Apirl 17
OHIO:
Cleveland man guilty in Mr. Cars slayings, faces death penalty
A jury on Tuesday found a Cleveland man guilty of aggravated murder in the
execution-style killings of a couple and their dog inside the used car lot they
owned.
Joseph McAlpin will now face the death penalty in the March 2017 deaths of
Michael Kuznik and Trina Tomola inside the Mr. Cars lot in the city’s
Collinwood neighborhood.
Jurors found McAlpin guilty of all counts he faced. The verdict will kick off a
2nd phase of the trial on Monday in which prosecutors will seek to convince
jurors that McAlpin ought to be sentenced to death.
Jurors will ultimately recommend a sentence of either death by execution or
life in prison. Common Pleas Court Judge Brian Corrigan has the final say and
can either accept the jury’s recommendation or lessen it.
Members of the Kuznik and Tomola families, who attended much of the testimony
throughout the 3-week trial, wept when Corrigan read the verdict.
Cuyahoga County Prosecutor Michael O’Malley told reporters late Tuesday that he
expected the verdict, but didn’t consider it a victory.
“There are three children who don’t have their parents," O’Malley said. “Even
though [McAlpin] was found guilty on all counts today, it’s really not a
victory when you have to look at the family and the scars that will forever be
on them.”
McAlpin represented himself at trial, a move that is believed to be the 1st in
a capital trial in Cuyahoga County history. He remained motionless and did not
react as the verdict was read.
Prosecutors relied on DNA evidence, cellphone records and testimony from a man
who admitted to helping McAlpin carryout what was supposed to be a simple
burglary to steal cars and titles.
Prosecutors say McAlpin entered Mr. Cars and shot Kuznik, 47, in the showroom.
The bullet grazed Kuznik’s face before he ran to a backroom, where McAlpin
stood over him and shot him in the top of his head, prosecutors say.
Investigators found McAlpin’s DNA in Kuznik’s back pocket, where prosecutors
said he had put cash from 2 car sales earlier in the day. The cash was not
found on Kuznik’s body.
Tomola, 46, tried to run from the building during the robbery. McAlpin shot her
in the back of her head, near an exit, prosecutors said.
McAlpin also shot and killed the couple’s Doberman Pinscher, Axel, who
accompanied the couple to work every day for protection, prosecutors said. He
also disabled the car lot’s security video systems before stealing the cars.
Investigators found McAlpin’s DNA on a computer modem that was inches from
Tomola’s body, and inside a BMW sedan that was stolen during the killings,
prosecutors said.
McAlpin’s admitted accomplice, Andrew Keener, pleaded guilty to involuntary
manslaughter and agreed to testify for the state at trial. Keener told jurors
that he and McAlpin’s brother, Jerome Diggs, waited outside the lot while
McAlpin went in. Keener testified that he spoke on the phone several times with
McAlpin while he was in the dealership before McAlpin summoned him to drive a
Mercedes sedan away from the lot while McAlpin followed in the BMW.
Keener is set to be sentenced after McAlpin’s trial wraps up. Diggs has pleaded
not guilty to charges including aggravated murder, and his case is pending.
Google Location Services put McAlpin’s location at the store at the time of the
slayings, Assistant Cuyahoga County Prosecutor Brian Radigan said, as did
information from cellphone towers. The Google locations stopped around 5:30
p.m., which Radigan said happened because the modem with McAlpin’s DNA on it
was ripped from the wall.
Cellphone towers later put McAlpin’s location on West 48th Street, where police
found the stolen BMW, Radigan said.
McAlpin pointed out that prosecutors had no eyewitnesses to the shooting and no
video evidence of what happened inside the Collinwood used car lot.
He criticized the DNA evidence prosecutors said showed he was inside the used
car dealership and in a BMW that was stolen during the robbery.
McAlpin also said he did not have his phone at the time of the slayings.
Investigators used information from the cellphone, including Google Location
Services and cellphone tower pings from McAlpin’s phone.
He called Keener a liar who told police what they wanted to hear to spare
himself.
“I’m not a monster,” McAlpin said during closing arguments on Monday.
(source: cleveland.com)
********************
Is this the beginning of the end for Ohio's death penalty?
Jeffrey Wogenstahl was supposed to die today.
If things had gone according to plan, he would have been strapped to a table
this morning and injected with lethal drugs.
His loved ones, lawyers and the family of the 10-year-girl he was convicted of
killing could have watched.
But that won't happen.
Wogenstahl's case began in 1991 when 10-year-old Amber Garrett went missing and
was found dead three days later in Indiana. A jury found him guilty of beating
and stabbing the girl to death. Wogenstahl was 31 at the time. He's 58 now.
After 27 years of lawsuits and appeals with 3 cases pending at the county,
state and federal level, Wogenstahl was granted an indefinite stay of execution
by the Ohio Supreme Court last fall due to open questions about his case.
Since then, Ohio Gov. Mike DeWine has suspended all executions in a continuing
struggle for the state to find a painless way to kill death row inmates.
With drug suppliers refusing to allow their products to be used to kill people
and botched executions making headlines, Ohio's death penalty is on life
support.
Wogenstahl managed to live past the day Ohio first scheduled for his death
without the help of Mike DeWine, buthe andthe 137 other people on death row are
likely wondering what the governor and legislature might do next.
The problem with midazolam
DeWine recently ordered the Ohio Department of Rehabilitation and Correction to
find a new method for executing death row inmates. Until that happens, all
executions are on hold.
A federal magistrate called Ohio's three-drug death penalty protocol "cruel and
unusual punishment" banned by the U.S. Constitution. That carried weight with
the governor.
"Having that opinion in front of me, I felt that Ohio shouldn't be carrying out
an execution while we know those facts," DeWine told The Enquirer.
The main problem: the first drug administered, midazolam.
Midazolam is a sedative used in some surgeries to relax the patient and block
the formation of traumatic memories. It's not a painkiller, even at high doses,
experts testified before the federal magistrate.
Midazolam can lead to pulmonary edema, a condition where fluid fills the lungs
making it difficult to breathe. One doctor compared it to the torture technique
of waterboarding. And the amount of midazolam that Ohio uses to execute
prisoners would cause "severe burning sensations in the blood vessels," a
doctor testified.
An autopsy showed Hamilton County Killer Robert Van Hook suffered from the
condition when he was executed in July 2018. He was the last person put to
death before DeWine's suspension.
After the midazolam, Ohio then injects a paralytic and potassium chloride to
stop the inmate's heart. Without an analgesic, the inmate would feel the pain
of both those drugs even if he were unconscious, according to doctors'
testimony.
Ohio executed 3 death row inmates using this 3-drug combo. But the next person
executed in Ohio will likely die by another method.
Hunt for execution drugs
Across the nation, states have struggled to access drugs to execute death row
inmates.
Ohio used a single drug, pentobarbital, until manufacturers refused to sell it
to states for executions. So the state switched to an untested, two-drug
combination of midazolam and hydromorphone for Dennis McGuire, who was
convicted of raping and fatally stabbing a pregnant woman.
McGuire's execution in January 2014 took almost 26 minutes – the longest since
Ohio reinstituted the death penalty in 1999. He struggled, gasped for air and
choked for about 10 minutes before eventually dying, according to a Columbus
Dispatch witness.
The fallout from McGuire's execution stalled Ohio's death penalty for 3 1/2
years.
During that time, the state created its new 3-drug protocol and changed
policies to obtain the drugs.
Legislators passed a law granting anonymity to compounding pharmacies that
prepare Ohio's lethal-injection drugs. The state ordered the drugs through the
Ohio Department of Mental Health and Addiction Services rather than the prison
system, according to a Dispatch report.
On July 26, 2017, Ohio executed inmate Ronald Phillips with the new method and
newly acquired drugs. The state's death penalty was back in business.
Or it was before the federal magistrate compared Ohio's execution protocol to
waterboarding earlier this year.
State Public Defender Tim Young and his office are leading a lawsuit against
the current lethal injection practices. One problem: Ohio keeps changing its
methods.
"Whenever the Department of Correction changes the protocol, you essentially
reset the litigation," Young said.
Though he agrees with the governor's actions, Hamilton County Prosecutor Joe
Deters said the debate over what drugs to use is just a charade to obstruct the
death penalty in a state where the public supports it.
"The reality is we are killing someone. It's not pretty. It's ugly," he said,
rattling off alternatives to lethal injection. "We've got a boatload of
fentanyl sitting in (storage) right now. Bring back the firing squad. That has
been ruled constitutional."
The DeWine difference?
DeWine's political experiences have given him a unique perspective on capital
punishment.
He sponsored legislation to reinstitute the death penalty legislation as a
state lawmaker, fought against death row inmates' appeals as the state's
attorney and now governs a state where the death penalty is legal.
DeWine, a Republican, is also a devout Catholic. Last year, Pope Francis
declared capital punishment to be wrong in all cases, saying the church will
work "with determination" to abolish the practice worldwide.
But should Ohio continue the death penalty? DeWine didn't take a stance when
asked by The Enquirer.
"That is a discussion that certainly can take place, but I’m not going to
engage in that today," he said.
Opponents of the death penalty still see DeWine as their best hope to end – or
at least stall – capital punishment in Ohio.
"Gov. DeWine has been very thoughtful, and he has been careful," said Kevin
Warner, executive director of the group Ohioans to Stop Executions.
Former Gov. John Kasich was also quick to stall executions when the federal
court deemed Ohio's protocol unconstitutional.
"Ohio has a history of problematic executions, but Ohio has also had governors
who don’t want to torture prisoners to death," said Robert Dunham, executive
director of the Death Penalty Information Center, a national non-profit
organization that does not take a stance on capital punishment but has been
critical of its implementation.
"Other states don’t seem to care as much," he said.
Lawmakers to end death penalty? Not likely
20 states have abolished the death penalty. Some, such as Michigan, have never
executed a prisoner. Others have outlawed it in the past decade, concerned
about its constitutionality, racial bias, cost or potential wrongful
convictions.
But Ohio is unlikely to join that list anytime soon. The state's GOP-controlled
Legislature has little appetite for limiting, much less banning, capital
punishment.
In 2011, Ohio Supreme Court Chief Justice Maureen O'Connor, a Republican, led a
task force of judges, prosecutors, defense attorneys and academics, who studied
ways to improve the state's death penalty.
One recommendation – to ban the death penalty for individuals with a documented
serious mental illness – has been proposed repeatedly by a bipartisan group of
lawmakers only to die in committee.
The main opponent to these limits on the death penalty: the Ohio Prosecuting
Attorneys Association.
"We support the death penalty," the association's executive director Louis
Tobin told The Enquirer. "It’s a recognition that some people can’t be
rehabilitated."
If Ohio offered an exception for serious mental illness, everyone on death row
would be filing some proof of their mental health issues, Tobin said. The court
battles would drag on, leaving victims' families in limbo.
Democratic lawmakers have repeatedly introduced bills to abolish the death
penalty in Ohio to no avail. Still, Sen. Nickie Antonio, D-Lakewood, said she
sees DeWine's call for a new protocol as an opportunity to move the
conversation forward.
"Any time there’s difficulty in figuring out how to execute people, that’s a
window to discuss whether the death penalty is even appropriate," Antonio said.
But it's possible DeWine's delay could have the opposite effect. Lethal
injection is currently the only execution method on the books in Ohio, but
lawmakers could recommend an alternative, such as electrocution, firing squad,
gas chamber or hanging.
Senate President Larry Obhof has said he's happy to explore other options.
"We are all concerned that if you're going to have capital punishment, you
should have a process in place that courts are willing to accept and meets
constitutional muster," he told The Enquirer.
Wogenstahl's fight for a new trial
When the jury announced Wogenstahl was guilty, he broke down in tears. As he
was led for the courtroom he shouted: "I didn't do it. I'm sorry. I didn't do
it."
He has steadfastly maintained he is innocent.
When 10-year-old Amber was killed, there were no witnesses.
Among other things, prosecutors pointed to a hair found on Amber's clothes, a
jailhouse confession to fellow inmate Bruce Wheeler and blood evidence.
Since his conviction, the Department of Justice admitted that what an expert
told the jury about the hair “exceeded the limits of science.”
His attorneys say Wheeler was made promises by the prosecution despite saying
the opposite in court.
They uncovered police records showing Amber’s mother and brother were
hypnotized by a Harrison police officer. Other documents showed that police
were told before the trial Amber had previously been sexually assaulted and her
mother was involved with drugs and in debt to dealers.
The 6th Circuit Court of Appeals said the things Wogenstahl uncovered could
show "he can establish by clear and convincing evidence that no reasonable
factfinder would have found him guilty."
Deters, who prosecuted Wogenstahl's case back in the 1990s, called the
arguments "total crap."
He said Wogenstahl tricked Amber's brother to get him out of the house,
kidnapped Amber from her bed, killed her and dumped her body in Indiana. Deters
said Wogenstahl power-washed his car to get rid of evidence.
"I know for certain Jeffrey Wogenstahl killed Amber Garrett.," Deters said.
"Ultimately, I hope he gets the justice he deserves. It's so frustrating to
observe the tactics."
On the other side, Young points to 7 exonerations in Ohio since the 1980s while
56 people have been put to death. Young said nationally, for every 10
executions, there is 1 exoneration.
With that kind of failure rate, Young argued, we shouldn't be killing people.
Deters has a different take. He said he only seeks the death penalty for the
worst of the worst, cases where there is no question of guilt.
"There's just some crimes people deserve to die for," he said.
(source: Cincinnati Enquirer)
INDIANA:
Dansby death-penalty trial on track for October
The trial of a Fort Wayne man facing the death penalty in 4 killings remains on
track for October, defense attorneys and prosecutors said today.
Marcus Dansby, 23, is charged with killing the 4 -- 1, his unborn child --
Sept. 11, 2016.
Allen County Deputy Prosecutor Tom Chaille and defense attorney Michelle Kraus
each said in court this morning they will be ready for the trial to start with
jury selection Oct. 1. The trial is expected to last a month.
Prosecutors also could respond this week to a request by Dansby's lawyers to
ask the Indiana Supreme Court whether Allen Superior Judge Fran Gull erred when
she rejected a request to exclude the death penalty as punishment for the
slayings. Defense attorneys Kraus and Robert Gevers have asked Gull to sign off
on allowing the high court to weigh in.
Proceedings in the case would stop until justices make a decision, if the local
judge approves the request.
(source: The Journal Gazette)
ILLINOIS:
Freed death row inmate Rolando Cruz meets with Ripper Crew killer Thomas
Kokoraleis in Aurora
They met back in 1984, sharing a pod for more than a year inside the DuPage
County jail, where both young men were incarcerated for 2 sensational crimes
that shocked Chicago and its suburbs.
Thomas Kokoraleis, then 22, was behind bars for his part in a series of
ritualistic Ripper Crew rapes, mutilations and murders of as many as 17 young
women. Rolando Cruz, 20 at the time and living in Aurora, was awaiting the 1st
of what would turn into 3 trials for the rape and beating death of a
10-year-old Naperville girl.
Well over three decades later, the 2 middle-aged men, both free but still
haunted by their pasts, had a chance to reunite over the weekend. This time it
was in a conference room at Wayside Cross Ministries in Aurora, where
Kokoraleis, released from prison 3 weeks ago after serving 1/2 of a 70-year
prison sentence for the murder of Lorry Ann Borowski, is residing while taking
part in a Christian-based program to help ex-cons re-enter society.
Unlike his fellow DuPage inmate, Cruz was eventually exonerated of the murder
of Jeanine Nicarico after a trio of high-profile trials that led to the
exposure of a corrupt legal system and a multi-million-dollar settlement. But
not before Cruz spent a decade as an innocent man on death row.
Since his release from prison in November 1994, Cruz has become a vocal
advocate for reform of the criminal justice system, lecturing nationally and
internationally on such topics as the death penalty. But he seems most proud of
his work helping convicted murderers upon their release from prison, not just
those exonerated but those who served their time and are trying to get on with
their lives.
Cruz, who recalled most of their conversations back in those DuPage County jail
days were “about the law,” admitted he would never have recognized the now
far-heavier Kokoraleis if he met him on the street. But “I kept tabs on you a
lot when you were inside,” Cruz told his former pod-mate.
In addition to their jailhouse connection, Cruz feels Kokoraleis is “under
attack” and that made him decide to reach out for this visit. Kokoraleis’ stay
in the Fox Valley has ignited a firestorm of controversy, with Mayor Richard
Irvin publicly demanding the 91-year-old downtown Aurora mission find another
home for the convicted murderer farther away from this urban area and his
DuPage County victim’s loved ones.
“I understand (protesters’) concerns,” Cruz told Kokoraleis after the two
exchanged hugs and a few moments of pleasantries. “But you are doing nothing
wrong. You are not on parole. You are allowed to turn around and get a job and
go on with your life.”
Cruz, of all people, knows how hard that can be when you are the subject of
such a notorious case. A self-described “high-ranking gang member” when he was
arrested in 1984, “all I ever wanted was to be left alone,” he said, echoing
the words Kokoraleis declared to me after his first interview as a free man
earlier this month.
Instead, Cruz — who spent time on death row with Kokoraleis’ brother Andrew,
the last Illinois inmate to be executed — was immediately pulled in a dozen
different directions by people, all “wanting something to fit their own
agendas.”
The first person in Illinois to be exonerated, in part, due to DNA evidence,
Cruz said he “had no support system” in place and “did not know how else to
hide” from the onslaught of this unwanted celebrity status. So he turned to
drugs and alcohol, and it wasn’t until six years after he was freed that,
looking directly into the face of one of his young children, it suddenly hit
him “how lost I was.”
That’s when Cruz deliberately dropped out of sight — moving to Wisconsin for a
while before settling four years ago in Sycamore with his three minor children
and working as an IT engineer at a medical facility.
Cruz, who attended law school for a while, describes his present life as
blessed. “But people don’t know what it cost me to get to that station,” he
said to Kokoraleis. “I still suffer from PTSD, which is one reason I want to
talk to you. I don’t want you to have to constantly deal with this kind of
stuff.”
The goal is “to help those who want to help themselves,” said Cruz, insisting
that his desire to make this a “win win win” for the controversial Wayside
resident, the community and victims’ loved ones will not stop with this one
visit.
Cruz, who talked via phone with Irvin prior to this nearly 2-hour meeting,
realizes he’s likely to “get a lot of flak” for the visit with Kokoraleis.
“I tell people, you don’t understand the guy like I do. You don’t see the human
side of him,” he said, insisting he would have been just as comfortable talking
to Kokoraleis at his home with his kids present.
“Yes, this is a nasty murder case,” he said of the Ripper Crew saga. “But every
murder case is nasty. Either complain about all of them or none of them. He is
human and he paid his debt to society. How many times does he have to keep
paying that debt?”
Before the 2 parted, Cruz told Kokoraleis to call him at any time. And he
offered this advice: Don’t sweat the small stuff and stay focused on what
“needs to be done to get on with your life.”
Kokoraleis, who did most of the listening during this nearly two-hour meeting,
nodded when his visitor told him to “stay strong” and continue growing
spiritually and psychologically. And he expressed appreciation to Cruz, who’s
“got my back,” he noted, as controversy continues to swirl around him.
“He’s trying to become a productive citizen,” Cruz insisted moments before the
2 former inmates hugged again and said good-bye. “Allow him that opportunity …
don’t bring out the lynch mob now.”
(source: Chicago Tribune)
MISSOURI:
Man convicted in 2014 killing of 5 in south KC neighborhood
A 38-year-old man charged in the killing of 5 people in a south Kansas City
neighborhood in 2014 has been convicted.
Brandon Howell was convicted Monday by a Jackson County jury on all counts
including beating 2 people to death and shooting and killing 3 others in 2014.
In August 2015 Jackson County prosecutors said they will seek the death penalty
for Howell. On Monday, Jackson County Persecutor Jean Baker said they met with
all of the family members and decided it was best to remove death as an option
in this case and to see the rest of Howell's nature life in prison.
"They are still heartbroken," Baker said. "They are still heartbroken but
they’re elated with the news. They waited so so long to get here. They’ve been
very patient so I’m very grateful to be able to deliver that news today."
Baker said this was a case that struck terror in a whole community.
"And I really hope what the community takes from this, especially that little
community on south KC, is that the person who causes this incredible harm to
them can no longer harm them," Baker said.
According to court documents, the murders happened on Woodbridge Lane, near
Wornall Road and Blue Ridge Boulevard. The victims are 86-year-old Ann Taylor,
80-year-old George Taylor, 88-year-old Lorene Hurst, her 68-year-old son Darrel
Hurst and 69-year-old Susan Choucroun.
Court documents say Howell allegedly tried to steal a vintage Jaguar from Ann
and George Taylor. Police found the couple badly beaten and barely clinging to
life in their basement. They later died at the hospital.
According to a police investigation, Howell hot-wired the car and tried to get
away. But the car didn't work, and neighbors came outside to try to help.
That's when court documents say Howell allegedly shot at them and killed Lorene
Hurst, Darrel Hurst and Susan Choucroun.
Then, court documents say Howell drove off in another one of the Taylor's cars,
a Toyota SUV. It all happened in broad daylight, around one o'clock. Hours
later, just before midnight, police found Howell walking with a shotgun they
said he brought to the Taylor's home and used in the killings, near I-29 and
Northwest Barry Road.
They said he attacked 3 people at a Motel 6 after he left Woodbridge. Howell is
facing charges in Platte County related to that incident.
A memorial stands tall at the entrance of the Woodbridge neighborhood in South
Kansas City. It's a reminder of the 5 victims.
A sentencing date has not yet been announced.
This case is not Howell's first brush with the law. He did jail time in Kansas
for assault and kidnapping and was acquitted of 2 1999 murders.
(source: fox4kc.com)
NEBRASKA:
Man accused in Sydney Loofe murder challenging death-qualified jury
A man accused of killing and dismembering a Lincoln woman is trying to make
sure some of his jurors will oppose the death penalty.
Court documents filed Tuesday show Aubrey Trail, 52, says the death
qualification of the jury "violates his rights under the Fifth, Sixth, Eighth
and Fourteenth Amendments to the United States Constitution, and Sections 3, 6,
9, 11, and 15 of Article I of the Constitution of the State of Nebraska."
A death-qualified jury means that the jurors know that the death penalty is on
the table as a possible sentence, and are not opposed to capital punishment.
Jurors must also understand that the death penalty should not be imposed in all
cases, however.
It also means that during jury selection, only those who are not opposed to the
death penalty would be selected.
If Trail's motion is approved, it would allow for the selection of jurors who
oppose the death penalty. It would also mean that jurors wouldn't even know if
the death penalty is an option in the case.
Attorneys for Trail are also trying to find out whether Nebraska's governor is
behind the prosecutors' decision to seek the death penalty.
Lawyers filed a discovery motion last week in Saline County District Court,
seeking documents on communications between prosecutors and any members of Gov.
Pete Ricketts' office about the death penalty in criminal cases and especially
in Trail's case and that of his co-defendant.
The motion said Ricketts and his family spent a lot of money in support of a
referendum to reinstate the death penalty after the Legislature voted to
abolish it in 2015.
Trail and Bailey Boswell are accused of killing 24-year-old Sydney Loofe in
November 2017, dismembering her body and dumping the remains in rural Clay
County.
Trail's trial is scheduled to begin June 17. Prosecutors have said they will
seek the death penalty for both Trail and Boswell. Her trial is set to begin
Oct. 15.
(source: KHGI news)
*******************
Lawyers seeking information on death penalty decision in case of Murdered
Neligh, Neb. native
Attorneys for a man accused of killing and dismembering a Lincoln woman want to
find out whether Nebraska’s governor is behind the prosecutors’ decision to
seek the death penalty.
Lawyers for 52-year-old Aubrey Trail filed a discovery motion last week in
Saline County District Court, seeking documents regarding communications
between prosecutors and any members of Gov. Pete Ricketts’ office about the
death penalty in criminal cases and especially in Trail’s case and that of his
co-defendant.
The motion says Ricketts and his family spent heavily in support of a
referendum to reinstate the death penalty after the Legislature voted to
abolish it in 2015.
Trail and Bailey Boswell are accused of killing 24-year-old Sydney Loofe in
November 2017, dismembering her body and dumping the remains in rural Clay
County.
Trail’s trial is scheduled to begin June 17. Prosecutors have said they will
seek the death penalty for both Trail and Boswell. Her trial is set to begin
Oct. 15.
(source: Associated Press)
SOUTH DAKOTA:
U.S. Supreme Court denies death penalty appeal for 2nd time
The U.S. Supreme Court has denied the 2nd appeal of a man sentenced to death
for a 1992 Rapid City murder.
Charles Rhines was convicted by a Pennington County jury in January 1993 and
was sentenced to death for murdering 22-year-old Donnivan Schaeffer while
burglarizing a donut shop in Rapid City. According to South Dakota Attorney
General Jason Ravnsborg, Rhines confessed to the murder during his trial.
Rhines requested his case be reviewed by the Supreme Court for a 2nd time after
the Eighth Circuit Court of Appeals denied his petition for rehearing in
October 2018. His appeal asserted that he was sentenced to death because his
sexual orientation biased jurors.
(source: Mitchell Republic News)
***********************
He’s Living With Severe Mental Illness. Should He Face the Death Penalty?----A
South Dakota case reflects the national debate on whether execution should be
banned for the mentally ill.
Aleesha DeKnikker was grocery shopping, her phone set to silent, when the
voicemail from her mother, Carol Simon, came in: “Oh, it’s just Mom. Your
brother has really lost it, Aleesha.... He’s just having a mental breakdown and
he won’t even believe where he’s from. He won’t even believe that I gave birth
to him…. I don’t know what to do.”
6 weeks later, Simon was found dead, along with her 7-year-old grandson,
Brayden Otto. Her son, Heath Otto, 24, admitted to investigators in Sioux
Falls, South Dakota, that he had strangled his mother and nephew with a phone
cord and then slit their throats.
Soon after, Otto was ruled incompetent to stand trial, and he was sent to a
state hospital. Doctors hired by his defense lawyers diagnosed him with
schizophrenia. The Minnehaha County state’s attorney, Aaron McGowan, told
DeKnikker that her brother could face the death penalty. A trial will take
place as soon as Otto’s mental condition stabilizes, unless the prosecutor
agrees to let him be committed to a hospital permanently rather than face
prison and potential execution.
The case is gearing up amid a broader decline in the death penalty, as
lawmakers around the country are considering bans on death sentences for people
with certain serious mental illnesses. Some prosecutors have pushed back,
seeing these bans as a backdoor effort to abolish the punishment entirely. Otto
was close to his mother growing up, and he began experimenting with drugs as a
teenager. After a discharge from the Marines in his early 20s—he was caught
using steroids, his sister said—she started to notice moments of paranoia.
“Unless you were close to him you wouldn’t see it,” Simon’s friend Maddie Borah
said. “He was going to school to be an electrician, and he’d be convinced
people were going into his toolbox.” He began drinking heavily, and
occasionally Simon would call a detox facility to hold him until he sobered up.
“I think she was lenient because deep inside she knew there was something going
on, beyond him being an addict,” Borah said.
Simon and DeKnikker, Otto’s mom and sister, were both nurses, so they
recognized a turning point around January 2016—he was more paranoid than ever,
repeating himself and retreating into isolation. “I knew he had schizophrenia,”
DeKnikker said. “I knew he would need to get in trouble to get help, but I
never thought he would do something violent.” He was not formally diagnosed.
Twice, in May and August of 2016, he was arrested at a bank where he was
refusing to leave, as he talked about applying to work for the CIA, and in
September, he set off his mother’s home alarm system, with the aim of making a
CIA recruiter show up.
Simon wanted her son to be committed to a mental health facility, but South
Dakota laws required that he be a danger to himself or others, and as in much
of the country there were few resources for those needing mental health
treatment. He never saw a therapist. DeKnikker offered him money if he agreed
to seek treatment on his own, but he said she’d need to give him a large sum,
to pay for the voices in his head. Finally he agreed to treatment, but when it
came time to check into a hospital, he changed his mind and refused to stay.
“He didn’t verbalize intent to harm himself or others,” Borah said, so he was
not committed.
That was on a Tuesday in November. On Sunday, his other sister, Cassandra Otto,
left her son Brayden with him and their mother. When she called to check in,
she could tell from his tone that something terrible had happened. She sped
home. He’d set off the home alarm, so law enforcement officers had already
arrived. They asked if anyone needed medical attention, and Otto responded:
“Not anymore.”
He went on to claim, falsely, that his mother and nephew had medical conditions
and he wanted to “put them out of their misery.” He later told DeKnikker, in
her recollection, “It was an order from the CIA, and then he said stuff about
Hillary Clinton, and if he didn’t do it it was going to be World War III.” His
defense lawyers hired experts who diagnosed him with schizophrenia and
schizoaffective disorder.
Prosecutors may contest these diagnoses at trial, but they did not take issue
with the judge’s decision that he was incompetent to stand trial. According to
reporting by the Argus Leader, Otto had to wait several months for a bed to
open up at the state’s only public psychiatric hospital. In December 2018 a
doctor at that hospital told the court there was a “substantial probability”
Otto would be able to face trial within a year.
Aaron McGowan, the state’s attorney, does not need to formally announce yet
whether he is seeking the death penalty, but the case is proceeding as though
he will; the defense team is more robust than it typically would be in a
non-capital murder case. McGowan declined an interview, saying in an email that
“our rules of professional responsibility preclude me from commenting on the
case.”
DeKnikker has written him a letter asking him not to seek the death penalty.
“Please know that killing another member of our family in no way honors my
mom’s life,” she wrote, “and doesn’t reflect anything my mom stood for.”
But Cassandra Otto, Brayden’s mother, wants her brother to be executed for the
killing of her child. “I do forgive him, in a way, because I know my mom tried
getting him help,” she said when I reached her by phone. “I’m in a phase where
I don’t know if he’s faking it or he’s really mentally ill.” But, she added, “I
think he should get the death penalty no matter what, because my family doesn’t
deserve what happened to us. My sister disagrees, because that wasn’t her kid.”
She said her brother “knew what he was doing,” pointing out that he got a knife
only after he failed to kill Simon and Brayden with the phone cord. It is easy
to imagine prosecutors making a similar argument at trial.
Earlier this year, the South Dakota state legislature rejected a proposal to
ban death sentences for people with serious mental illnesses, though it had
passed such a proposal through one chamber last year. The Virginia state senate
approved a similar bill three months ago. Other bills are gaining traction in
Texas, Ohio, Tennessee and Missouri. Some include post-traumatic stress
disorder, while others are limited to schizophrenia, schizoaffective disorder
and bipolar disorder. Many require active psychosis at the time of the crime.
Some would let a judge decide who should be exempted, before the trial begins.
The Texas bill would let a jury decide during the trial. The Tennessee bill
requires a documented medical history before the crime, which might exclude
someone like Otto.
Supporters of these bills, with the backing of the American Bar Association,
argue that the “insanity defense” tends to be very narrowly defined, and juries
are skeptical of it. The Supreme Court has already banned the death penalty for
people with intellectual disabilities and those who committed their crimes
before the age of 18. Both bans were based on the idea that society views these
murderers as “categorically less culpable than the average criminal.” The high
court has ruled that death row prisoners must be “competent” to be executed,
though lower courts are still debating exactly what that means.
“Defendants who have a mental illness are particularly vulnerable in our
criminal justice system,” Amanda Marzullo, director of the Texas Defender
Service, told a panel of legislators in her state last month. “They are very
likely to fire their defense lawyers, or not cooperate with them, or even try
to represent themselves.”
Prosecutors have been wary. “The version of this legislation that is pending in
Ohio would effectively end the death penalty,” said Louis Tobin, executive
director of the Ohio Prosecuting Attorneys Association. He predicted that
everyone facing the punishment would be able to obtain a diagnosis. A defendant
can already mount an insanity defense, he pointed out, and then tell the jury
about mental illness as a way of persuading them to vote for life without
parole instead of death. Ohio’s bill, as of now, would apply retroactively,
potentially setting up lengthy legal fights over old cases.
If Heath Otto goes to trial, the state and the defense will battle over how
well Otto understood what he was doing, and what his drug and alcohol use says
about his culpability. In the meantime, he lives in a psychiatric hospital.
Maddie Borah, his mother’s friend, said she doesn’t visit, because she fears
she might trigger him: “If he understood what he did to his mother, he would
probably try to commit suicide.” She sees the entire situation as an indictment
of the way our society treats those with severe mental health problems: “It’s
much easier to kill a mentally ill man than to admit your mental health system,
your law enforcement, your policies and procedure are so inept.”
(source: The Marshall Project)
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