April 2
TEXAS----stay of 2 impending executions overturned
Appeals court overturns execution delay
A convicted serial killer is again scheduled for execution on Thursday after a
federal appeals court on Wednesday overturned 1 of 2 rulings by a Houston
federal judge's ruling that blocked the executions of 2 condemned killers.
Earlier Wednesday, U.S. District Judge Vanessa Gilmore ordered the executions
of the condemned men, who argued that the state's failure to disclose details
about the drugs that will be used to kill them violated their constitutional
rights.
Hours later, the 5th U.S. Circuit Court of Appeals overturned Gilmore's
decision ordering prison officials to disclose the names of suppliers of the
drug used in executions, the powerful sedative pentobarbital, among other
details concerning the acquisition and testing of the drugs.
The appeals courts agreed with state attorney general's office that Gilmore's
order was improper and an appeal from the inmates' lawyers was a delay tactic.
The appeals court but back on track the execution on Thursday of Tommy Lynn
Sells.
The execution of Ramiro Hernandez-Llanas is set for next week. The appeals
court said it would take up Hernandez-Llanas' case at a later date.<
The case is now headed to the U.S. Supreme Court.
(source: Houston Chronicle)
*************
Texas executions stayed by federal judge over state's lethal drug source; State
must provide inmates with information about the source of the drugs it will use
to put them to death, judge rules
A federal judge in Houston has stopped 2 imminent Texas executions because
state officials refused to reveal key details about the drugs to be used to put
the inmates to death.
District judge Vanessa Gilmore issued a temporary injunction on Wednesday
ordering Texas to provide the lawyers representing inmates Tommy Sells and
Ramiro Hernandez-Llanas with information about the supplier and quality of a
new batch of pentobarbital, a barbiturate that is to be used in the lethal
injections.
Sells was scheduled to die in the Texas state penitentiary on Thursday, and
Hernandez-Llanas 6 days later. Texas's previous supply of compounded
pentobarbital expired on 1 April, and the state has repeatedly refused to
reveal the source of its new drugs, claiming that secrecy is needed in order to
protect suppliers from threats of violence and intimidation.
Lawyers for the convicted killers argued that Texas's attorney general had
previously ruled on several occasions that such information must be made
public, and also said that failing to provide details about the origin, purity
and efficiency of the drugs harmed the inmates' ability to mount a legal
challenge over the possibility that they could experience an excessively
painful death in violation of their constitutional right not to suffer a "cruel
and unusual" punishment.
In her ruling, Gilmore agreed, and instructed Texas not to execute the men
until it has disclosed to the lawyers "all information regarding the
procurement of the drugs Defendants intend to use to carry out Plaintiffs'
executions, including information about the supplier or suppliers, any testing
that has been conducted, what kind, by whom, and the unredacted results of such
testing."
In recent years an EU-led boycott has made it harder for states to source their
execution drugs of choice, resulting in some states turning to experimental
drugs and procedures to replace the sequence of three substances that was
commonly used before the boycott. In its executions, Texas now employs only
pentobarbital, which is often used to euthanize animals. Last year, it bought a
supply of the drug from a compounding pharmacy in suburban Houston.
Death penalty opponents argue that, because compounding pharmacies are not
subject to federal oversight, there is a risk of impurities and inconsistencies
that could make their products unreliable and cause undue, unconstitutional, of
suffering.
In a court filing, Texas officials argued that prior executions using
pentobarbital have taken place apparently without the inmates enduring obvious
pain and cited a report which says that their latest supply has been "tested by
an independent laboratory and found to be 108% potent and free from
contaminants".
Gilmore noted in her ruling that the state withheld this information until the
last minute.
"Even though the report is dated March 20, 2014, Defendants have delayed the
production of the report until just 2 days before the 1st scheduled execution,"
she wrote. "That copy, however, has been redacted to exclude important
information, presumably including the source of the drugs, who performed the
testing, and where it was performed."
Maurie Levin and Jonathan Ross, attorneys for the two inmates, said in a
statement that the order "honours and reflects the crucial importance of
transparency in the execution process. We hope that the Texas Department of
Criminal Justice will finally decide to comply with the law, and cease
attempting to shroud in secrecy one aspect of their job that, above all others,
should be conducted in the light of day."
(source: The Guardian)
****************
Judge halts execution, cites drug source secrecy
A federal judge on Wednesday stopped the scheduled execution of a serial killer
in Texas, saying justice department officials must disclose information to the
inmate's lawyers about the supplier of a new batch of drugs that would be used
to kill him.
U.S. District Judge Vanessa Gilmore issued a temporary injunction stopping the
lethal injection of Tommy Lynn Sells. He had been set to die Thursday.
State officials have insisted the identity of the supplier must be kept secret
to protect the company from threats of violence.
Attorneys insist the name is needed to verify the quality of the drug and keep
the inmate from unconstitutional pain.
Gilmore had ordered the Texas Department of Criminal Justice to provide to
Sells' attorneys information about the drug procurement, supplier, testing,
what kind and who conducted the testing.
Texas prison officials haven't provided them "with sufficient information,"
Gilmore said in her ruling Wednesday.
It was not immediately certain if lawyers for the state will appeal Gilmore's
ruling.
Since obtaining a new supply of the drug pentobarbital 2 weeks ago, the Texas
Department of Criminal Justice had cited unspecified security concerns in
refusing to disclose the source and other details about the sedative it plans
to use to put inmates to death.
"As a result, the state's secrecy regarding the product to be used for lethal
injection has precluded (the inmates and their attorneys) from evaluating or
challenging the constitutionality of the method of execution," Gilmore wrote
her a 5-page opinion.
Another inmate set to die next week, Ramiro Hernandez-Llanas, also is involved
in the lawsuit.
(source: Associated Press)
********************
Judge bars Texas executions until inmates' lawyers given information on drugs
to be used
Lawyers for 2 men scheduled for execution in the next week in Texas must be
given information on the drugs to be used, a federal judge ruled Wednesday.
U.S. District Judge Vanessa Gilmore's decision blocks the executions of Tommy
Lynn Sells and Ramiro Hernandez-Llanas. Sells, 49, was scheduled to die
Thursday and Hernandez-Llanas next Wednesday.
Sells, who claims to have killed dozens of people, was scheduled to be put to
death Thursday for stabbing Kaylene "Katy" Harris, 13, in Del Rio, Texas, on
Dec. 31, 1999. Hernandez-Llanas, 44, was convicted of the 1997 killing of a
Kerrville rancher who had allowed him to live on his property.
Texas officials said they are likely to appeal the ruling.
Death-penalty states have been scrambling to find execution drugs because many
pharmaceutical companies now refuse to supply them. Texas planned to use
pentobarbitol, a sedative, to kill Sells and Hernandez-Llanas.
Lawsuits have been filed in a number of states by inmates denied information on
the suppliers of death penalty drugs. State officials say they need to protect
the compounding pharmacies they use from threats and potential violence.
(source: United Press International)
CONNECTICUT:
Public Defender: 'I Can't Live' With Death Sentence For Killer
Assistant Public Defender Corrie-Ann Mainville made headlines this past weekend
when she was quoted as saying that the state of Connecticut would have to kill
her before she allows it to execute a convicted murderer whom she says is
mentally ill.
"I will not live another peaceful day in my life until this verdict is
reversed," Mainville said in an email to the Connecticut Post. "The state will
have to kill me before they kill my client. ... The state's vengeance has
overcome the standards of decency and humility of civilization."
On Wednesday, in an interview with the Connecticut Law Tribune, Mainville
expanded on her comments. But she didn't back away from them. "I'm so bothered
by this result. I can't live with it. I won't accept it," Mainville said. "I
literally believe that I'm standing between the lethal injection needle and my
client and they're going to have to go through me to get to him."
Mainville, an assistant public defender for 7 years who does not normally
handle capital cases, said colleagues have rallied to her cause since her
initial comments were published in the Connecticut Post. "I did receive
positive responses and calls of support from fellow attorneys, including Tom
Ullmann, the public defender in New Haven who defended [Cheshire home invasion
killer] Steven Hayes, and other attorneys formerly of the capital defense
unit," Mainville said.
Mainville maintains that her client, Richard Roszkowski, is delusional and not
competent. She said there should have been no death penalty trial for him this
year.
Roszkowski, a former Trumbull resident, was convicted in 2009 of capital felony
and murder for gunning down his 39-year-old ex-girlfriend, Holly Flannery, her
9-year-old daughter, Kylie, and 38-year-old Thomas Gaudet on a Bridgeport
street in broad daylight amid horrified onlookers. Police said Roszkowski
stalked Flannery after she broke up with him and falsely believed she and
Gaudet were romantically involved.
The 2009 jury decided Roszkowski should be put to death, but a judge overturned
the sentence because of an error made during jury instructions and ordered a
new penalty phase. A jury recommended the death penalty 2 weeks ago after
hearing testimony that Roszkowski was mentally ill, and a judge is expected to
sentence him to lethal injection May 22.
Even though the state legislature has abolished capital punishment, Roszkowski
is eligible for the death penalty because the killings occurred before the
General Assembly acted.
Mainville says Roszkowski has a severe mental illness - paranoid delusion
disorder - and was high on heroin, crack cocaine and other drugs at the time of
the killings. She said Roszkowski never should have been found competent to
stand trial, a claim the prosecutor in the case denies. "He's just so
delusional he gets fixated on issues that have nothing to do with his case,"
she said. Mainville acknoweldged that her client committed "terrible acts," but
that he's "clearly incompetent."
Roszkowski believes he is being poisoned at the prison and won't eat in the
cafeteria. He will only eat sealed food from the commissary, which anonymous
donors have sent him money to buy, Mainville said.
For that reason, the public defender said, he won't focus on the fact that he
is facing lethal injection. Rather, he thinks his lawyers should be spending
their time investigating the alleged poisoning.
Mainville told the Associated Press that it was "unconscionable" that the jury
disregarded testimony by a psychiatrist and psychologist about Roszkowski's
mental illness. The prosecutor, C. Robert Satti Jr., defended the state's
actions. "The state did challenge the evidence from the [defense mental health]
experts and the jury didn't find that they met their burden of proof," he said.
Mainville worries that Roszkowski won't live through the yearslong appeal
process. She said he has had cancer in the past and continues to have rectal
bleeding, but refuses medical treatment, including a colonoscopy, because he
believes it would destroy evidence that prison officials are poisoning him. For
the same reason, she said, Roszkowski stopped taking pain medication; he was
previously shot in the hand hand by a police officer and has nerve damage.
Mainville said Roszkowski has had delusions since he was in his 20s and that
the delusions and drugs are what led him to commit the horrific crime. "I spent
a lot of time with this guy. I see a very damaged individual. I cannot accept
the result," she said. "I'm not going to stop fighting for his life. I will
spend the rest of my life fighting for his life if that's what it takes."
(source: Connecticut Law Tribune)
FLORIDA:
Executions will rise if Scott packs court
As it had done many times before, the Florida Supreme Court last week set aside
a death penalty because the punishment didn't fit the crime.
This time, though, there was an ominous dissent, largely ignored by the media,
challenging the court's authority to do that. There could be many more
executions if the dissent ever becomes the court's majority view.
The defendant in this case, Michael M. Yacob, 28, will spend the rest of his
life in prison without parole. He was 22 when he killed a Jacksonville
convenience store clerk during a robbery.
The court found that Yacob hadn't intended murder and was leaving with the gun
in his pocket when Moussa Maida, the clerk, locked the front door remotely and
sought refuge in the cashier's booth. Yacob panicked.
Other than the robbery itself, there were no other strikes against him. The
court cited its "well-established precedent" that death is usually an excessive
penalty in such cases. 5 justices concurred.
But the dissenters, arch-conservative Justices Charles Canady and Ricky
Polston, contended that a 2002 constitutional amendment deprived the court of
the authority to conduct any such proportionality review.
The amendment, inspired by legislators eager for more executions, obliges
Florida death penalty decisions to conform to those of the U.S. Supreme Court.
And because that court doesn't require proportionality review, say Canady and
Polston, Florida's court is powerless to conduct it.
There has been such a review in the automatic appeal of every death case since
Florida re-enacted capital punishment in 1972. The law requires the court to
consider whether the sentence is appropriate as well as whether the conviction
is legal.
Proportionality review was a key element in the court's own decision, and that
of the U.S. Supreme Court, to uphold the new law. They reasoned that it would
prevent the unchecked biases that had prompted the high court to suspend
capital punishment everywhere.
The U.S. Supreme Court noted with approval that Florida would now review death
sentences "with a maximum of rationality and consistency ..."
However, the court ruled in 1984 that California was not obligated to conduct
proportionality review. It cited other safeguards in the California law,
notably a requirement for unanimous jury death verdicts, which Florida lacks.
The dissent, written by Canady, was cold-blooded. He conceded that Yacob's
sentence was "not proportionate" to similar cases. But he should be executed
anyway.
So much for the fiction that conservative judges aren't activists. The power of
proportional review wasn't an issue in Yacob's case until Canady and Polston
raised it. If that's not activism, nothing is.
As the majority pointed out, proportional review had gone unchallenged by six
elected attorneys general in hundreds of cases during the past 4 decades.
Nothing in the ballot summary for the 2002 amendment mentioned proportionality
review. The emphasis was on preventing the court from outlawing any specific
execution method.
The court's closed-door debate in Yacob's case, judging from the published
opinions, must have been heated.
Justice Jorge Labarga, who will succeed Polston in the rotating chief
justiceship on July 1, was so alarmed by the implications of the dissent that
he wrote separately to rebut it.
Despite the California case, he said, the U.S. Supreme Court has "emphasized
many times that the concept of proportionality is central to the Eighth
Amendment," and that the death penalty "must result, if at all, from
individualized sentencing ...
"As a court, and as individual justices, we are called upon to either affirm or
reverse the most severe penalty that ever can be imposed on a human being,"
Labarga wrote.
He declared that unless the U.S. Supreme Court flatly forbids it, he will
continue to practice proportional review "in every case in which I am called
upon to place my judicial imprimatur on a sentence of death.
"It is my fervent hope," he concluded, "that this court will also continue to
do so as a body."
But that hope could be dashed if Gov. Rick Scott is re-elected. A proposed
constitutional amendment would allow him to pack the court before leaving
office.
Scott's predecessor and current challenger, Charlie Crist, took care to balance
his Supreme Court appointments. He's responsible for Canady and Polston, but
also for Labarga and another moderate, James E. C. Perry.
Nothing about Scott's judicial appointments so far reflects any preference for
balance.
(source: Guest Column; Mmartin Dyckman is a retired associate editor of the St.
Petersburg Times. He lives at Waynesville, N.C. Column courtesy of Context
Florida----Florida Today)
************
Hall v. Florida: Florida's IQ Cutoff Creates Unacceptable Risk of Eighth
Amendment Violations
In 2002, the US Supreme Court held in Atkins v. Virginia that the prohibition
on cruel and unusual punishment contained in the Eighth Amendment to the United
States Constitution forbids the execution of criminal defendants with "mental
retardation" (now usually referred to as "intellectual disability").
But rather than set out an exact process for determining whether an offender
has intellectual disability, the court in Atkins decided to "leave to the
[s]tates the task of developing appropriate ways to enforce the constitutional
restriction." The court noted, however, that existing state statutes already
prohibiting the execution of such defendants "generally conform[ed] to the
clinical definitions" of intellectual disability, which require "significantly
subaverage intellectual functioning" and "significant limitations in adaptive
functioning" that occur before age 18.
The question presented in Hall v. Florida, which was argued before the US
Supreme Court on March 3,2014, is whether Florida's method of identifying
defendants with intellectual disability does not "enforce the constitutional
restriction" guaranteed by Atkins, but instead violates the Eighth Amendment by
allowing the execution of offenders who are in fact disabled.
On its face, Florida's statute defining intellectual disability appears to
conform to the clinical definitions discussed in Atkins: it requires a
defendant to establish (1) significantly subaverage general intellectual
functioning that (2) exists concurrently with deficits in adaptive behavior and
(3) occurred before age 18. But Florida's Supreme Court has held that a
defendant cannot show significantly subaverage general intellectual functioning
unless he scores 70 or below on a standardized IQ test. In other words, if a
defendant scores 71 or above, the Florida courts may not consider any other
evidence of intellectual disability (no matter how compelling) and the
defendant is eligible for execution as a matter of law.
The problem with this approach is that IQ tests are not perfect???like all
standardized tests, they have a margin of error. To account for that margin of
error, the creators of IQ tests calculate what is called a "standard error of
measurement" or "SEM" for the test. The SEM in turn allows the test creators to
calculate a "confidence interval" for the test score. The confidence interval
for commonly used IQ tests is plus or minus 5 points. In practice, this means
that the most that can be inferred from a score of 71 is the ability to state
with 95% confidence that the individual's true IQ is somewhere between 66 and
76.
The consequence of this for Hall is that even if it is acceptable under Atkins
to define "significantly subaverage general intellectual functioning" as an IQ
of 70 or below, a defendant's score on an IQ test does not reveal his true IQ.
When the SEM is considered, a defendant who scores up to 75 could have a true
IQ of 70 or below. Hall is therefore asking the court to hold that if Florida
decides to use IQ test scores as a proxy for intellectual functioning, it must
account for the SEM and allow defendants with scores up to 75 to present
further evidence of intellectual disability.
Hall's position is supported by the professional organizations of psychiatrists
and psychologists that established the clinical definitions of intellectual
disability cited in Atkins. There is universal agreement among those
organizations that an individual who scores up to 75 on an IQ test may be
diagnosed with intellectual disability if there is sufficient evidence that the
individual also has significant limitations in adaptive functioning (a term
referring to life skills such as communication, self-care, and social skills),
and the onset of the disability occurred before age 18. According to this
professional consensus, the way to obtain a valid diagnosis when an individual
scores from 71 to 75 on an IQ test is not to prohibit further inquiry, as
Florida mandates, but to thoroughly evaluate the other evidence.
Florida does not dispute that IQ tests are imperfect, that the creators of IQ
tests intended the scores to be considered with the standard error of
measurement, or that the clinical definitions of intellectual disability allow
for the diagnosis of individuals who score above 70 on an IQ test. At oral
argument, Florida's Solicitor General Allen Winsor conceded that "true IQ is
something that is incapable of being measured" by standardized tests.
Instead, Florida has taken the position that regardless of that professional
consensus, it is entitled under Atkins to establish its own legal definition of
intellectual disability with the express purpose of minimizing the number of
offenders who fall under the Eighth Amendment's protection.
Florida's brief (PDF) opens by challenging the notion that "Florida's
definition of mental retardation" should "yield to medical or clinical
criteria." During oral argument, the Justices repeatedly reminded Winsor that
the only consequence of adopting Hall's approach would be to require Florida
courts to consider additional evidence of intellectual and adaptive functioning
before deciding whether a defendant met the definition of intellectual
disability. When Justice Breyer bluntly asked "what is so terrible" about
allowing consideration of the other factors, Florida's Solicitor General
responded: "What is so terrible about doing it is you would end up increasing
the proportion of people, the number of people who would be eligible for a
mental retardation finding." Later, Winsor stated that an increase in the
number of defendants diagnosed with intellectual disability would be
"inconsistent with Florida's purposes of the death penalty."
Florida's position should be unacceptable to the court. The court held in
Atkins that the recognized justifications for the death penalty???retribution
and deterrence - do not apply to offenders with intellectual disability,
because their "cognitive and behavioral impairments" both make those offenders
"less morally culpable" and "make it less likely that they can process the
information of the possibility of execution as a penalty and, as a result,
control their conduct based upon that information." In other words, if a
defendant is intellectually disabled, Florida has no constitutional interest in
pursuing his execution. Allowing Florida's stated desire to maximize capital
punishment to influence how it decides who is protected by Atkins would
completely distort this holding.
Instead, a state's procedures for enforcing the Eighth Amendment must conform
to the court's "narrowing jurisprudence," which the court recognized in Atkins
"seeks to ensure that only the most deserving of execution are put to death."
Florida's procedure falls far short of this standard. By truncating the inquiry
into a defendant's Atkins claim based solely on an IQ score within the margin
of error, Florida creates an unacceptable risk that offenders with intellectual
disability will be executed in violation of the Eighth Amendment. The court
should use this opportunity to clarify its holding in Atkins and ensure that
the protections of the Eighth Amendment are meaningful nationwide.
(source: Paul M. Smith is a partner in Jenner & Block's Washington, DC office,
where he chairs the firm's Appellate & Supreme Court Practice. Mr. Smith has
argued fifteen Supreme Court cases, including Harris v. Quinn (2014) (First
Amendment and union dues), Brown v. EMA (First Amendment and violent video
games), and Lawrence v. Texas, the landmark gay rights case. Mr. Smith
graduated from Amherst College and Yale Law School and clerked for Supreme
Court Justice Lewis F. Powell Jr. He is a member of the ABA House of Delegates.
He is also a member of, and former Chair of, the Board of the American
Constitution Society and a former Co-Chair of Lambda Legal. In 2010, the
National Law Journal named him one of the 40 Most Influential Lawyers of the
Past Decade. That same year, he received the Thurgood Marshall Award from the
ABA Section of Individual Rights and Responsibilities for work promoting civil
rights and civil liberties . In 2012 he received the D.C. Bar's own Thurgood
Marshall Award. In 2013 he received the Servant of Justice Award at the annual
dinner of the Legal Aid Society of D.C. -- jurist.org)
MISSISSIPPI:
Mississippi death row inmate to get new trial
A new trial has been ordered for Mississippi death row inmate Michelle Byrom,
according to a state Supreme Court opinion issued Monday.
Byrom's capital murder conviction was reversed, and the case has been remanded
to the circuit court for a new trial, the opinion said.
Byrom has been on death row since her 2000 conviction for capital murder. The
57-year-old woman was convicted of being the mastermind of a murder-for-hire
plot to kill her allegedly abusive husband, a killing her son had admitted to
committing in several jailhouse letters and, according to court documents, in
an interview with a court-appointed psychologist.
He recanted when he was put on the stand, according to court records."
The Supreme Court opinion noted that the decision "is extraordinary and
extremely rare in the context of a petition for leave to pursue post-conviction
relief."
(source: Sentinel Source)
ARKANSAS:
Libertarian attorney general candidate wants to abolish death penalty
Libertarian party candidate for attorney general, Aaron Cash, says he believes
the death penalty in Arkansas should be abolished.
Channel 7 News reported Monday that the Democratic candidate and three
Republican candidates want to see executions return to Arkansas, including one
Republican candidate, David Sterling, who wants to see the return of the
electric chair.
Arkansas hasn't executed a prisoner on death row since 2005.
"There is a standard for cruel and unusual punishment. Surely our society has
moved beyond executing citizens," Cash said, "Since 1973 more than 100 people
have been released from death row. How many other innocent people are there? To
me it's not worth the risk"
Cash said he believes the death penalty is often applied in an unfair and
unjust manner.
"People of color are far more likely to be executed, especially if the victim
is white," Cash said.
Cash said if he were attorney general, he would ask there be proposed
legislation to abolish the death penalty.
(source: KATV news)
TENNESSEE:
Jury foreman in Memphis death-penalty case: 'I'll never be the same.'
A group of 12 Shelby County residents, locked in a jury room together for more
than a week, engaged in "deep soul-searching" in a death-penalty case some say
forever altered them.
"People think, 'Oh, they fed you good, you stayed in a hotel, you got off work
without having to take vacation and sick days.' But I'll never be the same, and
I don't think any of us ever will," said the jury foreman, Dominic Desiderio,
43.
Desiderio, the general manager of a commercial landscaping company, and others
described the emotional journey they took to reach 2 verdicts - on guilt and
punishment - for defendant Calvin Rogers, 43.
"The 1st thing I think when I get the summons is, 'Aw, man. Aw, crap, here it
goes,'" Desiderio said Wednesday. "It was much more emotional than I thought it
would be. They're asking you to put someone else's life in your hands."
Prosecutors and defense attorneys finished their case Saturday after four days
of testimony in the 2010 Binghamton robbery and murder of Ameer Althaibani, 21.
The victim was in a car with two cousins when they took a wrong exit and ended
up targets of a robbery by Rogers and his cousin, Scott Lee, 28.
The jury deliberated for about an hour and a half when they hit a snag. A
female juror began to shake and insist that she didn't understand what was
going on.
"That was heart-wrenching to see," Desiderio said.
As foreman, he sent Criminal Court Judge James Beasley Jr. a note and, after
talking to the woman, Beasley sent her home.
The 2 alternates, a woman and Tom Bailey, a business reporter at The Commercial
Appeal, were already at an area hotel gathering their belongings when they were
told to return to court. A number was drawn and Bailey ended up as the 7th man,
joining 5 women to form the final jury.
The foreman in the Rogers case said, "We decided early on we are all different
colors, of different backgrounds, different religions, different mindsets, but
we will all respect each other."
The youngest, Kevin Wilson, a 21-year-old college student studying to be a
pharmacy technician, was initially uneasy being sequestered with 11 "old
people," but grew to think of them as "weird aunts and uncles," and plans on
keeping in touch. "You know, the weird ones are the best."
"They were comfortable when they heard there weren't going to be any phones or
TVs. They said, 'Good, this is going to be like the '70s.' I said, 'The '70s?
I'm a ???90s baby!'"
The foreman said it was an adjustment, losing contact with work, friends, his
wife and his 14-year-old daughter, who finished her final volleyball tournament
without him in the stands.
The break from routine added to the stress of deciding whether to take away
someone's freedom - or life, he said. "I don't think there was one juror who
didn't break down and cry at some point," Desiderio said.
Once the alternate joined the group, the judge told them to start deliberations
anew. The process took 3 days and more than 13 hours before they reached a
unanimous verdict of guilty to 6 charges, including 1st-degree murder.
The initial vote, after returning to the jury room from the courtroom, was
split with about half voting guilty and the rest for acquittal. Then the jurors
went around the table 1 by 1. They talked about "intent" and "criminal
responsibility." Prosecutors convinced the panel that Lee intentionally shot
and killed the victim and that Rogers was criminally responsible for the murder
since he participated in the robbery.
Jurors finally agreed to convict Rogers on 1st-degree murder charges Monday.
Then, as the penalty phase of the trial got underway, jurors learned that
Rogers had a prior conviction for second-degree murder, though they weren't
told specifics about how he shot his romantic rival in the street with a
sawed-off shotgun. They also learned of a conviction for aggravated assault,
though they didn't know it stemmed from the savage beating of a man with a
scooter.
The foreman later said the revelations were surprising. He also said jurors
were affected by testimony from the victim's father, seeking justice, and the
defendant's disabled adult daughter, who asked for mercy.
"When someone who is the daughter of anybody looks at you and says, 'Please
don't kill my Daddy,' that's just extremely powerful," Desiderio said.
"For myself, that did not sway any decision that I came to, but that was just
brutal."
For the youngest juror, it was a breaking point.
Once back in the jury room, he said he went to the bathroom and sobbed.
Her pleas, coupled with defense testimony that Rogers was "mentally retarded"
briefly caused him to 2nd-guess his guilty verdict. Another juror, Chuck
Plesofsky, 51, consoled him and urged him to wait to hear what both sides had
to say about the defendant's mental state.
Both later concluded that Rogers knew right from wrong and was culpable.
But his intellectual disability did factor into the decision to take the death
penalty off the table, the foreman said. Desiderio cited other key factors -
Rogers' cousin fired the fatal shot, and he is serving a sentence of life with
the possibility of parole.
In the end, jurors disagreed on a punishment of life or life without parole.
They opted for a life sentence once they verified that state law doesn't allow
parole for 51 years - which would make Rogers 90 years old before he could be
considered.
When the guilty verdict was read Monday and the punishment of life with parole
was read Tuesday, Rogers didn't show any emotions, "not even a wrinkled
forehead," said Plesofsky, a salesman for a local commercial HVAC company.
Jurors said they did notice that Rogers flashed his daughter a smile when she
looked at him and said, "He's my Daddy."
Jurors weren't told that when they left the courtroom, the judge sentenced
Rogers to life without parole, because he is classified as a violent repeat
offender due to the past murder conviction.
Plesofsky, who had stood firm on a life sentence with the possibility of
parole, said he now feels Rogers' sentence is the most just.
"I just didn't realize I would feel emotionally sad," Plesofsky said a day
after the sentencing. "I'm not the kind of guy who feels gushy and tears up,
but I guess we all reached deep inside ourselves and it affected us."
(source: Commercial Appeal)
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