Aug. 20
TEXAS----impending execution//foreign national
Death Watch: After Little Help From Counsel, Inmate to Die----Tercero's
execution would be 12th in Texas this year
On March 31, 1997, Robert Berger and his 3-year-old daughter walked into the
Park Avenue Cleaners in Houston at the same exact time Bernardo Aban Tercero
and an accomplice were trying to pull off a robbery. His interruption irked
Tercero, and the 2 started scuffling. When Berger tried to separate himself,
Tercero shot him in the head. Tercero returned to his native Nicaragua after
the robbery, but on Nov. 20, 1997, he was indicted for capital murder. He was
found thanks to the help of a female acquaintance in July 1999 in Mexico,
attempting a return to the United States.
Tercero's attempts to take control of his own fate suffered mightily
immediately thereafter. Apprehended, his requests to speak with the Nicaraguan
Consulate-General (a right under the Vienna Convention on Consular Relations)
was denied, and he was returned to Harris County, where a trial began in
October of 2000. There, he received the counsel of 2 attorneys - Gilbert
Villarreal and John Denninger - who did little to aid their client, filing no
motions to request a mitigation investigator or any other experts that could
conduct background investigations or prepare a social history. In fact, of the
$21,670 trial counsel was provided by the court in order to perform due
diligence in preparing a case to defend Tercero against capital murder, the 2
only used $13,200 - to travel to Nicaragua (2 weeks before the trial), and pay
for travel and lodging for Tercero's family during the trial. There, they did
an inept job of representing Tercero, calling one witness to the state's 17.
That 1 witness was Tercero himself; he testified that the murder was
unintentional. Nevertheless, a weeklong trial returned a guilty verdict. The
state called 6 witnesses at punishment, most of whom were Nicaraguan and could
testify to Tercero's history of robberies and kidnappings. He was sentenced to
death on Oct. 20, 2000.
Attorneys Dick Wheelan and James Crowley, assigned at different times to aid
Tercero's appeals process, did little to help his case, either. They glossed
over interview opportunities with jurors, trial counsel, or any of the involved
witnesses. Further, in Wheelan's case, he neglected to secure any type of
background records, including birth records - an important item as Tercero
maintained that his age - 17 - barred him from the death penalty under the
Supreme Court's decision in Roper v. Simmons. No surprise, then, that his
claims for relief weren't upheld in federal court, where a judge ruled that
each was either exhausted and/or procedurally defaulted, or at the Court of
Criminal Appeals or the state habeas court.
On Tuesday, Tercero's counsel filed a petition for a stay of execution based on
their client's mental competency (a prison doctor has diagnosed Tercero with
psychosis), as well as a motion to reconsider certain claims that had been
barred. He's currently scheduled for execution at 6pm on Wednesday, Aug. 26.
Should it happen, he'd be the 11th Texan executed this year, and 529th since
the state's reinstatement of the death penalty in 1976.
(source: Austin Chronicle)
**********************
IACHR Concludes that the United States Violated Bernardo Aban Tercero's
Fundamental Rights and Requests that his Execution be Suspended
The Inter-American Commission on Human Rights (IACHR) urges the United States
of America to stay the execution of Bernardo Aban Tercero, a Nicaraguan
citizen, which is scheduled to take place on August 26, 2015, in the state of
Texas, and to grant him effective relief, including the review of his trial in
accordance with the due process and fair trial guarantees set forth in the
American Declaration. The United States is subject to the international
obligations derived from the Charter of the Organization of American States and
the American Declaration since it joined the OAS in 1951. Accordingly, the
IACHR urges the United States, and in particular the state of Texas, to fully
and properly respect its international human rights obligations.
The IACHR granted precautionary measures to protect the life and physical
integrity of Bernardo Aban Tercero on April 4, 2013. The request for
precautionary measures was filed in the context of a petition alleging the
violation of rights recognized by the American Declaration. Through the
precautionary measures, the Commission asked the United States to refrain from
carrying out the death penalty until the IACHR had the opportunity to issue a
decision on the petitioner's claims regarding the alleged violations of the
American Declaration.
The IACHR decided the case was admissible on June 24, 2015. On August 18, 2015,
the IACHR adopted Report No. 50/15 on the merits of the case and determined
that the United States is responsible for the violation of the rights
guaranteed in Articles XVIII and XXVI of the American Declaration, with respect
to Bernardo Aban Tercero. The Inter-American Commission concluded, among other
findings, that the State's failure to respect its obligation under Article 36.1
of the Vienna Convention on Consular Relations to inform Bernardo Aban Tercero
of his right to consular notification and assistance deprived him of a criminal
process that satisfied the minimum standards of due process and a fair trial
required under the American Declaration. According to the Commission's
jurisprudence, the rights to notification and to contact a consular official
are part of the due process guarantees that apply in the prosecution of a
foreign national. The IACHR also concluded that during the process against
Bernardo Aban Tercero, his court-appointed counsel committed serious mistakes
that affected his right to defense, especially taking into account the
applicable standards in a case involving the death penalty. The Commission also
concluded that he did not have a possibility to have his sentence effectively
reviewed due to the limitations imposed by federal laws and the interpretation
of the national courts.
Accordingly, the Commission recommended that the United States review of
Bernardo Aban Tercero's trial and sentence in accordance with the guarantees
recognized in the American Declaration. It also requested the State to ensure
that every foreign national deprived of his or her liberty is informed, without
delay and prior to a statement, of the right to consular assistance and to
request that the diplomatic authorities be immediately notified of his or her
arrest or detention. Also, taking into account the facts of this case, the
IACHR recommended the United States to implement measures to ensure that the
juridical assistance offered by the State in cases of death penalty be really
effective and that the counsel is adequately trained to act with the required
due diligence. The Commission further recommended, as has already done in other
cases before, that the United States push for urgent passage of the bill for
the "Consular Notification Compliance Act" ("CNCA"), which has been pending
with the United States Congress since 2011.
The United States has 5 days to report on the measures adopted to comply with
the recommendations made by the IACHR. The Inter-American Commission urges the
State to ensure full compliance with all the recommendations and in this way to
remedy the violation of Bernardo Aban Tercero's fundamental rights. Should the
state of Texas carry out this execution, it would be committing a serious and
irreparable violation of the basic right to life recognized in Article I of the
American Declaration. The IACHR further reiterates that noncompliance with
precautionary measures seriously contravenes the United States' international
legal obligations and undermines the effectiveness of the Commission's
procedures.
The Inter-American Commission has dealt with the death penalty as a crucial
human rights challenge for decades. While a majority of the member States of
the Organization of American States has abolished capital punishment, a
substantial minority retains it. In this regard, the Commission notes that the
United States is currently the only country in the Western hemisphere to carry
out executions.
The Commission reiterates the recommendation made in this and other cases, as
well as in its report "The Death Penalty in the Inter-American Human Rights
System: From Restrictions to Abolition", that States impose a moratorium on
executions as a step toward the gradual disappearance of this penalty.
The IACHR is an autonomous organ of the OAS, and derives its mandate from the
OAS Charter and the American Convention on Human Rights. The Inter-American
Commission has a mandate to promote the observance of human rights in the
region and acts as a consultative body to the OAS in this matter. The
Commission is composed of 7 independent members who are elected by the General
Assembly of the OAS in a personal capacity and do not represent their countries
of origin or residence.
(source: oas.org)
*************
Questions Swirl Around the Cameron Todd Willingham Prosecutor
It's been more than a decade since Cameron Todd Willingham was executed for the
arson deaths of his 3 young daughters in Corsicana. Willingham went to his
execution declaring his innocence, and in the years since it has become
increasingly clear that he was convicted and sentenced to death on the basis of
junk arson science and a key witness who testified under troubling
circumstances. Willingham was pronounced dead 7 minutes after he received the
lethal injection on February 17, 2004, but the stories about the case just keep
coming.
The latest is about John Jackson, the Navarro County prosecutor who convicted
Willingham. Jackson has always said there were no special deals offered to
secure the jailhouse snitch testimony that helped send Willingham to his death,
which conflicts with what the informant has told reporters in recent months.
And, in what is perhaps a more troubling revelation, it turns out Jackson used
a similar deal with an inmate informant in a death penalty case in 1986,
according to a new report by the Marshall Project.
The Willingham case wasn't the 1st time Jackson chose to strengthen his hand in
court with testimony from an inmate informant, according to the Marshall
Project. In a case 6 years before, Jackson had a solid case against Ernest
Baldree for murdering a husband and wife as he stole cash and jewelry, but even
in a case where evidence - including a stolen car - clearly tied the defendant
to the crime, Jackson reportedly chose to go the extra mile by securing
testimony from a jailhouse snitch. Jackson used testimony from inmate informant
Kyle Barnett. Barnett told the jury that Baldree confessed to the murders while
both were in the Navarro County Jail. Baldree was convicted and executed in
1997.
While he didn't give the prosecutors exactly what they wanted - Barnett
actually ditched drug rehab and tried to flee to avoid testifying and he didn't
really say much on the stand - Barnett did testify in the end. He says he was
told he'd be facing a life sentence if he didn't.
If that story sounds familiar, it's because it's a lot like what happened in
the Willingham case. About 5 months ago it came out that there was a letter
indicating that Jackson, the lead prosecutor in the Willingham trial, had made
a deal with Johnny Webb, the scale-tipping witness against Willingham, in
exchange for Webb's testimony. For years, Jackson insisted that Webb wasn't
coached on his testimony and that he got no special treatment or perks of any
kind for agreeing to testify against Willingham.
Webb ultimately testified that Willingham had confessed to the murders while
they were in lockup together. That jailhouse confession, coupled with the
"arson science" of the time, eventually led to Willingham's conviction and
death sentence.
Afterward, Webb did indeed get a lighter sentence. He also received a truck and
financial support from local rancher Charles Pearce for years while he was both
in and out of prison. And he also attempted to recant his statement that
Willingham had confessed to murdering his 3 daughters while he and Webb were in
the Navarro County Jail, though the letter he sent was never put in
Willingham's file or given to Willingham's lawyers.
After he served his time, Barnett got financial help from Pearrce, just like
Webb did. Also like Webb, Barnett then shared how he'd come to be a jailhouse
witness for the prosecution in the first place. Barnett signed a sworn
affidavit in 1991 for lawyers working on Baldree's appeal stating that Jackson
and Navarro County District Attorney Patrick Batchelor had pressured Barnett
into testifying in exchange for a better deal in his own case. "I never wanted
to testify," Barnett said in his affidavit, "but the prosecutors there had me
in a position where it would be real hard on me if I refused."
Jackson, Batchelor and a detective, Leslie Cotten, all filed affidavits in
response to Barnett's denying his claims of witness coaching or any deal
offered. Baldree's defense attorney, Kerri Anderson, told the Marshall Project
that she never heard about anything being offered in exchange for Barnett's
testimony, and said that his testimony was only a small piece in a very solid
case against her client.
The argument from prosecutors would hold more water if Barnett's story didn't
sound so very much like Webb's, down to getting monetary help from the same
rancher, Pearce. Webb also told the Marshall Project that he and people like
Barnett gave Navarro County law enforcement information about the drug trade in
exchange for lighter sentences.
In March, the State Bar of Texas filed a formal accusation of misconduct
against Jackson in the Willingham case, accusing him of obstruction of justice,
making false statements and concealing evidence favorable to Willingham. The
bar action also accused Jackson of not telling Willingham's defense of the deal
he'd made with Webb to get Webb's testimony.
The Willingham story was bad enough when it looked like an overzealous
prosecutor had gone too far, but now we have something more troubling to
contend with: The Willingham case might not have been an aberration. It's
looking like this was simply how things were done in Navarro County. If Jackson
felt the need to stack the deck in a case like Baldree's, where even the
defense lawyer says the evidence was solidly against her client, what chance
was there he wouldn't do the same with the thinner case against Willingham?
(source: Houston Press)
PENNSYLVANIA:
Jury convicts ex-boyfriend in 2011 Valentine's Day killing of woman and her
cousin
In a verdict that could lead to a death sentence, a Philadelphia jury found
Shaun Warrick guilty Wednesday of 2 counts of 1st-degree murder in the 2011
Valentine's Day shootings of his ex-girlfriend and her cousin.
The Common Pleas Court jury of 6 women and 6 men are to return to court
Thursday to begin hearing testimony in the penalty phase of the trial in which
they decide whether the 32-year-old Warrick should be executed by lethal
injection or spend life in prison without parole.
Relatives of the slain cousins, 19-year-old Tiffany Barnhill and Marcedes
Ivery, 22, sat quietly in court, some weeping and others watching for Warrick's
reaction.
There was none. He appeared resigned to the verdict. He slouched in his chair
at the defense table, head resting against his left arm, staring ahead.
The jury returned its verdict around 2 p.m., 8 hours after beginning
deliberations on Tuesday. After jurors left for the day, what followed was 2
hours of emotional, often heated arguments involving Warrick, defense attorney
Jack McMahon and Warrick's mother.
Although the exchange took place in an anteroom reserved for meetings between
defendants and their lawyers, the screaming was easily heard in the courtroom.
It involved what mitigating evidence McMahon might use to try to convince the
jury to spare Warrick's life.
Late in the day, Judge Glenn B. Bronson took the unusual step of calling
Warrick and McMahon into the courtroom for a closed-door hearing about
Thursday's hearing.
Bronson asked spectators and the prosecutor, Assistant District Thomas
Lipscomb, to leave the courtroom because the hearing would involve confidential
issues involving defense strategy for the death penalty hearing.
The Warrick case is one of the few since District Attorney Seth Williams was
elected in 2009 in which prosecutors have followed through on plans to seek the
death penalty.
Early on, Williams put in place an internal review committee to approve all
capital trials that included invitations to defense lawyers to present
so-called "mitigating evidence" before trial to convince prosecutors to remove
the death-penalty from trial.
Warrick, in fact, rejected a pretrial offer from prosecutors to waive the death
penalty in exchange for pleading guilty and being sentenced to life without
parole.
The bodies of the victims were found in upstairs bedrooms at Ivery's house in
the 5400 block of Rutland Street in Frankford. Each had been shot multiple
times with a .40-caliber Glock holding 14 rounds.
Warrick, of Logan, was angry because Barnhill had broken off their relationship
and Ivery was interfering with his efforts to talk to her; Barnhill did not own
a cellphone and Ivery was refusing Warrick's calls to her cell and her
landline.
Trial witnesses testified that shortly after 3:30 p.m. on Feb. 14, 2011,
Warrick, accompanied by two women, arrived at Ivery's house. While the women
waited outside, witnesses said Warrick kicked in the front door and entered.
Gunfire was heard and Warrick then ran out of the house, tucking something into
his pants, and fled with the 2 women.
When the jury returns to court Thursday, Lipscomb will present evidence of
"aggravating factors" - a double murder, for example - that he will argue merit
the death penalty.
Lipscomb said one of his witnesses will be Kelley Hunt - Barnhill's sister and
Ivery's cousin - who will describe the impact their deaths have had on the
family.
McMahon will present evidence of mitigating factors supporting a default
sentence of life in prison without possibility of parole. What that evidence
might be - especially after the turmoil of Wednesday afternoon - was not
disclosed.
(source: philly.com)
CONNECTICUT:
Talking About the Death Penalty, Court to Court
The Connecticut Supreme Court could have taken an easy route to finding the
state's death penalty unconstitutional in the decision it issued last week. The
State Legislature repealed the death penalty in 2012, but it made the repeal
prospective, leaving 11 men on death row. The reason for the prospective-only
repeal was obvious to all: 2 of the death-row inmates, Joshua Komisarjevsky and
Steven Hayes, had committed a horrific home-invasion triple murder that shocked
the state in 2007, and the prospect of barring their execution was unpalatable
to Connecticut politicians and many members of the public.
As a matter of constitutional doctrine, the State Supreme Court might simply
have found the distinction between those who committed murder before and after
the repeal date of April 25, 2012, to be arbitrary - a violation of due
process, equal protection or both. Taking the repeal law, signed by Gov. Dannel
P. Malloy, to embody the collective judgment of the people's elected
representatives that capital punishment is no longer an appropriate tool of
criminal justice in Connecticut, on what basis could the state apply the death
penalty to one class of murderers and spare another, with the 2 groups
separated only by the date of offense?
The 92-page majority opinion in Connecticut v. Santiago, written by Justice
Richard N. Palmer for 4 of the court's 7 justices, was much more ambitious than
that, however, and in its ambition lies its significance.
On hearing that the Connecticut Supreme Court had invalidated the state's death
penalty, many people probably shrugged and thought, "O.K., that's one little
blue state that hardly ever executed anyone (a single execution in the past 55
years, if you're counting) and that was already never going to add anyone new
to death row. How important can this decision be?"
That was, frankly, my thought as well, and I picked up the decision - more than
200 pages, including concurring and dissenting opinions - with some reluctance
and a sense of obligation. (My apartment building is across the street from the
New Haven courthouse where crowds, gathered for the consecutive trials in the
home-invasion murders, blocked the sidewalks for weeks in 2010 and 2011.) But I
turned the pages with mounting excitement. In the breadth of its perspective on
the history and current problematic state of the death penalty, in its
cleareyed dissection of the irreconcilable conflict at the heart of modern
death-penalty jurisprudence, the Connecticut Supreme Court not only produced an
important decision for its own jurisdiction; but it addressed the United States
Supreme Court frankly and directly. The decision engages the Supreme Court at a
crucial moment of mounting unease, within the court and outside it, with the
death penalty's trajectory over the nearly 4 decades since the court permitted
states to resume executions.
Next year marks the 40th anniversary of Gregg v. Georgia and the 4 other
Supreme Court decisions that reviewed the new generation of laws the states
enacted in an effort to comply with the 1972 decision that had invalidated all
existing death-penalty laws. "These death sentences are cruel and unusual in
the same way that being struck by lightning is cruel and unusual," Justice
Potter Stewart famously wrote in a concurring opinion in the 1972 case Furman
v. Georgia. The new laws that the Supreme Court upheld were supposed to avoid
just such arbitrariness by limiting those defendants deemed eligible for the
death penalty and by channeling juries' discretion over when to impose it.
The problem, as the Connecticut Supreme Court demonstrates, is that it hasn't
worked. Of some 200 cases in the state that might have been charged as capital
murder between 1973 and 2007, prosecutors sought the death penalty in some 130
and obtained death sentences in 12. "The selection of which offenders live and
which offenders die appears to be inescapably tainted by caprice and bias," the
court said, pointing to "an inherent conflict in the requirements that the
Eighth Amendment's ban on cruel and unusual punishment, as interpreted by the
United States Supreme Court, imposes on any capital sentencing scheme."
On the one hand, the death penalty can't be automatic, but has to result from
specific findings about the crime and the defendant through a process that
relies on specifically identified "aggravating factors." That's the effort to
channel discretion and treat like cases alike. On the other hand, the jury must
have absolute discretion to consider any "mitigating factors" that it deems
relevant. That's the effort to treat each defendant as an individual. The
United States Supreme Court deems both efforts as constitutionally essential.
But to quote from the Connecticut opinion:
"The question is whether this individualized sentencing requirement inevitably
allows in through the back door the same sorts of caprice and freakishness that
the court sought to exclude in Furman, or, worse, whether individualized
sentencing necessarily opens the door to racial and ethnic discrimination in
capital sentencing. In other words, is it ever possible to eliminate arbitrary
and discriminatory application of capital punishment through a more precise and
restrictive definition of capital crimes if prosecutors always remain free not
to seek the death penalty for a particular defendant, and juries not to impose
it, for any reason whatsoever? We do not believe that it is."
6 weeks earlier, Justices Stephen G. Breyer and Ruth Bader Ginsburg, dissenting
from the decision that rejected a challenge to Oklahoma's lethal-injection
protocol, identified another inherent contradiction. Deploring lengthy delays
that "both aggravate the cruelty of the death penalty and undermine its
jurisprudential rationale" (the average delay between sentencing and execution
is now more than 17 years, they noted), the justices said that the "special
need for reliability and fairness in capital cases" means that substantial
delay is inevitable. Justice Breyer, who wrote the 42-page dissenting opinion
that Justice Ginsburg joined, said this: "In this world, or at least in this
nation, we can have a death penalty that at least arguably serves legitimate
penological purposes or we can have a procedural system that at least arguably
seeks reliability and fairness in the death penalty's application. We cannot
have both."
The 2 justices didn't flatly declare a belief that the death penalty is
unconstitutional, saying rather that it was "highly likely" to violate the
Eighth Amendment; the court, they said, should invite full briefing on that
question "rather than try to patch up the death penalty's legal wounds one at a
time."
Like the Connecticut justices, these2o justices went beyond the confines of the
case before them to confront the deeper questions. (Along with Justice Elena
Kagan, Justices Breyer and Ginsburg also signed Justice Sonia Sotomayor's
dissenting opinion, which more conventionally addressed the majority's holding
on lethal injection.) The Connecticut decision and the Breyer-Ginsburg dissent
were meant for wider audiences, and to a notable degree, each found an audience
in the other. The Connecticut justices cited Justice Breyer's dissent. I have
no idea whether Justice Breyer knew about the Connecticut case, which had been
pending for more than 2 years by the time the United States Supreme Court
issued its lethal injection decision, Glossip v. Gross, on June 29. (I found no
mention of the Connecticut case in the briefs the court received.) But Justice
Breyer did cite the same statistical evidence in the same study of the
Connecticut death penalty that the Connecticut justices used, concluding that
"such studies indicate that the factors that most clearly ought to affect
application of the death penalty - namely, comparative egregiousness of the
crime - often do not."
Were the Connecticut justices emboldened by Justice Breyer's invitation to
grapple with the death penalty itself? Maybe they were; coming late in what by
all signs was a brutally contentious process within the Connecticut Supreme
Court, the Breyer dissent must have appeared to the majority justices as a gift
from on high, an open door. And clearly Justices Breyer and Ginsburg mean to
spur hard thinking about the death penalty by every judge in the country.
And what about the Supreme Court itself? The last member of the court to
renounce the death penalty was Justice John Paul Stevens, who retired in 2010.
In the ensuing 5 years of silence, executions plummeted to a 20-year low (35
last year, compared with a high of 98 in 1999) and public approval of the death
penalty, at 56 % earlier this year, was the lowest in 40 years. 7 states
carried out executions last year, compared with 20 in 1999. It's no
exaggeration to say that there is a widespread de facto moratorium in place,
even in most of the 31 states that still have the death penalty on their
books.(In 4 of those states - Washington, Oregon, Colorado and Pennsylvania -
governors have imposed an actual moratorium.)
Although a Supreme Court decision abolishing the death penalty wouldn???t shock
much of the country, it's not easy to imagine the John G. Roberts Jr. court
taking that step. If the question, as it is so often, is "what would Justice
Kennedy do?" it's worth noting that he signed neither of the dissenting
opinions in the lethal injection case. He silently joined the majority opinion
of Justice Samuel A. Alito Jr. - the justice who during the oral argument, in
one of the uglier performances that I can recall on the Supreme Court bench,
asked the lawyer for the Oklahoma death-row inmates whether it was "appropriate
for the judiciary to countenance what amounts to a guerrilla war against the
death penalty." On the other hand, Justice Kennedy has become an outspoken
advocate for reform of the criminal justice system, with a recent focus on
solitary confinement.
I'm not counting the days, or the Supreme Court terms, until the court declares
the death penalty unconstitutional. But from 2 courts, the highest in the land
and the highest court of one of the smallest states, a fruitful conversation
emerged this summer that will inevitably spread, gain momentum and, in the
foreseeable if not immediate future, lead the Supreme Court to take the step
that I think a majority of today's justices know is the right one.
(source: Op-Ed, Linda Greenhouse, New York Times)
NORTH CAROLINA:
Anthony's attorneys seek change of venue
Attorneys for the suspected gunman in a triple homicide have filed motions to
move his trial out of Pitt County and eliminate the death penalty as a possible
sentence because of mental illness.
One of the motions filed in Pitt County Superior Court claims Antwan Anthony,
32, is severely mentally ill and was delusional as result of smoking synthetic
cannabinoids on the night of April 1, 2012, when 3 employees of Hustle Mart 3
in Farmville were shot to death during an armed robbery. The motion details an
account of the night as told by Anthony to a forensic psychiatrist.
Anthony is charged with 3 counts of 1st-degree murder, 3 counts of 1st-degree
kidnapping, robbery with a dangerous weapon and possession of a firearm by a
felon and is scheduled to stand trial on Sept. 28. Pitt County District
Attorney Kimberly Robb is seeking the death penalty in the case.
(source: Greenville Daily Reflector)
SOUTH CAROLINA:
Deadline approaches for death penalty decision in Roof trial
The deadline for pretrial motions in the Dylann Roof trial is today, according
to USA Today.
Roof wanted to plead guilty to 22 federal charges, but his lawyer said in court
that he couldn't advise his client to do so until prosecutors say if they will
seek the death penalty.
During an earlier hearing the judge set the deadline for pretrial motion
filings as August 20.
No future hearing have been scheduled.
Roof is accused of opening fire inside a Charleston church, killing 9 people.
He faces multiple federal and state charges.
(source: WYFF news)
FLORIDA:
Opening statements to begin in Orange County home invasion slaying case
Opening statements are set to begin Thursday in Orange County's 1st death
penalty case since 2009.
Bessman Okafor, 30, is accused of killing Alex Zaldivar, 19, to prevent him
from testifying in another case.
If the jury finds Okafor guilty of 1st-degree murder, they will then decide
whether to recommend that Okafor be sentenced to death. That was one reason
jury selection took so long -- potential jurors had to be willing to consider
the death penalty.
16 jurors have now been seated.
Investigators said 4 months after Okafor committed an armed home invasion at an
Ocoee home, he went back to kill Zaldivar, 19, to prevent Zaldivar from
testifying against him.
After 8 days of jury selection, the defense told the judge it was rejecting the
16 jurors, trying to get the judge to start all over.
"We're not accepting the panel and I would ask the whole panel be stricken,"
said defense attorney Frances Leannaco.
The judge rejected the argument and the jurors were sworn in.
2 others whom Okafor allegedly tried to kill to prevent from testifying in the
home invasion case were not home when Zaldivar was killed.
They will testify at trial.
(source: WFTV news)
***************************
Gruesome details emerge in murder of Homestead Job Corps student
3 Homestead Job Corps students have confessed to a plot to lure a teen to the
woods, where he was repeatedly hacked with a machete and forced into a shallow
grave as he lay mortally wounded, police revealed on Wednesday.
The sickening details were included in an arrest report for a 4th student,
Desiray Strickland, 18, who was detained on Wednesday and charged with her
alleged role in the savage June murder of 17-year-old Jose Amaya Guardado.
The arrest report reads like a scene from the classic novel Lord of the Flies.
During the carnage, Strickland "complained that she had missed the first series
of machete strikes because she had walked away for a few minutes to urinate in
the woods," according to the arrest report.
After the group of students buried Jose and cleaned up the bloody scene,
Strickland and accused ringleader Kaheem Arbelo stayed in the woods to have sex
before returning to the Job Corps campus, the report said.
Miami-Dade police homicide detectives last week arrested Arbelo, 20, a
suspected drug dealer at the school; Jonathan Lucas, 18; and Christian Colon,
19. A 5th suspect is expected to be arrested in the coming days.
Law enforcement sources have described the students as part of a group of
bullies within the federally operated school. Investigators believe the killing
may have stemmed from a debt that the victim owed to Arbelo.
The four are now being held in Miami-Dade jails to await trial on charges of
2nd-degree murder. All of them are adults, meaning they could be eligible for
indictment for 1st-degree murder and the death penalty.
All of the young people, including Guardado, were students at Homestead Job
Corps, a live-in school and vocational training program run by the U.S.
Department of Labor.
The program helps young people get their high school diplomas and learn job
skills ranging from masonry to office administration. Job Corps, designed for
at-risk students between the ages of 16 and 24, runs 125 campuses across the
country.
In a statement released on Wednesday, a Labor department spokesman said "safety
and security is our top priority."
"Steps already have been taken to strengthen security at the Homestead center,
and Job Corps is reviewing safety and security at all its centers," said
spokesman Stephen Barr.
He said the department was "deeply saddened" by Jose's death and would be
offering grief counseling to other students.
Jose went missing on June 28, and relatives had searched for him throughout
South Miami-Dade. His brother later found the body buried in the woods not far
from the Job Corps facility. Relatives described Jose as a "peaceful" boy who
worked at a flea market selling ice cream.
Strickland, of Miami Gardens, refused to cooperate with Miami-Dade detectives
when detained on Wednesday. According to police, she shoved an investigator,
head-butted his chest and flailed about before she was shackled in an interview
room.
She also used screws from an electrical outlet to try and pick her handcuffs,
then scrawled "MPD Go to Hell" on a table, the report said. Strickland also was
charged with resisting an officer with violence, battery on an officer and
criminal mischief.
Arbelo, Lucas and Colon all confessed - in video-recorded statements - when
they were detained last week, according to Miami-Dade police. The arrest
warrants detailing their arrests remain sealed by the court.
According to Strickland's arrest report, the group "conspired to plan" the
murder about 2 weeks before the killing of the bespectacled teen. A few days
before the murder, the group even dug the grave and hid a machete in the brush,
Miami-Dade Detective Juan Segovia wrote in the arrest report.
On the night of June 28, they lured Jose to the woods and "ambushed the victim"
with blows that caused "massive injuries." As he was dying, the students
ordered Jose to lie in the grave.
"The victim made one last attempt to fight off the attackers," the detective
wrote, "at which time, [Arbelo] struck the victim with the machete several more
times until the victim's face caved in."
The group buried Jose, then wiped blood off a nearby fence before burning the
dead teen's belongings and their own clothes. "They also got rid of the machete
and the shovel," Segovia wrote.
(source: Miami Herald)
*************
Mesac Damas trial delay possible due to death penalty challenge
The long-delayed murder trial of Mesac Damas might be further pushed back,
possibly into early or mid-2016, because of a challenge to Florida's death
penalty laws.
Damas' lawyers are asking to temporarily put the case on hold - known as a
"stay" - after the U.S. Supreme Court agreed in March to decide whether part of
Florida's death penalty laws are unconstitutional. Prosecutors are seeking the
death penalty for Damas, who has admitted to killing his wife and 5 children at
his North Naples home.
Damas' trial on 6 1st-degree murder counts is scheduled for November, but his
lawyers say it's senseless to spend multiple weeks trying the case, only to
have some of the laws used at trial possibly declared unconstitutional months
later. The justices are scheduled to hear oral arguments in October, with an
opinion likely issued in the winter.
"If you sentence to death pursuant to an unconstitutional statute, you can
pretty much guarantee that death sentence is not going to stand," said James
Ermacora, 1 of Damas' 2 lawyers.
Prosecutors haven't filed paperwork indicating whether they'll agree to the
request to stay the case, and the State Attorney's Office spokeswoman declined
to comment on the motion.
The request, which was made last week, came after Collier Circuit Judge Fred
Hardt asked lawyers on both sides to come to an Aug. 28 hearing prepared to
discuss the pending U.S. Supreme Court case. Hardt also asked the lawyers to
prepare to discuss a change of venue in light of the extensive media coverage
Damas' case has garnered. It's unclear when Hardt will decide on the request to
stay.
In at least 1 Florida death penalty case, a Miami-Dade County judge has granted
a stay pending the U.S. Supreme Court's ruling. In Orange County, however, a
death penalty case is moving forward to trial, with jurors seated this week,
according to the Orlando Sentinel.
The case under consideration by the U.S. Supreme Court wouldn't impact Damas'
trial as it relates to his guilt or innocence. It could, however, significantly
alter the process for deciding whether Damas should be sentenced to death.
Under Florida law, the same jurors decide whether Damas is guilty, and they
make a recommendation to a judge about whether Damas should be sent to death
row. If the state's death penalty laws are changed, Damas' lawyers say they
would question potential jurors differently during the jury selection process.
The state's death penalty laws are being challenged on several fronts. Most
notably, lawyers for an Escambia County death row inmate say jurors should
determine whether certain circumstances, known as "aggravating factors," exist
to warrant a possible death sentence (a judge currently does that). They also
argue that jurors should be required to reach a unanimous verdict about the
death penalty (Florida is 1 of only 2 states that requires a simple majority).
In emails and court filings, Damas has said he wants to plead guilty, but
Ermacora said Wednesday that "there's no indication of that at this point."
Even if Damas pleads guilty, he will be subject to the death penalty and the
at-issue proceedings.
(source: Naples News)
OKLAHOMA:
US appeals court orders hearing for Oklahoma man given death penalty in state
trooper's death
An Oklahoma man sentenced to death for fatally shooting a state trooper
deserves a hearing to determine whether his attorneys adequately defended him
during the trial's penalty phase, an appeals court ruled Wednesday.
A 3-judge panel of the 10th U.S. Circuit Court of Appeals in Denver ordered a
federal judge to convene an evidentiary hearing for Kenneth Eugene Barrett, of
Vian. Barrett, 54, was convicted of intentionally killing a state law
enforcement officer engaged in the performance of his duty, which is punishable
by the death penalty.
Prosecutors say he opened fire on Trooper David "Rocky" Eales and other members
of his Oklahoma Highway Patrol tactical team as they were about to conduct a
drug raid on his cabin in Sequoyah County. Eales, 49, was killed and another
trooper with him in the lead vehicle was wounded.
Barrett argued that he didn't know he was firing at law enforcement officers,
pointing out that Eales' vehicle was an unmarked white Ford Bronco that had no
emergency lights.
In his appeal, Barrett contends that his trial lawyers were ineffective because
they failed to present evidence about his troubled mental state and background
that might have spared him the death penalty.
The appellate court's ruling states Barrett's jury heard evidence of his drug
use, including a state prison employee's testimony that he had been using
marijuana, methamphetamine, heroin, tranquilizers and other drugs up until the
time of the shooting.
But none of the defense witnesses discussed Barrett's mental health or troubled
background in any significant detail, it says.
"Defendant's own history suggests mental illness," the appellate decision says.
In January 1986, Barrett attempted suicide by shooting himself in the chest
with a shotgun and received psychiatric treatment. Later that year, he was
involuntarily committed to a hospital after complaints from his mother and
ex-wife that he was violent and suicidal, according to the ruling.
Barrett's attorney, David Autry of Oklahoma City, and U.S. Attorney Mark Green
did not return telephone calls seeking comment on the ruling.
Barrett's 2005 federal trial marked the 3rd time Barrett had been tried for
Eales' death. A Sequoyah County jury deadlocked on a murder charge against
Barrett in 2002. At a subsequent state trial in 2004, Barrett was convicted of
1st-degree manslaughter and assault with a deadly weapon. He was sentenced to
30 years in state prison.
(source: Associated Press)
********************
Additional attorney added in Broken Arrow family slayings in anticipation of
death-penalty request
A Tulsa County judge approved a motion Wednesday for a Broken Arrow teenager
who is charged in the deaths of his parents and three of his siblings to
receive a second attorney.
Robert Davis Bever, 18, and his 16-year-old brother, Michael Bever, each face 5
counts of 1st-degree murder and 1 count of assault and battery with intent to
kill in the deaths of David Bever, 52; April Bever, 44; Daniel Bever, 12;
Christopher Bever, 7; and Victoria Bever, 5, and the stabbing of their
13-year-old sister, who survived the July 22 attack inside the Bevers' home.
The siblings were arrested just before 12:20 a.m. July 23 after a police dog
tracked them to a wooded area behind their home and their sister identified
them as her assailants, according to their arrest reports.
A 2-year-old sister was found unharmed in the home, police said at the time.
Both surviving siblings are in a "safe and secure" location, their attorney has
said.
Although Michael Bever is charged as an adult, his age bars him from being
sentenced to death in the case. But Robert Bever is eligible for the death
penalty, according to the motion for an additional attorney filed this week by
attorney Cheryl Ramsey.
"Because counsel faces what are effectively 2 different trials -0 1 regarding
whether the defendant is guilty of a capital crime, and the other concerning
whether the defendant should be sentenced to death - providing quality
representation in capital cases requires counsel to undertake correspondingly
broad investigation and preparation," Ramsey wrote in her motion.
"Investigation and planning for both phases must begin immediately upon
counsel's entry into the case, even before the prosecution has affirmatively
indicated that it will seek the death penalty," she wrote.
District Judge Sharon Holmes, who will hear the case if the teenagers are bound
over for trial, ordered that Oklahoma City-based attorney Mark Henricksen serve
as Robert Bever's co-counsel.
Tulsa County District Attorney Steve Kunzweiler said Wednesday night that a
decision on whether to seek capital punishment would occur after a preliminary
hearing and after a death-penalty review team evaluates the case.
"I certainly understand a concern by his attorney when (his case involves) the
deaths of 5 people," he said. "But at this point no decision's been made, nor
would it be."
Search warrant affidavits filed in Tulsa County for the case claim that one of
the brothers "spontaneously uttered" that plans for a "mass homicide" could be
found on a thumb drive inside one of the bedrooms. Police have declined to
comment on whether those plans, if found, indicated plans to harm people
outside their immediate family.
Michael and Robert Bever are set to appear in court Oct. 9 for a preliminary
hearing.
(source: Tulsa Wolrd)
ARIZONA:
Goodyear man could face death in wife's murder
State prosecutors will seek the death penalty against a Goodyear man accused of
killing his wife if he is convicted, court documents show.
John Leo Davis, 38, is accused of stabbing and killing his wife, Michele Davis,
while their children were present. Davis in April pleaded not guilty to charges
of 1st-degree murder, child abuse and disorderly conduct and is being held on a
$2 million bond, according to court documents.
Prosecutors this week filed a motion of intent to seek the death penalty if
Davis is convicted of 1st-degree murder, documents show. Prosecutors allege
that Davis committed the offense in an especially heinous, cruel or depraved
manner.
Police said Davis killed his wife in March at the family's home near 168th
Drive and Watkins Street. The incident started when Davis got angry at one of
their kids for playing video games and then hit the child in the face, records
show.
The child told Michele, who confronted Davis, and an argument ensued. The
children saw John Davis wield a knife and chase his wife from the kitchen to
the front door, documents show.
John Davis then called Goodyear police to report that he had lost his mind and
stabbed his wife, court records say.
A 14-year-old girl also called 911 and told police she saw Davis stab his wife
and then clean the knife in the kitchen.
When police arrived, they found Michele Davis in a pool of blood by the front
door, records show, and she was later pronounced dead at a hospital.
There were reportedly seven children in the house at the time of the murder,
records show. None of them was harmed.
The trial is scheduled to begin Dec. 8, court documents show.
(source: Arizona Republic)
*******************
Defense makes closing arguments in double murder trial of Christopher Licon
An Arizona man charged with killing his brother and then fatally shooting his
6-year-old nephew who witnessed the crime was in the throes of a psychotic
episode on the day of the 2 deaths, his attorney said Wednesday as he urged a
jury to accept his client's insanity defense.
Attorney James Wilson said he wasn't asking jurors to let Christopher Rey Licon
walk free out of the courtroom, but instead pressed ahead for a "guilty, except
insane" verdict that would spare his client the death penalty and prison time
and instead send him to a state mental hospital.
"He is not the monster the state has tried to portray him as," Wilson said
during closing arguments at Licon's trial.
Authorities are seeking the death penalty against the 24-year-old in the
December 2010 killings of his half brother, Angel Jaquez, and Jaquez's son,
Xavier Jaquez.
Prosecutors say Licon killed his brother in the Phoenix townhome they shared
over a drug dispute and then kidnapped and fatally shot his nephew in an alley
20 miles away. Investigators believe the boy either saw or heard his father die
and was killed by his uncle out of fear that the child would snitch on Licon.
Sanitation workers found the child's body. The boy, surrounded by a pool of
blood, was still wearing his school uniform and had a Burger King kid's meal
nearby.
Prosecutor Laura Reckart said in closing arguments Tuesday that Licon hasn't
proven that he suffered from a mental disease that would have prevented him
from understanding that his actions were wrong.
Wilson said family members attribute Licon's actions not to his drug use, but
rather to a chronic psychological illness. "They know that but for Mr. Licon's
mental illness, this would not have happened," Wilson said.
Wilson said Licon had lost weight, experienced hallucinations and became
detached and uncommunicative around the time of the killings.
The defense attorney pointed out the differences in Licon's appearance in a
mugshot in which his eyes looked dazed and a 2009 high school photo in which a
clear-eyed Licon wore a tuxedo.
Authorities say a neighbor witnessed Licon dragging his nephew into a car that
would be used to bring the child to the alley where he died from a gunshot
wound to the head.
Licon, then a construction management student at Arizona State University, told
investigators that he was studying at a library in Tempe at the time that his
half brother was killed. He said he came home to find his brother's body in the
townhome.
But authorities say Licon's alibi collapsed quickly after neighbors were
interviewed and other evidence was gathered.
Authorities say 2 key pieces of evidence were found inside the car Licon used
to bring the boy to the alley: a 9 mm bullet casing that matched a casing found
at Jaquez's home and a toy from the Burger King kid's meal.
Prosecutors say Licon was in an illegal drug business with his half brother and
had acknowledged selling drugs in the months before both deaths.
(source: Assoicated Press)
NEVADA:
Attorney says client may not be not eligible for death penalty
The attorney for a man accused of sexually assaulting and fatally stabbing a
woman behind an east valley strip mall in January says his client may suffer
from an intellectual disability that would exempt him from the death penalty if
found guilty.
A notice of intent to seek the death penalty against 24-year-old Jerry Howard
was filed Monday with the Eighth Judicial District Court by the Clark County
District Attorney's Office, court records show.
Howard is facing charges of murder, sexual assault, robbery and 1st-degree
kidnapping in the death of Kathy Shines, 54, of Las Vegas. He is scheduled for
a jury trial at 1 p.m. Nov. 2, according to court records.
The body of Shines was found early Jan. 3 behind Hammerheads Bar & Grill East
at 3310 S. Nellis Blvd., near Desert Inn Road, Metro Police said.
She was collecting cans for recycling when police say she was assaulted and
thrown into a trash bin. She crawled out of the bin and died in the alley
behind the bar, police said.
Deputy Public Defender Scott Coffee, who is representing Howard, said he was
disappointed with the decision to seek the death penalty.
He said his client has been in special education since kindergarten, which is
evidence Howard may suffer from a developmental disability.
In Nevada, the death penalty cannot be applied to individuals found to be
"intellectually disabled."
The term means a person has "significant subaverage general intellectual
functioning" and behavioral deficits.
At least some information about Howard's background was available to the
District Attorney's Office prior to the intent filing, Chief Deputy District
Attorney Michael Staudaher said.
He declined further comment.
(source: Las Vegas Sun)
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