Oct. 10
NEBRASKA:
Death penalty in Nebraska: Rarely used, does it get another try?
Voters will consider a historic ballot measure next month to restore Nebraska's
death penalty after the Legislature repealed it in 2015. The World-Herald will
explore several aspects of capital punishment. Today: the death penalty in the
justice system.
* * * * *
To the folks on the front lines - in courthouse hallways, judges' chambers and
prosecutors' offices - capital punishment in Nebraska has been languishing so
long that it now feels more like far-off legal theory.
An exercise in futility rather than a punishment in reality.
Consider:
-- Since mass killer Charles Starkweather was executed in 1959, just 3
death-row inmates in Nebraska have been put to death. Twice as many death-row
residents, 6, have died of natural causes.
-- No Nebraska prisoner has been executed in almost 19 years. 1 death-row
inmate, Carey Dean Moore, has been awaiting execution for 36 years. To put that
time span into perspective, Moore has lingered on death row for as long as, or
longer than, 4 of his fellow death-row inmates have been alive.
-- 1 man, Marco Torres of Grand Island, has been sentenced to death this
decade. Since his arrival on death row in January 2010, at least 7
death-penalty cases have been litigated. None resulted in a death sentence.
The last decade during which only 1 person was sentenced to death: the 1960s.
In short: Without an execution this century - and the state currently without
the lethal-injection drugs needed to execute - Nebraska's death penalty is
flailing.
"It has been frustrating and disappointing," said Madison County Attorney Joe
Smith, a death penalty proponent who has prosecuted 3 people now on death row.
"For us. And for the victims even more so."
"As far as the state of the death penalty in Nebraska - it's a mess," said
Douglas County Attorney Don Kleine, a proponent who has helped send 2 people to
death row. "And that's really on the state (government officials). Obviously,
they've been inept at carrying out the state's wishes."
Prosecutors still hold out hope. Both Smith and Kleine say the rarity with
which defendants are sent to death row proves that Nebraska is measured in its
application.
But in order for it to be effective, they say, it has to be revived - and
applied.
Right now, that's a long way off in Nebraska and, to an extent, across the
nation. In 2015, just 28 U.S. prisoners were put to death and just 49 killers
were sentenced to death. Both numbers are the lowest in 25 years - a
precipitous drop from the late 1990s, according to the national Death Penalty
Information Center.
Nowhere is the withering felt more in Nebraska than on the front lines of the
justice system.
Legal experts say several factors have led to the death penalty languishing in
court: a sense that prosecutors are now using capital punishment primarily as a
plea-bargaining tool; a staggering Omaha case that caused legal observers to
question why the death penalty wouldn't apply in the killing of a family;
precedents that have sharply narrowed who can be killed and for what; and
veteran Nebraska defense attorneys who have used high-court rulings to extend
their clients??? appeals and their lives.
Plea bargains are used to win guilty pleas
Since Marco Torres took up residency on death row on Jan. 29, 2010, prosecutors
have filed 10 death-penalty cases.
3 are pending - including the death-penalty hearing against Omahan Nikko
Jenkins, who killed 4 people, and the trials of Anthony Garcia and Dontevous
Loyd, who are accused of killing multiple Omaha residents.
But none of the 7 others led to the ultimate punishment.
The number of death sentences imposed over the previous 4 decades: 11 in the
1970s; 9 in the 1980s; 4 in the 1990s; and 7 from 2000 through 2009.
The major factor that has derailed death sentences this decade? Plea bargains.
In the past 6 years, prosecutors have dropped their pursuit of the death
penalty in return for guilty pleas by:
-- A 25-year-old Omaha man who killed his mother by bludgeoning her and
stabbing her to death and killed his 4-year-old brother by throwing him into a
river from a bridge. His sentence: life in prison.
-- A 19-year-old man who raped and killed a 93-year-old Omaha woman. His
sentence: life.
-- A 29-year-old Omaha man who helped kill his boss and then hanged his boss's
wife and 7-year-old son. In the middle of his own trial, he admitted his guilt
and helped the state by testifying against the ringleader of the crimes. His
sentence: 10 years.
-- A 32-year-old Mitchell, Nebraska, man who raped his 8-year-old
stepdaughter, strangled and bludgeoned her and dumped her body on ranchland.
His sentence: life.
The net effect? The death penalty's real power is in securing life sentences,
said Jerry Soucie, a defense attorney and former member of the Nebraska
Commission on Public Advocacy.
"When you talk about its practicality now, its real purpose is to hold it over
defendants' heads to get a plea without a trial," Soucie said. "It's an onerous
punishment designed to force pleas and life sentences. In the wrong hands,
that's a dangerous tool."
Both Soucie and Omaha defense attorney Alan Stoler say Nebraskans don't have to
look far to see the potential danger of plea bargains in death-penalty cases.
In the Beatrice 6 wrongful conviction case, several defendants chose a plea
bargain rather than face the possibility of the death penalty in the 1985 rape
and slaying of Helen Wilson.
Only 1 of those 6, Joseph White, refused a plea bargain. After he was
convicted, he was just a judge's decision away from the possibility of a death
sentence. The judge chose life. Good thing: DNA connected another man to
Wilson's murder - and White and the 5 others were exonerated after serving 19
years in prison.
"Where would we be now had he received the death penalty?" Stoler asked.
Prosecutors bristled at the suggestion that they are filing for the death
penalty to try to secure guilty pleas and avoid trial.
Kleine noted that high courts have ruled prosecutors must file for the death
penalty early in any murder case.
In turn, that means Kleine's prosecutors immediately file notice of aggravators
- factors that could lead to the death penalty. Further evaluation of the
defendant's criminal history or mental state can lead prosecutors to conclude
that obtaining the death penalty is unlikely, Kleine said.
"Sometimes it's a close call as to whether a defendant would get the death
penalty," Kleine said. "So we'll take it off the table if the person would be
willing to plead. It's certainly not appropriate to use as a threat."
Douglas County Public Defender Tom Riley was involved in 2 of the cases that
led to guilty pleas to life sentences. Roberto Martinez-Marinero had confessed
to killing his mother in a feud over money - then killing a witness, his
4-year-old brother, by throwing him from an Elkhorn River bridge in May 2015.
Sergio Martinez-Perez beat and rapes a 93-year-old Omaha woman. Police found
him passed out drunk on her body.
Sergio Martinez-Perez had been caught passed out on top of the 93-year-old
woman he raped and killed in 2013.
"What's the defense? There's no realistic defense in either of those cases,"
Riley said of his reason for the pleas.
"Do I think the death penalty can be used to coerce pleas in cases with
questionable evidence? Absolutely it can. ... I just haven't seen it in my
cases."
After heinous crime, 1 man free in Brazil
3 men. 3 victims. 3 vastly different court outcomes.
A 2013 Omaha court case caused legal observers to question everything they knew
about the death penalty in Nebraska.
Jose Oliveira-Coutinho was the foreman of a crew working in Omaha for the
Brazilian missionary Vanderlei Szczepanik. Oliveira recruited 2 friends to
illegally enter the U.S. and work for the boss as he renovated a former South
Omaha school. Upset about his pay, Oliveira eventually hatched his plan to kill
Szczepanik.
On Dec. 17, 2009, the men did, bludgeoning Szczepanik to death in the entryway
of the former school. At Oliveira's instruction they systematically bound
Szczepanik's wife, Jaqueline, and 7-year-old son, Christopher. They stole
Szczepanik's debit card and ordered his despondent wife to turn over the PIN
for the ATM.
One stood watch over Jaqueline and Christopher while the 2 others drove to an
ATM to make sure the PIN was correct. Upon their return, they walked Jaqueline
to a back stairwell. Wailing, she begged them to spare her and her son. The men
did not. They hung Jaqueline.
They then attempted to hang Christopher. However, his body didn't weigh enough
to strangle him.
He was alive, though unconscious, when he was loaded into the back of a van and
driven to the river. 1 of the men slit the torsos of all 3 victims and dumped
them into the Missouri River.
1 of the men was deported to Brazil after prosecutors determined they didn't
have enough to hold him. He remains free there.
A 2nd man turned state's evidence, agreeing to testify against the crew leader.
His sentence: 10 years.
And then there was Oliveira, the crew leader and ringleader.
? A 3-judge panel of Douglas County District Judge Thomas Otepka, Sarpy County
District Judge William Zastera and District Judge Mark Kozisek of western
Nebraska voted 2-1 for death.
Because it wasn't unanimous, Oliveira was spared. 1 judge - the panel didn't
name which one - believed that Oliveira may not have been the ringleader,
despite evidence presented throughout the trial. Judges also mentioned the
potential disparity in sentences.
Prosecutors were dumbfounded. If eradicating a family doesn't get you the death
penalty, they asked, what does?
"That's a very difficult one for me to understand," Kleine said.
He isn't the only one.
"I used to think there were some people that just deserved to die based on the
heinous nature of the crime," said J. William Gallup, an Omaha attorney who has
helped get 3 men off of death row. "But then you look at cases where a guy like
(Oliveira) doesn't get it. ... It's the disparity in punishments that offends
so many people. It often doesn't make any sense why one guy gets it and another
doesn't."
The Brazilians' case lives in infamy in courthouse hallways. One of Oliveira's
former attorneys, now a judge, called securing the life sentence "the greatest
achievement of my legal career."
"It shows 1 of the most glaring problems in capital punishment," said Riley,
the Douglas County public defender. "It's so unevenly applied."
Smith, the Madison County attorney, takes the opposite view. He suggested that
the Brazil case is further proof of how many safeguards the system has and how
sparingly the death penalty is used in Nebraska.
"The system is designed to give the benefit of the doubt at each stage to the
defendant," Smith said. "You don't say 'This guy should have gotten the death
penalty and he didn't, therefore no one should get the death penalty.'
"That kind of thinking defies logic."
'Plenty of issues'
Over the past 25 years, high courts have put the death penalty through a
wringer. U.S. Supreme Court rulings have banned it for people with low IQs,
non-homicide offenses, and underage and mentally disabled defendants.
As the court limits who can be killed it opens avenues for who can appeal,
according to Stoler, a veteran defense attorney who has gotten 2 people off
death row. 1 death-row resident, for example, has filed appeals arguing that he
has a low IQ and should not be executed.
Stoler calls himself an "issue creator."
"And the death penalty has had plenty of issues," he said.
Stoler is just one of a handful of veteran Nebraska attorneys forging those
appellate avenues. Riley, Soucie, Gallup, the recently retired James Mowbray
and members of the Nebraska Commission on Public Advocacy have been doing
death-penalty work for 3 decades or longer.
"(They) are able to get results because they've been in the battle so long,"
Soucie said.
The battle has chipped away at the death penalty.
In 2008 the Nebraska Supreme Court became the 1st and only state court to
declare the electric chair unconstitutional, stripping Nebraska of the method
of execution it was using.
Nebraska's high court also ruled that jurors couldn't consider the mental
anguish of the victim as they considered whether the killing was "especially
heinous, atrocious or cruel."
And in the early 2000s, the U.S. Supreme Court ruled that defendants are
entitled to have a jury - rather than judges - determine whether aggravating
factors exist that might merit the death penalty.
Along those lines, Stoler and his colleagues think a similar issue may be the
next frontier in the fight against Nebraska's death penalty.
A recent U.S. Supreme Court decision out of Florida struck down that state's
method of determining the death penalty because jurors had only an advisory
role in Florida's process.
Stoler argues that Nebraska is no different from Florida. In Nebraska, jurors
determine only whether aggravating circumstances apply; they aren't allowed to
make ultimate determinations of death. A 3-judge panel weighs mitigating
factors and then ultimately decides whether a defendant deserves death.
Just as defendants have a right to have a jury decide their guilt, Stoler said,
defendants have a right to have jurors decide whether they get a death
sentence.
The Nebraska Attorney General's Office disagrees, saying Nebraska's system is
significantly different from Florida's.
A national expert said the ruling doesn't specifically undermine Nebraska's
system.
But "it's something that invites a legal challenge and will have to be sorted
out by the court," said Robert Dunham of the Death Penalty Information Center
in Washington, D.C.
Stoler already has filed that legal challenge on behalf of 1 death-row inmate.
"If I'm right, it throws our whole sentencing scheme into question," Stoler
said. "It's an issue that I think is definitely going to slow down the train."
6 times, stays of execution
2 Nebraska court cases - 1 old, 1 newer - have caused lawyers, even judges, to
question whether the train can get any slower.
Carey Dean Moore has been on death row since 1980 for the murders of Omaha
cabdrivers Reuel Van Ness Jr. and Maynard Helgeland, both 47.
His court history reads like a song on repeat. 6 times, the Nebraska Supreme
Court has set an execution date for Moore: 1982, 1984, 1997, 1999, 2007 and
2011. 6 times, the execution date has been stayed.
Twice in that time span, Moore has asked the court to disregard his appeals and
put him to death. Both times, he has changed his mind and reinstated his
appeals.
"A guy sitting on death row for 36 years? If it weren't so serious, it would be
laughable," Gallup said. "Even the judges are sick of this."
Retired Sarpy County District Judge Ronald Reagan, who sentenced child killer
John Joubert to death, stepped out from behind a judge's typical code of
silence to publicly declare that most current judges would speak out against
the death penalty if they could. Judicial code bars such out-of-court
statements.
In court, Riley said, judges have conducted hearings dutifully, patiently and
by the book.
"But to think they don't have personal viewpoints on the wisdom of this is
foolish," Riley said.
And then there's the case of Nikko Jenkins. In March 2014, he was found guilty
of 4 murders.
In the 2 1/2 years since that plea, his death-penalty hearing has been delayed
3 times as a judge had Jenkins evaluated for competency to face the hearing.
The delays have led prosecutors to gripe that Jenkins is mocking the road to
death row. Every time a death hearing comes near, they say, he slices a part of
his anatomy.
Riley, his attorney, disputes that Jenkins' behavior is exaggerated because of
the death penalty.
"It has more to do with his mental health," Riley said. "Now could you argue
that this case would have been completed had the death penalty not been
present? Perhaps."
Madison County Attorney Joe Smith believes prosecutors should have the option
to pursue capital punishment.
'They relished' their evil deeds
Smith, the Madison County attorney, wants voters to restore the death penalty.
He and Kleine - along with Lancaster County Attorney Joe Kelly, Nebraska
Attorney General Doug Peterson and the Nebraska County Attorneys Association -
think prosecutors should have the option of pursuing it.
Their reasons are rooted in philosophies of punishment and deterrence. The
death penalty still is needed for the worst of the worst, prosecutors say. Of
the 10 men on death row, 4 killed children, 3 of them after raping or abducting
the child. 5 were robbers who killed multiple people. And 1 man is on death row
for the murders of 3 people, including a young woman who was living as a man.
"Look at those 10 people," Smith said. "Name one of them who doesn't deserve to
die for his crimes. These are people who did terrible, terrible things to women
and children - and in some cases they relished it. There's always going to be a
place for the death penalty. You just can't tolerate certain crimes."
Kleine is more measured.
"I'll vote to restore it," Kleine said. "I still believe it's something that
should be on the books in very unique circumstances.
"But I think everyone needs to make their own determination of whether this
should be the law. ... Give it the weight it deserves, which is enormous."
Defense attorneys from Riley to Stoler to Soucie said they would be just fine
if voters put them out of the death-penalty business. They view the death
penalty as inefficient and unevenly applied - a costly "colossal waste of
time," Soucie said.
That said, defense attorneys are weighing their legal options if voters restore
the death penalty. Riley promises to challenge how organizers certified the
signatures for the ballot issue.
Stoler will press on with his challenge, saying that Nebraska's procedure for
imposing a death sentence violates a defendant's right to have a jury decide
his fate.
And the state, which has been unable to secure 1 of the 3 drugs in its
lethal-injection protocol, will have to fix its execution means. A half-dozen
defense attorneys interviewed said they anticipate legal challenges to any new
protocol Nebraska might put in place.
Bottom line, defense attorneys said: Expect a long fight, not a quick
execution.
Said Soucie: "Right now there is no legal way by which the state can get the
current drugs. It's incredibly problematic. There is so much litigation left to
be done."
Riley agreed.
"I can tell you this," he said. "As long as there's a legitimate avenue to
take, we're never going to stop appealing this thing."
(source: omaha.com)
ARIZONA:
The Arizona hanging that ended all Arizona hangings
The event took place just before dawn below the Coolidge Dam, in a secluded
gorge at a rock-crushing quarry.
The place was almost at the intersection of three counties - Graham, Gila and
Pinal - although it was officially in Gila County. The hanging was to take
place at sunrise on July 13, 1936, but the incident proved to be the fatal blow
to all Arizona hangings.
The story started with an undersized Apache Indian boy named Earl Gardner,
growing up on the San Carlos Reservation. He was bullied and picked on because
of his small size and soon developed a fierce temper. That temper made him
despised for his cruelty by his fellow tribesmen.
The boy was always in trouble and became much of an outcast by those on the
reservation. In 1925, at age 19, he became enraged with a fellow Apache and
stabbed him to death. He received a 13-year sentence for the murder and was
sent to the La Tuna, Texas, federal prison.
He was released in 1932, returned to the reservation and married a young girl
named Nancy. Reports indicate that he continuously physically abused her during
their marriage and, when she told him that she wanted to go to church on
Christmas night 1935, around midnight, Earl, in his drunken rage took a hatchet
and chopped her to death. He then turned to his 27-day-old baby, Edward, who
received the same fate. Earl never said what drove him to such a horrible
crime, but fellow Apaches reported it was just in his nature, "like a mad dog."
When Gardner appeared in court in February 1936 before federal Judge Sames in
Globe, he tried to plead guilty but was refused. Gardner said, "Get a good rope
and get it over with," but Judge Sames ordered a trial; and Gardner was found
guilty and sentenced to die.
In 1916, Arizona voters had passed a law replacing the death penalty with life
imprisonment, but, in October 1933, the death penalty was again introduced in
Arizona, but by lethal gas. Since this was a federal case, hanging could still
be used in Arizona - that is, until the sordid results of this hanging filtered
out.
By July 12, 1936, federal Marshal Ben McKinney had deputized more than 3 dozen
men to act as federal deputies to conduct the execution, including reporters.
The large number was due to rumors that Apache tribal members would revolt,
rumors that proved completely false. The marshal bought a black suit and took
it to Gardner, who said, "You must be getting me ready for cool weather." That
day, Earl Gardner performed a chant that is said to be sung by Apaches when
death comes.
A crowd of spectators started to grow early in the evening outside the jail, as
word spread that Earl was to be taken to the gallows before midnight.
McKinney's auto finally pulled up next to the jail's side door and Gardner was
hurried to the vehicle, where he was situated between 2 guards in the rear
seat, while McKinney and another guard with a submachine gun were in the front
seat.
Gardner was trussed in a "Tom Horn"-type harness consisting of a leather belt
and handcuffs. Several autos crammed full of the deputies joined the
procession. The convoy drove at high speed toward Coolidge Dam, a trip that
took about 45 minutes.
Guards at the dam looked into each car before allowing it to proceed. The lead
car, carrying Gardner, wound its way up the dirt road and parked about 25 yards
from the gravel pit with the 20-foot-high wood scaffold built on top.
Gardner sat for almost 5 hours in the back seat of the car waiting for sunrise.
He was seated next to Reverend Uplegger, from the reservation, who prayed and
counseled with Gardner. Gardner did not speak; rather, he sat silent while
chewing gum.
Gathered among the onlookers were some of Arizona's prominent county sheriffs,
including Charles Byrne, of Gila; Harold Brown, of Santa Cruz; Lon Jordan, of
Maricopa; and Peter Newman, of Yuma.
During the night, the deputies lounged around campfires, laughing and telling
stories between sips of spirits.
Finally, the time had come, just before dawn, and Gardner was taken from the
auto and walked to the scaffold, where he stood silently as Deputy Marshal
Henry C. Smith read the death warrant by flashlight.
Gardner was positioned on top of the trapdoor and was asked if he had anything
to say. He said, "I'll be glad to get it over with."
The trapdoor was sprung at 5:06 a.m., but the rope had slipped to the front of
Gardner's neck, allowing him to hit the side of the opening on the way down.
His neck snapped back, but his neck did not break, so he hung there, gasping
for air, for a reported 33 minutes.
Doctor Joseph Snyder checked him for death numerous times before Sheriff
Jordon, of Maricopa County, stepped down through the trapdoor and pushed
Gardner???s body down with a foot on his shoulder to cut off his breathing and
to end the ordeal. Death was reported at 5:39 a.m. A black hearse arrived soon
afterward from Globe to remove the body.
Although the actual execution did not go well, preparations under the direction
of Deputy U.S. Marshal John Snedde were first-rate. He began by stretching the
rope to be used in a garage below the Gila County jail. A barrel of oil and
sacks of sand weighing 500 pounds dangled from one end of the rope to take out
the slack. When that was completed, the rope was soaped and further dressed.
Snedde also built the scaffold, applied the blindfold and most likely pulled
the trapdoor arm, although that has remained a closely guarded secret over the
years.
Months later when word reached Washington, D.C. about the botched hanging, a
law was passed saying that all federal executions would follow state law rather
than the antiquated federal provision allowing hanging, making Earl Gardner the
last to hang in Arizona.
(source: Eastern Arizona Courier)
CALIFORNIA:
2 Officers Shot Dead in Palm Springs, Suspect John Felix Arrested
The man suspected of fatally shooting 2 Palm Springs, California, police
officers could face the death penalty, police said Sunday.
John Felix, 27, was taken into custody after he allegedly opened fire on
officers who were responding to a family dispute on Cypress Road in the north
part of the city on Saturday evening, police said.
The slain officers were Jose Gilbert Vega, 63, a 35-year veteran of the
department who was due to retire in December, and Lesley Zerebny, 26, who had
recently returned to duty after giving birth to a daughter 4 months ago. A 3rd
officer was wounded and remained hospitalized Sunday, according to authorities.
Felix was also being treated at a local hospital. After the shooting, he had
barricaded himself inside of the home officers responded to, and police had to
use chemicals to force him out, said Palm Springs Police Department spokesman
William Hutchinson. When Felix finally surrendered hours after the shooting, he
was wearing body armor, Hutchinson said.
"It was a simple family disturbance and he elected to open fire on a few of the
guardians of the city," Palm Springs police chief Bryan Reyes told a news
conference Saturday.
"The officers from what I understand were near the front door trying to
negotiate with the suspect to just comply."
Felix, who had a criminal record, will be booked into the Robert Presley
Detention Center on 2 counts of murder of a police officer, the Palm Springs
police department said in a statement. Felix will be eligible for the death
penalty, said Riverside County District Attorney Michael Hestrin.
(source: NBC news)
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