Day: September 29, 2012

Appeals court rejects request to remove judge in Arizona death-penalty case – Kevin Miles

September 28, 2012,


WASHINGTON — A federal appeals court Friday rejected an Arizona death row inmate’s request that a judge recuse herself from his carjacking-murder case because her own father was murdered in a carjacking close to 40 years ago.

A panel of the U.S. Court of Appeals for the 9th Circuit said Kevin Miles” request that Judge Susan Graber recuse herself was inappropriate and “especially flimsy.”

Graber wrote the opinion last month upholding Miles’ death sentence for the 1992 carjacking and murder of Patricia Baeuerlen in Tucson. Graber’s father, Julius, was carjacked in 1974 by two teens wielding a sawed-off shotgun, then driven to a Cincinnati cemetery, where he was shot in the back of the head.

Miles‘ motion said federal court procedure and U.S. law require that federal judges disqualify themselves “in any proceeding in which his impartiality might reasonably be questioned.”

But Judges Marsha Berzon and Richard Tallman wrote that it is up to Graber to decide whether or not to step down, and they went on to defend her impartiality at some length in their published five-page order.

“Life experiences do not disqualify us from serving as judges on cases in which the issues or the facts are in some indirect way related to our personal experiences,” they wrote.

Miles‘ public defender, Timothy Gabrielsen, had no comment on the order Friday except to say, “I stand by the motion. I think it is appropriate.”

Assistant Arizona Attorney General Jonathan Bass called the timing of the motion peculiar, since it came after the court had already ruled on Miles’ appeal. If there’s any doubt, “you don’t want the judge to rule at all,” he said.

Bass agreed with the order, saying he “had no reason to think they (the circuit judges) are not impartial.”

Miles, then 24, and two underage friends were standing on a street corner in Tucson in December 1992 when Baeuerlen pulled up. Levi Jackson, 16, pointed a gun at her and the trio got into her car.

They drove to the desert, where they took her out of the car, taunted and harassed her before Jackson shot her in the chest and they drove off, leaving Baeuerlen where she had been shot.

Miles later used Baeuerlen’s ATM card to take money out of her account. He drove her car to Phoenix where he went shopping at a mall, exchanged her children’s Christmas gifts for other items and met with friends.

Police arrested Miles two days after Baeuerlen’s slaying, and he confessed after several hours of questioning. He was later convicted and sentenced to death. Jackson, who was initially sentenced to death, had the sentence reversed on appeal and is now serving a life sentence.

The recusal motion noted similarities to Julius Graber’s murder and to the post-conviction proceedings for Willie Lee Bell, an accomplice in Graber’s killing.

Bell, who was 16 at the time of that crime, was sentenced to death, but his sentence was overturned in 1978. He is now serving a life sentence in Ohio.

A motion for a rehearing before the full 9th Circuit of the latest decision in Miles‘ case is pending. If that motion is denied, Miles could then petition the U.S. Supreme Court for a hearing.

CALIFORNIA – Arsonist gets death penalty in fatal Old fire – Rickie Lee Fowler

September 29, 2012

Death sentence in Old fire

 San Bernardino County jury on Friday ordered a death sentence for the violent methamphetamine addict convicted of setting the catastrophic 2003 Old fire that destroyed 1,000 homes, blackened the San Bernardino Mountains and led to five deaths.

The jury in August found that Rickie Lee Fowler deliberately set the blaze by tossing a lighted road flare into brush at the base of the mountains on an October day when Southern California already was overwhelmed by wind-fed wildfires, convicting him of murder and arson.

Deputy Dist. Atty. Robert Bullock portrayed Fowler as an evil and sadistic felon who inflicted “misery and mayhem” on those who crossed his path throughout his life — raping and brutalizing two girlfriends, one of whom was pregnant with his son, and sodomizing a jail cellmate whom he turned into a “sex slave.”

“I would like to thank the jury for doing the right thing. This is one of those crimes that reaches out and grabs you by the throat,” Bulloch at a news conference afterward.

Superior Court Judge Michael A. Smith is scheduled to sentence Fowler on Nov. 16. The judge has the legal authority to dismiss the jury’s recommendation and instead sentence Fowler to life in prison without the possibility of parole, but such an action is rare in California.

Smith noted that Californians on Nov. 6 will vote on a proposed ballot initiative — Proposition 34 — that, if approved, would abolish the death penalty and replace it with life in prison without the possibility of parole.

“Depending on what happens with that, it could affect sentencing in this matter,” Smith said during Friday’s hearing.

Dist. Atty. Michael Ramos said it would be a travesty of justice if California voters approved the measure, in effect granting Fowler and “baby murderers and cop killers” a reprieve from death row.

“We cannot allow a proposition to overturn what happened today in San Bernardino County for these five victims,” Ramos said.

The jury spent 11 days deliberating Fowler’s sentence, its final act in a trial that began in late July. Jurors declined to comment afterward, and no relatives of the Old fire victims attended the hearing.

Fowler, wearing a baggy dress shirt and charcoal slacks, showed little emotion when the death recommendation was read, only leaning over to whisper to his attorney Michael Belter.

Belter said his client was relieved that the deliberations had finally ended, but “obviously Mr. Fowler was disappointed with the result.”

Fowler’s attorneys plan to file a motion for a new trial, arguing that the prosecution did not present any direct evidence showing that Fowler had set the blaze or that the deaths were intentional. All five deaths were due to heart attacks triggered by the stress of the fire, according to prosecution testimony.

Belter said that during his conversation with jurors after Friday’s hearing it was clear that they spent a lot of time considering those arguments. “I think the jury went back and forth,” he said. “They had different splits, they had a lot to talk about.”

The prosecutor said Fowler deliberately set the blaze in Waterman Canyon in a fit of rage against his godfather, who had kicked Fowler out of his house at the top of the canyon.

The fire broke out Oct. 25, 2003, at Old Waterman Canyon Road and California 18, and raced through the forest and brush, forcing the evacuation of more than 30 communities and 80,000 people. It came as firefighters were battling a blaze in Upland and Rancho Cucamonga. Six men died of heart attacks, although prosecutors said one could not be directly linked to the stress of the fire.

A few months later, on Christmas Day, a huge debris flow — caused by intense rain on the denuded slopes of the burn area — swept through a church camp in Waterman Canyon, killing 14 people. Fowler was not charged in that incident.

Investigators said they questioned Fowler shortly after the fire but did not have enough evidence to arrest him at that time. Another suspect in the fire, Martin Valdez, 24, was fatally shot in Muscoy, near San Bernardino, in 2006. At the time of the fire, witnesses reported seeing Fowler and Valdez in a white van throwing a flaming object into Waterman Canyon.

Much of the prosecution’s case hinged on comments Fowler made in 2008 in which he acknowledged to investigators that he was attempting to burn down the home of a friend, but denied that he was the one who set the blaze. Fowler told investigators that he went to the back of the van and took out a flare, but that Valdez grabbed the flare and tossed it.

Death row suffers setback, Propofol won’t be sold for use in executions.

September 28, 2012

A manufacturer of the anesthetic blamed for Michael Jackson’s death said yesterday it won’t sell propofol for use in U.S. executions, a setback for Missouri and other states seeking an alternative after other drug makers also objected to their products’ use in lethal injections.

Drug maker Fresenius Kabi USA, a German company with U.S. offices based in Schaumburg, Ill., is one of only two domestic suppliers of propofol and is the only one currently distributing in the United States. Earlier this year, Missouri adopted a new single-drug execution method that would make it the first state to use propofol on death-row inmates. Other states also have considered incorporating the drug into their lethal injections.

Fresenius Kabi spokesman Matt Kuhn confirmed to The Associated Press that the company told its distributors in late August that such usage is “inconsistent” with the company’s mission. It’s also forbidden under European Union laws to export drugs that could be used in executions.

Fresenius Kabi objects to the use of its products in any manner that is not in full accordance with the medical indications for which they have been approved by health authorities,” a company statement reads. “Consequently, the company does not accept orders for propofol from any departments of correction in the United States. Nor will it do so.”

Most of the 33 states with the death penalty had long used sodium thiopental as the first of a three-drug combination administered during lethal injections. But that drug also became unavailable when its European supplier acknowledged pressure from death penalty opponents and stopped selling it for executions.

Supplies mostly ran out or expired, forcing states to consider alternatives. Most states have retained the three-drug method but turned to pentobarbital, a barbiturate used to treat anxiety and convulsive disorders such as epilepsy, as a replacement for sodium thiopental. Pentobarbital supplies also have shrunk after its manufacturer said it would try to prevent its use in executions.

A spokeswoman for the Missouri attorney general’s office declined comment yesterday, and Department of Corrections officials didn’t respond to several requests seeking comment about Fresenius Kabi’s decision. In August, the state Supreme Court declined Attorney General Chris Koster’s request to set execution dates for six death-row inmates, calling it “premature” pending the uncertainty over propofol’s availability.

Richard Dieter, executive director of the Washington-based Death Penalty Information Center, called the drug maker’s decision the latest obstacle to a capital punishment procedure that until several years ago had been virtually unchanged for more than three decades.

“States have chosen a medical model. And in general, the medical profession is not involved in things other than life-preserving acts,” he said. “It’s going to be an ongoing problem.”

Hospira, the only other company that distributes propofol in the U.S., has exhausted its supply and doesn’t expect to release the drug for further sale until at least October or November.