March 27
ARIZONA:
2009 capital punishment case back in local court
A Mohave County judge ruled on several motions Wednesday concerning the
county's only death row inmate.
In December, the Arizona Supreme Court overturned Darrell Bryant Ketchner's
conviction and sentencing for 1st-degree murder and burglary and remanded those
charges back to Mohave County for a new trial. His conviction on 3 counts of
aggravated assault and attempted murder was affirmed by the court.
Ketchner, 57, was convicted in March 2013 of the 6 charges and sentenced to
death for the murder charge. He previously pleaded guilty to a weapons charge
and was sentenced to 15 years in prison on that charge.
Ketchner's 1st hearing since the December ruling was held Wednesday before
Superior Court Judge Rick Williams at his Bullhead City courtroom. Ketchner
remains on death row at the state prison. The judge set the next hearing for
April 27.
In 1 defense motion, the judge denied a motion to extend time to file a motion
to remand the case back to the grand jury. The judge also allowed the court to
provide grand jury transcripts to Ketchner's attorney, David Goldberg. A 2nd
attorney, required in death penalty cases, may be appointed at the next
hearing.
Williams heard Ketchner's 1st murder case and has been assigned to the case
again. Williams was reassigned to Bullhead City in January and Ketchner will be
his only felony criminal case. Ketchner again faces the death penalty for the
murder charge.
Justin Rector is the county's only other death penalty case, for allegedly
murdering an 8-year-old Bullhead City girl in September.
Ketchner entered his ex-girlfriend Jennifer Allison's Kingman home on the night
of July 4, 2009, where she sat at the kitchen table with her 18-year-old
daughter, Ariel Allison. Another daughter, her boyfriend, and three younger
children belonging to Ketchner and Jennifer Allison were in another room.
Ketchner started to hit Jennifer Allison, chased her outside and shot her in
the head as she lay in the driveway. Ariel Allison was stabbed 8 times in her
mother's bedroom. She later died. The other children escaped out a window.
Jennifer Allison survived her wounds but had no memory of the attack.
The Supreme Court ruled that testimony from a prosecutor's witness was
inadmissible evidence that required Ketchner's conviction and sentence to be
reversed. The prosecutor argued that Ketchner entered Jennifer Allison's home
to kill her to take control of the family he was losing.
Ketchner's defense attorneys admitted that their client killed Ariel Allison
and the attack on her mother, but they argued that the murder was not
premeditated but rather a sudden, volatile quarrel with heated passion and
should not have been subject to a death sentence.
(source: Mohave Daily News)
CALIFORNIA:
Kinder, gentler forms of capital punishment are still barbaric; No amount of
sugarcoating will change the fact that the death penalty is immoral -- Capital
punishment is intrinsically inhumane, no matter the "cleaner" ways we carry it
out today
The state of Oklahoma, which developed the nation's 1st lethal injection
protocol for executions, may soon approve what lawmakers say is a new, even
more humane way of killing people. Following the advice of a criminal justice
professor who is also a former assistant attorney general of Palau - note the
lack of medical background - the state Legislature now wants to try a method
called "nitrogen hypoxia.".
Utah is also changing the way it ends the lives of condemned prisoners. This
week, Gov. Gary Herbert signed a bill allowing execution by firing squad when
no drugs are available to create lethal injection cocktails. Opponents
immediately denounced the plan as "barbaric" and "brutal."
In California, the state has wrestled with updating its lethal injection
protocol ever since a judge imposed a moratorium on it. Another judge ruled
that California's capital punishment system is too arbitrary and too slow. In
both cases, the judges said the state was violating the U.S. Constitution's ban
on cruel and unusual punishment.
There's nothing new about this debate over how to make executions kinder,
gentler and less painful. And in one sense, that's reasonable. If the state is
going to kill people, it should certainly try to minimize the moaning and
writhing that has characterized so many recent executions.
But on another level, this is a fool's errand, an exercise in sugarcoating. You
can't make humane something that is intrinsically inhumane. The United States
should long ago have joined most of the rest of the world in abolishing the
death penalty. Not so much because there might be (and often is) pain and
suffering involved but because capital punishment is flawed, expensive, subject
to manipulation, applied disproportionately to minorities, not an effective
deterrent and, at the end of the day, irreversible. It is fundamentally immoral
for the state to punish killers by killing them.
Some methods of execution might be less painful than others, and the illusion
that someone might be gently sent off to permanent sleep may make us feel more
civilized about a process that has, in the past, involved hanging,
electrocution, beheading, firing squad and poisonous gas. But even when it's
all dressed up - even when it's talked about in terms of science and protocols
and humaneness - capital punishment remains a barbaric act.
California corrections officials currently are trying to devise a new protocol
to meet court objections to the way it has been conducting its lethal
injections. The Legislature should bring this farce to an end by pressing for
an initiative to abolish the death penalty, as 18 other states have already
done.
(source: Editorial, Los Angeles Times)
USA:
Argument preview: Mental disability and death sentencing
At 10 a.m. Monday, the Supreme Court will hold one hour of oral argument on the
procedure to be used to determine if an individual is mentally disabled and
thus cannot be given a death sentence. In Brumfield v. Cain, arguing for the
Louisiana death-row inmate will be Michael B. DeSanctis of the Washington,
D.C., office of Jenner & Block LLP. Representing the state warden will be
Premila Burns of Baton Rouge, an assistant district attorney for the East Baton
Rouge Parish. Each lawyer will have 30 minutes of time.
Background
Over the years, the Supreme Court has created a fairly short list of categories
of individuals who cannot constitutionally be executed for their crimes. The
list includes juveniles, the mentally insane, anyone who commits a crime other
than murder, and, most recently, an individual who is mentally disabled.
Although each decision in this series supposedly imposed a flat ban on a death
sentence for the individual or the crime, the Court has struggled the most with
clarifying the mental disability category. It returns to that effort next week.
In its decision in 2002 in Atkins v. Virginia, the Court ruled that the Eighth
Amendment ban on cruel and unusual punishment bars the execution of a person
who was mentally disabled. (In that ruling, the Court used the phrase "mentally
retarded," but it has since followed the medically preferred phrase
"intellectually disabled.")
At that time, the Court remarked that "not all people who claim to be mentally
retarded will be so impaired as to fall within the range of mentally retarded
offenders about whom there is a national consensus [against their execution]."
So the Court said it was leaving to the states "the task of developing
appropriate ways to enforce the constitutional restriction upon its execution
of sentences."
Since then, the Court has told the states that they may not use a single factor
- the score an individual gets on an IQ test - to make the decision. But it has
yet to define what procedure the Eighth Amendment may require a state to use to
determine whether a person is eligible to be treated as mentally disabled.
In the new case of Brumfield v. Cain, the Court has agreed to decide whether it
is unconstitutional for a state to make that decision based solely on the
evidence that was presented at the death sentencing procedure following a
conviction for murder. The appeal in this case seeks a ruling that the Eighth
Amendment requires that there be a separate hearing, focused only on evidence -
for and against - a finding of mental disability.
This case involves Kevan Brumfield of Baton Rouge, who is on death row for the
1993 murder of a police officer who was moonlighting off-duty as a security
guard for a Baton Rouge supermarket. Brumfield and 2 other men allegedly had
lingered around that grocery store, checking it out to see if they could stage
a robbery.
The store manager was Kimen Lee, while Corporal Betty Smothers, in uniform, was
there as a part-time guard. When the store closed, Smothers drove her patrol
car, with Lee as a passenger, to a bank's night depository with the day's
proceeds from the store. Brumfield and another man allegedly hid in the bushes
at the bank, then fired shots at the patrol car, killing Smothers and gravely
injuring Lee. The men fled without taking the bank deposit bag.
Brumfield was tried for the murder of Corporal Smothers, after he had given a
videotaped confession. Lee survived her wounds and testified at the trial,
helping prosecutors prove that Brumfield was one of the shooters at the bank.
Brumfield's defense lawyer did not raise the mental disability claim at the
trial.
After Brumfield was convicted, a separate death sentencing proceeding was held.
The defense lawyers called to the stand a psychologist and a social worker to
testify about Brumfield's abused childhood and mental deficiencies, but at no
time argued that he was actually mentally disabled. A death sentence was
imposed.
In a state court challenge after his conviction became final, a defense lawyer,
relying on the Court's decision in Atkins v. Virginia, did raise the mental
disability claim, but the state court rejected it, finding that the evidence at
the sentencing proceeding was sufficient to show that Brumfield was not
mentally disabled. The state court also refused a request by Brumfield's
lawyers for funds to cover the cost of gathering evidence about his mental
state.
Brumfield then pursued a federal habeas challenge. After a trial, the district
court judge ruled that the evidence at the sentencing hearing was not
sufficient to determine the mental disability claim, and held 7 days of
hearings on that question. In the end, the judge concluded that Brumfield did
fit into that category. However, the state appealed, and the U.S. Court of
Appeals for the Fifth Circuit overturned the district court ruling, concluding
that the penalty-phase evidence was sufficient to decide the question. The
Fifth Circuit also ruled that Brumfield was not entitled to funds to hire an
expert to develop mental disability evidence.
Brumfield's lawyers appealed to the Supreme Court last May, urging the Court to
rule that it was unreasonable for the state court to base its determination
that he was not mentally disabled on the evidence at the penalty hearing.
Separately, the petition urged the Court to declare that an individual who
lacks the money to pay to hire an expert to develop evidence on that issue has
a right to such funds.
The Court scheduled Brumfield's petition for consideration eight times before
finally voting to grant it, on December 5.
Briefs on the merits
Brumfield's brief on the merits noted that the death sentencing proceeding in
his case had been held before the Supreme Court had made mental disability a
defense against a death sentence, and before Louisiana courts had developed any
standards for judging that question. It was no surprise, then, the brief said,
that the issue really did not come up at that time.
Given those circumstances, the brief contended, it was unreasonable for the
state court - after the Atkins decision had come down - to treat the sentencing
proceeding as adequate. The federal district judge, it added, was thus
justified in gathering evidence and then actually finding that Brumfield was
mentally disabled. The Fifth Circuit, the brief said, should not have
overturned that result.
Moreover, the brief asserted, the Fifth Circuit was wrong in upholding the
denial of funds to investigate Brumfield's mental state. The Supreme Court, it
added, has made clear that those facing a potential death sentence must have
access to expert testimony to evaluate the convicted individual's mental state.
A former state chief justice for Louisiana, joined by legal advocacy groups in
the state, filed an amicus brief urging the Court to overturn the Fifth
Circuit's ruling. This filing laid out how the state courts have now
established procedures for fully evaluating a mental disability claim, making
Brumfield's case an aberration.
Louisiana's brief on the merits used much of its contents to lay out all of the
details in the various state court proceedings, to make the point that
Brumsfield had a more than fair chance to make a mental disability claim, but
failed in that at every turn. Moreover, the state argued, Brumfield's appeal
has misstated the record in arguing that the denial of his disability claim was
based solely on what was said at the death sentencing proceeding. That issue,
the filing said, is a highly factual one, and the record fully supports the
rejection of his claim.
The state also contended that federal habeas law explicitly limited a federal
habeas petitioner to challenging the record that was made in state court
proceedings. The Supreme Court has made clear, the state said, that the only
record that counts in habeas is the evidence that unfolded in state court.
On Brumfield's separate claim that he had a constitutional right to state
funding to help develop a mental disability record, the state contended that
Brumsfield's lawyers failed to press that argument when his case was in state
courts. In addition, the state argued, the Supreme Court's Atkins decision did
not establish any procedural rights - such as a right to funding for an
investigation of an issue - but left that question to states to work out the
procedures.
In a final thrust, the state contended that Brumfield simply is not mentally
disabled, noting that he "was subjected to 6 evaluations before the age of 18
and not one diagnosed him" as disabled.
(source: SCOTUS blog)
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