June 11 NEVADA: Lawyer might ask Nevada high court to reconsider decision in Douglas murder An appeal lawyer for Christopher Fiegehen said Friday he expects to ask the Nevada Supreme Court to reconsider its decision not to overturn Fiegehen's 1st-degree murder conviction for a 2002 Douglas County slaying. A prosecutor said survivors of the man Fiegehen killed are happy with the decision upholding a 2003 verdict in Douglas District Court. "They can't put it behind them - it's something they will never forget," Deputy District Attorney Mark Jackson said. "But it helps them with the healing process to know that chapter is being closed, and they can move on." Reno lawyer Rick Cornell, who is handling Fiegehen's appeal, said Friday he's leaning toward asking the Nevada Supreme Court to reconsider its decision made public Thursday. Cornell appealed Fiegehen's 1st-degree conviction in the Feb. 10, 2002, murder of Alan Chorkey at Chorkey's Johnson Lane home, arguing there was an error at trial when the jury did not specifically return a verdict of 1st-degree murder or 2nd-degree murder as required by Nevada law. The Supreme Court ruled the jury returned guilty verdicts on charges of burglary and home invasion, felonies committed in conjunction with the murder, which would make it 1st-degree murder. Jackson said Fiegehen has a right to seek a rehearing but that the court seldom grants those requests. Fiegehen received 2 life sentences without a chance of parole. (source: Reno Gazette-Journal) FLORIDA: Fort Lauderdale cop killer re-sentenced to life in prison Court overturns judge's death penalty decision It has been nine years, 5 months and 6 days since Fort Lauderdale Police Officer Bryant Peney was shot dead in the 1400 block of South Federal Highway. But more than 100 members of Peney's 2 families, his blood relatives and his law enforcement brothers and sisters, crowded into a Broward courtroom on Friday morning to watch the man who murdered him be re-sentenced to life in prison. They were there to show that Peney's memory and legacy are strong as ever. A jury convicted Jeffrey Lee Weaver of first-degree murder in 1999 and recommended that he serve life in prison, but Broward Circuit Judge Mark Speiser overrode the jury's decision and sentenced him to death. As it has in almost every case in which a judge disregards a jury vote, the Florida Supreme Court threw out Weaver's death sentence and ordered Speiser to re-sentence him to life without parole. Weaver, 43, has spent nearly 6 years on death row. He will now be moved to a less restrictive prison cellblock. Peney, 27, was shot dead on Jan. 5, 1996, after he stopped Weaver, a boat worker and drifter who was living in his car. Peney saw Weaver lurking in the shadows and Weaver ran off, with Peney and a reserve officer, Ray Myers, in pursuit. Weaver turned around and fired a single shot that made it through the armhole of Peney's bulletproof vest, severing a major artery. Peney's parents, Joel and Ellie Peney, and his identical twin brother, Todd Peney, who is also a Fort Lauderdale police sergeant, did not speak at the hearing. Neither did Weaver. The Peney family said they have mixed emotions about Weaver getting off Death Row. But overall, they said they are satisfied that he will spend the rest of his life in prison. "I'm not upset that he got life as long as he can't get out of prison and do this to anyone else," said Ellie Peney. The passing of time has helped the family to cope with the pain of their loss, she said, but it never goes away. She had hoped not to cry on Friday, but the tears flowed anyway when she saw her son's killer. "When I saw him, everything just flashed in front of me again, with Bryant and everything," Ellie Peney said. Todd Peney, a 36-year-old father of 2, said he has never considered giving up his law enforcement career, even though his family has already made such a sacrifice to public safety. He now works on the dive team. "Because [Bryant] stood up, he went to the plate when the time came," Todd Peney said. "How could I not do the same thing?" On his dress uniform, he wears two I.D. number badges -- the one he was assigned on his first day, and 1160, the number assigned to Bryant. Many officers in the department, including new members who joined after the murder, also wear the 1160 badge as a tribute to Bryant Peney. Because the twins were identical, Todd Peney says that colleagues and members of the public often do a double take, then ask about his brother. "It's been difficult," he said. "There are still people, because we look so alike, who will look at me and get a tear in their eye." Weaver, who got his GED in jail, clashed with his attorneys over his defense and insisted on acting as his own attorney during the guilt or innocence phase of his trial. He went up against Broward State Attorney Mike Satz, who prosecuted the case himself. While Weaver failed miserably in his efforts to convince the jury of his theory that the reserve officer fired the fatal bullet, his penalty phase attorney, Raag Singhal, won an 8-4 jury vote recommending life in prison for Weaver. Because Weaver was representing himself and needed to be able to move around the courtroom, he was forced to wear an electric stun belt. The case got national attention when a deputy accidentally activated the belt while the jury was out of the room. The Florida Supreme Court ruled that Weaver's conviction stands, rejecting several arguments, including one that his efforts to defend himself were negatively affected by being shocked. Satz said he respected the Florida Supreme Court ruling in the case. Weaver's appellate attorney, Richard Rosenbaum, said he believed a life sentence was the appropriate punishment for Weaver, who is the father of a 13-year-old son. Among the dozens of officers at the sentencing was Fort Lauderdale Sgt. Luis Alvarez, a former New York City Police Department officer. He was inspired to move to Fort Lauderdale after reading a newspaper report, handed out at roll call that detailed Peney's murder and the long search for Weaver. "I read about the 9-hour manhunt, all the agencies working together, the camaraderie, and I said 'I want to work with people like that.'" By chance, on his 1st day on patrol in Fort Lauderdale, the sergeant he was assigned to work for was Todd Peney. (source: South Florida Sun-Sentinel) ******************************** Detectives cleared in slain nanny case A Palm Beach County sheriff's detective and her supervisor were cleared of wrongdoing in a deputy's claim they overlooked a vital tip in the investigation into the rape and murder of a suburban Boca Raton nanny, according to an internal affairs report released Friday. Deputy Jeffrey Taschner alleged that his informant told the detectives that his uncle, Jerry Wiggins, confessed to the January 2004 murder of Monica Marina Rivera Valdizan. The conversation took place at the food court in the Boynton Beach Mall a few weeks after the murder, according to the report. A year later, authorities charged Jerry Wiggins with the young Peruvian woman's kidnapping, rape and strangulation. Taschner accused lead investigator Detective Ada Tyz and her supervisor, Sgt. Donna Wright, of ignoring his tip from his informant, Jermaine Wiggins, though the internal affairs investigation labeled the deputy's claim "unsubstantiated." Taschner said that Jermaine Wiggins provided specific information, including Jerry Wiggins' full name, exact location, his confession and that he had bite marks and scratches on him after the homicide, according to the report. But Tyz's notes from the mall meeting show a much less detailed tip. "His cousin 'J' raped a girl in Broward. 'J' did something bad and moved to NC (North Carolina)," Tyz wrote. Sheriff Ric Bradshaw said neither Tyz nor Wright would face disciplinary action. Taschner, who acted on "beliefs and perceptions that turned out to be not true," also would not be reprimanded, Bradshaw said. "We encourage our employees to make sure things are done the right way," Bradshaw said. "These 2 detectives did the right thing. They solved a very difficult, high-profile case." The two-month internal affairs investigation into Taschner's complaint included an interview with Jermaine Wiggins, 23, who described a family gathering in North Carolina during which his uncle tearfully admitted he "killed that girl down in Florida," according to the report. "He didn't get into detail with me heavy, but I asked him what happened and he was like, you know, I was out one night. I saw her and I followed her. I tried to rob her... He said he had a knife and she had a knife and they got into a fight and one thing led to another," Jermaine Wiggins said in a sworn statement to internal affairs investigator Sgt. Paula Kronsperger. Jerry Wiggins, 29, is in the Broward County Jail awaiting trial for the November 2003 rape of a 14-year-old Coral Springs girl. The girl told police she knew her attacker as "J." The self-proclaimed handyman was brought back to Florida from Charlotte, N.C., in March. He had been in a Charlotte jail since his Jan. 19 arrest for allegedly raping a 25-year-old woman at knifepoint. That woman also knew him as "J." DNA collected from the Charlotte rape case linked Jerry Wiggins to Rivera Valdizan's murder. Rivera Valdizan, a 26-year-old aspiring journalist, was last seen Jan. 2, 2004, outside a suburban Boca Raton Publix. Her bruised body was found three days later behind bushes on Montoya Circle North, near the Alyssum Way home where she lived and worked. A grand jury charged Jerry Wiggins, who lived about 11 miles from where Rivera Valdizan's body was found, with 1st-degree murder, kidnapping, sexual battery and attempted sexual battery in February. He could face the death penalty. The internal affairs investigation offers a glimpse into the emotional toll the case had on Tyz, who said her husband came to know that when she got a lead in the case, it meant she was going to leave home to follow it up. "This case was very personal to me. This was a victim. I take all my cases serious, but I clicked with this family, because this family was 100 %... 2000 % innocent. This woman did nothing wrong," Tyz told Kronsperger. During her yearlong investigation, Tyz collected about 70 DNA samples from construction workers, pizza delivery men, law maintenance men, sprinkler repair men, the exterminator, the pool man, in hopes of identifying Rivera Valdizan's killer, according to the report. She also flew to Washington, D.C., and fielded anonymous tips when the case appeared on America's Most Wanted in February 2004. Had Jermaine Wiggins given her specific information about the murder, as Taschner alleged, Tyz said she would have brought him to the sheriff's office headquarters, where "he would have been debriefed to whatever extent it took to get the information she needed," according to the report. At the end of her 10-minute mall meeting with Jermaine Wiggins, Tyz tore off a piece of paper from her notepad and wrote down her phone number. (source: Palm Beach Post) ************************** Hearing addresses Demeniuk medicine----Defense in slaying case seeks documents from company A pharmaceutical company lawyer said Thursday it would be too time-consuming and expensive to search for documents said to be critical to the defense of a woman charged with shooting her twins to death. Leslie Demeniuk, 36, faces two counts of 1st-degree murder in the deaths of 4-year-old James and John on March 17, 2001. The state is seeking the death penalty. Defense attorneys William Sheppard and Gray Thomas of Jacksonville are basing their insanity defense on a combination of antidepressants and alcohol that tests revealed Demeniuk was taking at the time of the shooting. She had been prescribed Xanax, an anti-anxiety drug, and Zoloft, a selective serotonin reuptake inhibitor (SSRI). The antidepressant SSRIs increase the amount of serotonin in nerve synapses. Demeniuk's Zoloft prescription was changed to Paxil, another SSRI, 2 days before the killing, according to court records. Testifying at a December hearing, Dr. Ernest Miller, a retired professor of psychiatry at the University of Florida, said, "This family of SSRIs, in combination with Xanax and alcohol, could make one suicidal or homicidal." The defense team has sought three times to get reports of adverse effects to Paxil from its manufacturer, GlaxoSmithKline. Retired Circuit Judge Robert K. Mathis ruled in March 2004 that the defense request was "unduly burdensome and irrelevant," Todd Davis, representing GSK, said Thursday in St. Johns County Circuit Court. The 2nd time, the company and the defense team reached an agreement to provide "certain documents," said Davis, an attorney with King & Spalding in Atlanta. Now, he said, the defense wants "updated documents" beyond the ones provided almost 15 months ago. However, Davis told Circuit Judge John M. Alexander, the defense is after more than updated documents. Sheppard and Thomas "went off in a completely different tangent that bear no relation to the documents the court authorized," Davis said. The information being asked for through a subpoena, he continued, "is overly, unduly burdensome and expensive for (the company) to respond to." Company workers would have to review tens of thousands of pages of documents manually, then review them again for "proprietary business information." Alexander asked if the company could do a computer search and perhaps narrow the terms used to "just straight homicide." Davis said that would be difficult, since there could be other, nonlethal, reactions that would be significant. Thomas said the defense had done its best "to narrow the language." A similar subpoena had been issued to Pfizer (which manufactures Zoloft), Thomas said. The 2 sides had come to an agreement, he added. "The issue of burdensomeness, I think, truly is a red herring," Thomas said. "What we've asked for are computer searches. We're not asking for (GSK) personnel to wade into a warehouse of paper." He and Sheppard asked for updated documents, Thomas said, because so much new information about the drug and its side effects has been made public over the past year. "There's a revolution in what's known," Thomas said, quoting Sheppard. The revolution, he added, is not because of new studies but because previously withheld documents have been released. In the summer of 2004, Thomas said, New York Attorney General Eliot Spitzer and GSK reached a settlement after Spitzer filed suit, claiming the company had committed fraud by "withholding information and misrepresenting data." "We know there's more out there," Thomas said. Assistant State Attorney Maureen Sullivan Christine objected to the defense subpoenas, saying the company would have "thousands, if not millions of documents to sift through." "This is nothing but a fishing expedition, an attempt to muddy the waters," she said. When Mathis denied the defense's 1st request, she said, that should have been it. "They don't get to come back 2, 3, 4 times," said Christine. Such a search, Christine said, could delay the opening day of trial, now scheduled for November. "As a practical matter," she said, "it's going to push this case back. This case has been dragging on forever." Alexander said he would consider the arguments made by all sides and decide today or early next week if he would quash the subpoena for documents sent to GSK. (source: St. Petersburg Times) ARKANSAS: Newman's execution moves closer The attorney general's office announced Friday that it has sent a letter to Gov. Mike Huckabee recommending that an execution date be set for convicted killer Rickey Dale Newman. Newman has been on death row for the February 2001 stabbing death of Marie Cholette, whose body was found under a makeshift tent in a wooded area where transients camped in Crawford County. Jim Harris, spokesman for the governor, said Huckabee had not received the letter by Friday afternoon, but the administration's policy gives the governor 10 days to set the date. The policy also requires the execution date to be set with 40 to 60 days, which means Newman would be executed in mid to late August. "The governor is free to set a date of his choosing," said AG spokesman Matt DeCample. Newman, who has opposed attempts to stop his execution, was to be put to death on Sept. 28, but the state Supreme Court issued a temporary stay on Sept. 24, after lawyers filed a motion on behalf of Newman's aunt. Last week, at Newman's request, the high court in a 1-line order lifted the stay. Since his conviction, Newman has insisted he's ready to die and fired his lawyers for trying to stop his execution. The Supreme Court issued the temporary stay after lawyers submitted a motion on behalf of Betty Moore, Newman's aunt. The justices said the lawyers did not have standing to seek a stay, but they granted a temporary stay after lawyers argued that Moore had standing as a "next friend" of the convicted murderer. In November, Newman apparently had a change of heart and decided to fight his execution. He asked that a briefing schedule be vacated so attorneys from the federal Public Defender's Office could raise whatever claims are available to prove his innocence. However, in December he asked that the briefing schedule be dismissed and that the stay of execution be lifted. (source: Arkansas News) USA: After Rehnquist: A Politician to Lead the Court? The resignation of Chief Justice William Rehnquist is inevitable, if not imminent. And the impending departure of Rehnquist already has prompted consideration of the Supreme Court's relationship to the politically divided public, the Court's proper role in government, and -- to a lesser extent -- the chief justice's responsibilities in leading the Court. Just as inevitable, discussion of all these issues will be informed by the memory of Chief Justice Earl Warren, who led the Court to a unanimous decision in Brown v. Board of Education (1954). The decision in Brown showed what effect a political leader could have on the Court, and since then, every president appointing a justice has had to consider whether or not to choose a politician. Warren's influence was evident more than a decade ago, when President Bill Clinton ruminated over whether to nominate Secretary of the Interior Bruce Babbitt for a seat on the Supreme Court. Twice Clinton came close to naming Babbitt before ultimately deciding on two sitting judges -- Ruth Bader Ginsburg in 1993 and Stephen Breyer in 1994. After Breyer was appointed, Lincoln Caplan noted that "the president was said to have wanted a big-hearted justice with real-world experience who could help redefine the center of American law." Today, President George W. Bush may not idolize Warren (and the prognosticators haven't put any politicians high on Bush's short list for the Court), but the question of whether to select a politician remains relevant. PRACTICAL WISDOM? It is therefore instructive to consider the argument in favor of appointing a politician to the Court, which goes like this: A politician as chief justice would bring practical wisdom forged in the real world of politics. A Court populated with former appeals court judges (every current justice except Rehnquist had prior judicial experience) and law professors (Justices Breyer, Ginsburg, and Antonin Scalia) is too insulated from the world in which its decisions apply. The argument suggests that political experience may help alleviate this problem. Consider Justice Sandra Day O'Connor, who had prior legislative experience in Arizona. Noting the "sometimes murky legal standards that emerge" from O'Connor's opinions, Youngstown State University professor Paul Sracic, writing in USA Today on March 29, nevertheless praised her decisions for "demonstrat[ing] an understanding that the court's decisions are not simply fodder for Socratic debate in law school classrooms." Furthermore, the argument goes, with divisive political issues routinely on the Supreme Court's docket, the appointment of a politician as chief justice would help the Court reach some sort of consensus on these controversial issues. Politicians, after all, are required to compromise and reach agreement over controversial issues with those of different parties who may strongly disagree with them. Even if a politician turned chief justice couldn't achieve unanimity in decisions, then at least the chief justice might broker an agreement on how to reasonably disagree. This part of the argument waxes and wanes, depending upon the divisions within the Court and the political controversy engendered by its decisions. In his first term, Clinton was intrigued by the possibility that a politician, such as Babbitt, could help lead the Supreme Court to consensus. This was an appealing prospect at that time, given the bitterness resulting from the Court's decisions on abortion, civil rights and affirmative action, and the death penalty. More recently, after Bush v. Gore (2000), the Court became a lightning rod for the partisan passions accompanying the election. Since Bush v. Gore, however, the Court has followed a more moderate, perhaps deliberately cautious path on several controversial issues. The case for appointing a politician as chief justice must also be understood as a case of nostalgia for Warren. Warren was the last chief justice to come from the rough-and-tumble world of politics. He had been elected attorney general and governor of California before being appointed to the Supreme Court in 1953. And he joined a Court already populated by such former politicians as Hugo Black (an Alabama senator before his appointment) and Harold Burton (an Ohio senator). Today, Warren is celebrated for leading the effort to desegregate public schools and guiding the Court to its unanimous school-desegregation decisions (most notably in Brown v. Board of Education and also in Cooper v. Aaron in 1958). Brown is probably the most important Supreme Court decision of the 20th century. Even today, the desire for the moral vision of Brown informs how we think about the next chief justice. WARREN AND O'CONNOR Part of the appeal of nostalgia, however, is what is excluded from memory, as well as what is included. The longing for the leadership of Warren tends to overlook the fact that the Court's decision in Brown resulted in attacks on the Court for being too political. Indeed, Brown injected the Supreme Court into a prolonged controversy that included criticism of the justices themselves for lacking judicial experience and a proper understanding of the role of judges. Opposition to the school-desegregation decisions, combined with dissatisfaction over the Court's civil liberties decisions in the 1957 term, prompted a number of proposals in Congress to require judicial experience as a qualification for appointment to the high court. Other measures introduced after that term -- such as a "proposal that members of Congress, heads of federal executive agencies, and governors of States would not be eligible for appointment to the Court for a 5-year period after leaving office" -- were, according to the late professor C. Herman Pritchett, apparently directed at certain members of the Court. As Pritchett noted in his 1973 book, "Congress versus the Supreme Court, 1957-1960," this latter measure would have disqualified Warren, Black, William Douglas, and Tom Clark. The irony, then, is that Warren's political experience may have helped him unite the Court, but it also provided fodder for critics who asserted that the Court in fact was too political. Unlike the Warren Court, the Supreme Court today has only one member who has held a significant elective office, O'Connor. Her approach to judging certainly has been influenced by her political experience as a state senator in the Arizona Legislature -- including service as majority leader, during which she approached issues in a practical, bipartisan manner (according to Jeffrey Rosen's New York Times Magazine profile in June 2001). O'Connor is known for her flexibility and pragmatism, as demonstrated in affirmative action and abortion cases. With respect to affirmative action, O'Connor provided the fifth vote in a 2003 decision upholding the University of Michigan Law School's policy of including race as a factor to be considered in admissions decisions. But she voted in another case decided the same day, along with five other justices, to invalidate an admissions policy used by the University of Michigan's undergraduate programs. In the latter case, the Court held that the use of a point system to benefit minorities violated the equal protection clause. Perhaps, like the flexible legislator she used to be, O'Connor, and thus the Court in general, eschewed absolute conclusions in either direction in favor of a compromise in which both sides could find some comfort. With respect to abortion, the Supreme Court essentially has adopted her "undue burden" standard for analyzing abortion restrictions. On both issues, O'Connor's views have been praised as reflecting the public's own conflicts on difficult issues. She also has been criticized for exactly the same qualities -- pragmatism, flexibility -- that earn her praise. Her critics assert that she has failed to articulate and follow a consistent set of judicial principles. DIFFERENT TIMES So where does this leave us today? What do the differences between the politicians on the Warren Court and the politician on the Rehnquist Court reveal about the possible effect of a politician on whatever Court comes next? Today, the Court generally follows the approach of reflecting the public's views on controversial issues, rather than leading the effort to resolve those issues. The Court tends to reflect the country's even split between red and blue -- siding, for example, with conservatives in holding that individuals could not sue states for violating the Age Discrimination in Employment Act and with liberals in invalidating state laws criminalizing sodomy. This is due in large part to the control effectively exercised by Justices O'Connor and Anthony Kennedy, the current swing voters. It is not apparent that either the Court or the country needs the sort of exceptional leadership that Warren displayed as chief justice on the issue of desegregation. With all due respect to our political divisions today, the segregation at issue in Brown required the Court to speak with an overwhelming moral voice to overcome centuries of state-sanctioned racial discrimination. No such need exists with the more modest constitutional issues involving, say, the latest application of the undue burden test. Today, our issues can and are being hashed out, passionately but usually nonviolently, in legislative and executive and lower-level judicial decisions. We don't need a chief justice who has to produce unanimity to enhance the Court's moral authority, and thus we can accept a Court that picks its way along with us. Finally, it is worth recalling the experience of Warren's predecessor as chief justice. In 1946, the Supreme Court was not held in high regard. This was due, in part, to a number of conflicts on the Court, including a bitter personal dispute between Justices Black and Robert Jackson. President Harry Truman hoped that Fred Vinson, an experienced politician, would be able to promote unity on the Court. Vinson, though regarded as a diligent public servant and a decent person, did not succeed. The Court continued to be divided on a number of controversial issues (including civil liberties and presidential power). Today, Vinson is remembered less for his service on the Court and more for what his death in 1953 allowed: the appointment of Warren as chief justice. Earl Warren continues to cast a long shadow over the position of chief justice. Nevertheless, we currently do not need such a super chief on the job. In selecting the next chief justice, the president and the Senate should take into account more than nostalgia for Warren and the Supreme Court's unanimous decision in Brown v. Board of Education. (source: Legal Times -- Rodger Citron is an assistant professor of law at Touro Law Center and an occasional contributor to Legal Times) NORTH CAROLINA: N.C. moves to suspend death penalty The House Judicial Committee passed a bill May 31 that would suspend executions in North Carolina for 2 years while the state studies the capital punishment system. This moved the bill, HB 529, to the floor of the House for a vote, which was delayed. The state Senate passed a similar bill during the 2003-2004 legislature and will not consider it again until the House passes the bill. Former prisoners Alan Gell and Darryl Hunt testified at North Carolina House of Representatives Judicial Committee proceedings in Raleigh. Gell and Hunt spent 9 and 18 years respectively in North Carolina prisons for crimes they did not commit before being exonerated. Anti-death penalty advocates have been working for 6 years to ban capital punishment in the state and vowed to keep the pressure on. They point out that problems with the death penalty in North Carolina have included hidden evidence, racial bias and incompetent defense lawyers. (source: Workers' World)
