August 7
TEXAS:
Was innocent man executed?----Prosecutor calls for unprecedented
investigation in death penalty case
It shouldn't be a shock that a Houston criminal prosecution figures in yet
another intense debate about capital punishment. In the almost 30 years
years since the death penalty returned to Texas, Harris County juries have
sentenced about 300 men and women to die by lethal injection, and 81 of
those have been executed, by the Texas Department of Criminal Justice's
count.
Both statistics are, by far, state and national records for a local
jurisdiction. "No one else is even close," said Brenda Bowser Soder,
communications director for the Death Penalty Information Center, a group
that opposes capital punishment.
But in this instance, the Houston case involved theft, not capital murder.
And, as flawed and as reversible on appeal as the Harris County
prosecution proved to be, the Houston case is but a tantalizing tangent to
the central question:
Was an innocent man executed a decade ago - in Missouri?
Jennifer Joyce, the St. Louis city circuit attorney, has ordered a new
investigation into the case against Larry Griffin, who was killed by
lethal injection in 1995. The case began in 1980 with what the cops
painted as a classic criminal perfecta: a drug-related, drive-by, revenge
shooting in the slums.
A formal post-execution review by a prosecutor apparently is
unprecedented, even by a prosecutor, such as Joyce, who came to office
after the trial, appeal and execution.
"I've never heard of any case like this," said Samuel Gross, the
University of Michigan law professor who conducted the preliminary inquiry
into the Griffin case, for the NAACP Legal Defense and Education Fund,
that prompted Joyce to act.
Defendants' families and media have pressed for reviews in a number of
cases, including post-execution, but an intervention such as Joyce's seems
to be unheard of.
"There's a basic reluctance for governmental officials of any sort to
re-examine cases after conviction and especially after execution," Gross
said.
But, any reluctance aside, Joyce, an elected Democrat in office since
1999, has stepped in, with the support of a local political powerhouse,
U.S. Rep. William Lacy Clay, D-Mo.
This could be a very important moment in the death-penalty debate. Or the
St. Louis investigation could turn out to be a potentially embarrassing
fizzle.
For the moment, at least, some opponents of capital punishment are
convinced that Griffin's case is the one they have been desperately
seeking for decades: the conviction and execution of a man whom they
believe can be shown to have been not guilty.
"This case right now is the clearest case in the country that an innocent
person has been put to death," said Rick Halperin, a Southern Methodist
University history professor and activist in several anti-death penalty
groups, both in Texas and internationally.
As a Texan, Halperin is in awe of Joyce's gutsy decision, saying, "I can't
imagine that happening here."
Given Texas' heavily pro-death penalty political atmosphere, his view is
sadly realistic. Even elected officials who don't plan to run again won't
speak out, Halperin said: "It's pretty pathetic."
Critics of the death penalty need a case that we can cite in answer to
taunts of supporters of executions who say there is no evidence that an
innocent person has been put to death by a state.
The argument was raised as recently as late June before a House Judiciary
subcommittee as it considered legislation to speed federal court review of
state death penalty convictions.
"The well-organized and even better-funded abolitionists cannot point to a
single case of a demonstrably innocent person executed in the modern era
of American capital punishment," said Joshua K. Marquis, district attorney
in Clatsop County, Ore., and an official with the National District
Attorneys Association.
That's a smug, generally self-fulfilling view.
Jay Burnett, a former Harris County district judge who has returned to his
job as a defense lawyer and has three active death penalty cases, has
heard it many times.
"The reason why is that nobody goes back and looks, and DAs won't give up
evidence," Burnett said.
In the early 1980s, Burnett represented Wallace Conners in his appeal in a
Harris County theft case. Conners' conviction was thrown out by the Texas
Court of Criminal Appeals and he was acquitted by a judge in a bench trial
when the case was reheard.
"His alibi was totally unshakable," Burnett recalled recently.
Conners is the Houston link to the St. Louis case. He was shot in the
buttocks by gunmen in a slowly passing car in an assault that killed drug
dealer Quintin Moss on June 26, 1980.
One of the shooters, according to prosecutors, the jury and the Missouri
Supreme Court, over the vigorous dissent of one justice, was Larry
Griffin.
Conners, depending on which side is describing him, was a crucial
eyewitness whose exculpatory testimony could have saved Griffin, or a
friend of Griffin's who, while obviously present at the shooting, talked
to Griffin later and then decided to clear out of town.
According to the NAACP LDEF report, Conners, now living in California,
says Griffin was not a shooter.
An eyewitness, who testified at Griffin's trial and whose account is
challenged in the new report, has died. It was that eyewitness whom
dissenting Missouri Supreme Court Justice Charles B. Blackmar said had "a
seriously flawed background, and his ability to observe and identify the
gunman was also subject to question." Blackmar would have reversed
Griffin's conviction.
At any rate, as Griffin's trial started in 1981 in St. Louis, Conners was
in Texas - in the Harris County Jail, about to go on trial in the theft
case. Also in Houston at the time was at least 1 St. Louis policeman, who
had been sent by his department to testify about Conners' criminal past.
So, it was no secret to St. Louis law enforcement officials where Conners,
clearly mentioned in a police report of the shooting, was.
"It's the single most disturbing fact, especially as regards (Griffin's)
defense attorney" at the trial, said Gross, author of the NAACP report.
It was also, Gross said, easy for his investigator to find Conners in Los
Angeles recently. "It took about half an hour in a data base," Gross said.
Conners, through his attorney Barry Scheck of the Innocence Project, has
refused to talk with journalists after the reinvestigation was announced.
One not reluctant at all to speak out is Griffin's prosecutor, Gordon L.
Ankney, now in private litigation practice in St. Louis.
Ankney expressed supreme confidence in Griffin's guilt and, as a former
opponent of the death penalty, said that by spotlighting Griffin's case,
those seeking to abolish capital punishment "could hurt themselves."
"They've got the wrong poster child," Ankney said.
At the crime scene, Ankney said, Conners refused to talk to police. Later
that day at the hospital, Ankney said, Conners told investigators he
didn't see the shooter. And, Ankney said, in a 3rd interview Conners said
he was shot from behind and immediately ducked.
"If you don't see anybody, you're not a witness," Ankney said in defense
of his never seeking to have Conners testify at Griffin's trial.
"Griffin knew Conners, talked with him after the shooting and never asked
his lawyer to find him," Ankney said.
Ankney said that after dealing with victims and defendants, "it made me
believe that in certain cases, the death penalty is appropriate."
"There is a middle ground," he said, noting what he sees as Texas' overly
gung-ho reliance on execution.
Even that "middle ground" would be difficult for advocates of execution to
hold if it can be shown with some certainty that an innocent person has
wrongly been killed in the name of the state.
Old prosecutors as well as dedicated opponents of the death penalty know
what is at stake. That's why attention of both sides is focusing on St.
Louis.
"The ramifications of this are potentially explosive," said activist
Halperin.
They should be.
(source: Editorial, Cragg Hines, Viewpoints, Houston Chronicle; Hines is
based in Washington, D.C.)
OHIO:
Questions remain 2 decades after postmistress' slaying -- Attorneys want
case reopened after new information emerged ---- John Spirko is to be
executed Sept. 20 even though no physical evidence connected him to the
1982 slaying.
The postmistress in a postage stamp of a village is abducted from work and
stabbed to death. A suspect is convicted and sentenced to die.
No physical evidence tied the suspect, John Spirko, to the crime. It was
never explained why investigators thought he ended up in Elgin, in Van
Wert County, to rob the post office, 70 miles from where he was living
near Toledo.
Yet he told investigators details of the 1982 slaying.
Months before Spirko is to be executed and 23 years after Betty Jane
Mottinger was killed, his attorneys have asked a federal judge to reopen
the case.
Defense attorney Alvin Dunn says new information casts doubt on whether
Spirko's best friend and former cellmate was in the village the day of the
abduction. Prosecutors originally used that sighting to link Spirko to the
slaying.
Spirko's attorney says former postal investigator Paul Hartman said in a
sworn statement that he had decided before the trial that the friend,
Delaney Gibson, was not involved in the killing. Hartman has since said
the statements to Spirko's attorneys were false, and he wanted to mislead
them.
"The state put on a case at trial that was not true, and they knew it was
not true," Dunn said.
But time is running out. Spirko's execution is set for Sept. 20. He has a
final hearing Aug. 23 before the state parole board, which will recommend
whether to grant clemency. His appeal is pending before U.S. District
Judge James Carr in Toledo.
Mottinger, 48, had worked at the post office in Elgin for just less than 4
years when she disappeared Aug. 9, 1982. Her body was found wrapped in a
paint-splattered cloth a month later in a soybean field 50 miles away. She
had been stabbed in the chest and stomach.
Spirko, 59, insists he is not guilty.
He contacted investigators in October 1982 and offered to trade
information about the killing so police would go easy on his girlfriend
who was facing charges in an unrelated case.
Spirko testified during his trial that he talked to the authorities
because he never thought he would get indicted.
Prosecutors say it was information only the killer could know.
"It wasn't the police or prosecutors who put Spirko in the mix. It was
himself," said James Canepa, the state's chief deputy attorney general of
criminal justice.
Spirko's attorneys say what he knew came from newspapers and lengthy
conversations he had with investigators. Some of the details proved true,
but others were made up.
Canepa said Spirko knew details about what was in Mottinger's purse and a
ring she was wearing, information that never appeared in print. "His best
defense now is to say 'I'm a liar,'" Canepa said.
Spirko's past will not win him any sympathy. At age 8, he started a fire
at a school. He was sent to a reformatory as a teen after he was caught
stealing a car.
He faced the death penalty for strangling a 73-year-old woman during a
robbery in Covington, Ky., but instead served 12 years in prison before
being released. He got out 2 weeks before Mottinger disappeared.
Previous appeals also centered on Gibson, the former cellmate. Although
Spirko was never seen in the Ohio farming village, a witness testified
that she saw a cleanshaven man outside the post office the morning of the
abduction. The witness later identified him as Gibson from a photograph.
But it was never disclosed that investigators had found photographs
showing Gibson with a beard right before and after the murder. They also
talked to witnesses and had motel receipts that showed he was in North
Carolina the night before the abduction.
Spirko's attorneys found out in 1996 - 14 years after the killing - about
the evidence putting Gibson's whereabouts in doubt and asked for a new
trial.
Several courts, though, denied their appeals that said prosecutors
withheld the evidence.
The state said whether Gibson was part of the murder does not matter.
Canepa said federal and state appeals have determined that Spirko's
statements sealed his conviction.
Both Spirko and Gibson were charged with murdering Mottinger.
Gibson was not brought to trial because he was serving time for an
unrelated murder in Kentucky. He was released in 2001, but Ohio
prosecutors did not pursue him. Last year they dropped the charges against
Gibson, saying the case was too old.
Several other ideas about what happened to Mottinger have been thrown
about. Spirko's attorneys said in a 1997 court filing that she might have
been killed because she knew about a drug ring operating out of the grain
elevator next to the post office.
Another theory came out after a former house painter, John Willier, told
an investigator that a group, including his boss, killed Mottinger after
going to the post office to pick up drugs sent in the mail.
(source: Associated Press)
USA:
Justice Stevens calls attention to 'serious flaws' in death penalty
In Chicago, Supreme Court Justice John Paul Stevens steered the debate
over President Bush's nominee to a new subject: capital punishment,
sharply condemning the country's death penalty system.
The court has been closely divided in death row cases, with Justice Sandra
Day O'Connor often in the middle.
President Bush's choice to replace her, John Roberts, has a limited track
record. Roberts, 50, showed little sympathy for prisoner appeals as a
government lawyer in the Reagan administration, but later did free legal
work for a death row inmate.
Stevens used a weekend speech to the American Bar Association to
underscore the matter's prominence at the court, noting evidence of
"serious flaws."
His remarks provide the 1st sign of internal dismay over the retirement of
O'Connor, a 75-year-old pragmatist who has been a key voter in affirmative
action, abortion rights and the death penalty.
So far, much of the focus of the Roberts nomination has been on matters
like abortion and civil rights - not the death penalty. His Senate
confirmation hearings begin Sept. 6.
"It doesn't appear to be shaping up as a major issue," said Kent
Scheidegger, legal director of the Criminal Justice Legal Foundation, a
pro-death penalty group.
Scheidegger said that although Roberts' wife, Jane, is a member of a group
that opposes capital punishment, Roberts has had no opportunities to vote
on death cases in his 2 years on a federal appeals court.
Stevens has evolved into the Supreme Court's most liberal member, in the
30 years since his nomination by Republican President Ford.
Another justice who made a similar transformation was Harry A. Blackmun,
who months before his 1994 retirement declared: "I no longer shall tinker
with the machinery of death."
Stevens, who at 85 is the oldest justice, has given no hints that he will
retire soon. A Stevens retirement while Republicans control the White
House and Senate would likely dramatically reshape the court.
Stevens, speaking in his hometown of Chicago, started his Saturday night
speech to lawyers with what he called the "sad news" that O'Connor was
leaving the court.
"It's really a very, very wrenching experience," he said.
The comments were not part of his prepared remarks for the evening, to
honor liberal former judge and congressman Abner Mikva, nor were the
remarks about capital punishment.
Stevens said DNA evidence has shown "that a substantial number of death
sentences have been imposed erroneously."
"It indicates that there must be serious flaws in our administration of
criminal justice," he said.
Death penalty cases dominate the work of the high court. Week after week
justices deal with final emergency appeals, sometimes filed in the late
night hours.
In their last term which ended in June, justices overturned the death
sentences of 4 inmates, ruled that states cannot put to death killers who
were not at least 18 years old at the time of the crime and held that it
was unconstitutional to force defendants to appear before juries in chains
during a trial's penalty phase.
Justices already have 4 capital cases on their docket when they return to
work in October, including a potentially significant issue of letting
inmates have a new chance to prove their innocence with DNA evidence.
Other Supreme Court justices, including O'Connor and Ruth Bader Ginsburg,
have also spoken out about concerns that defendants in murder cases are
not adequately represented at trial.
But Stevens told the ABA that the problems were more dramatic.
He said the jury selection process and the fact that many trial judges are
elected work against accused murderers. He also said that jurors might be
improperly swayed by victim-impact statements.
Stevens was speaking in Illinois, his home state and a place that has been
roiled by controversy over the death penalty. In 2000, wrongful
convictions led then-Gov. George Ryan to halt all executions.
It also came just a day after a Virginia jury decided against the inmate
whose case led to a 2002 Supreme Court ban on executing the mentally
retarded. The jury said Daryl Atkins was mentally competent and could be
put to death.
Stevens wrote that 2002 Atkins decision, which was joined by O'Connor. One
of the 3 dissenters was Chief Justice William H. Rehnquist, who hired
Roberts as a law clerk in 1980. A year later, as a Justice Department
lawyer, Roberts wrote in a memo that the availability of federal court
appeals, "particularly for state prisoners, goes far to making a mockery
of the entire criminal justice system."
Stevens, however, laid out the case for close review of appeals, pointing
to "special risks of unfairness" in capital punishment.
According to the anti-capital punishment Death Penalty Information Center,
more than 3 dozen death row inmates have been exonerated since 2000.
Said Scheidegger, "I wouldn't say that 20 or 30 cases out of 8,000
constitutes a broken system."
(source: Associated Press)
**********************************************
Roberts gave free help to death row inmate
Despite his view that death penalty appeals are clogging the courts,
Supreme Court nominee John Roberts provided free legal help to an inmate
languishing on Florida's death row for 2 decades.
The 25 hours of legal assistance that Roberts reported to the Senate
Judiciary Committee are minuscule compared with thousands of hours
contributed by other attorneys in the case of John Ferguson, who was
convicted in 1978 of killing 8 people in one of the worst mass murders in
Florida history.
(source: Chicago Sun-Times)
*****************************
'Executed on a Technicality': A look at how the death-penalty system
really works----Lawyer takes a hard look at death penalty, and finds much
to criticize.
Executed on a Technicality: Lethal Injustice on America's Death Row. David
R. Dow. Beacon. $24.95.
In the thoughtful new book Executed on a Technicality: Lethal Injustice on
America's Death Row, David R. Dow reveals the dirty little secret of
American death-penalty litigation: Procedure trumps innocence.
Fail to raise an objection, overlook a crucial error or miss a key
deadline, and it may not matter how compelling an inmate's evidence of
innocence is. He may well be innocent, but he may well still be executed.
A practicing death-penalty attorney in Texas, a professor of law at the
University of Houston and founder and director of the Texas Innocence
Network, Dow uses cases, many of them his own, to explore the ins and outs
of the death penalty in Texas.
He paints a picture of a deeply troubled system.
Consider the case of Johnny Joe Martinez. In 1993, Martinez, then 19, got
drunk and stabbed a convenience-store clerk to death. After fleeing, he
called the police, surrendered and confessed. He did not ask for a lawyer.
He did not offer an excuse. Instead, he confessed and, according to
police, was deeply remorseful.
The murder was Martinez's 1st and only crime, which Dow says may have
persuaded a jury to spare his life. But his trial jury heard little of
Martinez's background, even though there were witnesses who could have
helped tell the story. The lawyer simply did not call them to testify.
In Martinez's state habeas appeal, when a lawyer appointed by the state
has the chance to do investigation and bring forth new facts, Martinez was
failed again. According to Dow, the lawyer never visited Martinez on death
row. He never talked to him on the phone, neither calling Martinez nor
accepting his client's collect calls.
Many appeals, Dow writes, are hundreds of pages long. The one Martinez's
lawyer filed in an effort to save his life contained fewer than 6, and it
raised questions that appeals courts already had denied.
Like many inmates, Martinez had learned about the law in prison, and he
learned the peril in which his lawyers had placed him. He wrote to his
lawyer, he pleaded with appeals courts. But Martinez's lawyers handcuffed
those who followed through their failures to raise key issues,
consequently preventing later lawyers from doing so.
"Neither lawyer did his job," Dow explains. "The inept performance of the
1st lawyer meant that the jury did not hear critical evidence; the inept
performance of the state habeas lawyer meant that the federal court could
not hear the evidence. By the time Martinez's case reached federal court,
there was no longer a question of whether he would be executed; there was
only the question of when."
And so he was, on May 22, 2002, after forcing death-chamber guards to
carry him to his execution.
There was no question that Martinez was guilty. For Dow the issue of
innocence is a distraction, one that takes the focus off the system's
inequities, where he believes it should be.
Dow tells the stories of many other death row prisoners, those executed
and exonerated, each one illustrating what he sees as flaws in the
death-penalty system: the serendipity that leads 1 inmate to be released
and another given a lethal injection; a court's legal gymnastics as it
tries to uphold a flawed conviction; the fact that being innocent is
sometimes insignificant in the face of procedure.
Dow also describes his own journey, from a lawyer not opposed to the death
penalty when he first began to represent condemned inmates in 1988 ("I was
somewhere between agnostic and mildly in favor of capital punishment") to
the opponent he clearly is today.
"The difference between who I am now and who I was when I started
representing death row inmates is the difference between knowing just an
inmate's name and knowing an inmate, between knowing how the system is
supposed to work and how it actually works," he writes.
Working in the system, Dow writes, led him to conclude that the death
penalty is not even remotely fair -- and that it can never be fair.
Dow, like many familiar with the death-penalty system, is convinced
innocent people have been sent to death row and innocent people have even
been executed. How many? He can't say and doesn't try. Those questions, he
writes, "are impossible to answer."
"What we can say with certainty," he adds, bringing home the point, "is
that people are convicted on the basis of fallible testimony. And people
are sentenced to death on the basis of baseless predictions. Some endings
are, if not happy, at least not tragic. Others are not."
The past 5 years, during which there has been renewed debate over capital
punishment, have brought a flood of books on the death penalty and the
justice system, many dissecting the system's many flaws. Dow's book is one
of the better ones. It is insightful and full of the kinds of revelations
that may lead readers to reconsider their stand on the death penalty.
Although Dow's somewhat clinical approach can sometimes be off-putting, it
is that approach -- examining a case, turning it in the light to expose
its weaknesses -- that gives Executed on a Technicality its strength.
(source: Chicago Tribune)
*******************************
American criminal justice needs enlightenment
Several weeks ago, The New York Times ran the following front-page
headline: Executed man may be cleared in inquiry.
I must confess I did a double take. Did I read it correctly? Where was the
moral outrage?
This example, along with another case also recently reported in the Times,
demonstrates the sad reality of our criminal justice system, which in many
ways remains stuck in a pre-Enlightenment period mindset.
As the Times reported, Larry Griffin was executed 10 years ago for the
murder of Quintin Moss in 1981.
Prompted by questions raised in a report by the NAACP Legal Defense and
Educational Fund, along with the victims family, St. Louis prosecutor
Jennifer Joyce decided to reopen the case in an attempt to ascertain
Griffin's guilt or innocence.
Griffin's conviction for murdering Moss, an alleged drug dealer, was based
solely on the testimony of Robert Fitzgerald, a career criminal and an
admitted drug addict who was in the federal witness protection program.
According to Fitzgerald, he and a friend had heard the shots from behind
the hood of a car while replacing a battery. Fitzgerald also identified
Griffin in a lineup of photographs at the police station as well as the
abandoned car.
On June 26, 1981, exactly a year after the murder, Griffin was convicted.
The Times further reported that Fitzgerald, who was then facing felony
fraud charges, was cleared and released.
The police officer who was at the scene had no statement from Fitzgerald
or any knowledge that he was in the vicinity. Moreover, Moss' family has
steadfastly maintained doubts about Griffin's guilt.
The other case, also recently reported in the Times, was that of Thomas
Doswell. The Pennsylvania man was cleared after 18 years in prison for
rape after new DNA evidence proved his innocence.
Doswell was convicted in 1986 after the victim picked his photo from a
group of 8. Photographs of the rape defendant at the time were denoted
with the letter R. Doswells photo carried the distinction because a former
girlfriend had accused him of rape, although he was acquitted.
These 2 cases, though somewhat different in nature, cast a glaring
spotlight on our criminal justice system.
It is not enough to rely on DNA as a default when engaging in the
overzealous pursuit to convict someone. The advances in DNA testing have
made great strides in exonerating the innocent, as was the case with
Doswell.
He still lost 18 years of freedom because his photo, though he was
innocent, was included with a group of convicted rapists. There was no DNA
evidence in the Griffin case. Is it too much to require accountability
from those who campaign on being tough on crime? I hear the rhetorical
commitment to the victims, but I fear too often that victim's rights
extend to their congruence with prosecutors premeditated desires.
It has been 25 years, and the Moss family cannot say who murdered him,
though someone has paid with his life. The individual who was responsible
for the rape that Doswell was convicted of 18 years ago may still be at
large.
Can supporters of the death penalty suggest to the Griffin family that he
represents the unfortunate residue from the collateral damage necessary to
bring violent offenders to justice?
The Enlightenment period refers to an 18th-century intellectual movement
in Western Europe that emphasized reason. The intellectual leaders of this
movement regarded themselves as courageous. They saw their purpose as
leading the world toward progress and away from the period of
irrationality, superstition and tyranny also known as the Dark Ages.
Perhaps it is time we embrace a similar courage to rethink our criminal
justice system. While we now have more humane ways of executing offenders
than in the 18th century, the fact is we still execute them.
We continue to put people away, some for no other reason than their
inability to afford adequate legal representation.
Too much of the public conversation around our criminal justice system is
based on hyperbole and the dehumanization of the accused. This leaves us
blind to everyone's humanity, including our own.
(source: Oakland Tribune - Byron Williams is an Oakland pastor and
syndicated columnist)
NORTH CAROLINA:
Defense aims to nix death penalty against 1 of 2 suspects
Defense lawyers are attempting to eliminate the death penalty for 1 of 2
suspects accused of killing a woman and shooting out a toddler's eye in a
Markham Avenue apartment 2 years ago, possibly to scare a delinquent drug
buyer into paying up.
In a written motion newly filed in Durham County Superior Court, the
lawyers contend there is "absolutely no evidence" that Brian Keith
Hargrove fired the fatal shot or that he "personally intended for anyone
to die."
"In fact, almost all the evidence tends to indicate that [Hargrove]
remained in his car outside of the residence where the shootings
happened," lawyers Jonathan Broun and Elaine Gordon said in the motion.
Supreme Court ruling
The lawyers cited a 1982 U.S. Supreme Court decision that the death
penalty could not be justified for a man who operated a getaway car while
his partner committed a murder and robbery. By the same logic, Hargrove is
ineligible for capital punishment because he "did not actually kill,
intend to kill or participate in a major way in criminal conduct which
resulted in death," the lawyers said.
Broun and Gordon will make their argument to a judge later this month. A
trial of the case is set for Sept. 19.
Hargrove and his cousin, Dennis Lamonte Hargrove, are accused of fatally
wounding Colette Moss, 23, during the shooting spree on Markham Avenue in
2003. A 2-year-old, a 14-year-old and a 22-year-old -- all female -- were
injured.
The toddler lost an eye.
An unpaid debt?
According to prosecutor Tracey Cline, the shootings were motivated by an
unpaid debt on a large drug deal.
Cline said in court recently that Thomas Harold Garner, who shared the
Markham Avenue apartment with Moss, allegedly was engaged with the
Hargroves in a transaction involving 35 pounds of marijuana and more than
a pound of cocaine.
However, Garner was not at the apartment when the Hargroves went looking
for him on the night of the shootings, bent on collecting drug money,
Cline said.
Aggravating factors
If convicted of 1st-degree murder, the Hargroves could be the 1st Durham
homicide suspects to receive death penalties since 1999, when Donald John
Scanlon was sentenced to be executed for the asphyxiation slaying of
retired Durham schoolteacher Claudine Harris. Scanlon's death sentence was
set aside last year, but he remains in prison.
1st-degree murder is the only crime for which jurors, rather than a judge,
decide the punishment in North Carolina.
To vote for death, jurors must be convinced that at least one "aggravating
factor" exists in a case and that it is "sufficiently substantial" to
merit capital punishment.
Waiting in the wings
But lawyers Broun and Gordon contend in their new motion that, under the
circumstances, it would be unconstitutionally "cruel and unusual
punishment" to subject Brian Hargrove to the death penalty.
If that argument fails, they have another one waiting in the wings.
In a separate written motion, they argue that two separate juries should
be selected for the case. One would determine Brian Hargrove's guilt or
innocence, and the other would decide his punishment if there is a
conviction.
A rare occurrence
The lawyers say that if only one jury were chosen, it would have to be
"death qualified" -- meaning people conscientiously opposed to capital
punishment would be eliminated. That would leave only jurors who were
"biased in favor of the prosecution and also conviction prone," according
to Broun and Gordon.
As a result, Hargrove's right to a fair and impartial jury for the
guilt-or-innocence phase of his trial would be violated, the lawyers
contend.
State law allows for 2 juries to be empaneled in such cases, although that
rarely happens.
Inconsistent theories
Court officials said that even though Brian and Dennis Hargrove are both
scheduled for trial on Sept. 19, it is probable that only one of them will
actually go before a jury on that date. The other case likely will be
postponed, according to officials.
It could not be determined Friday which trial would go first.
With that in mind, defense lawyers argue in yet another written motion
that the prosecution should be barred from offering "inconsistent
theories" in the 2 trials. In other words, the prosecution should not be
allowed to assert in 1 trial that Brian Hargrove was the shooter, while
asserting in the other that it was Dennis Hargrove, the defense team
contends.
No foul blows
Broun and Gordon said the use of inconsistent theories would violate
principles of fundamental fairness and due process of law.
They quoted the U.S. Supreme Court as pronouncing that a prosecutor "may
strike hard blows," but is "not at liberty to strike foul ones. It is as
much his duty to refrain from improper methods calculated to produce a
wrongful conviction as it is to use every legitimate means to bring about
a just one."
In the Hargroves' case, evidence reportedly indicated that only one person
could have fired the shots on Markham Avenue, since every shell casing
found at the scene came from the same gun.
In addition, prosecutor Cline said in a 2003 bond hearing that she
believed Dennis Hargrove -- rather than Brian Hargrove -- was the
triggerman.
(source: The Herald Sun)
