Day: November 8, 2012

Supreme Court Weighing Genetic Privacy

November 8, 2012

Supreme Court justices are to meet privately Friday to weigh whether it will hear a major genetic privacy case testing whether authorities may take DNA samples from anybody arrested for a serious crime.

The case has wide-ranging implications, as at least 21 states and the federal government have regulations requiring suspects to give a DNA sample upon arrest. In all the states with such laws, DNA saliva samples are catalogued in state and federal crime-fighting databases.

The issue confronts the government’s interest in solving crime, balanced against the constitutional rights of those arrested to be free from government intrusion.

The case before the justices concerns a decision in April of Maryland’s top court, which said it was a breach of the Fourth Amendment right against unreasonable search and seizure to take DNA samples from suspects who have not been convicted.

The Maryland Court of Appeals, that state’s highest court, said that arrestees have a “weighty and reasonable expectation of privacy against warrantless, suspicionless searches” and that expectation is not outweighed by the state’s “purported interest in assuring proper identification” of a suspect.

Maryland prosecutors argued that the mouth swab was no more intrusive than fingerprinting, (.pdf) but the state’s high court said that it “could not turn a blind eye” to what it called a “vast genetic treasure map” (.pdf) that exists in the DNA samples retained by the state.

The court was noting that DNA sampling is much different from compulsory fingerprinting. A fingerprint, for example, reveals nothing more than a person’s identity. But much more can be learned from a DNA sample, which codes a person’s family ties, some health risks and, according to some, can predict apropensity for violence.

In the justices’ Friday conference, they are likely to agree to review the Maryland case, and announce their decision days later. That’s because Chief Justice John Roberts has stayed the Maryland decision pending whether the justices review the case. In the process, he said there was a “fair prospect” (.pdf) the Supreme Court would reverse the decision. If the justices decline the case, the Maryland decision becomes law.

The National District Attorneys Association is urging the Supreme Court to overturn the Maryland decision, saying DNA sampling “serves an important public and governmental interest.” (.pdf)

The group points to the Maryland case at hand, concerning defendant Alonzo King. After being arrested in 2009 on assault charges, a DNA sample he provided linked him to an unsolved 2003 rape conviction. He was later convicted of the sex crime, but the Maryland Court of Appeals reversed, saying his Fourth Amendment rights were breached.

The issue before the justices does not contest the long-held practice of taking DNA samples from convicts. The courts have already upheld DNA sampling of convicted felons, based on the theory that those who are convicted of crimes have fewer privacy rights.

Still, the U.S. Supreme Court has held that when conducting intrusions of the body during an investigation, the police need so-called “exigent circumstances” or a warrant. For example, the fact that alcohol evaporates in the body is an exigent circumstance that provides authorities with the right to draw blood from a suspected drunk driver without a warrant.

Maryland’s law, requiring DNA samples for those arrested for burglary and crimes of violence, is not nearly as harsh as California’s. The Golden State’s statute is among the nation’s strictest, requiring samples for any felony arrest.

A three-judge federal appeals panel has upheld California’s law, although the court is reviewing the issue again with 11 judges.

DNA testing in the United States was first used to convict a suspected Florida rapist in 1987, and has been a routine tool to solve old or so-called cold cases. It has also exonerated convicts and those on death row.


Katrina evacuee on Texas death row gets life term – Roosevelt Smith Jr.

November 7, 2012

DALLAS  — A Louisiana man’s death sentence in Texas has been reduced to life in prison without parole in the killing of a woman who helped him when he relocated after Hurricane Katrina.

Attorneys for 50-year-old Roosevelt Smith Jr. contended he’s mentally impaired and ineligible for execution under Supreme Court guidelines.

A state-appointed psychologist determined Smith was impaired. The Texas Court of Criminal Appeals on Wednesday agreed.

Smith, who was from Napoleonville, La., was condemned for beating and strangling 77-year-old Betty Blair in October 2005 at her home in Pasadena, just east of Houston. She’d been helping evacuees at a church and hired Smith and others to do odd jobs. He earlier had several burglary convictions and prison stints in Louisiana


NOVEMBER 8, 2012

Just hours before his scheduled execution Thursday, death-row inmate Hubert Lester Michael Jr. was granted a stay of execution.

His attorneys filed two last-minute appeals with the U.S. Third Circuit Court of Appeals, one of which resulted in the stay.

York County District Attorney Tom Kearney expressed disappointment with the ruling, saying the time to execute Michael is “long overdue.”

“This case has been up and down the legal ladder for 20 years,” he said. “There needs to be some finality, in the interests of justice. It’s about time the decision of this community is carried forth.”

Michael is represented by the Federal Community Defender Office in Philadelphia. His attorneys have declined interviews, but released a statement

Trista Eng

Thursday afternoon from Helen Marino, chief of the office’s capital habeas unit:

“On behalf of Hubert Michael, we are extremely pleased that the federal Court of Appeals has granted (him) a stay of execution. Mr. Michael has suffered from debilitating mental conditions throughout his life. Mr. Michael has compelling legal claims in his case which have never been reviewed by any court. The Court of Appeals recognized that there are complicated issues involved in this case that should be carefully considered.”

Last stop: Kearney has said the Third Circuit Court of Appeals was Michael’s last chance to avoid being put to death for the 1993 kidnapping and murder of 16-year-old Trista Eng of the Dillsburg area.

The Third Circuit granted the stay based on Michael’s appeal of Wednesday’s ruling by U.S. District Judge John E. Jones III.

Jones declined to stay the execution, writing:

“This court is disinclined to exercise its reservoir of discretion simply because the petitioner has now changed his mind. … The case law simply doesn’t support such a result.

“Indeed, to grant the relief requested by the petitioner would make the case a monumental example of the seeminly endless and oft-criticized federal habeas practice. Over 19 years after the heinous murder the petitioner has admitted committing, it is time to draw this affair to a close.”

The Third Circuit issued the stay because it wants to know why Jones granted Michael a “certificate of appealability” when he refused to grant Michael a stay and refused to reopen Michael’s habeas corpus appeal proceedings, according to Kearney.

The Third Circuit also noted parties should be prepared to litigate all their issues at one time.

No clemency: Shortly after 3 p.m. Wednesday, the state Board of Pardons unanimously denied Michael’s request for clemency.

Kearney said the time has come to execute Michael.

“If a sentence is to mean anything, then it must be carried out.” he said. “If it’s the will of the community, we need to follow through, or else it’s meaningless.”

13 years: Michael, 56, formerly of Lemoyne, had been scheduled to die by lethal injection at 7 p.m. Thursday.

He would have been the first murderer put to death in Pennsylvania in 13 years, and the fourth inmate executed since 1972, when the state reinstituted the death penalty.

It’s the third death warrant Pennsylvania governors have signed for Michael. The first two were in 1996 and 2004. Both times, his execution was stayed pending further appeal.

For years, Michael maintained he wanted to die, but he changed his mind in 2004, just days before his scheduled execution.

Attorneys with the Federal Community Defenders Organization in Philadelphia have argued he was not mentally competent when he pleaded guilty to first-degree murder on Oct. 11, 1994, and didn’t challenge his death sentence.

Mental-health issues: Court filings indicate Michael suffered from mental-health issues while he was held in Graterford state prison, but that those issues improved when he was transferred to Greene state prison.

Now that his mental health has improved, Michael is fighting his death sentence.

Second denial: On Tuesday, U.S. District Judge Yvette Kane also refused to grant Michael a stay of execution.

She is presiding over Chester v. Beard, a lawsuit filed six years ago on behalf of a number of Pennsylvania’s death-row inmates. It claims the state’s method in obtaining the drugs used for lethal injection is unconstitutional.

While Chester v. Beard remains active, Kane made a specific ruling in Michael’s case, denying his request for a stay.

Michael’s attorneys appealed both rulings to the Third Circuit, which denied a stay of execution for Michael in the Chester v. Beard class-action lawsuit.

The background: Michael told his former defense attorney, chief public defender Bruce Blocher, he went to the Franklin Township home of Eng and her mother to answer an advertisement about a chair for sale.

He told Blocher that when Eng answered the door in a Hardee’s uniform, he made the decision to force her to have sex with him. While there, he stole some electrical cords from the house, the attorney previously testified.

Michael stopped to offer Eng a ride as she was walking along Route 15 to her job at the Dillsburg Hardee’s on July 12, 1993. She accepted, and Michael kidnapped her.

At some point during the ride, Michael stopped the car and used the electrical cords to tie up Eng, then drove her to state game lands in Warrington Township, according to Blocher.

Raped: He raped her, put a bag over her head and shot her three times, Blocher has said, then hid her body in a wooded area.

Blocher revealed details of Michael’s confession to him when called to the stand during a 1997 appeals hearing in the case.

Michael fled the state 10 days after killing Eng. At the time, he was free on bail for a Lancaster County rape charge.

Captured: He was captured July 27, 1993, in Utah, at which point police found the murder weapon in the car he was using, officials said.

He was charged with Eng’s homicide in late August 1993, after her body was found by his family members after Michael confessed the murder to his brother.

In November 1993, Michael escaped from Lancaster County Prison but was captured in New Orleans in March 1994, according to the Department of Corrections.

He was later sentenced to 10 to 20 years for the Lancaster County rape, according to court records.

TEXAS – ‘We got him,’ murder victim’s father says after Cummings gets death sentence

November 8, 2012

While Rickey Donnell Cummings was on his way to death row, one of the fathers of his murder victims was headed to the cemetery to tell his son “we got him.”

Jurors in Waco’s 19th State District Court deliberated about 3 1/2 hours Wednesday before returning a death sentence for Cummings in the 2011 ambush-style slayings of two men at an East Waco apartment complex.

Cummings’ defense attorneys had hoped to spare him the death sentence, telling jurors that the death penalty should be reserved for the worst of the worst.

Rickey Cummings flashes the peace sign while leaving Waco’s 19th State District Court, where he was sentenced Wednesday to death for a March 2011 double-murder at a Waco apartment complex.
Rickey Cummings flashes a peace sign after being sentenced to death in Waco’s 19th State District Court.
Rod Aydelotte / Waco Tribune-Herald

Prosecutors countered that the 23-year-old alleged Bloods gang member’s “callous, blood-thirsty” actions, plus an escalating spiral of violence, make him an ideal candidate for execution.

As Cummings was led from court, he smiled at his family members and told them he loved them and to keep their heads up. They said they loved him, too. He flashed a peace sign on his way to jail.

Cummings was convicted of capital murder Friday in the March 2011 shooting deaths of Tyus Sneed, 17, and Keenan Hubert, 20, as they sat in the back seat of a car at the Lakewood Villas apartment complex, 1601 Spring St.

Demontrae Majors, 22, and Marion Bible, 23, who were in the front seat of the car, were wounded but managed to flee to the safety of a nearby apartment.

Surrounded by family members and smiling occasionally, Robert Sneed, Tyus Sneed’s father, remained emotional, as he has been throughout the trial.

“It’s over,” he said. “We got him, we got him, we got him. Now, it’s time to go to Tyus’ grave and tell him we got him.”

Sneed said at least one of his family members was present each day of the 12-day trial.

“My son was innocent,” he said. “It’s not been two years. He’s had two birthdays already. He would be 19. Happy birthday, son.”

The soft-spoken Sneed told Cummings, “May God have mercy on your soul” in his victim-impact statement after the sentence was read.

Hubert’s father, Artemus Matthews, had a different, anger-laced message for Cummings, whom he called a coward in his courtroom statement.

“I hope they kill you over and over and over,” Matthews said, taking note of Cummings’ tattoos. “You must like needles. They’ve got one waiting for you down there. . . . You’re going to come home in a body bag.”

Prosecutors say tattoos on Cummings’ back are associated with the Bloods street gang, and a defense prison expert testified Tuesday that Cummings would be identified as a Bloods member when he got to prison because of the numerous gang-related markings.

Cummings and his family members denied he was in a gang, saying the tattoos represent his home in East Waco.

Cummings’ testimony

Cummings testified during the first phase of the trial that he was dealing drugs several blocks away when the shootings occurred.

He said he was spotted at the complex because he rushed there after hearing a description of the car involved and feared it was his brother’s car.

After the trial, several of the victims’ family members said Cummings’ case should be a life lesson for those considering joining a gang.

“There will be no wanna-be Rickey Cummings after the lethal injection,” said Tyus Sneed’s aunt, Boreshio Jackson.

McLennan County District Attorney Abel Reyna, who tried the case with assistants Michael Jarrett and Greg Davis, praised the prosecutors, investigators and staff for “helping bring justice for these victims and their families.”

“We are extremely pleased with the jury’s verdict and careful consideration they gave this case,” Reyna said. “Also, we are pleased that we were able to achieve justice for the families of Tyus Sneed and Keenan Hubert as well as Marion Bible and Deontrae Majors.

“Rickey Cummings’ pattern of escalating violence and brutality were choices that he made. This jury’s verdict sends a strong message that violence in McLennan County will be met with firm justice and the utmost consequences.”

For Davis, a seasoned prosecutor who formerly worked in Collin County, Cummings marks the 20th capital murder defendant he has put on death row. He told jurors in closing statements that Cummings has a “wicked, corrupt and callous mind.”

“He is not like us,” Davis said. “He is wicked and beyond redemption. He is a man without excuses and he is here because of his own actions.”

Before the jury went out to deliberate, Davis told them, “May God guide you and may he give you the courage to do what needs to be done.”

Hunt said after the trial he was disappointed and a little surprised by the death sentence because he thought the state had not met its burden in proving that Cummings deserves to die.

Jury’s decision

In arriving at its decision, jurors answered three special issues: that Cummings would be violent in the future; that he caused the deaths or intended to kill or anticipated that a life would be taken; and that there was not sufficient mitigating evidence to warrant a sentence other than death.

The jury also had the option of sending Cummings to prison for life with no chance for parole.

Court officials and a host of courthouse deputies made jurors inaccessible after the trial. One juror reached at home by phone declined comment, and two others did not return messages.

Cummings’ mother, Elma Richards, said her family will contact the Innocence Project because they think he is not guilty. She also denied her son is a gang member.

“My baby is innocent. He did not do this,” she said.

She said Cummings is staying strong for his family during the ordeal, while they remain supportive of him.

“He came in with a smile, and he walked up out of here with a smile,” she said.

Cummings’ younger brother, Darvis Cummings, Albert Love and Kennedy Hardway also are charged in the shooting deaths.

Reyna has announced his office also will seek the death penalty against Love, but no trial date is set.

Hubert and Sneed each were shot eight times, and the car they were in had at least 20 bullet holes in it, including rounds from an AK-47-style assault rifle.


TEXAS – EXECUTION TODAY 11/08/12 – Mario Swain EXECUTED 6.39 pm

Mario Swain, 33, was pronounced dead by lethal injection at 6.39 pm (0039 GMT Friday), according to the Texas Department of Criminal Justice. When asked by a warden if he had a final statement before his punishment, the condemned prisoner shook his head, closed his eyes and took several barely audible breaths.

No family members or friends of Nixon were at the execution. Swain also had no relatives among the witnesses.

November 8,2012

HUNTSVILLE, Texas — A man who was sentenced to die in the fatal beating, stabbing and strangling of an East Texas call center supervisor a decade ago displayed a pattern of obsession and violence that a former district attorney said indicated the potential of a serial killer.

Mario Swain has since lost state and federal appeals and the U.S. Supreme Court last month refused to review his case. Swain, 33, is scheduled for execution Thursday.

Worried friends alerted police when Lola Nixon didn’t show up for dinner two nights after Christmas in 2002. Officers discovered signs of forced entry at her home near Dallas — and blood throughout — but no sign of the 46-year-old woman. A neighbor said he saw a truck parked outside the night she went missing, and police traced that vehicle to a man who said his grandson, Swain, had borrowed it.

Swain gave several confessions, and said his friends had beaten Nixon while burgling her home. But those friends all had credible alibis.

Eventually he led detectives to Nixon’s body, in the backseat of an abandoned vehicle at a remote site in Gregg County. She had been beaten with a tire iron, stabbed and strangled.

“Unless you knew where you were going, you wouldn’t get there,” Lance Larison, a prosecutor at Swain’s 2004 trial, said.

Evidence indicates Nixon fiercely resisted the attack and that Swain left her bleeding in her bathtub before throwing her in the back of her BMW and driving her to the site where she was found. He then returned to her house and tried to clean up.

The tire iron was recovered from a trash container where Swain said he had thrown it. Prosecutors said Swain used Nixon’s credit cards and that he gave a piece of her jewelry to a friend.

Nixon’s blood was found on Swain’s clothing in the truck, along with her car keys and garage door opener.

At trial, prosecutors presented evidence and witnesses that showed a pattern of crimes: Swain gathered information about women he wanted to rob, then attacked them, forcing them to inhale the anesthetic halothane and hitting them over the head with a wrench or shooting them with a stun gun.

“Not only did he stalk, he started making physical assaults,” Larison said.

“Girlfriends told us he loved to watch detective shows, crime science shows, that he was fascinated by them,” he said. “He would keep lists of women’s cars and certain license plates.”

He was “a serial killer in training,” the prosecutor said.

Earlier this year, a federal appeals court rejected Swain’s appeal that argued his confessions to the slaying should not have been allowed at trial, that his lawyers were deficient and that there was a problem in jury selection. The U.S. Supreme Court three weeks ago refused to review Swain’s case. And last week the Texas Court of Criminal Appeals refused an appeal challenging an investigator’s trial testimony.

Nixon was unmarried and lived alone. She had been a supervisor at a telephone call center in Longview where Swain once worked.

Swain declined from death row to speak with reporters as his execution date neared.

His lethal injection would be the 13th this year in Texas, where two more executions are set for next week.