Oct. 29
KANSAS:
Kansas high court justices defend handling of capital cases
4 Kansas Supreme Court justices facing a campaign to oust them in the Nov. 8
election say the court has decided capital murder cases on legal and
constitutional issues while avoiding politics and emotion.
Past high court rulings overturning death sentences are at the center of the
effort to remove Chief Justice Lawton Nuss and Justices Carol Beier, Dan Biles
and Marla Luckert. They face statewide yes-or-no votes on whether they stay on
the court for another 6 years.
The court's critics are particularly upset about July 2014 rulings overturning
death sentences for Jonathan and Reginald Carr. The 2 brothers had faced lethal
injection for shooting 4 people in December 2000 after forcing them to perform
sex acts and robbing them. Among other things, the court concluded that
fairness required the brothers to be sentenced separately.
The 4 justices declined to discuss specific cases this week, citing judicial
ethics rules, but they provided written answers to questions from The
Associated Press. Nuss and Luckert noted that the court has upheld several
death sentences, and all 4 said the court is fair and impartial.
"I can say that our court sees a great deal of human tragedy, and, as people,
my colleagues and I feel enormous natural sympathy for those in pain," Beier
wrote Friday. "As judges, however, we have a duty not to be influenced by our
feelings. This is one of the great challenges of our job."
Nuss and Luckert were named to the court by moderate Republican Gov. Bill
Graves, while Beier and Biles were appointed by Democratic Gov. Kathleen
Sebelius. All were retained with at least 62 percent of the vote in 2010.
Also on the ballot is Justice Caleb Stegall, conservative GOP Gov. Sam
Brownback's only appointee. He joined the high court in December 2014 - after
the Carr decisions and others overturning death sentences - and isn't targeted
by the ouster campaign.
Stegall said courts should not be immune from criticism, "but the judicial
function demands that judges stay out of these political arguments."
Conservative Republicans and abortion opponents are pushing to remove Nuss,
Luckert, Beier and Biles ahead of decisions in pending abortion and school
funding cases.
But Amy James, spokeswoman for the anti-retention group Kansans for Justice,
said she and other murder victims' families and friends don't see criticizing
the court's death penalty rulings as "about politics." One of the Carrs' murder
victims was her boyfriend, Brad Heyka.
"This is an issue that we feel crosses all parties and really doesn't have a
party affiliation," James said.
Criticism of the decisions in the Carr cases resonates strongly with some
voters. Dennis Rees, a 63-year-old retired Wichita executive, cited the rulings
after voting against the justices this week.
"When people are caught, accused, tried and the matter adjudicated, it is not
the business of the Supreme Court to overrule a fair trial," Rees said.
Kansas reinstated capital punishment in 1994 but no one has been executed
since, with the state Supreme Court overturning death sentences 7 times in 20
years. 5 of those decisions were later reversed by the U.S. Supreme Court,
including the Carr rulings.
But Luckert noted in her response to AP, "no one convicted of capital murder in
Kansas has been let out of prison during that process."
The Kansas court has upheld 3 death sentences within the past year. Speaking in
general, Nuss wrote that such rulings represent "decisions that were warranted
by the law as applied to the specific facts and proceedings in each individual
case."
Biles said parties in cases and their supporters are expected to sometimes
criticize the court's decisions. But he said the justices must make decisions
"in a fair and impartial manner."
"As a result, we must stay above the fray," Biles wrote.
(source: The Republic)
NEBRASKA:
ebraska Supreme Court rejects appeal of man on death row
Jeffrey Hessler lost an appeal Friday that claimed he should not have been
allowed to plead no contest to a sexual assault charge later used to put him on
death row in a separate murder case.
Hessler, 38, has been sentenced to die for the Feb. 11, 2003, abduction, rape
and murder of 15-year-old Heather Guerrero of Gering. At the same time that he
confessed to Heather's murder, Hessler also told authorities he had raped a 2nd
teenage girl, from Scottsbluff, 6 months earlier.
One reason the confession to the 1st rape was significant was that it gave the
prosecution an avenue to use the case to argue for an aggravating circumstance,
an element necessary to secure a death sentence.
Hessler's defense team advised him to plead no contest to the earlier sexual
assault before his murder trial. They planned to make a double jeopardy
argument that they hoped would disqualify the earlier rape conviction as an
aggravating circumstance.
His trial lawyers told Hessler their theory was untested, but faced with
confessions and DNA evidence that proved Hessler's guilt, their strategy was to
try to keep him off death row. Hessler also told his lawyers that he did not
want to go to trial on the earlier rape charge.
Ultimately the strategy failed and the sexual assault conviction was used by
the prosecution during the sentencing phase in the murder case.
In his post-conviction motion, Hessler argued that he received ineffective
legal assistance in the rape case because his lawyers should have argued that
he was mentally incompetent to make the plea. Hessler had been diagnosed with
bipolar disorder, depression and paranoid delusional disorder.
Scotts Bluff County District Judge Randall Lippstreu reviewed the testimony of
three psychiatric professionals who had met with Hessler. Despite Hessler's
illness, all 3 said he understood what was happening and was able to assist in
his defense. His own trial lawyers gave similar testimony.
The district judge ruled that Hessler failed to prove that he was incompetent
and therefore overruled his motion.
The Supreme Court upheld the lower court and also rejected other error claims
raised by Hessler in the same case.
The high court has previously affirmed Hessler's death sentence on direct
appeal.
More recently, Hessler has filed a different motion that challenges the
constitutionality of Nebraska's sentencing procedure in death penalty cases.
That claim is based on a U.S. Supreme Court decision in a Florida death penalty
case.
***********************
Economist challenges Nebraska attorney general to public debate on cost of
death penalty
The economist who estimated that Nebraska spends $14.6 million annually on the
death penalty challenged the biggest critic of his findings to a public debate.
Creighton economics professor Ernie Goss said in a Friday letter that Attorney
General Doug Peterson has repeatedly misrepresented his cost analysis. Peterson
has released his own research that he says shows that the death penalty costs a
small fraction of Goss??? estimate.
Goss invited Peterson to a public forum where both could present their research
"so voters can analyze the data and decide for themselves what the economic
costs of Nebraska's death penalty are."
In response, Peterson's spokeswoman issued a press release saying the attorney
general is "confident in Nebraskans' ability to determine the facts when they
vote on the death penalty."
Peterson, who supports the death penalty, has assailed the $16,000 study that
Goss did on commission for Retain a Just Nebraska, an organization working to
preserve the Legislature's 2015 repeal of capital punishment. On Nov. 8, voters
will decide on a referendum on the repeal legislation.
Peterson said one flaw of the Goss analysis stems from its reliance on studies
conducted in other states that show that death penalty cases generate higher
defense costs, take more court time to resolve and generate more appeals than
cases that result in life in prison.
Nebraska's costs are lower than other states', Peterson argued, because the
state sets a high bar for death penalty prosecutions and ultimately sends a
relatively small number of killers to death row.
Goss said his $14.6 million estimate was derived from an economic equation that
factored in justice cost data reported by Nebraska counties to the U.S. Census
Bureau. The analysis has a margin of error of half a percent, he added.
The Goss report can be found at retainajustnebraska.com, while Peterson's
research is on his website at
ago.nebraska.gov/media/news/view/101182/nebraska-facts-about-nebraskas-death-penalty.
(source for both: omaha.com)
********************
Jury finds death penalty aggravators exist in Anthony Garcia murders
A Douglas County jury on Friday found that there are enough aggravating
circumstances to warrant the death penalty for convicted serial killer Anthony
Garcia.
Those factors are: that the murders were especially heinous, that more than 1
person was killed at the time of the murders and that murders were committed to
conceal the identity of the killer.
Garcia was convicted Wednesday of 4 counts of 1st-degree murder. The convicted
killer of Thomas Hunter, Shirlee Sherman, Dr. Roger Brumback and his wife Mary
will now face a 3-judge panel for the death sentence. It will include Judge
Gary Randall, who presided over the trial. That's if Nebraska voters bring back
capital punishment in the November election.
The jury returned its verdict Friday afternoon after a brief session of
deliberations. Garcia was not present for the hearing Friday -- having chosen
not to come to court. A Douglas County Corrections sergeant testified that
jailers gave Garcia an opportunity to attend.
"He responded, 'Why would I do that?'" the sergeant testified.
Both the panel and the jury must agree on aggravating circumstances before
Garcia can be sentenced to death.
Douglas County Attorney Don Kleine spent less than 15 minutes explaining to the
jury the aggravators that existed, and again flashed the murder scene photos,
describing the killings as torture.
"You already found the defendant guilty of the crimes," Kleine said. "I hope
you can find these aggravators very simply and very quickly."
Garcia's defense attorney Bob Motta Sr. stood up with little to say.
"I can't tell you what to think, or what to decide," he said. "Look to your
respective religions and God and make a decision based on that."
The jury took about 30 minutes to come back with its decision.
Garcia's defense team has promised an appeal.
(source: KETV news)
******************
Death penalty fight continues throughout the state
Proponents of the death penalty traveled through western Nebraska, urging
voters to vote to repeal LB 268.
The Nebraska Legislature passed the bill, which repealed the death penalty
during the 2015 Legislative session. Nebraskans for the Death Penalty Rick
Eberhardt, Pierce County Sheriff, and Vivian Tuttle, the mother of a bank
robbery victim, are among those urging citizens to cast their vote to repeal. A
vote to repeal would retain the death penalty in Nebraska.
Eberhardt and Tuttle said they have been talking to people about how important
it is to keep the death penalty in the state of Nebraska and will continue
spreading that message.
"No matter where you live in Norfolk, Nebraska or in Scottsbuff, Nebraska, or
Omaha, Nebraska, no matter where you live, the victims' families all cry the
same tears," Pierce said. "We believe that Nebraskans have the right to vote on
the death penalty."
Tuttle and Eberhardt spoke harsh words for legislators who voted to repeal the
death penalty. Even more, the 2 said, 25 senators voted against an amendment
that would have allowed voters to decide the issue. Instead of putting the
issue before the voters, they said, the legislators voted down the amendment
and then overrode Gov. Pete Ricketts' veto.
Pierce said that 167,000 people - and 1,673 people from Scottsbluff - signed a
petition to bring the death penalty issue before the voters. Tuttle, who lists
a Ewing, Nebraska, and Palmview, Texas, address on her card, said she traveled
9,000 miles last summer to circulate the petition.
She said her granddaughter had just gone off to college when her mother,
Evonne, and 4 others were killed in a Norfolk bank robbery in 2002. She says
her granddaughter came home to tell her 3-year-old and 5-year-old sisters about
their mother's death. Her granddaughter also testified during hearings on the
death penalty.
"That pain is still there," she said, and she says it won't go away until the
men convicted in the bank robberies are executed. "...She wants to retain the
death penalty. They (the men convicted in the robberies) were given five death
sentences and if LB 268 were to go into effect and be carried out, they would
be given life sentences without parole. But, I've been told by the governor,
the secretary of state and everyone else that there is no such thing as life
without parole. After you serve so many years, you can go before the parole
board. We don't want that to ever happen. We want justice and justice happens
when this is carried out."
Tuttle and Pierce said groups seeking to repeal the death penalty aren't
putting victims of crimes first.
"These were innocent humans, children, wives, husbands that were brutally
murdered," Pierce said, saying that anti-death penalty groups want people to
put more value on murderers' lives to those of victims. "It should be about the
victims, their families and the community. If the death penalty is taken away,
people need to realize there will be no crime in this state, no matter how many
people are killed, how young they are, no matter what the circumstances are,
that will warrant the death penalty."
This week, Tuttle and Eberhardt traveled to Gordon, Chadron, Alliance,
Scottsbluff and continued on to Sidney and Alliance as part of their efforts to
reach potential voters.
"We believe that an informed public is a good thing."
They said some of the work they are doing is to speak about the efforts of
those against the death penalty. While they called themselves volunteers for
Nebraskans for the death penalty, the called those with Retain A Just Nebraska,
the most prominent group that has been campaigning to retain LB 268, high paid
lobbyists using "outside money to further an agenda to abolish the death
penalty throughout the nation.
"We think its important that everyone read the ballot, sit down at the kitchen
table, sit down with your family and your friends," Eberhardt said. "Ask people
about the cases and then when you pull that curtain shut, your vote will matter
as much as the governor, any state legislator and the guy living down the
street."
(source: Scottsbluff Star Herald)
***************************
Death penalty ads missed crucial point
Nebraska Secretary of State John Gale was right to pull public service
announcements that were scheduled to air on the death penalty referendum.
The radio ads were aimed at a real problem, but they were the wrong solution.
The problem is the confusing language that appears on the ballot. To reiterate,
votes who support the death penalty will vote to repeal. Voters who oppose the
death penalty will vote to retain the law passed by the Legislature, which
replaces the death penalty with a sentence of life in prison.
The radio ads tried to oversimply the situation, and the end result was that
they were misleading. The announcements made it sound as though the choice was
solely to keep or abolish the death penalty without reference to the fact that
the law in question replaced the death penalty with life in prison.
There is no doubt that it's important that voters know that, under the law,
criminals convicted of the most heinous murders will never be allowed back into
society, and that public safety is protected.
As Darold Bauer, campaign manager of Retain a Just Nebraska said, that
information is critical.
"Decades of research has shown that voters' opinion of the death penalty
changes drastically based on whether or not the assurance of life imprisonment
exists," he said.
It's also shown by the fact that the issue comes up repeatedly in debates on
the referendum.
Death penalty proponents have disingenuously made the claim that there is no
such thing as life in prison without parole because a judge can always commute
a life sentence.
Here's what retired District Judge Ronald Reagan had to say in May.
"I want to make sure there's no legal confusion. Life imprisonment means life
in prison, no chance of parole. Anything else is legal posturing and has no
grounding in the legal realities.
Reagan knows the subject as well as any legal expert and better than most. As a
judge, he sentenced sadistic serial killer John Joubert to death. Joubert died
in the electric chair in 1996.
If the argument being spread by death penalty advocates had validity, it would
be just as true to say that there can be no such thing as the death penalty in
Nebraska because a judge could always commute the sentence.
Reagan's words are worth repeating: "Let me be perfectly clear about what
happens when someone is sentenced to life in prison. They die in prison."
That's the information that was omitted from the public service announcements
and Gale rightly took them off the air before they misled voters.
(source: Editorial Board Lincoln Journal Star)
ARIZONA:
News outlets argue for names of lethal drug suppliers
An attorney for a coalition of news organizations suing Arizona over the way it
carries out executions said in federal court Friday that the public has a right
to know where the state gets lethal injection drugs and how many doses are
administered.
The state says releasing those details would jeopardize the confidentiality of
executioners and would lead suppliers to stop providing the drugs if their
names were made public.
The lawsuit is 1 of 2 challenging the secrecy around executions in Arizona. A
group of news organizations, including The Associated Press, filed it shortly
after the July 23, 2014, execution of Joseph Rudolph Wood, who took nearly 2
hours to die.
His attorneys said Wood's execution was botched, a claim the state denies. He
was given 15 doses of a 2-drug combination, which was not revealed until days
after he died.
The attorneys made oral arguments before U.S. District Judge Murray Snow, who
asked pointed questions and said he would issue a decision as soon as possible.
A different lawsuit filed before the execution by Wood and other death-row
inmates is ongoing. Executions in Arizona are on hold while that lawsuit plays
out in court.
An attorney for the media outlets, John Langford, said the state has an
obligation under the First Amendment to provide information about where it gets
lethal injection drugs, how many doses are administered during an execution and
the qualifications of those who give them to inmates.
"Without that information, the public cannot meaningfully understand what's
happening in executions," Langford said.
Jeffrey Sparks, assistant state attorney general, said the First Amendment does
not extend to the details the news organizations seek. He said allowing the
public to view how many doses of lethal injection drugs are given during an
execution would jeopardize staff members because they could be identified.
Under the current protocol, executioners are not visible to witnesses.
Snow pushed the state on why it could not enact measures allowing executioners
to be seen injecting drugs but be fully disguised by typical medical garb that
others in the execution chamber wear.
The state also says that suppliers would stop providing execution drugs if the
state were to reveal where they came from because of threats they could
receive.
"The First Amendment doesn't go that far," Sparks said.
(source: The Republic)
CALIFORNIA:
Convicted serial killer won't return to Wyoming to face murder charge from 1977
killing
A convicted serial killer charged last month in the 1977 killing of a woman in
Sweetwater County will not travel from California's death row to face his
1st-degree murder charge in Wyoming, Sweetwater County Attorney Daniel
Erramouspe announced late Thursday.
Rodney Alcala is too medically frail to travel to Wyoming to face trial for the
1977 death of Christine Thornton, whose body was found on the remote plains
northeast of Granger, Erramouspe said in a statement.
"The fact that this case will not be proven in court does nothing to dissuade
me from knowing that Alcala murdered Ms. Thornton," Erramouspe said.
Alcala, now 73, has been found guilty of killing 7 people in 2 states, though
authorities estimate he may have killed up to 130 victims across the U.S. He is
known as the "Dating Game killer" for appearing on the popular television
program in the late 1970s.
Alcala can no longer walk or leave the hospital wing of the Corcoran
Penitentiary in California, where he???s held, without medical services, prison
staff told Erramouspe.
Alcala was previously extradited to New York from a California prison in 2013
to face murder charges in the killings of 2 young women in the 1970s.
Erramouspe charged Alcala with first-degree murder on Sept. 20 after decades of
investigation by law enforcement and Thornton's family.
A rancher discovered human remains near a 2-track dirt road on public land
outside of Granger in 1982, but it wasn't until 2015 and a twist of fortune
that the remains were identified as those of Thornton, court documents show.
"The solving of this cold case, with the random facts, indicates solid
investigation and integrity by the Sweetwater County Sheriff's Office...,"
Erramouspe said Thursday. "It also shows the power of perseverance on behalf of
Ms. Thornton's family in never giving up the search for their sister."
For decades, Thornton's family searched for the missing woman without much
luck. But in 2013, one of her sisters began looking through photos taken by
Alcala that had been released by California investigators in hopes of finding
more of his victims.
There, among the dozens of photos of women, the sister happened upon one of
Thornton. In the photo, a smiling Thornton is astride a blue and white Kawasaki
motorcycle in a yellow top, blue jeans and red flip-flops. She was also wearing
a gold ring and a watch with a thin brown band.
After finding the photo, 2 of Thornton's sisters submitted DNA samples to a
database maintained by the National Missing and Unidentified Persons System. In
July 2015, their DNA matched with a sample taken from the remains found in
Sweetwater County.
Deputies from the county sheriff's office began to investigate. The clothes in
the photo of Thornton atop a motorcycle were similar to those found near her
remains, including the gold ring and the watch. Investigators had found a blue
and white Kawasaki motorcycle in Alcala's Seattle storage locker. A deputy went
to the spot where her remains had been found and compared it to the plains
featured in the photo. The location was virtually the same, the deputy found.
Thornton's family told investigators they had last seen her in August 1977 and
that she had been pregnant at the time.
Alcala was on probation for an assault against an 8-year-old girl during the
summer of 1977 when he was given permission by his parole officer to travel
from Los Angeles to New York; Washington, D.C.; Illinois and Mexico.
Investigators believe he killed Thornton during these travels.
Sweetwater County deputies and Erramouspe traveled to California last month to
meet with Alcala at the Corcoran State Penitentiary, where he lives on death
row.
When presented with the photo, Alcala said that he had taken the photo but that
Thornton "was alive before I left her," according to court documents.
Alcala has been convicted of killing 4 women in California, for which he
received the death penalty, and 2 women in New York, for which he was sentenced
to a maximum penalty of life imprisonment.
Alcala was known to approach his victims pretending to be a photographer and
ask them to pose for him, court documents show. He then killed them by
strangulation or physical assault. All of his known victims were women.
(source: trib.com)
***********************
Suspect pleads not guilty in California deputy's slaying
Law enforcement officers shut down a block surrounding the Modoc County
Superior Court on Friday for the 1st court appearance of a man accused of
killing a sheriff's deputy, a crime that has rocked the normally sleepy
Northern California community.
"We're the 10th largest county in the state of California, geographically, but
we're small - less than 10,000 people - and we've never had to deal with such a
tragic loss," Sheriff Mike Poindexter said before the arraignment of Jack Lee
Breiner.
Breiner, appearing in an orange jumpsuit and using a wheelchair, pleaded not
guilty to the murder of Deputy Jack Hopkins and attempted murder of Poindexter.
Breiner allegedly shot and killed Hopkins on Oct. 19 outside the county seat of
Alturas as Hopkins responded to a family disturbance, Undersheriff William
"Tex" Dowdy has said.
Poindexter later apprehended Breiner, who was shot in a gunfight that also
caused minor wounds to the sheriff from glass pieces that hit him after Breiner
shot at the sheriff's car.
Breiner arrived from the Redding area, where he's still being treated for
gunshot wounds to his lower leg, Modoc County District Attorney Jordan Funk
said. Deputies loaded him from a stretcher to the wheelchair to take him
inside, where a judge forbade all of the about a dozen people who attended the
hearing from carrying cellphones.
Hopkins' parents, who live in Yreka, did not attend the hearing.
The block surrounding the Modoc County Superior Court was locked down ahead of
Breiner's transport from the jail to courthouse, a stretch of only a few
hundred feet.
Officers also stood guard on the roof of the courthouse.
Breiner could face the death penalty if convicted, although Funk noted a
pending statewide ballot initiative to repeal the death penalty could remove
that option.
"We'll know in a couple of weeks what the status of the death penalty is in the
state," Funk said.
Breiner will continue to be held without bail. Superior Court Judge David Mason
appointed Madera-based Richard Ciummo & Associates to represent him. Funk said
the same firm handles the hiring of county???s public defenders.
Law enforcement officers in Modoc County and elsewhere continue to mourn
Hopkins' death.
"Jack was great, I wish I had 10 more just like him," Poindexter said before
the arraignment.
Poindexter called Hopkins a team player who worked as a bailiff, patrol deputy
and in other roles. He volunteered whenever needed.
"We're a family and when you lose a family member and - I mean - need I say
more? We're pulling together, we're trying," Poindexter said.
At least 2 signs honoring Hopkins sat along Highway 395, 1 of only 2 major
thoroughfares in the rural town in far Northern California.
"I just think it's shock," said Elsie Burke, who has lived in the area for more
than 30 years and on-and-off before that, echoing what many others in the
community have said.
Hopkins was well known in the area.
"Every time you turn around another officer is being shot," Burke said of the
recent high-profile killings of police across the nation. "It touches you
really closely, if not personally."
Burke said the small-town sense that "everyone knows everyone" applies to
Alturas.
Hopkins' funeral is set for Nov. 5 in Yreka.
The Butte County Sheriff's Office, under the direction of Lassen County Sheriff
Dean Growden, is handling the criminal investigation into the case.
The California Highway Patrol is handling the administrative investigation into
the officer-involved shooting.
(source: USA Today)
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