March 28
TEXAS----impending execution
Texas death penalty juror hopes to change law as execution looms----As Paul
Storey's execution looms, 1 juror is asking the Texas Legislature to clarify
the jury instructions in death penalty cases, claiming he didn't know he alone
could have stopped the sentence.
When Sven Berger looked around at the other jurors in the deliberation room
during a 2008 capital murder trial, he knew that the majority wanted the death
penalty. He also knew he didn't.
But he voted for it anyway. It's a decision he still regrets, and one he says
he wouldn't have made if the law had been clearly explained in that Tarrant
County courtroom.
He'd sat in the courtroom and listened to how Paul Storey, the 22-year-old
defendant in an ill-fitting suit, and another man had robbed a miniature golf
park near Fort Worth and fatally shot the assistant manager, 28-year-old Jonas
Cherry. Berger knew Storey was guilty, he said in a recent Texas Tribune
interview, but in his gut, he didn't believe the man would be a future danger
to society, a requirement in issuing the death penalty in Texas.
What Berger didn't realize - in part because of the language in the jury
instructions - was that his vote alone could have blocked the jury from handing
down a death sentence and given Storey life in prison without the possibility
of parole.
Thinking that he'd have to convince most of his fellow jurors to spare Storey
from execution, he didn't fight as the jury deliberated, Berger said. When the
life-or-death questions went around the table, he answered like everyone else.
Now, with Storey's execution set for April 12, Berger and two state lawmakers
are hoping to change jury instructions in death penalty cases.
"The judge instructed us that any vote that would impose a life sentence would
require a consensus of 10 or more jurors," Berger wrote in a letter to the
Senate Criminal Justice Committee last week. "With the vast majority of the
other jurors in the room ... voicing their vote for death, I seriously doubted
I could persuade 1, let alone 9 other jurors, to vote to incarcerate Mr. Storey
for the remainder of his life, and I switched my vote."
To hand down a death sentence in Texas, the jury's decision must be unanimous.
If even 1 juror disagrees, the trial automatically results in a sentence of
life without parole. But the jury instructions don't say that, and, under state
law, no judge or lawyer can tell jurors that either.
Instead, deliberations in a trial's sentencing phase (after the jury has issued
a conviction) focus not on death versus life, but on 3 specific questions the
jury must answer: is the defendant likely to be a future danger to society? If
the defendant wasn't the actual killer, did he or she intend to kill someone or
anticipate death? And, if the answer is yes to the previous questions, is there
any mitigating evidence - like an intellectual disability - that the jury
thinks warrants the lesser sentence of life without parole?
To issue a death sentence, the jury must unanimously answer "yes" to the 1st 2
questions and "no" to the last question. But, the instructions state, to answer
"no" to the 1st 2 questions or "yes" to the last, 10 or more jurors must agree.
What those complicated instructions don't say is that a single juror can
deadlock the jury on any of the 3 questions, eliminating death as an option and
triggering an automatic life without parole sentence.
Berger didn't get the distinction.
"I'm appalled that Texas' capital jury instructions misled jurors about the
implications of their vote, and find it unconscionable that men and women like
me, with the power of life and death, are told that they must act only as a
single group, and that their individual voice doesn't matter," Berger wrote in
his letter.
He's not the only one upset. Democrats Sen. Eddie Lucio, Jr., of Brownsville,
and Rep. Abel Herrero, of Robstown, have filed bills in the Texas Legislature
to strike the language that says 10 or more jurors must agree to answer against
the death penalty, and also remove a sentence that bars judges or lawyers from
telling jurors what their votes mean. Senate Bill 1616 and House Bill 3054 have
both been referred to committee.
"I was shocked to learn that the instructions in place actually lie to jurors
who are tasked with quite literally making a life or death decision," Lucio
told the Tribune, saying religious advocates first informed him of the current
jury instructions.
The bills might not make much headway in a Republican-dominated legislature
that tends to avoid anything that could affect the death penalty. Though no
opposition has come forward yet (neither bill has even been granted a hearing),
prosecutors would likely fight it if it gained traction.
"In a death penalty case, the jury's job in sentencing is to answer the special
questions required by the law, not decide the ultimate sentence. This bill
informs them of the effect of their vote and basically encourages any hold-out
jurors to try to hang the jury on sentencing," said Shannon Edmonds, Director
of Governmental Relations for the Texas District and County Attorneys
Association.
District attorneys from the state's 5 biggest counties - Harris, Dallas,
Tarrant, Bexar and Travis - all either declined to comment or did not respond
to requests for comment on the bills.
The issue has been introduced at the Texas Capitol before. In 2011, state Rep.
Armando Walle filed a bill almost identical to the current ones. It never made
it out of the House Criminal Jurisprudence Committee after a lackluster
hearing, with only 1 person testifying for the bill.
Regardless, Herrero said the change is necessary and he is optimistic about the
current bills' chances.
"We're talking about life and death decisions being made by jurors, and it
shouldn't be determined by a guessing game," he said.
Advocates hope the increased awareness with cases like Storey's will give the
issue more of a boost this year. Amanda Marzullo, interim executive director
for Texas Defender Services, said she hopes to have Berger and another juror
who has changed her mind testify if either bill is granted a committee hearing.
"It wasn't really pushed [in 2011]," Marzullo said. "This is the 1st time the
legislature's really had a conversation about fairness to jurors in capital
sentencing."
Berger said he has been haunted by the death sentence he helped impose since an
appellate attorney came to him months later and showed him evidence of Storey's
mental impairments. According to 1 psychologist, Storey had an IQ of 81. This
cemented what he already thought but was unwilling to fight for at trial - that
Storey wasn't likely to be a future danger.
Berger wrote an affidavit in 2010 stating that had he known about Storey's
mental status, he would have fought against the death penalty at trial,
specifically on the future dangerousness question. Despite his statement,
Storey's sentence was upheld by the appeals court.
Berger said the experience has turned him from a supporter of capital
punishment to an opponent.
"I've certainly been educated about what goes into death penalty cases and the
results....it's just astonishing to me how often trials are wrong. So that by
itself would change my mind. I still believe there are bad people in the world,
but no, I'm against the death penalty," Berger said.
Now, Storey's court appeals have all been exhausted. Last week, the parents of
Storey's victim, Jonas Cherry, wrote a letter asking the state and local
authorities to commute his sentence, and his lawyer said he would file a
petition to the governor asking for clemency, according to the Fort Worth
Star-Telegram, but these are long shots.
More likely, Storey will be led to the execution chamber on April 12 and become
the 5th person executed by Texas this year.
"I feel terrible. I think about it a lot, actually ... especially with the
execution looming," Berger said. "It's something that you know is going to
happen, but it's so far away you can kind of push it to the back of your head
... And then all of a sudden, there's this date attached to Paul."
More on the death penalty in the Texas legislature:
At least 2 Texas Democrats and 1 Republican are pushing to reform the death
penalty under the law of parties, which holds those involved in a murder
equally responsible, even if they weren't directly involved in the actual
killing.
State Rep. Toni Rose, D-Dallas, has filed long-shot House Bill 3080, which
would prevent offenders proven to have had a severe mental illness at the time
of their crime from being sentenced to death in a capital murder case.
(source: The Texas Tribune)
DELAWARE:
Legislators will attempt to reinstate death penalty
Legislators from both parties say they will try to re-institute the death
penalty in Delaware this year, but might they face an uphill battle.
"Delaware has a long history of applying capital punishment cautiously,
judiciously, and infrequently," said State Sen. Dave Lawson. "These proposed
changes would raise the imposition of such a sentence to a new level, removing
what the court found objectionable and strengthening protections afforded
defendants."
The state Supreme Court last year ruled the capital punishment law was
unconstitutional because it allowed a judge, not a jury, to determine that
"aggravating circumstances" made a crime heinous enough to deserve a death
sentence. There are 22 of those aggravating factors, such as crime committed
against a police officer, crimes in which hostages are taken or if the crimes
that are "outrageously or wantonly vile, horrible or inhuman in that it
involved torture or depravity of mind."
The Court's 3-2 decision also faulted the law for allowing juries to find those
aggravating circumstances without a unanimous vote, using a standard of proof
that was too low.
On Monday, a bipartisan group of legislators unveiled the "Extreme Crimes
Prevention Act," which would change the law to address those concerns,
effectively reinstating the punishment. It would require that juries
unanimously decide that the aggravating circumstances merited a death sentence,
and requires proof of those circumstances "beyond a reasonable doubt."
It also would require the judge and jury to weigh "mitigating factors," which
would suggest the death penalty was unjust, against the "aggravating factors."
"Capital punishment is the most serious sentence we as a state can carry out,"
said Rep. Larry Mitchell, D-Elsmere. "This legislation sets a higher standard,
which reserves the punishment for only the most extreme cases."
Mitchell is a former State Police officer who chairs the House Judicial and
Public Safety and Security Committees.
In a news release, 6 legislators said they would co-sponsor the bill, including
3 Democrats and three Republicans. The release says the bill will be introduced
in the House of Representatives next week.
"It is impossible to quantify a crime not committed, but I believe the threat
of capital punishment has altered criminal behavior and saved lives," said
State Rep. Steve Smyk, R-Milton, also a former police officer. "The reforms our
bill will apply will restore an aspect of the Delaware Code that I believe
deters crimes and protects the public."
Brendan O'Neill, Delaware's chief public defender, immediately criticized the
proposal.
"History has proven us wrong every time we have passed a law authorizing state
sponsored execution of Delawareans," O'Neill said. "The current nationwide
trend in criminal justice is to move away from the death penalty. Delaware
should not once again put itself on the wrong side of history."
O'Neill argued capital punishment is not proven to be a deterrent, has a
history of racial disparities and has proven expensive to prosecute and defend.
Supporters of reinstating the death penalty could face an uphill battle in
Legislative Hall.
Before the Court's ruling last year, the Senate passed a bill to repeal the
death penalty, but it failed in the House.
Rep. Sean Lynn, D-Dover and one of the death penalty's most vocal opponents,
said he thinks the bill could make headway, but hopes it will be defeated.
"I think it passes the House based solely upon the vote count from the repeal
effort last year," Lynn said. "The mystery is, the question is, what happens in
the Senate."
While the House looks virtually the same as it did last year, there are 3 new
Senators. The repeal bill passed the Senate by an 11-9 vote.
One newcomer is Sen. Anthony Delcollo, R-Elsmere, a Republican who ousted
Democrat Patricia Blevins. Blevins voted to eliminate the death penalty, but
Delcollo says he would vote for bill to reinstate the punishment if he is
convinced the new rules would be constitutional.
"Intentional acts of murder should bear the possibility of the ultimate
punishment," Delcollo said.
It might not matter whether the votes are there in the General Assembly. Gov.
John Carney said during last year's campaign that he would let the Court's
decision stand. Carney's opponent, state Sen. Colin Bonini, R-Dover South,
favored reinstatement.
"I'm optimistic that, even if it gets through the house and the Senate that
Gov. Carney will veto it," Lynn said.
Death penalty supporters do not have the the votes to override a veto from
Carney.
(source: News-Journal)
FLORIDA----female faces death penalty
Trial begins for Deerfield woman accused of murder, hiring killer----Jacqueline
Luongo wanted her roommate's money and was willing to kill for it, prosecutors
told a Broward jury Monday
Luongo disguised herself as the roommate to cash her checks, and hired a hit
man to kill a key witness, said Assistant StateAttorney Shari Tate.
Now Luongo, 46, stands to lose her life if she's found guilty of murder -
prosecutors are seeking the death penalty. Luongo also faces charges of
tampering with a witness in a capital case and solicitation to commit murder.
The murder victim was Patricia Viveiros, 68, who was found dead in her
apartment on the 4200 block of Crystal Lake Drive in Deerfield Beach on Sept.
4, 2014. Her body had been stuffed in a garment bag that was placed in a
bedroom closet. Her head was covered with a plastic bag and tape was covering
her mouth and nose.
Tate told jurors that while Viveiros' body was lying in the closet, Luongo, who
had moved in only 2 months earlier, bought a wig to disguise herself as her
roommate so she could cash insurance checks.
Luongo confided in 1 person, her girlfriend Maria Calderon, but Calderon told
police what happened and Luongo was arrested, Tate said.
Figuring prosecutors had no case without Calderon, Tate said, Luongo enlisted
the aid of a fellow Broward jail inmate to find a hit man to kill her in 2015.
The inmate became an informant, and the hit man was an undercover Broward
Sheriff's detective.
Calderon, the inmate and the detective are all expected to testify against
Luongo this week.
Defense lawyer Gabe Ermine told jurors that Luongo was a desperate woman,
guilty of impersonating her friend to steal checks, but not guilty of murder or
solicitation. "What she did, she should not have done," Ermine said. "She's not
coming to you with clean hands in that situation. But she is not a murderer.
That, she did not do."
Ermine implied that Calderon was Viveiros' killer who pointed deputies to
Luongo to throw suspicion off herself. "Make no mistake about it," he said.
"Maria saved herself. She was never looked at as a suspect."
As for the solicitation charge, Ermine said killing Calderon was not Luongo's
idea. He indicated that recordings would demonstrate Luongo wanted someone to
beat up Calderon, but not to kill her.
Deputies are scheduled to testify Tuesday about the discovery Viveiros' body.
(source: sun-sentinel.com)
********************
Florida legislators propose cutting budget of prosecutor
Republicans who control the Florida House are proposing to cut the budget of an
Orlando prosecutor who is pledging to not seek the death penalty in cases
handled by her office.
House Republicans on Monday released spending recommendations that proposed
slashing $1.3 million and 21 jobs from the budget of State Attorney Aramis
Ayala.
Ayala has come under fire after she said she would not seek the death penalty
in the case of Markeith Loyd, who is charged with murdering an Orlando police
lieutenant and Loyd's pregnant ex-girlfriend.
Scott took the case away from Ayala and reassigned it to another prosecutor.
Ayala argues that the governor doesn't have the authority to remove her.
The House budget proposal would shift money away from Ayala and save it for
prosecutors who are reassigned death penalty cases.
(source: Associated Press)
***************
Ayala's decision spurs debate on death penalty
Florida's death penalty has been hit by controversy for decades, marred in the
past by botched executions and more recently by court rulings condemning the
way defendants were sentenced to death.
The latest controversy over Orange-Osceola State Attorney Aramis Ayala's
decision not to seek death sentences in capital cases -- and Gov. Rick Scott's
removal of her from a case involving an accused cop-killer --- has galvanized
longtime opponents of the death penalty.
"This could be the spark that sets it off for a real conversation nationwide,
not just in Florida," said retired Florida Supreme Court Justice James E.C.
Perry, an outspoken critic of the state's death penalty system. "Most
transformative acts did not take a majority of the people. Only a few people
started it, and it gained momentum. This could be one of those moments."
But Senate President Joe Negron said the controversy swirling around the death
penalty almost certainly will not diminish lawmakers' support.
"There's a strong consensus that the death penalty is an appropriate sanction
for certain horrific murders that are committed," Negron, R-Stuart, said. "I
think that when the state is seeking to potentially execute a citizen for his
crimes, there should be a very high level of scrutiny and due process. I also
think that our current system provides that."
More than a decade ago, the American Bar Association called for a moratorium on
Florida executions, based on a study that said the system was dogged by
problems involving racial disparities, fairness and a lack of oversight. More
recent studies have provided additional evidence to bolster criticism of the
death penalty in Florida, which leads the nation in death row exonerations.
Florida opponents of the death penalty, including many Democratic legislators,
have renewed calls for a moratorium, seeking further review of geographic and
racial inequities regarding who is charged with the death penalty and
eventually executed.
But with Scott and Republican legislative leaders strongly supporting capital
punishment, such a moratorium is unlikely.
"There's no doubt, if you look at national trends, that the Florida
Legislature's and governor's office insistence place them in a handful of
states that are actively trying to devise a system which is going to produce
death sentences," said University of Miami law professor Scott Sundby, who has
researched the behavior of juries in death penalty cases.
It's been more than a year since a U.S. Supreme Court ruling, in a case known
as Hurst v. Florida, put executions on hold and sent the death penalty into a
state of limbo.
The U.S. Supreme Court 8-1 ruling in the case in January 2016 found that
Florida's system of allowing judges to find the facts necessary to impose the
death penalty was an unconstitutional violation of the Sixth Amendment right to
trial by jury.Ayala, the 1st black state attorney elected in Florida, said she
reached her conclusion after deciding that "doing so is not in the best
interest of this community or the best interest of justice."
But Ayala's decision not to pursue the death penalty for Markeith Loyd --
accused of killing his pregnant ex-girlfriend, Sade Dixon, and the
execution-style killing of Orlando Police Lt. Debra Clayton --- sparked outrage
from Republican lawmakers, Scott and Attorney General Pam Bondi and resulted in
calls for the state attorney's ouster.
The governor reassigned the Loyd cas to Brad King, an Ocala-area state attorney
who is an outspoken proponent of the death penalty.
For many blacks, especially in Southern states like Florida, the death penalty
is rooted in a history of discrimination and remains a stark reminder of lynch
mobs. Adding to racial tensions, Florida has never executed a white defendant
whose victim was black, something critics are quick to highlight.
"Race has always been an issue in the death penalty, whether it's Florida or
anyplace," said Florida International University law professor Stephen Harper,
who runs the school's Death Penalty Clinic.
(source: Orlando Sentinel)
ARKANSAS:
Death penalty expert calls Arkansas' execution schedule 'unprecedented in
modern era'
One of the nation's top death penalty experts said Arkansas' 4 sets of
executions scheduled only 21 days from now are "unprecedented in the modern era
of the U.S. death penalty" since the nation restarted capital punishment in the
mid-1970s.
"No state has attempted to carry out so many executions in such a short period
of time," Robert Dunham, executive director of Washington, D.C.-based Death
Penalty Information Center, told Talk Business & Politics. "We are seeing a
state create an artificially constricted execution schedule in order to carry
out executions by a 'kill-by' date - the date that their drug expires."
Dunham made his comments Monday (March 27) after attorneys for 8 Arkansas
death-row inmates filed a federal motion to block the executions in the U.S.
District Court for the Eastern District of Arkansas in Jonesboro. The lawsuit
was filed against Gov. Asa Hutchinson and the state Department of Correction
Director Wendy Kelley.
Gov. Hutchinson has set 4 execution dates from April 17 to April 27 for 8
Arkansas inmates on death row whose appeals have been exhausted and whose cases
the U.S. Supreme Court declined to review in late February. Monday's motion
asks the federal court for a preliminary injunction to prevent the state from
executing the prisoners so that the court may consider the merits of the case.
Of the 31 death penalty states, Texas, Oklahoma and Virginia have sent more
prison inmates to death row since the U.S. reinstated capital punishment in
1976 when a series of Supreme Court decisions ended the de facto moratorium on
the death penalty.
According to data compiled by the DPIC, there have been 1,448 executions in the
U.S. since 1976, with Texas well ahead of all other states with 542 death
sentences. Oklahoma and Virginia are tied for 2nd with 112 death sentences
apiece, DPIC data shows.
8 EXECUTIONS IN 11 DAYS
Dunham said no state has ever executed eight prisoners in a period of 11 days.
And only Texas has ever executed 8 prisoners in a single month, twice in May
and June of 1997. "So that's unprecedented, and it's also unprecedented that
any (state) would attempt back-to-back executions in the same week, let alone 4
of them in the space of 11 days," he said.
The death penalty expert said the filing for an expedited preliminary
injunction could eventually reach the U.S. Supreme Court if the federal court
does not grant an expedited hearing before the first scheduled execution on
April 17.
"The federal court will either grant an expedited hearing or the prisoners will
appeal a lack of a hearing to the (U.S.) Circuit Court. If the Circuit doesn't
authorize a hearing, then they will ask the Supreme Court to authorize a
hearing," said the DPIC spokesman.
So far in 2017, there have been 6 men executed by lethal injection in the U.S.,
according to data compiled by the DPIC. Four of those executions were in Texas,
and 1 each in Virginia and Missouri. The 8 Arkansas prisoners are among the 35
death row inmates in the U.S. scheduled for execution through the end of this
year.
Since Gov. Hutchinson signed orders for the eight Arkansas executions in late
April, Dunham said DPIC has received a flurry of press inquiries asking whether
any state had carried out so many executions in such a short time span. Since
then, the Washington, D.C.-based nonprofit research group has added a link to
its website with updated information on the Arkansas executions.
DPIC's data also shows that states' decision to schedule 2 or more executions
on the same day is also unusual. That has happened just 10 times in the past 40
years, all between 1994 and 2000. The last time it occurred was when Texas
executed Brian Roberson and Oliver Cruz on August 9, 2000.
ARKANSAS HAS HISTORY OF MULTIPLE EXECUTIONS
Still, there is some precedent in Arkansas for carrying out multiple executions
over a short period of time. Arkansas is one of only 4 states that have carried
out multiple executions on the same day: Arkansas (4 times), Texas (3 times),
Illinois (twice), and South Carolina (once).
Arkansas is also the only state to have conducted triple executions, which it
has done twice - on Aug. 3, 1994 and Jan. 8, 1997. No state has carried out
more than 1 double execution in the same week. The shortest time span between
multiple executions in any state is 84 days: Arkansas executed Edward Pickens
and Jonas Whitmore on May 11, 1994 and co-defendants James Holmes, Darryl
Richley, and Hoyt Clines on Aug. 3 of that year.
In 2017, 23 executions in the U.S. have been stayed or rescheduled by governors
or state and federal court for various reasons, including legal challenges to
lethal injection drug protocol. Some death penalty opponents have said that
Arkansas' hurried execution schedule appears to be an attempt to use the
state's limited supply of 8 doses of midazolam, which are to expire at the end
of April 2017.
At the time the execution schedule was announced, Arkansas did not have a
supply of potassium chloride, the killing drug specified in its execution
protocol, but state officials have since obtained sufficient supplies of that
drug to carry out the scheduled executions.
According to DPIC, no state has successfully executed 2 prisoners on the same
day using midazolam. Oklahoma attempted to do so on April 29, 2014, but called
off the 2nd execution after the botched execution of Clayton Lockett earlier
that night.
The 8 Arkansas prisoners scheduled for execution - Bruce Ward, Don Davis,
Stacey Johnson, Ledell Lee, Jack Jones, Marcel Williams, Kenneth Williams and
Jason McGehee - make up 23% of Arkansas' death row. Each man is being executed
for committing acts of murder.
(source: KATV news)
*****************
8 Arkansas death row inmates sue to block executions over 10 days
8 Arkansas death row inmates who are scheduled to die over a 10-day period in
April filed a lawsuit in federal court on Monday to halt their executions,
saying the state's rush to the death chamber was reckless and unconstitutional.
Governor Asa Hutchinson has approved back-to-back executions for April 17, 20,
24 and 27 to make sure a difficult-to-acquire lethal injection chemicals do not
expire before the state can implement the punishments.
Arkansas' last execution was in 2005, and it has faced numerous legal
challenges since then about its protocols and drug procurement secrecy.
Most U.S. death penalty states abandoned multiple executions on the same day
about 2 decades ago because of factors including the additional strain put on
the families of victims, inmates and prison staff, who needed time to review
procedures and decompress.
"There is no justifiable rationale to hold multiple executions on the same day.
Nor is there a justifiable rationale to hold 8 executions within 10 days,"
according to the lawsuit, filed in Little Rock, Arkansas.
The lawsuit said the state is planning its 1st execution in dozen years with a
new prison systems head, new protocols and a new set of lethal injection drugs,
including midazolam, a sedative that has been dropped by states after it was a
part of a few troubled executions.
"Just 1 mistake at any point can have disastrous consequences," the lawsuit
said.
Hutchinson has said it would be irresponsible to tell the victims' families
that Arkansas had the lethal injection drugs and did not carry out the
executions.
Since the U.S. Supreme Court reinstated the death penalty in 1976, double and
triple executions on the same day have occurred 10 times, all between 1994 and
2000, according to the non-profit Death Penalty Information Center, which
monitors U.S. capital punishment.
No state has executed 8 prisoners in 10 days, and only 1, Texas, has executed 8
prisoners in a calendar month, it said.
"This is unprecedented and it is reckless," said Robert Dunham, the center's
executive director.
Oklahoma was the last state to schedule a double execution, in April 2014. Its
lethal injection protocol failed on the 1st execution, however, and the state
postponed the 2nd one.
(source: One America News Network)
*******************
Arkansas Parole Board rejects 2 bids for clemency----Members hear arguments
over 3rd condemned man
The Arkansas Parole Board on Monday released recommendations denying clemency
for 2 death-row inmates and heard arguments on whether a 3rd death-row inmate
should be executed.
Gov. Asa Hutchinson can confirm, overturn or choose not to act upon the Parole
Board's recommendations.
9 death-row inmates -- including the 8 scheduled to be executed in April --
filed a lawsuit Monday in federal court in the Eastern District of Arkansas
against the governor and the prison system leader in an attempt to stop the
executions.
In the decisions announced Monday, the board rejected arguments from attorneys
for Stacey Johnson and Ledell Lee that the trials that led to their convictions
had been flawed. Johnson and Lee have maintained their innocence in the more
than decades they have been on death row. Both are scheduled to be executed
April 20.
2 Johnson, convicted in 1996 of killing Carol Heath in 1993, said during a
clemency hearing Friday that Sevier County officials had conspired to frame
him, that budget issues affected his appeals and that people who seek to harm
him have infiltrated the Varner maximum-security facility where he lives.
Johnson's attorney, Jeff Rosenzweig, said Monday he was not surprised by the
board's decision, but he maintained Johnson's trial was flawed.
Johnson and his attorneys have disputed a judge's decision to allow Heath's
daughter, Ashley, to testify during his second trial and to prevent her
complete psychological records from being presented to the court. Johnson's
conviction in his 1st trial was overturned because of testimony from police
that Ashley Heath had identified Johnson as her mother's killer, despite being
ruled incompetent to testify at trial.
"The basic petition for clemency was that there were all sorts of problems with
this trial," Rosenzweig said.
5 of the 7 parole board members recommended denying Johnson clemency. The
official decision -- contained in a 1-page "executive clemency interview work
sheet" released Monday -- concludes that Johnson's death sentence is not
excessive, the nature and seriousness of Johnson's offense did not merit
clemency, and the injustices alleged also did not merit clemency.
Board member John Belken wrote that he believes Johnson is a threat to society
and an "ongoing threat to [Department of Correction] staff" based on his
disciplinary record. Dawne Benafield Vandiver and Abraham Carpenter Jr.
dissented. Both wrote that the request for clemency had merit and recommended
life without parole.
In the case of Lee, 6 Parole Board members voted to recommend denying clemency,
and a 7th -- Lona McCastlain -- recused from the case. Board members are not
required to disclose their reasons for recusing.
Belken wrote that he believed Lee "is a danger to society," noting his multiple
crimes. The official decision concluded that the nature and seriousness of the
crime, the injustice alleged, and the multiple victims were all factors that
did not merit clemency.
Lee's attorney, Lee Short, said Friday that not all arguments about judicial
decisions made in Lee's trial have been fully vetted on appeal. A
representative of Attorney General Leslie Rutledge's office disputed that
claim.
Short said Monday that the Parole Board's decision was another event in a long
process of unfair hearings and procedures.
"I'm disappointed but in no way surprised by the decision the board reached,"
he said.
The board is now deliberating the clemency request of Marcell Williams, who
presented his case before the board Monday.
Williams was convicted in 1997 of kidnapping, robbing, raping and killing Stacy
Errickson. Williams also was convicted of kidnapping and raping 2 other women
within 3 days of his attack on Errickson, a mother of 2 small children.
Williams kidnapped Errickson from a gas station, forced her to drive to ATMs
throughout Pulaski County, then took her to a storage shed, beat her, raped her
and strangled her to death, according to attorney testimony Monday. Williams
had chased other women at a different gas station earlier that morning but the
women had escaped.
Tammy Harrelson, who was a prosecutor on the case, said she remembers the look
on Errickson's face in security footage from the ATMs, when she didn't yet know
what would happen to her.
"The fear on her face is something that I still carry with me today," Harrelson
told the Parole Board at the victim impact hearing in Little Rock.
Williams apologized Monday for his crimes and discussed his troubled childhood,
according to Jason Kearney, a federal public defender representing Williams.
Williams requested clemency on the grounds that he accepts responsibility for
his crimes and that he was the victim of "severe childhood trauma," which only
one court considered in the various stages of sentencing appeal since 1997.
Williams' trial attorneys did not bring up his childhood -- which reportedly
included sexual abuse, beatings, poverty, neglect and being prostituted by his
single mother -- back in the 1990s, according to his application for clemency.
A federal judge had granted a new sentencing hearing based on his childhood
trauma and determined Williams should be sentenced to life in prison without
parole, but the decision was overturned in the 8th U.S. Circuit Court of
Appeals because Williams' post-conviction attorneys did not reference the
trauma in their Rule 37 appeal, according to the appeal.
Kearney said he wanted the Parole Board to consider his childhood trauma, if a
court cannot.
"We hope the board recognizes that and does something to correct it," he said.
2 women testified in support of Williams' clemency application at his hearing
Monday morning at the Varner prison: Suzanne Ritchie, his 9th-grade English
teacher at Ridge Road Junior High in North Little Rock, and Dina Windle, 1 of
his 3 rape victims.
Ritchie opposes the death penalty and said she testified Monday that Williams
was a normal boy who appeared neglected at home and didn't always have food to
eat.
Windle also opposes the death penalty and said she would have testified against
a death sentence for Williams 20 years ago. She now lives in New Jersey, where
she works as an investigator in a public defender's office. She said after her
testimony that she forgave Williams long ago.
"I hope that he finds peace with himself," she said.
Attorneys for the state argued that Williams' crimes were not done out of
passion but had been carefully planned because of the women Williams had chased
before kidnapping Errickson.
Carolyn Moore, Errickson's mother, and Trista Wussick, the babysitter of
Errickson's 2 children, spoke at the victim impact hearing.
Moore said she didn't think a lack of a father should be any excuse for the way
Williams turned out, because her daughter and her twin brother did not have a
present father and neither went to jail.
Wussick, who was 12 when Errickson was killed, read a tearful statement to the
board about how she remembers the day Errickson disappeared right after
dropping her children off at her home. Wussick said she still thinks of her.
"Marcel Williams is my boogeyman," she said. "He doesn't deserve any mercy ...
I ask that you deny this monster clemency."
Williams is scheduled to die April 24.
The 3 death-row inmates are among 8 people scheduled to die by lethal injection
within a 10-day period next month. They would be Arkansas' 1st executions in 12
years, after years of legal challenges to the state's death penalty and issues
with obtaining execution drugs.
(source: nwaonline.com)
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