July 21 VIRGINIA----impending execution Clemency Sought for Mentally Ill Va. Killer A Hampton, Va., man who fatally shot his wife and 2-year-old son suffers from bipolar disorder and should therefore not be executed tomorrow night, his attorneys said yesterday. In their request for clemency to Virginia Gov. Mark R. Warner (D), attorneys for Mark W. Bailey said their client has faced a "continuous struggle with his mental illness" that was not considered by the jurors who sentenced him to death. He also deserves leniency because he served in the Navy for a decade, including during the Persian Gulf War, they said. Bailey's attorneys are asking Warner to commute his sentence to life without possibility of parole. "This was really the single act of violence in his entire life and, in addition, his record of military service is described as outstanding. In the end, the question is whether we'll all be judged by our single worst act," said one of Bailey's attorneys, Robert Lee of the Virginia Capital Representation Resource Center. Bailey, 34, awoke early the morning of Sept. 10, 1998, and shot his wife, Katherine, 22, 3 times in the head with a borrowed pistol as she slept in their Hampton home, according to court records. He then twice shot their son, Nathan, as the toddler was climbing out of bed. Before leaving for work, Bailey cut the screen of a bathroom window and slashed the telephone cord in an effort to convince police that an intruder committed the killings, according to a synopsis of the case outlined in a Virginia Supreme Court opinion. Bailey initially denied any involvement in the killings, but he confessed eventually. Bailey later said he committed the crime because of his "wife's infidelity," according to court records. The couple, who were first cousins once removed, had been having marital problems. Lee said Bailey's mental illness "heightened his sense of despair." Tim Murtaugh, a spokesman for Virginia Attorney General Jerry W. Kilgore (R), said yesterday that his office "believes the jury's sentence should be upheld." "Here is a guy who murdered his wife and 2-year-old child and then took steps to make it look like a break-in had occurred. He then went to work as though nothing had happened," Murtaugh said. "These are not the actions of someone who doesn't know what he's doing." But Bailey's lawyers said the Hampton jury that sentenced Bailey to death did not get a complete picture of their client's mental problems. Lee said jurors did not know that Bailey had been diagnosed with bipolar disorder by a state physician while he was awaiting trial. Bailey, a former Navy submariner, received several commendations during his naval career, Lee said, but he also had bouts of depression that were "offset with manic periods." Lee also noted that there is a history of mental illness in Bailey's family. The National Gulf War Resource Center, a Silver Spring-based veterans group, also has written a letter to Warner encouraging him to commute Bailey's sentence to life in prison without the possibility of parole. Steve Robinson, the center's executive director, said that the group is "not asking to excuse" Bailey's crimes but that it believes Bailey's mental illness and military service should be considered when determining the punishment. The Virginia Supreme Court and federal courts have denied Bailey's appeals. Now only the U.S. Supreme Court and Warner can intervene. If Bailey is executed, his would be the 3rd execution in Virginia this year. ******************** Sniper Makes Appeal To High Court in Va. Prince William County prosecutors never proved that John Allen Muhammad fired the bullet that killed Dean H. Meyers during the 2002 sniper rampage in the Washington area, so the trial judge should not have allowed a jury to consider the death penalty, Muhammad's attorneys argued in their appeal this week to the Virginia Supreme Court. The legal claim by Muhammad's defense team is one of 102 "assignments of error" raised in a 140-page brief filed late Monday in Richmond. The brief is the beginning of what could be a long appeals process that could lead to the federal court system and last for years. Muhammad, now 43, and Lee Boyd Malvo, 19, were arrested in a parked car in Frederick County after 13 people had been shot, 10 fatally, during a three-week period in October 2002. The rifle believed to have been used in all the shootings was found in the car, along with a laptop computer mapping out the locations of some of the killings. Malvo's fingerprints and skin cells were found on the rifle, and the teenager admitted firing the gun in conversations with jail guards and investigators. But Muhammad did not talk to investigators, and no physical evidence linked him to the rifle. The 2 suspects were tried separately in different counties. Prince William prosecutors called Muhammad the mastermind of the shootings, and Fairfax County prosecutors said Malvo was the triggerman. Prince William Commonwealth's Attorney Paul B. Ebert argued that Muhammad's role made him equally responsible for the shootings and that he deserved to die. Peter D. Greenspun and Jonathan Shapiro, Muhammad's attorneys, said that under Virginia law, only the shooter was eligible for the death penalty. Prince William Circuit Court Judge Leroy F. Millette Jr. ruled for the prosecution. "I think a fair inference can be drawn that they perfected their ability to shoot people and perfected their ability to shoot them and escape," Millette said in his ruling. "I think that an inference can be drawn that the vehicle itself was instrumental in their ability to do that; and it took two people to position that vehicle in situations so that they could complete the shooting and escape undetected." Millette's ruling was arguably the most controversial legal decision in the case. Greenspun and Shapiro contended in their appeal that Virginia law states with "unambiguous precedent" that "only the actual killer . . . is eligible to receive the death penalty. There is absolutely no evidence of Mr. Muhammad's guilt as the actual perpetrator, that is, the triggerman." The defense also argued that Millette improperly allowed victim impact testimony from the friends and family of Meyers and Linda Franklin, the shooting victim in Fairfax. The emotional 911 call by Franklin's husband, William, was played to the jury during the guilt phase of Muhammad's trial. In Malvo's trial for Franklin's killing, Fairfax Circuit Court Judge Jane Marum Roush did not allow the tape to be played during the guilt phase. It was played during the penalty phase, however. "Nothing relevant to the crime was provided by Mr. Franklin," Muhammad's defense argued, saying it was "an effort to excite the passions of the jury regardless of the lack of facts." The defense noted that other victims' relatives also testified improperly during the guilt phase. Prosecutors said it was done to show the impact of terror. The sniper trials provided the first test of a new Virginia anti-terrorism statute, which Muhammad's attorneys argue is unconstitutionally vague. The law prohibits intimidating the civilian population or influencing the conduct of the government. Prosecutors said the snipers did both by inflicting fear and by demanding payment to stop the shootings. The defense said the definition of terrorism is far too fuzzy. "There is an enormous difference between criminals who 'terrorize' and 'terrorists,' " Greenspun and Shapiro wrote. "But the statute as drawn fails to draw that distinction, allowing instead unguided and unbridled law enforcement discretion." The defense also renewed its argument that the prosecutors in the two sniper trials improperly used conflicting theories of the case, though they represent one entity, the commonwealth. Greenspun and Shapiro note that Ebert portrayed Muhammad as controlling and directing Malvo. But Fairfax prosecutor Robert F. Horan Jr. said Malvo was independent and intelligent. The Virginia attorney general's office will file a reply brief for the prosecution. Oral arguments in the case could be heard this fall. (source for both: Washington Post) UTAH/OKLAHOMA: Circuit judges meet in Salt Lake -- They hear Utah case and death penalty appeal The judge's bench in Utah's federal courthouse, which normally sits 1 jurist quite comfortably, was a little tight for the 3 appeals court judges occupying it Tuesday morning. Judges Robert H. Henry, Mary Beck Briscoe and Terrence L. O'Brien made it work, though, as they held a special session of the 10th U.S. Circuit Court of Appeals in Salt Lake City. The panel heard arguments in 2 cases Tuesday, a Utah case involving an undocumented immigrant and an Oklahoma death penalty appeal. Tenth Circuit judges routinely leave Denver to hear arguments in courthouses and law schools throughout the district. In 2003, the court traveled outside Colorado 6 times, including 2 trips to Utah. So far this year, judges visited 2 cities. On Tuesday, the 3-judge panel first heard the case of Jose Torres-Ruiz, an immigrant who pleaded guilty in February 2003 to 1 count of re-entry of a deported alien. Defense attorneys are challenging Torres-Ruiz's 46-month prison sentence, saying it was improperly increased by several years based on a finding that a prior DUI conviction qualifies as a "crime of violence" under the law. Torres-Ruiz served 16 months in a California jail after a 1996 arrest for hitting a 5-year-old girl while driving intoxicated. The child suffered minor injuries. Defense attorney Scott Wilson argued the prior conviction cannot be used to increase Torres-Ruiz's sentence because the accident was unintentional. "Whatever you can say about how dangerous it is to drive a car drunk, you can't say that that person intended to hit somebody," Wilson said. "There's a distinction between the intent to drive a car and the intent to hit someone with it." Assistant U.S. Attorney Wayne Dance argued the opposite, saying the law only discusses the "use of physical force" and does not require that a person set out to purposely hurt another. The 2nd matter heard Tuesday was the case of Oklahoma death-row inmate Eric Allen Patton. Patton was convicted in the 1994 stabbing death of a woman. Patton forced his way into the home and stabbed 56-year-old Charlene Kauer several times with a barbecue fork and a pair of pinking shears. Patton's defense attorney argued that an instruction given to jurors at Patton's 1996 trial was unconstitutional and unfairly shifted the burden of proof to Patton. The court took both matters under advisement. ********************* Death penalty sought in 1976 rape-slaying Prosecutors are seeking the death penalty against a Salt Lake man with a lengthy criminal record in a 28-year-old "cold case" murder. Gayle Gilbert Benavidez, 48, was charged Tuesday with capital murder in connection with the death of Carolyn W. Sarkesians in March 1976. DNA evidence appears to link him to the murder. Sarkesians' body was found near a halfway house at 323 W. North Temple where Benavidez had been living, according to documents filed in 3rd District Court. The medical examiner found Sarkesians had been raped and strangled, court documents state. The Salt Lake Police Department's "cold case squad," established last year, has been reviewing unsolved crimes. Salt Lake police detective Mark Knighton re-examined Sarkesians' case in February and got a warrant for a blood sample from Benavidez. A Utah State Crime Lab employee stated Benavidez's DNA matched a biological sample taken from Sarkesian, according to court documents. Police know that Sarkesians, who was 24, was heading to meet her boyfriend on March 5, 1976. Stories from the Deseret Morning News archives say authorities originally thought she died from a large wound on the back of her head. Sarkesians' body did not have any identification, so it took a few days to identify her. Benavidez has 23 separate arrests dating back to 1973 for such things as sexual assault, rape, obstruction of justice, according to jail, court and Department of Corrections records. He has been convicted of rape twice. (source for both: Deseret Morning News) OHIO: Zenowicz enters 'not guilty' plea----Trial scheduled for Sept. 27 In Fremont, ajudge denied bail and set a Sept. 27 trial date Monday for the Danbury Township man accused of the double murder of 2 Fremont residents over the Fourth of July weekend. Led into the Sandusky County Common Pleas Courtroom in shackles, brown leather sandals and an orange jumpsuit, 33-year-old Jeffrey Zenowicz's demeanor appeared serious, seemingly emotionless during his arraignment hearing. He spoke respectfully to Judge Harry A. Sargeant Jr. when questioned. It was the first time Zenowicz, of 160 N. Tibbles Drive, appeared in court since being indicted last week for the July 3 murders of his former girlfriend, Claudia Fonseca, 40, and her friend Leslie Slone, 30, at the Rice Township home of Eric Fonseca, Claudia's brother. The gruesome murder scene was discovered July 5 by Fonseca's mother, Carol, who lives down the street. Fonseca was found drowned in a bathtub while Slone's throat was slashed with a knife. Zenowicz faces 4 counts of aggravated murder, two counts of murder, one count of attempted aggravated arson, one count of aggravated burglary and one count of tampering with evidence. Authorities have said that Zenowicz confessed to the killings after a lengthy questioning several hours after the bodies were discovered. But Monday, Zenowicz -- who faces the death penalty on 4 of 9 felony charges related to the killings -- pleaded not guilty to all charges. His court-appointed lawyer, Adrian Cimerman of Toledo, requested that Sargeant set a "reasonable bond." Sargeant denied bail. Cimerman also asked the court to consider moving Zenowicz to the Ottawa County Detention Facility, or a closer locale to his office. He said he is searching for another lawyer to serve as second chair in the case. Toledo lawyer Jeffrey Helmick appeared to assist with the arraignment Monday. Zenowicz is currently being held in the Erie County Jail because Fonseca's father, Gil Fonseca, is a corrections officer at the Sandusky County Jail, where he would normally be imprisoned. Gil Fonseca returned Monday for his 1st day of work since the killings. Sargeant said he would consider the motion to move Zenowicz. During the proceedings, family and friends of the murder victims huddled on one side of the courtroom, their faces strained with emotion, many sobbing. Dabbing tears with a tissue and shaking with grief, Rita Slone, Leslie Slone's mother, watched the proceedings. She said her son was "a great kid" who "worried about everybody else." "My son did nothing to him," Slone said of Zenowicz. Slone had been staying at the Springwood Drive residence to protect Fonseca. Fonseca and Zenowicz met a year ago and by February were living together at the house. Then Fonseca's family made Zenowicz move out after a mid-May domestic violence incident. Relatives said Zenowicz had a hard time dealing with the breakup and had threatened Fonseca and her family. Rita Slone said she hopes Zenowicz is sentenced to the death penalty. "But not by lethal injection. That would be too easy," she said. Leslie's aunt, Brenda Slone, sat just behind Rita Slone. She remains in shock over the whole thing -- and agrees Rita. "I hope he gets the death penalty," she said. "It's what he deserves. At least he's been alive two weeks longer than Les. "(Slone) was just trying to help her out." After Zenowicz was led from the courtroom, Fonseca's family, seated across the front row behind Prosecutor Tom Stierwalt, clasped hands. Some fell into a sorrowful embrace when Claudia's cousin, Michelle Lindsay's sobs broke the stillness. "I feel a lot of anger -- I don't know how he could do that to her," Lindsay said, having composed herself just outside of the courtroom. "It was so hard to see him today, to hear him say, 'Not guilty.'" Those gathered with Lindsay -- her husband Greg Lindsay, Claudia and Michelle's aunt and uncle Les and Chris Hill, and cousin Kimberly Weaver and her mom, Judy Burkett -- said they feel great appreciation for Leslie Slone and his family. "He was just at the wrong place at the wrong time," Michelle Lindsay said. "Our hearts go out to him and his family." Family members said it was too hard for Claudia's parents to come to the courtroom for the arraignment. (source: News Herald)
