Feb. 18
OHIO:
Jury selection begins in Eric Hendon's triple-murder trial; Hendon faces death
penalty
Jury selection began - for the 2nd time - in Eric Hendon's triple-murder trial
Wednesday.
Summit County Common Pleas Judge Amy Corrigall Jones dismissed the 1st jury
last October when defense attorneys saw evidence they thought could potentially
exonerate Hendon. In the 5 months since, defense attorneys, prosecutors and
surviving victim Ronda Blankenship and her attorney have been battling over
additional personal information defense attorneys have sought from Blankenship.
Jones, however, was determined that the trial would go forward, despite several
pending issues.
"I'm not going to continue the trial," the judge said Tuesday during the final
hearing before jury selection started.
Hendon, 33, of Akron, is charged with aggravated murder in the New Year's Eve
2013 shooting deaths of a Barberton man and 2 teenage children in a
home-invasion robbery for marijuana and cash. He faces the death penalty.
Michael Hendon, 24, his younger brother, is a co-defendant and was convicted in
August and sentenced to life in prison without parole.
A pool of 149 potential jurors in Eric Hendon's trial answered jury
questionnaires Wednesday that asked them about their backgrounds, knowledge of
the case and thoughts on the death penalty.
Defense attorneys and prosecutors will begin individual interviews with jurors
Thursday, a process that is expected to last several weeks. A jury is expected
to be seated by March 17, with the trial starting March 22. The trial could
last up to a month.
A major pending issue is whether Jones will grant a defense request to sanction
prosecutors for not providing information and being uncooperative, allegations
the prosecutors deny.
The defense is asking Jones to not allow Blankenship, who was shot in the head
and lost an eye after being stabbed in the face, to testify.
If Blankenship is permitted to testify, the case hinges on how well she can
remember the events of that night and whether any treatment she received,
exposure to media reports or discussion with detectives might have skewed her
recollection, said Brian Pierce, 1 of 2 defense attorneys for Eric Hendon.
"It comes down to memory and her ability - with this horrible trauma - to be
able to accurately and reliably identify someone," he said.
Jones denied a request by defense attorneys Tuesday for the court to provide a
neurologist to review Blankenship's medical records and determine if her
injuries could have affected her memory. The judge, however, granted a defense
request for an anesthesiologist to examine the potential impact of the drugs
prescribed to Blankenship.
The defense's witness list has 48 potential witnesses, which includes
Blankenship, numerous police officers, a forensic computer expert and a
memory-identification expert.
Assistant prosecutors Teri Burnside and Dan Sallerson plan to call Blankenship,
a doctor with the Summit County Medical Examiner's Office, police officers,
paramedics and crime-lab technicians.
Jones recently ordered Michael Hendon transferred from Mansfield Correctional
Institution to the Summit County Jail. It is unclear whether he will be called
as a witness. He has a pending appeal and could plead the Fifth Amendment
against self-incrimination if he takes the stand.
Pierce said he and Don Malarcik, his co-counsel, won't decide until the trial
is underway whether Eric Hendon should testify.
Jones asked prosecutors and defense attorneys during Tuesday's hearing to
discuss whether a plea could be reached, but this was unsuccessful. Pierce said
Hendon wants a jury to decide his case.
"He's not interested in an offer," Pierce said.
(source: Akron Beacon Journal)
COLORADO:
Death penalty sought for inmate charged in fatal attack
Prosecutors are seeking the death penalty against an inmate accused of stabbing
a correctional officer to death and trying to kill another.
Crowley County District Attorney Jim Bullock announced Wednesday he will seek
the death penalty against convicted child rapist Miguel Alonso Contreras-Perez
in the death of Sgt. Mary Ricard at the Arkansas Valley Correctional Facility
on Sept. 24, 2012. Perez also is accused of stabbing Sgt. Lori Gann the same
day.
The Denver Post reports (http://goo.gl/WsRSXi ) Contreras-Perez has fired his
state public defenders and is planning to represent himself.
Ricard's daughter, Katie Smith, says she has asked Bullock many times not to
seek the death penalty, which she does not agree with. Bullock says he can't
comment on his decision because the judge has barred any statements about the
case outside of court.
(source: Associated Press)
OREGON:
Trial date nears for 3rd suspect in horrific Eugene murder case
Nearly 2 years after a Lane County jury sent David Ray Taylor to Oregon's death
row for the 2012 slaying of Eugene resident Celestino Gutierrez Jr., a trial
date is nearing for another ???suspect in the case.
Pretrial hearings began Wednesday in Lane County Circuit Court for Army veteran
A.J. Scott Nelson of Portland, who faces a potential death sentence if he is
found guilty of aggravated murder. Jury selection is scheduled to begin March
29.
Nelson was just 22 when he allegedly helped Taylor, a Eugene resident who was
56 at the time, carry out a plan to kill Gutierrez in order to steal the
victim's car for use in a bank robbery.
A 3rd person charged in the case, then-18-year-old Mercedes Crabtree of
Portland, is serving a lifetime prison sentence for her role in the plot.
Nelson has spent the past 3 1/2 years in the Lane County Jail, in part because
he didn't begin working with his current defense team until mid-2014 - after
telling a judge that he didn't trust the original set of lawyers appointed to
represent him.
1 pretrial issue to be worked out surrounds the Lane County Sheriff's Office's
practice of audio-recording Nelson's telephone calls and social visits at the
jail, and sharing those recordings with police.
Defense attorney Laurie Bender on Wednesday argued that the jail's practice is
illegal and that recording Nelson's conversations for potential investigative
purposes without first obtaining a warrant amounts to "a suspicionless search."
Bender asserted her client is one of a "select few" jail inmates subject to
close scrutiny of their phone calls and visits.
Bender asked Lane County Circuit Judge Debra Vogt to prohibit prosecutors from
presenting any evidence at trial that investigators may have gleaned through
their review of the recordings.
Prosecutor David Schwartz, however, maintained that it is proper and legal for
authorities to record inmate phone calls and visits.
Sheriff's Lt. Steve French testified Wednesday that the jail records most
inmate calls and visits "for the safety and security of the facility," and that
inmates are well aware of that fact.
Vogt is expected to make a number of rulings in the coming weeks, several in
response to defense motions urging her to prohibit prosecutors from seeking the
death penalty if Nelson is convicted of aggravated murder.
Nelson's attorneys have asked Vogt to exclude the death penalty as a potential
sentencing option because of injuries Nelson suffered in 2009 when his squad's
armored vehicle was destroyed by a roadside bomb during a combat tour in
Afghanistan.
The lawyers also have argued in court documents that Vogt should declare the
death penalty unconstitutional and bar it in their client's case because of
"evolving standards of decency."
Additionally, Nelson's lawyers want the judge to allow them to question
prospective jurors 1 by 1 - outside the presence of others in the jury pool -
regarding their views on capital punishment and race, in an attempt to identify
any racial bias that may exist among the people who will decide the fate of
Nelson, who is black.
Evidence presented during Taylor's trial indicated Nelson played a central role
in Gutierrez's murder and dismemberment.
Crabtree, whose plea deal with prosecutors requires her to serve as a state
witness against both Taylor and Nelson, testified at Taylor's trial that Nelson
- at Taylor's direction - bound Gutierrez with electrical wire and a belt,
pushed a crossbow bolt through 1 of the victim's ears and choked him.
After mocking Nelson for failing to kill Gutierrez swiftly, Taylor wrapped a
metal chain around Gutierrez's neck and pulled on it until the victim stopped
breathing, Crabtree told the jury.
Crabtree said Nelson and Taylor then dismembered Gutierrez's body in a bathtub
in Taylor's home off Highway 99 in Eugene. Nelson went into a brief seizure
during the process and came out of it confused about what he saw in the
bathroom, Crabtree testified.
(source: Register-Guard)
USA:
Fate of death penalty in hands of next justice
In September and October, Justice Antonin Scalia told audiences at 2 different
law schools it would not surprise him if the death penalty were ruled
unconstitutional while he was still on the court. Scalia noted Justice Stephen
Breyer's recent dissent in Glossip v. Gross, a case in which Breyer said the
court should consider the issue of whether the Eighth Amendment requires an end
to capital punishment in America. Scalia had previously identified himself as
the 5th vote on a court divided 4 to 4 on the issue. He could not have known
his sudden death a few months later might be the vehicle for that very
eventuality.
All of the Republican candidates can be expected to nominate a candidate for
the Supreme Court who will follow Scalia's lead in upholding the
constitutionality of capital punishment. Of the remaining presidential
candidates, only Bernie Sanders opposes the death penalty and can be counted on
to appoint a Supreme Court candidate who would become the 5th vote to abolish
capital punishment. It is less clear how Hillary Clinton - a death penalty
proponent - would expect her nominee to answer the question, because no one has
bothered to ask her. If Clinton wins and nominates a candidate with a strong
civil rights background, the death penalty will likely be abolished. However,
if a victorious Clinton nominates a former prosecutor, like Loretta Lynch or
Eric Holder, it would likely mean the U.S. continues its ignominious membership
in a dwindling group of backward nations that continue to execute their own
citizens. Unfortunately, Hillary Clinton has a 20-year history of enacting
criminal justice policy that exploits the public's fear of crime and invariably
results in a racially disparate impact on poor minorities. The Clintons'
championing of the 1994 Crime Bill (which contributed to the mass incarceration
of poor minorities) and the 1996 Antiterrorism and Effective Death Penalty Act
(which raised procedural bars to claims of actual innocence) are both examples
of the Clintons' pandering to the public's tough-on-crime sensibilities to
achieve political ends. This has been their pattern since their days in
Arkansas.
Earlier this week, Clinton made headlines for barking like a dog while telling
a folksy story about her husband's early campaigns in Arkansas. The barking
incident was an unintended reminder of the Clintons' involvement in the 1992
execution of a 250-pound lobotomized man-child named Ricky Ray Rector. A 1993
New Yorker article by Marshall Frady, "Death in Arkansas," described how Rector
repetitively performed a little shuffle dance, and alternatingly giggled to
himself like a child or barked like a dog, as he waited in his cell to be
executed on Arkansas' death row. Bill Clinton, who was embroiled in a sex
scandal that threatened to derail his presidential campaign, had returned to
Arkansas to personally preside over Rector's execution.
Christopher Hitchens described Rector as "a lumpen failure of a man" who, after
killing a police officer turned the gun on himself, destroying a good portion
of his brain in the process. Rector survived the suicide attempt as a different
person with the mental faculties of a small child.
Frady also described the frantic efforts of one of Rector's lawyers to reach
Clinton on the day of the execution. Jeff Rosenzweig had grown up with Clinton
in Hot Springs, Ark., where his father had been Clinton's pediatrician. When he
finally reached Clinton late in the afternoon, Rosenzweig explained the
severity of Rector's mental deficits. Executing Rector, Rosenzweig told
Clinton, would be the equivalent of executing a child. Rosenzweig knew it was
an uphill battle given the political pressure Clinton was under, but he hoped
his old friend "wouldn't want to be seen as merciless." Clinton wouldn't budge.
The execution proceeded that evening after a one-hour delay, punctuated by
Rector's loud groans, as prison officials struggled to find a usable vein. The
medical team finally had to slash into his arm with a scalpel in order to find
a vein capable of carrying the lethal chemicals into his massive body. Once the
chemicals started to flow, it took Rector 19 minutes to die amid his
intermittent gasps for air.
Rector had been sacrificed on the altar of the Clintons' political ambitions.
Hillary Clinton's key decision-making role in her husband's 1992 campaign is
well-documented, yet no one has ever bothered to ask her about the killing of
Rector. It's about time someone did, and long before she's in a position to
nominate someone to fill Scalia's seat on the U.S. Supreme Court. (source: Nat
Hentoff is a nationally renowned authority on the First Amendment and the Bill
of Rights. Nick Hentoff is a criminal defense and civil liberties attorney in
New York City----The Courier)
*******************
The Human Toll of Antonin Scalia's Time on the Court----Blacks, Latinos, and
poor whites suffered because of his draconian approach to criminal punishment.
In the days since Antonin Scalia's death, he has been duly recognized as one of
the most impactful justices in the Supreme Court???s history. A critical part
of his troubling legacy has long been staring us in the face, although it
finally started receiving the public scrutiny it deserves in recent years. As
draconian punishments became the norm over the last 3 decades, the Supreme
Court largely rubber-stamped these practices. Justice Scalia played a key role
in this process, as his hardline stances on criminal punishment significantly
contributed to mass incarceration, numerous executions, and systemic racial
discrimination. Scalia was an outspoken supporter of harsh punishments and
wanted the court to take an even more hands-off attitude toward so-called
"tough on crime" laws.
Not long after he made it onto the court in 1986, Scalia???s influence on these
issues began to be felt. In McCleskey v. Kemp, one of the first cases he heard,
anti-death penalty advocates brought compelling evidence of pervasive racial
discrimination in Georgia's administration of capital punishment. A
sophisticated statistical study demonstrated that sentencing was tied to the
race of the victim and offender. All other factors being equal, blacks who
killed whites were the likeliest to receive a death sentence. Justice Scalia
was unfazed. During oral arguments, he derisively asked: "What if you do a
statistical study that shows beyond question that people who are naturally
shifty-eyed are to a disproportionate extent convicted in criminal cases, does
that make the criminal process unlawful?"
John Charles Boger, who represented the black death-row prisoner in McCleskey,
responded by pointing to the obvious: "This is not some sort of statistical
fluke or aberration. We have a century-old pattern in the state of Georgia of
animosity [toward black-Americans]." Scalia and 4 other justices nonetheless
chose to analyze discrimination out of its social context, including in cases
from Southern states with a lengthy history of slavery, segregation, and
lynchings.
Scalia was in the majority as the court held that statistical proof of systemic
discrimination in the death penalty is irrelevant. A defendant must instead
prove intentional discrimination in his own case, an almost impossible standard
without considering systemic patterns. Many experts consider McCleskey among
the worst Supreme Court decisions of all-time. It largely closed the door to
statistical evidence as a means of challenging systemic discrimination in
criminal punishment.
Scalia would also play a significant role as the Supreme Court licensed
ruthless sentences leading America to world record incarceration levels. He
wrote the operative part of the influential Harmelin decision, a 1991 plurality
opinion holding that the Eighth Amendment ban on "cruel and unusual
punishments" does not require that a prison sentence be "proportional" to the
crime. The court thus upheld a life-sentence for cocaine possession.
Scalia again was in the majority in Lockyer v. Andrade, a 2003 case upholding a
50-year-to-life sentence under California's 3-strikes-law for a man who
shoplifted videotapes worth $153 because he had prior convictions for petty
theft, burglary, and transporting marijuana. Erwin Chemerinsky, who zealously
represented the prisoner, was in tears as the media asked him about his
reaction to the court's inhumane decision.
McCleskey, Harmelin, and Lockyer were all 5-4 decisions that could have been
decided otherwise if Scalia had thought differently. Naturally, he was not a
swing vote but a sure one for harsh justice.
While the justices might not have been able to stop mass incarceration
singlehandedly, they definitely could have limited it. Indeed, the court's
belated decision in Brown v. Plata, has contributed to reducing California's
incarceration rate. In this 2011 case, the court ordered California to reduce
its dramatically overcrowded prison population because "depriv[ing] prisoners
of basic sustenance, including adequate medical care, is incompatible with the
concept of human dignity." In a vehement dissent, Scalia charged that this was
"a judicial travesty" and that the majority was "wildly" overstepping its
authority.
Similarly, he fiercely dissented in other rare cases where the court decided to
check ruthless punishments. If it had been up to Scalia, it would still be
constitutional to execute mentally retarded people or teenagers, not to mention
sentence teenagers to life imprisonment without the possibility of parole for
homicide or any other crime.
This aspect of his legacy has been overshadowed by the common misconception
that "at least Scalia was quite fair to criminal defendants." To his credit, he
concluded in several procedural cases that juries, not judges, must decide if
all facts leading to harsher punishment are proved beyond reasonable doubt. In
various other cases, he found that police searches went too far. But these are
exceptions. He regularly took an extremely narrow view of due process, such as
when he argued that the Constitution does not create "a right to demand
judicial consideration of newly discovered evidence of innocence." Scalia
further suggested that executing an innocent person would not be
unconstitutional per se. More than 1,300 prisoners were executed while Scalia
was on the Supreme Court though he was persuaded that his colleagues created
unjust procedural hurdles to executions by baselessly expanding the rights of
death row prisoners.
Had Scalia had his way, far more people would have been executed during his
tenure and the court would have adopted an even more accommodating approach to
mass incarceration. In his view, merciless punishments were just deserts for
"evildoers." He scoffed when fellow justices advanced a more nuanced view of
criminal behavior or occasionally suggested that draconian punishments were
dehumanizing. He was certain that the court already cared too much about people
who faced the death penalty or endless prison sentences. Justices who disagreed
with him were judicial activists who refused to defer to elected branches of
government. Of course, Scalia did not do so himself in multiple cases.
Tellingly, he voted to strike down campaign finance legislation in Citizens
United. He likewise voted twice, unsuccessfully, in favor of eviscerating the
democratically enacted Affordable Care Act.
Scalia still cultivated the image of an impartial judge whose decisions were
not shaped by his personal values. He was the originalist, the defender of
procedural rigor, and the anti-judicial activist. If so, he may have been the
sole justice in history whose moral values did not play a major role in his
judicial philosophy. Judges are only human.
Scalia's writing sheds additional light on why he embraced merciless
punishments. In a 2002 article, he insisted that God wants us to execute
murderers. He nevertheless began his essay by claiming that his moral values
have no bearing on how he rules in capital cases. A few paragraphs later,
however, Scalia wrote "I could not take part in [the death penalty] process if
I believed what was being done to be immoral," thereby contradicting his
disclaimer.
Besides being among the countries that execute the most prisoners alongside
authoritarian regimes, America nearly has the highest incarceration rate
worldwide. Blacks, Latinos, and poor whites are the main targets of draconian
punishments, which are heavily shaped by race and class discrimination. This
human toll is part of Antonin Scalia???s legacy.
(source: Mugambi Jouet is a Thomas C. Grey Fellow at Stanford Law
School----slate.com)
***************
Tsarnaev attorneys ask to be replaced for appeals process----His team said the
switch would provide the convicted terrorist with "high-quality, cost-effective
representation."
Dzhokhar Tsarnaev's attorneys have asked to be replaced as his "demanding"
appeals process continues.
In a motion filed Wednesday in the U.S. Court of Appeals for the First Circuit,
his team said the switch would provide the convicted terrorist with
"high-quality, cost-effective representation."
Miriam Conrad, chief federal public defender in Massachusetts, and David Bruck,
a death penalty expert and head of Washington and Lee University's death
penalty clinic, have asked to be taken off the team after nearly 3 years as his
legal counsel.
Replacing them would be David Patton, executive director and attorney-in-chief
of the Federal Defenders of New York, and Gail Johnson, an attorney with death
penalty experience based in Colorado, where Tsarnaev is incarcerated at a
federal supermax prison.
Judy Clarke, the San Diego, California-based death penalty expert who led
Tsarnaev's defense, would stay on temporarily to assist with the transition.
Tsarnaev's attorneys cited guidelines advising that new counsel should be
assigned in federal death penalty appeals. Appellate lawyers will bring a fresh
perspective because they have different specialties than trial lawyers, they
wrote.
All of Tsarnaev???s attorneys - and Tsarnaev himself - agreed to the switch,
they wrote.
Tsarnaev was sentenced to death last year after a jury convicted him on all
counts against him stemming from the bombings at the Boston Marathon in 2013.
On Tuesday, they filed their notice of appeal of Tsarnaev's convictions and
death sentence with the U.S. Court of Appeals for the First Circuit. His
attorneys have argued that Tsarnaev could not get a fair trial in
Massachusetts.
(source: boston.com)
******************
Soft on crime turns out to be smart on crime: Column
A new report from the University of Michigan's National Registry of
Exonerations has proclaimed 2015 as a banner year for achieving justice in
America. A total of 149 prisoners - including 58 convicted of homicide and 5 on
death row - were released from custody based on exculpatory evidence or the
recognition that the Sixth Amendment right to a fair trial had been violated.
Apparently, they were the victims of a system more interested in arrest,
prosecution and incarceration than in justice.
The shame of wrongful conviction has captured the public's imagination. A
ten-part Netflix documentary focusing on the plight of one Steven Avery from an
allegedly overzealous prosecution quickly went viral. What's more, the issue of
innocence made its way into the Feb. 4 New Hampshire Democratic presidential
debate when Sen. Bernie Sanders argued for abolition of the death penalty based
on his firm belief that "too many innocent people, including minorities,
African Americans, have been executed when they were not guilty."
Many of the hundreds who have been exonerated and released from prison in the
past several decades were prosecuted during a period of high crime rates and
unprecedented fear. At a time when a no-nonsense, "lock 'em up" criminal
justice policy carried the day, the nation largely turned a blind eye to
injustices. We were far more intent on ensuring public safety than protecting
the rights of the accused. Meanwhile, a booming economy afforded close to a
ten-fold expansion in state and federal prison populations.
Times have changed. Crime rates are at a 50-year low, and, in part due to
runaway correctional expenditures, a majority of states are struggling to
balance their budgets. This dire financial situation has forced politicians to
seek out cost-saving measures, and the low crime rate has allowed them to do so
without much public opposition.
The focus on innocence and exoneration actually reflects a much broader
rethinking of our criminal justice policies in the context of low crime and
limited resources.
When crime rates were rising, the cops were handed a mandate to do whatever it
took to arrest criminals. Now the police are being held accountable like never
before. We are questioning their use of deadly force, and equipping them with
body cameras to monitor their every move.
Similarly, the 1990s panic over youth and gang violence had us characterizing
juvenile offenders as "superpredators" who were beyond redemption. The popular
slogan "adult time for adult crime" echoed a "get-tough" approach for punishing
kids. Recently, however, the U.S. Supreme Court abolished mandatory life
sentences for minors. And policy makers have recommitted to the original
philosophy of juvenile justice, prioritizing the needs of young offenders
rather than what punishment is deserved.
The 1990s also saw the rapid spread of a penal policy patterned after a
well-known baseball refrain - "3 strikes and you're out." This metaphorical
approach to sentencing felons helped nearly bankrupt many states, especially
California where "3 strikes" was most enthusiastically adopted.
Thousands upon thousands of Americans were taken prisoner in the "War on Drugs"
declared in the early 1970s when crime rates soared. Having surrendered this
misguided campaign, the nation is now looking more toward treatment for addicts
than punishment, and releasing nonviolent drug offenders from prison.
POLICING THE USA
Debates show differences between Dems, GOP on police
Many, if not all, of the recent shifts in philosophy reflect the fact that we
simply can't afford to keep millions of Americans locked behind bars. Mass
incarceration may have contributed marginally to bringing down the crime rate,
but it was hardly a cost-effective strategy. Rehabilitation, despite its
limitations, is significantly cheaper and far more attractive to cost-conscious
lawmakers and their constituents.
For several decades, ever since Richard Nixon won the White House on a "law and
order" platform, the predominant response to crime was decidedly punitive.
Today's proposed criminal justice reforms - from deincarceration to exoneration
- would have been condemned as soft on crime. Whether they will prove to be
smart on crime, as reformers have promised, one thing is for sure: They are
frugal, and frugality is definitely in fashion these days.
(source: James Alan Fox, a member of the USA TODAY Board of Contributors, is
the Lipman Professor of Criminology, Law and Public Policy at Northeastern
University. Richard Moran is professor of sociology at Mount Holyoke College;
Op-Ed----USA Today)
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