Dec. 11
TEXAS:
Death Watch----2 death row cases go before courts
Although the state's execution chamber will remain dark until Jan. 16, 2014,
the mechanics of justice continued to turn last week, with key hearings in 2
death penalty cases in 2 different appellate courts.
First, on the morning of Dec. 4, the Texas Court of Criminal Appeals heard
arguments in an appeal brought by Montgomery County prosecutors seeking to bar
death row inmate Larry Swearingen from being allowed to test for DNA several
pieces of physical evidence that to date have not been scientifically vetted.
Swearingen was sentenced to die for the kidnapping and murder of 19-year-old
Melissa Trotter, a community college student who disappeared Dec. 8, 1998.
Swearingen was seen with Trotter not long before she disappeared. He was picked
up by police on outstanding warrants several days after she went missing and
was jailed; her body did not turn up until Jan. 2, 1999, when hunters found her
in the Sam Houston National Forest. She had been strangled with a length of
pantyhose, and there is considerable controversy regarding how long she had
been dead at that time.
Although there is no direct physical evidence linking Swearingen to her murder,
the state points to a raft of circumstantial evidence that they say
conclusively affirms his guilt - including a 2nd length of pantyhose that was
found inside his home after he was arrested. According to a state forensic
examiner who conducted a visual comparison, the 2 lengths came from a single
pair of hose, thus connecting Swearingen to the murder weapon. Because neither
piece of hosiery has ever been tested for DNA, the results could provide
definitive proof of Swearingen's guilt or innocence, Jason Kreag, an attorney
with the Innocence Project, argued before the CCA. Prosecutors argue instead
for a reversal of a court decision granting the DNA request. (For more on the
oral arguments, see "Swearingen to CCA: Please Test Evidence.")
Meanwhile, another Innocence Project attorney, Bryce Benjet, was in New Orleans
the afternoon of Dec. 4, arguing before a 3-judge panel of the Fifth U.S.
Circuit Court of Appeals that it should allow Rodney Reed to once again appeal
his case to the federal district court. At issue is whether Reed was denied
effective counsel that could have helped him show that he is not responsible
for the murder of 19-year-old Stacey Stites, whose body was found off a country
road in Bastrop in 1996. There was DNA inside her that officials later
determined belonged to Reed. According to the state, Reed was walking along the
road in the early morning hours, when he somehow managed to attack Stites, who
was driving by in a pickup truck, then raped and strangled her with a length of
braided belt, before leaving her body on the side of the road. He then drove
into Bastrop and parked the truck near his parents' house, leaving a length of
the belt on the ground outside the driver's door. Although no other physical
evidence tied Reed to the crime, the state has said there was none needed
because the DNA was the "Cinderella's slipper" of the case.
Reed has denied the murder, but maintains that at the time of her death he was
involved in an illicit affair with Stites, who was engaged to a Giddings police
officer, Jimmy Fennell, currently serving prison time for the kidnapping and
sexual assault of a woman while on duty. Reed maintains that Fennell was a far
more likely suspect.
Reed's trial attorneys failed to bring any real evidence to back Reed's
assertion that he and Stites were having an affair, or to bolster his argument
that the 2 last had sex some 24 hours or more before her murder. Importantly,
they did nothing to counter the medical testimony of former Travis County
Medical Examiner Roberto Bayardo, who testified that the sex had to have
happened contemporaneous to the murder because Reed's sperm would not have been
found in Stites' body if she'd showered between the time they had sex and when
she went to work. Bayardo has since agreed with other medical experts that he
was wrong and that sperm can survive for days after intercourse.
At issue now for the Fifth Circuit is whether Reed should be allowed to have
his claim of ineffective assistance heard by the federal district court. The
claim had been barred, but should now be considered given a recent Supreme
Court ruling on ineffective counsel, Benjet argues. For Reed, no one challenged
the forensic link between the sperm and time of death until the federal appeal
process had begun. That "temporal link" between the sperm, time of death, and
Reed is "the heart of the state's case," Benjet argued, and could have
established reasonable doubt had it been properly challenged at trial.
(source: Austin Chronicle)
****
Death Penalty Upheld In Fort Worth Slaying
The state's highest criminal court has upheld the murder conviction and death
sentence given to a Fort Worth man for a 2010 convenience store holdup that
left 2 men dead.
The Texas Court of Criminal Appeals on Wednesday rejected what attorneys for
38-year-old Kwame Rockwell said were 21 errors at his Tarrant County trial last
year. The appeal included claims that evidence was both improperly admitted and
insufficient to convict him and send him to death row, that some jurors
improperly were excused and some arguments made by prosecutors in closing
statements were improper.
A 22-year-old store clerk, Daniel Rojas, and a 70-year-old bread deliveryman,
Jerry Burnett, were fatally shot.
Rockwell was arrested 4 days later in San Antonio after trying to flee from
police.
***************
New penalty trial for man on death row since 1986
An El Paso man convicted and sent to death row for the slayings of 2 women
almost 30 years ago has won a new punishment trial.
The Texas Court of Criminal Appeals on Wednesday agreed with a trial judge's
findings that Angel Galvan Rivera had poor legal help at his 1986 trial in El
Paso.
Rivera's appeals lawyers argued his trial attorneys didn't properly investigate
Rivera's background or present evidence that could have convinced jurors to
decide on a sentence other than death.
The former cook was 27 when 62-year-old Iona Dikes and 82-year-old Julia
Fleenor were found strangled at their El Paso home in October 1984. The house
had been set on fire. Evidence also showed they both had been raped.
(source for both: Associated Press)
TENNESSEE:
Should Execution Drugs Be a State Secret?
Whether you are for or against the death penalty, there's something about the
lack of transparency in Tennessee's process that stinks.
Quite simply, if the state is going to be entrusted with the power to end a
human life, it should do so in a way that doesn't inspire more questions than
answers.
For example, where are the drugs that Tennessee executioners use coming from?
In recent years, drugs in six states (including this one) were seized when it
was found that they had been illegally imported from other countries.
Deborah Fisher has a great piece about this on the Tennessee Coalition for Open
Government's site:
States have sought to keep their new suppliers secret, reasoning that the
companies might be harassed or otherwise influenced to shut off supplies if the
public became aware of them.
Tennessee added an exemption in the Tennessee Open Records Act eight months ago
in April to exempt from disclosure "an entity" directly involved in an
execution.
Previously, the law allowed only for the names of people directly involved -
such as those on the execution team - to be kept confidential.
The updated law explains that the entity could be one "involved in the
procurement or provision of chemicals, equipment, supplies and other items for
use in carrying out a sentence of death..."
The Tennessean reported in October that the Department of Correction had been
waiting, in part, to get the confidentiality law in place before establishing
its new lethal injection protocol that uses pentobarbital, common in animal
euthanasia.
If the new 1-drug protocol had been announced before the law change, it's
conceivable that a citizen might have requested information under the state's
open records act to successfully discover the drug supplier.
There is currently litigation over state secrecy laws in Arizona and Missouri
working through the federal court system now.
If you are a death penalty supporter, laws like the one Tennessee enacted have
the potential to introduce further delays into an already lengthy execution
process. If you are a death penalty opponent, the state's statute raises the
specter that drugs never intended for human application - or are expressly
forbidden from being used in executions by their manufacturer - will be used to
end lives, but we will never know because Tennessee is keeping it secret.
And as citizens, any time the state government mandates something be kept
secret, we should be skeptical, if not alarmed.
(Full disclosure: I sit on the TCOG board)
(source: Steve Cavendish, Nashville Scene)
KANSAS:
Kansas Supreme Court to hear Carr death penalty appeals
The Carr brothers were convicted of felony murder in the December 11, 2000
death of Ann Walenta, and capital murder in the deaths of Jason Befort, Brad
Heyka, Heather Muller and Aaron Sander that happened several days later.
The Kansas Supreme Court is set to hear death penalty appeals next week for
Jonathan Carr and Reginald Carr, Jr., convicted of several murders in Wichita
that happened 13 years ago.
The Carr brothers killed five people in Wichita during a week-long crime spree
in December of 2000. In 2002, they were convicted of five murders and the
attempted murder of a sixth victim, and sentenced to death.
Several days after they killed their 1st victim, they forced their way into a
Wichita home with 5 people inside. They forced 3 men and 2 women to engage in
sex with each other, then made them withdraw money from ATMs. They were then
shot in the back of the head as they knelt side-by-side on a snow-covered
soccer field. One of them survived.
Next Tuesday, the Kansas Supreme Court will hold oral arguments for Reginald
Carr that morning and Jonathan Carr in the afternoon.
Both men are challenging their convictions and death penalty sentences.
Specifically, each is challenging the court's denial of their motion to change
venue, motion to try them separately, sufficiency of evidence supporting
numerous convictions, the validity of the court's instructions to the jury
during the guilt and penalty phases and the constitutionality of the state's
death penalty law.
Both men were convicted of the following crimes:
-1 count of felony murder
-4 counts of capital murder
-1 count of attempted 1st degree murder
-5 counts of aggravated kidnapping
-Multiple counts of aggravated robbery
-1 count of aggravated burglary
-13 counts of rape
-3 counts of aggravated criminal sodomy
-7 counts of attempted rape
-1 count of burglary
-1 count of theft
-1 count of cruelty to animals
Reginald Carr was also convicted of 3 counts of unlawful possession of a
firearm.
(source: KAKE news)
************
Court: Kan. death sentence shouldn't be thrown out
The Supreme Court says a lower court should not have overturned the conviction
and death sentence of a man who admitted killing a Kansas sheriff.
The high court Wednesday unanimously overturned the Kansas Supreme Court's
decision to throw out Scott Cheever's death sentence for the 2005 fatal
shooting of Greenwood County Sheriff Matt Samuels.
The Kansas court said Cheever's rights against self-incrimination were violated
by prosecutors who used a court-ordered mental evaluation from a different
trial against him.
Cheever's own expert argued that methamphetamine use had damaged his brain.
Justice Sonia Sotomayor said that because Cheever's side raised the brain
damage issue, prosecutors were entitled to use testimony from the mental health
expert from the other trial. That expert said Cheever killed because of an
anti-social personality, not because of brain damage.
(source: St. Louis Post-Dispatch)
MISSOURI----impending execution
Missouri waits on Supreme Court as it preps for execution
The state of Missouri waited for the U.S. Supreme Court to rule Wednesday on
whether it could execute death row inmate Allen Nicklasson, condemned for the
killing of a Good Samaritan who stopped to help him and 2 friends who were
stranded on the side of the road.
The Supreme Court was expected to announce its decision Wednesday morning. The
execution could be carried out at the state prison in Bonne Terre at any time
Wednesday, according to Missouri statute.
Nicklasson, 41, had been scheduled to die by injection at 12:01 a.m. Wednesday
for the 1994 murder of businessman Richard Drummond, who was shot to death
after he stopped to help when a car carrying Nicklasson and 2 others stalled in
central Missouri.
A 3-judge panel of the 8th U.S. Circuit Court of Appeals issued a stay Tuesday
over concerns about Nicklasson's legal representation. When the full appeals
court refused to take up the case on Tuesday, Missouri Attorney General Chris
Koster appealed to the U.S. Supreme Court.
"In the last nineteen years, Nicklasson has filed appeals or challenges to his
convictions numerous times, in 5 different courts," Koster wrote in the appeal
to the high court. "The time for enforcement of Missouri's criminal judgment
against Allen L. Nicklasson is long, long overdue."
Nicklasson's attorney, Jennifer Herndon, also appealed to the Missouri Supreme
Court and Gov. Jay Nixon to stop the execution but there were no signs that
Nixon planned to intervene.
Nicklasson, Dennis Skillicorn and Tim DeGraffenreid were returning to Kansas
City after buying drugs in St. Louis in August 1994 when their car broke down
on I-70 near Kingdom City, Mo. When Drummond stopped to help, the men forced
the 47-year-old Excelsior Springs businessman to drive west, then exit and head
to a secluded area, where Nicklasson shot him twice in the head.
Nicklasson and Skillicorn then stole Drummond's car and drove to Arizona. When
the vehicle broke down in the desert, they approached the home of Joseph and
Charlene Babcock. Joseph Babcock was killed by Nicklasson after driving the men
back to their vehicle, and Charlene Babcock was killed at the couple's home.
Both men were sentenced to life in prison for the Arizona killings. Both were
sentenced to death in Missouri. Skillicorn was executed in 2009.
DeGraffenreid pleaded guilty to 2nd-degree murder and did not receive a death
sentence.
(source: KMOV news)
COLORADO:
Defense accuses prosecutors of lying in Montour death penalty case
Defense attorneys for convicted killer Edward Montour are accusing prosecutors
of lying to a judge and are asking a court to toss out the death penalty as his
punishment for killing a corrections officer.
In August, Montour pleaded not guilty by reason of insanity in the 2002 killing
of officer Eric Autobee. The 1st-degree murder case was sent back to square one
in April, after District Court Judge Richard Caschette allowed Montour to
withdraw his guilty plea.
The 46-year-old is scheduled to appear in Douglas County District Court on
Wednesday. In a motion filed on Dec. 3, Montour's attorneys accuse prosecutors
of violating a court order and lying to the judge.
Following his plea of not guilty by reason of insanity, Montour was sent to the
Colorado Mental Health Institute at Pueblo for a court-ordered mental health
evaluation. The judge ordered that hospital staff notify defense attorneys no
later than 7 days prior to any evaluation or examination.
But on Sept. 27, the hospital sent both defense attorneys and prosecutors a
note alerting them that, because of an "internal communication problem," a
doctor had performed tests on Montour without first notifying attorneys,
according to a motion filed by defense attorneys on Sept. 30.
In the motion filed on Dec. 3, defense attorneys argue that prosecutors
violated a "no contact" order from Caschette, prohibiting both Montour's
attorneys and prosecutors from communicating with staff at the hospital.
On Nov. 22, defense counsel argues, Senior Deputy District Attorney David Jones
emailed Tanya Smith, an attorney at the Colorado Attorney General's office -
which represents the state hospital - and advised her the issue was going to be
heard at an upcoming hearing.
When Smith arrived at a Nov. 26 hearing, Montour's attorney, David Lane,
inquired how Smith was made aware of the issue. Jones told the judge that he
did not have any contact with Smith, according to the motion.
But after the hearing, Smith notified the judge that Jones emailed her on Nov.
25 and informed her that motions concerning the hospital might be addressed.
Jones email to Smith was included in the defense motion.
Montour's attorneys say the misconduct by prosecutors is so severe that, at the
very least, the judge should barr the death penalty as a potential punishment.
Eighteenth Judicial District Attorney George Brauchler announced in April that
he will seek a second death sentence for Montour. Brauchler's office is also
seeking the death penalty for James Holmes, who is accused in last summer's
attack at an Aurora movie theater.
Montour pleaded guilty in 2003 to killing Autobee. A judge sentenced him to
death, but the Colorado Supreme Court later overturned the sentence, saying
only a jury can impose a death sentence.
Montour was serving a life sentence for killing his infant daughter when he
beat Autobee to death in the kitchen at the prison in Limon in 1997. The case
is set to go to trial in January. The trial is scheduled to last four months.
(source: Denver Post)
CALIFORNIA:
The Death Penalty is a "Penalty"
An effort to bring back a functioning death sentence for certain capitol crimes
may find its way on next November's ballot. Law enforcement officials around
the state are considering supporting a ballot initiative to streamline death
sentence appeals and find an execution method acceptable to the courts.
Many death row inmates wait decades before their sentence is carried out - if,
indeed, it is carried out at all. Many die of natural causes in prison.
Victim's families often complain that under the current death penalty law
justice is denied.
Executions stopped in 2006 in California when a court ruled that the current
method of lethal injection was not proper.
California voters had a chance to do away with the death penalty in the
November 2012 election. They refused, defeating Proposition 34, the anti-death
penalty measure, by 52% to 48%.
If the law enforcement officials behind the new effort succeed in making the
ballot, the argument facing the voters will be reversed. Instead of seeking a
Yes vote to undo the death penalty as Prop 34 attempted, a Yes vote in this
instance would bring back the death penalty.
The debate over the death penalty usually focuses on the deterrent effect of
the law. There have been studies on both sides of the issue. Studies have
reported that lives would be saved if some killers are put to death. Others
have refuted those studies, claiming the death penalty not only does not
prevent killings but is too costly for governments to maintain.
Changing the current laws, of course, by limiting appeals would address the
cost question.
But the emphasis on deterrent is not the only argument. Focus on the key word:
penalty. Putting aside whether the death penalty serves as a deterrent, the law
is also designed to be the ultimate penalty for committing the ultimate crime -
the horrific act of taking innocent lives. As a penalty for such acts, voters
have stood behind the death penalty law and likely would do so again if they
get a chance in November.
(source: Joel Fox; Editor of Fox & Hounds and President of the Small Business
Action Committee----foxandhoundsdaily.com)
USA:
Judge delays federal death penalty trial of man charged in 2007 Bessemer bank
robbery slayings
The federal trial of a man, who faces a possible death sentence if convicted in
the 2007 slayings of 2 Bessemer bank tellers and the wounding of 2 others
during a robbery, has been delayed.
U.S. District Court Judge David Proctor on Tuesday afternoon issued an order
continuing the trial of William Merriweather Jr. The trial had been scheduled
to start Jan. 13.
Proctor issued the order based on a status conference he had held with
attorneys and prosecutors on Monday regarding a number of motions in the case.
He did not set a new trial date.
But Peggy Sanford, spokeswoman for the U.S. Attorney's Office, said this
morning that prosecutors hope that the jury selection process will begin in
mid-March and that opening statements could begin around April 1.
An attorney representing Merriweather declined comment on the judge's order.
The trial is expected to be lengthy, lasting from weeks to a couple months,
depending on what happens in the case, court officials have said.
It has taken more than 6 years to bring Merriweather to trial, mainly due to
issues about his mental state at the time of the robbery and whether he is
competent to stand trial.
Proctor in 2011 held a week-long hearing to determine Merriweather's competency
to stand trial. Proctor in February of this year issued an order stating
Merriweather was competent to stand trial.
Among the other rulings in Proctor's order on Tuesday, he denied, again, a
defense motion, based on recently discovered psychiatric evaluation material,
to declare Merriweather incompetent to proceed with the trial.
"Based upon newly discovered material received from (the federal prison medical
center at Butner, N.C.), it is apparent that because of what appears to be a
willful failure to comply with the court orders requiring disclosure of certain
material, that the hearing conducted by the court in late July and early August
of 2011 was not a hearing that comports with procedural due process," defense
attorneys had argued in their motion. "The court was not presented with a
complete picture of Mr. Merriweather's mental health, but rather the hearing
was a farce."
Proctor also denied Merriweather's motion to excuse any potential juror in the
jury pool whose views in favor of capital punishment "are such as would prevent
or substantially impair" the consideration of life without the possibility of
parole as a possible sentence. "The motion is currently premature. Such a
motion may be raised on an individual juror-by-juror basis during jury
selection," the judge stated in the order.
But the judge granted a joint motion by defense attorneys and prosecutors to
extend by 1 week the time for the jury selection process and to amend the jury
selection procedure. The judge previously ordered that 300 prospective jurors
would come to the courthouse in three panels - 100 each - to complete the juror
questionnaire. The judge will give the defense team and prosecutors an extra
week during the process to submit a joint list of those potential jurors that
should be excused for hardship reasons or for cause. The process would then
continue with jury selections.
Merriweather is charged in the May 14, 2007 bank robbery and deaths of Eva
Lovelady Hudson and Sheila McWaine Prevo, and with the wounding of Anita Siler
Gordon, Latoya Shaniece Freeman, all tellers at a Wachovia Bank branch in
Bessemer.
According to a trial memorandum filed Dec. 2 by the U.S. Attorneys Office in
the case, here's what prosecutors believed happened that day:
Also in the bank (besides employees) at the time were Central Lighting Services
employees Mario Moore and Angel Sanchez, who were there to work on the bank's
lights.
According to Mr. Moore, moments after he and Mr. Sanchez arrived at the bank,
he noticed a man, later identified as William Merriweather, Jr., wearing a
green baseball-style cap, white shirt, tie, and slacks, walking in the
direction of the bank down an embankment on a dirt path from a wooded area near
a cell tower.
Mr. Moore stated that he held the door open for Merriweather as they walked
inside the branch. Upon entering, Mr. Moore and Mr. Sanchez immediately
proceeded to Myron Gooding's desk to discuss the work they were to perform.
When Merriweather entered the bank, he proceeded in the general direction of
the customer waiting line in front of the teller windows, holding a cell phone
to his ear as though he were engaged in a conversation. Shortly thereafter, and
without saying a word, Merriweather walked up behind Tracey Oliver, brandished
a 9mm pistol, and shot two tellers, Eva Hudson and Sheila Prevo, in the head.
Ms. Prevo died instantly; Ms. Hudson died shortly thereafter due to
exsanguination. Moving steadily to his right, Merriweather eventually got
behind the teller line, grabbed Latoya Freeman, and proceeded down the inside
of the teller line toward the drive-thru window, looking for the vault and
demanding the vault key and money.
Merriweather and Ms. Freeman eventually returned to the teller line, stopping a
few feet from the vault. As Merriweather stood there repeating his demands,
Anita Gordon stood up, produced a set of keys, and attempted to hand them to
him. When she did, Merriweather shot her in the face at point-blank range. He
then turned his gun on Ms. Freeman, who was standing close by with her hands
held in a defensive posture, and fired one shot at her head. The bullet was
deflected when it struck Ms. Freeman in the hand, taking off part of her right
index finger.
Though seriously wounded, both women survived Merriweather's attack. With two
tellers dead and 2 others in immediate need of medical assistance, Merriweather
turned his attention from killing to stealing, as he walked past the teller
windows, grabbing approximately $11,255 in cash and stuffing it inside a
plastic bag.
With the money in hand, Merriweather then attempted to leave the bank. However,
as he approached the front door, Chris Chappell (a bank customer) immediately
confronted him. Mr. Chappell had darted out the door when the shooting began,
and had run to the side of his car, where he removed a pistol from his pocket
and awaited Merriweather's exit. Also waiting for Merriweather to emerge from
the bank were several deputy sheriffs, including Deputies Rhea and Sorenson,
who had just arrived on the scene and taken up covered positions in the parking
lot. Seeing Mr. Chappell and the deputies, the defendant immediately moved away
from the door and returned to the lobby.
He then walked over to the right side of the bank, where he found Myron
Gooding, the manager, crouched down on the floor behind his desk. Merriweather
grabbed Mr. Gooding and forced him to the front door. The two then emerged from
the bank, with Merriweather using Mr. Gooding as a human shield.
Holding his gun to Mr. Gooding's head, Merriweather forced his hostage into the
parking lot, turned left, and began to inch his way down the side of the
building heading in the direction from which he had originally come. After
getting to the northwest corner of the building, the defendant tripped,
allowing Mr. Gooding to separate from him and run away.
Then, as Merriweather attempted to regain his footing, Deputy Rhea fired one
shot, striking the defendant in the leg and groin area and putting him on the
ground. Merriweather was immediately handcuffed and searched. Deputies took
from the defendant's pockets a cell phone, a box cutter, and a large amount of
U.S. currency. The bag containing other money Merriweather had stolen from the
bank was found a short distance from where he fell.
Also recovered in close proximity were other items belonging to the defendant,
including his pistol (which had been kicked several feet away by police), the
green ball cap he had been wearing, a pair of sunglasses, and a tracking device
Merriweather had inadvertently taken from the bank. As the defendant was being
secured, police noticed that Merriweather had wrapped electrical tape around
portions of his shoes."
(source: al.com)
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