Nov. 15
TEXAS:
Science has taught us juries rely on flawed evidence for convictions; that's
why the death penalty must go
After leading the nation for decades in recommending death sentences, juries in
Dallas County and Harris County have apparently cooled to the idea. In Dallas,
prosecutors have asked juries to condemn a murderer to death just 2 times since
2014, and in both cases the juries declined. That's good news for anyone
concerned about how justice is meted out in Texas.
While there are crimes that probably deserve death, the defining characteristic
of an execution is its irreversibility. Once carried out, there is no
possibility for mistakes to be corrected. That's a problem for a criminal
justice system whose mistakes are being brought to light more often than ever
by advances in science and technology.
This basic incompatibility has helped soften support for the death penalty.
(Other factors that may be playing a role: It is also expensive and has not
been proven to be more a more effective deterrent against future crime than,
say, the life sentence without parole that has, since 2005, been the minimum
sentence for anyone convicted of capital murder in Texas.)
Dallas County District Attorney Faith Johnson has sought the death penalty in
only two cases since taking office, which we hope suggests an increasingly high
bar for executions in general. The first of them, however, was upended last
week when new information about defendant Antonio Cochran's intellectual
disability made him ineligible for execution, thanks to the Supreme Court's
narrowing interpretation of when the Constitution permits the death penalty.
But it's a case out of Bell County not even involving a capital crime that best
explains why our system of justice is fundamentally incompatible with the death
penalty.
When jurors convicted George Powell of a Killeen robbery in 2009, it looked
solid enough. A camera recorded the robber leaving the 7-Eleven, where he had
put a handgun on the counter and told the terrified cashier to give him the
cash and some cigarettes. The cashier told police the robber had been about
5-foot-6, according to a story published last week by Brandi Grissom, The
Morning News' Austin bureau chief, but the clerk and a manager later testified
that Powell, who is 6-foot-3, was the robber.
Eyewitness testimony has a lousy track record. And in this case, it was
disputed by the manager of another store that had been robbed 12 days before -
it was thought by the same robber - when she testified that she recognized
Powell and he was definitely not the one who robbed her.
But prosecutors pointed to the video. And introduced an informant who told
jurors that Powell had confessed while they were in jail.
Now, however, both the video and the snitch's testimony have been contradicted.
The inmate says he lied to curry favor in his own case. And the video? An
expert hired by the Texas Forensic Science Commission has concluded it is
impossible that the man in the video was taller than 5-foot-9.
Powell remains in jail serving 28 years. An appeals court will have to decide
whether all this means he's innocent. Lawmakers ought to ponder whether new
standards for analysis of video evidence are needed, as the commission has
suggested.
But whatever happens, we know that since he's still alive any mistakes in
Powell's case can still be corrected. That's not possible for those who've been
executed.
That's precisely why the death penalty remains fundamentally incompatible with
justice.
Texas Forensic Science Commission recommendations regarding use of video
evidence:
1. The basis for analytical conclusions reached in forensic casework must be
supported by clear and comprehensive scientific methods.
2. Analysts should address error rates and uncertainty in their reports.
3. All analytical reports should be subject to peer review before use in a
trial.
4. When post-conviction analysis is performed, the results should be
immediately communicated to the prosecutor, the court and the defendant.
5. Analysts should follow established industry guidelines that are the
consensus of the scientific community.
6. Analysts should take precautions to protect against confirmation bias.
7. In light of ... the concerns highlighted in this particular case, the
commission's advisory committee should consider whether new licensing
requirements for forensic analysts should be added.
8. The Bell County prosecutor should consider seeking further assistance from
the FBI or another qualified law-enforcement forensic service provider if
questions remain in the Powell case.
9. The criminal justice community should seek assistance and training when they
encounter a forensic video analysis case and need to retain an expert witness.
(source: Editorial, Dallas Morning News)
**************
Hudson not insane, but deficient, experts say
Psychologists, medical professionals and forensic psychiatrists testifying at
the murder trial of William Hudson on Monday agreed on 2 things: First, Hudson
is a troubled individual; and, 2nd, he is not insane.
Forensic psychologist Daniel Altman took the stand on the 9th day of the trial
of Hudson, 35. Hudson was convicted on Nov. 7 of 3 counts of capital murder.
Now, in the sentencing phase of his trial, Hudson faces the death penalty.
Altman told the jury on Monday that he spent several hours interviewing Hudson,
conducting a battery of psychological tests. Altman said he initially wanted to
determine if Hudson was malingering, or faking a psychological disorder.
Altman referred to Hudson's results on the Standardized Interview of Reported
Symptoms (SIRS), which told him that Hudson did not claim to have - nor did he
fake - a mental health problem.
Altman then testified to Hudson's Intelligence Quotient (IQ) test. Hudson
scored a 79, which is borderline for mental deficiency. With IQ testing, a
person is tested at a single moment in time, Altman said. The outcome could
depend upon many variables.
Altman said, however, he did not believe Hudson was mentally disabled.
Using results from the Validity Indicator Profile (VIP) and Minnesota
Multiphasic Personality Inventory (MMPI), Altman testified that Hudson
over-exaggerated his physical symptoms and pain, and under-reported on areas of
the tests where he would have to admit fault.
When cross-examined by Hudson's court-appointed attorneys, Steve Evans and Jeff
Herrington, Altman said that, though Hudson did have problems, he would most
likely deny them.
"He probably denies these things because he's so cool," Altman said. "He's
pretty important to himself."
Dr. Antoinette McGarrahan, a forensic psychologist and neurophsychologist, also
conducted an IQ test on Hudson with similar results. However, her
neuropsychological evaluation concluded that Hudson's intelligence fell sharply
after high school, possibly due to brain trauma. Hudson had been in several car
accidents in the past decade, at least 2 of which were the result of driving
while intoxicated.
McGarrahan testified that Hudson's difficulties stem from the front part of the
brain, which accounts for good judgement, insight, planning and impulsivity.
She also said Hudson struggles to remember and concentrate.
"The defendant's ability to look inward is nil," McGarrahan said. She added
this condition also contributes to his blaming of others, and his sense of
entitlement.
Dr. David Self, a forensic psychiatrist, agreed with McGarrahan, calling Hudson
an insecure, arrogant narcissist, who cannot care about the feelings of others.
"He's not very smart," Self said. "[Hudson] has low intellect, but thinks he's
the smartest guy in the room."
Self, who also interviewed Hudson for several hours, told jurors that Hudson
wanted to take over the land after his father died, but was incapable. This, he
said, fueled Hudson's alcohol dependency, until he was "drinking almost
continuously."
Prosecutors Anderson County District Attorney Allyson Mitchell and Lisa Tanner
of the State Attorney General's Office asked Self if an insanity plea could be
made for Hudson.
"The defendant wasn't in such a state where he didn't realize what he did was
wrong," Self said, adding Hudson suffers from an "anti-social disorder." Such a
disorder, he said, is often reflected in, among other things, poor judgement,
the inability to stay sober - and rage.
"So, as a result of [Hudson] not getting help," Tanner said, "6 people are
dead." But Self doubted if Hudson could interpret events that way.
Sentencing for Hudson continues today. Officials involved with the case could
not say when the proceedings would end.
Hudson was convicted on 3 counts of capital murder, stemming from the 2015
killings of Carl Johnson, 76; Hannah Johnson, 40; Kade Johnson, 6; Thomas Kamp,
45; Nathan Kamp, 23; and Austin Kamp, 21.
(source: palestineherald.com)
FLORIDA:
Accused torture-killer doubles down on plan to defend himself
Notorious murder defendant Steven Lorenzo has turned down help from attorneys
and insists he will go at it alone. Now, he is taking legal action via a 1-page
handwritten letter to the Hillsborough County Clerk's office.
In it, Lorenzo writes he is the attorney on this case.
"I am requesting to obtain a copy of the docket sheet," he says, and adds he is
being housed at the Orient Road Jail and "cannot receive any mail here unless
it comes directly from the court."
Pam Williams -- the mother of Jason Galehouse, one of Lorenzo's alleged victims
-- finds his defense scheme appalling.
"The sound of his name, to look at his face, I get sick to my stomach," she
said.
Back in 2003, prosecutors say, Lorenzo lured Galehouse and Michael Wachholtz to
his home in Seminole Heights. There, they say, Lorenzo and co-defendant Scott
Schweickert drugged, tortured, and killed them.
Last year, Schweickert cut a deal with the state and got life in prison. Months
later, Lorenzo was indicted on murder charges and now faces death penalty.
"I just want him on that death bed," said Williams. She says Lorenzo is acting
as his own attorney because he thinks he can outsmart everyone in the
courtroom.
"I think he's going to play the pity party with the jury but it's not going to
work," she continued.
At a recent court date, the judge in the case suggested Lorenzo may be unfit to
stand trial and has ordered a mental evaluation, but Lorenzo wants no part of
it. He told the judge he refuses to talk to any doctor.
"I have exclusive jurisdiction over myself," he insisted.
Lorenzo is back in court in December.
(source: Fox News)
LOUISIANA:
Court Won't Re-Impose Death Sentence in Child Rape-Murder
The Louisiana Supreme Court won't consider re-imposing the death penalty for a
man serving life for the rape and murder of an 8-year-old girl in 1985, when he
was 21. John Francis Wille was originally sentenced to death for 1st-degree
murder in the death of Michele Lopatta. However St. John the Baptist Parish
prosecutors agreed in 2014 that the sentence should be life, and that Wille
could continue with appeals contending he is innocent.
After a new district attorney was elected, she asked courts to re-impose the
death penalty, contending the change in sentence was illegal. State district
and appeals courts rejected her arguments, and the high court said without
comment Monday that it won't hear the case.
"We're very gratified that the Louisiana Supreme Court has decided not to
reinstate John Wille's death sentence. And what this means for the future is,
we will continue to push forward with post-conviction relief for exoneration of
Mr. Wille," said defense attorney Kate Rhodes Janofsky.
District Attorney Bridget A. Dinvaut did not immediately return a call for
comment.
Janofsky said no physical evidence linked Wille to Lopatta, whose nude, beaten
and decomposing body was found in St. John the Baptist Parish four days after
she went missing from her mother's apartment in the New Orleans suburb of
Terrytown.
Prosecutors relied largely on horrifyingly detailed confessions from Wille, his
girlfriend, Judy Walters, and Walters' 14-year-old daughter. Wille's current
legal team says those confessions were coerced and not true - a conclusion also
reached by forensic psychologist Gisli Gudjonsson, who testified at a hearing
for Wille in 2000 and described the case and his reasoning in "The Psychology
of Interrogations and Confessions: A Handbook ."
A judge has heard some evidence, and more witnesses are planned, Janofsky said.
Judy Walters, who was tried separately and sentenced to life, refused to
testify at Wille's trial, invoking her Fifth Amendment protection against
self-incrimination. Her post-conviction appeals were being heard with Wille's,
but she died Sept. 27, Janofsky said.
More than 20 claims in Wille's petition include assertions that trial attorney
George Oubre - a former state senator who had been convicted of bank fraud and
was assigned to defend Wille as court-appointed public service - was
incompetent.
Oubre told Judge Sterling Snowdy that the trial judge brushed off his protests
that the capital murder case "was way beyond me," Nola.com ' The Times-Picayune
reported in 2014.
"I think it's very telling that the original defense attorney supports our
petition," Janofsky said.
(source: Associated Press)
OHIO:
Attorneys for Brian Golsby ask to delay trial due to Ohio death penalty bill
The defense attorneys for Brian Golsby are asking a judge to put his trial on
hold.
Golsby is charged with the rape, kidnapping, and murder of Ohio State student
Reagan Tokes and has pleaded not guilty.
Golsby's defense team is asking for the trial to be placed on hold because
there is a current bill in the Ohio legislature that would abolish the death
penalty.
They want the case put on hold until the legislature decides on the bill.
In the motion, the defense attorneys say, "The time and costs of preparing for
trial, impaneling a jury, trying the case, and the years of appeals will
largely be avoided if the bill passes."
The trial is currently set for February.
(source: 10tv.com)
*************************
Police charge 2 more in slayings at Cleveland used car lot
Police have arrested 2 more suspects in the shooting deaths of a couple at
their used car lot in Cleveland.
Authorities said Monday they arrested 2 men, one 23 and the other 24, over the
weekend. The men have been charged with aggravated murder in the deaths of
47-year-old Michael Kuznik and 46-year-old Trina Tomola.
Cleveland.com reports a 29-year-old man was previously indicted on charges of
aggravated murder, robbery and burglary in relation to the shooting.
Prosecutors are seeking the death penalty.
Police say the couple's son found the bodies of Kuznik and Tomola April 14.
Both were shot in the head, and their family dog was also killed.
Investigators say the suspects stole 2 cars from the lot, surveillance
equipment and computers containing records of business purchases.
(source: Associated Press)
NEVADA:
Untried and unethical: why Nevada's new lethal injection crosses a line----As
more drug companies prevent sales of their products for execution, some US
states have seized on new, untried drug combinations - raising big ethical
issues
Today, Scott Raymond Dozier was scheduled to be executed by lethal injection in
Nevada's Ely State Prison. However, the execution has been postponed over
concerns around the untested drug combination proposed as the method of death.
The postponement is the latest incident in a series of controversial state
executions carried out in the United States this year, and brings to the
foreground many concerns and ethical issues around state execution - not least
the use of the death penalty itself.
In Dozier's case, a completely new 3 drug combination has been proposed for
Dozier1s execution. The mixture of diazepam (a sedative), cisatracurium (a
muscle relaxant), and fentanyl (a powerful pain-relieving opioid) has raised
many concerns - principally because it is completely untried.
So why is this new form of injection being proposed? And what criteria do
execution methods have to meet?
The primary aim of capital punishment is, of course, to ensure death. No one
wants a prisoner reviving and perhaps having to go through the procedure again.
Another aim might be to minimise the degree of suffering experienced by the
prisoner in their final moments, although a look at the methods used by various
governments around the world shows that this is not always a consideration. In
the United States, however, it is a legal requirement that executions do not
constitute "cruel and unusual punishment".
A paper written by Harold Hillman back in 1993 looked into the physical
suffering of executions. He examined the pain likely to be experienced by those
undergoing judicial execution by the various methods that were in use in 1989:
beheading, hanging, stoning, shooting, electrocution, gassing and lethal
injection. The paper concluded that, with the possible exception of lethal
injection, all these methods were likely to cause extreme pain. Hillman's
important caveat was that the injections had to be administered successfully.
In the US, shooting, electrocution, gassing and lethal injection are all still
legal methods of execution. However, most of states that still have the death
penalty favour lethal injection.
Capital punishment by deliberate poisoning is hardly something new. In 399BC
Socrates was famously condemned to death for corrupting the youth of Athens and
chose to drink hemlock as his punishment. From Plato's account of the death it
appears to be relatively pain free. There must have been something else in the
lethal mixture, as hemlock poisoning is a very unpleasant way to go. The exact
recipe used by the ancient Greeks is not known. Whatever mixture was used it
still took a considerable amount of time and, according to the gaoler, was not
guaranteed to work with just 1 cup.
Hillman wrote his paper on the pain of capital punishment at a time when
barbiturates were being used for executions in the US. Barbiturates are
powerful sedatives that cause unconsciousness within minutes and slow the rate
of breathing until it eventually stops. But manufacturers of barbiturate drugs
have since changed their procedures to prevent these drugs being used for
executions. Lethal injections since then have therefore had to be carried out
using alternative drugs.
Many states in the US favour massive doses of a three drug combination for
executions. The idea is to sedate the prisoner, paralyse them and then stop
their heart. But manufacturers of drugs that can perform these functions
continue to prevent sales for executions. This has led to some extreme tactics,
including a rush to execute 4 people in a single week in Arkansas in April this
year before the state's stock of drugs went past its expiry date.
The executions carried out back in April of this year used midazolam,
vercuronium bromide and potassium chloride. The 1st drug, midazolam, is a
short-acting sedative. This particular drug has been associated with several
botched executions, such as that of Clayton Lockett.
The 2nd drug, vercuronium bromide, blocks chemical signals reaching receptors
on motor neurons, the nerve cells that trigger movement. The result is
paralysis of muscles, including the muscles needed for breathing. If the
prisoner is not fully sedated by the midazolam, the pain and distress of
suffocation will be considerable.
States are stockpiling lethal injection drugs that could be used to save lives
Once the prisoner has been immobilised, the third drug can be administered to
stop the heart. Potassium chloride has been used in several executions.
Potassium is an essential element for the normal functioning of the heart as it
is involved not only in nerve signals that coordinate the heartbeat but also in
the contractions of the heart cells themselves. An excess of potassium causes
cardiac arrest. Cardiac arrest is not always painful, but the potassium
injection itself is notoriously agonising and has been described as a severe
burning sensation. The immobilising injection of rocuronium bromide could
potentially mask signs of any pain the prisoner is experiencing.
On 24 August 2017, Mark James Asay was executed in Florida. No midazolam was
available because drugs companies had restricted the sales of the drug. So, an
alternative protocol was devised that stuck fairly closely to the previously
used triple combination. The new protocol of etomidate, rocuronium bromide and
potassium acetate received condemnation from several quarters.
Rocuronium bromide is very similar to the vercuronium used previously, and was
not a particularly controversial substitution. The use of potassium acetate
instead of the usual potassium chloride raised a few eyebrows. Potassium
acetate had only been used once before for lethal injection and that was a
mistake (apparently the wrong bottle was picked up). However, it is the
potassium part of the compound that does the damage and so, if using the right
dosage, it should have exactly the same effects as potassium chloride.
It was the choice of etomidate that caused most concern. Etomidate is a
fast-acting but short-lasting sedative used to anaesthetise patients before
short, painful procedures such as relocating dislocated joints. With
therapeutic doses the effects of the drug can wear off in as little as 5
minutes. 1 minute after injecting etomidate into Asay's body his foot was seen
to twitch. Asay was pronounced dead 12 minutes after the 1st injection was
administered.
As more and more stocks of drugs go out of date and replacements are in
increasingly short supply even more radical alternatives have been proposed.
The state of Nevada ran out of drugs for lethal injections in 2016. When it
made 247 solicitations for proposals from drugs companies it received no
offers. Not one. This was not immediately a problem: Nevada hadn't executed
anyone since 2006 and at that time had no plans to execute any of the 81
prisoners on its death row. When Dozier's execution was scheduled, that
changed.
Any of the 3 drugs in the combination proposed for Dozier's execution -
diazepam, cisatracurium and fentanyl - could kill an individual if administered
in a sufficiently high dose, but there are many unknowns. First of all, no one
can be certain how these three drugs will work in combination. No information
has been released (at the time of writing) about how the drugs would be
administered, in what order or at what dosage. In fact, it begins to sound
distinctly as though an execution under these circumstances would be akin to an
experiment - and there are very specific laws about experimenting on prisoners.
How can we execute people if 1 in 25 on death row are innocent?
The states of Florida and California offer inmates an injection of diazepam
immediately before the lethal injection procedure is started, to relieve
anxiety. It is not normally part of the 3 drug combination designed to result
in the death of the prisoner. Though diazepam is regularly prescribed to treat
anxiety, the anxiety of imminent death is a level of distress that it is
difficult to test for ethically. Consequently, it may or may not be effective
in these circumstances.
Cisatracurium paralyses skeletal muscles and at high dose would result in death
by suffocation. Signs of distress will be masked by this drug as the individual
can no longer move to signal any pain they are experiencing.
Fentanyl is easily the most lethal of the 3 drugs. The fact that fentanyl is
already killing American citizens at a terrifying rate in the country's ongoing
opioid crisis testifies to its lethal potential. However, it makes the choice
of its use for a deliberate death appear crass to say the very least.
Fentanyl kills by suppressing respiration, meaning that Dozier would suffocate.
Fentanyl is also a powerful pain relieving drug so it should, in theory, be a
painless experience. However, those who have experienced fentanyl overdoses
speak clearly of being unable to breathe and how distressing this is.
As more and more drug companies restrict the sale of certain products for
lethal injection, the options available dwindle. With over 2,800 prisoners on
death row across the US the manner of their death looks increasingly uncertain
- and if untried drug combinations are approved for use, potentially "cruel and
unusual" too.
(source: The Guardian)
*************************
Death row inmate Dozier removed from suicide watch
The Nevada Department of Corrects says death row inmate Scott Dozier has been
removed from suicide watch at Ely State Prison.
According to Brooke Keast, Dozier was placed on the watch since his stay of
execution last week after making comments that he would kill himself if the
state did not carry out his sentence.
Dozier was scheduled to be executed today, November 14th, after he voluntarily
gave up his appeals. But his executed has been stayed after a judge ruled there
was valid concerns over the paralytic that would be used in the lethal
injection process.
The case is now heading to the Nevada Supreme Court. Dozier is a two-time
convicted murderer and was sentenced to death in 2007.
(source: KOLO news)
*****************************
Urgent Action
NEVADA EXECUTION DELAYED BUT STILL PURSUED
A judge stayed Nevada's first execution in over 11 years, scheduled for 14
November, due to concerns about the lethal injection protocol. The state had
asked for the stay to allow it to appeal her order to remove one of the drugs
from the protocol.
Write a letter, send an email, call, fax or tweet:
* Expressing your opposition to the death penalty in all cases, and calling for
a moratorium on executions in Nevada and for the state administration to work
with the legislature to abolish the death penalty;
* Noting that since Nevada last carried out an execution, 6 states in the USA
have abolished the death penalty and a number of others have imposed
moratoriums on executions, and another 22 countries have abolished the death
penalty for all or ordinary crimes, with 142 countries now abolitionist in law
or practice;
* Pointing to the repeated resolutions at the UN General Assembly calling for a
moratorium on executions with a view to abolition of the death penalty.
Friendly reminder: If you send an email, please create your own instead of
forwarding this one!
Contact these 2 officials by 25 December, 2017:
Governor Brian Sandoval
State Capitol Building, 101 N. Carson Street
Carson City, NV 89701, USA
Email: http://gov.nv.gov/Contact/Email-the-Governor/
Fax: +1 775 684-5683
Salutation: Dear Governor
(source: Amnesty International USA)
Attorney General Adam Paul Laxalt
Office of the Attorney General
100 North Carson Street
Carson City, NV 89701, USA
Fax: +1 775-684-1108
Email: agi...@ag.nv.gov
Salutation: Dear Attorney General
(source: Amnesty International USA)
ARIZONA:
Ame Deal update: Jury's decision moves Phoenix man closer to death penalty
Jurors have found aggravating factors that could make a Phoenix man eligible
for the death penalty in the 2011 murder of a 10-year-old girl.
The Maricopa County Superior Court jury determined that the killing of Ame Deal
was especially cruel or heinous since the girl was locked in a small storage
box in sweltering summer heat.
Closing arguments in the penalty phase of John Allen's trial are scheduled to
begin Wednesday morning.
The 29-year-old Allen was convicted of 1st-degree murder and child abuse last
week.
Allen's 28-year-old wife Sammantha Allen was a cousin of Deal's. She was
convicted of murder in the girl's death in June.
Authorities say the couple forced Ame into the plastic box as punishment for
stealing ice pops.
The girl was found dead the next morning.
(source: Associated Press)
CALIFORNIA:
Torture-murder case in death of Gabriel Fernandez, 8, goes to the jury
Jurors began deliberations Tuesday morning in the trial of a 37-year-old
security guard charged in the torture-murder of his girlfriend's 8-year-old
son.
On Monday, Deputy District Attorney Jonathan Hatami called Isauro Aguirre an
"evil" man who "liked torturing" Gabriel Fernandez and did so systematically in
the months leading up to the child's death. Aguirre hated the boy because he
thought he was gay, according to the prosecution.
One of Aguirre's attorneys acknowledged Monday that his client killed the boy
in May 2013, but told jurors that the defendant "acted in a rage of anger
followed by an explosion of violence" and not with the deliberation and
premeditation required for a verdict of 1st-degree murder.
Aguirre also faces a special circumstance allegation of murder involving the
infliction of torture.
Prosecutors are seeking the death penalty against him and his 34-year- old
girlfriend, Pearl Sinthia Fernandez, who will be tried separately on the same
charges for her son's killing.
Hatami began his closing argument Monday by displaying a photo of Gabriel's
battered body lying on an autopsy table - covered in injuries head to toe - as
evidence of Aguirre's intent to kill the boy.
"You can't believe a person in our society would intentionally murder a child,"
Hatami said, comparing the abuse to that suffered by a prisoner of war.
"Believe it, because it happened. This was intentional murder by torture," he
told the jury. "Do not go back in the jury room and make excuses for the
defendant ... this had nothing to do with drugs ... this had nothing to do with
mental health issues."
Hatami said in the months leading up to the boy's death, he was "being starved
and punched and kicked and abused and beaten ... he was belittled, bullied and
called gay. His teeth were knocked out. He was tied up every night in a box ...
Gabriel was dying."
The prosecutor painted a picture of Aguirre sleeping in a comfortable bed night
after night while, in the same room, Gabriel was bound and gagged inside a
small cabinet with a "sock in his mouth, a shoelace (tying) up his hands, a
bandanna over his face" and his ankles handcuffed.
"To force a child to eat cat litter and cat feces, more than once, how does
somebody do that?" Hatami asked, referring to testimony by Gabriel's big
brother.
He alleged that the 6-foot-2, 270-pound defendant punched and kicked Gabriel
hard enough to dent the walls of the family's apartment and leave the boy
unconscious, then - with help from the boy's mother - hid some of the child's
bloody clothing and moved a picture to cover up one of the biggest indentations
before calling 911.
"There's no evidence that he was going to save Gabriel," Hatami said, telling
jurors that the defendant lied to the 911 dispatcher and paramedics who arrived
on the scene.
The defense contends that Aguirre never meant to kill the child, but Hatami
sought to undercut that claim, telling jurors in his summation of the case that
Aguirre hated the boy. The couple only took him from his maternal grandparents
so that they could collect welfare payments for his care, the prosecutor said.
"Gabriel was a gentler boy, a sweeter boy (than his brother) and the defendant
hated him because of that ... he believed Gabriel was gay," Hatami said. "This
stressful situation and rage thing is a lie ... because it's not supported by
the evidence. The defendant actually liked torturing Gabriel. He got off on it
... he is a murderer and he is a torturer."
Hatami recalled testimony about a medical excuse to explain Gabriel's absence
from school, which was allegedly forged by Aguirre and Fernandez. The
prosecutor said that documentation, along with the couple later telling the
school that the boy had moved to Texas, was evidence of their sophistication
and premeditation.
Hatami showed jurors a picture of Gabriel sitting next to his brother with a
big smile on his face.
"The defendant took everything from him," the prosecutors told jurors, urging
them to "Hold him responsible. It ends here. It ends now."
Defense attorney Michael Sklar began his summation by telling jurors that "the
evidence in this case requires you to find (Aguirre) guilty of (2nd-degree)
murder, not 1st-degree murder."
Sklar acknowledged "unspeakable acts of abuse over a period of time" by his
client, but urged the panel as a matter of law to focus only on the evening of
May 22, 2013, when Aguirre and Fernandez allegedly gave Gabriel the beating
that caused his death.
Aguirre was angry because Gabriel had asked his mother to leave Aguirre and
then denied saying so, calling his mother a liar in front of Aguirre, the
defense attorney said.
"Isauro exploded in a rage of anger" and later "described his anger as a 20 on
a scale of 10? to a detective," Sklar said. "He was completely out of control."
Sklar cited testimony by Gabriel's siblings as corroboration, recalling that
one of them said Aguirre, who the kids called Tony, became "really, really,
really mad.'
Once his client realized Gabriel was unconscious, "he immediately took steps to
begin to revive him," the defense attorney said.
Sklar recalled Gabriel's brother testifying that "Tony began CPR before
somebody on the phone told him to, and he continued until paramedics arrived,"
arguing that "an attempt to save is contrary to an intent to kill."
The attorney also alleged that Gabriel's mother was the one who hit the boy
with a belt, shot him with a BB gun, forced him to eat cat feces and was
responsible for much of the abuse prior to his death.
Los Angeles County Fire Department personnel were called to the family's home
in the 200 block of East Avenue Q-10 in Palmdale in response to a call that
Gabriel was not breathing. He was declared brain-dead that day, then taken off
life support 2 days later.
Aguirre and the boy's mother have remained jailed without bail since being
charged in May 2013 with the boy's death. The 2 were subsequently indicted by a
Los Angeles County grand jury.
2 former Los Angeles County social workers - Stefanie Rodriguez and Patricia
Clement - and supervisors Kevin Bom and Gregory Merritt were charged last year
with 1 felony count each of child abuse and falsifying public records in
connection with the case.
(source: Los Angeles Daily News)
US MILITARY:
At Guantanamo, a Death Penalty Case Without a Death Penalty Lawyer
The Guantanamo military commissions, the scheme created by the government to
try 9/11 and other detainees, have devolved into an unacceptable and alarming
assault on defense lawyers attempting to provide fair representation to their
clients.
A new letter, drafted by the ACLU and joined by 150 death penalty lawyers and
law professors, registers the capital defense community's outrage over the
legal breakdown, which clearly violates federal and international law.
In the current crisis, Brig. Gen. John Baker, a decorated combat veteran and
the 2nd-highest ranking lawyer in the Marine Corps, was sentenced to 21 days of
confinement by the presiding military judge in the prosecution of Abd Rahim
Hussein Al-Nashiri, a suspect in the 2000 bombing of the USS Cole. Gen. Baker,
in his role as the chief defense counsel for the Guantanamo military
commissions, had granted a request by Al-Nashiri's defense counsel to withdraw
from the capital case because of an ethical conflict that is secret but is
known to involve government monitoring of attorney-client communications. 3 of
Al-Nashiri's long-term lawyers then withdrew - including his 1 attorney
qualified to work on death penalty cases. The lawyer left on the case was a
junior military lawyer.
The presiding military judge, Col. Vance Spath, was displeased - both that the
lawyers had withdrawn and that Gen. Baker granted their dismissal without his
permission. How Judge Spath expressed that displeasure is where things went
horribly wrong. He found Gen. Baker had acted in contempt of the court, and
ordered him to be confined for 21 days. (Gen. Baker spent 48 hours confined to
his trailer at "Camp Justice" on the Guantanamo naval base before being
released after he filed a federal appeal, which is still pending.) Spath then
ordered the young military lawyer with no death penalty experience to proceed
with Al-Nashiri's defense on his own.
Just as you would not expect a recent medical school graduate to perform a
complex and risky surgery, you would not assign a junior lawyer without capital
experience a leading role in a capital case.
Capital defense is a highly complex and specialized area of law. Both in
traditional federal prosecutions and in the unique provisions for Guantqnamo,
there must be at a minimum 2 lawyers representing a person facing the death
penalty, and at least 1 lawyer must be "learned counsel," with distinguished
prior experience and knowledge in the area of capital trials. Just as you would
not expect a recent medical school graduate to perform a complex and risky
surgery, you would not assign a junior lawyer without capital experience a
leading role in a capital case.
Richard Kammen, Al-Nashiri's former long-term capital defense counsel, had been
on the case for 9 years. He had been practicing law for 46 years and had served
as lead capital counsel in numerous cases. In contrast, Al-Nashiri's remaining
defense counsel, Navy Lt. Alaric Piette, is a 2012 law school graduate who
meets none of the requirements for "learned counsel." He was added to the
existing Al-Nashiri defense team just a few months ago. He has no prior capital
experience, and no prior criminal defense experience with homicide charges. He
rightly told the court exactly that.
Judge Spath ordered the young lawyer to represent Al-Nashiri on his own in the
scheduled proceedings. The judge's departure from the rules, which require
learned counsel at every part of a capital prosecution, is inexplicable. Even
beyond the binding military commission rules, the American Bar Association's
guidelines for capital cases have long explained that the unique and complex
labyrinth of capital trial preparation and investigation requires qualified
death penalty counsel represent the defendant at every stage of the
proceedings. There is no exception to this rule because the expertise is deemed
necessary throughout. Nonetheless, Judge Spath suggested that the junior
defense counsel should, alone, stand in the place of learned counsel and a team
with deep knowledge of the voluminous issues that the case raises. The young
lawyer resisted, repeating several times, that he was "not qualified" to
represent Mr. Al-Nashiri in the capital pretrial matter without learned
counsel.
Judge Spath dismissed the lawyer's refusal to speak as a trial "strategy," as
if requesting qualified counsel for his client was somehow a personal choice,
designed to disrupt the case. The young lawyer pointed out that it was neither
his nor his client's choice: "This cannot be trial strategy. It was not our
choice." Judge Spath ordered him to continue anyway.
The judge's unjustified and reprehensible attack on defense counsel, and his
insistence that a major capital trial go forward without experienced counsel,
is just the latest in a long string of outrages in the Guantanamo military
tribunals. Listening devices in attorney-client meeting rooms have been
installed, disguised as smoke detectors. The FBI has infiltrated and
investigated defense teams. Privileged legal mail is seized. Sadly, the list
goes on.
The tribunals have become a costly farce, inflicting incalculable damage to due
process and justice. This farce must end.
(source: Cassandra Stubbs, Director, ACLU Capital Punishment
Project----aclu.org)
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