Oct. 23
USA:
Guantanamo defense: No war crimes if no war
A U.S. military war tribunal is weighing a question that might seem better
suited for a history class than a courtroom: How long has the United States
been at war?
The question is more than academic for Abd al-Rahim al-Nashiri, whose lawyers
are appearing before the tribunal this week at the U.S. base in Guantanamo,
Cuba, to seek the dismissal of war crimes charges that were approved by a
Pentagon-appointed legal official.
Al-Nashiri faces trial in a special tribunal for war-time offenses known as a
military commission for allegedly orchestrating the bombing of the USS Cole in
Yemen in 2000 as well as attacks on 2 other ships. But his lawyers say that
since the U.S. wasn't at war at that time, the 47-year-old shouldn't be tried
at Guantanamo.
"The fact of going to war is a decision by the political branches, either
Congress or the president or both," attorney Richard Kammen said Monday. "It's
not something to be arrived at retroactively by a bureaucrat who is not
appointed by Congress because it has huge consequences."
Al-Nashiri's lawyers say that the U.S. wasn't at war until after the Sept. 11,
2001, attacks and then-President George W. Bush did not certify the existence
of hostilities of any kind in Yemen until September 2003.
The motion for dismissal is one of 21 matters set for consideration at a
hearing that started Tuesday at the base, where the U.S. holds 166 prisoners,
most of whom have not been charged with any crime. The hearing is scheduled to
run through Thursday but officials were trying to condense the agenda because
of the approach of Tropical Storm Sandy, which was heading north in the
Caribbean Sea on a track to reach southeastern Cuba on Thursday.
Al-Nashiri refused to attend the hearing, telling a legal official at the
prison that he was boycotting to protest the use of belly chains to move him
from his cell to court.
The chief prosecutor, Army Gen. Mark Martins, argued that he should be required
to attend at least so that he can be questioned about his motivations in open
court in case the matter is ever reviewed in later appeals. The judge, Army
Col. James Pohl, has previously said al-Nashiri can waive his right to attend
pretrial hearing, as he did last week in the Sept. 11 case.
Lawyers for al-Nashiri have said he opposes restraints that remind him of the
harsh treatment he endured previously in U.S. custody as well as because he
feels the proceedings are pointless since the government could detain him
indefinitely even if he were acquitted.
"If he is acquitted he does life without parole in Guantanamo. If he's
convicted he gets life without parole or death in Guantanamo," Kammen said.
"It's very easy to see somebody saying 'Why do I want to participate in this?
I've got no real stake in the outcome.'"
Other items on this week's agenda include whether the U.S. government should
turn over information about a man killed in a drone strike in Yemen in 2002 who
was identified in some media reports as the mastermind of the Cole attack.
"If he was killed based on the fact that he was the mastermind behind the USS
Cole that's relevant," said Navy Lt. Cmdr. Stephen Reyes, his military lawyer.
Al-Nashiri, who was born in Saudi Arabia to a Yemeni father and a Saudi mother,
has been held at Guantanamo since September 2006. An allegedly senior member of
al-Qaida, he was held for four years in the CIA's secret network of overseas
prisons, where he was subjected to the "enhanced" interrogation program that
included at least two instances of the simulated drowning technique known as
waterboarding. The government has said he was also threatened with a gun and a
power drill because interrogators believed he was withholding information about
possible attacks against the U.S.
In November, he was arraigned on charges that include terrorism and murder for
the attack on the Cole, which killed 17 sailors and wounded 37, as well as for
orchestrating the October 2002 bombing of the French tanker MV Limburg, which
killed one crewman, and a failed January 2000 plot on the USS The Sullivans. He
could get the death penalty at a trial that his lawyers say is at least a year
away.
In making the case for the military tribunal, prosecutors lay out the history
of what they see as al-Qaida's escalating war against the U.S., starting with
an August 1996 declaration by Osama bin Laden calling for the murder of U.S.
personnel serving on the Arabian peninsula, though it wasn't until a week after
the Sept. 11, 2001, terrorist attacks that Congress and Bush approved an
authorization for military force.
Al-Nashiri's lawyers say that former President Bill Clinton repeatedly noted
that the country was at peace in the aftermath of the Cole attack.
A group of retired admirals and generals who served as senior military legal
officials called for the military charges to be dismissed and for the case to
be shifted to a civilian criminal court. In a brief in October as part of a
civil challenge to the case, they also argued that the definition of war was
being improperly expanded to include non-war offenses in the al-Nashiri case,
and that such a use of the military courts could put U.S. soldiers and citizens
in jeopardy in the future if other countries did the same thing to them.
"If countries can retroactively decide we were at war and chuck people from the
civilian court systems into prisoner of war systems with the attendant lack of
protections, that road runs both ways," Kammen said. "Once you get to go back
in time and rewrite history that's a very, very dangerous precedent."
Prosecutors say in court papers that it will be up to the jury to decide
whether the war crimes were properly filed in this case, and that it's too
early for the judge to rule on the question.The judge is not expected to issue
an immediate ruling on the motion.
(source: Associated Press)
OHIO:
Albert Fine in Lorain jail, may face death penalty
Albert Fine may face the death penalty for the slaying of Catherine "Kat"
Hoholski, his attorney said following Fine's initial court appearance on
aggravated murder and kidnapping charges Monday in Lorain Municipal Court.
Dan Wightman, Fine's court-appointed attorney, said he is still learning the
details of the allegations against his client, but based on the charges of
aggravated murder and kidnapping Fine already faces, he believes a grand jury
could indict him with a death specification.
Fine, 30, was returned to Lorain County on Friday from Kentucky, where he has
been held since his arrest in a Lowe's parking lot on Aug. 9, a day after
Hoholski's decomposing body was found in a storage unit at the Lorain apartment
the couple shared.
Fine, who had fought extradition from Kentucky, is being held without bond in
the Lorain County Jail, where he is under suicide watch at the request of
Lorain police, Lorain County Sheriff???s Lt. Mike Crum said.
Lorain police Lt. Mark Carpentiere said the request was made because similar
precautions had been taken by Kentucky authorities based on comments Fine made
after his arrest.
Crum said Fine will be held in solitary confinement at least until a prison
mental health expert has had a chance to evaluate him.
According to Lorain police, Fine confessed to strangling Hoholski during a
confrontation on June 28 in their apartment and then using her cell phone to
make it appear as if she were still alive.
Fine told police that he believed Hoholski, with whom he had a child, had been
cheating on him. During his confession, he reportedly told police that he first
bound and gagged Hoholski after choking her.
When she broke free of the sex toy handcuffs he had used to bind her wrists and
began struggling, Fine told police he strangled her. After he returned from
cleaning blood off himself, he told officers Hoholski, whose mother reported
her missing on July 12, was dead.
Police reported finding blood still in the apartment, although they noted the
bathtub and sink had been "extensively cleaned."
Hoholski's body was discovered Aug. 8 following weeks of complaints by
residents of the Villas of Beau Monde apartments about an odor in the area.
Fine is due back in Lorain Municipal Court on Oct. 31 for a preliminary
hearing.
(source: The Chronicle-Telegram)
**********************
Anthony Sowell's lawyers appeal death sentence, blaming original defense
attorneys for a botched case
3 new attorneys for convicted killer Anthony Sowell filed an appeal Monday with
the Ohio Supreme Court blaming his previous attorneys for a botched strategy
which incurred the death penalty.
The 242-page appeal, filed by Cleveland public defenders Robert Tobik and Erika
Cunliffe, and Toledo attorney Jeffrey Gamso, does not deny that Sowell was
guilty of the aggravated murders of 11 women at his home on Imperial Avenue on
the city's East Side.
A jury found him guilty last year of the murders and numerous counts of
kidnapping and abuse of a corpse, and recommended the death penalty. Sowell's
lawyer's are appealing his death sentence.
The appeal states, "Anthony Sowell was going to be found guilty. That was a
given. On the properly admissible evidence that the state would present at
trial, there was no other plausible result."
What the appeal said was left to question was whether the sentence would be
death, or life without the possibility of parole.
The appeal said Sowell's original defenders - who were Rufus Sims and John
Parker - should have been fighting to save Sowell's life instead of questioning
the way the crime scene was processed and the integrity of the DNA tests.
"The case should have been focused on how to convince the jury that the
mitigating evidence was sufficiently compelling that the aggravated
circumstances did not outweigh it. In many ways, Mr. Sowell's trial counsel
were the chief saboteurs."
Sowell's new attorneys also wrote that Sims and Parker aggressively undertook
an unwinnable campaign to convince jurors they should doubt the prosecution's
vastly overwhelming case.
"Counsel's strategy was not just ill-chosen...it was irrational," the appeal
stated.
The remainder of the appeal lists dozens of court cases to support the argument
that Sowell's defense attorneys failed in their job.
Calls to Tobik and Cunliffe were not returned, and Gamso could not be located.
A call to the Cuyahoga County Prosecutor's Office was also not returned.
(source: The Plain Dealer)
US MILITARY:
U.S. court-martial delayed for Fort Hood shooting suspect
The court-martial of Fort Hood massacre suspect Major Nidal Hasan was postponed
indefinitely on Monday by the top appellate court in the U.S. armed forces.
Hasan, 42, is charged with 13 counts of 1st-degree murder in connection with
the shooting rampage at the U.S. Army post in Texas in November 2009. He faces
the possibility of the death penalty if convicted.
Ads by GoogleThe U.S. Court of Appeals for the Armed Forces, in a one-page
order, said the court martial will be delayed indefinitely, "pending further
review of the court."
The order came after Hasan's lawyers told the court they plan to appeal last
week's ruling by the U.S. Army Court of Criminal Appeals that the judge at
Hasan's court martial may order him to shave his beard and that Hasan may be
forcibly shaved if he refuses.
The delay is a victory for Hasan, who had requested and was refused a
continuance of his court-martial in June. But since then, Hasan has grown a
full beard, in violation of U.S. Army regulations, and the question of whether
he can keep the beard is winding its way through the courts.
Hasan had argued that he grew the beard to show his Muslim faith and requiring
him to shave it amounted to religious discrimination.
Monday's ruling is certain to push the start of the court martial past the 3rd
anniversary of the shooting on November 5.
"A speedy trial is definitely not what's taking place," said Kimberly Munley, 1
of 32 people wounded in the shooting spree.
"These delays have not allowed us to have any sort of closure whatsoever."
Munley and the others who were wounded in the incident, along with relatives of
those who were killed, last week began an effort to get the Pentagon to declare
the massacre an act of terrorism rather than an incident of workplace violence.
Survivors say the change could help them get extra compensation and benefits.
(source: Reuters)
OREGON:
Oregon Supreme Court to hear Haugen case appeal
The Oregon Supreme Court has agreed to hear Gov. John Kitzhaber's appeal of
Gary Haugen's refusal to accept a reprieve of a death sentence.
Oral arguments are scheduled at 10:30 a.m. March 14 at the University of Oregon
law school. The court normally hears arguments annually at each of the state's
3 law schools.
The justices will hear arguments on a single point: Whether someone such as
Haugen must accept a reprieve offered by the governor under the Oregon
Constitution for it to be effective.
Kitzhaber issued the reprieve on Nov. 22, 2011, 2 weeks before Haugen was
scheduled to be executed at the Oregon State Penitentiary. Haugen had waived
further legal appeals, and has said he wants to die.
Haugen sued Kitzhaber, arguing that he had a right to refuse a reprieve, unlike
a pardon or commutation. A judge agreed with him Aug. 3, and set the execution
back on track.
However, a 2nd date for an execution cannot proceed in Marion County Circuit
Court until the current civil lawsuit is concluded. The Supreme Court hearing
will bypass the Court of Appeals.
Assistant Attorney General Tim Sylwester will represent the governor, and
Portland lawyer Harrison Latto will represent Haugen. Because it is an
appellate proceeding, Haugen would not be present, as he was for a hearing in
Marion County Circuit Court on July 24.
Both sides had requested that the high court accept the case.
Haugen, now 50, was serving a life sentence for a 1981 conviction for the
murder of his former girlfriend's mother. While in prison, he murdered another
inmate in 2003, and was convicted of aggravated murder in 2007.
Aggravated murder is the only crime punishable under Oregon's death penalty,
which voters reinstated in 1984. Only 2 men have been executed since then,
during Kitzhaber's 1st term in 1996 and 1997, and both had waived appeals.
(source: Statesman Journal)
COLORADO:
Charges pursued in 1991 killing; Escaped inmates allegedly kidnapped Colorado
man, then shot him along U.S. 56
21 years after 22-year-old Denver paramedic Timothy Wayne Keeling was found
shot to death along U.S. 56 between Springer and Clayton, the murder case
against his accused killers is finally getting started.
Prosecution was not pursued in 1991 when the crime occurred because the alleged
killer and his accomplice - both prison escapees from Oklahoma in 1991 - were
captured, soon after the New Mexico murder, in Kentucky and convicted in the
killing of a man there, putting one of the defendants on death row and the
other serving a life sentence.
But with Keeling's former wife still seeking justice, Eighth Judicial District
Attorney Donald Gallegos initiated the case earlier this year. A Clayton grand
jury in April indicted Michael Dale St. Clair and Dennis Gene Reese. St. Clair
was indicted for 1st-degree murder, kidnapping and robbery. Reese was indicted
as an accessory to each of those crimes.
The 2 men now sit in jail in Clayton, awaiting their next court hearing. St.
Clair waived his Oct. 15 District Court arraignment while Reese was arraigned
Oct. 3. Both men are being held without bond.
"This was a crime that happened in my district," Gallegos, who was not district
attorney when the 1991 crime took place, said of restarting the case more than
2 decades after the crime. "For the sake of the victim, for the sake of the
family, for the sake of justice, it had to be addressed."
Keeling's body was found near U.S. 56 about 57 miles east of Springer the
evening of Sept. 27, 1991. He had 2 gunshot wounds, one to the neck and another
to the back. Investigators at the time believed Keeling may have picked up
whoever had later shot him. After learning that the suspects may have been the
prison escapees, authorities also learned St. Clair and Reese were wanted for
several murders in Oklahoma.
For now the 2 men have been shipped to New Mexico to face charges in Keeling's
murder, but St. Clair remains on death row in Kentucky and Reese is serving a
life sentence in Oklahoma.
It was Reese who cooperated with authorities following Keeling's murder,
telling a story of how he and St. Clair had kidnapped Keeling and then, at some
point later, while driving Keeling's pickup, pulled off the side of the road in
northeast New Mexico. Reese told investigators St. Clair and Keeling got out of
the pickup and Reese heard a gunshot, then Keeling yelled, and then there was a
2nd shot.
St. Clair and Reese later ditched the pickup in Kentucky, setting the truck on
fire. It was found less than 2 weeks after Keeling's murder.
St. Clair could face the death penalty in New Mexico. The state has replaced
the death sentence option with a sentence of life without parole, but the death
sentence still is a possibility in murders committed before July 1, 2009, prior
to the sentencing change taking effect.
(source: The Raton Range)
KENTUCKY:
Death penalty in question after new evidence in death of Lexington man
The question of whether the death penalty is an option for 2 men accused in a
2010 murder and robbery was unresolved Monday, a week before their month-long
trial was scheduled to start.
Daniel Gadson, 30, and Elzandrae Warren, 29, both face capital murder charges
in the death of Daryl Delano Carter, 25, but Fayette Circuit Court Judge
Kimberly Bunnell indicated at a status hearing Monday the death penalty could
be removed as a sentencing option because of evidentiary issues that arose last
week.
Defense attorneys said at the hearing that a packet of documents provided by
prosecutors Friday contains evidence that is exculpatory to Gadson and Warren.
They said the documents should have been turned over early last year, when the
suspects were indicted, rather than 10 days before the lengthy trial.
Assistant Commonwealth's Attorney Brad Bryant said the documents were withheld
by a mistake caused by a communications breakdown between police and
prosecutors. He said prosecutors only recently had learned of the documents
while investigating discrepancies in cell phone records that were to be used in
the case.
"It's purely my fault. It was an oversight by me," Bryant said."So is the
penalty that I take death off the table?" Bunnell asked him.
"I believe that is an extreme sanction for unintentional conduct," he replied.
"But that is certainly within the court's discretion."
The documents, compiled by police detectives and forensics investigators,
contain memos, notes and measurements that describe the crime scene at 243
Hedgewood Court, attorneys said. It was the 1st time defense attorneys have had
a cohesive description of the scene.
The file also contains evidence that Ira Robinson, the prosecutor's star
witness who survived having his throat cut, may have lied during sworn
testimony, defense attorneys charged.
"His credibility, since their entire case hinges on it, is crippled," said Tom
Griffiths, an attorney for Warren. "The information in these pages, if fully
developed by our defense team and our experts, will help prove that Ira
Robinson is lying. I can't imagine anything more exculpatory."
Defense attorneys were mixed on how they should proceed. They agreed it will
take time and money they don't have to review the new evidence with the help of
crime scene investigators and experts.
Attorneys for Warren said they could be prepared for trial next week, but not a
capital murder trial, which requires extra steps such as enhanced jury
screening.
"If death was excluded from this case, we would no longer need to work on those
components and we could focus all of our energy on the new evidence in this
case," Griffiths said.Attorneys for Gadson said they didn't think they would be
prepared for trial by next week regardless of whether the death penalty was
removed.
Attorneys for a 3rd suspect, Montrevell Lewis, said they couldn't say one way
or another how the evidence might affect their case. Lewis is not eligible for
the death penalty because he was 16 when the slaying occurred. He faces a
maximum of life in prison with the possibility of parole after 25 years.
Police have said Gadson, Warren and Lewis entered Robinson's townhome in
Lexington's Woodhill neighborhood and tied up Robinson and Carter, his friend.
The trio was accused of fatally shooting Carter and cutting Robinson's throat,
then shooting him in the leg as he tried to escape.
Prosecutors have said the motive was robbery, which is an aggravating
circumstance under Kentucky law that can elevate a murder case, with a maximum
penalty of life in prison, to a capital murder case, in which the death penalty
is possible.
Bunnell and the attorneys did not make a decision Monday whether the trial will
be postponed or the death penalty will be stricken. The judge scheduled another
hearing Tuesday afternoon to try to reach a resolution in the case.
(source: Kentucky.com)
_______________________________________________
DeathPenalty mailing list
DeathPenalty@lists.washlaw.edu
http://lists.washlaw.edu/mailman/listinfo/deathpenalty
Search the Archives: http://www.mail-archive.com/deathpenalty@lists.washlaw.edu/
~~~~~~~~~~~~~~~~~~~~~~~~~~~
A free service of WashLaw
http://washlaw.edu
(785)670.1088
~~~~~~~~~~~~~~~~~~~~~~~~~~~
