February 9
NORTH CAROLINA:
Man accused of killing pregnant girlfriend in High Point could face death
penalty
A judge told William Hayes III, 20, that he could face the death penalty or
life in prison without patrol for the alleged killing of his girlfriend
Tontoria York.
Hayes made his 1st court appearance on Friday, just 1 day after police say he
killed York, who was 9-months pregnant.
The appearance lasted less than 5 minutes. A judge told Hayes that he will be
held without a bond.
Family members of both the victim and the suspect appeared in court, including
York’s 2-year-old daughter.
Hayes' next court date is scheduled for March 8.
(source: Fox News)
FLORIDA:
Miami man accused of double murder must be tried by a jury of 12, appeals court
rules----Prosecutors appealed a Miami judge's decision to seat a 6-person jury
in a 1st-degree murder case. Defense lawyers for Ivan Wong also want 12 jurors.
A man accused of murdering his wife and her brother must be judged by a jury of
12 people, not 6, a Miami appeals court ruled Thursday.
The decision by the Third District Court of Appeal overturned a ruling by
Miami-Dade Circuit Judge Mark Blumstein, who insisted that Ivan Wong be tried
by a jury of 6 people — even though both prosecutors and defense attorneys
wanted the larger group of jurors.
Wong is accused of murdering his wife, Mabel Figueroa, and her brother, Michel
Figueroa, in December 2013 after she decided to leave him.
He is charged with first-degree murder. Prosecutors last year waived the death
penalty but Wong still faces a mandatory life prison sentence if convicted.
Blumstein, however, claimed last week that the case was no longer considered
“capital” because execution was no longer a possible punishment. The jury
selection was halted as prosecutors decided to file an emergency appeal.
The State Attorney’s Office, mindful that a conviction could get overturned and
traumatized witnesses might have to testify again at a 2nd trial, agreed with
defense lawyers that Wong deserved a 12-person jury.
The Third DCA agreed, saying it still remained a “capital” case. “Although the
state has waived the death penalty, the defendant has not waived his right to a
12-person jury,” appeals Judge Eric Hendon wrote in the 3-page opinion.
Wong returns to court on Friday so that lawyers can choose a date to resume the
trial.
(source: Miami Herald)
******************
State wants death penalty for man accused of killing 5 women 'execution-style'
at bank----Zephen Xaver is accused of shooting and killing 5 women inside a
SunTrust bank in Sebring, Fla.
A 21-year-old man has been indicted by a grand jury on 5 counts of 1st-degree
murder after 5 women were shot to death inside a SunTrust bank last month.
The state of Florida has filed a notice of intent to seek the death penalty for
Zephen Xaver, who is accused of killing the women after opening fire inside the
bank on Jan. 23
Police don't yet have a motive for the killings, but they believe it to be a
random act.
Timeline: Deadly shooting at Sebring bank leaves 5 women dead
Police said Xaver called 911 to say he had fired shots inside the SunTrust bank
off U.S. Highway 27 near Tubbs Road. He told dispatchers he had "shot 5
people."
Less than 10 minutes later, a SWAT team arrived, but Sebring Police Chief Karl
Hoglund said crisis negotiators realized Xaver wasn't allowing any law
enforcement into the building.
Around 1:54 p.m., the SWAT team was able to get inside the bank. An arrest
report said the team found Xaver in one of the bank's rear offices with a 9 mm
handgun and a bulletproof vest.
On Jan. 24, Xaver appeared in court for the 1st time. A Highlands County judge
granted no bond, so Xaver remains in jail.
(source: WTSP news)
ALABAMA:
The liberals on the Supreme Court are right, conservatives wrong on Muslim
execution case
The Supreme Court got it horribly wrong this week when it vacated a stay of
execution for a Muslim inmate whose request that his imam be at his side in the
death chamber was blocked by Alabama state officials.
Adding insult to injury, the 5 Supreme Court justices who failed to advocate
for Domineque Ray’s reasonable religious accommodation offered no detailed
explanation for their decision.
Justices Neil Gorsuch, Clarence Thomas, John Roberts, Samuel Alito, and Brett
Kavanaugh didn’t even sign their names to the application vacating the stay of
execution entered by the 11th U.S. Circuit Court of Appeals at Atlanta, which
found that denying Imam Yusef Maisonet access to the execution chamber while
allowing the same for a Christian pastor raised legitimate questions about
religious discrimination.
For an explanation of the Supreme Court’s decision this week, we have to look
to Justice Elena Kagan’s dissenting opinion, where she mentions that a majority
of her colleagues agreed that Ray waited too long to bring his request before
the Alabama Department of Corrections. Kagan is joined in her dissent by
Justices Ruth Bader Ginsburg and Sonia Sotomayor.
Ray, 42, was found guilty in 1999 of the brutal rape and murder of a
15-year-old girl, whose decomposing remains were discovered in a cotton field
near Selma, Ala. Ray was also involved in the murder of two brothers,
13-year-old Reinhard Mabins and 18-year-old Ernest Mabins. In 2006, as he
awaited death, Ray reportedly converted to Islam. Ten days before his scheduled
execution this month, he requested that his imam be present in the chamber with
him. State officials declined Ray’s request, arguing that it was both submitted
too late and that it was also an obvious delay tactic. Officials offered Ray a
Christian pastor for his execution. He declined the offer.
Prison officials said it was fine for Ray to meet with his imam before his
execution. They also said that the imam could stand in the viewing room looking
into the execution chamber. But they absolutely would not allow the imam to be
in the execution chamber.
The Supreme Court’s you-snooze-you-lose reasoning for allowing Ray’s execution
to go forward sans religious accommodations is identical to what was argued in
an emergency application filed by Alabama Attorney General Steve Marshall
following the 11th Circuit’s ruling.
Marshall claimed Ray’s request for an imam was obviously timed to stall the
proceedings. The state attorney general argued that allowing the imam into the
chamber posed a security risk to the “execution team.” Marshall also explained
that the prison allows a Christian pastor to enter the death chamber, and only
a Christian pastor, because he is a member of the staff who has been trained in
execution protocol.
Lastly, Marshall argued that the requested stay “would substantially harm the
public and the State’s interest in the timely enforcement of criminal
judgments.”
First, Ray had been on death row since 1999. Timely enforcement indeed. Surely,
Alabama could have spared a few more weeks, months even, to allow for more time
to sort out the imam issue. After all, it’s not like Ray was going anywhere.
Also, there’s the important point that the 11th Circuit placed the prisoner’s
appeal on a “fast track,” as the New York Times put it, “with briefing to have
been completed in a little more than a month.” It’s not as if the stay of
execution was primed to languish in a multiyear limbo.
Secondly, as noted in the Supreme Court’s dissent, Ray’s request for an imam
was indeed late, but there’s a reasonable explanation for that: He was denied a
copy of the prison's own practices and procedures, which clearly defines who is
and isn't allowed in the chamber. Ray was notified when his execution date was
set in Nov. 6, 2018, but "the relevant statute would not have placed Ray on
notice that the prison would deny his request. To the contrary, that statute
provides that both the chaplain of the prison and the inmate’s spiritual
adviser of choice 'may be present at an execution,'" Kagan and the 11th Circuit
found.
The statute "makes no distinction between persons who may be present within the
execution chamber and those who may enter only the viewing room," Kagan added,
noting the prison "refused" to give Ray a copy of its procedures. "So there is
no reason Ray should have known, prior to January 23 [when Ray's request was
denied by the warden], that his imam would be granted less access than the
Christian chaplain to the execution chamber."
Ray’s request was denied on Jan. 23. He followed up five days later, asking in
more forceful terms for the presence of his imam. That doesn’t sound like the
behavior of someone who was intentionally dragging his feet.
Lastly, the idea that Imam Yusef Maisonet posed a security risk is absurd. He
has spent years volunteering at that facility. He goes to the Death Row at
Holman Correctional Facility about once a month to lead the Muslim inmates in
prayer. For the prisoners and the prison staff, he is a known and trusted
entity.
Perhaps Ray was trying to game the system. Perhaps he was legitimately confused
and assumed wrongly that his spiritual adviser would be allowed in the
execution chamber. In cases like this, the most prudent option is to err on the
side of liberty. Even if Ray’s request was a delay tactic, the biggest downside
to granting it would have been the mere delaying of the inevitable. But if Ray
was sincere in his ask, well, the state of Alabama and the Supreme Court just
denied him a basic, protected right. That’s a much greater danger to the public
than any inmate’s temporary gaming of the system could ever hope to accomplish.
Kagan got it right when she said, “Ray has put forward a powerful claim that
his religious rights will be violated at the moment the State puts him to
death. The Eleventh Circuit wanted to hear that claim in full. Instead, this
Court short-circuits that ordinary process—and itself rejects the claim with
little briefing and no argument – just so the State can meet its preferred
execution date. I respectfully dissent.”
Ray, who was pronounced dead at a little past 10:00 p.m. EST Thursday evening
from lethal injection, was, by all accounts, a monster. He was in prison for
three brutal murders.
But even monsters deserve equal treatment under the law.
(source: Opinion, Becket Adams, Washington Examiner)
NORTH DAKOTA:
Capital Punishment
When the Dakota Territories first made laws in 1865, they based them on the New
York penal code, which dictated that murder was always punishable by hanging.
In 1883, the option of life in prison was added. Subsequently, imposition the
death penalty began to fall off as North Dakota juries were reluctant to make
such final decisions.
Many immigrants from totalitarian regimes distrusted capital punishment. In
1915 citizens petitioned against execution, and later that year the state
struck it down except for treason or when murder was committed by an inmate
already sentenced to life. That latter provision was removed in 1973.
The first attempt to reinstate a death penalty came in 1926. People had begun
to wonder if capital punishment actually had been a deterrent for hard
criminals. From the beginning of 1926 to the end of 1927, the Bismarck Tribune
published 37 articles favoring capital punishment. Attorney General George
Schafer did believe it served as a deterrent, and he thought life sentences
were too soft. Soon the legislative committee of the North Dakota Association
of State Attorneys voiced support for the death penalty. In early January there
was a bill in the legislature.
Many of the arguments in the senate reflected modern debates over capital
punishment – deterrent vs. legalized murder. However, one discussion, left out
of most modern debates, is whether it should apply to women as well as men.
Some legislators felt the laws tended to be too lenient towards women, which
encouraged them to kill their spouses in domestic disputes. However, one
legislator felt the death penalty should apply only to men even if this was the
case, because in his words, “[I]f a woman kills a man, the chances are he
should have been killed long ago anyway.”
Ultimately, the death penalty was not reinstated. After the senate voted it
down 30 to 19, the house followed suit about this time in February of 1927.
Since then, there have been two more attempts to reinstate capital punishment,
but there seems to be little chance of it returning.
(source: Public Prairie News)
MONTANA:
Guest view: Montana's death penalty should be abolished
Montana has no functioning death penalty. Since 2009, the lethal injection
portion of the death penalty has been stopped because the drugs required by
statute are not available. Even if these drugs somehow became available, a
highly unlikely prospect, Montana’s capital punishment regime contains numerous
additional elements that are at odds with U.S. Supreme Court decisions. In
short, Montana’s death penalty system is broken beyond repair.
Capital punishment is off the table as an actual punishment, but because the
legislature has not formally abolished it, the legal structure governing the
crimes identified as capital offenses and the processes to deal with those
crimes remain. That is a problem.
Once a county attorney decides to charge a person with a capital offense,
safeguards and standards for capital offenses are triggered. These additional
safeguards, designed to reduce the likelihood of the state executing an
innocent person, make a capital case much more expensive than a case where the
maximum penalty is life without parole. Over the past decade, there have been
at least four individuals charged with a capital offense. The prosecution of
these offenses has cost the taxpayers at least $5 million, although none of the
defendants were convicted of a capital offense.
There is one solution — abolish the death penalty and replace it with a
punishment of permanent imprisonment. This move would save tax dollars without
undermining public safety.
Abolition of the death penalty will not adversely affect the prosecution of
criminal defendants. Indeed, it will not change the landscape of the criminal
law at all since for at least the past decade, the criminal justice system has
functioned without an effective death penalty. Abolition would remove the
ability of county prosecutors to threaten an accused of seeking the death
penalty, and that would be a good thing. Such conduct has been challenged as
being ethically questionable and given the reality of not having a functioning
death penalty, any such threat advanced now would be minimized by any
knowledgeable criminal defense counsel.
There is no question that the death penalty does not act as a deterrent. The
death penalty does not deter homicide. Between 2010 and 2016 the murder rate
was 23 percent lower in non-death penalty states compared to death penalty
states.
Montana has paid the price of having capital offenses on the books without any
ability to carry out a death sentence. When county attorneys charge individuals
capitally and then have to back down, they have spent substantial public funds
to provide the defense required because a capital offense was charged.
Life in prison without possibility of parole is the option the majority of
citizens support in lieu of the death penalty. It is time that Montana should
join close to half of the states in the union and abolish the death penalty.
Our capital punishment system is broken. Montana has no functioning death
penalty. The Legislature should act and remove from the books a broken set of
laws currently incapable of being enforced.
(source: Ron Waterman, Montana Standard)
USA:
Jurors’ Use of N-Word Confronts Supreme Court Divided on Race
“They should just take the nigger out and shoot him behind the jail.”
“I have wondered if black people even have souls.”
Death-row inmates point to evidence that jurors from their long-ago trials said
those things about the men they were tasked with judging impartially.
If the U.S. Supreme Court takes up their appeals, then the justices will be
asked to decide if the clear racism so tainted these proceedings in Oklahoma
and Georgia that the men should be spared the ultimate punishment.
Dale Baich, attorney for Julius Jones, whose trial would’ve ended with a bullet
in the back of an Oklahoma jail if a juror had his alleged druthers, said the
issue at hand is the “impact of race on the criminal justice system and the
death penalty in particular.”
The cases pose a particularly crucial test for Chief Justice John G. Roberts
Jr., who has voted both ways in criminal cases tainted by racism and may hold
the deciding vote. The Georgia case already caught the court’s eye last year,
producing a contentious split among the justices and promising another heated
round if the same dividing lines hold.
The appeal from Georgia inmate Keith Tharpe, whose possession of a soul was
doubted by a man who sent him to death row, “raises the question of whether we,
as a society, are willing to tolerate the blatant, in-your-face racism that
reared its head in Mr. Tharpe’s case and tainted his death sentence,” said his
attorney, Marcy Widder.
The Georgia Attorney General’s office declined comment on Tharpe’s case, citing
the ongoing litigation. The Oklahoma Attorney General’s office said it plans to
file a response to Jones’ petition by the beginning of March, and will let that
filing “speak for itself.”
The petitions are the latest salvos in the long-running legal sagas of both
murder convicts.
Tharpe was sentenced to death for the 1990 murder of his sister-in-law. He shot
her, rolled her into a ditch, reloaded, and shot her again, a state court
opinion recounted.
Years later, one of his jurors swore in an affidavit that “there are 2 types of
black people: 1. Black folks and 2. Niggers"; that Tharpe, “who wasn’t in the
‘good’ black folks category in my book, should get the electric chair for what
he did"; and that some of the jurors voted for death because they felt Tharpe
“should be an example to other blacks who kill blacks.”
The juror also said that, after studying the Bible, he “wondered if black
people even have souls.”
Jones was sent to death row for a 1999 shooting death for which he has
maintained his innocence. His case was featured, recently, in the ABC series
The Last Defense, which noted the racist juror issue as well as racial tensions
generally in Edmond, Okla., where the crime occurred.
In 2017, one of the jurors told Jones’ legal team in a Facebook message that
another juror had described the trial as a “waste of time” and expressed his
belief that “they should just take the nigger out and shoot him behind the
jail.”
Despite these stark allegations, state and federal courts have blocked both men
from pressing the juror claims, citing procedural hurdles as well as the
longstanding prohibition against probing the prized secrecy of jury
deliberations.
But the high court recently put a dent in that longstanding jury rule when it
comes to race, one that both Tharpe and Jones hope they can use to their
advantage.
Race Rulings, Startling Development
In 2017’s Pena-Rodriguez v. Colorado, the high court said that, if a juror
makes a clear statement showing they relied on racial stereotypes or animus to
convict a defendant, then courts can consider the juror’s statement as evidence
of a Sixth Amendment violation. The amendment protects the right to impartial
jury.
It was a 5-3 decision authored by Justice Anthony M. Kennedy, joined by
Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor, and Elena
Kagan.
Miguel Angel Pena-Rodriguez was convicted of unlawful sexual contact and
harassment. After the jury was dismissed, two jurors told Pena-Rodriguez’s
lawyer that another juror said he thought the defendant was guilty “because
he’s Mexican and Mexican men take whatever they want.”
Kennedy’s opinion crafted a racial exception to the longstanding rule that
prevents courts from examining jury deliberations.
Justice Samuel A. Alito Jr. dissented, joined by Roberts and Justice Clarence
Thomas. Though the majority’s intentions are “admirable,” Alito wrote, the
decision nonetheless marks “a startling development” in allowing courts to
effectively peer into the jury room.
But just weeks prior to the Pena-Rodriguez decision, Roberts aligned with the
five justices from the Pena-Rodriguez majority in a case raising similar
issues. In fact, he wrote the majority opinion in the case, Buck v. Davis,
where an expert witness told the jury considering the fate of the defendant,
Duane Buck, that he’s more dangerous because he’s black.
“Buck may have been sentenced to death in part because of his race,” Roberts
wrote, finding this “a disturbing departure from a basic premise of our
criminal justice system: Our law punishes people for what they do, not who they
are.” Thomas and Alito dissented again.
Both the Buck and Pena-Rodriguez cases were decided by an 8-member court after
Justice Antonin Scalia’s death, shortly before Justice Neil M. Gorsuch filled
Scalia’s seat. Since his arrival, Gorsuch has sided with Alito and Thomas
against death row inmates’ attempts to avoid execution.
Remarkable Affidavit, Handwringing
That trio dissented last year from a brief, unsigned opinion in which the
justices vacated a federal appeals court decision that went against Tharpe.
The “remarkable affidavit,” the majority said, “presents a strong factual basis
for the argument that Tharpe’s race affected” the juror’s vote for a death
verdict. “At the very least, jurists of reason could debate whether Tharpe has
shown by clear and convincing evidence that the state court’s factual
determination was wrong. The Eleventh Circuit erred when it concluded
otherwise,” it said, sending the case back for further review on the question
whether Tharpe is still procedurally blocked from pressing the juror claim.
Thomas, the court’s only black justice, wrote the dissent. He accused his
colleagues of engaging in a “pointless exercise” that accomplishes “little more
than a do-over in the Court of Appeals.” He said “the only possible
explanation” for the majority’s ruling was its concern with “a juror affidavit
that expresses racist opinions about blacks.”
Though the juror’s opinions “are certainly odious,” Thomas conceded, “their
odiousness does not excuse us from doing our job correctly, or allow us to
pretend that the lower courts have not done theirs.” He accused his colleagues
of “bending the rules here to show its concern for a black capital inmate.”
The court’s decision “will only delay justice for Jaquelin Freeman, who was
also black, who is ignored by the majority, and who was murdered by Tharpe 27
years ago,” Thomas wrote in the dissent joined by Alito and Gorsuch, referring
to Tharpe’s victim.
As presaged by Thomas, the Eleventh Circuit ruled against Tharpe again after
the justices sent the case back there, setting the stage for his latest high
court appeal.
Stage Set: How to Apply Race Rulings?
In their latest Supreme Court filings, Tharpe and the state disagree about
whether Pena-Rodriguez should apply retroactively to his case and whether
procedural hurdles should block him from pressing his claim, with Tharpe
alleging that the lower court keeps moving the goalposts.
The state says courts were correct in blocking Tharpe’s juror claim, reasoning
he should have raised it earlier in the appeals process and can’t justify his
failure to do so. Like Thomas’ dissent last year, the state further points out
that there’s no evidence that racial bias was discussed during deliberations,
seeking to distinguish Tharpe’s case from Pena-Rodriguez. In the end, the state
says Tharpe’s appeal simply doesn’t present an important enough legal question
to warrant the justices’ attention, and that it seeks “mere error correction,”
something that the Supreme Court, in theory at least, is not in the business of
doing.
While the state points to procedure, Tharpe and the NAACP Legal Defense &
Educational Fund, Inc., which is supporting him at the high court, pin their
hopes on the larger themes of the high court’s recent race rulings. They argue
that Pena-Rodriguez should apply even more forcefully here, because this is a
death penalty case and Pena-Rodriguez wasn’t.
The NAACP LDF brief argues that Tharpe’s claim is even stronger than Buck’s,
because there the court was concerned with the mere possibility that the jury
sentenced Buck to death because he was black. Based on the juror affidavit in
Tharpe’s case, there is no “may” about it, the NAACP LDF argues.
Samuel Spital, lead counsel on the NAACP LDF brief who also represented Buck,
sees a connection between Buck and the Tharpe and Jones cases. “We know that
these two men are facing execution at least in part because they’re black,” he
said. “Under those circumstances, the state just doesn’t have an interest in
enforcing a death sentence, and for that reason, the procedural obstacles that
you would have with respect to certain other claims should not be part of the
analysis.”
And if Tharpe’s case is more serious than Pena-Rodriguez and Buck, Jones argues
that his case is more serious than Tharpe’s.
Like Tharpe, Jones also argues that lower courts have essentially manufactured
reasons to keep him from airing his juror claim.
But he also says that his case “reveals far more than simply another juror’s
racist and dehumanizing view of Mr. Jones as a ‘nigger.’” He notes that the
juror in his case allegedly referred to the proceedings as a “waste of time,”
and, further, that the juror’s alleged wish that they “take the nigger out and
shoot him behind the jail” reveals an endorsement of “lynch-mob racism
reminiscent of Reconstruction days,” quoting a 1988 dissent by Justice Thurgood
Marshall.
In that case, Marshall, the court’s 1st black justice, dissented from his
colleagues’ refusal to take up a death penalty case in which a juror handed the
bailiff a napkin with a drawing of a man on a gallows above the inscription,
“Hang the Niggers.”
Marshall retired a few years later. Thomas took his place.
(source: Bloomberg News)
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