expressly allowing consideration of 
newly discovered evidence of innocence in a death penalty case, no federal 
statute has explicitly addressed the situation that involved newly discovered 
evidence of a categorical ineligibility for the death penalty – even though, 
under Supreme Court precedent, it is as unconstitutional to execute an 
intellectually disabled person as it is to execute an innocent person.

“This case highlights the flaws in our death penalty system. The Social 
Security Administration failed to provide information critical to Mr. Webster’s 
defense, despite request. The Government continued to pursue his execution even 
after being made aware of the new evidence. And the supposedly comprehensive 
provisions of the statute specifically governing death penalty habeas petitions 
failed to account for newly discovered evidence that a defendant is simply not 
eligible to be executed because of his intellectual disability,” added Mr. 
Wells.

Dorsey’s arguments were initially rejected by the Fifth Circuit Court of 
Appeals, and then by a panel of the Seventh Circuit. But the en banc (entire 
court) of the Seventh Circuit overturned the earlier panel decision, holding 
for the first time that under 28 USC 2241, Mr. Webster should be allowed to 
demonstrate that the newly discovered evidence was not reasonably available to 
trial counsel; and, if he could prove that, to present that new evidence to a 
federal judge to decide if Mr. Webster was in fact intellectually disabled.

Mr. Webster established last year, in Phase I of the habeas hearing, that the 
new evidence was not reasonably available to Mr. Webster’s trial lawyer. U.S. 
District Court for the Southern District of Indiana, Judge William Lawrence, 
then held an evidentiary hearing April 1-5 this year to determine whether Mr. 
Webster could prove that he was intellectually disabled. On June 18, the Court 
issued its decision that Mr. Webster had met his burden of proving by a 
preponderance of the evidence that he was intellectually disabled and the Court 
vacated his death sentence.

This is the first time any court in the United States has held a habeas hearing 
based on newly discovered evidence of intellectual disability, and the first 
time that a death sentence has been vacated on that basis.

About Dorsey & Whitney LLP

Clients have relied on Dorsey since 1912 as a valued business partner. With 
locations across the United States and in Canada, Europe and the Asia-Pacific 
region, Dorsey provides an integrated, proactive approach to its clients' legal 
and business needs. Dorsey represents a number of the world's most successful 
companies from a wide range of industries, including leaders in banking & 
financial institutions, development & infrastructure, energy & natural 
resources, food, beverage & agribusiness, healthcare and technology, as well as 
major non-profit and government entities.

Dorsey was an original signatory of the American Bar Association Law Firm Pro 
Bono Challenge back in 1993. Every year since then, Dorsey has surpassed the 
Challenge by devoting more than 3% of the Firm’s total billable hours to pro 
bono. In 2018, Dorsey lawyers across the Firm performed a total of 35,322 hours 
of Challenge pro bono work.

(source: Business Wire)

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

Joe Biden bragged about a harsh 1992 crime bill that did 'everything but hang 
people for jaywalking'



Democratic presidential candidate and former Vice President Joe Biden pushed 
crime legislation in 1992 on the theme that it was aggressive in going after 
criminals. Directing his comments toward critics of the bill as too weak on 
crime, Biden specifically boasted of how frequently the bill would result in 
pursuing the death penalty.

Biden, then a senator from Delaware, characterized his bill during a May 14, 
1992, speech on the Senate floor as legislation that would "do everything but 
hang people for jaywalking."

? The resurfaced comments come at a time when Biden is facing backlash for his 
past positions and has even hinted at reversing his stance on supporting 
capital punishment.

Read more: Joe Biden is running for president in 2020. Here's everything we 
know about the candidate and how he stacks up against the competition.

"Let me tell you what is in the bill, and I'll let you all decide whether or 
not this is weak," he said. "Let me get down here a compendium of the things 
that are in the bill. One, the death penalty. It provides 53 death-penalty 
offenses. Weak as can be, you know?"

"We do everything but hang people for jaywalking in this bill," Biden added. 
"That's weak stuff," he said.

The 1992 comments are a stark contrast from Biden's current rhetoric on the 
campaign trail.

The former vice president recently congratulated a group of New Hampshire 
voters on their state's recent decision to abolish the death penalty, according 
to Politico. Although, Politico said, Biden has not made any statement on the 
campaign trail clarifying whether or not he still supports the death penalty, 
as he did for over 3 decades in the Senate.

Biden has fought back criticisms in recent weeks for his past stances, as well 
as for new comments that are out of step with most of the Democratic 
presidential candidates, many of whom are considerably further to the left than 
him.

When Biden expressed a fondness for being able to work with and find 
compromises with pro-segregation lawmakers of the 20th century, several 
high-profile Democrats condemned the remarks as racially insensitive.

Biden does not appear to be backing down, either, while maintaining 
considerable support among black lawmakers and a sizable chunk of prospective 
Democratic primary voters. But things could quickly turn bad for Biden, who 
will be center stage next week during the first round of primary debates, where 
his 2020 rivals will all be looking to chip away at his lead.

(source: businessinsider.com)

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

Steve Bullock supports death penalty in 'limited' circumstances



Montana Gov. Steve Bullock said he supports the death penalty in “limited 
circumstances” — a stance that distinguishes the former state attorney general 
from the crowded 2020 Democratic presidential field.

“I think that there are both significant economic and racial disparities when 
it comes to the death penalty, but I wouldn’t take it off the table for the 
most extreme circumstances, like terrorism,” Mr. Bullock said in a 
newly-published interview that’s part of a New York Times project.

Mr. Bullock said that during his time as attorney general and governor of 
Montana, “never once” has the death penalty been imposed or carried out.

None of the other 20 presidential candidates who answered the question said 
they supported the death penalty. Former Vice President Joseph R. Biden 
declined to participate in the project.

(source: Washington Times)