Feb. 15 TEXAS----impending execution 4th condemned killer this year set to die tonight----Responsible for murders of 2 local cabdrivers, inmate blames childhood Before he shot the United Cab driver 3 times in the head, his girlfriend testified, Clyde Smith Jr. asked Victor Bilton about his family. Bilton, who normally didn't work after dark, might have told the man about his daughter, Pamela, who was flying home that night from visiting her brother in California. He might have mentioned that he decided to take a few late fares while he waited to pick her up. Bilton never made it to the airport. Eventually, Smith confessed to robbing and killing both Bilton, 51, and Yellow Cab driver David E. Jacobs, 45, whom he shot three times in the head with the same .38-caliber Smith & Wesson. It was Jacobs' murder, on Feb. 6, 1992, that landed him on death row. If put to death as scheduled tonight, he will be the 4th person executed in Texas this year. And Smith, in a recent death row interview, said he is not optimistic about any last-minute stays. Bilton's family recently reflected on the life of a man they say never felt unsafe behind the wheel of his cab. When United Cab asked if he wanted a safety shield installed between his front and back seats, Bilton had refused. He liked to talk to his customers. "My daddy wouldn't pass judgment on anybody," said Pamela Bilton Beard, who was 20 on March 22, 1992, the night she waited 4 hours at Hobby Airport for her father. But Bilton had picked up his last fare at the downtown Hyatt Regency - a nice-looking couple from a nice-looking hotel who asked him to drive to 655 Maxey, a wastewater plant in a remote part of northeast Houston where Smith shot Jacobs the month before. "She (the girlfriend) testified that they dressed up nice so people would pick them up," Bilton Beard said of the trial. "It was premeditated, it was calculated, (he) knew exactly what he was doing." Smith told investigators he robbed Bilton to help with his girlfriend's bills. He robbed Jacobs to pay for a rental car. Jacobs' wallet yielded $110. Bilton carried $120. Won't let his family come Bilton Beard will attend Smith's execution with her brother, his wife and several other family members who still recall Bilton's warm sense of humor 14 years after his death. No one from Smith's family will attend. He won't let them. "He divorced me and he denied me, and I don't have no child, it look like," said his mother, Ruth Maye, who never visited her son in prison. Maye said she and other family members in Mississippi had planned to go to the execution to see Smith "one last time," and claim his body - which he signed away to an unnamed friend. Smith, who ran away at age 15, told police he would rather be in jail than in his mother's house. Maye said she was a good mother to a stubborn child who wouldn't listen to her and got in with the wrong crowd. "I don't know what happened to him," Maye said. But according to affidavits filed by some of Smith's 5 siblings - only 2 of whom had the same father - Smith, who was no stranger to drugs and alcohol, ran away to escape excessive beatings by both his mother and the 5 men she married and divorced as they were growing up. Didn't stay put for long After spending time on the streets and at a boy's home, Smith moved back to Houston, where he had lived until he was 9, to live with his father, Clyde Smith. His mother warned him that "there ain't nothing left in Texas but death." Smith's father turned him away, and Jacobs and Bilton were killed about a year later. Smith was 18 years old at the time. The men were only 2 of the 86 taxicab and livery drivers murdered while on the job nationwide in 1992. In the 1980s, 15.1 of every 100,000 taxicab drivers lost their lives to murder. Though the murder rate has dropped since the mid-1990s, when cabs were first equipped with emergency alarms and cameras and could be tracked throughout their city routes, a 2000 report by the Occupational Safety and Health Administration revealed that cabdrivers are still 60 times more likely than other workers to be slain on the job. Smith now says he was only an accessory to the murders and that others pulled the trigger. The three confessions he recorded upon his arrest, he says, were made under pressure from homicide investigators. Points to violent childhood While Smith's appellate lawyer does not deny his involvement in the killings, he says his life could have been spared had his trial attorney presented evidence regarding Smith's violent childhood to the jury that sentenced him to death. "The literature sort of shows that that stuff is important to jurors," attorney F. Clinton Broden said. "Whether it would've made a difference in this case, I don't know. But he should have had the chance." In a sworn statement, his trial lawyer said he conducted a complete investigation and found no evidence of any abuse. But Smith's lawyers have claimed in a string of failed appeals that the trial lawyer's investigation was scant, his client visits infrequent and that he never explained to Smith that his childhood could have helped save his life. The state rejected Smith's 1st and most critical appeal, his postconviction writ of habeas corpus, in part because his court-appointed habeas lawyers did not include any evidence that family members would have testified to Smith's history had they been contacted. By the time Broden obtained that evidence and filed new appeals, it was essentially too late, as higher courts cannot rule on evidence that could have been presented at the state level. 'I did not put you there' But Assistant District Attorney Lynn Hardaway said it is "highly unlikely" that evidence about his childhood would have spared Smith the death sentence, in light of the overwhelming evidence presented against him. "The fact is, while Clint Broden didn't like the way habeas counsel handled things, Mr. Smith has had all the due process consideration he should have and a full review of his conviction," she said. Smith's mother wrote her son a letter the day after she heard he had banned her from seeing him die. "I told him ... I did not put you there. You chose," she said. But Smith believes that if he had a different childhood, he wouldn't be on death row. 43-year-old Kenneth Bilton, Victor Bilton's only son, said that is nothing but a "smokescreen" to hide the malice of the man who took his father away. "I miss the fatherly life, that person to talk to that you can confide in about things," he said. "Life in prison would not have been enough." (source: Houston Chronicle) NEW YORK: Court Rejects Death Row Inmate's Request to Bifurcate Appeal The Court of Appeals yesterday denied a request to bifurcate the appeal of John Taylor, the last man remaining on New York's death row. Mr. Taylor was sentenced to death for the May 2000 murders of 5 Wendy's employees in Queens. Since his incarceration, the Court has struck down the death penalty because it put jurors in the untenable position of weighing possible parole against a death sentence. Mr. Taylor's attorneys at the Capital Defender Office last month asked the Court to address that issue first, in the hopes the appeal would move more quickly and Mr. Taylor would be removed from death row. The office of District Attorney Richard A. Brown objected to the request, saying the entire appeal should be argued together (NYLJ, Feb. 3, 2006). Briefs are not due until the end of the year. (source: New York Law Journal) VIRGINIA: Judge allows Moussaoui back in court for jury selection In Alexandria, confessed al-Qaeda conspirator Zacarias Moussaoui was unexpectedly allowed to re-enter the federal courtroom Wednesday for the selection of a jury to decide whether he is executed or imprisoned for life. Judge Leonie Brinkema had ordered Moussaoui barred from jury selection at a hearing on Tuesday because he refused to maintain courtroom decorum and indicated a determination to keep giving insult-laden speeches. Brinkema gave no explanation in court for her change of mind on Moussaoui's presence, but she had said the day before that she might reconsider if he decided to alter his behavior. Just before the judge entered, 12 prospective jurors were led into the courtroom and seated in the jury box. The 9 men and 3 women included only one black, a middle-aged man. There was 1 white-haired man wearing a suit and tie. Others were younger and less formally dressed. The lawyers were introduced, including a new presence at the defense table, jury consultant Marjorie Fargo. Then, with no announcement, a side door opened and Moussaoui, clad in a white knit cap and green prison jumpsuit with "Prisoner" in block letters on the back, quietly walked in and took his seat behind the defense lawyers. The bearded 37-year-old Frenchman of Moroccan descent said nothing but almost immediately began craning his neck to scan the faces of the potential jurors. Brinkema made no mention of Moussaoui's presence as she explained to the jurors that they would be identified only by number in public and explained that they would be asked only general questions at first and then brought back later for individual questioning later in the morning. In a rare development for the Moussaoui case, the courtroom was half empty. Brinkema qualified all of the first 5 jurors questioned and told them to return on March 6 when defense and prosecutors will exercise their peremptory or unexplained challenges. But two of the jurors were qualified over defense objections. The defense objected to qualifying a man who works in airport construction. The man spent 24 years in active and reserve duty for the Navy and was assigned to the Pentagon and personally knew a contractor who was working there on Sept. 11 when the plane crashed into the building near where he was working. "I remember him telling me it was very loud and surprising and he ran faster than he ever had in his life," the juror said. Defense attorney Gerald Zerkin objected because the man is involved with airport security issues and because "he knows someone who was at the crime scene." But Brinkema said that she would not disqualify potential jurors "just because they knew people who worked at the Pentagon," absent something special about their relationship or experience. She also qualified a young female teacher who had unsuccessfully applied to work for the FBI and said, "I always wanted to work for the FBI since I was a teen-ager." The young woman expressed the view that Moussaoui might be brainwashed and "he may be in conspiracy even now with people outside the country to harm the United States." She said she wondered what contact those sentenced to life in prison would have with outsiders. Zerkin tried to get Brinkema to probe further whether the woman was predisposed to vote for the death penalty but the judge said she believed the young teacher had indicated a willingness to impartially follow instructions on sentencing. Moussaoui disrupted the 1st day of jury selection, leading Brinkema to toss him from court 4 times that day. Brinkema subsequently ordered that he watch the remainder of jury selection on closed-circuit television from a special courthouse jail cell. Last April, Moussaoui pleaded guilty to conspiring with al-Qaeda to fly aircraft into U.S. targets. He claimed he had no role in the Sept. 11 plot and instead was training for an aborted 2nd wave of attacks. To win the death penalty, prosecutors must prove Moussaoui was directly involved in the Sept. 11 attacks. They plan to argue that the government could have thwarted the attacks if Moussaoui had not lied to FBI agents about his terrorist connections after his August 2001 arrest on immigration violations. The defense contends the government knew more about the terrorists' plans than Moussaoui, and still was unable to prevent the attacks. (source: Associated Press) CALIFORNIA: Change in Lethal Injections Ordered----The state must execute Michael Morales with sedatives or ensure he cannot feel deadly drugs, U.S. judge rules. Agreeing that lethal injection may cause excessive pain, a federal judge told state corrections officials Tuesday to change the way they administer the fatal dose, or face a delay in death row inmate Michael Morales' Feb. 21 execution. U.S. District Judge Jeremy Fogel said in a 15-page ruling that San Quentin State Prison officials may either administer fatal levels of sedatives exclusively or have an anesthesiologist present to ensure that Morales is unconscious before they deliver the standard mix of sedatives, paralytic agents and heart-stopping chemicals. "It is hoped that the remedy ordered by this federal court in this case will be a one-time event," said Fogel, of the U.S. District Court in San Jose. Death penalty opponents were elated by Fogel's decision. "This is a historic decision," said Natasha Minsker, director of death penalty policy for the American Civil Liberties Union in Northern California. "This is the 1st time a federal judge has concluded that there is substantial evidence that people may be suffering pain during the lethal injection process." "Judge Fogel noted that in 6 of the past 13 executions something went wrong," she said, "and there is reason to believe that in those 6 cases, people were suffering." With regard to Morales' Feb. 21 execution date, however, Minsker said, "It's hard to say what will happen next." State corrections officials have until Thursday to decide whether to accept Fogel's proposal of using sedatives, or until today to select an anesthesiologist. Morales would have until Thursday to comment on the medical professional who is chosen. Neither the state attorney general nor Morales' attorneys would say whether they plan to appeal Fogel's ruling. California began executing prisoners by injection in 1996 after a federal appeals court ruled that San Quentin's gas chamber violated the Constitution's ban on cruel and unusual punishment. If state officials reject Fogel's options, the court will stay the execution and hold an evidentiary hearing in early May on Morales' assertions that execution by lethal injection is unconstitutional. In his ruling, Fogel acknowledged that sedatives alone could possibly prolong the execution by as much as 45 minutes. But pointing in part to problems encountered during the recent executions of Stanley Tookie Williams and Clarence Ray Allen, Fogel also said Morales had raised legitimate fears that unexpected problems during the lethal injection process could cause extreme pain. On Dec. 13, a profusely sweating prison nurse poked a needle into Williams' muscular arm again and again, searching for a vein to deliver the lethal chemicals. On Jan. 17, Allen, California's oldest condemned inmate, required 2 doses of potassium chloride to stop his heart. California corrections officials - like those in the 36 other states that rely on lethal injection - execute condemned inmates with a combination of three chemicals: 5 grams of sodium thiopental, a short-acting barbiturate; 50 or 100 milligrams of pancuronium bromide, which paralyzes all voluntary muscles; and 50 or 100 milligrams of potassium chloride, which induces cardiac arrest. In theory, the barbiturate renders the inmate unconscious long enough for the potassium chloride to stop his heart. Without the barbiturate, the heart-stopping injection would cause intense burning pain. But with it, state lawyers argue, the inmate feels nothing. Each chemical is given in a dosage that is lethal by itself, Fogel said. They are administered through an IV started in 2 veins - 1 is a backup. Morales' lawyers argue that the barbiturate may not always work effectively. Because the second paralytic drug freezes all of an inmate's muscles, the prisoner may have no way of signaling whether he or she is still conscious and able to feel the 3rd chemical. Even state corrections authorities agree that a person injected with the second and third chemicals while conscious would experience excruciating pain. They assert, however, that the dosage of the barbiturate is more than enough to ensure Morales would be unconscious before receiving the drugs. On Monday, Fogel asked state corrections officials 2 questions indicating that he had doubts as to whether the procedure worked as intended. He asked whether it would be feasible to proceed with the execution using the sedatives exclusively. State authorities said that although it would be possible to kill Morales using only barbiturates, it could take as long as 45 minutes for him to die. Since the current method of execution results in death in an average of 11 minutes, the authorities said they did not support the exclusive use of a sedative. Fogel also asked if it would be feasible to apply an independent means - such as a medical device or a qualified individual - to ensure that Morales is unconscious before the second two injections are administered. State authorities responded that they were unaware of any devices that were easily obtainable and effective in monitoring consciousness. However, they said, San Quentin State Prison Warden Steven Ornoski could monitor Morales inside the execution chamber. It was not clear whether Ornoski's credentials met Fogel's call for a qualified individual with formal training in anesthesiology. Fogel's ruling appeared to place Morales' fate in the hands of Gov. Arnold Schwarzenegger, who is reviewing Morales' plea for clemency. On Tuesday, former Whitewater independent counsel Kenneth W. Starr urged Schwarzenegger to focus on the facts of the case in weighing whether to spare Morales' life, and not on the allegedly fake jurors' affidavits recently submitted in support of his bid for clemency. The defense legal team, which Starr joined 20 days ago, has withdrawn the questionable affidavits generated by defense investigator Kathleen Culhane, who has been released from the case. It also has launched an investigation into the disputed documents. "It would be profoundly unjust now," Starr said in a statement, "for the wrongdoing - if there was any wrongdoing - on the part of a single investigator in the clemency effort to compromise, much less jeopardize, the plea for mercy." Morales, 46, of Stockton, was convicted of the 1981 rape and murder of Terri Winchell, a 17-year-old Lodi high school student. Morales was sentenced to death in 1983. Starr noted that the trial judge, Charles R. McGrath, has concluded that more recently uncovered evidence appears to undermine the basis of a capital murder charge against Morales. Specifically, "Michael was condemned, wrongly, by the false testimony under oath," Starr said, "by a profoundly untrustworthy jailhouse informant and serial felon." Prosecutors have argued that jurors did not rely on the informant's testimony when they unanimously recommended that Morales be executed. (source: Los Angeles Times) ***************** Killer's death may be halted----Judge says state must change lethal injection procedure or postpone Morales' execution. California must either scrap plans to execute Michael Angelo Morales next week or change the way it will put the condemned inmate to death, a federal judge ruled Tuesday. U.S. District Judge Jeremy Fogel of San Jose, responding to a defense challenge that the state's method of carrying out lethal injection is cruel and unusual punishment, gave state authorities the option of defending their current procedure in a 2-day court hearing. The judge said official state logs "in at least 6 of 13 executions by lethal injection" raise "at least some doubt" whether inmates were rendered unconscious before being injected with chemicals that would cause "excruciating pain." The court hearing would start May 2. In the meantime, Morales' execution would be stayed. Otherwise, the judge said, the state has two options for proceeding on schedule with the execution that's set for Tuesday: It can substitute a barbiturate or combination of barbiturates for the 3-drug series used in previous executions. Or, it can station an experienced anesthesiologist in the execution chamber to verify that Morales is unconscious. Fogel gave the state's lawyers until the end of today to choose their course. If they opt to designate a monitor, Fogel would rule by Thursday night whether the person is qualified. Either side could appeal by week's end and push the case to the U.S. Supreme Court over the Presidents Day holiday weekend. The next step is for the state "to fashion a lethal injection procedure," said John Grele, one of Morales' lawyers. Morales' defense team will wait and see what the state comes up with and then may challenge it, the lawyer said. The attorney general's office said late Tuesday it was conferring with the California Department of Corrections and Rehabilitation and would advise the court of the decision. In prosecution papers filed with the court Monday, the state balked at what then was merely an inquiry from Fogel about the possibility of altering the execution chemicals. In response to another question from the judge about monitoring Morales' consciousness during the procedure, the state offered only to place the warden in the execution chamber "to assess response to stimuli" by touching the condemned man - an offer Fogel now appears to have rejected. Natasha Minsker, death penalty policy director for the American Civil Liberties Union of Northern California, said Fogel's 15-page decision was the 1st in the nation to "recognize a real possibility of pain in the lethal injection procedure," which has come under legal attack in cases from coast to coast. A federal appeals court in Missouri already has stayed a lethal injection execution in that state but did not discuss the constitutional issue - a possible violation of the Eighth Amendment prohibition of cruel and unusual punishment. The U.S. Supreme Court declined to intervene in the Missouri case but has allowed lethal injection executions to go forward elsewhere. Lethal injection is the method of execution used in 37 states. Most use the same drugs California uses. Fogel noted in his ruling that no court has found lethal injection to be an unconstitutional form of punishment, and he said he's not about to do so. The issue, he said, is assuring the procedure is carried out in a constitutional manner. If he stays Morales' execution, Fogel plans to conduct a full assessment of evidence in favor of and against the process that depends on the administration of 5 grams of sodium thiopental to induce unconsciousness, followed by 50 or 100 milligrams of the paralyzing agent pancuronium bromide and, finally, a similar dosage of potassium chloride to induce cardiac arrest. Fogel's decision was his 3rd in a case over California's lethal injection procedure and his 1st in favor of the challengers. In his previous rulings, in the cases before the executions of Kevin Cooper and Donald Beardslee, Fogel was persuaded by a state medical expert's calculation that the sodium thiopental dose would produce unconsciousness within 60 seconds in "over 99.999999999999 % of the population." In other words, although the state conceded that a conscious inmate would feel "excruciating pain" from the pancuronium bromide and potassium chloride, the chance of consciousness was thought to be infinitesimal. Among the differences in Morales' case, said Fogel, was additional expert opinion as well as evidence drawn by Morales' lawyers from the state's execution logs and presented in court. While "no direct evidence" showed anyone was conscious to feel pain, said Fogel, the logs noted "respirations" continuing at least until the start of the administration of pancuronium bromide in the 6 executions of Jaturun Siripongs, Manuel Babbitt, Darrell Keith Rich, Stephen Wayne Anderson, Stanley Tookie Williams and Clarence Ray Allen. Williams may still have been breathing when the administration of potassium chloride began. A state expert said in a declaration last week that the recorded "respirations" may have been "chest wall movements" not caused by breathing. But Fogel noted other anomalies, including the need to inject Allen with a 2nd dose of potassium chloride to stop his heart. In papers filed with Fogel on Monday, the attorney general's office said using only the barbiturate thiopental, as Fogel had proposed, "would unnecessarily delay completion of the execution (by about 30 minutes) and would be unfair to the witnesses and execution team." Morales' lawyers said in response that "it would appear that allowing the public and personnel involved to be insured of a humane execution would alleviate stress rather than cause it." Morales is scheduled to be executed at 12:01 a.m. Tuesday at San Quentin Prison for the January 1981 rape and murder of 17-year-old Terri Winchell of Lodi. (source: Sacramento Bee) FLORIDA: Killer of Florida girl asks judge to spare his life In Sarasota, a weeping Joseph Smith apologized Tuesday for the abduction, rape and murder of 11-year-old Carlie Brucia 2 years ago, telling a judge he had taken large amounts of cocaine and heroin that day in hopes of killing himself. Smith told Circuit Judge Andrew Owens, who will sentence him to death or life in prison, "I do not ask for mercy for myself. The only thing I can see to give me a life sentence is for my family. I do not want to see them hurt any further." Carlie was abducted while walking home from a friend's house in February 2004, an attack that was caught on a car wash surveillance tape and broadcast nationwide. Friends and even Smith's brother said they recognized the burly mechanic grabbing the young girl's wrist on the tape as Smith. A jury found the 39-year-old guilty last November and recommended by a 10-2 vote that he be executed. Owens will ultimately sentence Smith on March 15. Under Florida law, he must give the jury's death sentence recommendation "great weight." Smith told Owens during the 2nd day of the sentencing hearing Tuesday that he had been a heroin addict since he was 19 and had unsuccessfully tried to quit several times. He said his wife had kicked him out of their home in January 2004, he had lost his job and, in the hours before abducting Carlie, he tried to overdose. "I just wanted to die that day," he said. "I take responsibility of my crimes. I don't understand how this could have happened." But prosecutor Debra Johnes Riva said Smith was lucid enough after the crime to stash Carlie's body and get rid of her clothes and backpack. And days later he told his brother where he had put the body. "He has an absolute, complete memory of the crime," Riva said. Riva dismissed arguments by defense attorney Adam Tebrugge about Smith's drug use and the idea that he could lead a productive life in prison and be a positive influence on his 3 daughters if spared. None of that, she said, "outweighs the horrible crimes that were committed against Carlie Brucia." Tebrugge had implored Owens to spare Smith, saying that he had sought help for his drug addiction but never received it. He also suggested the community would better heal if Smith was given life in prison and forgotten, rather than sentenced to death, meaning years of appeals. Carlie's mother, Susan Schorpen, could not attend the sentencing hearing because she is jailed in Pinellas County on drug and prostitution charges. In a letter read by Riva on Monday, Schorpen said the pain of losing her daughter led her to institutionalize herself 3 times and take drugs to numb the pain. Carlie's stepfather, Steven Kansler, said Tuesday that he wasn't moved by Smith words or the arguments. "It doesn't bring Carlie back," he said. "I'll be happy when I see him die." (source: Associated Press)
