Jan. 2
OHIO:
Judge's rejection of jury's execution recommendation is rare
A recent decision by a Cleveland judge to overrule a jury's death sentence
recommendation for a triple killer highlights how rare such judicial decisions
are.
Research by The Associated Press found just eight additional examples of
judicial overrides since Ohio's current death penalty law took effect in 1981.
That's compared with more than 320 death sentences handed down during the same
time period.
Overriding death sentences can be politically risky for judges, who are elected
in Ohio and many other states, said Doug Berman, an Ohio State University law
professor and sentencing expert.
Many cases with strong evidence against capital punishment for a defendant are
resolved with plea bargains before ever reaching a jury, he added. Those cases
typically involve pretrial research turning up strong mitigating evidence - a
horrific childhood or mental disabilities, for example - that outweigh what are
called aggravating circumstances, such as the brutality of the crime.
"It's relatively rare a case will get to a jury verdict if it looks like
there's a pretty significant possibility that the mitigators will outweigh the
aggravators," Berman said.
Cuyahoga County Judge Joan Synenberg cited defendant Douglas Shine Jr.'s
prolonged physical and psychological abuse as a child, mental health problems
and years of incarceration in sentencing him to life in prison with no chance
for parole on Dec. 19 instead of accepting a jury's recommendation for the
death penalty.
Testimony during the trial's death penalty phase showed that Shine's early
childhood was chaotic and "characterized by persistent neglect and physical and
psychological abuse," Synenberg said. She noted that Shine lived in youth
detention facilities from age 10 to 16 followed by two years in an adult
prison.
Prosecutors said Shine walked into a Warrensville Heights barber shop in
February 2015, pulled two guns from beneath his coat and opened fire, killing 3
people and wounding 2 men and a woman.
"Unfortunately, the court gave more weight to the self-serving, unsubstantiated
statements of an unrepentant, malingering mass murderer than to the
overwhelming evidence that he was fully capable of planning and carrying out
this diabolical attack on a crowded barbershop filled with men, women and
children," Cuyahoga County Prosecutor Tim McGinty said following Synenberg's
ruling.
Highlights of the 8 other cases in Ohio in which judges have thrown out a
jury's death sentence since the state enacted a new capital punishment law in
1981:
1983 -- A jury's death sentence for Drewey Kiser, of Williamsport, convicted of
fatally shooting Don Writsel during a robbery, was overridden by Judge Nicholas
Holmes Jr. of Ross County Common Pleas Court. Holmes cited Kiser's age, 23; the
defendant's lack of a significant criminal history; mental illness; and
alcoholism. Holmes also pointed out that a death sentence would not have been
proportional to the 3 other death sentences in Ohio at the time.
1987 -- A jury's death sentence for Alonzo Wright, of Cleveland, convicted of
fatally shooting Grover Lang during a robbery, was overridden by Judge Frank J.
Gorman of Cuyahoga County Common Pleas Court. Gorman cited the victim's
decision to rush Wright, which apparently led to the shooting, instead of
obeying Wright's request for money.
1988 -- A jury's death sentence for John Parsons, of Worthington, convicted of
shooting a man as he fled from his burning home, was overridden by Judge Dale
Crawford of Franklin County Common Pleas Court. Crawford cited Parsons'
background and lack of a prior criminal record and said a death sentence would
not be equivalent to 5 other death sentences imposed in Franklin County up to
that time.
1989 -- A jury's death sentence for Eddie Robertson, of Dayton, convicted of
fatally shooting Stephanie Hiatt in a 1988 robbery, was overridden by Judge
William MacMillan Jr. of Montgomery County Common Pleas Court. MacMillan cited
Robertson's lack of a significant criminal history, his relative youth (30),
his pursuit of education beyond high school and the lack of an advance plan to
kill anyone. MacMillan said it appeared Robertson shot Hiatt on the spur of the
moment, fearing she recognized him.
1999 -- A jury's death sentence for Gregory Crawford, of Valley City, convicted
of beating Gene Palmer to death during a robbery, was overridden by Judge Mark
Wiest of Wayne County Common Pleas Court. Wiest cited Palmer's age (37), his
good behavior in jail, Crawford's strong relationship with his family, his work
completing his high school degree and his religious conversion.
2000 -- A jury's death sentence for Christopher Fuller, of Hamilton, convicted
of killing his 2-year-old daughter after trying to rape her, was overridden by
Judge Matthew Crehan of Butler County Common Pleas Court. Crehan cited Fuller's
job supporting his family, his military service, his lack of a prior criminal
record and the remorse he showed over the girl's death.
2002 -- A jury's death sentence for Brian Siler of Nankin in Ashland County,
convicted of shooting his estranged wife, Barbara Siler, was overridden by
Judge Jeffrey Runyan of Ashland County Common Pleas Court. Runyan cited a
number of factors in Siler's defense, including the absence of a criminal
background and active participation in church and the community. Runyan also
questioned the burglary charge against Brian Siler - an added count that made
the crime a capital case - pointing out that he'd broken into his own home.
Runyan then questioned whether the death sentence was an attempt by the
community to avoid responsibility for failing to do more to prevent Barbara
Siler's death.
2010 - A jury's death sentence for Charles Cunningham in Clark County,
convicted of aggravated murder in the fatal shooting of an ex-girlfriend,
Jessica Serna (the mother of two of Cunningham's children), was overridden by
Judge Richard O'Neill. Cunningham was also convicted of killing Serna's friend,
Heidi Shook, but not sentenced to death for her slaying. O'Neill said there was
"a fine line" between the evidence that Cunningham killed Serna "with prior
calculation and design," an element necessary for a death sentence, and whether
he shot her "on the spur of the moment" out of frustration with his
unsuccessful attempts to re-establish a relationship.
(source: Associated Press)
USA:
New Competency Hearing for Dylann Roof Today
A federal judge will hold another competency hearing for Dylann Roof, the man
convicted of killing 9 people at a Charleston church.
Judge Richard Gergel said last week that he's set the hearing for 9 a.m. on
Monday, one day before the sentencing phase of the trial is set to begin.
The sentencing phase of Roof's trial begins Tuesday in Charleston. He could
face the death penalty.
With Roof representing himself, the process is sure to be unconventional. The
22-year-old said he plans to call no witnesses or introduce any evidence.
Prosecutors plan to call up to 38 people related to the nine people killed and
three who survived the June 2015 slaughter during Bible study at Emanuel AME
Church.
Even if Roof is sentenced to death, it's highly unlikely he'd be executed
anytime soon. The federal government hasn't carried out a death sentence since
2003.
(source: WLTX news)
*********************
Killers deserve ultimate sentence - execution
This responds to the column by Kathleen Parker, "Execution is too lenient for
the Charleston killer," published on Dec. 20.
Parker argues against executing Dylann Roof, despite his murder of nine
parishioners in prayer, because she opposes the death penalty for reasons she
deems "moral and practical."
She makes the usual argument that the process isn't perfect and mistakes can be
made: "I can't countenance anything less than a foolproof system."
This is, of course, utter hypocrisy. She demands divine perfection from a
capital punishment system but is willing to accept the vastly greater risk of
further murders by not executing such murderers.
The highest estimates I've seen for true innocents that have gotten through the
trial and many appeals built into the death penalty process and been actually
executed is one every few years. Academic studies suggest much less,
particularly when you exclude those actually guilty but who, with the right
team of smart lawyers, might have managed to "beat the rap."
By contrast, murderers who are sentenced to prison often go on to murder again.
Recidivism estimates for murderers range from 1 % to 20 % or so.
Furthermore, while there are few headline-grabbing followup murders associated
with prison escapes (e.g., the Texas 7), there are hundreds of homicides in
U.S. prisons each year, and on the order of 80 murders per year in which the
perpetrator can be identified.
Bureau of Justice statistics indicate that as many as a third of these murders
are by inmates who already have at least 1 homicide conviction under their
belt.
Parker may consider it OK that any number of those who are in prison for lesser
crimes, say, writing bad checks, be murdered; most would not.
Parker also makes the claim that "death sentences are ineffective as a
deterrent." This again is a common anti-death penalty argument, based on the
fact that deterrence has not been "proven" (except, of course, for the executed
perpetrator). This is simply a misleading half-truth. Lack of deterrence hasn't
been "proven" either, for the simple reason that almost nothing in the social
sciences can be scientifically "proven" because, as is generally the case with
social hypotheses, you can???t control all the variables.
For her to pretend to more than that only shows the limitations of her own
argument.
She argues that "death is too easy," which is utter nonsense. If that were the
case, where the death penalty was abolished, there would be much wailing and
gnashing of teeth from those on death row. As we know from our own experience
in New Mexico, considerable relief has been the usual reaction.
Finally, while she offers the alternative of "life without parole," that has
been proven to be a false promise as well, as other "compassionate" liberals
have promoted, and in some cases achieved, "compassionate release," arguing
that, after decades, the criminal has ???rebuilt their life." So much for "life
without parole."
In any case, consider the unfairness of it: no such option was, of course,
available for the victim.
The most practical solution is the final one. Simply remove the murderer as a
living entity from our universe. It leaves our society vastly better off.
(source: Letter to the Editor, Joel Davis----Albuquerque Journal)
*******************
Jury draw set as Fell continues fight on death penalty
The retrial of Donald Fell is scheduled to begin early this year, but a motion
filed last week seeking to appeal U.S. District Judge Geoffrey Crawford's
ruling on the constitutionality of the death penalty could delay the
proceedings.
In his 57-page decision in mid-December, Crawford acknowledged serious flaws in
the way capital cases are tried in this country but concluded that it was not a
question for the lower courts to settle.
Fell's defense team argues otherwise. Lead counsel Michael Burt says Crawford
should amend his ruling to allow for an interlocutory appeal of the death
penalty decision and that all other matters should be put on hold during that
time.
The defense motion says the court's ruling, which "defers any remedial action
to the Supreme Court, should be vacated and the relief sought granted such that
the notice of intent to seek the death penalty is stricken in Donald Fell's
case."
The legal question focuses on whether such an appeal can be granted in a
capital case as opposed to a civil case. Such action is typically reserved for
civil cases; however, exceptions have been made, and in a recent ruling the 1st
Circuit referred to a "lack of uniformity" that has left the question
unsettled.
In the motion Fell's defense contends that the case meets all of the
requirements for a certificate of appeal and that Crawford's own careful review
of the facts in his death penalty decision should compel him to "remedy the
constitutional violation that the court found."
Fell was charged in the 2000 killing of North Clarendon resident Teresca King
and was convicted in 2005 in federal court. He was later sentenced to death,
but the verdict was overturned due to juror misconduct.
While not ruling the death penalty unconstitutional, Crawford found that it was
applied in an arbitrary manner and that protections put in place 40 years ago
to prevent a variety of injustices had failed.
Perhaps in anticipation of the government's argument - it has until Jan. 10 to
respond - the defense asserts that denying an appeal at this stage will not
speed the resolution of the case.
"It is misleading in the extreme in the circumstances of the present complex
capital case to hold out to the victim's family the promise of 'closure' upon
the mere return of a jury verdict," the defense writes, "when the government
knows full well that this case, regardless of whether a pretrial appeal is
authorized, is destined for years, if not decades, of future appeals and ...
proceedings."
Members of King's family have attended every hearing for the past 16 years.
The defense also suggests the integrity of a future conviction could be at
stake if an appellate court later finds that the death penalty should have been
ruled unconstitutional under the Eighth Amendment's protections against cruel
and unusual punishment.
In previous rulings Crawford denied a motion to delay the trial after hearing
arguments from the defense attorneys that they had not had enough time to
prepare. He also denied a motion to withdraw as Fell's counsel if the request
for more time was not granted.
At a recent status conference during which the motion to postpone was
discussed, Crawford appeared frustrated with the amount of time the pretrial
hearings have eaten up. Though he sympathized with the defense attorneys'
demands - both are involved in other capital cases - he said the hearings had
dragged on for 2 years and that it was time to bring the matter before a jury.
On Wednesday, the day after the defense filed its motion seeking an appeal of
the death penalty decision, Crawford issued an order to draw a jury pool of
1,800 names from all divisions within the state of Vermont. According to the
order, jury selection is scheduled to begin Feb. 13.
(source: vtdigger.org)
********************************
Stephen Breyer urges a review of the death penalty----The Supreme Court should
consider whether the death penalty violates the constitution
This year marks the 40th anniversary of Gregg v Georgia, the Supreme Court case
that reintroduced the death penalty to America. Capital punishment had been
halted in 1972 when 5 justices determined it to be "arbitrary and capricious"
in violation of the bar on "cruel and unusual punishments" in the 8th
amendment. But 4 years later, the court found that new state laws had mended
the death penalty's main defects, and the executioner was called back from
retirement. In the first few years following Gregg, only a handful of people
were put to death. By 1999, the number of executions reached a peak of 98
before beginning to fall again after the century's turn. Thus far in 2016, only
20 people have been executed in America, the fewest since 1984.
As executions dwindle, the discussion about America's system of capital
punishment has shifted. Less energy is devoted to debating the death penalty's
supposed purposes of deterrence and retribution; more discussion, and
litigation, revolves around peripheral issues like exempting children and the
intellectually disabled from capital punishment, the relative roles of juries
and judges in issuing death sentences, and the constitutionality of certain
execution methods that may cause suffering before death.
But in recent years Justice Stephen Breyer, the 78-year-old Bill Clinton
appointee who is serving his 23rd term on the bench, has waged a one-man battle
against the death penalty itself. In 2015, he wrote a long, scathing dissent to
a 5-4 decision upholding Oklahoma's use of a lethal-injection drug that had
caused several prisoners to suffer through botched executions in which they
yelled and writhed in pain. Rather than "try to patch up the death penalty's
legal wounds one at a time", he wrote, the justices should again take up the
fundamental question of "whether the death penalty violates the constitution."
Leaving little doubt as to his view on that matter, Mr Breyer wrote that
capital punishment is "unreliable", risks killing innocent people, is applied
arbitrarily and has been "abandoned" in more and more states. He also
highlighted the long and growing delays between sentencing and execution - lags
he saw as inconsistent with the purposes of punishment.
The delay issue grabbed Mr Breyer's attention again this month, when he
explained why he would have granted a hearing to Henry Sirechi, a Florida man
who was convicted of murdering an Orlando car salesman and sentenced to die in
1976. Mr Sirechi "has lived in prison under threat of execution for 40 years",
he wrote, dissenting from the court's refusal to hear his case. "When he was
first sentenced to death, the Berlin Wall stood firmly in place. Saigon had
just fallen. Few Americans knew of the personal computer or the Internet. And
over 1/2 of all Americans now alive had not yet been born". In 1890, he noted,
the Supreme Court had a delay "of 4 weeks, not 40 years" in mind when it said
that "a prisoner's uncertainty before execution is 'one of the most horrible
feelings to which he can be subjected'". The average time spent in prison
between sentencing and execution, Mr Breyer lamented, has risen from 12 years
to over 18 years since 1999.
What is so worrisome about these delays? Jeffrey Reiman, a philosopher, wrote
in 1985 that execution is "characterised by a special and intense psychological
pain that distinguishes it from the loss of life that awaits us all". A death
"whose coming is foreseen by its victim", he wrote, is "worse than sudden
death, because a foreseen death adds to the loss of life the terrible
consciousness of that impending loss." Sitting on death row for years
stretching into decades unconscionably prolongs the horror of anticipating
one's death, Mr Breyer implied, and may amount to cruel and unusual punishment.
In announcing his displeasure with the court's unwillingness to hear Mr
Sirechi's case, Mr Breyer pointed to other recent death-penalty appeals he
wishes his colleagues had agreed to hear. One was the case of Robert Smith, an
Alabama man who was sentenced to life without parole by the jury but who saw
that punishment enhanced to death by his judge. On December 8th, Mr Smith
lobbed a series of appeals to the justices only to see his pleas divide the
justices 4-4. One vote shy of a reprieve, Mr Smith was executed that very
night. His lethal injection included midazolam, the questionable drug deemed
acceptable by the court in 2015; Mr Smith heaved, coughed and clenched his fist
for 13 minutes of the 34-minute procedure. Mr Breyer was similarly dismayed by
the court's handling of the case of Romell Broom, a man Ohio tried to kill by
lethal injection in 2009. Mr Breyer noted that the medical execution team
"tried for over 2 hours to find a usable vein" in which to run the IV for the
lethal cocktail, "repeatedly injecting him with needles" - painfully but to no
avail. A fresh attempt to end Mr Broom's life might violate the 8th amendment,
Mr Breyer wrote, yet 4 of his colleagues refused to consider the question.
With the window closing on Barack Obama's nomination of Merrick Garland to take
Antonin Scalia's seat, the Supreme Court's balance of power between death
penalty sceptics and supporters is unlikely to change. Chances are nil that
Justice Breyer will soon find 4 colleagues on the bench willing to reconsider
the decision that revved up the machinery of capital punishment 4 decades ago.
It appears that the death penalty in America will continue its long, slow
demise with tweaks and occasional sparks, but no sweeping rulings, from the
justices.
(source: Democracy in America, Dec. 22., 2016)
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