June 17
TEXAS:
Texas Prosecutor Disbarred for Illegally Sending A Man to Death Row
The legal profession is a noble and time-honored one, despite high-profile
examples of a few "bad apples." At their best, lawyers constitute the thin line
between justice and tyranny. Even fictional Los Angeles D.A. Hamilton Burger -
aggressive prosecutor that he was - would acknowledge to his nemesis, criminal
defense attorney Perry Mason, that both sides were interested in justice above
all.
This makes it all the more tragic when those who are supposed to be working for
justice lose sight of that goal, whether it be because of ambition, pride,
prejudice or all three.
Case in point: The People of Texas vs. Anthony Graves, in which D.A. Charles
Sebesta stood for the prosecution - and was determined to win a conviction at
any cost, even if it meant putting an innocent man on death row.
The Crime
On August 17th, 1992, 6 members of the Davis family - 4 small children, a
teenage girl and a 45-year-old grandmother - were brutally murdered in small
town of Somerville, Texas. The house was then set on fire, presumably to cover
up the crime. Eventually, a 27-year-old prison guard named Robert Carter, who
had been married to a family member (Carter's ex-wife, Lisa Davis, had been out
that night), was arrested as a suspect.
The murders had been carried out by 3 different methods - shooting, stabbing
and bludgeoning - suggesting that there had been multiple perpetrators. Under
questioning for several hours, Carter eventually claimed that the murderer was
Anthony Graves, cousin of Theresa "Cookie" Carter, the woman to whom he was
married at the time. Despite evidence that Carter had been at the scene (he had
suffered cuts and burn injuries), and despite inconsistencies in his testimony,
Graves was eventually arrested.
Graves, who was also 27 at the time, had no prior criminal record except for a
minor drug charge, for which he had received a suspended sentence. Beyond that,
he was unemployed, low income with few prospects, and African American. There
was no physical evidence to link him with the murders. Graves' girlfriend,
sister and brother all testified that they had been with him at his mother's
home the night of the mass killings.
Robert Carter, the original suspect, went on trial in February 1994, and was
quickly convicted. Facing the death penalty, the State offered him life in
prison if he would testify against Graves.
The Trial of Anthony Graves
Anthony Graves' case finally came up in late October of 1994. When his family
was unable to pay for the services of a top criminal defense lawyer, the court
appointed a pair who had no experience in capital murder cases. Meanwhile,
Carter continued to change his story. Finally, however, the day after Graves'
trial started, Carter confessed to the D.A.: "I did it all myself, Mr.
Sebesta."
Because 3 different weapons had been used, Sebesta refused to believe it. He
suspected that Carter???s wife was involved as well as Graves - and that Carter
was covering for her. In fact, in 1 version of his story, Carter had indeed
implicated her. He had also failed a polygraph test, during which he was asked
if Graves had participated in the killings. When the defense later asked the
prosecution about the polygraph test and who else Carter might have implicated,
Sebesta was dismissive, saying only that "there were some names ... they're not
necessarily parties to the crime ... [but] may possibly have some information."
Sebesta was anxious to get a conviction. In the absence of physical evidence,
however, that conviction rested on Carter's testimony - and there was no
guarantee that he would provide one. Sebesta finally made Carter a deal -
testify against Graves and he wouldn???t ask anything about Mrs. Carter - nor
use any evidence that might emerge against her in the future.
Robert Carter Testifies
Carter finally told the jury that Graves had been his accomplice - but even
that wasn't enough. There were no weapons and no fingerprints to link Graves to
the crime, so Sebesta produced a switchblade knife owned by one of Graves'
former employers. Allegedly, Graves' boss at the time, Roy Rueter, had given
him a similar knife as a gift. A law enforcement officer who had worked on the
case, claiming to be an "expert" on edged weapons, told the jury that the knife
was a "perfect match" to the victims' wounds. The county forensic surgeon
confirmed that such a weapon was likely to have been used in the killings.
However, Rueter himself said that the knife was of poor quality, and was
unlikely to have inflicted so many stab wounds. Yet another forensics expert
testified that any blade of the same dimensions could have been used. (To this
day, the murder weapon has never been found.)
Then, there was the question of motive. According to Carter, Graves' mother,
Doris Curry, had been passed over for a promotion that was ultimately given to
the oldest victim, Bobbie Davis. However, the manager at the institution where
the 2 women worked testified that there were no hard feelings between them.
Sebesta then called 3 witnesses to the stand who were employed at the county
jail where Carter and Graves were being held. Hopefully for the prosecution,
they had heard some incriminating conversation - but this was not the case.
Between a dysfunctional intercom monitoring system and all the noises in the
building, it had been impossible to discern what had been said and who had been
saying it. Robert Carter said later that Graves had attempted to talk with him:
"I can understand that because of the fact that he was innocent and he wanted
some answers to his questions."
Finally, Sebesta played his last card. Graves' girlfriend, Yolanda Mathis, whom
he had been with that night, was the key witness for the defense. Just before
Mathis was scheduled to testify, however, Sebesta told the judge and the
defense that Mathis should understand that she herself was a "possible
suspect," and that her testimony might incriminate her.
When Graves' inexperienced defense attorneys told Mathis, she panicked and ran.
Later, before the court, Sebesta demanded to know where the "alibi witness" the
defendant "claims to have been with" had gone - and why hadn't she testified on
his behalf?
The defense lawyers had no response.
There was still evidence in Graves' favor: his sister and his brother. Both
siblings affirmed that Graves had been with them all evening, as well as the
brother's girlfriend - who had spoken briefly with Graves on the telephone.
Graves' brother, Arthur Curry, later stated: "I know he's innocent ... he was
at home where I was that night. I know for certain that he never left."
Neither of Grave's siblings was called to testify before the court.
When Sebesta finally got Carter on the witness stand, at no time did he inform
the court that Carter had been reluctant to implicate Graves, or that Carter
had in fact implicated his wife in an earlier statement. Such information might
have provided "reasonable doubt" in the jury's mind.
When the jury retired to deliberate, there was 1 juror who indeed had
reasonable doubt. Many years later, that juror, James Hahn, said that he
believed Graves to be innocent of the charges. He said that Sebesta had used
Graves because someone "needed to take a fall" for the crimes.
Hahn realized he was the only 1 of the 12 who considered Graves was not guilty
- and he would never be able to convince his fellow jurors otherwise.
After a trial lasting only 10 days, Anthony Graves was convicted on 6 counts of
1st degree homicide and sentenced to death.
The Aftermath
More than 5 years later, Robert Carter made a sworn statement before Sebesta
and Roy Greenwood, the attorney handling Graves' appeal. In his statement,
given only days before his own execution, Carter said:
It was all me; but you said you didn't want to hear it ... Anthony Graves did
not have any part in the murders and was not present before, during or after I
committed the multiple murders at the Davis home.
Just before the executioner put the needle into Carter's arm, he said: "It was
me and me alone. Anthony Graves had nothing to do with it. I lied on him in
court."
In March of 2006, after nearly a dozen years on death row, Anthony Graves was
finally granted a new trial by the U.S. Fifth Circuit Court of Appeals. The
appellate judges concluded that
Sebesta's statement regarding the polygraph, his discovery responses and
questioning of Carter ... [was] misleading and a deliberate attempt to avoid
disclosure of evidence of Cookie [Carter's] direct involvement. At a minimum,
Sebesta's minimal disclosure was insufficient to put the defense on notice to
inquire further ...
In other words, Sebesta had deliberately misled the jury.
Stubborn To The End
Despite the ruling of the federal appellate court, the State of Texas was not
willing to admit that Graves had been wrongly convicted. His retrial was
postponed repeatedly, and in 2008, the District Attorney offered to commute
Graves' sentence to life in prison on the condition that he would confess to
the killings. Graves would not.
Despite the overturning of his conviction and evidence of prosecutorial
misconduct - as well as his own innocence - Anthony Graves' ordeal went on for
4 1/2 more years. He was finally released on October 27, 2010 - after serving
16 years on death row for a crime he did not commit.
Disbarred
Now, after almost five years, prosecutor Charles Sebesta is finally being held
to account for his own deliberate actions in convicting an innocent man. After
a 25-year career as a district attorney for 2 counties, CBS News reports that
Sebesta has been found to have "withheld evidence and used false testimony to
win a capital murder conviction" by the Texas State Bar. His law career is
over; his license to practice has been taken away, and his Bar profile now says
he has "retired."
Despite his disbarment, Sebesta remains unrepentant. Posting on his personal
website, Charles Sebesta: Setting the Record Straight, he continues to insist
that Graves is guilty. He also depicts himself as the victim. About the episode
of CBS' award-winning 48 Hours entitled "Grave Injustice," he says: "It's all a
part of an all-out 'media-blitz,' to convince the public that Graves has been
'railroaded' and I'm the 'villain.'"
People like Anthony Graves and the dedicated jurists who seek truth and justice
for those like him, regardless of their own personal feelings, respectfully
disagree.
(source: ringoffireradio.com)
PENNSYLVANIA:
Third Circuit OKs Federal Defenders in State Court
The Third Circuit has approved the use of federal public defenders in state
post-conviction relief appeals in an opinion that has the court's chief judge
questioning why the state would see a problem with additional resources from
the federal government.
The court's ruling June 12 concurrently addressed seven cases in which the
Eastern and Middle districts of Pennsylvania split as to whether federal
defenders were appropriate in the state post-conviction appeals of death-row
inmates. The U.S. Court of Appeals for the Third Circuit found the state's
attempts to disqualify federal defenders were pre-empted by federal law.
The cases before the Third Circuit have a somewhat-convoluted procedural
history, but the genesis of the disqualification motions that got the cases
before the circuit court was a concurring opinion in 2011 by former
Pennsylvania Chief Justice Ronald D. Castille in Commonwealth v. Spotz.
According to Third Circuit Chief Judge Theodore A. McKee, who authored a
concurring opinion June 12, Castille had "severely criticized the tactics,
motives, integrity and even the veracity of the Federal Community Defender
attorneys" who intervened in the state PCRA actions.
McKee cited to Castille's comments that the commitment of manpower by the
federal defenders in those state cases was something one would expect in major
litigation by large law firms. The state's subsequent disqualification motions
argued it was a misuse of federal grant funds for the federal defenders to
appear in state court. But McKee questioned why the same "meticulous devotion
of resources" should not be available to someone sentenced to death, saying
that those cases surely are no less important than high-dollar litigation
handled by large law firms.
"It is difficult not to wonder why the commonwealth is attempting to bar
concededly qualified defense attorneys from representing condemned indigent
petitioners in state court," McKee said. "A victory by the commonwealth in this
suit would not resolve the legal claims of these capital habeas petitioners.
Rather, it would merely mean that various cash-strapped communities would have
to shoulder the cost of paying private defense counsel to represent these same
petitioners, or that local pro bono attorneys would have to take on an
additional burden."
Hugh Burns, chief of the appeals unit for the Philadelphia District Attorney's
Office, argued the case on behalf of the state. Paul R.Q. Wolfson of Wilmer
Cutler Pickering Hale and Dorr in Washington, D.C., argued on behalf of the
Defender Association of Philadelphia, of which the Federal Community Defender
is a "distinct sub-unit." Neither Burns nor Wolfson were available for comment
by press time.
According to the majority opinion by Judge Julio M. Fuentes, the matter before
the court involved a "concerted effort" by the state and various of its
counties to bar attorneys from the capital habeas unit of the Federal Community
Defender Organization for the Eastern District of Pennsylvania from
representing clients in state post-conviction proceedings. In seven such cases,
hearings were initiated to disqualify the federal defenders as counsel.
The Federal Community Defender removed the disqualification motions to federal
court based on the federal officer removal statute. In response, the state
filed motions to return each case to state court, arguing the federal officer
removal statute did not confer federal subject-matter jurisdiction. The federal
defenders responded with motions to dismiss, arguing the state lacked a private
right of action under federal law and that, alternatively, federal law
pre-empted the state's motions, Fuentes said.
The district courts split on the issue, with the Eastern District denying in
three cases the state's motions to remand and granting the federal defenders'
motions to dismiss. In the 4 cases in the Middle District, that court granted
the motions to remand, rendering moot the motions to dismiss, Fuentes said.
The Third Circuit first determined that the defenders properly invoked removal
jurisdiction. The court then went on to rule the state's attempt to disqualify
the federal defenders was pre-empted by federal law.
In determining whether the Federal Community Defender properly invoked the
removal statute, the Third Circuit conducted a 4-pronged test that included
whether the entity was acting under the authority of the federal government.
The Federal Community Defender is a nonprofit created through the Criminal
Justice Act and operates under the Administrative Office of the U.S. Courts.
Fuentes said the court disagreed with the state that the Federal Community
Defender could only fall under the act if its actions were made at the behest
of a federal agency. The defenders group had acknowledged that it sometimes
appeared in state courts without a federal order directing it to do so, but
argued it did not use federal funds if possible.
"It is sufficient for the 'acting under' inquiry that the allegations are
directed to the relationship between the Federal Community Defender and the
AO," Fuentes said, noting the inquiry isn't just about whether the
complained-of conduct was at the behest of the federal agency.
In looking at the merits of the defenders' motions to dismiss, Fuentes said the
state conceded it did not have a private right of action under federal law to
challenge the representations. Rather, the state argued its disqualification
motions were based on state law regarding the state Supreme Court's authority
to govern the practice of all courts in the state.
Fuentes said it was unclear whether the Supreme Court's orders on this issue -
which say federal defenders are disqualified if they can't show they are
entirely privately financed - were created under the court's authority to
enforce its rules of conduct. But he said the answer to that question was
irrelevant because the state lost on the pre-emption issue.
The pre-emption issue in play in these cases is one in which a state law stands
as an obstacle to the accomplishment and execution of the objectives of
Congress, Fuentes said.
The judge said the state courts are improperly seeking to police the
relationship between the Federal Community Defender and the AO as to whether
the defenders are following the AO's rules on the use of federal grants.
"But even if the Federal Community Defender is not authorized to use grant
funds, the disqualification proceedings interfere with the regulatory scheme
that Congress has created," Fuentes said, noting the state would infringe on
the AO's power to deal with noncompliance.
Fuentes, who was joined in the majority by Judge Joseph A. Greenaway Jr.,
expressed agreement with McKee's concurrence.
(source: thelegalintelligencer.com)
******************
Pa. murder victims' families support the death penalty----Findings were
presented at a House public meeting on the execution moratorium
After Gov. Tom Wolf suspended the use of capital punishment in the commonwealth
in February, the Pennsylvania Office of the Victim Advocate reached out to the
families of murder victims whose killers are on death row.
The OAV wanted to know those victims' position on the death penalty. The result
was that more than 90 % of those who responded to the survey were in favor of
the death penalty and only 5.1 % were against it.
The survey got a 40 % response from 389 questionnaires mailed out. Those who
received the survey were given 4 answer options ranging from strongly agree to
strongly disagree.
On replacing the death penalty with life in prison without the possibility of
parole - and with the inmate remaining segregated from the general population -
the victims' families were against the proposal 63.2 % to 28.4 %.
Jennifer Storm, appointed Victim Advocate by Gov. Tom Corbett, presented the
survey results to the House Judiciary Committee during a public meeting on the
death penalty moratorium last week in Harrisburg.
Storm told the committee members, "The OVA does not have a formal stance on the
death penalty as we couldn't accurately respect, reflect and represent the
interests of our clients if we did."
But, she added, "On February 13, 2015, our office had to make over 400 phone
calls to families, friends and loved ones of those who had been brutally
tortured, raped, discarded on roads, dismembered, and ultimately savagely
murdered.
"We called them to let them know that Gov. Tom Wolf had issued a moratorium on
the death penalty, thus halting an already slow, painful and arduous path that
each of them respectfully has been on for years and in many cases, for
decades."
At the same hearing, district attorneys from Philadelphia and Dauphin and
Lancaster counties also addressed the committee members. Ed Marsico, of Dauphin
County, Craig Stedman, of Lancaster County, and Ronald Eisenberg, a deputy DA
from Philadelphia, said Wolf's moratorium goes beyond his powers and is
"illegal."
It is the Philadelphia DA's office that took that argument and the reprieve of
Terrence Williams to the Pennsylvania Supreme Court. The DA's office had asked
for an expedited review of the issue but was denied by the court.
The Supreme Court instead ordered the appeal to be placed on the normal
briefing schedule.
At last week's hearing, the district attorneys suggested that the capital
appeals process be streamlined to reflect the federal appeals process, which
would, unless court-ordered, limit the number of appeals that a defendant can
file.
Marc Bookman, executive director for the Atlantic Center for Capital
Representation, told the committee one problem with the death penalty in
Pennsylvania is the lack of state-funded programs "to properly train and
resource defense attorneys to handle these most complex and serious of our
criminal cases."
(source: York Daily Record)
OHIO----5 new execution dates set
The following dates are set for executions in Ohio:
2018----David Sneed, August 1and James O'Neal, October 10
2019----Elwood Jones, January 9; Archie Dixon, Mar 20 and Timothy Hoffner, May
29
(source: MC/RH)
OKLAHOMA:
Death Penalty Sought for Man Charged With Killing Family
Prosecutors said Tuesday they will seek the death penalty against a 20-year-old
Duncan man who was bound for trial in the shooting deaths of his newspaper
publisher father, his mother and his sister.
A Stephens County judge determined there was enough evidence for a trial for
Alan Hruby, who was charged with first-degree murder in the Oct. 9 shooting
deaths of his father John Hruby, 50, his mother Joy "Tinker" Hruby, 48, and his
sister, Katherine Hruby, 17.
Hruby showed no emotion as his defense attorney accepted the death penalty
notification, The Oklahoman ( http://bit.ly/1BgVdAc ) reported.
Prosecutors allege Hruby, then a student at the University of Oklahoma, was a
shopaholic who killed his family for his inheritance after his parents cut off
his finances.
A telephone message left Tuesday with Hruby's attorney, Mitch Solomon, was not
immediately returned, but a gag order has been issued in the case that
prohibits attorneys from discussing the case.
John Hruby was publisher of the weekly newspaper The Marlow Review.
Earlier Tuesday, Hruby wiped away tears and trembled as the family's longtime
housekeeper testified during the preliminary hearing that she was in the home
about 30 minutes before finding the bodies and calling police.
The housekeeper, Rose Marie Chavez, said she saw Tinker Hruby's body first. She
said she touched the body and described it as "ice cold." She said she realized
they were all dead when she saw blood on Katherine's face.
"I was emotional and in shock," she said.
Hruby wept again when a police investigator told the judge Hruby had confessed
to shooting his family.
Prosecutors contend Hruby should be punished by death because he killed for
money, because he killed 3 people, because he is a continuing threat to society
and because each murder was especially heinous, atrocious or cruel.
(source: Associated Press)
**************
'Mass Incarceration and the Death Penalty' - Thursday, June 18 forum at First
Unitarian in OKC
Oklahoma City's First Unitarian Church will be the site of a forum concerning
"Mass Incarceration and The Death Penalty" this Thursday (June 18).
The Oklahoma Coalition to Abolish the Death Penalty (OK-CADP) has organized the
event as part of its campaign to defeat State Question 776. Restoring Justice
Oklahoma (RJO) is also part of the event at the church, located at 600 N.W. 13
Street. Doors open at 6 p.m., with the forum at 6:30 p.m.
A grassroots organization, RJO is addressing criminal justice reform issues
"through citizen awareness and action," the group says.
Dr. Britney Hopkins, a co-organizer for RJO, said in a press release provided
to The City Sentinel, "The United States has less than 5 % of the world's
population, but has 25 % of the world's prisoners.
"The question is why? The War on Drugs, economics, race, and harsh sentencing
all play crucial roles," Hopkins stated. "This forum will focus on the facts
and misconceptions that plague both mass incarceration and the death penalty.
In order to start fixing the problem, we must first educate ourselves."
Hopkins continued, "The death penalty is fiscally irresponsible. Studies vary,
but it costs anywhere from 2 to 10 times more to execute someone than it does
to put them in prison for life. Add to that the fact that execution doesn't
deter crime. These are important facts in the death penalty debate."
With more than 1 of every 100 Americans behind bars, activists contend
incarceration issues amount to a "major social crisis," among the biggest
problems facing the U.S.
"According to a 2013 report by the federal Bureau of Justice Statistics,
Oklahoma's incarceration rate ranks fourth in the United States and the state
currently holds the nation's record for the highest rate of female
incarceration per capita," OK-CADP said in a release about Thursday's event.
Former state Sen. Connie Johnson of Oklahoma City, now the OK-CADP chair,
reflected, "The relationship between these two issues from an economic
perspective alone demands that we do more to educate citizens.
"OK CADP is privileged to host and is grateful to Restoring Justice Oklahoma
for presenting this 1st in our series of many activities designed to increase
education and awareness in the coming year in support of OK-CADP's campaign to
defeat State Question 776 constitutionalizing death in Oklahoma.
"We also appreciate the Unitarian Church for allowing us to use their facility
and for their leadership in the area of social and criminal justice reform in
Oklahoma."
S.Q. 776 will be on the statewide ballot in November 2016. It was referred to
voters by the Legislature. The measure would, if approved by voters, add state
constitutional language declaring that "statutes of this state requiring,
authorizing, imposing or relating to the death penalty are in full force and
effect."
While allowing changes in state law through legislative action or initiative
petition, the proposed amendment would assert that the death penalty cannot be
judicially stricken on grounds that it amounts to "the infliction of cruel or
unusual punishments."
Just days after the 2015 legislative session ended at the Oklahoma Capitol,
foes of capital punishment were heartened when the Nebraska Legislature
abolished the sanction within the Cornhusker State. In all, nineteen states and
the District of Columbia have abolished capital punishment in their
jurisdictions.
OK-CADP has hosted a series of events to stress its opposition to the death
penalty in all instances. A pending U.S. Supreme Court case is examining the
"protocols" for the death penalty process in Oklahoma, with the state's mix of
lethal drugs for executions under legal attack.
Rev. Adam Leathers commented, "The most disturbing part of these issues is how
many Oklahomans are simply unaware. Oklahoma rivals North Korea in how much of
our population we incarcerate, and exceeds Palestine and Afghanistan in how
much of our population we execute - that does not include the other U.S. States
- only Oklahoma.
"We Oklahomans have consented to allowing our government and justice
infrastructure to become violent, retributive and to represent brutal systems
of hegemony," said Leathers, who serves as a spokesperson for OK-CADP.
Johnson said, "We hope to see advocates present at this important forum from
issue groups statewide."
For more information, visit okcadp.org or www.facebook.com/restoringjusticeok.
(source: The City Sentinel)
SOUTH DAKOTA:
Death penalty possible in cold case murder
A Florida man accused of murdering his girlfriend in rural Sioux Falls 25 years
ago could face the death penalty.
Kim Leroy Aune, 57, made his 1st appearance Tuesday in the Minnehaha County
courthouse on a charge of 1st-degree murder. If convicted, he faces a mandatory
life sentence or the death penalty.
Aune's appearance before Judge Joni Cutler was brief. Neither State's Attorney
Aaron McGowan nor Public Defender Traci Smith made arguments. Aune will remain
in the Minnehaha County Jail on a $1 million bond.
Aune's trial is scheduled for the week of Sept. 8 if he doesn't plea out.
He's alleged to have killed his then-girlfriend, Kimberly Eidsness, at their
home just east of Sioux Falls on Nov. 13, 1989. Aune reported the shooting to
police, who initially did not consider her death a murder.
A warrant was issued for his arrest in April after a grand jury indicted him
for murder. He was arrested by Lee County, Fla., authorities.
Local authorities say he did not flee to Florida after the murder.
Authorities have declined to release what new details made them re-open the
case.
More than half a dozen family members of Eidness attended Aune's hearing. Each
wore a button with a picture of her on their shirts in memory.
They declined to comment following the hearing.
(source: Argus Leader)
CALIFORNIA:
Death row inmate back in Kern County for resentencing
Constantino Carrera is experiencing a change of scenery for the 1st time in
more than 30 years.
The death row inmate was transported from San Quentin State Prison to
Bakersfield last week and made his 1st appearance in Kern County Superior Court
Tuesday since being sentenced for two counts of murder and robbery in 1983.
Carrera, 53, is back for resentencing after a federal judge in 2004 threw out
his death sentence in the stabbing deaths of a Mojave couple. The judge ruled
in part that a prosecutor twice committed misconduct in the case.
Prosecutor Andrea Kohler said the D.A.s office will not retry the penalty phase
of the case. Prosecutors have previously said too much time has gone by to
retry Carrera.
The federal judge's ruling does not vacate Carrera's conviction; instead, he
faces life in prison rather than the death penalty.
On Tuesday, Judge John W. Lua scheduled the resentencing for July 9 to allow
probation officials time to review the case and notify any parties who may wish
to attend. Lua denied photography during the proceedings.
Carrera still sports a mustache, but what was formerly thick dark hair covering
his head has thinned to balding on top. Hearing aids were visible in his ears.
Deputy Public Defender Paul Cadman, representing Carrera, said afterward it's
his understanding Carrera has been a model inmate during his stay on death row.
He said it remains to be determined whether the 2 sentences of 25 years to life
Carrera is expected to receive for the murders will run concurrently or
consecutively, impacting when he could become eligible for parole.
Carrera's family remains hopeful. His sister, Maria Carrera, who attended
Tuesday's proceedings with several other relatives, said she's visited him at
San Quentin over the years and just wants to someday see him a free man.
"We've been hoping this would happen," she said of the resentencing.
Carrera and his then 17-year-old co-defendant, Ramiro Ruiz, participated in the
1982 robbery and stabbing deaths of Jack and Carol Hayes, who managed the
Imperial 400 Motel in Mojave.
U.S. District Court Judge Anthony Ishii ruled in 2004 that prosecutor Michael
Vendrasco presented contradictory versions of the crime in the defendants'
separate trials. The judge also said Vendrasco did not tell the defense two
jailhouse informants were given breaks in exchange for testimony that helped
convict Carrera.
A prosecution witness testified during Ruiz's trial that Ruiz was the attacker,
while Carrera was involved in the robbery but "froze" and did nothing more
after cutting Carol Hayes' arm, Carrera's appellate attorney, Stephen Bedrick,
has said. But Carrera's jurors were told that Carrera was equally responsible
in the stabbings.
That raised the level of responsibility and intent in the crime, making Carrera
eligible for the death penalty, Bedrick said.
Vendrasco said in 2008 - when the state attorney general's office confirmed it
would not appeal Ishii's decision - that Ishii's ruling "is wrong." He noted
the same issues were presented before the California Supreme Court, which
upheld the death penalty and murder convictions in 1989.
(source: The Bakersfield Californian)
USA:
The Death Penalty Cases Before the Supreme Court Are a Prelude to a Legal
Assault on the Constitutionality of Capital Punishment ---- 4
soon-to-be-decided cases test the scope and application of the death penalty.
"Our argument is essentially that death is different. If you don't accept the
view that for constitutional purposes death is different, we lose this case."
-- Attorney Anthony Amsterdam, arguing in Gregg v. Georgia that the death
penalty is unconstitutional.
Is it moral in this day and age for the state to take a life? Apparently, the
majority on the Supreme Court think it is. 4 cases before the Court this
session will test the scope and application of the death penalty - though none
promises to outlaw it altogether.
Most Western countries, including England, France, and Germany, abolished the
death penalty long ago, as have 19 American states and the District of
Columbia. Though recent polls show that a majority - 56 % - of Americans
believe that the death penalty is sometimes just and appropriate, that is the
lowest level of support reported in the last 40 years.
In 1972, in Furman v. Georgia, the Supreme Court came close to abolishing the
death penalty as "cruel and unusual punishment" prohibited by the Eighth
Amendment. The case did not ban capital punishment, but because the justices
ruled that it was cruel and unusual when unfairly applied, it led to a de facto
moratorium throughout the United States. That moratorium came to an end in
1976. The Constitution itself contains the tension: it expressly authorizes the
death penalty since the Fifth Amendment refers to answering to a "capital
crime" and states that the government may deprive persons of life provided
there is "due process of law" while the Eighth Amendment outlaws "cruel and
unusual punishments."
The latest legal challenges to the "machinery of death," a prelude to a legal
assault on the constitutionality of the death penalty, involve the death
penalty protocols in Oklahoma, as well as Florida, Georgia, Louisiana, and
Kansas. On March 30, the Court granted review of 3 Kansas death penalty cases
and heard oral argument in a 4th - a Louisiana case presenting issues of
whether a state prisoner who faces the death penalty has an intellectual
disability that would preclude capital punishment. In the 3 Kansas cases, it
granted review of the Kansas Supreme Court's decisions overturning the
defendants' death sentences on the technical ground that their sentencing
juries were not told that the defendant did not have to prove mitigating
circumstances beyond a reasonable doubt.
The Court also heard argument in the case of a Louisiana man, Kevan Brumfield,
sentenced to death before the Supreme Court ruling in Atkins v. Virginia banned
the execution of defendants with intellectual disabilities. The Court will
determine whether the federal courts must defer to a decision of the state
courts that rejected his claim of intellectual disability based solely upon the
evidence presented at his trial or whether to credit a subsequent federal
district court finding after a 7-day evidentiary hearing that Brumfield is
intellectually disabled, and may not be executed.
The lead defendant in the Oklahoma case had been Charles F. Warner, who was
dead by the time the Court had a chance to grant review. Warner had been
executed 8 days before. The Court changed the name of the Warner case from
Warner v. Gross to Glossip v. Gross shortly after Warner was put to death.
Richard E. Glossip was another prisoner on Oklahoma's death row whose case was
to have been heard along with Warner's. It is a glitch in Supreme Court
procedures that it takes only 4 votes to grant review of a case, but 5 votes to
stay an execution. Occasionally, a justice, who did not vote to grant review,
casts a "courtesy 5th" vote in favor of a stay so as not to render the entire
exercise academic. This is, however, a matter of convention, not statute or
rule of court. Since August 2014, at least 4 prisoners have been executed over
the objections of 4 justices. Though Chief Justice Roberts at his confirmation
hearing told the Senate that the "courtesy vote" practice "makes great sense,"
the Court continues to permit the executions of prisoners whose petitions have
been granted before it has had a chance to review the case.
On April 29, the Court heard oral argument in Glossip, challenging the use of
an anesthetic known as midazolam used as part of Oklahoma's 3-drug lethal
protocol. Midazolam was used as the 1st drug in 3 botched executions in 2014.
Prisoners on Oklahoma's death row argued that the drug Midazolam should not be
used in executions because it could not reliably anesthetize the prisoner to
prevent her from experiencing extreme pain when the 2nd and 3rd drugs in
Oklahoma's execution protocol were injected. The justices questioned both sides
intensely, with the more conservative justices generally favoring the state,
and the more liberal justices favoring the prisoner. Justice Elena Kagan
compared the effects of potassium chloride, the 3rd execution drug, to being
burned alive, saying, "Suppose that we said we're going to burn you at the
stake, but before we do, we're going to use an anesthetic of completely unknown
properties and unknown effects." Conservatives criticized the case as a veiled
attack on the death penalty itself.
* * *
On no other issue has the partisan divide been so bitterly fought in the
"marble palace" of the Supreme Court as it has on capital punishment. Some
justices have argued that the original scope of the prohibition on "cruel and
unusual punishment" is not immutable but changing. In 1958, Chief Justice Earl
Warren envisioned a Constitution which reflected "the evolving standards of
decency that mark the progress of a maturing society" - in other words a
"living Constitution" that means what the individual judge thinks it ought to
mean.
Justice Scalia, by contrast, believes that in the years since Furman, the Court
has artificially imposed, "under cover of the Constitution," limitations that
did not exist when the Eighth Amendment was adopted. The Court has ruled out
the death penalty for garden-variety murders as opposed to those evincing
wanton brutality or depravity. It has ruled out the mandatory imposition of
capital punishment, and held that the ultimate penalty may only come after a
jury recommendation after considering all factors, mitigating and aggravating.
It has ruled out death for the intellectually disabled (formerly the retarded)
while it searches for a definition as to who is disabled and who is not, has
prescribed an age limit at the time of the offense, at the moment 17, and has
wrestled with what chemicals may be used in a lethal injection so that death
might not be lingering or painful or botched altogether.
Strangely, certain conservative justices, stressing the sanctity of human life
when it comes to abortion or assisted suicide, see nothing inconsistent in
their position on capital punishment. Explaining the apparent contradiction,
Scalia distinguishes between the morality of the state preventing one human
being from taking her own life or the life of another (e.g. assisted suicide or
abortion), and the morality of the state taking a life as a form of
retribution. In his world, the state - provided (and this is the big provided)
it "rules justly" - enjoys "a scope of moral action that goes beyond what is
permitted to the individual." Really? The state, in his view, is the emissary
of God, the "powers that be are ordained of God." After all, the Good Book in
Romans recites, "Vengeance is mine saith the lord."
Arguing that it is a matter of Christian catechism, Scalia concludes that the
"more Christian a country is, the less likely it is to regard the death penalty
as immoral." Since the Christian believes in an afterlife, free will, the
ability of men and women to resist temptation, heaven for those that do, and
hell, fire and brimstone for those who give in, Scalia would argue, Christians
are doctrinally inclined not to view the death penalty as immoral.
Scalia would reject the Evangelium Vitae of Pope John Paul II, issued in 1995,
pronouncing the death penalty to be wrong. He would also reject the forceful
recent pronouncements of Pope Francis, inveighing against the death penalty "no
matter how serious the crime committed." He argues that rejection of capital
punishment is not a moral position of the church, which as a Catholic he is
bound to accept; it is merely an exhortation to the faithful requiring careful
consideration. After considering the Pope's encyclical, he has decided to
reject it.
The conservative bloc on the Court, led by Scalia, finds support for the death
penalty in the text and original public understanding of the Constitution. The
liberals, as exemplified by Kagan, who appear to be in the minority, believe in
a "living" Constitution, which evolves with the standards of the community.
Meanwhile, though it appears that public support for capital punishment is
declining, the pollsters tell us that most Americans favor the ultimate
penalty.
The Court is expected to decide the death penalty cases before the current term
ends in June. So the debate over death rages on, but it does not appear that
"the 9" will likely invalidate the death penalty any time soon.
(source: James Zirin, The Nation)
**************
Time for the death penalty to go
The death penalty may be on its way out as a legitimate form of punishment,
although a substantial portion of Americans still support it. Over the past few
years, some states have been forced to resort to utilizing mixes of
experimental drugs as major American and European suppliers of the most
effective lethal concoctions began to stop supplying them. In part, due to
shifting public opinion and the nefarious association that comes with profiting
off death, the tides are changing.
According to Vox, the U.S. has executed 1,407 Americans since 1976. Texas leads
the nation, having performed 524 executions in the same time period. This is
despite a major slowdown in use of capital punishment.
Public opinion seems to be shifting, as a Gallup Poll in 2013 showed that 60 %
of Americans favored the death penalty for convicted murderers - a 40-year low.
In 2015, that number is even lower at about 56 %, according to a Pew Research
poll.
This may be due in part to the disturbing trend of botched executions, such as
the case with Clayton Lockett, in which it took 43 minutes for him to die from
lethal injection. This has led many to question the popularity of the method as
the main form of capital punishment, as it is the most risky, often failing to
achieve its supposedly painless outcome.
Whether or not you agree that killers deserve to be killed, numbers like these
are despicable and should be met with disagreement. It should also be clear at
this point that using capital punishment does not help solve any underlying
causes of why such crimes are committed.
Rather, it continues to be an embarrassing, drawn-out and expensive method of
making us feel like we are getting rid of problematic citizens, while in
reality we continue to regularly permit borderline human rights violations
without focusing on underlying causes of violent behavior. It's time we
abolished this nasty practice for good.
Martin Jaakola
(source: Letter to the Editor, Minnesoat Daily)
***************
Massachusetts murderer's lawyers seek move for death-penalty retrial
Lawyers for a man who pleaded guilty to 3 murders after a Massachusetts
carjacking more than a decade ago are due in court on Wednesday to ask that the
trial to determine whether he is sentenced to death be moved out of state.
Gary Lee Sampson in 2003 was sentenced to death in federal court to murdering 2
men who had picked him up while he was hitchhiking and later killing a 3rd man
after he fled to New Hampshire. But his sentence was overturned in 2011 by a
judge after it emerged 1 of the jurors had lied about prior dealings with law
enforcement.
Defense lawyers argued in court filings before Wednesday's hearing that the
intense publicity surrounding Sampson's case, as well as the recent trial of
Boston Marathon bomber Dzhokhar Tsarnaev, who was also sentenced to death by
lethal injection, would make it impossible to seat an impartial jury in Boston.
Sampson's lawyers asked U.S. District Judge Mark Wolf to move his trial to
Washington, D.C., or New York.
More than 3 decades have passed since Massachusetts lawmakers abolished the
death penalty as a punishment for crimes prosecuted in state courts.
Federal juries in the state have considered just 3 capital cases in the past
few decades - those of Tsarnaev, Sampson and a nurse found guilty of killing
patients but not sentenced to death in 2001.
Extensive mentions of Sampson's death penalty case in news accounts of the
Tsarnaev trial make it highly unlikely that potential jurors will not know the
55-year-old former drifter had previously been sentenced to death, his lawyers
argued.
"The principal danger at issue here is that the jury will impermissibly rely on
the result of the 2003 penalty phase trial," they wrote in court papers.
Tsarnaev's attorneys had also argued, unsuccessfully, that his trial should
have been moved out of Boston, citing the intense media coverage of the 2013
bombing that killed 3 people and injured 264.
Prosecutors argued that Sampson's 2nd sentencing hearing should be held in
Massachusetts, since that is where he tortured and killed Philip McCloskey and
Jonathan Rizzo in the carjacking. Sampson killed Robert Whitney in New
Hampshire.
(source: Reuters)
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