[Deathpenalty] death penalty news----USA, CALIF., MO., IND., N.C.

[Rick Halperin]

August 31



USA:

Misgivings raised as U.S. prepares to speed death penalty appeals


Since capital punishment was reinstated in the United States 3 decades
ago, 124 people awaiting execution have been exonerated. For some
prisoners, the appeals process provided time to prove their innocence.

Now a move by the government to speed up appeals has alarmed death penalty
opponents, and even some supporters, who worry that innocent people could
be put to death.

The unease involves a new law that would give the U.S. attorney general,
instead of judges, the power to shorten some deadlines for appeals if
programs are established to ensure convicts get competent lawyers.

Supporters of the law argue that families of victims suffer when
executions are delayed, because they have to wait for perpetrators to face
justice. Proponents also say that the long wait between sentencing and
execution blunts the deterrent effect they believe makes criminals think
twice before murdering.

"These cases are being reconsidered in a lot more detail than they need to
be," says Kent Scheidegger, legal director of the Criminal Justice Legal
Foundation, a victims' rights group based in California. "Justice can't
take this long."

Some lawmakers, defense lawyers and human rights groups believe the
attorney general, as the supervisor of U.S. prosecutors, should not be
made responsible for ensuring the rights of convicts.

Some of these opponents hope Monday's resignation of Attorney General
Alberto Gonzales could provide an opportunity to alter or repeal the law.

The law, approved last year but not yet implemented, would affect only
appeals in state courts, which try most death penalty cases. Thirty-eight
of 50 U.S. states allow the death penalty, though some have suspended
executions. While polls show most Americans favor capital punishment,
support has been eroding amid reports of injustices.

Among the concerns, some death row convicts have lost their chances to
appeal because of mistakes by state-appointed lawyers. Last year, the
American Civil Liberties Union documented 16 death penalty cases in
Florida alone, where lawyers missed deadlines.

Critics of the law say that moving up deadlines without guaranteeing that
defendants have competent lawyers would be reckless.

Death-row inmates spend an average of 10.5 years in the legal system
before execution, according to the Death Penalty Information Center, a
research group that opposes capital punishment. The 124 people who were
exonerated spent an average of 9.2 years to overturn their sentences, the
center says.

"If you speed it up, you are going to make more mistakes and execute
innocent people," said Brian Evans of Amnesty International.

The chairman of the Senate Judiciary Committee, Democrat Patrick Leahy,
recently told The Associated Press that he would use hearings to expose
the law's problems and push to repeal it. He could have an opportunity to
raise the issue when his panel holds confirmation hearings for nominees to
replace Gonzales and for other vacant senior Justice Department posts.

Although the law has been passed, the Justice Department has not finished
writing the rules needed to implement it. Nevertheless, a published draft
of those rules already has heightened concerns.

On Monday, the American Bar Association, the U.S. legal profession's
largest association, called the rules "deeply and fundamentally flawed"
for not ensuring that convicts have competent attorneys.

"The rules open the scary possibility that the states are going to wave
their arms, and the Department of Justice is just going to let them speed
appeals," said Robert Litt, a criminal defense lawyer who helped write the
ABA comments.

A Justice Department spokesman, Erik Ablin, would not comment on the ABA's
criticism but said the department would consider it before completing its
rules.

States were given the opportunity to try to speed appeals under a 1996
law. But they have been unable to take advantage of the law because
federal judges have repeatedly found that states did not provide
sufficient legal protections to defendants.

"Now instead of making states do better, you are changing who decides,"
said Richard Dieter, executive director of the Death Penalty Information
Center.

Bruce Fein, a senior Justice Department official under the late Republican
President Ronald Reagan, supports the death penalty. But he agrees that
the attorney general should not have this power to shorten appeal
deadlines.

"Judges  since it's their business  pay attention to the law," he said.
"But the motivation of an attorney general in making this decision could
be: 'Let's show that we are tough on criminals.'"

(source: Associated Press)






CALIFORNIA:

California Supreme Court tosses out killer's death penalty


In a rare move, the California Supreme Court on Thursday tossed out the
death sentence of a Long Beach man convicted of killing two people during
a drunken shooting spree that injured 2 others.

The Supreme Court ruled that trial judges improperly denied Arthur Hans
Halvorsen's right to represent himself. However, 6-1 decision left intact
his 2 1st-degree murder convictions and his sentence of life in prison
without the possibility of parole for 1 of the killings.

Halvorsen was convicted of the 1985 murders of Vicente Perez and Calvin
Ferguson, but the jury couldn't make a decision about how to punish him
for killing Perez. A 2nd jury later sentenced Halvorsen to death for that
murder.

Now, the Los Angeles county prosecutor must now decide whether to empanel
yet another jury to decide how to punish Halvorsen for the Perez murder or
let the high court's decision stand. If Los Angeles District Attorney
Steve Cooley does nothing, Halvorsen would not be executed, but would
remain in prison for life without the possibility of parole because of the
Ferguson murder.

"We have not made a decision on how to proceed," DA spokeswoman Sandi
Gibbons said.

Justice Joyce Kennard disagreed with the majority opinion, saying she
would reduce Halvorsen's entire conviction to 2nd-degree murder or hold
another trial to determine guilt.

Halvorsen landed on death row after a rampaging through Los Angeles County
on March 31, 1985 after spending several hours drinking in a Long Beach
bar. At about 5 p.m., he drove to an acquaintance's house and shot the
acquaintance's roommate. He then drove to a trucking company were he used
to work and murdered Perez and Ferguson. Witnesses testified that Ferguson
had met Halvorsen a few times and that Halvorsen and Perez had never met.

Finally, he said he went over to Gene Layton's house to collect a debt.
Halvorsen shot and wounded Layton.

The California Supreme Court reviews all death penalty convictions and
upholds the vast majority of them. There are currently more than 660
inmates on California's death row.

2 judges denied 4 separate requests from Halvorsen to represent himself
during the penalty phase.

(source: Associated Press)

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

California to resume work on bigger death chamber


California will resume construction on a roomier death chamber next Friday
after work was delayed by a state budget impasse, hoping the new facility
will kick-start its stalled execution process.

The California Department of Corrections and Rehabilitation said in a
statement on Thursday that the lethal injection facility at San Quentin
State Prison, 18 miles north of San Francisco, should be completed in
about 10 weeks.

Executions will be carried out in a 6-sided room measuring about 230
square feet, instead of in a chamber originally designed to gas prisoners,
which measures about 43 square feet, according to a virtual tour on the
department's Web site (http://www.cdcr.ca.gov).

Other improvements include more viewing galleries and a room for inmates'
"spiritual needs."

Work on the project was halted in April amid a lengthy delay in finalizing
the state budget, which was finally approved last week.

Corrections officials hope the new chamber will help alleviate concerns
raised by a federal judge who blocked the scheduled execution of convicted
rapist and murderer Michael Morales in February 2006, a month after the
state's last execution.

U.S. District Judge Jeremy Fogel, a Clinton administration appointee who
has termed the lethal injection process "broken," had indicated that he
wanted to tour the new facility on October 1 before scheduled hearings on
new execution protocols.

California has executed 13 prisoners since 1978, when the state's voters
reaffirmed the death penalty. All but the first were executed by lethal
injection after a court ruled that the gas chamber represented cruel and
unusual punishment.

Most of the 71 deaths on death row since 1978 have been from natural
causes. A total of 680 people, 15 of them women, were awaiting execution
as of August 2, according to the department. The average wait for
execution is just over 17 years, more than twice the national rate, the
Los Angeles Times reported on Thursday.

(source: Reuters)

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

Dysfunctional death row----Can the inefficiencies that plague the capital
punishment system make the ultimate penalty unconstitutional?


One thing -- maybe the only thing -- that supporters and opponents of
capital punishment can agree on is that the ultimate penalty is neither
swift nor sure. The average wait for execution for California death row
inmates is 17.2 years, double the national figure.

A federal appeals court judge from Los Angeles who has dealt with the
death penalty as a prosecutor, judge and parole board member is warning
that such "woeful inefficiencies" might someday lead the U.S. Supreme
Court to conclude that such delays are themselves "cruel and unusual
punishment." But Judge Arthur L. Alarcon, who serves on the U.S. 9th
Circuit Court of Appeals -- a court that itself has been accused of
dragging out the implementation of the death penalty -- believes that
death penalty appeals can be expedited without compromising the
due-process rights of defendants.

In an article in the Southern California Law Review, Alarcon makes several
suggestions: better compensation for defense lawyers, a state
constitutional amendment that would transfer automatic review of death
sentences from the California Supreme Court to state appeals courts, a
provision that the same attorneys represent inmates in state and federal
habeas corpus proceedings, and federal funding for state courts "to enable
them to honor their responsibility to ensure that death row inmates'
federal constitutional rights are fully protected."

Alarcon's ideas pose a dilemma for those -- including us -- who believe
that capital punishment is both unworthy of an enlightened society and
inevitably unequal in its application. In an interview with The Times'
Henry Weinstein, the judge mused that the political system "may be
comfortable with a de facto abolition of capital punishment." Should
critics of capital punishment take the same view? Or hope that a future
U.S. Supreme Court, confronted with a dysfunctional system like
California's, might declare the death penalty unconstitutional?

We don't think so -- and not only because the nation's highest court as
now constituted is unlikely to render any sweeping decision against the
death penalty. The late Supreme Court Justice Harry A. Blackmun famously
vowed that "from this day forward, I no longer shall tinker with the
machinery of death." But that proclamation didn't provide much useful
advice for the public officials Alarcon was addressing in his article. So
long as the "machine" exists, they are obligated to make it work in a way
that vindicates both the rights of death row inmates and the public's
expectation that appeals will not go on indefinitely.

(source: Editorial,m Los Angeles Times)

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

DA to seek death penalty in jail slaying


The district attorney will seek the death penalty for a San Bernardino
County jail inmate accused of strangling his cellmate.

Prosecutors made the announcement Thursday morning at a brief court
hearing for Richard Andrew Gatica. They said Gatica's long and violent
criminal history, which includes a prior murder conviction, factored
heavily into the decision.

Gatica, who is acting as his own lawyer, said Thursday he was shocked by
the move.

"I'll need to get busy working on my case," he said.

Gatica is accused of killing 35-year-old Daniel Gallegos in March 2006 in
a two-man cell they shared at West Valley Detention Center in Rancho
Cucamonga.

Investigators allege that after the slaying, he propped Gallegos' body in
various positions for the next day to trick jailers into believing the man
was still alive.

Gatica initially confessed to the killing, authorities said, but has
pleaded not guilty to the homicide charges that stemmed from it.

Gatica, 39, was serving a life prison sentence at the time of the killing
for a 2003 murder in Los Angeles County. He was in jail awaiting trial on
a separate assault charge.

He also has prior convictions for carjacking, burglary, robbery and other
crimes.

At Thursday's hearing in West Valley Superior Court, Judge Mary Fuller
said Gatica made a plea-bargain offer to the District Attorney's Office in
an attempt to resolve the case.

Deputy District Attorney Kent Williams told the judge he would not accept
the offer and will instead seek the death penalty when Gatica's case goes
to trial.

Afterward, Williams would not reveal the details of Gatica's offer.

Nor would Gatica, who responded to a question about the plea negotiation
with a somewhat cryptic answer.

"I just hope I get a smart jury," he said.

Gatica's trial probably won't happen for at least a year.

He is scheduled to return to court next week.

(source: Daily Bulletin)






MISSOURI:

Judges go too far to stop death penalty


Travis Glass, a pedophile, after being confronted with DNA evidence,
confessed to raping and beating to death 13 year-old Steffani Wilkins in
one of the most gruesome murders in Missouri. The jury heard brutal
details of the rape and murder of Steffani and unanimously chose the death
penalty over life in prison. In July, in a 4 to 3 decision, the Missouri
Supreme Court decided that Travis Glass should not be put to death. The
three judges in favor of allowing the jury verdict to stand made clear
that the majority had little legal grounds on their side, but instead were
motivated by a policy preference against the death penalty. One judge
would have swung the decision.

Over the past six years, since Democrat appointees have taken control of
the Missouri Supreme Court, a series of activist decisions have placed
near insurmountable hurdles to the death penalty. In 2003, the Missouri
Supreme Court cited to international law in deciding that it was
unconstitutional "cruel and unusual punishment" to have the death penalty
applied to persons who committed a crime while under the age of 18.
Justice Sandra Day O'Connor had harsh words for the Missouri Supreme
Court's judicial activism, explaining that it was completely inappropriate
for the Missouri Supreme Court to base its decision that the death penalty
was unconstitutional on an "obsolete assessment of contemporary values."
But due to this activism of the Missouri Supreme Court, [the recent]
cold-blooded shooting of St. Louis City Police Officer Norvelle Brown,
allegedly committed by someone under 18, will result in a maximum penalty
of life in prison, if convicted.

Whether one agrees with the death penalty, it is beyond argument that the
death penalty is, and has been for over 200 years, part of the state and
federal constitution. If the values and morals of a majority of
Missourians are such that the death penalty should no longer be applied,
then the legislature should act. Until that time, even if a current
majority of four members of the Missouri Supreme Court feel "contemporary
values" forbid the death penalty, the judges should be humble enough to
recognize that, in a democracy, the government reflects the values of the
people and not the values of an elite four members of the court. Democracy
dictates that judges apply the law as written and not substitute personal
views on policy matters. To do otherwise is judicial activism.

Gov. [Matt] Blunt had requested the Appellate Judicial Nominating
Commission send to him nominees who "did not legislate from the bench"
(i.e., not judicial activists). Just days before the commission met, the
chair of the commission and chief justice of the Missouri Supreme Court
stated in an interview: "I'm not really sure what the term 'activist'
means. This is not a legal term." Black's Law Dictionary, the "standard
authority for legal definitions since 1891," defines judicial activism as
"a philosophy of decision making whereby judges allow their personal views
about public policy, among other factors, to guide their decision." The
term judicial activism is so common that a Google search shows more than
half a million entries.

It is time to have judges on our courts who are humble enough to recognize
that they are not "super legislators" changing our laws to suit their own
values. The proper exercise of judicial power is to apply the laws as
written and intended to the facts of the case.

And if a judge claims not to know what "judicial activism" is, then you
can bet she is trying to duck the issue.

(source: Opinion, News-Leader)






INDIANA:

Pendleton inmate to face death penalty


Prosecutors will seek the death penalty against a Pendleton prison inmate
accused of beating to death a fellow inmate with part of his wheelchair
while the 2 were incarcerated at the Miami Correctional Facility.

Miami County Prosecutor Eric Huneryager filed notice earlier this month
that he will seek the death penalty against Scott A. Nicholson, 39, of
Bedford, on a different charge, though: allegedly killing David L.
Hensley, a convicted child molester sentenced out of Fort Wayne, in
December 2003. Huneryager couldnt immediately be reached for comment on
Thursday.

After the Hensley slaying, Nicholson was transferred to the Pendleton
Correctional Facility. He is accused of severely beating prison guard
Loren Jerry Hartley, 63, on Aug. 7 with part of his wheelchair while the
two were inside the prisons health care center. It wasnt immediately known
if charges had been filed against Nicholson in that case.

Huneryager previously said Nicholson beat Hensley to death in the prison
infirmary. Hensley, 64, who was bedridden, was serving a 53-year prison
term for child molestation, after being sentenced in 1998 in Allen County.

Nicholson initially asked that prosecutors seek the death penalty against
him. Shortly after Hensleys slaying, Nicholson vowed in a letter that he
would kill again if he wasnt sentenced to die. Ultimately, however, he
withdrew the request.

Huneryager previously said he received word through Nicholsons attorney,
Bryan Michaud of Peru, that Nicholson wanted the death penalty reinstated.
Michaud didnt return a message seeking comment. According to court
documents, a new public defender would likely be appointed to handle the
death penalty case.

In making the death sentence request, Huneryager cites the fact that
Nicholson was a prison inmate when he allegedly killed Hensley. Being an
inmate when the crime occurred is considered an aggravator that allows
prosecutors to seek the death penalty under Indiana law.

Nicholson is expected to appear in Miami Circuit Court for a formal
initial hearing concerning the death penalty reinstatement at 10 a.m.
Monday, Sept. 10.

Huneryager previously said Nicholson is not completely confined to a
wheelchair, but couldnt comment on why he needs the chair.

Nicholson is serving a 42-year sentence in the Pendleton prison after
being convicted of armed robbery, criminal confinement and attempted
dealing in a schedule I, II or III controlled substance in Lawrence
County, in south central Indiana, in February 1998.

According to the Indiana Department of Correction, Nicholsons earliest
possible release date on those convictions is July 2013.

(source: The Herald Bulletin)



NORTH CAROLINA:

Wife could face death penalty in killing


The wife of a man who was killed while awaiting a late night romantic
rendezvous in 2005 could face the death penalty.

The Wake County District Attorney's Office disclosed today that Monique
Berkley will face capital charges at her trial scheduled for late October.
Berkley is charged with the murder of her husband, Navy reservist Paul
Berkley, 46, in a North Raleigh park.

Berkley, 27, was on of three defendants charged with Paul Berkley's
murder. On Monday, Andrew Canty, 20, Berkley's lover, pleaded guilty to
Paul Berkley's murder and received life in prison, escaping the death
penalty.

The 3rd charged, Latwon Johnson, 20, is acting as a witness for the
prosecution and is currently not facing the death penalty.

(source:The News & Observer)