Aug. 4 ALABAMA----impending execution Victim's son: Death in past----Says he long ago forgave Hubbard for mother's murder Johnny Montgomery closed the case on his mother's murderer long before the state scheduled the execution of James Barney "J.B." Hubbard. After 2 jury trials and numerous appeals, Hubbard, a 74-year-old Alabama inmate on death row for more than 26 years, is scheduled to die Thursday for the 1977 killing of Lillian Montgomery in Tuscaloosa. But Johnny Montgomery, 58, won't be at Holman Prison at Atmore to witness Hubbard's execution with his family. He quit drinking 14 years ago and decided to put Hubbard and his mother's death behind him. Justice should be served in this case, Montgomery said, but he couldn't wait that long. "That guy controlled my life for a long time - I had to move on," said Montgomery, a father and triathlete who owns Oxford Realty in Homewood. "If I could bring my mother back, sure I'd go down there and watch him die, but I can't. He could die 4 days from now or 4 years from now, and it wouldn't make any difference to me. "I've forgiven him. If I hadn't, he'd still be controlling my life. You can choose life and blessings or you can choose death and curses. J.B. Hubbard chose death. I chose life." Jimmy Montgomery, 66, said he respects his brothers feelings, but he can't find it in his "heart and soul to forgive" Hubbard. He said his family has waited too long for justice - so long that he's considered vigilante justice on more than one occasion. "There's not a day that goes by that I don't think about my mama being shot by the man we tried to help," Jimmy Montgomery said. "The state has wasted a lot of time and money in the appeals system. I may get sick and throw up, but once this guy is dead, at least justice is done." Hubbard's attorney, Alan D. Rose of Boston, sent a letter to Gov. Bob Riley on July 26, asking him to commute Hubbard's sentence to life without parole because his client's poor mental and physical health would make an execution cruel and unusual. Rose also filed an appeal Monday in the U.S. 11th Circuit Court of Appeals, asking judges to block the execution because Hubbard is too old and sick. Lillian Montgomery sponsored Hubbard and gave him a place to live after he was released from prison in 1976 for killing another man, David Dockery, in Tuscaloosa County. Hubbard, who has two children, eight grandchildren and a great-grandchild, has always maintained his innocence, claiming Lillian Montgomery committed suicide, Rose said. Rose said Hubbard would be the oldest person to be executed in Alabama history and the oldest person executed in the United States since 1941. He is frail and harmless, Rose said, eating little and spending most days in bed sick. His ailments include Hepatitis A, B and C, diverticulosis, hypertension, emphysema, prostate cancer, arthritis, chronic back pain, and dementia, Rose said. Hubbard is addicted to alcohol, mildly retarded and was once diagnosed as a paranoid schizophrenic, Rose said. "He's not sufficiently competent to be executed," Rose said. "We're not suggesting he be released, but have his sentence commuted to a life term without parole. It's not too lenient to let this man die in prison of natural causes." During Hubbard's trial, prosecutors showed jurors a picture of Lillian Montgomery lying on the floor with her false teeth blasted through the back of her head, Jimmy Montgomery said. When Lillian Montgomery pleaded for her life, Hubbard shot her twice in the head and once in the shoulder, he said. Jimmy Montgomery said Hubbard may be old and sick, but he's never known sickness and pain like Lillian Montgomery and her family. "I have no sympathy for that man at all. In fact, I've gone through life toting a lot of hatred for him," Jimmy Montgomery said. "Are we worried about this guy's health? My God! He blew my mama's head off." Assistant Attorney General Clay Crenshaw said the state is responding to yet another appeal in Hubbard's case, but it's unlikely that federal appeals judges will delay the execution any longer. No evidence has been presented proving that Hubbard is incompetent to face execution, he said. Crenshaw said he expects to have a final ruling in the case by Thursday, when Hubbard is scheduled to die by lethal injection at 6 p.m. "There is no reason to grant a stay," Crenshaw said. "He hasn't presented any evidence that he is incompetent. He understands why he's in prison and all of the circumstances surrounding his execution. He's made burial plans." Neither Gov. Riley nor officials in his office returned phone calls Monday about the Hubbard execution. Whether or not Hubbard's fate is decided Thursday, Johnny Montgomery said he will be working with 150 alcoholics at Bradford Health Services in Warrior, as his family does every month. "God led me down this path. I've got peace and contentment," Johnny Montgomery said. "I've got 2 beautiful daughters. They never saw their grandmother, and that's sad. But I'm living a great life." "I wish my brother and sister had peace and contentment, but I respect their decisions, and they respect mine." (source: Birmingham Post-Herald) UTAH: No blood atonement beliefs wanted on jury Attorneys for Tamara Rhinehart have filed a motion requesting that believers in "blood atonement" be excluded from sitting on the jury in the capital murder case against her. Blood atonement, a concept some historians say is rooted in early Mormon teachings, states that shedding the blood of a guilty person is the only proper penance for crimes like murder. The request to exclude believers in blood atonement from the jury is one of 48 motions filed by Rhinehart's attorney, Marcy C. Corporan of Salt Lake City, since Rhinehart's July 21, 2003, arrest in connection with the murder of her ex-husband Michael Boudrero. Among the other motions filed are one asking that Rhinehart not be shackled during court hearings, another asking that the death penalty be declared unconstitutional, and 2 that petition the court to exclude from the trial blood spatter evidence and photographs of the victim. First District Court Judge Gordon Low will preside over Rhinehart's trial and must rule on the motions now that the state, represented by Cache County Attorney George Daines, has finalized its responses. The trial is tentatively scheduled for the last days of January 2004 and all of February 2005. If she is convicted, Daines said she faces 1 of 3 sentences: death, life in prison without parole or life in prison with a chance of parole. Daines said his office will not contest a number of the defense motions, but he said that some, such as a request to restrict certain statements and testimony, require a serious response and will be strenuously opposed. He gave no timeframe for resolution of the matters. In addition to the capital murder charge, Rhinehart faces 1 felony count of forgery and 4 felony counts of communications fraud, as well as a burglary charge in a separate case. Daines said all the charges in the 2 cases will be tried together. The forgery and fraud charges are linked to Rhinehart's alleged attempts to purchase insurance policies on Boudrero's life naming her as beneficiary. Prosecutors accuse Rhinehart of killing him for $300,000 of the insurance money. The 47-year-old Boudrero was shot in the chest and back with a pistol on July 8, 2003, by a South African national, Craig Duncan Nicholls, who lured him to a North Logan construction site with a promise of work. Nicholls was Rhinehart's boyfriend at the time. Nicholls pleaded guilty to a charge of aggravated murder on Nov. 10, 2003, and was sentenced to life in prison without parole. The 40-year-old Nicholls admitted shooting Boudrero, and he signed a plea agreement explaining how and why he murdered the Logan man. Nicholls now wants to withdraw from the agreement, arguing in a self-filed, handwritten motion several months ago that he was "terrorized and harassed into taking a plea that day." Nicholls claims that he was a victim of "ineffective counsel, " and he filed the motion from his prison cell on Dec. 9, just 30 days after his confession and sentence to life without the possibility of parole. Low ruled that he did not have jurisdiction over Nicholls' motion and sent it to a higher court. According to Daines, Utah law is clear; defendants may withdraw from a plea agreement up to the time of sentencing. After sentencing, a defendant forfeits the right to withdraw from the agreement. Nicholls was sentenced the same day he signed the plea agreement. "It would be an absolutely incredible outcome if he is granted the motion," Daines said. Nicholls escaped the death penalty as part of his deal, and he also agreed to help prosecutors in their case against Rhinehart. Nicholls has refused to cooperate with Cache County prosecutors as agreed, Daines said. If Nicholls does not hold up his end of the plea bargain, the agreement could be thrown out, and he could be tried on the aggravated murder charge. If that happens, he would face the same possible sentences as Rhinehart. Daines said if Nicholls' motion is granted, "We're back to the status before he pleaded guilty, we'll set the matter for trial." (source: The Herald Journal) CALIFORNIA: Judge blasts Peterson prosecutors, strikes witness testimony The judge presiding over Scott Peterson's murder trial angrily rebuked prosecutors Tuesday for repeated violations of the evidence rules and as punishment ordered jurors to disregard entirely the testimony of a state witness. "I've had it. This has been a constant refrain in this case. This is going to have to stop," Judge Alfred Delucchi shouted at prosecutors after learning they had failed to share evidence with the defense about a witness who had just testified. The woman, Lissa McElroy, had described strange behavior by Peterson several days after his pregnant wife, Laci, went missing. McElroy, a friend of his mother-in-law, said that when she tried to help him select snapshots of the missing woman for the press, Peterson picked inappropriate photographs, including one in which Laci Peterson was drinking alcohol and another in which a man was exposing his buttocks to the camera. During cross-examination, McElroy mentioned that a prosecution investigator had her look through several family albums Monday night, but she had not been able to find the photos in question. "I did not see them in what they showed me," McElroy said. Defense lawyer Mark Geragos, who had been watching his co-counsel Pat Harris, question the witness jumped to his feet and demanded an immediate hearing outside the jury's presence. After the jurors were hustled out of court, Geragos railed against prosecutors for not informing him that McElroy was not able to identify the photos. Evidence rules based on the landmark 1963 U.S. Supreme Court decision Brady v. Maryland require prosecutors to turn over to the defense all evidence that is favorable to the accused. The judge has warned prosecutors Rick Distaso and Dave Harris several times during the three-month trial about failing to meet this obligation. Early in the case, prosecutors did not inform the defense that two police officers would testify that Peterson cursed and threw a flashlight when confronted about his alibi for his wife's death. Distaso maintained he did not know about the episode because the officers did not put it in their reports. In another instance, a detective testifying about sex offenders and parolees that police interrogated after the crime came to court with a report listing the individuals questioned. The defense was never provided with the report. The judge suspended the detective's testimony for several days to allow the defense time to review the document. Geragos, who has complained bitterly about each episode, said that without the probing questions of his co-counsel, the defense would never have known there was doubt about the existence of the photos. "How many times am I going to get discovery by cross-examination?" Geragos complained. Delucchi, a former prosecutor who came out of retirement to preside over the trial, his 23rd capital case, needed little prodding from the defense attorney before blasting prosecutors. Without giving Distaso a chance to speak, he raised his hand to his forehead and cried, "I've had it up to here with these violations." "Hold on, hold on," Distaso shouted back. "Don't tell me to hold on," the judge snapped, banging his hand on the bench. "I'm about to impose some sanctions." When Distaso tried to speak again, the judge cut him off and said he wanted the answer to only one question: Had the deputy district attorney known that McElroy could not identify the photos when he called her to the witness stand? Distaso said he did. "I have no excuse for it," he conceded. The judge said he was going to strike McElroy's testimony. Distaso pleaded with him to reconsider. Delucchi looked away from the prosecutor in disgust and then told him, "There comes a point where I just lose my patience and this is that point. So, you can just sit down now and be quiet." As a bailiff led jurors back into the courtroom, the judge muttered, "Enough's enough," and then tersely informed the panel that they should disregard McElroy's testimony because of a violation by prosecutors. Jurors paused for a minute and then some began crossing out lines in their notebooks. Others simply opened to a new page. Peterson showed no emotion as the judge dressed down the prosecutors, but his parents appeared buoyed as they left court. The scathing reprimand capped a day of testimony focusing on inappropriate behavior by Peterson after the Dec. 24, 2002, disappearance of his 27-year-old pregnant wife. An employee of a satellite television network said Peterson added the Playboy channel and 2 "very explicit" pornography stations to his programming line-up about 2 weeks after his wife vanished. The Dish Network employee, Donald Toy, also testified that Peterson cancelled his satellite service completely Feb. 18, 2003, the day police searched his home. He told a customer service representative that he was "moving overseas," Toy testified. Two other witnesses testified that Peterson was surprisingly upbeat and unemotional during a New Year's Eve candlelight vigil for his wife. "He seemed to be somewhat jovial," said Kenneth McCall, a Rotary acquaintance of Peterson. Another participant, Lisa Krueger, said, "He didn't really display any emotion." Krueger said after the vigil, she saw Peterson smiling and prosecutors displayed photos from the Modesto Bee showing Peterson grinning. During cross-examination, defense attorney Harris noted that Krueger's sister was a close friend of Sharon Rocha, the victim's mother, and McCall's wife worked with Rocha. He suggested their accounts of the vigil were colored by their relationship with Rocha. Prosecutors maintain Peterson killed his wife in their Modesto home and then dumped her body in the San Francisco Bay. Her remains and those of the son she was carrying washed up on the bay shore 4 months after her disappearance. A sheriff's department computer expert, Detective Lydell Wall, briefly testified Tuesday afternoon about examining Peterson's computers and is scheduled to resume the stand Wednesday morning. (source: Court TV) ARKANSAS: Execution Date Sought For Transient An execution date likely will be set within the next 2 weeks for a Fort Smith man convicted in the brutal slaying of a Fort Worth, Texas, woman. Matt DeCample, a spokesman for Attorney General Mike Beebe, said his office has asked Gov. Mike Huckabee to set an execution date for Rickey Dale Newman. Newman was convicted 2 years ago of capital murder in the death of Marie Cholette, whose body was found in a transient camp near Lee Creek Park in Van Buren. Newman confessed to the murder shortly after being arrested in March 2001. A jury convicted him in a 1-day trial on June 10, 2002. Newman waived all of his appeals during a hearing in February. "I respectfully request an execution date," Newman told Crawford County Circuit Judge Gary Cottrell. That hearing came after the Arkansas Supreme Court ruled a previous hearing invalid because Newman was on medication and was not competent to waive the appeals process. In February, Newman said he was no longer on medication and understood the ramifications of his decision to waive his appeals. In April, the Supreme Court reviewed the case and upheld Newman's decision. DeCample at that time said Beebe typically waits at least 90 days before seeking an execution date. The delay provides Newman with an opportunity to review his options. The letter to Huckabee was mailed Monday. DeCample said the letter informs the governor that there are no additional pending court cases against Newman, and that he has waived or exhausted all of his legal remedies. Jim Harris, a spokesman for Huckabee, said Tuesday that he has not received Beebe's letter but is aware the request had been made. Harris said Huckabee's policy is to set execution dates within 10 working days of receiving a request from the attorney general. The execution date will be no less than 40 or more than 60 calendar days from the date of Huckabees proclamation. Cholettes mutilated body was found Feb. 15, 2001. Authorities believe that she had been killed several days before. Newman became a suspect in the case because he was among the last people seen with her. Authorities showed jurors a photograph of the 2 together at a Fort Smith liquor store. Newman never denied killing Cholette. He claimed he killed her because she lied about being a member of a railroad gang and was wearing the gangs colors. During the trial, Newman described how the slaying occurred. "I got alcohol, drugged her up and cut her from head to toe. I killed her more than once. I killed her until I got tired of killing her, then I walked away," he told the jury. Newman also encouraged the jury to sentence him to death. "Give her family some justice....Justice is not life in prison. Her family and her soul cry for justice. For the lady's peace, the sentence should be death to the person responsible," he said. (source: SW Times Record) TENNESSEE: Rapist/killer's death sentence upheld -- 8-year-old's body found on Mud Island The death-penalty sentence of a Millington man was upheld Monday in the 1990 rape and murder of an 8-year-old girl whose body was dumped on the north end of Mud Island. David M. Keen admitted strangling and raping Ashley Nicole 'Nikki' Read, but asked juries in 1991 and again in 1997 to spare his life, saying he had been abused, abandoned and emotionally damaged as a child. Both juries sentenced him to death. On Monday, Criminal Court Judge Chris Craft rejected Keen's claim that his attorneys were ineffective and denied his request for a 3rd sentencing trial. The second sentencing trial was held after an appeals court ruled outdated jury instructions had been used in the 1st trial. In a 50-page opinion, Craft also said testimony from members of Keen's family about problems stemming from their abusive upbringing was not enough to excuse Keen's behavior. "None of the tragic figures presented had murdered a child as a consequence of their upbringing," Craft said. "Their various stories of drinking, drugging and depression paled in comparison to the photograph of Nikki wrapped in a wet blanket. . . ." Loyce Lambert Ryan and Robert Jones, who were members of the Public Defenders Office Capital Defense Unit, said Keen pleaded guilty in an effort to gain credibility with the jury because of the overwhelming case against him. "There was no defense to the factual allegations," Ryan testified at an earlier hearing on Keen's petition. "We tried to take the focus off the factual allegations, but nevertheless put the focus on Mr. Keen and his life." After pretending to help search for Nikki's body, Keen acknowledged his guilt and led police to a boat ramp on Mud Island where her body was found in the Wolf River wrapped in a blanket. He said he raped her and choked the 68-pound girl with his hands and a shoestring. The medical examiner said she was still alive when she was put in the water. Nikki was the daughter of Keen's fiancee at the time. Keen, now 42, remains on death row at Riverbend Maximum Security Institution in Nashville. (source: Commercial Appeal) INDIANA: Appeals court backs ruling on Matheney trial----Judges reject appeal in murder case The 7th U.S. Circuit Court of Appeals has rejected Alan Matheney's argument that he was incompetent to stand trial for the brutal murder of his former wife 15 years ago. A 3-judge appeals court panel voted 2-1 to affirm U.S. District Judge Allen Sharp's denial of Matheney's appeal, which covered issues of competency, effectiveness of counsel and whether the state trial court should have held a competency hearing. The decision was reached last week after being argued 8 months earlier. "Matheney was able to rationally consult with his attorneys about his crimes and the trial. He also had the ability to rationally understand the proceedings in which he was involved. He was able to assist in the preparation of his defense," the opinion states. Circuit Judge Ilana Diamond Rovner dissented, saying there's "significant, even overwhelming" evidence in the record that Matheney was unable to consult with his lawyers and assist them. In addition, the attorneys failed to follow through with the competency question at trial, Rovner wrote. The 7th Circuit is the next-to-the-last step in the appeals process before the U.S. Supreme Court. However, the decision does not mean an execution date is imminent for Matheney, who faces the death penalty for the murder of Lisa Bianco while he was on a prison pass. The Indiana Supreme Court affirmed the conviction and sentence in 1992 and 1997. The appeals process then entered the federal courts. Sharp denied Matheney's appeal in 1999 and 2003. Matheney bludgeoned Bianco to death March 4, 1989, while on an 8-hour pass from a Pendleton prison. He was serving a sentence for battery involving the victim and confinement of their children. Matheney has long blamed his imprisonment on a conspiracy against him involving most everyone in his case, court records show. (source: South Bend Tribune)
