Jan. 13


Isom death penalty case back before Indiana Supreme Court

A Gary man sentenced to death for murdering his wife and 2 stepchildren in 2007 may lose a final chance for state court review of his case because he refuses to sign a document required to seek post-conviction relief.

Attorneys for Kevin Isom, 51, asked the Indiana Supreme Court on Thursday to overrule Lake Superior Judge Samuel Cappas, who last year concluded that Isom's refusal to sign, on multiple occasions, meant that he was forfeiting any opportunity for post-conviction proceedings.

"This is a death penalty case. Here we have a heightened need for due process. We simply, as a state, our values do not want us to allow someone to proceed to execution because of a missing signature," said Anne Kaiser, deputy state public defender.

According to court records, Isom refused to sign the document because he believed his attorneys were incompetent to represent him, and persisted in his refusal even after being offered other attorneys at no cost to him.

Deputy Attorney General Kelly Loy urged the high court's five justices, who unanimously affirmed Isom's three murder convictions and death sentence in 2015, not to reward Isom's efforts to postpone final justice.

"There is no incentive for a capital defendant to quickly proceed through collateral review. In fact, the incentive is the opposite, and that is to delay the proceedings," Loy said.

That argument appeared to resonate with Justice Robert Rucker, a Gary native, who suggested Isom is trying to game the system.

"He doesn't make the rules. Either you sign it, or there are consequences," Rucker said. "It seems to me that he wants to be in control of how the rules are written, and I have trouble with that."

On the other hand, Chief Justice Loretta Rush and Justices Steven David and Mark Massa each asked what harm there would be in allowing Isom's post-conviction petition to proceed absent his signature.

"I think it's pretty clear he does want to go forward. He just doesn't want to sign that until he gets the lawyer he wants," Massa said.

David suggested he would be much more comfortable denying post-conviction relief if Isom explicitly declared he had no interest in proceeding, as others awaiting execution have done in the past to speed their path to the death chamber.

"It seems like we're almost being asked to resolve an internal conflict between the state public defender's office and your client. Not our lane," David said to Kaiser.

Kaiser responded that she believes Isom has mental illness that prevents him from fully understanding that failing to sign the document could end his legal remedies in Indiana's courts.

The Supreme Court is expected to decide in a few months; after that, Isom likely will be able to seek federal court review.

(source: nwitimes.com)


5 Questions you've asked about Nebraska's Death Penalty

After showing overwhelming support for the death penalty in November's election, many Nebraskans expected executions of those on death row would get underway promptly.

It's not that easy.

Gov. Pete Ricketts and the Department of Correctional Services created new rules and procedures required to carry out the process of lethal injection. A public hearing was held on the last day of 2016. It appears doubtful there will be many significant changes. The governor's signature on the final draft is expected soon.

Here are some of the questions often asked about the next steps needed to proceed with a legal execution.

When will Nebraska schedule its next execution?

There is no public speculation among state officials about when the next execution will take place in Nebraska. The state's attorney general told NET News there are too many steps in the process to project ahead. That includes likely legal challenges to the proposed revised protocols in general and new appeals put forward by individual death row inmates.

"The 1st logical step is to get the rules approved and implemented," Nebraska Attorney General Doug Peterson told NET News.

When the rules are signed by the governor, it will be up to the attorney general to take the 1st step: select which case to present to the Nebraska Supreme Court to request a death warrant. The justices review the merits of the case and, if advanced, set a date for the execution.

Who will be the next person executed?

If the date is uncertain then you can expect that identifying which of the men on death row will be chosen 1st is another topic of speculation which state officials avoid.

Peterson said when the protocols are enacted "the most logical and legal approach is to examine where each one of the death row inmates stand with regards to their appeals and whether their appeals have been exhausted."

That criteria shortens the likely list considerably. Cary Dean Moore, sentenced to death in for the 1979 murders of 2 Omaha cab drivers, has spent the longest time on death row.

Over the decades Moore repeatedly found ways to successfully delay his death sentence. While it's expected, the new protocols will provide several avenues for new appeals, Moore would provide the state with its most expedient option.

The death by cancer of cult-leader and double murderer Michael Ryan in 2016 makes the 2nd likely choice for the attorney general less clear.

2 other inmates have exhausted their state and federal appeals according to the attorney general's office

It has been 30 years since John Lotter took part in the triple murder of transgendered Teena Brandon and 2 of her friends. Lotter's insistence that his role in the murder does not raise to the level of a capital crime may further delay his execution.

Jose Sandoval has been on death row for nearly 14 years. He was convicted of killing 5 people at a Norfolk bank.

A 4th less likely candidate would be Raymond Mata. He tortured and murdered a 3-year-old boy in Scotts Bluff County in 2000. One of his successful appeals led to the state replacing the electric chair with execution by lethal injection.

How will the method of execution differ?

Lethal injection remains the only legal method of execution in Nebraska since it replaced the electric chair in 2009. However, the specially-equipped room for the procedure, built at an estimated cost of $25,000, has never been used.

The most significant change is in the type of drugs used for the execution. The current protocol restricts corrections to a specific 3 drug process. Those drugs proved impossible to obtain legally. New procedures proposed by the Department of Correctional Services gives the corrections director the decision on what drugs to use. The only criteria, whether a single substance or a mixture, is that it meets a constitutional requirement to avoid "cruel and unusual punishment."

Will the state be able to get the drugs needed for a lethal injection?


Bonus Question 6: Why are licensed pharmacists upset with the new policy?

One interesting flank in the opposition to the proposed protocols came from the Nebraska Pharmacists Association, representing licensed pharmacists in the state. At the December 2016 public hearing, chief executive director Joni Cover testified the person given responsibility for the execution drugs in the new protocol is listed as pharmaceutical chemist. She said no such job title receiving training or accreditation exists in Nebraska state law.

Cover and other pharmacists read the protocols to say it would allow a member of the execution team without education in pharmacology to help obtain, prepare and administer drugs to the inmate during an execution. They asked the section be removed.

The pharmacist's concern may be of importance, as it provides attorneys for death row inmates and those opposing the death penalty a significant new line of defense in the courts.

Pharmacists and other members of the medical community often decline to participate in the execution process, viewing it to conflict with their ethical charge to "1st do no harm."

Whether the state can find a provider is not yet known, but corrections officials have hinted they may have 1 willing to sell. Corrections officials have also consulted with other states successfully obtain drugs used in executions through confidential providers.

By not specifying a drug in the proposed protocols the state also has greater flexibility in finding a provider. The proposed protocols state corrections officials can get the drugs through "any appropriate source, including pharmaceutical or chemical compounding."

Unlike drug companies that mass produce their pharmaceuticals, compounding pharmacies prepare medications in small doses based on the specifications of a client or doctor.

States allowing lethal injection have found drug companies increasingly reluctant to sell their products when they are being used in executions. Nebraska ran afoul of the U.S. Food and Drug Administration by using a broker in India as a source for its drugs. Ultimately the drug's "use by" date expired as challenges to their use extended for months.

Why is there an extra effort to keep parts of the process confidential?

States successfully advancing death penalty convictions find keeping the process discrete limits avenues for opponents to challenge methods used.

Gov. Ricketts said during a news conference the changes were only about giving "the state flexibility to carry out the execution."

"We're really not changing anything about confidentiality," Ricketts said.

Prison officials would no longer be bound to specific types or numbers of lethal substances. It would be up to the corrections director to decide what drugs to use and in what doses. The director also could opt for a single drug, as long as it rendered the inmate unconscious and resulted in death "without the unnecessary and wanton infliction of pain."

60 days prior to the execution the condemned inmate of the type drug to be used. This would provide defense attorneys a very narrow window to prepare any objections to the specific drug or compound.

An attorney representing newspapers and broadcasters in the state (including NET News) and another from the Nebraska Chapter of the American Civil Liberties Union sharply disagreed.

Danielle Conrad, executive director of the ACLU of Nebraska, said in a prepared statement "this process would implicate grave constitutional, legal and policy questions."

During the public hearing attorney Shawn Renner, representing a group of the state's newspapers and broadcasters, called the proposal "illegal" and claimed it ran contrary to the intent of the goal of open and transparent government.

Attorney General Peterson told NET News he found no aspect of the protocols in violation of the open records law.

(source: netnebraska.org)


Arizona Supreme Court throws out death sentence for Joel Escalante-Orozco----In wake of U.S. Supreme Court decision, Arizona high court sends back death sentence because court did not allow defense to say that the defendant would not be set free if not sentenced to death.

The Arizona Supreme Court on Thursday threw out the death sentence in a brutal 2001 Phoenix rape and murder because the court did not allow defense attorneys to tell the jurors that the defendant would never be set free if they brought back a life sentence.

The case was returned to Maricopa County Superior Court for a new sentencing trial because of a precedent set by another Arizona murder case that was knocked down by the U.S. Supreme Court in June.

Joel Escalante-Orozco was a maintenance worker at a Phoenix apartment building who attacked a young mother living there in front of her toddler son.

On March 10, 2001, Maria Garza-Rivera was found dead in her apartment. She had been stabbed repeatedly, beaten and sexually assaulted. The day before, Escalante-Orozco's supervisor had witnessed a strange conversation between Garza-Rivera and Escalante-Orozco that he did not understand because it was in Spanish. After the murder, Escalante-Orozco fled to Mexico.

In 2007, Escalante-Orozco was apprehended in Idaho. He was returned to Arizona, convicted of 1st-degree murder and sentenced to death in 2013.

In his mandatory "direct appeal" to the Arizona Supreme Court, defense attorneys alleged prosecutor misconduct and that Escalante-Orozco's low IQ made him ineligible for the death penalty, among other things. The Arizona justices instead seized on "future dangerous," the suggestion that the defendant could be too dangerous for a life sentence because he could potentially be released sometime in the future.

Attorneys for the state argued that prosecutors had never made that assertion, though the Supreme Court opinion cited transcripts in which one of the two prosecutors (who was not identified), said, "Sometimes in life there are people who have done so much evil they give up their right to live. This defendant has done just that."

The case that set precedent

The rationale for throwing out the death sentence comes from a U.S. Supreme Court decision in the case of Shawn Lynch, who murdered a Scottsdale man in 2001. In that case, the high court noted that there is no parole for murderers in Arizona, except for those who committed their crimes as juveniles or committed murder before 1994. It said the defense should have been allowed by the court to say that the defendant, were he sentenced to life rather than death, would never be released unless granted clemency by the governor.

Arizona's life-sentence statutes have not included possibility of parole since 1994. Instead, there are 2 sentencing options short of death for the crime of 1st-degree murder: natural life in prison, in which there is no chance of release, and life with the chance of release after 25 years. But the latter requires petitioning the board of clemency, which can then recommend pardon or commutation to the governor. The unlikelihood of such a pardon is tantamount to a sentence of natural life.

Therefore, the U.S. Supreme Court posited that jurors may have sentenced the defendant to death instead of life in prison for fear that he would someday get out and commit more crimes.

The Arizona Supreme Court had initially upheld Lynch's death sentence but the decision was overruled by the U.S. Supreme Court. Subsequently, using Lynch as a precedent, the Arizona court remanded Escalante-Orozco's case back to Superior Court.

It let stand the murder and other convictions and the sentences for the other crimes for which Escalante-Orozco had been convicted. However, it asked the trial court to conduct a new sentencing phase to determine whether Escalante-Orozco is still deserving of the death penalty.

(source: Arizona Republic)


Gang member convicted of 2 Indio murders to be sentenced to death

A judge is expected to uphold a jury's recommendation and formally sentence a gang member to death for the execution-style killings of 2 men in Indio more than a decade ago.

Jurors in October recommended capital punishment for Elias Carmona Lopez, 30, who was convicted of 2 counts of 1st-degree murder for the shooting deaths of Erineo Perez and Martin Garcia on Oct. 10 and Oct. 26, 2004, respectively.

In the guilt phase of the trial, the panel found true special circumstance allegations of lying in wait, multiple murders and committing the murder for the benefit of a criminal street gang, making Lopez eligible for a death sentence.

Defense motions for a new trial and modification of the jury's recommended sentence were denied this week by Riverside County Superior Court Judge Richard A. Erwood. According to Deputy District Attorney Scot L. Clark, Lopez was paid to kill Perez, who was shot several times while sitting inside his vehicle near Indio City Hall. The defendant snuck up on the 25-year-old victim from behind, the prosecutor said.

Garcia, 18, was found dead in an Indio alley, where Lopez lured him under false pretenses, claiming no animosity over their rival gang status before killing him, Clark said. Both victims were shot several times, including in the face.

During the penalty phase of the trial, Clark argued death was the appropriate punishment for a defendant who demonstrated that he's a danger to others even while imprisoned. Clark read transcripts of recorded phone calls that Lopez made while in prison in 2010, in which he gave out the home addresses of his ex-girlfriend and her boyfriend, and the boyfriend's work address to other gang members.

Lopez also expressed anger over the ex-girlfriend testifying against him. Clark said Lopez had told her that he'd committed both murders, providing her details that only the killer would have known.

Shell casings taken from both crime scenes came from the same gun, a .22-caliber Smith & Wesson found beneath Lopez's mattress, Clark said.

Defense attorney Demitra Tolbert argued that the evidence did not prove the murders were committed by the same person, only that the same gun -- which her client claimed he had been holding for a friend he refused to identify -- was used.

Clark said a number of other potential suspects suggested to be the killer by the defense could easily be ruled out.

According to the prosecutor, none of the supposed killers had connections to both Perez and Garcia, and none of them could have managed to get the murder weapon underneath Lopez's mattress.

Tolbert maintained that detectives did not fully pursue the connections between those suspects and the victims to the extent necessary, saying "law enforcement failed miserably'' in its investigation, dismissing potential suspects and not following through with DNA testing or witness interviews at both crime scenes.

Lopez was an early suspect in both killings, but there was insufficient evidence to prosecute the case until July 2008, according to the prosecution. He was serving an eight-year sentence for armed robbery at an Arizona prison when the murder case was filed against him.

During his 1st trial in early 2016, jurors deadlocked 11-1 in favor of conviction after about 6 weeks of testimony.

(source: KESQ news)


Lawyers argue Oregon's death penalty

Most Oregon lawyers never deal with cases involving the death penalty.

But as part of their requirement by the Oregon State Bar for continuing legal education, a group of them heard from 2 lawyers experienced in it during a session at bar offices in Tigard.

Josh Marquis has been a county prosecutor for four decades, the past 23 years as the elected district attorney of Clatsop County.

Jeff Ellis is a Portland lawyer who specializes in criminal defense, and as director of the Oregon Capital Resource Center, has been involved in cases in Oregon and other states.

Oregon is among the 31 states, plus the federal government, with the death penalty. Oregon is also 1 of 4 states where the governor has called a temporary halt to executions.

33 men and 1 woman await execution in the Oregon State Penitentiary. 2 men were executed by lethal injection most recently 20 years ago; both waived further appeals.

Oregon voters have gone back and forth on the death penalty since the state took over responsibility for executions in 1903. A repeal measure may appear again on a statewide ballot, although death penalty opponents have not advanced it.

When Oregon voters reinstated the death penalty in 1984, it applies to aggravated murder - circumstances are specified by law - and it is exempt from the state constitutional ban on vindictive justice.

"It is a rare sentence, and very few murderers deserve it," Marquis said. "But there are some people who I believe are beyond redemption."

He described them as "people who have such deep sociopathic, antisocial personalities that either they do not care about anybody - or worse, they actually like to inflict pain, particularly on vulnerable people."

Despite his outspoken support for the death penalty, Marquis said he has sought it for only 2 offenders during 40 years as a prosecutor.

He sought it 3 times for Randy Lee Guzek, who was convicted of a double murder in Terrebonne in 1987, when Marquis was chief deputy district attorney in Deschutes County. The Oregon Supreme Court upheld Guzek's death sentence in 2015; Guzek's appeal is pending in federal courts.

"I suspect that Mr. Guzek will probably outlive me on death row," said Marquis, who is 17 years older. "I will probably die of natural causes before he dies of natural causes."

He also sought it for Anthony Scott Garner, convicted in 2001 of the 1997 murder of an informant in Warrenton. But the jury sentenced Garner to life imprisonment without parole.

"That is really what the death penalty process attempts to do," Marquis said. "It allows 12 jurors to decide whether a person has any possibility of either being redeemed or redeeming himself."

Under current procedure, jurors must first decide an offender's guilt, then in a separate penalty phase, answer "yes" to four questions before imposing the death penalty.

Ellis, who has taken part in Guzek's case, also has a strong belief on the death penalty.

"I think it is morally wrong. I think the state should not be in the business of killing individuals in our name," he said. "But that does not get us very far, because reasonable people can disagree about that position."

He took issue with Marquis' argument that Oregon's death penalty should apply only to criminal offenders beyond redemption.

"I guess he has a vision of an Oregon death penalty system that is not the system that has been operating since the mid-1980s in Oregon. Instead we have a system that is chockfull of problems," Ellis said.

Of the offenders sentenced to death, Ellis said, the only two actually executed waived appeals - and no other case (until Guzek) has moved on to federal appellate review.

"Eventually we will have a small and random group of individuals who were sentenced to death, who lost on appeal and in post-conviction, and lost in (federal) habeas corpus," he said. "Are these people the worst of the worst? Absolutely not."

Penalty is final

According to the Death Penalty Information Center, 1,442 executions have taken place since the U.S. Supreme Court allowed the death penalty to resume in 1976. Marquis said that number is a fraction of about 600,000 murders during that period.

Texas leads with 538 executions, and according to the center's definition of the region, the South accounts for a total of 1,175. (Ten of the 11 states in the former Confederacy are in the top 14 states for executions; the exception is Tennessee.)

"Unlike any other punishment, the death penalty is irreversible when inflicted," Ellis said.

He mentioned the case of Cameron Todd Willingham, who was executed in Texas in 2004 for the 1991 arson murder of 3 children. A subsequent report disputed whether the fire was arson, although the fire agency says the report overlooked some points.

"The criminal justice system does not do a good job with claims of innocence," Ellis said.

Marquis said it is the "worst nightmare" of prosecutors to convict an innocent person.

"Innocent people have been on death row," Marquis said. "Anyone who denies that is not being honest."

But Marquis said even the most ardent opponents of Oregon's death penalty have yet to make a case for absolving any of the 34 on Oregon's death row.

Marquis cited the case of Roger Coleman, who was executed in Virginia in 1992 for the rape and murder of his sister-in-law, despite death-penalty foes raising doubts. A DNA test performed in 2006 confirmed Coleman's guilt.

"The story sank faster than dropping a 10-pound weight into the deepest part of the Columbia River channel," he said.

Which way?

According to a 2016 report by the Death Penalty Information Center, the past year resulted in the fewest death sentences imposed in the United States in the past 40 years, and the fewest executions since 1991.

Seven states in the past decade have abolished the death penalty. But Marquis said all of them occurred because of legislative or court actions - and when the question was put Nov. 8 in California, Nebraska and Oklahoma, voters upheld the death penalty.

(In Nebraska, voters overturned a 2015 legislative repeal. In Oklahoma, 2nd only to Texas in executions since 1976, voters approved a measure allowing any form of execution not specifically barred by the U.S. Supreme Court.)

When then-Gov. John Kitzhaber issued a temporary reprieve to Gary Haugen, who was within 2 weeks of execution in 2011, Kitzhaber also imposed a moratorium on executions. Haugen won a challenge to his unsought reprieve in circuit court, but the Oregon Supreme Court in 2013 upheld the governor's broad constitutional authority to grant clemency - including the reprieve.

"I think the declaration of a reprieve and a moratorium was undertaken by Gov. Kitzhaber for very serious and real reasons," said Ellis, 1 of 4 signers of a letter that Kitzhaber considered before announcing a moratorium on Nov. 22, 2011.

The 2013 Legislature gave only a single hearing to Kitzhaber's proposed constitutional amendment to substitute life imprisonment for the death penalty.

Gov. Kate Brown continued the moratorium upon succeeding Kitzhaber in February 2015, and it will last as long as she holds office. She was elected Nov. 8 to the 2 years remaining in Kitzhaber's term.

"If she thinks it is so wrong, that it is so egregious and she believes there are innocent people on death row, she has the power of commutation. Good luck," said Marquis, who has been an outspoken critic of the moratorium.

Were she to commute death sentences to life imprisonment, he added, "If she stands for office in 2 years, I suspect she would not get re-elected."

A ballot question?

Oregonians for Alternatives to the Death Penalty is conducting a campaign to raise awareness, but so far, the group has not petitioned for any ballot initiative to abolish it. They say they are determining lawmakers' attitudes in the 2017 session, which gets down to business Feb. 1.

"I can assure you that the Oregon Legislature does not have the guts to change the Constitution - they will refer it to the voters," Marquis said, although the Legislature is required to refer any constitutional amendment to a statewide vote.

"I've been part of this conversation for the past 17 years in this state. We have talked this to death. If the voters choose to abolish the death penalty, so be it."

Voters shifted 14 years later, but Oregon in 1964 was the most recent state to repeal the death penalty by popular vote. Marquis said he remembers that at 12 years old, he put a pro-repeal sticker on the rear bumper of his father's Ford Falcon.

Although no one has been released so far under a "true" life-imprisonment law for aggravated murder took effect in 1991, Marquis said he believes opponents would challenge it based on the federal constitutional guarantee against "cruel and unusual punishment."

But Ellis said life imprisonment without parole is a good alternative to the death penalty - and he would not challenge it for adults.

"If a person is innocent and we have sentenced him to life, we cannot give back the years he lost, but we can release him and given him some compensation," Ellis said. "We can keep our communities safe with life without parole - and I think we can keep prisons safe even with individuals who have committed murder."

(source: pamplinmedia.com)


Arrests Expected at U.S. Supreme Court in Washington, DC on 40th Anniversary of First Execution----Activists call on Nation to End the Death Penalty as State Executions hit Historic Lows

Members of the anti-death penalty Abolitionist Action Committee (AAC) and many faith leaders will stage a highly visual demonstration at the U.S. Supreme Court in the 10:00 am hour, Tuesday, January 17 to mark the 40th anniversary of the 1st execution under contemporary laws. A program featuring death row exonerees, murder victim family members and others, will take place the evening before.

"Executions, death sentences and capital indictments are at record lows across the nation, and only a handful of jurisdictions still use it aggressively," said Bill Pelke, a spokesman for the Abolitionist Action Committee. "We are prayerfully calling on the new president and leaders in the few states where it is still used to stand down on the death penalty."

40 years ago, on January 17, 1977, the State of Utah shot to death Gary Gilmore, who was executed in revenge for his murder of Ben Bushnell and Max Jenson. This was the 1st execution under the Supreme Court's upholding of new death penalty laws in its 1976 ruling in Gregg v. Georgia. Since then there have been 1442 more executions. 5 more executions are scheduled in January already, including 1 in Virginia on January 18.

Dozens of participants from across the United States and representing numerous faith-based and civil rights oriented organizations (listed below) are expected to peacefully and visibly call for an immediate cessation of all executions in the United States through non-violent civil disobedience and the risk of arrest. They will display a 30-foot long banner and 40 posters - each poster listing by year the names of all the men and women executed in the United States since 1977.

Among the participants will be:

* Numerous family members of homicide victims

* Derrick Jamison, a member of Witness to Innocence, survived 20 years on Ohio's death row for a crime he had nothing to do with

* Randy Gardner, whose brother, like Gilmore, was executed in Utah by firing squad. "My Brother Ronnie Lee Gardner was executed June 18, 2010 by the same state and the same method as Gilmore," says Gardner. "I believed then, and I still believe now, that the death penalty is morally wrong. I never condoned what my brother did, but when the state executes someone, they create yet another family that is damaged and grieving. We don't have to kill to be safe from dangerous criminals and hold them accountable. It is time to abolish the death penalty."

* Shane Claiborne, a leader in the Red Letter Christian movement and author of the book, Executing Grace. Claiborne will be joined by numerous other evangelical and other faith leaders.

Since 1997, a total of 48 arrests have been made of death penalty abolitionists for unfurling banners that read "STOP EXECUTIONS!" on the plaza or stairs leading to the front doors of the U.S. Supreme Court. This action has been repeated every 5 years. The tradition continues, and this year participation is increasing significantly.

This protest is organized by The Abolitionist Action Committee, an ad-hoc group of individuals committed to highly visible and effective public education for alternatives to the death penalty through nonviolent direct action. Participating organizations and individuals include:

Abolitionist Action Committee

Campaign for Nonviolence

Catholic Mobilizing Network

Center for Action and Contemplation

Consistent Life Network

Embrey Human Rights Program

Evangelicals for Social Action

Faith in Public Life

Journey of Hope ... From Violence to Healing

National Council of Churches


People of Faith Against the Death Penalty

PICO Network LIVE FREE Campaign

RAW Tools

Red Letter Christians

Repairers of the Breach


We Stand With Love

Witness to Innocence

(source: Abolitionist Action Committee)


The State of the Death Penalty in 2017

2016 was a landmark year in the movement to end the death penalty. The U.S. had the lowest number of executions, 20, in 25 years - down 28 % from 2015. And states imposed the fewest death sentences, 30, since the Supreme Court struck down the nation's death penalty laws in 1972 - down 39 % from 2015. For comparison, in 1996, there were 315 death sentences.

As the death penalty continues to collapse, we see the arbitrariness of it even more clearly. Of the roughly 3,000 counties in the United States, only 27 imposed death sentences this past year. A zip code can determine who lives and dies. A zip code can determine who lives and dies.

And one more record worth noting: For the 1st time in more than 40 years, no single state imposed more than 10 executions. In fact, there were only 5 states that executed anyone at all in 2016.

Just 2 states (Texas and Georgia) accounted for 80 % of the executions this past year. Even America's deadliest state when it comes to executions - Texas - had the fewest executions in more than 2 decades, and set unprecedented record of only 4 new death sentences this past year. Granted, Georgia was the exception, setting a record the other direction by killing more people than it has since the 1950s, but juries in Georgia did not impose a single death sentence in 2016 (or 2015). So this is big.

For the 1st time in a generation, Pew Research Center found that less than 1/2 of Americans favor capital punishment. State-level polls confirm that support for the death penalty continues to decline across nearly every demographic category.

This is the time to pull the final plug on the death penalty in America.

That's why we are about to set another record: On Jan. 16-17, hundreds of us will gather at the Supreme Court. We will hear from voices of experience - survivors of death row who were wrongfully convicted, families of the executed, and the growing number of murder victims family members who have found better ways forward than execution. After the words, we will put our bodies on the line, marching to the Supreme Court and calling for our highest court to stop executions, once and for all.

We march on Jan. 17 because it is the 40th anniversary of the 1st "modern-era" execution, after our courts ruled in favor of the death penalty following a decade-long moratorium. On that day, Gary Gilmore was executed by firing squad in Utah in revenge for his murders of Max Jenson and Ben Bushnell. Since then there have been 1,442 other executions. We will hold 40 signs, one for each year since 1977, with the names of those executed each year. We will also carry roses for the victims - both those who have been murdered and those who have been executed - declaring that violence is the disease ... not the cure.

And we will kneel in prayer that God would help us end this terrible practice of trying to kill to show that killing is wrong. Because it is illegal to assemble on the steps of the Supreme Court, we will likely set one final record - the most people arrested protesting capital punishment in America. But what we want is not just another record. We want to make history. We want to make capital punishment history. And we will not stop until the executions stop.

(source: Shane Claiborne is a Red Letter Christian and a founding partner of The Simple Way community, a radical faith community in Philadelphia. His forthcoming book, Executing Grace: Why It is Time to Put the Death Penalty to Death, comes out June 2016----Sojourners)


Airport shooter faces death penalty but actual execution appears a long shot

Federal death penalty cases are exceedingly rare, but prosecutors are already exploring the possibility of seeking execution for a military veteran who flew from Alaska to Fort Lauderdale to gun down nearly a dozen airport travelers.

For federal prosecutors, the contemplated capital case against 26-year-old Santiago Esteban won't be so much a whodunit - after all, he surrendered immediately after the deadly attack at Fort Lauderdale-Hollywood International Airport.

Rather, they will have to prove the former Army reservist premeditated the violent assault - and disprove the defendant's likely insanity defense that he didn't know right from wrong when he opened fire in a baggage claim area last Friday.

The decision to pursue the death penalty against Santiago, accused of killing 5 people and injuring 6 others, carries such gravity that it must be made by the U.S. Attorney General, with significant input from the U.S. Attorney's Office as well as the defendant's lawyers in South Florida.

Prosecutors will be weighing the pros and cons, deciding whether to put a federal grand jury on notice of their plans to pursue the death penalty when it considers an indictment before Santiago's arraignment on Jan. 23.

"There just aren't that many murder cases that lend themselves to the federal system and so almost all of them go to the state," said Miami defense lawyer Allan Kaiser, who worked as a federal prosecutor in South Florida for 16 years. "And as rare as these cases are, you can't just jump at the prospect of seeking a death penalty."

Even if Santiago were convicted and sentenced to die, an execution may be unlikely. The U.S. government, using lethal injection, has only executed three inmates since the federal death penalty was brought back in 1988. The last execution came in 2003, when Gulf War veteran Louis Jones was put to death for raping and murdering a teenage Army recruit in Texas. The feds earlier executed Oklahoma City bomber Timothy McVeigh, and Juan Raul Garza, a drug trafficker who murdered three rivals in Texas. For now, there are only 59 federal inmates awaiting execution, a small fraction of the hundreds on state death rows across the country. They are housed at a penitentiary in Terre Haute, Ind.

The 60th will likely be Dylan Roof, who shot and killed 9 black worshipers at a church in Charleston, S.C. A federal jury convicted him of hate crimes, and later recommended the death penalty. He is awaiting his final sentencing.

Federal prosecutors have only considered or sought the death penalty in a handful of Florida cases in the past decade.

Getting juries to go along isn't easy.

In 2003, prosecutors asked a jury for death against Jose Denis, a former Florida State University student accused of fatally shooting a cocaine dealer, point blank in the head, during a drug rip-off in a Hialeah motel room. But jurors, unsure if he was was the one who pulled the trigger, sentenced him to life in prison instead.

The outcome displeased U.S. District Judge Federico Moreno, who said he would have imposed death - but federal law prohibits a judge from overruling the jury.

In another high-profile case in 2007, federal prosecutors filed notice of charging the death penalty against two men who shot and killed the four-person crew of the Joe Cool charter boat, dumping their bodies overboard on the high seas. But ultimately, the attorney general did not authorize the death penalty. One defendant struck a plea deal before trial, resulting in life imprisonment. The other went to trial and was convicted, then sentenced to life.

Only one Florida federal case has resulted in the death penalty being meted out since the U.S. government reinstated the punishment almost 30 years ago. The defendants: Daniel Troya and Ricardo Sanchez Jr., who are now on federal death row for the 2009 slaying of a family, including 2 children, on the side of the Florida Turnpike in Palm Beach County.

While most death-penalty murder cases unfold in state court, Santiago is charged federally because the violent rampage took place at an international airport. Under federal law, he could be be punished by death if convicted of the 3 federal felonies.

Federal prosecutors have already announced they may seek the death penalty, saying the shooter admitted after his arrest that he planned the attack and bought a one-way ticket from Anchorage via Minneapolis to Fort Lauderdale. They will try to show his premeditation and intent to kill multiple victims who were elderly and vulnerable to make their case for the death penalty.

Defense lawyers must now begin compiling "mitigation" - the details of Santiago's biography that may spare him the possibility of execution.

In Santiago's case, his mitigation will undoubtedly focus on his history of mental illness, his stay in an Alaska psychiatric facility and his military experience in Iraq, including possible post-traumatic stress disorder.

2 months ago, Santiago went to the FBI in Anchorage to tell agents that he was hearing voices urging him to support the Islamic State terrorist group and that the CIA was pressuring him to watch training videos. Agents referred him to local police, who took his handgun from him while he underwent a psychiatric evaluation for a few days and then gave the firearm back to him in December.

Santiago is now accused of using that same weapon, a Walther 9mm, in the deadly attack at the Fort Lauderdale airport.

"This guy was clearly mentally ill. He reached out to the FBI because of his paranoia," said Miami capital-litigation lawyer Terry Lenamon, who is not involved in the case. "There will be a lot of mitigation to work with."

Kaiser, the former federal prosecutor who was involved as a defense attorney in the 2007 Joe Cool case, agreed with him.

"It's a tough death case," Kaiser said, citing Santiago's mental health problems, his approaching the FBI and his recovering the firearm from police. "Once you start peeling back the onion, you never know what you're going to find."

Miami defense attorney Bruce Fleisher, who has been involved in more than 80 capital and homicide cases, said no one should jump to conclusions about Santiago's state of mind based soley on his cold, calculating demeanor shown on an airport surveillance video of the shooting.

Fleisher said Santiago's defense team - including the federal public defender's office assigned to represent him this week - will have to conduct a complete historical, medical and psychiatric evaluation to assess his profile and gauge what made him snap.

"I don't think anyone can offer their opinion until they do their due dilligence," Fleisher said. "It's the ultimate due dilligence to investigate every aspect of your client's life. ... Does he have a viable insanity defense?"

Santiago's lawyers are expected to present mitigating factors to Miami's U.S. attorney, who must decide whether to recommend execution as a possible sentence. Then, a Department of Justice committee in Washington D.C. would meet to decide whether to recommend the ultimate punishment.

The process requires that defense lawyers fly to Washington D.C. to present their mitigation again.

That's what happened when Lenamon flew to D.C. on behalf of Reginald Mitchell, who was accused of killing an armored-car courier at the Calder Casino and Race Course. Prosecutors decided against the death penalty, and Mitchell wound up sentenced to 30 years in prison.

Ultimately, the decision will be up to the U.S. Attorney General, likely to be Sen. Jeff Sessions, who many expect to take a harder line on capital punishment than his predecessors under President Barack Obama. "We're going to be in a Republican administration," Lenamon said. "I think it's a distinct possibility that they may authorize the death penalty for him."

For the defense team, building that psychological and medical profile of Santiago will go hand-in-hand with preparing for the inevitable insanity defense.

But insanity defenses are notoriously difficult - lawyers must prove that a killer was insane enough that they didn't know right from wrong at the time of the crime.

1 prominent example: Miami's Liset Hernandez, who was driven to stab her 9-month-old baby to death by voices in her head warning her of the arrival of the Antichrist. Days after the 2006 murder, Hernandez was found covered in blood, hiding inside her closet with her older daughter.

Prosecutors agreed that Hernandez didn't know right from wrong, and she was acquitted by reason of insanity. Today, she remains at a home for the mentally ill, under court supervision.

But in Santiago's case, prosecutors would likely be able to prove a methodical premeditation: He packed his gun in a case, flew cross-country on a 1-way ticket, loaded his gun in an airport bathroom and cooly opened fire - before encountering a deputy while exiting the airport, then surrendering to police.

Santiago's "goal-directed" behavior will make an insanity defense difficult to prove by "clear and convincing evidence," said G.P. Della Ferra, a Miami death-penalty defense lawyer.

"You would presume if someone were in a full-blown manic episode - and didn't know right from wrong - they wouldn't have the capability to check in a gun, bring it to Florida, get it off the plane, load it and start firing," Della Ferra said. "All that shows he was acting pretty rationally."

(source: miamiherald.com)


Bishop opposes death sentence for man convicted of killing churchgoers

Jurors unanimously agreed to sentence Dylann Roof to death for killing 9 black churchgoers, but the local Catholic bishop has reiterated the Catholic Church's opposition to the use of capital punishment.

"We are all sinners, but through the father's loving mercy and Jesus's redeeming sacrifice upon the cross, we have been offered the gift of eternal life," said Bishop Robert E. Guglielmone of Charleston, S.C.

"The Catholic opposition to the death penalty, therefore, is rooted in God's mercy. The church believes the right to life is paramount to every other right as it affords the opportunity for conversion, even of the hardened sinner," he added.

"Sentencing Dylann Roof to death conflicts with the church's teaching that all human life is sacred, even for those who have committed the most heinous of crimes. Instead of pursuing death, we should be extending compassion and forgiveness to Mr. Roof, just as some of the victims' families did at his bond hearing in June 2015," the bishop added.

The jury had to reach a unanimous decision to sentence Roof to death. In closing statements before the deliberation Jan. 10, the unrepentant 22-year-old Roof told jurors that "I still feel like I had to do it," the Associated Press reported.

Had they disagreed, he would have been automatically sentenced to life in prison. He was convicted of 33 federal charges last month, including hate crimes. Roof acted as his own attorney and did not question any witnesses. In his FBI confession, he said he hoped the massacre would bring back segregation or start a race war, the Associated Press reported.

Guglielmone offered prayers of support for those who were killed and their families.

"Our Catholic faith sustains our solidarity with and support for the victims of the Emanuel AME Church massacre and their relatives. We commit ourselves to walk with these family members as well as the survivors as they continue to heal from the trial and this tragedy," he said.

The bishop asked people to continue to pray for the victims, survivors and families connected with the shooting. He also encouraged people to pray for Roof and his family.

"May he acknowledge his sins, convert to the Lord and experience his loving mercy," Bishop Guglielmone said.

Reverend Clementa Pinckney, pastor of Emanuel AME Church, Tywanza Sanders, Reverend Sharonda Singleton, Reverend DePayne Middleton-Doctor, Reverend Daniel Simmons Sr., Reverend Cynthia Hurd, Myra Thompson, Ethel Lance, and Susie Jackson were killed in the shooting.

(source: cruxnow.com----Contributing to this report was The Catholic Miscellany, newspaper of the Diocese of Charleston, S.C.)


Once 'near genius,' Marvin Gabrion's path to death row marked by abuse, mental illness, violence

Death-row inmate Marvin Gabrion may have been born into poverty, abuse and neglect. But in his early years, he showed promise, having a strong intellect and tender side for others.

He routinely helped elderly family, and cared for a cousin with mild mental disabilities while others shied away.

Described by a classmate as "very smart - near genius," he had an IQ of 121, which is at the lower end of the "very superior intelligence" category.

These descriptions and more are outlined in an incredibly detailed report, now filed with the court, that examines Gabrion's life and family stretching back four generations. It includes sobering vignettes about mental illness, mental and physical abuse, poverty, substance abuse and violence.

It's being used by his attorneys in Gabrion's quest to set aside his death penalty and conviction stemming from the murder of Rachel Timmerman, 19, of Cedar Springs, who was bound and drowned in 1997 before she could testify against Gabrion at a rape trial.

Despite his smarts, Gabrion didn't want to act like he was better than anyone else, the report said. Mostly, he was a loner, though he did stand up for other kids getting picked on. He stayed out of trouble. His presence in the school lunchroom could easily go unnoticed.

He was a miler on the track team. He wasn't the fastest - his best time was 5 minutes, 16 seconds - but he worked hard and helped the team. He had a young niece and nephew who adored him.

After he graduated from high school, he began a downward slide. He suffered an incredible number of head injuries, and struggled with mental illness and substance abuse.

His behavior became increasingly bizarre.

Now 63, Gabrion, is awaiting execution for the slaying of Timmerman, a teenage mom who'd accused him of rape the year before.

While Michigan law does not allow capital punishment, he was convicted under federal law - which allows executions - after prosecutors showed the young woman was slain on federal land in Newaygo County.

With his direct appeals exhausted, Gabrion has filed a civil procedure, or "collateral attack," seeking a new trial or sentence.

As part of that, his attorneys filed the 152-page document that examines Gabrion's life.

One of his 3 attorneys, Scott Graham of Portage, asked that the investigative report on Gabrion's family - extending from his parents to grandchildren of his cousins - be filed under seal because it contains highly sensitive personal information.

However, Assistant U.S. Attorney Timothy VerHey, who tried the case in 2002, said court records are presumed to be open. Filing the documents under seal would prevent public access to the Gabrion's arguments seeking to set aside his conviction and death sentence.

U.S. District Judge Robert Holmes Bell agreed. He said Gabrion's case has drawn significant public interest.

"Gabrion's collateral attack on his conviction and sentence raises numerous issues, including whether he received a fair trial, whether he received effective assistance of counsel, whether the death penalty is fairly administered, and whether his execution would violate the Eight Amendment (as cruel and unusual) in light of his mental illness and organic brain impairments," the judge said.

He said Gabrion's attorneys could redact names, which was not done.

"Marvin did not escape this family tree unscathed."

Gabrion, the 5th of 6 children, was born into a "family plagued by poverty" near Newaygo County's Round Lake.

Their father, who had a rocky relationship with their mother, questioned whether he was the biological father of all of the kids, the report said.

"To understand what catapulted him off his life's trajectory, it is important to know the many risk factors that were at play in his genetic and environmental make-up," the report said. "Several of Marvin's relatives suffer from mental illness, substance abuse and chaotic environments. Marvin did not escape this family tree unscathed."

The report said Gabrion's father gave his children "lickings," and once beat Marvin Gabrion's head into a wall until a brother rescued him.

When he was 4, Marvin Gabrion had to box an older brother as the rest of the family cheered them on, the report said.

Marvin Gabrion said that as a child, he did not get the same quality of clothes as his siblings, so he would steal them. "My mother would beat me up in stores when I asked for clothes," he said.

When he was about 12, 2 brothers held him down and "tried to smash his head with a large rock. Around that time, a brother fired a gun at him, the report said.

"When the family was short of money, Marvin Sr. complained they should have sold Marvin."

The family lived in a small cabin built by the father. The six children shared a bedroom partitioned by curtains.

They later moved to White Cloud. That house was described as "disgusting," with chickens and turkeys wandering inside and out.

A classmate recalled that Marvin Gabrion's shoes were 2 or 3 sizes too big, and split down the back. He had holes in his socks.

"Marvin was dirty and kids made fun of him," the report said. "The classmate felt bad for Marvin (and a brother), and tried to stop kids from teasing them. Marvin's whole family was dirty."

An "astonishing number" of brain injuries

The report said Gabrion's mother, Elaine, encouraged drug use by her children, and was busted trying to smuggle marijuana into jail for a son in 1980. She also taught her grandchildren to steal, the report said.

Meanwhile, Gabrion was being treated for bipolar disorder.

After he graduated from high school, Gabrion suffered an "astonishing number" of brain injuries in up to 14 car or motorcycle crashes. He went through the windshield more than once. Once, during a carjacking, he was hit in the head with an object.

A family friend hit Gabrion in the head with a baseball bat during a fight.

The head injuries took a toll, the report said.

He had trouble with everyday tasks. Tests showed he was in the "border-line range for a possible organic mental disorder ..." the report said.

Gabrion had lived in Arizona for a time in the 1970s. When he returned in 1979, his family noticed that he had "changed." He was "suspicious" and "acting paranoid."

He also drank excessively.

He frequented a bar where an in-law worked. Invariably, he would end up in a confrontation.

"Marvin would ... one by one ... piss off everyone in the bar ... it happened all the time," she said.

An evaluation in 1993 found "dramatic cognitive and behavioral impairments," the report said.

He was homeless, sometimes living on a roof on South Division Avenue, or in a shed in Comstock Park. His aggressive behavior got him thrown out of a shelter.

In 1996, he attended a high-school reunion where he was "completely nuts," a classmate told investigators.

He had a pencil mustache and had changed the pronunciation of his name.

By that time, he had racked up nine arrests for drunken driving. He got "even crazier" while drinking, the report said.

After he was arrested for Timmerman's killing, he wrote odd letters, in what sometimes appeared to be "indecipherable code."

He wrote the judge, prosecutors, the victim's family, penned letters to executed Oklahoma City bomber Timothy McVeigh, and the owner of the Dallas Mavericks, despite pleas by his attorneys to stop.

He tried to kill himself and heard voices, the report said. He attacked his attorney, in front of the jury, during the sentencing phase of his trial.

"During more than 15 years of incarceration and for about 40 years in total, Marvin Gabrion has behaved like a man suffering from severe mental illness," the report said.

(source: mlive.com)

A service courtesy of Washburn University School of Law www.washburnlaw.edu

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