June 8 OHIO----impending execution Lawyer not planning Supreme Court appeal to stop execution Lawyers for a man convicted of using a homemade knife to kill a jail guard during a weapons check decided against asking the U.S. Supreme Court to stop his scheduled execution. William G. Zuern's attorney, Kate McGarry, declined to say why she wouldn't take the case to the high court, a typical step in death penalty cases. McGarry said she expected the execution to happen as scheduled Tuesday. Zuern was refusing to talk to the prison staff Tuesday and stuffed his ears with toilet paper so he couldn't hear them, either, said Andrea Dean, spokeswoman for the Department of Rehabilitation and Corrections. He declined to see his 2 sisters who traveled to the Southern Ohio Correction Facility in Lucasville to see him, Dean said. Zuern had a restless night and was pacing around his cell, Dean said. At one point, Zuern removed the paper from his ears and asked a guard, "What time does all of this start?" Dean said. On Monday, a federal appeals court in Cincinnati rejected 2 appeals by Zuern. A 3-judge panel lifted a stay of execution issued earlier in the day, then a majority of judges on the 6th U.S. Circuit Court of Appeals voted not to allow the full court to consider Zuern's appeal. Earlier Monday, U.S. District Judge Walter Rice in Dayton ordered the stay to allow the appeals court more time to consider whether Zuern's death sentence is fair. McGarry had argued that Zuern's lawyers didn't present evidence that could have helped him when he was sentenced. Gov. Bob Taft denied clemency for Zuern, agreeing Monday with the recommendation last week of the Ohio Parole Board. On Friday, the appeals court overturned an order issued last month by Rice that the execution be delayed. Rice overturned Zuern's conviction in 2000, but the 6th Circuit reinstated it last July. Zuern, 45, was convicted of aggravated murder and sentenced to death in the June 9, 1984, stabbing death of jail officer Phillip Pence. Zuern, formerly of Cincinnati, also is serving a life prison term for his guilty plea to fatally shooting a Cincinnati man. He had been awaiting trial on that slaying when Hamilton County jail officials received a tip that Zuern had a homemade knife in his cell at the Community Correctional Institution, a Civil War-era prison in Cincinnati known as "the Workhouse." Zuern was notified that officers were coming to search the cell for the weapon and when they arrived he stabbed Pence in the chest with a dagger-like piece of metal, officers said. Zuern arrived Monday afternoon at the Southern Ohio Correctional Facility from death row in Mansfield. (source: Associated Press) NEW MEXICO: State court rules on death penalty New Mexico's highest court has mapped out new procedures to ensure that mentally retarded people accused of murder are not given the death penalty. In a case involving the killing of a 95-year-old woman in Hobbs, the state Supreme Court clarified how and when a judge and jury are to decide whether a defendant is mentally retarded -- a legal question that will determine if the person is subject to capital punishment. "It provides much more procedural protections to make sure that someone who is mentally retarded is not sentenced to death in the state of New Mexico," Brian Pori of the New Mexico Criminal Defense Lawyers Association, said Monday of the court's ruling issued last week. New Mexico enacted a law in 1991 that prohibited the execution of defendants with mental retardation. However, procedural questions about the state's law had been raised in the wake of a 2002 ruling by the U.S. Supreme Court that declared it unconstitutionally cruel and unusual punishment to execute the mentally retarded. According to defense lawyers and a state prosecutor, the state court's ruling has established a 2-tier procedure for cases when defendants allege they are mentally retarded and not subject to the death penalty. "Now the jury has the last call on the question of mental retardation," said Jeff Buckels, an assistant public defender who handles death penalty cases. "Before this decision, the only way the question of mental retardation was to be decided was by the judge." Victoria Wilson, an assistant attorney general, said the court's overall ruling "probably does benefit the defendant" by establishing a procedure for the jury to consider mental retardation as a factor that prohibits imposition of the death penalty. According to the court's ruling: -Judges will make a pretrial determination of the question of mental retardation if that's requested by a defendant. If a judge determines the defendant is mentally retarded, no death penalty can be sought by prosecutors. In the case of the Hobbs killing, a judge had interpreted state law to require the mental retardation determination after a trial had decided whether the defendant was guilty of murder. The case was appealed before a trial started, however. -The jury, before it sentences a person convicted of first-degree murder, must consider the issue of mental retardation when it's raised by the defendant as a reason why the death penalty should not be imposed. The death penalty will be a sentencing option only if the jury unanimously decides the defendant is not mentally retarded. If the jurors are not unanimous in that finding, a defendant can only be sentenced to life in prison. If the jury decides a defendant is mentally retarded -- even if the judge had determined otherwise -- the person is not subject to the death penalty. Previously under New Mexico law, the jury could weigh the question of a defendant's mental retardation as a "mitigating factor" in deciding whether to impose the death penalty. "Prior to this decision, any number of the jurors could think the guy was mentally retarded and give him the death penalty anyway ... because it was treated only as a mitigating circumstance," said Buckels. In death-penalty cases, after a defendant is convicted of 1st-degree murder, a separate sentencing proceeding is held and jurors decide whether to impose capital punishment. Under the court's ruling, according to Buckels and Pori, the jury would decide the issue of mental retardation before considering other mitigating or aggravating circumstances in making a sentencing decision. The justices overturned a district court judge who held New Mexico's law unconstitutional because it provided for the judge, rather than the jury, to decide the question of a defendant's mental retardation in a death penalty case. The Hobbs murder case has been on hold since the ruling by District Judge Don Maddox in September 2002. Ruben Flores is charged with the murder of Helen Neithercutt in January 1999. Authorities have said she was apparently hit on the head by an intruder who crawled into her house through a window. Flores has been held in the Lea County jail, according to Buckels. The court ordered the case back to the district court. (source: The New Mexican) KENTUCKY: Judge's removal from trial urged----Attorneys for 1 of 2 men in murder case contend McDonald's statement shows bias. Attorneys for 1 of 2 defendants awaiting trial in Jefferson Circuit Court on murder and robbery charges have asked the Kentucky Supreme Court to remove Judge Martin McDonald from the case. In their motion, the lawyers say McDonald showed "bias of the highest order" when he allegedly told his sheriff's deputy that the defendants half-brothers Gary and Javon Hearn deserved separate trials but that he was going to try them together anyway. In an affidavit, public defender Jay Lambert said McDonald's courtroom deputy Billy Smyth quoted McDonald in a courtroom conversation as saying, "'You know, Jay is right but I am not going to try these guys separately.'" Lambert and Ray Clooney, also a public defender, said in their motion: "In other words, although the defense was right on the law, Judge McDonald was simply going to ignore the law." Gary Hearn, 20, and brother Javon Hearn, 24, are charged with robbery, murder and tampering with evidence in connection with the Aug. 27, 2002, shooting death of David Kiphart Jr. They both face the death penalty, and each has been held in jail on $250,000 bail since the arrests shortly after the crime. McDonald, who has been involved in two other controversies since he was elected to circuit court in November, declined to be interviewed yesterday. In denying the defense motion to recuse himself, McDonald said his remarks had been "misconstrued," according to the petition that Lambert and Clooney filed with the Supreme Court. But in the pleading, the public defenders say that, during a hearing yesterday morning, "Neither Judge McDonald nor Deputy (Smyth) denied their conversation, nor did Deputy (Smyth) deny his conversation with Mr. Lambert." (The motion identifies the sheriff's deputy as "Smith" but Carl Yates, a spokesman for the sheriff's department, said his name is spelled "Smyth.") Yates said yesterday that Smyth "didn't want to talk about this" with a reporter. He also said the department would investigate what happened. "We need to take a good look at the deputy's role in all this, if any," Yates said. "It is inappropriate for a deputy to be discussing a criminal proceeding with anyone. We are there for one reason only to provide court security." Jury selection in the case began Friday but was postponed yesterday for a week pending a decision by the Supreme Court, which is expected within a couple of days. Both defendants have asked for separate trials, which McDonald has denied. Gary Hearn's lawyers contend that a statement that their client gave to police implicating Javon Hearn in the murder has been edited so severely to protect Javon Hearn's rights that it could be construed as a confession by Gary Hearn. Based on the presumption that Gary Hearn won't testify, the prosecution redacted, or removed, all portions of his statement mentioning Javon Hearn. The U.S. Supreme Court has said that if a defendant implicates a co-defendant in a police interrogation but doesn't testify at trial, all references to the co-defendant must be redacted. If the Hearns were tried separately, Gary Hearn's complete statement could be introduced at his trial. McDonald has ruled that he will allow the redacted statement to be introduced at trial, although he may admonish the jury that it is not complete. In his statement to police, Gary Hearn said that he received a stereo stolen from Kiphart's car and that Javon Hearn told him that he had killed Kiphart, who was 18 and a recent duPont Manual High School graduate. Citing a gag order issued Friday by McDonald, Lambert and Clooney declined yesterday to comment on the recusal motion, as did Assistant Commonwealth's Attorneys Rob Bonar and Scott Davis. In the motion, Lambert said he spoke with Deputy Smyth on Thursday in the Jefferson County Judicial Center and that Lambert and Clooney asked McDonald yesterday to recuse himself, which he declined to do. The case marks the third time since January that McDonald has been involved in controversy over his courtroom actions. Last month, he was criticized by civil-rights activists and others after he referred to a man fatally shot while committing a 2002 robbery as an "animal." McDonald made the comment after halting the murder trial of Firas Al Kurdi, who was charged with shooting and killing James J. Abdul-Shajee during a robbery of a store where Al Kurdi worked. "If there is a victim in this room right now, it's" Al Kurdi, McDonald said in court after dismissing the charges. "He was viciously assaulted by this animal, and his actions were completely reasonable under the circumstances." McDonald defended his remarks, saying they were justified by Abdul-Shajee's record and his brutal attack on Al-Kurdi, in which he slashed the employee's throat and nose. McDonald also was criticized in January for sanctioning a juror for failing to appear on the first day of a trial, even though the juror later presented letters from two doctors who said he had suffered an asthma attack and had potentially life-threatening medical problems. The juror was arrested, jailed and fined $500. McDonald said in an interview at the time that he thought the juror concocted the medical excuse after the fact. In a judicial evaluation of 26 District and Family Court judges released in March, McDonald received the second lowest overall favorable rating, based on his performance in District Court. (source: Courier-Journal)
