Feb. 3 TEXAS: DA withdraws death penalty from capital murder case Gaines County District Attorney Ricky B. Smith will not seek the death penalty in the murder case against Daniel Lee Flores, 30, who is accused of killing his pregnant girlfriend in 2003. Flores is accused of killing 18-year-old Erica Muro on Jan. 26, 2003, in Seminole. In an 11:15 a.m. filing Thursday, Smith noted his death penalty withdrawal without explanation. "... The State hereby withdraws the Notice of Intent to Seek the Death Penalty and advises the Court that the State will not seek the death penalty if the defendant, Daniel Lee Flores, is found guilty of capital murder," Smith wrote in his filing. Defense attorney Woody Leverett of Midland said the news was good for his client, who is already serving a life sentence for shooting a police officer the night of the alleged murder. "It will be much less time consuming now, because there won't be any more individual voir dire of the jury," said Leverett. "You don't have near the investment in selecting a jury. It streamlines the process considerably." Leverett said he expects attorney Randol Stout of San Angelo to continue defending the case with him. Flores is accused of shooting Muro twice in the head, according to reports at the time. At approximately 9:30 p.m. that day, Lt. Darrell Hobbs went to Flores' residence, located at S.W. 11th St., in Seminole, to investigate a possible shooting. Flores shot Hobbs as the officer approached a back door. Flores was convicted for attempted capital murder in 2003 and sentenced to life in prison. Smith had originally filed a notice to seek the death penalty on Nov. 4, 2004, according to his Thursday filing. Smith would not comment on the case. "Publicity just killed us over there in Seminole over this case," he said of his reasoning not to speak publicly about his desire not to seek the death penalty. Last week, 106th District Judge Carter T. Schildknecht said it became clear it would be impossible to pick a jury in Seminole for the case because too many people either knew about the case or those involved. She declared a mistrial and supported a change of venue. Leverett said though his client is looking at the possibility of another lengthy sentence if convicted, having the death penalty removed from the equation eases the tension any attorney experiences in a death penalty case. "It cuts down a lot on the fingernail chewing a lot in my office," Leverett said. *************** Accused killer's attorney allowed to withdraw service The attorney representing a man accused of killing one woman and suspected in the disappearance of another withdrew himself from the case Thursday. Albert Rodriguez, a San Antonio attorney, filed a motion with the court earlier this week to be removed as counsel for 26-year-old Rosendo Rodriguez III. The motion was granted Thursday. Rodriguez is accused of killing Summer Baldwin and stuffing her body in a suitcase that was later discovered at a city-owned landfill. Authorities also named Rodriguez during a subsequent court hearing as a suspect in the disappearance of 16-year-old Joanna Rogers. Two Lubbock lawyers, Jeff Blackburn and Greta Braker, were named as replacements during a Thursday hearing; however neither had been hired Thursday to represent Rodriguez. Rodriguez remains at the Lubbock County Jail in lieu of a $500,000 bond. (source for both: Lubbock Avalanche-Journal) NEW YORK: Defense Asks Court To Separate Issues In Taylor Appeal The death penalty came to an end in New York a year and a half ago, but in the case of John Taylor, the man convicted of murdering 5 Wendy's employees, there remains plenty to argue about. As Mr. Taylor, 41, sits on death row, his attorneys at the Capital Defender Office are trying to expedite his appeal based on the June 2004 ruling from the Court of Appeals in People v. LaValle, 3 NY3d 88, which struck down the death penalty because its deadlock provision forced jurors to weigh a parole-eligible sentence against a death sentence. To the mind of Kevin M. Doyle, head of the Capital Defender Office, putting aside all other procedural and constitutional claims to concentrate on the deadlock provision would save resources for the prosecution, the defense, the Court and the state, which is maintaining a death row at the Clinton Correctional Facility in Dannemora solely for Mr. Taylor. The remaining issues would be considered later. Prosecutors from the office of Queens District Attorney Richard A. Brown, however, contend that LaValle does not apply to Mr. Taylor's case, since the trial judge understood the provision's flaws and crafted a unique jury charge to resolve them. Mr. Brown's office argues further that bifurcation would in fact waste time and prove more costly. Beyond the legal arguments are political concerns. The composition of the Court of Appeals is due to change perhaps this year and certainly next. Depending on which administration makes the new appointments, the result could be a stronger hand for the prosecution or the defense. The Court could include two new members if Mr. Taylor's appeal is argued early next year, as is likely under the schedule that sets a briefing deadline of Nov. 6. Mr. Taylor's case has been unique from the beginning. In May 2000, he and an accomplice, Craig Godineaux, perpetrated one of the city's most gruesome crimes while robbing a Wendy's in Flushing. Mr. Taylor was a former employee and was allowed into the restaurant's basement, where the safe was kept. Once downstairs, he brandished a gun and forced the restaurant's manager, Jean Auguste, to open the safe. He then ordered Mr. Auguste to call the remaining employees into the basement. Messrs. Taylor and Godineaux bound the 7 employees' hands behind their backs and taped their mouths and eyes. They marched the victims into the refrigerator room before shooting each of them in the head. 2 of the victims survived. Mr. Taylor's role in the crime was never in doubt. He was captured on videotape, and Mr. Godineaux admitted to the crime (prosecutors agreed not to seek the death penalty against him because of his mild retardation). At trial, Mr. Taylor conceded that he was guilty of crimes that constituted a capital offense - the 1st time a defendant, since the death penalty was reinstated in 1995, had admitted to 1st-degree murder and asked the jury to move on to the penalty phase. The jury sentenced him to death on three counts of 1st-degree murder. Deadlock Questions Prior to Mr. Taylor's trial, his attorneys, Kelley J. Sharkey and John M. Youngblood, asked the trial judge, Justice Steven W. Fisher, to declare the death penalty unconstitutional because of the deadlock provision that would later prove to be the statute's undoing. The provision required judges to instruct jurors that if they deadlocked, the court would sentence the defendant to a parole-eligible life term. The defense argued that this instruction was coercive and might persuade a juror to vote for a death sentence out of fear that the defendant would one day be released. It was the argument that eventually swayed the majority of the Court in its 4-3 ruling in LaValle. Justice Fisher, now a member of the Appellate Division, Second Department, denied the request, and also declined to tell the jury that he would sentence Mr. Taylor to seven consecutive 25-to-life sentences. But he did attempt to cure any possible flaw in the deadlock provision with the following addendum to his instruction: "The maximum sentence I could give and would almost certainly impose in this case, would be a sentence of 175 years to life, which means that the defendant would become eligible for parole, but only after he had served 175 years in jail." In its Jan. 5, 2006, brief asking the Court of Appeals to bifurcat Mr. Taylor's case, the Capital Defender Office argues that no matter the instruction Justice Fisher gave, the statute was defective. Moreover, the office argues, the instruction did not guarantee that Mr. Taylor would not be paroled. "Almost certain is not certain," Mr. Doyle argues in the brief. "Almost always is not always. Legal possibility and predictive probability neither add up to certainty nor extinguish juror fear of danger to society." In an interview, Mr. Doyle said addressing LaValle first would be best for all parties, as it would reduce normally voluminous briefs to one issue and, he hopes, more quickly move Mr. Taylor from death row. "The goal is that common sense prevail," he said. Besides arguing that LaValle does not apply, Mr. Brown's office, in a reply memorandum, contends that the Court does not have the authority to bifurcate the appeal. If the Court were to split the appeal, Mr. Taylor's two arguments each would likely be heard by a Court composed of different judges, the office argues. Such an outcome would be "affirmatively inconsistent with the general practice, procedure, and rules of this Court," the brief, written by Assistant District Attorney Donna Aldea, states. Mr. Brown's office also predicts, in its memorandum, that bifurcation would slow the appeal, rather than speed it along. It says that prosecutors and the attorney general would need at least 45 days, and perhaps double that, to respond to the deadlock brief. If the defense replied to that brief in June, oral arguments would occur in August, followed by a decision in September, at the earliest. Win or lose, the memo says, the remainder of the appeal would then begin on a new schedule, and would not be resolved until 2008. Mr. Doyle disputes the suggestion that bifurcation would delay the process. "I don't know how it can conceivably slow things down, even if they requested and were granted oral argument," he said. "This is a narrow issue, the disposition of which will obviate the need to address myriad other penalty-phase issues." Changing Bench The future composition of the Court is a more delicate and unpredictable matter. The term of Judge George Bundy Smith, one of the majority judges in LaValle, expires in September, but the judge recently said he would apply for a 2nd term despite facing mandatory retirement about a year later when he turns 70. Judge Smith is considered the most liberal member of the Court and it is unclear whether Governor George E. Pataki will support his reappointment. The term of another member of the LaValle majority, Albert M. Rosenblatt, expires on Dec. 31. If Mr. Rosenblatt, who is a Pataki appointee, finishes his term, the next governor would choose his successor. The term of Chief Judge Judith S. Kaye, also in the LaValle majority, expires in March 2007. Any of those appointments could make the Court more amenable to arguments for or against the death penalty in the case of Mr. Taylor. If Judge Smith is reappointed and the next governor replaces Judge Rosenblatt, the environment at the Court could be more comfortable for the defense. If Mr. Pataki does not support Judge Smith's request, the balance could tip in the other direction. "If the governor does appoint someone to replace Smith who would vote to sustain the death penalty, all bets are off unless [Judge] Robert Smith supports stare decisis," said Vincent Bonventre, a professor at Albany Law School and an expert on the Court of Appeals. "George Bundy Smith has made it clear that he is a certain vote against the death penalty. Just about anybody the governor would appoint to replace him would be more sympathetic to the death penalty than [Bundy Smith] is." Mr. Doyle said the possible composition of the Court had no bearing on the defense's decision to file its motion to bifurcate. "Certainly, prominent death penalty proponents have publicly expressed the hope that a change in court personnel, as Justice Marshall would say, would trump stare decisis," he said. "As the person who conceived of this motion and who is ultimately responsible for all of our litigation, I can state with absolute certainty that we would be filing this motion even if the current composition of the Court were guaranteed for the next century. It makes sense for John Taylor, for judicial economy, and for the New York taxpayer." The Queen's District Attorney's Office declined to comment on any aspect of the appeal. The Court of Appeals has given no notice as to when it will decide the motion to bifurcate. (source: New York Law Journal) FLORIDA: Imprisoning the innocent: 'It's un-American' Alex Villalobos vividly remembers when he prosecuted his first case as an intern in State Attorney Willie Meggs' office back in the late '80s. Villalobos, then a Florida State University law student, was assigned a juvenile burglary case. The youth arrested for the crime was accused of breaking a window, entering a residence and stealing a gun. He swore he didn't do it, but Villalobos won a conviction. 18 years later, Villalobos, 42, is majority leader in the Florida Senate, an influential Republican from Miami who's in his 14th year as a lawmaker. Unlikely as it may be, he still wonders if that convicted burglar actually was telling the truth. Five years ago the conservative politician first thrust himself into the spotlight as the Legislature's poster boy for defending the interests, through law and science, of wrongfully convicted inmates. And with postconviction DNA testing leading to the Jan. 23 release of a prisoner who spent 24 years behind bars for a brutal robbery and rape he didn't commit, the spotlight on Villalobos is growing brighter. Not exactly the kind of cause that's likely to win votes and big campaign contributions, since so many of those in prison are poor and forgotten. Why bother? "It's un-American," Villalobos says, "to put somebody who's innocent in prison." Villalobos was behind the 2001 bill that gave inmates who insisted on their innocence a chance to prove it, if DNA evidence was available. But there was a deadline - and had the Florida Supreme Court not extended it to July of this year, the window would have been shut. Now Villalobos is sponsoring new legislation (Senate Bill 186) that would abolish all cutoff dates for testing, include all cases where a plea has been entered and establish uniform procedures. With major advances in DNA technology, Villalobos says, it serves the interest of justice to do everything possible to make sure that the person who did the crime does the time. "Forget that (imprisoning an innocent person) is immoral, because it is. If you're going to talk pure cost, it costs taxpayers $25,000 or $30,000 a year to keep someone in prison," he says. "This adds legitimacy to the legal system. That's what this is all about. It's not politics, or conservatism or liberalism. Someone either did something or they didn't. It does not serve anyone's interests to have the wrong guy in." Sandy D'Alemberte needs no persuading. The former FSU president was dean of Florida State's law school when Villalobos was a student. Villalobos was his research aide. D'Alemberte, a former American Bar Association president, is actively involved in efforts to expand DNA testing for people accused of crimes. He represented Wilton Dedge, a Brevard County man who served 22 years in prison for a rape he didn't commit. Dedge was released a year and a half ago, and in December won $2 million in compensation from the Legislature. When he first talked to Villalobos about DNA testing several years ago, D'Alemberte says, his former research assistant immediately understood what was at stake. "One of the points he made is that we now have a test that was not available or as sophisticated as when a number of these prosecutions took place," D'Alemberte recalls. "He said if we can demonstrate that someone is wrongfully convicted and actually innocent, it means we failed to convict a guilty person." Nobody in prison is technically innocent. When a judge or jury says you're guilty, the record says you are - even if you didn't do it. Nobody knows for sure how many truly innocent people are languishing behind bars, but inmate advocates estimate that the number is in the thousands. Jenny Greenberg, executive director of the Florida Innocence Initiative, says opposition to Villalobos' efforts are largely behind the scenes. "Nobody will stand up and oppose this," she says. "That's what makes it so pernicious." Even so, Villalobos thinks his new legislation will pass - because there's just no credible, moral argument against it. D'Alemberte and Greenberg hope he's right. So should everyone who supports justice and fairness. (source: Tallahassee Democrat) VIRGINIA: Execution bill provokes remarks in House Though there was no formal discussion during the House of Delegates votes yesterday on the bills dealing with illegal immigrants and public colleges, there were some spirited remarks about a bill outlawing execution of murderers who were under 18 at the time of the crime. The Senate, on a 34-3 vote, passed a similar measure earlier in the week. Both bills conform Virginia law with a U.S. Supreme Court decision last year. Del. Vincent F. Callahan Jr., R-Fairfax, who sponsored the conforming bill, said it would "clean up Virginia's books" on capital punishment. The state code had allowed execution of killers as young as 16 at the time of the offense. But Del. Robert B. Bell, R-Albemarle, a former prosecutor, opposed it, citing certain savage murders committed by juveniles. The high court could change its decision in the future, he suggested. He recommended keeping the current statute intact to symbolize the state's view that such evil killings warrant "the ultimate penalty." The House showed its preliminary approval of the bill in a show of hands; a final vote may be taken today. (source: Richmond Times-Dispatch) USA: Supreme Court intervention of executions spurs confusion The Supreme Court has triggered a debate over the mix of drugs used to carry out death sentences, with the justices delaying 3 executions and giving hope of eleventh-hour reprieves to other inmates. Florida and Missouri were forced to cancel executions by lethal injection this week. Prisoners in California, Maryland and other states are trying to win stays this month. An announcement from the high court last week is giving new hope for their appeals. The justices will consider whether a Florida inmate was wrongly barred from pursuing a claim that the lethal drugs cause pain in violation of the constitutional protection against cruel and unusual punishment. The court's eventual decision will not answer broader questions about the appropriate way for states to carry out capital punishment, although some justices have expressed concerns about lethal injection. The justices' intervention, even on the technical matter of how inmates can challenge lethal injection, energized lawyers who defend condemned prisoners. "They are all jumping on the bandwagon. They have an issue with more meat than they had before," said Kent Scheidegger, legal director of the Criminal Justice Legal Foundation, a pro-death penalty group. "It's going to be harder to carry out an execution," he predicted. Not all reprieves Not all inmates have received reprieves. A Texas prisoner was executed this week after losing Supreme Court appeals. Last week, the court voted 6-3 to let Indiana execute a man despite an appeals court decision clearing the way for the prisoner to challenge lethal injection. "Everybody's scratching their heads trying to figure out what's going on," Scheidegger said. Douglas Berman, a law professor at Ohio State University, said the court created "a ripple effect far beyond what they may have anticipated." "What they've fundamentally done is guarantee that every execution is in a state of limbo and uncertainty - and led to more litigation," Berman said. Florida probably will have significant support from other states when the appeal of inmate Clarence Hill is argued in April. Every state that has capital punishment, with the exception of Nebraska, uses lethal injection. Nebraska only uses the electric chair. Florida was one of the last states to switch to lethal injection, ending the sole use of its electric chair, known as "Old Sparky," after the Supreme Court said in late 1999 that it would consider if the method was unconstitutional. Lethal injection was considered more humane than the electric chair, firing squad, gas chamber or hanging. Over the years, however, studies have shown that the drug combination used in many states may not adequately sedate inmates before administration of the final medicine that causes their heart to stop. The Supreme Court last considered a related case in 2004. An Alabama death row inmate had claimed that his damaged veins would require prison doctors to cut deep into his flesh to deliver the chemicals. He won the right to pursue his claim in a limited ruling by Justice Sandra Day OConnor and still is pressing his case. OConnor retired on Tuesday and was replaced by Justice Samuel Alito, whose 1st case was the death penalty appeal from Missouri. He broke ranks with the courts conservatives, Chief Justice John Roberts and Justices Antonin Scalia and Clarence Thomas, who voted to allow the execution of Michael Taylor. They were outvoted by Alito and the courts more liberal members. "It's a reasonable, cautionary vote. It doesn't necessarily indicate leanings toward death penalty defendants," said Richard Dieter, executive director of the Death Penalty Information Center, which opposes capital punishment. "But at least hes going to be his own person." (source: Associated Press)
