December 1







TEXAS----impending execution

Clemency denied for 'Texas 7' prisoner scheduled for execution



A day after suing the Board of Pardons and Paroles, Texas death row prisoner Joseph Garcia lost his long-shot bid for clemency when the 7-member board denied him a favorable recommendation to the governor. He is currently scheduled for execution Tuesday in Huntsville.

The 47-year-old was sentenced to die nearly 2 decades ago for his role in the state's biggest prison break, a carefully plotted scheme followed by a crime spree and the slaying of a suburban Dallas police officer.

Even though the 7-member parole board unanimously rebuffed his request for a lenient recommendation, Garcia has a number of other claims pending in the courts as well as a request for reprieve in front of the governor.

"We are obviously disappointed," said defense lawyer Mridula Raman. "Justice could be served by having Joseph spend the rest of his life in prison. It is unfortunate that the board puts politics over fairness and mercy."

In December 2000, Garcia was serving time for a Bexar County slaying when he teamed up with 6 fellow prisoners to break out of a maximum-security prison south of San Antonio. Fleeing canines and helicopters, the men drove to Houston where they pulled off 2 store robberies to stock up on supplies and money before heading north toward Dallas.

There, on Christmas Eve, the crew of escapees robbed an Oshman's sporting goods - and on their way out, killed Irving police Officer Aubrey Hawkins. The men drove through a blizzard and headed to Colorado, where they were caught a month later posing as Christian missionaries and living in a trailer park.

Though 5 gunmen fired shots and 1 of them - ringleader George Rivas - confessed to shooting the cop, Garcia has long maintained he never opened fire.

Still, he was found guilty and sentenced to die under the law of parties, a controversial statute that can hold non-shooters as responsible as triggermen.

Challenging the use of that statute has become the center of one of Garcia's last-ditch legal battles. The Texas Court of Criminal Appeals ruled against him in that appeal on Friday, but in a 17-page dissent Judge Elsa Alcala wrote that "evolving standards of decency" might mean it's no longer permissible to execute someone who never intended to kill, and that it might not serve a penological purpose.

Late Friday, Garcia's attorneys appealed up to the U.S. Supreme Court.

The same day, his legal team filed a federal lawsuit over the state's lethal injection supplier. Echoing a letter sent to the governor earlier in the week, the suit focuses on concerns stemming from a BuzzFeed News report on Wednesday that identified the Houston compounding pharmacy believed to be 1 of 2 responsible for making up the batches of pentobarbital used in the Huntsville death chamber.

Since the Braeswood-area business had a track record of safety violations documented by the state, Garcia's attorney's asked the federal court to ban the state from using drugs compounded there or to simply call off Garcia's execution.

In addition to the new filings on Friday, Garcia has an appeal challenging the Bexar County conviction that originally put him behind bars; a lawsuit alleging the state's parole board has too many ex-law enforcement members; and a request for reprieve in front of the governor.

(source: Houston Chronicle)

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State-Sanctioned Secrecy Shields Texas’ Death Penalty Machine from Scrutiny----New revelations about the source of Texas’ execution drugs underscore the risks of capital punishment shrouded in secrecy.

Shortly before he died by lethal injection earlier this year, Anthony Shore, Houston’s infamous “tourniquet killer,” exclaimed that he felt a burning sensation. Later that month, condemned killer William Rayford reportedly grimaced and writhed on the gurney during his final moments. Chris Young, executed this summer over the objections of his victim’s surviving son, was one of several death row inmates who said he could feel the drugs burning in his throat before he died.

On Wednesday, Buzzfeed News reported that Texas buys execution drugs from Greenpark Compounding Pharmacy in Houston, which state health officials have repeatedly cited for dangerous practices in recent years, including for giving kids the wrong medicine and forging quality control documents.

After the Buzzfeed report, lawyers for Joseph Garcia — set to die Tuesday for his role in a deadly 1999 prison escape — urged Governor Greg Abbott to give Garcia a 30-day reprieve, saying the revelation raises questions about the quality of Texas’ death drugs. Killing Garcia next week, his attorneys argue, subjects him to the “unreasonable risk of a cruel execution."

Secrecy has always been a part of the American death penalty machine. Executioners donned hoods when the condemned were hanged in the public square, and by the 19th century, pressure from death penalty abolitionists had pushed officials to hold executions behind prison walls. In most of the 30 states that authorize the death penalty, the names and qualifications of anyone involved in administering the ultimate punishment are withheld from the public. Laws in some states even threaten to punish journalists who dig up and publish such information.

Many death penalty states, including Texas, began to shield the identity of execution drug suppliers over the past decade as large drug manufacturers distanced themselves from state-sanctioned killing. As their supply chain dried up, Texas officials turned to compounding pharmacies, which aren’t subject to the same strict federal standards as large drug companies, and began to restrict what information it publicly released about the drugs used in executions. In 2015, after it became clear these smaller pharmacies wouldn’t peddle execution drugs in public, the Texas Legislature passed a law shrouding them in secrecy.

"Secrecy is bad practice, bad policy and bad government. It continues to erode public confidence in whether states can be trusted to carry out capital punishment."

As states veiled their shifting execution protocols and drug suppliers, reports of botched executions — such as prisoners who appeared to be suffocating or experiencing excruciating pain while strapped to a gurney — began to rise, according to a report by the Death Penalty Information Center released earlier this month. The report argues that secrecy prevents the public from having an honest conversation around the death penalty, while simultaneously undercutting inmates’ Eighth Amendment claims and increasing the risk of a painful execution.

“Secrecy is bad practice, bad policy and bad government,” said Robert Dunham, the group’s executive director. “It continues to erode public confidence in whether states can be trusted to carry out capital punishment.”

Until this week, Greenpark Pharmacy’s role in Texas’ death penalty machine was a closely guarded secret. Someone who answered the phone at the pharmacy on Friday refused to comment, as did a spokesperson for the Texas prison system.

The governor’s office hasn’t yet responded to Garcia’s lawyers’ request for a 30-day reprieve. Moving forward with his execution next week, they say, “creates a grave risk that he will be put to death in violation of his Eighth Amendment right to be free from cruel and unusual punishment."

(source: Texas Observer)

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Supreme Court saved Bobby Moore from execution once. It should do it again.



The job of a judge is to follow the law. If we are to be, as Chief Justice John Marshall wrote, “a government of laws, and not of men,” the lower courts must carefully apply the precedent of the Supreme Court. Unfortunately, the top criminal court in my home state of Texas is not following this foundational constitutional principle in a matter of life and death.

Last year, in a case involving a death row prisoner named Bobby Moore, the U.S. Supreme Court held that Texas’ framework for determining whether a capital defendant had an intellectual disability — and was therefore exempt from execution — violated the Eighth Amendment. The rejected Texas criteria had in some circles become known as “the Lennie standard” because it invited the courts to compare the defendant with the fictional character Lennie Small in Of Mice and Men — a giant man with the mind of a child.

With respect to Moore, the Supreme Court ruled the Texas Court of Criminal Appeals wrongly relied on non-clinical criteria about intellectual disability to uphold his death sentence. Three justices dissented from the court’s reversal. But as all justices agree, the Supreme Court’s majority decision is the law of the land. And all justices unanimously agreed that Texas’ use of lay stereotypes was erroneous and unconstitutional.

The Supreme Court’s majority opinion emphasized that, as a 13-year-old, Moore lacked a basic understanding of the days of the week, the months of the year, telling time, the seasons and the concept that subtraction is the reverse of addition. Stressing that Moore’s serious mental and social difficulties were clear from early childhood, the court highlighted what it called “the considerable objective evidence of Moore’s adaptive deficits.” The majority also held that Moore’s IQ is well within the range of intellectual disability, an issue that is no longer in dispute. As is customary, the Supreme Court then sent the case back to the Texas court for further proceedings.

If the system were working as it should, Moore’s case would have been a routine matter of the Texas court applying the Supreme Court’s decision and current medical standards as directed and prohibiting Moore’s execution. Even the prosecutors, who had obtained the death penalty against Moore, agreed in a formal filing to the Texas court that, in light of the controlling medical and legal standards, Moore is intellectually disabled and should not be executed.

Yet in a stark conflict with black letter law, the state appellate court again ruled that Moore is not intellectually disabled and set him on course for execution. The decision made reference to the Supreme Court’s ruling but for the 2nd time relied on lay stereotypes and non-clinical criteria despite the Supreme Court’s explicit instructions.

While I have no doubt about the good faith of the esteemed judges in Texas, their decision deviates sharply from the Supreme Court’s prior decision. The Supreme Court justices should again accept review of Moore’s case and summarily reverse this latest ruling. The Texas court, in reaching its closely divided decision, rejected the consensus of the highest court in the country, the state trial judge who held the evidentiary hearing and all parties and amici before the court — including the prosecutors, prominent Texans concerned with the rule of law and leading medical organizations.

Reasonable minds can differ about the death penalty. Some urging the Supreme Court to take up Moore’s case again support capital punishment, and some oppose it. But these citizens supporting Moore, including leading conservatives, are committed to upholding the Constitution, which established “one Supreme Court.” In giving the court the last word, the framers intended that the Constitution would be applied consistently, without exceptions and regardless of the status of a particular litigant.

I am not an abolitionist on the death penalty. I favor it in appropriate cases. But I also believe we must vigilantly observe the constitutional constraints on this ultimate sentence. In our constitutional system, courts must carefully adhere to Supreme Court decisions on all issues — especially on this vitally important subject of life and death.

In this instance, a narrow majority of Texas judges may have believed that the Supreme Court was wrong about Moore. But this does not matter, as I know from my own experience as an appellate judge. The state judges had an inviolable duty to ensure that its proceedings were consistent with the court's decision. As then-U.S. Court of Appeals for the District of Columbia Circuit Judge Brett Kavanaugh put it: “As a lower court in a system of absolute vertical stare decisis headed by one Supreme Court, it is essential that we follow both the words and the music of Supreme Court decisions."

For our system to work, the Supreme Court must make sure that its rulings are respected and faithfully applied. In this case, I hope the Supreme Court will act to correct the Texas court’s fundamental error, especially since Moore faces the most extreme punishment our government can impose. Ignoring this departure from binding authority would be inimical to our bedrock constitutional principles.

(source: Op-Ed; Kenneth Starr served as U.S. solicitor general from 1989 to 1993 and U.S. Circuit judge for the District of Columbia Circuit from 1983 to 1989. He joined an amicus brief supporting summary reversal in the U.S. Supreme Court in the pending Bobby Moore case----Washington Post)








FLORIDA----new death sentence

Judge sentences Colley to death in 'execution' of wife, her friend----Colley gunned down 2 women in August 2015 rampage



A man who gunned down his estranged wife and her best friend in the couple's upscale St. Johns County home in 2015 was sentenced to death Friday for their murders.

A jury unanimously recommended the death penalty for James Colley Jr. in July, and Circuit Judge Howard Maltz followed that recommendation Friday, saying Colley's conduct deserved the "harshest penalty" allowed by Florida law.

In addition to 2 counts of 1st-degree murder, Colley was convicted of 2 counts of attempted 1st-degree murder, 2 burglary counts and a count of aggravated stalking. Maltz tacked on life in prison sentences for the attempted murder charges.

At a Spencer hearing in October, Colley apologized and called the killings a "terrible accident."

"I wish it would have been different, but it's not, and I'm sorry for all parties involved," Colley said.

A Spencer hearing typically is the last chance for a defendant facing the death penalty to persuade the court to spare his life.

Speaking in measured words Friday, Maltz scoffed at Colley's claim that the murders were an accident, saying Colley “executed” the 2 women “in the prime of their lives” and “devastated” their families.

"You characterized what happened as a horrible accident," Maltz said to Colley. "Nothing could be further from the truth based upon the evidence that was presented. The evidence presented in this case establishes that these murders were committed in a cold, calculated and premeditated manner."

Colley killed his estranged wife, Amanda, and her best friend, Lindy Dobbins, when he went on a shooting spree inside the couple’s home on Aug. 27, 2015.

A woman who survived the deadly rampage testified that Colley showed up uninvited at the home, looking for a man he believed was in a relationship with Amanda Colley, 36. Earlier that day, Colley had been ordered by a judge not to have contact with his wife, who had an injunction against him.

Rachel Hendricks told jurors that she and Dobbins, 39, ran and hid in a walk-in closet after Colley appeared in the backyard of the home carrying a gun and opened fire.

Hendricks said Colley forced his way into the closet and held the gun to Dobbins' head as Hendricks ran for her life. She said she heard a shot as she fled.

Prosecutors said Amanda Colley heard her best friend being shot in the closet before James Colley found her, wounded on the bathroom floor, and shot her multiple times as she begged for her life.

The grisly murders were captured on an agonizing 911 call.

Colley took off after the shooting spree and was arrested after a traffic stop in Virginia hours later. He has been in custody ever since.

Colley did not speak in court Friday. His mother said after the sentencing, "I love my son no matter what, and the whole story was not told."

Colley’s attorney told News4Jax he plans to appeal for a new trial. Colley's conviction and sentence will be automatically appealed to the Florida Supreme Court.

The Colleys had 2 children, who are now being cared for by family, and Dobbins had three children, who are now being cared for by their father.

State Attorney R.J. Larizza, who attended the hearing and sat with the victims’ families, said “[f]or those who believe the death penalty to be barbaric, how would they feel if they were there to witness the cold and barbaric murders of Amanda and Lindy? It is our hope that the family will find some peace and comfort now that the defendant was held accountable for his actions."

(source: news4jax.com)

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New jury to consider death sentence for convicted killer Juan Rosario, judge rules



Convicted killer Juan Rosario will get a 2nd chance to avoid the death penalty, after a judge on Thursday threw out a jury’s recommendation that he be sentenced to die.

Circuit Judge Leticia Marques ruled that the attorneys who defended Rosario at trial last year, Roger Weeden and Luis Davila, did not represent him effectively in its penalty phase, during which 12 jurors unanimously recommended Rosario’s execution.

Rosario was convicted last year of killing 83-year-old Elena Ortega in her home on Turnbull Drive, near South Semoran Boulevard.

During Rosario’s trial, his ex-girlfriend told jurors that he broke into Ortega’s home early on Sept. 18, 2013, to commit a robbery - but Ortega woke up and, when Rosario realized she saw his face, he beat her until she was unconscious and set fires to 3 rooms in her house to try and get rid of any evidence.

The case went unsolved for months until Rosario was arrested in another home invasion and his ex-girlfriend, Janet Gutierrez, decided to tell Orange County deputies what she said Rosario had told her when he came home the morning of Ortega’s death.

Jurors recommended a death sentence for Rosario June 2, 2017. But the case stalled after he asked for new attorneys, who needed time to prepare for the hearing at which Marques was to decide whether to abide by the jury's recommendation and send Rosario to death row or override it and sentence him to life without parole.

That hearing was scheduled for Friday - but it was cancelled Thursday afternoon when Marques issued her ruling. The judge’s order does not overturn Rosario’s guilty verdict, only the jury’s recommendation for a death sentence.

“Even though Mr. Weeden had represented [Rosario] since January 2015, he and Mr. Davila were patently unprepared for the trial’s penalty phase,” Marques wrote. “They failed to conduct even a basic mitigation investigation, such as retaining a doctor to examine [Rosario]."

Weeden said he was “extremely pleased” that his former client will get another chance to avoid a death sentence.

Weeden said he had asked the court for extra time to get experts on topics including mental health, medical and intellectual disability and substance abuse to testify for Rosario - the "same experts and testing” he said were later granted to Rosario’s new lawyers, “through which [they] obtained this order for a new penalty phase trial."

A new penalty phase has not been scheduled. In her order, Marques acknowledged that it could take years.

"The years preceding an inevitable retrial of [the] defendant’s penalty phase would result in an even greater emotional toll on the victim’s family, additional costs to Florida taxpayers and the risk of witness unavailability due to the passage of time," Marques wrote.

(source: Orlando Sentinel)








ALABAMA:

Prospective gassing of human beings in Alabama is an abomination



When, in October 2016, I wrote “[d]eath row inmates in Alabama are human guinea pigs” because the state’s capital punishment regime - specifically its barbaric, often bungled lethal injection protocol - is already so dark, so depraved, so outrageously cloaked in lies and officious secrecy, I never could have predicted the situation could get worse. But it has.

In glaring contrast to the heavily circulated, smiling picture of exonerated former Alabama death row inmate Anthony Ray Hinton, ebullient after voting for the first time in a midterm election since being freed in 2015, after a hellacious 30 years on Alabama’s death row, it’s important to understand: the death penalty in Alabama has gotten far worse since Mr. Hinton’s release - not better. First, because of the cynically named “Fair Justice Act,” convoluted legislation hacksawing fundamental constitutional rights of (overwhelmingly indigent) death-sentenced defendants, signed into law last year - over the varied, vociferous, published objections of the ACLU, a highly respected Harvard Law School professor, defense attorneys in the state, myself, and even Mr. Hinton - it is far easier under current Alabama law, for an innocent person like Mr. Hinton, to be convicted and sentenced to death.

Second, despite a fairly recent slew of patently botched lethal injections, including that of Ronald Bert Smith, Torrey McNabb, and Christopher Brooks — as well as the bloody, horrific, and failed execution attempt of Doyle Hamm, during which, among other atrocities, state executioners repeatedly (and futilely) jabbed multiple needles into Hamm’s groin and pelvis — Alabama has coldly, inhumanely, and, as I wrote elsewhere in June, steadfastly continued “its odious tradition of ducking and dodging transparency and accountability in how the state puts its prisoners to death.” I’d presaged this discomfiting conclusion several months earlier, in October 2017, in a piece for USA Today, after McNabb’s shameful, gruesome torture; in it, I dubbed the Commissioner of Alabama’s Department of Corrections (ADOC) “‘Baghdad Bob’ of Alabama’s death row.”

Pouring accelerant on this already demoralizing and distasteful dumpster fire, a just-released report by the Death Penalty Information Center (DPIC), “Behind the Curtain: Secrecy and the Death Penalty in the United States,” observes: “Alabama has one of the most restrictive secrecy policies in the nation, consistently maintaining that all documents associated with an execution are confidential.” (While he wasn’t focusing on the modern death penalty, in reviewing W. Fitzhugh Brundage’s new book “Civilizing Torture: An American Tradition” for the L.A. Times, author Colin Dickey recently and insightfully wrote: “The work of American torture has always been twofold: not just the violence itself, but the complex legal and rhetorical strategies that obfuscate it away to maintain a myth of America as a civilized place without cruel and unusual punishment.”)

And now, as if this wasn’t all ghastly enough - this undeniable fact Alabama has been torturing poor people for a long time, and that it shows no sign of stopping - the Montgomery Advertiser’s Bryan Lyman wrote on November 23rd that the state is planning to augment the barbarism involved in its executions to even greater and more unseemly dimensions; Lyman reports that plans are now underway for Alabama to develop a protocol to execute death row prisoners with nitrogen gas.

But, Lyman notes, because “[n]itrogen asphyxiation has never been used in capital punishment before,” Alabama “finds itself inventing a method of execution.” Soberly and pointedly, Lyman observes: “The American Medical Association authorizes the use of the method in animal euthanasia, though only for birds and small animals.” Relatedly, in March, Robert Dunham, Executive Director of DPIC, tweeted: “The World Society for the Protection of Animals lists nitrogen inhalation as ‘not acceptable’ for animal euthanasia because loss of consciousness is not instantaneous, and dogs euthanized by nitrogen gas have been observed convulsing and yelping after ‘falling unconscious.’”

Also in March, following Alabama’s vengeful killing of an 83-year-old man, I urged that during such dreary, desolate days for death penalty abolitionists, unusually sage insight, and perhaps also, the solace of understanding, can be gleaned from the words of writer James Baldwin. The same is true today as more and more developments emerge about the prospective state-sanctioned killing of human beings with nitrogen gas in Alabama - and even more depressingly, in other states like Oklahoma and Mississippi (which have approved the procedure), too.

In his essay “What Price Freedom,” Baldwin postulated: “I still believe when a country has lost all human feeling, you can do anything to anybody and justify it, and we do know in this country we have done just that.” Borrowing from Baldwin further, and speaking directly to Alabama’s Attorney General’s Office and the ADOC, Baldwin concluded, in yet another one of his piercing essays “The Uses of the Blues,” that “[i]n evading [death row prisoners’s] humanity, you have done something to your own humanity.”

But, last time when I wrote how James Baldwin’s writing helps us to understand the continued dastardly use of the death penalty, I also wrote about Dr. Martin Luther King, Jr., and, I let Baldwin get the last word; this time, it’s with the power of Dr. King that I’ll close. Because it was Dr. King who, from his humble pulpit on Dexter Avenue in Montgomery, Alabama, began a nonviolent movement in this country - a movement for justice, for equality, for humanity, a movement for the betterment of all mankind - a movement that continues to this day.

In his book Why We Can’t Wait, Dr. King wrote these hallowed words, words that all Alabamians, and indeed all Americans, still have not fully internalized, accepted, and allowed to become part of our baseline morality: “Man was born into barbarism when killing his fellow man was a normal condition of existence. He became endowed with a conscience. And he has now reached a day when violence toward another human being must become as abhorrent as eating another’s flesh.”

With the prolonged picking and poking of condemned prisoners with needles, the “choice” of electrocution, and now, perhaps, also nitrogen gassing, we’re not there yet. Not even close.

(source: Stephen Cooper is a former D.C. public defender who worked as an assistant federal public defender in Alabama between 2012 and 2015----Los Angeles Post-Examiner)








OHIO:

Dominique Swopes Indicted For Murder Of Mayfield Heights Mom----A Grand Jury handed down the indictment this week. The Cuyahoga County Prosecutor said he may seek the death penalty in the case.



Dominique Swopes has been indicted for the murder of Rebecca Pletnewski and her daughter Olivia Schneider. Swopes could face the death penalty, Cuyahoga County Prosecutor Michael O'Malley announced.

A Cuyahoga County Grand Jury indicted Swopes for aggravated murder. In total, he faces 14 counts, including aggravated murder, aggravated burglary, aggravated arson, tampering with evidence, receiving stolen property, murder, and felonious assault.

The indictment also reserves the right to seek the death penalty at a later date. "We are evaluating this crime as a potential death penalty case for the senseless killing of Ms. Pletnewski and her young daughter," O'Malley said on Friday.

Bond was set at $5 million for Swopes on Wednesday, Nov. 28.

Law enforcement announced Monday they would seek an indictment for murder and arson.

Pletnewski's home on Longwood Road caught fire on November 20. She was found dead inside the house by firefighters. Her 8-year-old daughter, Olivia, was rushed to Hillcrest Hospital where she later died from smoke inhalation.

The Cuyahoga County Medical Examiner later ruled that Pletnewski was dead before the fire was set. The cause of her death was "cervical compression with sharp force injuries." That effectively means the 41-year-old was stabbed in the spine.

Mayfield Heights Police Chief Fred Bittner told Fox 8 that Pletnewski's family said Swopes had been potentially stalking the woman. "He became our primary suspect at the time after talking to family," Bittner said.

(source: patch.com)

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Closure deserved in boy’s death



We see a sad irony in the fact that one defendant in the 1985 brutal murder of 12-year-old Raymond Fife - the one who was sentenced to serve a life term — died last week in prison, while the other defendant - the one sentenced to be executed more than 30 years ago - still lives in Ohio’s prison system.

Ohio death row inmate Danny Lee Hill, now 51, has been incarcerated with the Ohio Department of Rehabilitation and Correction since 1986. That’s 32 years of being supported at taxpayers' expense and 32 years of using publicly funded defense attorneys to appeal and fight his death sentence over and over and over again.

The other defendant, Timothy Combs, died earlier this month while incarcerated at Grafton Correctional Institution in Lorain County. He was 50. He had not been eligible to face the death penalty in his crimes because he was only 17 when the brutal assault and slaying of a 12-year-old boy occurred as he rode his bicycle home after a Boy Scout meeting.

Undoubtedly every person who ever is accused of a crime in America deserves due process and the right to be presumed innocent until proven guilty. But we, like most local residents who recall the heinous crime and subsequent trial, are growing tired and frustrated with the never-ending parade of motions and legal maneuvers that continue to stall Hill's execution - even after his criminal conviction was first pronounced and subsequent appeals have upheld it.

In the days after Combs' Nov. 9 death, his young victim's mother, Miriam Fife, said the killer’s death left her no cause to rejoice.

“This is not something that I celebrate,” she said, but then noted, “I will be able to rest in peace that he will not be able to get out and do what was done to Raymond to anyone else."

Miriam Fife’s words were spoken with the dignity — and profound sadness — that have remained all these years.

Certainly, she now deserves to have that same closure and opportunity to rest in peace with an end to the appeals by her son’s other killer.

Indeed, Trumbull County Prosecutor Dennis Watkins and his staff have fought tirelessly for that closure.

Isn’t it time?

(source: Editorial, Tribune Chronicle)
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