Nov. 2
NORTH CAROLINA----impending execution 3 siblings ask Easley for clemency for McHone ---- A half brother says that he deserves to die for killings Family members and former prosecutors offered competing views to Gov. Mike Easley yesterday in a clemency hearing for Steven McHone, the Surry County man scheduled to be executed next week for the killings of his mother and stepfather in 1990. Three siblings, several friends and the district attorney who oversaw the case asked Easley to grant clemency to McHone. They argued that the death penalty is too harsh in his case, and the siblings said they've forgiven him. A 4th sibling said he's forgiven nothing. He and an assistant district attorney said that the penalty is fitting and they urged Easley to deny clemency. McHone, 35, was convicted in Surry Superior Court in 1991 on 2 counts of 1st-degree murder. He does not claim that he is innocent, but his petition for clemency asks that he be given life in prison without the possibility of parole. The petition could hinge on the competency of McHone's trial attorneys, on whether the shootings could have been premeditated given testimony that McHone was intoxicated at the time and on the appeals from a divided family. "Steve and I have reconciled. I love him," Randy Adams, McHone's half brother, said in an affidavit. "I have forgiven him for killing my mom and dad. How can you forgive someone and want them to die?" Tina Walker, McHone's stepsister, and Cheryl McMillian, a half sister, also said that they've forgiven McHone. They say that his death would only add to their tragedy and they want other relatives to know him. "We need more time as a family to come together once more," Walker said in an affidavit. "I want you to know I don't make excuses for what he did, but he belongs in our family, and I can understand why it has not been easy for him to see that as so." Another half brother, Wesley Adams Jr., is opposing McHone's request for clemency. He said that McHone deserves to die. "He has shown that, during that morning and later on, he has no interest about my family," Adams said. "In fact, he has made threats to my family. Brutality was not even a question. I still have nightmares about it." The prosecutors from the case are also divided. Assistant District Attorney Jimmy Yeatts, who led the prosecution, met with Easley yesterday and said afterward that McHone had a solid defense given the circumstances. "The defendant made a statement about his intent to kill," Yeatts said. "What can a defense (attorney) do at that point in time other than to try to ask a jury to have some feeling or some other reason to look some way other than at his acts?" Yeatts' former boss, James Dellinger, is supporting clemency. Dellinger was the district attorney during McHone's trial, and he signed an affidavit last week saying that he regrets pursuing the death penalty. "In the early nineties, capital law was evolving a great deal. We didn't have the option of life without parole," Dellinger said in the affidavit. "We also didn't have Indigent Defense Services at that time, and so every lawyer in the district was handling capital cases, whether they had the capability or not." He continued: "If I had had the ability to pursue life without parole as an option today in the McHone case, I probably would have done that." Dellinger resigned as district attorney in 1995 after being charged with forgery and filing a false expense report. The clemency petition also notes the legal troubles of one of McHone's attorneys, Terry L. Collins, who was later disbarred for an unrelated scheme to help clients get driver's licenses illegally. Collins was also the subject of a drug investigation before McHone's trial, which defense attorneys say might have been a conflict of interest. The petition also describes McHone's history of alcoholism and drug abuse, as well as testimony that McHone was intoxicated at the time of the shootings and did not receive adequate treatment for his problems. That contradicts theories that the shootings were premeditated, the petition says. In an affidavit, paramedic Teresa Durham said that the last words ofMildred Adams, McHone's mother, were:"He didn't mean to do it; don't hurt him." Kenneth Rose, one of McHone's attorneys, said that he plans to use that statement to ask for a new trial. He said that he hopes to file a motion in the next week. Easley is expected to consider the petition for clemency and issue a decision before the scheduled execution Nov. 11. He has considered 22 petitions since taking office in 2001, and he has granted 2. Easley's office declined to comment on McHone's case. "The governor's gathering information, and he's listening to everyone," said Sherri Johnson, a spokeswoman for Easley. (source: Winston-Salem Journal) *************** A life or death matter----House committee will study N.C.'s use of death penalty House Speaker Jim Black has made good on his vow to create a study committee to explore ways to assure accuracy and fairness in death penalty cases. It's a rational and welcome response to a series of reports over several years that show North Carolina's administration of the death penalty has been grievously flawed. No one has established that the state has mistakenly executed innocent people. Nor does the existence of administrative flaws dictate that that the death penalty should be abolished. But failure to study the issue amounts to condoning a system that in the past has rewarded prosecutorial misconduct, overlooked the ineptitude of poorly prepared defense lawyers and allowed prosecutors wide latitude in deciding whether to pursue the death penalty. The result? Alan Gell of Bertie County spent years on death row for a crime he couldn't have committed. Darryl Hunt of Forsyth County was convicted twice in a rape and murder case before DNA evidence exonerated him and led prosecutors to the right man nearly two decades after the crime. Defendants in some counties are likely to be executed for crimes that in other counties are punished by a prison sentence. How long will it be before we learn that this erratic system has led to the execution of an innocent person? These are among the questions that vex even supporters of the death penalty. They are the kinds of questions that Rep. Joe Hackney, D-Orange, and other legislators want examined. They supported a bill Rep. Hackney drew up to put a 2-year moratorium on executions as the state studies its use of capital punishment. Opponents have kept that bill bottled up by pointing out the study didn't require a moratorium. So last week, Speaker Black named Rep. Hackney and Rep. Beverly Earle, D-Mecklenburg, to cochair the House Select Study Committee on Capital Punishment. It will meet over the next 7 months and report to the 2006 legislature. "I'm a strong supporter of the death penalty, but we must examine our judicial system to ensure that the guilty are punished as they should be and the innocent are not," Speaker Black said in naming the committee. The 20-member panel includes liberals and conservatives and Republicans as well as Democrats. They include Reps. Pete Cunningham, D-Mecklenburg, and Doug Vinson, R-Mecklenburg. Among other topics, the group will study adequacy of defense lawyers, the conduct of prosecutors, adequacy of judicial review procedures and the influence, if any, of the defendant's and victim's race in death penalty cases. Polls have shown most North Carolinians support the death penalty for the worst crimes -- but they also want to make sure the death penalty is imposed at the completion of a thorough, fair process. This timely study should help the state achieve that goal. (source: Charlotte Observer) IDAHO: Fain not bitter after Death Row release Spending almost two decades on Idaho death row for a murder he didn't commit was "a blessing," Charles Fain said Tuesday. "It was the best thing that ever happened to me ... it changed my life for the better," Fain told a Boise City Club audience. In an interview Tuesday, Fain said it was his embrace of the Christian faith five days after he was arrested for the murder of 9-year-old Daralyn Johnson in 1982 that got him through the ordeal. Fain was cleared of the charges when DNA tests in 2001 revealed he wasn't the killer. Fain said he is not bitter toward the police, prosecutors or former friends whose testimony helped convict him. "I learned how to deal with anger and frustration. ... God took it away," Fain said. "We used to have Bible sessions through the air vents with some of the other (death row inmates). It really changed my life." No other arrests have been made in Daralyn's killing. Canyon County Prosecutor Dave Young said in 2001 that investigators would continue the search for her killer. The state released Fain in 2001 with nothing more than a pair of jeans and a shirt that prison guards pooled their money to buy, defense lawyer D. Fredrick Hoopes said. Since then, Fain has lived a simple life. He rents a modest room in a trailer in south Boise that he shares with 2 other men. He puts together boxes for Dixon Container. He restores a 1966 Ford in his spare time and goes to church 4 days a week. What did he miss most in prison? Fishing. "I'm going to Cascade tomorrow," he said. "I love going fishing." The former sanitation worker was convicted in 1983 for the kidnapping, sexual assault and drowning of the 9-year-old girl from Nampa two years before. Several hairs from the attacker were found on the girl. Detectives asked Fain for a hair sample shortly after he moved into the girl's neighborhood, months after the killing. Fain protested his innocence, but the hair became the key evidence against Fain. An FBI agent told a jury that Fain's hair appeared to match the hair found on the girl. Fain was found guilty of 1st-degree murder and was sent to death row Feb. 17, 1984. Hoopes began representing Fain during his appeals, and pushed for DNA testing of the hair. After years of legal battles, DNA test results in 2001 proved conclusively that the hairs on Daralyn's socks and underwear were not from Fain. U.S. District Judge B. Lynn Winmill set aside Fain's conviction on July 6, 2001. After 17 years on Death Row, Fain was freed in August 2001. He has never spoken to Johnson's family. "I haven't had any contact with them, but if they approached me, I would be happy to talk to them," he said. Did Fain learn any lessons in prison? "Know your constitutional rights," Fain said. "I just thought (police) were going to take my hair and that would be it. ... I didn't have any idea what was happening." Fain still corresponds with some of his former death row mates, who he said consider him "a hero" for getting out. Fain spoke little during Tuesday's City Club forum. Most of the discussion involved Winmill and Hoopes. Winmill, appointed to the federal bench in 1995, said he is not against the death penalty, but would like to see stricter legal rules limiting the cases that prosecutors can pursue as death-penalty cases. Winmill said trying death-penalty cases and their lengthy appeals is costly to counties and states; research indicates that 60 % of the American public doesn't believe the death penalty is a deterrent, and political motives can lead prosecutors and other elected officials to pursue the death penalty when the facts might not support the ultimate punishment. Hoopes wants the death penalty abolished, citing cases like Fain's where innocent people were almost executed for crimes they did not commit. Death-penalty decisions are made by "fallible people," and errors are always possible. "It's not worth it," Hoopes said. Fain, however, said he supports the death penalty. "I believe in it because it's in the Bible ... there is no blank check" for someone who commits rape or murder. Fain said he met one man in prison who had killed at least eight people. "If the crime is bad enough," said Fain, "then the death penalty is right." (source: Idaho Statesman) MARYLAND: High court hears Maryland Miranda case A case with potentially broad ramifications for the treatment of suspects who invoke their Miranda rights went to the U.S. Supreme Court yesterday, where justices peppered lawyers from both sides with questions about whether and how a Miranda violation may be remedied. On one side is Leeander Jerome Blake, who, at the age of 17 was arrested on suspicion of murder and told Annapolis police he did not want to talk without an attorney present. After bringing Blake his charging documents, which erroneously listed "death" as a possible sentence for the underage suspect, Officer Curtis Reese asked him, "I bet you want to talk now, huh?" Detective William Johns immediately and loudly told Reese that Blake had already declined to talk. But a half-hour later, Blake asked the detective if he could still speak to police, then made several statements about the alleged crime. On the other side is the state of Maryland, which is asking the Supreme Court to overturn a pretrial ruling that Blakes statements are inadmissible. Kathryn Grill Graeff, chief of the Office of the Attorney Generals criminal appeals division, argued yesterday for Maryland, urging the court not to take away a suspects "choice" to change his mind after invoking his Miranda rights. Johns immediately cured the impropriety created by Reese, meaning the statement that Blake later initiated was lawful, she argued. The justices seemed to struggle with that argument, with Justice Ruth Bader Ginsburg asking what a reasonable person in Blakes situation would have done. Graeff responded that because of Johns statement, reportedly said loudly enough for Blake to hear, Blake knew that police would not question him further. Not allowing police to remedy a violation would pose a "high cost to the truth-seeking function of a trial," she said. Induced or voluntary? Justices Anthony M. Kennedy and David Hackett Souter both said Graeff needed to address whether Blakes post-Miranda request to talk constituted a "voluntary initiation." "What we're trying to get at is if there is going to be an initiation on the suspects part, does it have to be voluntary?" Souter asked. He said that if Blake's statements did not constitute a "voluntary initiation, or an initiation at all, it seems to me you lose." He also suggested that Graeff was focusing only on Blake's "magic words" - that he wanted to speak to police - and ignoring the surrounding circumstances. Justice Stephen G. Breyer said if only one minute passed between Reese's words and Blake's decision to speak, his statement would be seen as clearly induced by the improper comments. There should be no difference just because Blake waited a half-hour, he said. "We don't think the passage of 29 minutes makes a difference," he said. James A. Feldman, assistant to the U.S. Solicitor General, argued in support of Marylands position. The justices also discussed the possibility (apparently raised by Anne Arundel County Circuit Judge Pamela L. North in granting the pretrial motion to suppress), that Johns and Reese had been playing a game of "good cop/bad cop," intentionally trying to induce Blake to speak. While North's ruling was reversed on appeal, it was later reinstated by the states highest court, triggering the petition for Supreme Court review. Curing the taint At issue is the interpretation of the Supreme Courts 1981 decision in Edwards v. Arizona, in which the court held inadmissible a suspect's statements made to police when they asked him to talk after he had already invoked Miranda. Kenneth Ravenell argued the case for Blake, trying to persuade the court that a Miranda-related impropriety cannot be cured, but even if it can, Johns words did not do the trick. The justices did not appear to accept the idea that a police violation can never be remedied, with the liberal Justice John Paul Stevens calling that position "extreme." The justices prompted Ravenell to tell them how he felt such a mistake could be fixed. "What would it take to remove the taint?" Ginsburg asked. The only way to remedy the situation would be to "put [the] suspect back in [the] position he was in," Ravenell said. "The best way to cure it is to give him counsel." Kennedy told Ravenell he needed to come up with another answer. The attorney said Johns should have clearly told Blake that Reese's words were improper, that he did not face the death penalty and that police would honor his right to keep silent. That answer prompted Chief Justice John G. Roberts to point out that Ravenells suggestion would have involved Johns talking directly to a defendant who did not want to talk, possibly making the situation worse. "I couldn't disagree more," Ravenell said, arguing that once police had violated Blakes rights, they needed to correct the damage. They should have told him, "you are not facing the death penalty, young 17-year-old sitting in a cell in your underwear," Ravenell said. Justice Antonin Scalia said he did not see what Blake's age or state of undress had to do with Edwards, which he said is purely about police badgering. 'Cold legalese' Asked after the arguments about the courts line of questioning, Graeff said only that she thought it was "vigorous." Both she and Ravenell said they could not predict where the court will come down. Blake and his then-19-year-old neighbor, Terrence Tolbert, were arrested in 2002 in the Annapolis carjacking murder of Straughan Lee Griffin, 51. In addition to its potential impact on Miranda, the case is a high-stakes one in its own right. Due to a state law that was changed in response to this case, if the state loses before the Supreme Court, Maryland may not try Blake with or without his statement - a fact Ravenell urged the court not to take into account when it renders a decision. Griffin's mother and sister attended yesterday's arguments and, in comments afterward to reporters, said watching the arguments had been hard. Griffins sister, Linda, said she was especially struck by the "cold legalese" used by the lawyers and the justices, pointing out that her brother's name was never mentioned. Tolbert was convicted last year of 1st-degree murder and is serving a sentence of life plus 30 years. (source: The Daily Record) OHIO: Is Ohio About to Execute the Wrong Man? National Experts to Present Compelling New Developments in John Spirko Case Contact: Edwin Colfax of the Center on Wrongful Convictions at Northwestern University School of Law, 773-829-2913, Elizabeth Lash of the Criminal Law Society at OSU Moritz College of Law, 914-391-9365 John Spirko is scheduled to be executed on November 15 despite evidence so weak that a federal appeals judge said the prosecution rests "on a foundation of sand." National experts and attorneys in the case will present urgent new developments including efforts to secure DNA testing that could definitively corroborate evidence of alternative suspects as Governor Bob Taft weighs Spirko's request for executive clemency. Prof. Daniel Kobil, a nationally known expert on executive clemency will discuss the various options open to the Governor and provide valuable background on the role of clemency in the state constitution. The event is open to the public. WHEN: Wednesday, November 2nd, 1 p.m. WHERE: Saxbe Auditorium, OSU Moritz College of Law (Drinko Hall), 55 West 12th Avenue, Columbus, OH Speakers include: -- Prof. Daniel Kobil, Professor of Law, Capital University School of Law. Prof. Kobil is a national expert on executive clemency. -- Bill Latham, Investigator of the Wyandot County, OH Prosecutor's Office. Latham discovered credible evidence pointing toward alternative suspects and away from Spirko. Just days ago a polygraph examination of a key witness corroborated this evidence. -- Prof. Steven Drizin, Legal Director of the Center on Wrongful Convictions at the Northwestern University School of Law. Prof. Drizin is a national expert on interrogations and wrongful convictions. -- Rob Warden, Executive Director of the Center on Wrongful Convictions. Warden is a founding member of the Center and has uncovered numerous wrongful convictions as an investigative journalist. -- Alvin Dunn, Pillsbury Winthrop Shaw Pittman, Washington, DC. Dunn is one of the attorneys for John Spirko. (source: U.S. Newswire) ************** Ohio Mother Gets Death Penalty For Killing Son A jury returned a unanimous decision to sentence Nicole Diar to death. She is convicted of killing her 4-year-old son. Diar could become the 2nd woman on Ohio's death row. A Lorain County jury found her guilty of killing her son and then setting her house on fire to hide the crime. Officials said she drugged Jacob with codeine, then strangled him as he slept in his bedroom in August 2003. The jury found Diar guilty on all 10 charges against her, including aggravated murder, aggravated arson and tampering with evidence. That same jury met Tuesday and today to begin the sentencing phase. Diar's attorney, John Pyle, argued to the jury in the trial's mitigation phase that Nicole Diar was burned herself as a 4-year-old. He said the woman's emotional problems should receive treatment. When Diar was 4 years old, she was severely burned after her brother set fire to her nightgown with a lighter. Earlier WEWS reports indicated Diar was out for a night on the town, drinking and singing into a karaoke machine. Diar claims she didn't do it. (source: Ohio News Network) ************************ Parole board won't consider death row inmate's case for 3rd time The Ohio Parole Board on Wednesday turned down an inmate's request to reconsider two recommendations that Gov. Bob Taft should not stop his execution for the slaying of a northwest Ohio postal worker. John Spirko, who is scheduled to die by injection Nov. 15, had asked that the board take into account a recent a lie detector test from a house painter who implicated another man in the 1982 stabbing of Betty Jane Mottinger, 48, of Elgin. The house painter, John Willier, last week repeated his 1997 statement accusing his former boss on a painting crew as the real killer and passed a lie-detector test paid for by Northwestern University law professors who investigate claims of wrongful capital convictions, defense attorney Thomas Hill said. The former boss is in a Louisiana prison. Mottinger's body was found in a paint-splattered tarp. Spirko, 59, has said he is innocent of the killing. Authorities say he described details only someone at the scene of the crime could know. The parole board recommended Oct. 19 that Taft deny clemency after a rare 2nd hearing on Spirko's case. The vote in both recommendations was 6-3. (source: Associated Press) ********************** Couple crusades for inmate rights Staughton and Alice Lynd read through the stack of mail they receive each day, searching for opportunities to win small victories for Ohio's inmates. At their small ranch house in this Youngstown suburb, hundreds of files are piled in the spare bedrooms, the basement and the garage. Staughton Lynd studies them with a single-minded purpose: to overturn convictions of death row inmates and force authorities to treat thousands of other prisoners with the respect he says they deserve. The Lynds have earned significant victories in recent years, including one involving how inmates are selected to be sent to the Ohio State Penitentiary, the state's toughest prison. They also increased the accountability of guards who handle fights and riots. But the couple, approaching their 80s, are far from satisfied. "There's very little rehabilitation anymore," Staughton Lynd said. "Do you think it is good for someone to sit in a cell for years and then be dumped on the street? Do you think it's good for us?" The Lynds' critics applaud their unrelenting passion but say the couple often refuse to listen to any side except the inmates'. "They definitely have their own agenda. It's for the inmates," said Daniel Hogan, who has prosecuted two death row cases that the couple have fought. The Lynds' work is an extension of what they have done for more than 50 years, pushing for civil rights, workers' values and peace. "They are incredibly persistent," said Jules Lobel, a law professor at the University of Pittsburgh who has worked with the Lynds on several cases. "They have the inmates' emotional and physical needs at heart." The Lynds prayed with death row inmate George Skatzes last month on the day the state executed Willie Williams of Youngstown, the 18th inmate put to death since the state began resumed executions in 1999. "If you look up the meaning of 'aggravated murder' in state law, it describes a premeditated killing," Staughton Lynd said. "That's exactly what a state execution is, a premeditated killing." Skatzes told the couple of the emotional pain in watching men about to be executed meet with their families for the last time. With Skatzes, the couple have fought against conditions in the $85 million supermax prison in Youngstown, where prisoners are held in isolation 23 hours a day in cells the size of Volkswagens. Skatzes was convicted with others in the slaying of guard Robert Vallandingham during the 1993 riot at the Southern Ohio Correctional Facility in Lucasville, during which 9 inmates also were killed. In his book, "Lucasville: The Untold Story of a Prison Uprising," Lynd said prosecutors botched the cases of Skatzes and 4 others by making sweetheart deals with gang leaders and killers to become informants. Prosecutors scoffed. "There was never an attempt at balance in that book," said Hogan, who prosecuted Skatzes and Jason Robb, another inmate leader. "That's clear from the outset." The American Civil Liberties Union, the Lynds and other volunteer attorneys sued the state over the prison in 2001. A year later, a federal judge ripped prison officials in an opinion in which he ruled that the state sent men to the supermax without explaining why or providing the opportunity to appeal. "We can do better," Staughton Lynd said. "We have to do better. Remember, most of these people are going to come out one day." (source: Cleveland Plain Dealer)
