[Deathpenalty] death penalty news----FLA., CONN., OHIO, ALA., CALIF.

[Rick Halperin]

Oct. 3


FLORIDA:

Brevard death penalty trial about to wrap


Defense attorneys said they expect to wrap up testimony Thursday in the
James Darrell Lewis death penalty trial.

Lewis, 37, was already serving two life sentences for a November 1999
slaying when he pleaded guilty last year to 1st-degree murder and robbery
in connection with the April 14, 1999, beating death of Donald Kirby, a
man whom he lived near in a homeless camp in Rockledge.

Prosecutors contend Lewis -- convicted in 2003 for the robbery and beating
death of an elderly man for drug money -- deserves to die for the killing,
but Lewis lawyers say Lewis was mentally incapacitated at the time of
Kirby's killing.

He has since found religion and sought closure by confessing to the
killing, they said.

At the conclusion of testimony, 12 jurors must decide whether to recommend
a death or life sentence for Lewis. Circuit Judge Lisa Davidson will give
the recommendation great weight before issuing a final ruling.

(source: Florida Today)






CONNECTICUT:

Shooter won't testify in WL murders, faces death penalty prosecution

Admitted killer Jose "Joey" Guzman was expected to be one of the state's
star witnesses in a triple murder trial, but he instead refused to honor a
plea deal and now faces his own death penalty prosecution.

Guzman, 26, had agreed to testify how his cousin, Michael Castillo, 23,
drove him to and from B&B Automotive in Windsor Locks on July 30, 2003
where Guzman shot to death 3 men.

In exchange for his testimony, Guzman -who pleaded guilty to 2 counts of
capital felony in June 2005 - was to get a life prison sentence.

But when called to the witness stand Monday, Guzman told Hartford Superior
Court Judge Joseph Q. Koletsky he wasn't ready to testify against
Castillo.

Prosecutors Dennis J. O'Connor and Robin Krawczyk agreed to give Guzman
another day to reconsider his reluctance.

Late Tuesday afternoon, with the jury out, a handcuffed and shackled
Guzman was recalled to the stand. O'Connor asked Guzman if he was prepared
to testify.

"No, sir," Guzman said, with his lawyers, Sarah Bernstein and Michael
Courtney, looking on.

Koletsky asked Guzman if he understood that his refusal to honor his plea
agreement meant the state is now free to withdraw its offer and seek the
death penalty.

He understood, Guzman said, before being led away under heavy security.

Krawczyk has said she and O'Connor do intend to seek the death penalty for
Guzman, a former Springfield resident who was arrested in Florida some six
months after the killings.

When he accepted his plea deal two years ago, Guzman admitted that he
forced one of the shop's co-owners, Robert J. Stears, back into the garage
at gunpoint. Guzman then ordered Stears, his fellow co-owner Barry Rossi,
43, and their mechanic Lorne R. Stevens, 38, to lie on the garage floor
and shot each man in the head.

Guzman received $5,000 for the murders: police say another man, Benedetto
Cipriani, 52, was having an affair with Stears' wife and wanted him dead
because she wouldn't leave her husband.

Castillo, who is accused of being the driver and of accepting $2,000
payment from Guzman, is charged with 2 counts of capital felony, 3 counts
of murder, and single count of conspiracy to commit murder.

Krawczyk and O'Connor aren't seeking the death penalty for Castillo.
However, the only other penalty for a capital conviction is life in prison
without release.

Guzman's testimony was expected to be a highlight of the trial, which
began last week. And even though jurors won't hear directly from him, the
panel of 7 women and 4 men have heard from other witnesses that he was the
shooter and Castillo his driver.

A third co-defendant, Guzman's cousin, Erik Martinez, 24, told jurors last
week that he bought the gun used in the killings, and that Guzman met with
Cipriani. Castillo acted as Guzman's chauffeur, Martinez testified, and
accepted $1,000 from Guzman after the killings for his role.

Martinez accepted a plea deal in July 2006 and was convicted of three
counts of murder; he is to be sentenced to 25 to 40 years behind bars if
he continues to cooperate with authorities in the prosecution of his
co-defendants.

Jurors also have heard from 2 state police detectives, who testified that
Castillo confessed to driving Guzman and to taking a share of the payoff.

On Tuesday, Martinez's former girlfriend, Jennifer L. Cruz, told jurors
that she and Martinez were in Martinez's apartment on the afternoon of the
killings.

Castillo and Guzman left together, she said, then returned after 5:30 p.m.

Castillo was "excited" when they got back to the apartment, Cruz said, and
woke Martinez, who had been napping.

The 1st words out of Castillo's mouth, Cruz said, was "We did it."

"He said, 'Yo! We did it! We did it!'" Cruz testified. "He was excited."
Castillo told them how he'd driven to B&B and "scoped the place out," Cruz
said.

Cruz said Castillo and Guzman told her and Martinez that they'd
encountered Stears in his pickup truck as he drove down B&B's long
driveway.

Castillo said they stopped the truck, Cruz testified, and then Guzman said
he pulled out his gun and marched Stears back to the garage.

Once inside the garage, Guzman told her and Martinez, he ordered all 3 men
to get on the floor, Cruz said, and then shot them to death.

Cruz also testified that she overheard Guzman make a phone call -
authorities say it was to Cipriani - in which he told the person, "It's
done."

Jurors heard Tuesday from several phone company representatives. They said
there were 2 calls made from Castillo's cell phone on the day of the
murders, including one made at 5:38 p.m., some 20 minutes after police say
the men were shot.

Cipriani was returned from Italy this year, where he fled four days after
the killings. He is to enter formal pleas Friday to 3 counts of murder and
a single count of conspiracy to commit murder.

With Guzman's refusal to testify, the state will withdraw its plea offer
and try him on capital felony charges.

O'Connor, the senior prosecutor, has tried numerous capital cases,
including killers Daniel Webb and Jessie Campbell III.

Campbell was sentenced to death in August for killing two women outside a
Hartford apartment in August 2000; Webb was sentenced to death in 1991 for
kidnapping and murdering a bank executive in Hartford.

(source: Journal Inquirer)






OHIO:

5m bail thwarts Richey's bid for freedom


KENNY Richey, the Scot who has spent the last 20 years on death row in the
United States, was back behind bars last night after a judge set his bail
at $10 million (5 million), effectively thwarting his latest bid for
freedom.

Watched by relatives of the two-year-old girl he is accused of killing 21
years ago, who wore T-shirts and badges bearing pictures of the child, the
43-year-old Scot appeared in the same Ohio court where he was sentenced to
death in 1987, as his lawyer called for him to be granted bail while
awaiting a retrial. But Gary Lammers, the prosecutor for Putnam County in
Ohio, successfully urged the judge to set bail high, pricing out the
penniless Richey.

"Pretty good day," Richey, who was made to wear a high-voltage "stun belt"
under his clothes to prevent any escape attempt, said sarcastically as he
was led from court to be driven back to jail.

Richey was moved off death row at Mansfield Correctional Institution in
Ohio last month, after federal judges overturned his conviction for the
1986 murder of Cynthia Collins, and moved 95 miles to Putnam County Jail
in the town of Ottawa. His new trial is expected to take place early next
year.

But Judge Alan Travis was told by prosecutors yesterday of threatening
comments made by Richey over the years which could be considered to make
him a potential risk to witnesses. Among these are comments he wrote to a
friend while in custody in 1986, prior to his original trial, when he
stated: "When I get out, I won't stop hunting them all down until everyone
who is involved in this case is dead."

Richey's father James, brother Steven, and ex-wife Wendy have offered
their homes in the US as collateral to help Richey make bail, but the
joint value of the properties is only half of the 10 per cent of the bail
needed to gain his release.

They insist he did not set the fire that killed Cynthia Collins at her
home in Columbus Grove, Ohio, and would not harm anyone if he were to be
freed.

James Richey said: "I've seen Kenny in jail twice this last week, that's
the 1st time since 2001. I've not touched him in 22 years. I'll have to
wait a little longer."

(source: The Scotsman)






ALABAMA:

Judge Resigns Amid Probe of Possible Judicial and Sexual Improprieties


An Alabama judge once considered for a prominent federal appointment has
resigned amid investigations of possible judicial and sexual
improprieties, including allegations that he spanked male inmates in a
private courthouse room.

The resignation of Circuit Judge Herman Thomas ends what was once viewed
as one of Alabama's most promising legal careers, although his legal
problems continue.

"We do have a criminal investigation going on," Mobile County District
Attorney John Tyson said after Thomas' resignation Monday.

Thomas had been suspended with pay since March when a state judicial panel
filed the first of a series of charges accusing him of unduly helping
relatives and friends with their legal troubles and taking cases away from
other judges -- without permission -- to change the defendants' legal
status or reduce sentences.

Thomas resigned shortly before 5 p.m. Monday, which was the deadline for
judicial prosecutors to file any additional charges before his Oct. 29
trial.

His resignation probably means there will be no trial before the Alabama
Court of the Judiciary because the harshest punishment it can hand down is
removal from office -- an action that last happened in 2003 when Alabama's
Ten Commandments judge, Chief Justice Roy Moore, got kicked out of office.

"While I do not believe that I ever intentionally violated any canon of
judicial ethics, I recognize that the controversy surrounding me has been
disruptive and unproductive for the life of this community," Thomas said
in a resignation statement.

After the ethics charges were filed against Thomas, allegations arose that
he had removed several male inmates from the Mobile jail and taken them to
a private room in the courthouse, where he spanked them.

The president of the local NAACP chapter accused investigators of coercing
inmates to make allegations against Thomas, who is black.

Also, a 6-year-old lawsuit surfaced in which an inmate accused the judge
of offering to provide help with inmates' cases in return for sexual
favors.

"Judge Thomas categorically denies all of that," defense attorney Dave
Boyd said.

Judicial prosecutors did not file any additional charges Monday involving
the allegations of spankings or the inmate's lawsuit, which was dismissed
by one of Thomas' fellow judges shortly after it was filed.

Tyson, the district attorney in Mobile, said his investigation is separate
from the judicial ethics probe, and he had been unaware of the inmate's
suit until recently. "That lawsuit is now part of our investigation,"
Tyson said.

Thomas, 46, grew up in Mobile and returned home after law school at
Florida State University to become an assistant district attorney. He
became a district judge in 1990, with the pledge, "I will be a judge the
judges of the 13th Judicial Circuit, my family and friends, and all
citizens will be proud of."

Thomas' distinctive bow ties helped him stand out in the county
courthouse, and in 1999, he became a circuit judge.

2 years before that, some of Alabama's top Democrats recommended President
Clinton appoint Thomas as the 1st black federal judge in south Alabama.
The background check on Thomas dragged on for months and Clinton never
made a formal nomination.

One of Thomas' earliest advocates was Joe Reed, chairman of the black wing
of the Alabama Democratic Party. Reed said Thomas ran into opposition from
some leaders within the American Bar Association, but there were no
allegations of improprieties back then. Reed said he hated to see what had
happened to Thomas' career.

"It's so unfortunate for him," he said Tuesday.

(source: Associated Press)



CALIFORNIA:

Lawyers' Notes Become Ethics Test in Case Before Calif. Supreme Court


The concept of an attorney accidentally obtaining an opposing lawyer's
pretrial notes and using them for his own tactical advantage seemed to
leave the justices of the California Supreme Court with a bad taste in
their mouths on Tuesday.

Especially when an attorney for El Segundo, Calif., lawyer Raymond Johnson
argued that having access to an opponent's work product provides a
surprise factor that lets an attorney test or impeach an expert witness'
testimony.

"So the surprise factor is more important than the integrity of the
court?" Chief Justice Ronald George asked. "Why not invoke the assistance
of the court?" he went on, to determine whether such notes are
confidential work product that can't be used or if they're nonprivileged
material that the lucky attorney has the duty to use on his client's
behalf?

Some legal pundits have said the decision in Rico v. Mitsubishi Motors
Corp., S123808, could represent the court's most important legal ethics
ruling in years.

The underlying dispute in the Rico case began in 2002 on the eve of a
product liability trial involving a rollover crash of a Mitsubishi Montero
sport utility vehicle that resulted in the death of 11-year-old Denise
Rico and the partial paralysis of her 18-year-old sister, Serene. At the
conclusion of a pretrial deposition, Johnson, who represented the family,
discovered he had possession of opponent James Yukevich's notes concerning
a meeting between Yukevich, who represented Mitsubishi, and some of his
expert witnesses. Johnson photocopied the 12-page document.

How Johnson got the notes is in dispute. Johnson claims a court reporter
handed him the document after the deposition, but Yukevich, a partner in
Los Angeles' Yukevich & Sonnett, insists Johnson took them from a
briefcase he left in the deposition room for a short time.

Los Angeles County Superior Court Judge Ben Kayashima ruled that Johnson
got the briefs "inadvertently." But he nonetheless disqualified Johnson
and his entire legal team from the case after finding that Johnson had
breached his ethical duties by surreptitiously using another attorney's
confidential work product. He also said the document was protected by the
attorney-client privilege.

Los Angeles' 2nd District Court of Appeal affirmed that decision in 2004.

On Tuesday, Sherman Oaks, Calif., attorney Norman Pine, a partner in Pine
& Pine, argued that his client, Johnson, was only following the dictates
of Aerojet-General Corp. v. Transport Indemnity Insurance Co., 18
Cal.App.4th 996. In that 1993 case, San Francisco's 1st District ruled
that when an attorney accidentally gets his hands on an opposing lawyer's
nonprivileged documents, he is duty-bound to use that information to help
his client.

Pine said Johnson viewed the document he got at the 2002 deposition and
determined it wasn't privileged. He said Johnson believed it to be the
notes of Yukevich's experts and not of Yukevich himself. Pine said Johnson
later used the information during deposition to attack Yukevich's
witnesses when they seemed to contradict themselves.

Under questioning from the justices, Pine conceded that lawyers have an
obligation to contact an opponent if they come into possession of a
document that could be the opponent's work product. But if they believe
the document exposes a crime, such as perjury, they don't need to make
contact, he added.

George asked whether that exception gives one the right "to exploit" the
situation by using the documents "without telling the other side."

Justice Kathryn Mickle Werdegar seemed skeptical of Pine's position when
she questioned whether an expert's change of mind can actually be
considered perjury. "That's something someone can anticipate?" she asked
Pine.

Justice Carol Corrigan piled on by asking Pine about a hypothetical
situation -- if a discrepancy between the notes Johnson found and the
experts' later testimony during deposition turned out to be nothing more
than "an honest mistake." Attorneys, she said, could attempt to claim
perjury simply if the change of testimony hurts their case.

Mitsubishi's lawyer, Yukevich, pointed to another case -- State
Compensation Insurance Fund v. WPS Inc., 70 Cal.App.4th 644 -- that he
believes is controlling. In that 1999 case, Los Angeles' 2nd District held
that lawyers who obtain what appears to be an opponent's documents should
examine them just enough to determine whether they are confidential or
not. If they are privileged papers, the court held, the attorney who has
them must notify his opponent.

The ruling also calls on trial courts to assist in determining what can be
used and what is truly confidential.

Yukevich said that's what should have happened when Johnson found the
notes. "Attorneys' notes should be what they are -- privileged," he argued
Tuesday. "We need to be able to do the things we do and not worry about
dropping a document from a briefcase and have someone come and pick it up
and use it."

Despite strict court rules on noise in the courtroom, there was light
applause from students in attendance when Yukevich made that statement.
Tuesday's arguments were held in the auditorium of the Sonoma Country Day
School as part of the high court's 7-year-old program to take arguments on
the road so students can see how the court operates.

Earlier, Justice Marvin Baxter had asked Yukevich what an attorney should
do if he finds a document that is clearly labeled as attorney work
product. "Does attorney 'B' have the right to go beyond the title," he
asked, "read the 12-page document, and then determine its privilege?"

Yukevich said no, that as soon as an attorney sees that label, he should
stop immediately and call his opponent.

Several hundred students watched the morning session in the school's
auditorium, while thousands more saw the arguments on the California
Channel.

(source: The Recorder)