[Deathpenalty] death penalty news-----TEXAS, GA., USA, N.J.

[Rick Halperin]

August 1


TEXAS:

Condemned Waxahachie man loses appeal


A federal appeals court has turned down the appeal of a North Texas man
condemned for a robbery where two employees of a Dallas video store were
shot to death, moving the convicted killer closer to execution for a crime
that occurred more than 13 years ago.

The 5th U.S. Circuit Court of Appeals rejected an appeal from Leon Dorsey
IV of Waxahachie. He had challenged his conviction and death sentence for
the fatal shootings of James Armstrong, 26, and Brad Lindsey, 20, during
an April 1994 holdup of a Blockbuster video store. Evidence showed he
stole $392.

The slayings went unsolved for some 4 years. When Dorsey finally went to
trial in late 1999, a Dallas County jury deadlocked 11-1 for conviction,
forcing the trial judge to declare a mistrial. The second trial, in May
2000, resulted in his conviction and death sentence.

In his appeal, Dorsey, now 31, challenged his trial court's denial of a
mistrial request after some jurors wrongly saw an 88-page transcript of an
interview Dorsey did with a reporter for The Dallas Morning News . In the
jailhouse interview, Dorsey described numerous other crimes that the trial
court had admitted into evidence only for record purposes. An edited
version of the taped interview, with the extraneous crime admissions
deleted, had been admitted as evidence and played for jurors.

The jury foreman, about 90 minutes into deliberations, sent out a note
asking if it was proper that the panel had the full transcript because it
appeared to include information not brought out on the witness stand.

Not all jurors saw the full transcript, but the panel members were
interviewed individually at a hearing and all said they would not consider
the additional material in their deliberations. When they were allowed to
resume, Dorsey's attorney asked for a mistrial but the request was denied.

The 3-judge panel of the New Orleans-based appeals court, in its decision
posted late Monday, said any error by the trial court was harmless.

"The evidence against Dorsey was overwhelming," the judges wrote, noting
that he confessed to at least four different people and that a security
camera's videotape of the shooting showed a man matching Dorsey's
description.

Besides that issue, Dorsey, who is black, unsuccessfully challenged
prosecutors' removal of a black man from the jury pool. And the appeals
court rejected his arguments that the trial court should have dismissed
four prospective jurors who were biased in favor of the death penalty or
said they would not consider his youth as a mitigating factor in their
deliberations. Instead, Dorsey's lawyers used their allowed strikes to
remove the potential jurors.

"He had not alleged that the jury that sat in his capital murder trial was
not impartial," the appeals judges wrote.

At the time of his capital murder trial, Dorsey, who does not have an
execution date, was serving a 60-year sentence for murder for the slaying
of a 51-year-old woman at an Ellis County food store.

Dorsey initially was questioned about the video-store killings after his
girlfriend reported to police that he had admitted the shootings to her.
But police erroneously believed the 18-year-old was too tall, based on
images from the security tape. When the case was reopened in 1998, Dallas
authorities had the tape analyzed by the FBI and determined Dorsey could
have been the gunman. When he was questioned again, he confessed.

In addition, evidence showed a week before his trial he told a fellow jail
inmate about the slayings and sent a letter to another prisoner, offering
$5,000 to accept blame for the killings. He also admitted to the crimes in
another interview with the Morning News.

(source: Dallas Morning News)





************************

'I shouldn't have to abandon my humanity, my dignity'


Kenneth Foster Jr. has an appointment he hopes not to keep.

He is scheduled to die Aug. 30 in the Texas prison system's death chamber.

If it comes to that, Foster says he is ready. But as I pointed out in
Sunday's column, Foster never should have gotten the death penalty in the
murder of Michael LaHood of San Antonio.

In fact, Mauriceo Brown, the man who killed LaHood in 1996, was executed a
year ago for the crime.>

Foster and 2 other people were with Brown most of the evening that LaHood
was killed, but all the evidence -- including Brown's testimony at trial
-- clearly shows that neither Foster nor the other men knew about,
planned, participated in or anticipated Brown's act.

But under Texas' "law of parties," and partly because Foster was tried
along with Brown, he was convicted and given a death sentence.

Although a federal judge overturned that sentence, the 5th U.S. Circuit
Court of Appeals upheld it, and the U.S. Supreme Court refused to hear the
appeal.

Foster does not deserve to die, and he and others are fighting to stop the
execution through more appeals to the courts, the Texas Board of Pardons
and Paroles and directly to the governor's office.

As promised Sunday, I want to share some of Foster's thoughts on his
scheduled execution, Texas' death row, and the victim and his family.

"I got a strong heart. I got a strong heart," Foster told me on a recent
visit to death row. "I don't have any fear toward death. If we have to
walk that path, then I'll walk it."

He added, "If they do murder me -- and it will be murder -- then I'm
prepared."

Foster has become active in fighting for inmates' rights on Death Row, and
like another former inmate we knew -- Gary Graham, executed in 2000 while
still maintaining his innocence -- he said he doesn't plan to go to his
death quietly after "eating nine cheeseburgers that you can't digest."

He stated emphatically: "I won't be walking. I won't have no last meal. If
they want me executed, they are going to have to throw me on that gurney.

"It's genocide. Covert genocide. They are approaching 400 murders here."

Texas has executed 398 people since capital punishment was reinstated in
1974.

In reference to LaHood, Foster said: "I've been accused of not reaching
out to the victim's family. We never wanted the family to feel we were
indifferent to their loss. I pray for that family. They don't know.

"I thought it would be rude to them for me to write a letter ... My father
wrote to them, and a friend of the family's wrote them."

He noted that he's been getting a lot of hate mail (from people
sympathetic to the LaHood family) on a Web site set up by his supporters,
yet he continuously thinks about the people whom the victim left behind.

"If they want atonement, I can give them atonement," he said. "If they
want vengeance, I can't help them.

"I have a lot of respect for that family .... I've repeated to my
supporters to keep the victim in mind."

Foster, whose 11-year-old daughter was only 8 months old when he was
charged with this crime, said his child comes to Texas from California
once a month to visit him.

"She's a soldier," he said of his daughter.

As for his experience on the nation's busiest death row, he said: "There's
something ugly and beautiful about Death Row. It's ugly what we have to go
through here. It's a beautiful process with what you go through
spiritually and emotionally."

He vowed that no matter what happens, there are some things to which he
simply will not succumb.

"I can't surrender my humanity," he said. "Yeah, I made a mistake; let me
correct it. I shouldn't have to abandon my humanity, my dignity."

Humanity should compel us to try to save this innocent man's life.

JOIN THE FIGHT

Contact the governor's office or the Texas Board of Pardons and Paroles to
object to the execution of Kenneth Foster Jr.

Gov. Rick Perry

Mail: State Capitol, P.O. Box 12428, Austin, TX 78711-2428

Telephone: 512-463-2000

Fax: 512-463-1849

E-mail: Use the form at www.governor.state.tx.us/contact

Texas Board of Pardons and Paroles

Mail: P.O. Box 13401, Capitol Station, Austin, TX 78711

(source: Column, Bob Ray Sanders, Fort Worth Star-Telegram)






GEORGIA:

Nichols' lawyers: Assure funding or remove death penalty option


Accused courthouse gunman Brian Nichols' lawyers, worried they won't have
enough money for defense costs during trial, asked a judge Tuesday to
consider allowing their client to plead guilty in exchange for removing
the death penalty as a sentencing option.

The request was one of several remedies suggested by Nichols' lawyers in a
court filing in which they demanded assurances that there will be enough
state funds to pay their costs during the trial, which has been put off
until Sept. 10.

They said that if they don't get that promise in the next few weeks,
Superior Court Judge Hilton Fuller should consider, among other things,
barring prosecutors from seeking the death penalty in the case.

If Fuller barred the death penalty in the case, "this would result in the
immediate tendering of a plea by Mr. Nichols and the scheduling of a
sentencing hearing at the pleasure of the court and the prosecution,"
Nichols' lawyers wrote.

Nichols, through his attorneys, has previously offered in writing to
change his plea from not guilty to guilty to murder in exchange for the
state taking the death penalty off the table, but District Attorney Paul
Howard has rejected the idea. Howard has said he believes a jury should
decide Nichols' sentence.

The defense motion appears to seek for the court to force the issue unless
the state can assure Nichols an adequate defense.

A spokeswoman for Howard had no immediate comment on the motion.

Don Samuel, an Atlanta defense lawyer not involved in the Nichols case,
said it would be rare for a judge to bar prosecutors from seeking the
death penalty against a defendant, but not impossible.

"If the state fails to fund the defense, it could be a Sixth Amendment
violation," Samuel said. He added, "I guess you could seek the court's
relief when the state seeks to violate your right to counsel or uphold
your right to counsel."

In March, Fuller postponed jury selection until September because of
problems funding Nichols' defense.

Last week, an official at the state council that is paying Nichols'
defense costs said those funding problems persist, and the council
estimated that the total cost of defending Nichols could reach $2.4
million by the end of trial.

The defense motion said prosecutors have added to the cost of the defense
by listing 320 people on their witness list, hiring renowned experts in
forensic science, including Dr. Henry Lee, and retaining a San
Francisco-based jury consulting firm to assist the prosecution. The motion
also says the prosecution has hired several well-known experts in
psychiatry, presumably to challenge Nichols' expected mental health
defense at trial.

"Mr. Nichols seeks clear and unmistakable assurances that his defense team
will be able to proceed effectively through the remaining summer months of
pretrial preparations ... and until the conclusion of this trial sometime
in 2008," the defense motion said.

It added that for the past couple of months, however, "all indications
have been that these assurances cannot and will not be forthcoming due to
the absence of sufficient funding for the defense in this case."

Among other remedies suggested by the defense: order the state to comply
with a previous order to secure funding for the defense or postpone the
trial indefinitely until sufficient funding can be obtained.

Authorities say Nichols was being escorted to a courtroom in the Fulton
County Courthouse in downtown Atlanta on March 11, 2005, for the
continuation of his retrial in a rape case when he beat a deputy and stole
her gun.

He is accused of killing the judge presiding over the rape trial, a court
reporter chronicling the proceeding, a sheriff's deputy who chased him
outside and a federal agent he encountered at a home a few miles away.
Prosecutors say he took a woman hostage the next day in her suburban
Atlanta home, then surrendered.

(source: Associated Press)






USA:

Letters: Examining death sentences


But what about the number who were killed?

Re: "Death Penalty Uneven  Where you live is a factor in whether you die,"
Saturday Editorials.

You highlight 921 executions in 11 states since 1976 but say nothing about
63,419 murders in those states between 1995 and 2005 (FBI statistics go
back to 1995). Adding a mere 50,000 murders per decade back to 1976 equals
more than 150,000 killed  and only 921 prosecuted and executed.

A murderer has earned his death penalty.

James E. Walling, Azle

****

Sentences appear arbitrary, don't prevent crime


I also disagree with an arbitrary legal system that allows serial killers
and contract killers to be sentenced to 25 years to life with possibility
for parole, while others convicted of single-victim homicides are
sentenced to death.

As stated, neither the death penalty nor prison actually reforms criminals
or deters crime. U.S. courts dispense neither justice nor protection.
There are many more injustices, inequalities and issues than the death
penalty, but that's a good place to start.

Mark Domens, Dallas

****

Don't forget victims when you point out inequity


The fact that some murderers aren't executed while others are is unjust
not to those who receive the death penalty but to the victims of those who
don't.

Gary P. Nabhan, Dallas

****

You forget these people chose to commit crimes


Your editorial cries foul over the seemingly unexplainable discrepancy in
how death sentences are handed down, but if capital punishment is how a
state or county chooses to deal with violent criminals, it is their right.

Your subhead reads, "Where you live is a factor in whether you die," which
is somewhat correct but misses the point. What of behavior? If you choose
to be involved in a horrendous crime, get caught and are convicted, you
take this risk. You can't leave out behavior when discussing consequences.

Does the death penalty deter crime? Wrong question. It should be, "Will
the individual executed for a violent crime against society commit this
offense again?"

That answer is obvious.

Bob Kirby, Plano

(source: Letters to the Editor, Dallas Morning News)

*******************

A new study finds that blacks who kill whites are more likely to face
execution


Is American justice colorblind? A new study finds that blacks on death row
convicted of killing whites are more likely to be executed than whites who
kill minorities. It also concludes that blacks who kill other minorities
are less likely to be executed than blacks who kill whites. The authors of
the report say their findings raise serious doubts about claims that the
U.S. criminal justice system is colorblind.

Appearing in the August issue of American Sociological Review, the report
claims to be the first of its kind to study whether the race of murder
victims affects the probability that a convicted killer gets the ultimate
punishment. The study examined outcomes of 1,560 people sentenced to death
in 16 states between 1972 and 2002. NEWSWEEK's Eve Conant spoke to David
Jacobs, co-author of the study and a professor of sociology and political
science at Ohio State University. Excerpts:

NEWSWEEK: Why did you do this study?

David Jacobs: Because the role of race is a fundamental question about the
death penalty. There was a lot of research, mostly on one or two southern
states, which found that if an African American killed a white, that
they'd be more likely to get the death penalty. But you have to remember
that only about 10 percent of those who get the death sentence actually
get executed. Most people wind up leaving death row and going back to
prison where they serve long sentences. But we really didn't know much
about what happened to offenders after they were sentenced to death and
that's what's unique about this study. We didn't know the factors that
cause executions. There have been a few studies, but we didn't know if a
black or Hispanic who kills a white person would be more likely to be
executed. We knew it was more likely that these offenders would get the
death sentence. But we didn't know if they were more likely to actually
get executed.

So what did you find?

Holding a whole bunch of stuff constant, including several political
variables, we found that if a black person killed a white person they were
more likely to get executed. If a Hispanic killed a white person they were
also more likely, but this probability wasn't quite as strong. There is
more than a two-fold greater risk that an African American who killed a
white will be executed than a white person who kills a non-white victim. A
Hispanic is at least 1.4 times more likely to be executed if such an
offender kills a white. Both findings are statistically significant. Also,
the findings indicate that blacks who kill non-whites are less likely to
be executed than blacks who kill whites, which shows that the
post-sentencing capital punishment process continues to place greater
value on white lives.

Can we tell if the differences have been getting more even or time or not,
given the time span of the study?

No, most executions happened in the 1990s, so we really couldn't discover
period effects. As a result of the appeals process, people spend a long
time on death row, so there weren't that many executions in the 1980s.

Was age at all a factor, or just race?

We checked for age but it was not significant.

Or the nature of the crime? Or was it simply race?

We don't have much data on the nature of the crime. But Supreme Court
regulations require a state to come up with aggravating and mitigating
factors for capital cases. Aggravating factors might include, say, the
killing of a child or torturing a victim. Mitigating factors might include
the age of the offender or their childhood experience, whether they were
abused, etc.

So why do you think that blacks are twice as likely to get the death
penalty for killing a white than a white for killing a non-white?

There are 2 plausible explanations. Prosecutors often win higher office if
they win well-publicized cases. When a black kills a white such killings
gets more publicity and we have evidence for that. Secondlyand perhaps
even more plausibleappellate court justices at the state level are often
subject to elections, called retention elections. That means they run
unopposed without a party label. It's hard to blow an election like that.
But some appellate justices in California and a few other states
supposedly granted relief in too many death penalty appeals and got
unelected in these retention elections. That's also why some states that
are reluctant to execute just stall. California has something like 650
people who've been on death row and since 1976 but this state has only
executed about 15 people. They are dragging it out because they see the
pressure and don't want to lose their seats. My fundamental point is that
the death penalty is intrinsically political.

But also about race; that's what your study found.

Yes, it's both. The findings, in short, show that we clearly value white
lives more than those of blacks or Hispanics.

You've been researching race in the judicial system for years. Was there
anything in this study that particularly surprised you?

What is interesting is the characteristics of states that make the death
penalty legal and lead to additional executions. At the state level we
found that  the greater the strength of the Republican party in the state,
the more likely you'll have executions, death sentences or that capital
punishment will be legal in the state.

What about the size of the African-American population in any given state,
does that play any role? Yes, up to a point. As the black population grows
in a given state then executions become more likely probably because
whites fear blacks. But after a pointwhen the black population reaches
about 16 percentexecutions start to diminish probably because blacks
become politically strong enough to reduce executions when their
proportions reach that level. What bothered me about this study is that we
couldn't get more cooperation from state corrections departments. We'd
like to expand beyond the 16 states we studied: Arizona, California,
Delaware, Florida, Georgia, Illinois, Kansas, Kentucky, Maryland,
Missouri, New Jersey, Ohio, Tennessee, Texas, Virginia and Washington.

(source: Newsweek)






NEW JERSEY:

Lawyers seek death-penalty ban----Man charged with killing boys


Attorneys are attempting to bar the state from seeking the death penalty
against an illegal immigrant accused of killing 2 young brothers from
Stafford with a claw hammer last year.

Attorneys Michael Priarone and Cathy L. Waldor filed a motion in state
Superior Court, Ocean County, on Tuesday contending the state should be
barred from seeking the death penalty against their client, Richard
Toledo, now 22, on the grounds that New Jersey's death-penalty law is
unconstitutional.

Priarone and Waldor filed another motion Tuesday seeking to suppress
statements Toledo made to authorities after his arrest in connection with
the murders of Karlo Gonzalez, 14, and his brother, Zabdiel Gonzalez, 7,
in their Stafford home on Jan. 19, 2006.

That motion did not specify what Toledo said to authorities after he was
arrested in the early morning on the day following the murders or on what
grounds they were seeking to have his statements suppressed. Priarone said
he could not comment on the case.

First Assistant Ocean County Prosecutor Ronald F. DeLigny also would not
elaborate on what Toledo said to authorities. He said the motions are
under review and, despite the defense attorneys' citation that a
commission has recommended that the state's death-penalty statute be
abolished, that law is still in effect.

No hearings on the motions have been scheduled. Superior Court Judge
Barbara Ann Villano is presiding over the case. Toledo is tentatively
scheduled to stand trial in January.

Last year, an Ocean County grand jury returned an indictment against
Toledo citing aggravating factors that enable the Ocean County
Prosecutor's Office to seek the death penalty against Toledo, a Mexican
immigrant who was a boarder in the Gonzalez home when the boys were
killed.

The aggravating factors that the grand jury found present were that the
murders were committed to escape detection, apprehension or punishment for
another crime, that they were committed during the commission of or flight
from another crime and, in the case of Zabdiel Gonzalez, that the victim
was younger than 14.

In addition to 2 counts of capital murder, the grand jury charged Toledo
in the indictment with kidnapping the mother of the murder victims, Wanda
Gonzalez, robbing her at knifepoint, carjacking her in her 1999 Dodge
Caravan, and possessing two deadly weapons  a knife and claw hammer.

In their motion seeking to bar a death-penalty prosecution, Priarone and
Waldor contend that there are so many aggravating factors that can be
considered to bring a capital case against a defendant that there is
nothing to distinguish a death-penalty case from one in which the death
penalty is not sought.

The state's death-penalty statute "provides no meaningful basis for
distinguishing the few cases in which the death penalty is imposed from
the many cases in which it is not," they wrote in their motion. As a
result, the statute violates the protection against cruel and unusual
punishment contained in the Eighth Amendment to the United States'
Constitution, and it also violates New Jersey's constitution, the
attorneys wrote in their motion.

Furthermore, the New Jersey Death Penalty Commission, formed by the state
Legislature to study the administration and effectiveness of the state's
death-penalty statute since its re-enactment in 1982, criticized it for
being applied unevenly. The commission, in its report issued in January,
recommended to the governor and Legislature that the death-penalty law be
abolished.

Since the statute was re-enacted, no prisoner has been put to death.

Toledo, who remains in the Ocean County Jail to await trial, had once
worked with Wanda Gonzalez at a cleaning service and was renting a room in
her Middie Lane home in Stafford. Authorities said Toledo was baby-sitting
the two boys when the murders occurred.

When the mother returned home from grocery shopping about 7:15 p.m. on the
day of the murders, Toledo reportedly told her the boys were fine, and
then he coralled her into her minivan, authorities have alleged.

He forced her to withdraw $500 from an automated teller machine at the
Commerce Bank on Route 72 in Stafford before driving her 40 miles north on
the Garden State Parkway, authorities have alleged. Wanda Gonzalez was
reportedly bound with wire and neckties during the ride, authorities have
said.

When Wanda Gonzalez escaped at the Monmouth Service Area in Wall, where
Toledo had stopped for gasoline, she did not yet know her children had
been murdered.

Toledo fled into a wooded area and was arrested at 4:30 a.m. the next day
after an extensive manhunt.

(source: Asbury Park Press)

*****************

Stafford murder suspect seeks to avoid death penalty


Attorneys for the accused killer of 2 Stafford boys have filed motions
seeking to protect their client from the death penalty.

Richard Toledo, an illegal immigrant from Mexico, is accused of
bludgeoning Karlo Gonzalez, 14, and his brother Zabdiel, 7, to death with
a claw hammer, and kidnapping their mother on Jan. 19, 2006.

First Assistant Ocean County Prosecutor Ronald F. DeLigny received the
motions Tuesday, said Capt. Jeff Harper of the Ocean County Prosecutor's
office.

The motions seek to suppress statements Toledo made to police and also
prevent the state from seeking the death penalty.

Toledo was 24 at the time of the killings and a boarder at the Gonzalez
home in the Ocean Acres section of Stafford Township.

Authorities say that after beating and strangling the boys, Toledo
abducted their mother Wanda Gonzalez at knifepoint and forced her to
withdraw $500 from a local ATM.

He then headed north on Garden State Parkway, police said, and stopped at
a Monmouth County rest stop where Gonzalez was able to break free and call
the police. Toledo was arrested several hours later.

In November, Toledo pleaded not guilty.

(source: Press of Atlantic City)