March 24
INDIANA:
Appeal sought on death penalty----Dansby seeks high court ruling
A man facing the death penalty for the alleged murders of 4 people – 1, his
unborn child – wants the Indiana Supreme Court to decide whether an Allen
County judge erred when she rejected a request to exclude the death penalty as
punishment for the killings.
Lawyers for Marcus Dansby, 23, had asked Allen Superior Court Judge Fran Gull
to declare the state's capital punishment unconstitutional and throw out the
death penalty because of his age – 20 – at the time of the slayings. Gull
denied both requests last month.
Defense attorneys Michelle Kraus and Robert Gevers raised the issues again this
week, asking Gull in a 4-page petition to sign off on allowing Indiana's
highest court to weigh in.
Proceedings in the case would stop until justices made a decision, if the local
judge agrees to the move. A trial is scheduled Oct. 1 and is expected to last a
month. Gull has not ruled on the latest request, court records show.
“The issue of the propriety of the death sentence is better addressed prior to
a jury trial and judgment rather than as a direct appeal after a conviction and
possible death sentence,” the motion states.
Dansby is charged with four counts of murder in the Sept. 11, 2016, killings of
Traeven Harris, 18, Consuela Arrington, 37, Dajahiona Arrington, 18, and the
fetus she was carrying. Trinity Hairston was shot and stabbed but survived, and
Dansby is charged with attempted murder in that attack.
Prosecutors sought the death penalty in January 2017.
Kraus and Gevers wrote in a nearly 100-page filing last year that the state's
death penalty law violates several portions of the U.S. and state constitutions
and should be thrown out. Capital punishment is “disproportionate and
vindictive” and “has no deterrent effect,” according to their motion.
That was followed by another motion arguing that executing someone who was
under 21 when crimes were committed violates constitutional prohibitions on
cruel and unusual punishment.
The argument is based on a landmark U.S. Supreme Court ruling in 2005 that
found it is unconstitutional to execute defendants who were younger than 18 at
the time their crimes were committed.
Dansby's lawyers want the age raised to 21 and cite shifting opinions on the
age at which offenders can be put to death; recent court decisions invalidating
death sentences for young defendants; and research on the maturity of young
people's brains.
A Temple University psychologist testified in court here in December that human
brains continue to mature until at least age 22, meaning younger people have
trouble controlling their actions and considering the consequences of those
actions.
Gull referred to the claims as “interesting” in court documents but said she
was unconvinced. Prosecutors have opposed Dansby's requests.
It is the 2nd time defense attorneys have asked for an interlocutory appeal –
essentially a pause in the case to seek a ruling from an appellate court.
They sought to ask the Indiana Supreme Court last year whether the trial court
“abused its discretion” when it removed defense attorney Nikos Nakos from the
case last year amid questions about his qualifications to work on a capital
punishment case. The request was dismissed in April.
(source: The Fort Wayne Journal Gazette)
KANSAS:
Kansas Death Penalty Case Has Implications for Mentally Ill
The day after Thanksgiving in 2009, James Kahler went to the home of his
estranged wife’s grandmother, where he shot the two women, along with his 2
teenage daughters.
No one — not even Kahler’s attorneys — disputes that he killed the four
relatives. Instead, his lawyers argue that he was suffering from depression so
severe that he experienced extreme emotional disturbance, dissociating him from
reality.
What had been an open-and-shut death penalty case — Kahler was convicted and
sentenced in 2011 — was upended when the U.S. Supreme Court said this past week
that it would consider whether Kansas unconstitutionally abolished his right to
use insanity as a defense. A ruling from the nation’s highest court could have
far-reaching implications for mentally ill defendants across the nation.
Kansas is 1 of 5 states where a traditional insanity defense in which a person
must understand the difference between right and wrong before being found
guilty of a crime isn’t allowed. Instead, someone can cite “mental disease or
defect” as a partial defense but must prove that he didn’t intend to commit the
crime. The other states with similar laws are Alaska, Idaho, Montana and Utah.
“A favorable decision in this case would make it clear that the Constitution
requires that a defendant be able to understand the difference between right
and wrong before being found guilty, and, in cases like Mr. Kahler’s, put to
death,” his defense attorney, Meryle Carver-Allmond, said in an email.
Kahler’s lawyers argued in their petition to the Supreme Court that although
Kahler knew that he was shooting human beings, his mental state was so
disturbed at the time that he was unable to control his actions.
“We’re hopeful that, in taking Mr. Kahler’s case, the United States Supreme
Court has indicated a desire to find that the Constitution requires better of
us in our treatment of mentally ill defendants,” Carver-Allmond said.
The state argues that it hasn’t abolished the insanity defense, just modified
it.
“We think the state’s approach, providing for an insanity defense based on
mental disease or defect, satisfies constitutional requirements,” Kansas
Attorney General Derek Schmidt said in an emailed statement. “We look forward
to defending the statute and arguing our case before the Justices in the fall.”
Kahler was in the middle of a contentious divorce when he went to Dorothy
Wight’s home in Burlingame, where his wife, Karen, and three children were
spending the Thanksgiving holiday amid contentious divorce proceedings. He
found Karen in the kitchen and shot her twice, then shot Wright and his
daughter Emily in the living room. He found his daughter Lauren in an upstairs
bedroom. His son, Sean, fled to a neighboring house.
Sherrie Baughn, executive director of the Kansas chapter of the National
Alliance for Mental Illness, said her organization opposes execution of
individuals who have a serious mental illness or mental disability when
committing a crime.
“I am happy that they are looking at it and reviewing this,” Baughn said of the
Supreme Court decision to take up the Kansas case. “Despite constitutional
protections, the death penalty is still somewhat applied to people with mental
illness or mental disabilities.”
It is unclear how often an insanity defense would be used in Kansas, because
the state hasn’t really had one for so many years now, Carver-Allmond said.
Without the option, seriously mentally ill defendants are often left to go to
trial with little-to-no defense or forced to plead guilty on bad terms.
(source: Associated Press)
NEBRASKA:
Secrecy on execution drugs not paying off
While we as a state may have our disagreement about the overall topic of
capital punishment, it is the law. There are state laws pertaining to its
administration, and Nebraskans expect their elected officials to follow the
law.
At some point, though, defending unwarranted secrecy around the death penalty
will end – and Nebraskans will no doubt learn the truth.
A federal judge ordered Nebraska must provide documents detailing how it
obtained the fentanyl used last August as part of Carey Dean Moore’s execution.
This decision came as a victory for Arkansas’ death-row inmates, who were
seeking to determine whether fentanyl could be used within their state’s death
penalty protocol to prevent them from suffering “cruel and unusual punishment.”
Last week’s ruling, coincidentally, came during Sunshine Week – an annual
celebration of transparent government and open records, both of which help hold
elected officials accountable.
Nebraska has been neither transparent nor open about Moore’s execution.
Remember that a judge ruled last June that the Journal Star and other entities
were correct in their presumption that most records related to the death
penalty protocol were public. Again, these documents were determined by a judge
to belong to the people of Nebraska – even though the government of Nebraska
has instead appealed to the Nebraska Supreme Court.
In the interim, the state executed the convicted double murderer. Also in the
interim, a Lancaster County judge has ordered the state to pay nearly $60,000
in attorneys fees and court costs because the plaintiffs were ruled to have
substantially prevailed in the case.
That’s a lot of money the state paid fighting its losing battle.
Coincidentally, that figure falls very close to the nearly $55,000 Nebraska
spent in 2015 to obtain sodium thiopental and pancuronium bromide from a vendor
in India.
One problem: The state never got its execution drugs delivered – or money back
– in this high-profile embarrassment.
Four years later, this episode mustn’t be forgotten. Above all else, it
underscores the importance of open government. The more information that’s made
publicly available by a government, the better the people it serves can ensure
it does so effectively and efficiently.
Rather than merely being taken at its word, government must constantly prove
that it is earning trust. If it’s being a good steward of tax dollars, it must
demonstrate that – and no better way exists to achieve that end than through
transparency.
It would be preferable if Nebraska did so voluntarily. However, the state’s
resistance is instead requiring expensive litigation to force it to uphold
these responsibilities. The recent ruling in the Arkansas case only reiterates
the folly of this approach.
The truth will eventually emerge regarding the sourcing of Nebraska’s execution
drugs and records. Until then, continued opposition will only delay the
inevitable – and ring up additional costs.
(source: Editorial Board, Lincoln Journal Star)
UTAH:
Utah's high court orders fresh review of evidence for man on death row
The Utah Supreme Court has ordered a new hearing for a man on death row,
pointing to "damning revelations" from star witnesses in his case who later
said police had threatened them, given them gifts and told them to lie about
the financial help.
If those details had come to light before Douglas Carter was sentenced to die,
"a significant possibility exists that the outcome would have been different,"
according to the court's written opinion released late Friday.
Douglas Stewart Carter, 63, was convicted in 1985 of murdering 57-year-old Eva
Olesen, who was stabbed and shot during a home-invasion robbery.
Jurors in the case relied on Carter's confession and his bragging to friends
Epifanio and Lucia Tovar that he killed a woman. He appealed the sentence in
1992, and another jury upheld the death penalty.
Carter, originally from Chicago, appealed again based on sworn statements from
the Tovars, whom prosecutors tracked down in 2011.
The Tovars revealed officers had threatened them with deportation, prison time
and possibly taking away their infant son. After relocating them twice to
protect them from Carter, Provo officers paid the couple's rent of about $400,
plus utility and phone bills, and instructed them to lie under oath about the
benefits during the trial, court documents say. According to the Tovars,
officers also brought them groceries, a Christmas tree and toys for their son.
On the stand, the couple's testimony was at times inconsistent and is "tainted
as a whole" by the new evidence, the opinion states.
Yet it was "crucial" to the state's case, Justice Deno Himonas wrote in the
decision, noting that fingerprints and blood were found at the scene but no
physical evidence tied Carter to the crime.
Prosecutors also relied on the testimony to explain why they sought the death
penalty, arguing Carter told Epifanio Tovar the night of the killing that he
intended to "rape, break and drive." They pointed to Lucia Tovar's statement
that Carter also laughed when he returned, arguing he was "a man who delighted
in killing," the opinion says. But the couple's recollections of those moments
varied throughout the case.
"Carter has a colorable claim that the Tovars’ testimony evolved over time to
become more damaging to Carter in an attempt to please the people who had
provided them with rent money and threatened them with deportation and
separation if they did not cooperate," the decision says.
The state, however, has contended inconsistencies could stem from fear of
retaliation from Carter and that his defense attorneys have never challenged
his own confession to police. They have said the testimony from Carter's
friends mirrored his own admission to police about killing Olesen, the aunt of
a former Provo police chief.
A lower court in 2017 said the new details would likely not have led to a more
favorable outcome. The decision countered that there was actually a "signifcant
possibility" of a different outcome, though not for certain.
The justices ordered a 4th District Court to conduct a fresh review of the new
evidence. A hearing date has not yet been set.
(source: Deseret News)
CALIFORNIA:
Newsom’s death penalty reprieves ignores will of voters
Gov. Gavin Newsom’s move to order reprieves for 737 death row prisoners may
have gained him more national exposure, but it also brought up a troubling
question: Whether the new governor can be trusted to faithfully carry out the
will of the voters who put him in office.
So far, the answer is, no.
Make no mistake, the death penalty in California, and elsewhere, should be
abolished — but not this way, not after voters in perhaps the most politically
liberal state in the union have twice in this decade rejected ballot measures
that would have ended capital punishment. The most recent vote in 2016 resulted
in 53 percent of voters rejecting the ballot proposition to end executions.
And Newsom, who has long expressed his opposition to the death penalty, was
quoted in public forums before he was elected governor that he would not let
his personal opinions sway what Californians had already decided in terms of
public policy.
So much for that pledge.
Newsom justified his announcement by saying, “The will of the voters is also
entrusted in me on the basis of my constitutional right” as governor to grant a
reprieve to condemned prisoners. “I’ve had to process this in a way I didn’t
frankly anticipate.” The governor then cited ongoing legal questions regarding
California’s mode of execution, lethal injection, which he repealed, along with
shutting down the death chamber at San Quentin.
Again, the arguments against capital punishment, moral and legal, are
compelling. And California’s non-administration of the death penalty undercuts
any thought that if applied in a timely manner in the most heinous of crimes,
it can be a deterrent. In the face of legal challenges, no one has been
executed in California since 2006.
Newsom’s predecessor, former Gov. Jerry Brown, also was opposed to the death
penalty. Despite pleas from opponents, however, he refused to do what Newsom
has done: offer a blanket reprieve to death row prisoners. Brown may have
disagreed with voters, but respected their decision to uphold capital
punishment.
This is not the first time Newsom has disregarded voters. Back in 2004, as
mayor of San Francisco, he ordered city officials to issue marriage licenses to
same-sex couples, although state voters had previously voted against this
change. His stand on gay marriage, however, ended up on the right side of the
issue, especially after the U.S. Supreme Court came to a similar conclusion.
Newsom’s bold move at that time brought him state and national recognition. And
so has his decision on the death penalty. The difference is that in San
Francisco, clearly it was the will of a majority of residents that same-sex
marriages be recognized. But he’s taking a political gamble on the death
penalty, where his decision has already brought opposition from prosecutors and
advocates for victims’ families and friends.
Yes, voters who cared to read about his views should have known Newsom was
opposed to capital punishment. But he also said his preference was to restart
the conversation on repeal.
Newsom had an alternative to governing essentially by fiat: He could lead the
way to another ballot measure that would, if voters so decided, stop executions
in California once and for all.
The governor could have used the power of his pulpit to convince voters who
favor the death penalty that state-sanctioned executions do not stop people
from killing other people and that the death penalty more often than not falls
on those without the means to acquire high-powered legal help. Moreover, there
have been innocent men and women who have been sentenced to death, although
Newsom did not cite any such innocent individuals currently on death row when
he pronounced the blanket reprieve.
But instead of working to convince a majority of voters the death penalty
should be abolished, he’s now made this issue about him and whether he can be
trusted and about what other personal opinions he’ll use to justify
disregarding voters’ decisions, much less the laws and justice system in place
when sentences were ordered.
Stopping state-sanctioned executions of convicted criminals is an important and
profound issue that deserves far more public debate than a unilateral decision.
(source: Editorial Board, Santa Cruz Sentinel)
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