[Deathpenalty] death penalty news----TEXAS, PENN., OHIO

[Rick Halperin]

Oct. 13



TEXAS:

Gov. Abbott, delay this execution



Gov. Greg Abbott, A man’s life now lies in your hands. Spare him.

On Nov. 20, Rodney Reed is to be executed by the state of Texas for a crime we 
can no longer be confident he committed. Twenty one years ago, he was convicted 
in the 1996 rape and murder of 19-year old Giddings resident Stacey Stites. 
Ever since, evidence has mounted that Reed neither raped nor killed her. Now, 
his defense claims it has new witnesses pointing to the man who did.

Reed, 51, is scheduled to die. Of this, there is no doubt. Nor of this: Stites 
was strangled and killed on April 23, 1996, her body found on a country road in 
neighboring Bastrop County. Reed became a suspect a year later when another 
woman accused him of sexual assault; the prosecution showed semen found on both 
women belonged to Reed.

Reed maintained that was because he and Stites, engaged to Giddings police 
officer Jimmy Fennell, Jr., had been having an affair, but the jury convicted 
him anyway.

Over time, facts have emerged that were never part of Reed’s trial and as a 
result, the prosecution’s case has fallen apart.

The medical examiner who claimed that Reed raped Stites has recanted. DNA 
evidence that pointed to Stites’ fiance was never shared with Reed’s defense. 
Other physical evidence, including the murder weapon — her belt — was never 
subjected to genetic testing. Now, Reed’s defense at the Innocence Project 
claims it has new evidence, including two signed affadavits from individuals 
who knew Fennell. One says he threatened to kill Stites if he ever caught her 
with another man, and another says he heard Fennell tell her corpse at the 
viewing that she had deserved to die.

On Oct. 4, lawyers for the Innocence Project filed a motion in state court to 
have the execution date withdrawn, citing the new evidence that they say was 
not available at trial.

All along, the state courts have denied Reed’s one repeated request: that 
evidence collected where Stites’ body was found be genetically tested. Just 2 
years ago, Fennell’s old boss, Giddings’ former chief of police, told CNN that 
Fennell had confessed to being out later than he’d said at trial and that he’d 
been drinking the night before his fiance’s body was discovered, too.

The Criminal Court of Appeals has twice rejected Reed’s appeal, saying the 
untested evidence probably would not have acquitted Reed nor would the 
testimony of Fennell’s old boss have been enough to convict Fennell, who has 
never been charged in connection to Stites’ death. Fennell just finished 10 
years in prison for raping a woman in his custody.

Of course, Fennell’s guilt is not the urgent question right now. It’s Reed’s 
life that hangs in the balance.

His guilt is not remotely beyond a reasonable doubt. A man should not die as 
long as a believable question of innocence hangs over him.

Which brings us to you, governor.

The case of Rodney Reed is not a case against the death penalty, which still 
has the support of many in this law-and-order state. It is a case against a 
potentially wrongful execution.

Your predecessor, Rick Perry, stood by during the frequent executions of his 
tenure. On Perry’s watch, 279 inmates were put to death — nearly 1/2 of the 
state’s total since Texas resumed executions in 1982. While on your watch, 
Governor Abbott, 46 people have been executed, you have also already done 
something Perry rarely did: You’ve exercised discretion to stop an execution.

Minutes before Thomas Whitaker was set to die, at 6 p.m. on Feb. 22, 2018, you 
granted him clemency. He will spend life in prison for the murder of his mother 
and brother in Fort Bend County over an inheritance. There was no question of 
Whitaker’s guilt, just whether it was fair to put him to death when the 
triggerman got a lighter sentence.

How much more compelling, then, is Reed’s case: Whitaker, who is white, was 
unquestionably guilty; Reed, who is black, may well be innocent. Study after 
study, including work by University of Michigan researchers, has found that 
black and Latino convicts are far more likely to wind up on death row, 
wrongfully, than white convicts.

Now the case rests before the Texas Board of Pardons and Paroles and it may 
soon send you a recommendation in Reed’s case. But you can signal your own 
preference now. You aren’t bound by arcane rules of the appellate courts. Both 
you and the board have the documented flaws in the case. You have the Bastrop 
County prosecutor steadfastly refusing DNA testing on an old murder. You have 
the fact that Reed has petitioned the U.S. Supreme Court. And even if the board 
doesn’t recommend you commute his sentence, you have the authority to spare his 
life for 30 days as he pursues his remedy at the Supreme Court.

You should use that authority and give the courts time to fully evaluate the 
new evidence.

As you mull your options, remember our history: Texas has a tarnished record of 
convicting and executing the wrong people. In 1863, San Patricio County hanged 
Chipita Rodriquez for a murder she did not commit, as made clear 120 years 
later when the state legislature absolved her. In 2000, Claude Jones was put to 
death because a single strand of his hair was found at a liquor store that had 
been the scene of a robbery-turned-murder. A decade later, researchers tested 
that hair and found it very likely came from someone else.

There are many recent cases of wrongful convictions leading to death row in 
Texas. Since 1987, 13 death row prisoners in Texas have been exonerated. Most 
were not white, according to data kept by the Innocence Project. False 
accusations and official misconduct have been at the root of most exonerations 
in the United States. Right now, though, Rodney Reed is scheduled to be 
executed at 6 p.m. on Nov. 20 in Huntsville.

There is so much wrong with his case there is hardly anything right with it. Do 
not execute this man, governor. Spare Rodney Reed’s life.

(source: Opinion, Richard Parker, author of "Lone Star Nation: How Texas Will 
Transform America"----Houston Chronicle)








PENNSYLVANIA:

Judge won’t bar death penalty in homicide----Burd charged with smothering 
girlfriend’s child



A Blair County judge has declined to bar consideration of the death penalty in 
prosecuting Drue S. Burd, a 20-year-old Altoona man accused of smothering his 
girlfriend’s 16-month-old baby, leading to her death a few days later on May 
25, 2018.

In an opinion filed this week, Judge Elizabeth Doyle ruled that the defense may 
be in a position, during trial, to repeat its death penalty objections after 
prosecutors finish presenting their evidence.

But at this point, Doyle concluded, the motion to remove torture as an 
aggravating circumstance is denied and the case remains a capital case.

Doyle’s ruling falls in line with positions taken by District Attorney Richard 
Consiglio and Assistant District Attorney Derek Elensky.

The prosecutors are seeking the death penalty based on the aggravating 
circumstances of torture (that the child suffered as she died), the child’s age 
and the fact that the death occurred during commission of a felony.

Altoona police charged Burd with criminal homicide, aggravated assault, 
strangulation, endangering the welfare of children and simple assault. Arrest 
documents indicate that Burd put his hand over the face of the crying child who 
stopped breathing and lost consciousness.

At a court hearing in late August, Elensky told Doyle that prosecutors aren’t 
obligated to provide evidence of torture as an aggravating circumstance prior 
to trial. He said that evidence would be offered to a jury, along with 
mitigating circumstances, if and when a jury considers a death penalty 
sentence.

Chief Public Defender Russ Montgomery and Assistant Public Defender John Siford 
tried to convince Doyle that she should strike torture as an aggravating 
circumstance, in consideration of the death penalty, for lack of evidence.

There is no evidence that the killing in this case was achieved by what the law 
defines as torture, the defense attorneys maintained.

Doyle’s ruling also recognized that the defense attorneys challenged only 1 of 
the 3 aggravating circumstances the prosecutors identified when giving notice 
on their intent to seek the death penalty.

“In order to meet its burden that the designation of this case as a capital 
homicide is improper, Burd must demonstrate that there is no evidence of any of 
the aggravating circumstances,” the judge wrote. “He does not even undertake 
this task.”

(source: Altoona Mirror)








OHIO:

Families of murder victims call for end to state’s death penalty



Some families of murder victims are calling for an end to Ohio’s death penalty.

Saturday, the First Community Church in Columbus hosted the Cast No Stones 
Conference.

A panel included exonerated death row inmates, victims’ family members, and 
social activists.

They said executions are costly, inconsistent, and often drag out a family’s 
pain during lengthy appeals.

This year, Ohio Gov. Mike DeWine put the state’s executions on hold after a 
federal judge classified the lethal injection as cruel and unusual punishment.

Activists said it’s a good opportunity to raise awareness.

“There is this pause again in Ohio, and it’s an opportunity for conversation, 
and that’s what this is all about,” said Abraham Bonowitz from Journey of Hope: 
>From Violence To Healing.

“The death penalty does not help you heal,” added Melinda Dawson, the daughter 
of a murder victim. “It is almost a life-long experience.”

The state currently has 24 executions scheduled between now and 2024.

The conference will continue from 4 to 6 p.m. Sunday.

(source: NBC News)

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

Ishmail faces trial, and the potential of the death penalty



Jabar Muhammed Ismail, 38, was charged with 2 counts of aggravated murder, and 
1 count of kidnapping on April 4.

Ishmail allegedly held Kailin Jones, 25, at the Days Inn, located at 4056 Mt. 
Carmel Tobasco Road on March 14, and then killed her.

A day after the alleged murder, he pleaded not guilty. No bond was set in the 
case; Ishmail is still in Clermont County Jail.

Police said Ishmail made “inconsistent statements about what occurred.” Gregory 
Meyers, Ishmail’s defense attorney, since filed a motion in August to suppress 
statements Ishmail made to police.

Meyers, in his motion, said Ishmail “repeatedly invoked his right to silence 
yet, instead of scrupulously honoring that request as required, the police 
repeatedly questioned him thereafter.”

Any statements obtained by the police are in violation of his Fifth, Sixth, and 
Fourteenth Amendment rights, Meyers said.

Ishmail is also facing the possibility of the death penalty, which Meyers also 
filed a motion in August to dismiss that component.

In his motion, Meyers said the death penalty in Ohio is unconstitutional.

“The Ohio scheme is unconstitutional because it imposes an impermissible risk 
of death on capital defendants who choose to exercise their right to a jury 
trial,” Meyers said, in part.

Meyers filed 31 other defense motions including to exclude evidence relating to 
other crimes, allowing the defense to argue last, and to instruct jurors that 
they may consider residual doubt as a mitigating factor.

A number of those motions are related to rebuttal of the death penalty in the 
event Ishmail is convicted of aggravated murder.

The state offered its reply to each motion on Sept. 27.

The next hearing is Oct. 9 to decide on the motion to suppress.

Ishmail’s trial is set for May 4, 2020 before McBride, to run through May 29, 
2020, if necessary.

(source: TheClermont Sun)

*********

Following year of delays, is Ohio's death penalty finished?



It has been more than a year since Robert J. Van Hook went to the state’s 
lethal injection gurney at the Southern Ohio Correctional Institution for the 
brutal stabbing of David Self in Cincinnati.

His execution was the last on then Gov. John Kasich’s watch.

Since taking office, current Gov. Mike DeWine has issued reprieves for every 
death row inmate scheduled to die so far this year, in some cases twice. No 
decision has been made on the next scheduled execution on Dec. 11 — that of 
James Galen Hanna, convicted of killing his cellmate in 1997 while serving a 
life sentence for a West Toledo murder.

The holdup is caused by the state’s inability to obtain the drugs it prefers to 
use to execute convicted killers. It’s also partly because of a federal judge’s 
ruling that Ohio’s method of execution constitutes cruel and unusual 
punishment, even though that finding was later overturned on appeal.

In this November, 2005, file photo, Larry Greene, public information director 
of the Southern Ohio Correctional Facility, demonstrates how a curtain is 
pulled between the death chamber and witness room at the prison in Lucasville, 
Ohio.

Ohio House votes to eliminate death penalty for those with 'serious mental 
illness'

Still the delay in carrying out death sentences has raised the question: Is 
Ohio’s death penalty dying a slow death?

“I think at some point the governor has to let us know whether or not there’s a 
reasonable prospect of getting the drugs,” state Rep. Bill Seitz (R., 
Cincinnati) said. “If that cannot be done, he needs to let us know that and 
then invite us into consultation with him and prosecutors to come up with an 
alternative method. That’s something I’m perfectly willing to do.”

As attorney general for the prior 8 years, Mr. DeWine’s office was usually 
successful in getting courts to overturn lower decisions blocking the path to 
the execution chamber in Lucasville.

But as governor, the Republican in February pointed to an opinion rendered by 
federal Magistrate Judge Michael Merz in Dayton who compared Ohio’s three-drug 
process for putting inmates to death to “waterboarding.”

“Ohio is not going to execute someone on my watch when a federal judge has 
found it to be cruel and unusual punishment,” Mr. DeWine said. He ordered the 
Department of Rehabilitation and Correction to come up with a new protocol that 
would pass constitutional muster.

He has stopped short, however, of issuing a general moratorium on executions.

Mr. DeWine is staunchly pro-life in regards to abortion, but he co-sponsored 
Ohio’s law reviving the death penalty while he was a state senator.

As attorney general, his office convinced the Cincinnati-based U.S. 6th Circuit 
Court of Appeals to overturn a prior ruling by Magistrate Judge Merz that also 
held Ohio’s method of execution was cruel and unusual.

Last month the appeals court overturned Magistrate Judge Merz’s latest opinion 
that served as part of the basis for Mr. DeWine’s reprieves. The appeals court 
found that while Ohio’s method may be painful, it is not unconstitutionally 
cruel and unusual punishment.

But Abe Bonowitz, co-director of Death Penalty Action, said questions about the 
death penalty in Ohio should not come down to simply how the state should kill 
people. They should focus on whether or not it should.

Mr. Bonowitz, though he noted he has not spoken to the governor, said he hopes 
Mr. DeWine is now viewing the death penalty through a new lens, given his role 
as Ohio’s top elected executive.

“He’s no longer a legislator,” Mr. Bonowitz said. “He’s no longer attorney 
general. He did his job as attorney general, and now he’s looking at this with 
fresh eyes.”

Lingering over all of this has been the state’s struggles to obtain the drugs 
needed to carry out the only method of execution allowed under Ohio law.

The state’s current protocol — the one criticized by Magistrate Judge Merz — 
calls for using the sedative midazolam to render an inmate unconscious followed 
by the paralytic rocuronium bromide to shut down breathing and then potassium 
chloride to trigger cardiac arrest.

The federal judge based his opinion on testimony suggesting that midazolam does 
not induce sufficient and lasting unconsciousness to prevent the condemned from 
feeling pain as the follow-up drugs take effect.

The foreign and domestic owners of such drugs have objected to their use in 
executions and have refused to make them available for that purpose.

“The drug companies have said that if you use our products as part of the 
execution protocol we will stop doing business with the state altogether,” 
DeWine spokesman Dan Tierney said. “That endangers their product being taken 
away for legitimate use in state hospitals and for people who are in state 
custody in DRC or (the Department of Youth Services)…”

The governor cited that problem as one of the reasons that he recently delayed 
the execution of Cleveland Jackson that had been scheduled for November. With 
his half-brother Jeronique Cunningham, Jackson opened fire on a crowded kitchen 
in a Lima apartment during a drug-related robbery, killing 2 girls, ages 3 and 
17.

The primary reason for the reprieve, however, was the filing of a disciplinary 
complaint against Jackson’s prior two lawyers who are accused of all but 
abandoning him.

The execution is now set for Jan. 13, 2021.

Rob Dunham, executive director of the Washington-based Death Penalty 
Information Center, noted that every state in the country to the east and north 
of Ohio either has no death penalty or has placed it on hold. The ODIC is a 
non-profit organization that gathers statistical, legal, demographic, and other 
information on the death penalty, but it does not take a position on execution 
itself.

“We’re seeing the death penalty disappear in whole parts of the country,” Mr. 
Dunham said. “Literally, no one is left in New England who still has the death 
penalty on its books. Pennsylvania is the only state in the northeast with the 
death penalty, and it has a moratorium.”

Even Ohio’s 2 neighbors with the death penalty, Indiana and Kentucky, have not 
used it in about a decade. The number of states with the death penalty has 
slowly fallen to 29 from 38 in 2001.

Mr. Dunham said the fading of the death penalty is further evidenced by the 
fact that fewer people nationally are being sentenced to death in the first 
place.

The Ohio House earlier this year voted overwhelmingly to take the death penalty 
off the table for offenders deemed seriously mentally ill at the time of their 
crimes, even if not ill enough to trigger a verdict of not guilty by reason of 
insanity.

That was one of dozens of reforms that were recommended several years ago by a 
task force convened by Ohio Supreme Court Chief Justice Maureen O’Connor. The 
vast majority of those recommendations have not been implemented.

As lawmakers work to refine the application of the death penalty — narrowing 
the “strike zone” as Mr. Seitz puts it — the lawmaker said he could see 
revisiting the method for putting people to death in Ohio as part of that 
discussion.

“There are methods that have already been blessed by the U.S. Supreme Court — 
hanging, firing squad, and the electric chair,” he said. “We’re on sound ground 
to include any of those options — at least from a constitutional perspective.

“If we try something new, that will mean further delays and appeals,” Mr. Seitz 
said. “We’ve heard talk of nitrous oxide, but that would mean a new round of 
appeals.”

One lawmaker had floated the idea of using fentanyl seized from drug 
traffickers. The potent synthetic opioid painkiller responsible for thousands 
of accidental overdose fatalities each year was used in an execution in 
Nebraska.

But Mr. DeWine swiftly shot that idea down as unlikely to survive 
constitutional scrutiny. There are concerns about guaranteeing the quality of 
illicit fentanyl obtained through drug raids as well the possibility that 
access to the legal painkiller could again be cut off by its manufacturers.

Mr. Dunham said there has been discussion in some states about finding a new 
method of execution.

“In some states, yes. In most states, no,” he said. “Part of that is there is 
diminished public support for capital punishment, so legislators are happy to 
just let it lie. Secondly, legislators who want to bring back dormant death 
penalty methods don’t want botched executions or drugs obtained illegally. When 
you look at what Americans think of other methods, it’s not something that most 
states can stomach.”

Lethal injection has been Ohio’s sole legal method since 2001. Previously, 
inmates could choose between the electric chair and lethal injection, but 
lawmakers moved swiftly to remove the electric chair as a choice when a 
condemned inmate announced he would choose electrocution in order to make his 
death as uncomfortable as possible for the state.

Dubbed “Old Sparky,” the state’s electric chair is now on display at the Ohio 
Reformatory Museum in Mansfield.

Bills have been repeatedly introduced over the years to abolish the death 
penalty in Ohio, but they’ve gone nowhere.

Mr. DeWine has steered clear of talking about his personal feelings on the 
death penalty.

“The governor is still having conversations with the legal team and [the 
department of corrections] to determine where we are on things,” Mr. Tierney 
said. “If a new protocol is put in place, it has to satisfy the constitution 
and legal concerns and comply with Ohio law. Ohio law does restrict the death 
penalty to lethal injection.”

(source: Toledo Blade)