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Supreme Court Weighing Genetic Privacy

November 8, 2012 http://www.wired.com

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 http://www.chron.com

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

PENNSYLVANIA- EXECUTION TODAY 11/08/2012, Hubert Michael Jr. STAYED

NOVEMBER 8, 2012 http://www.yorkdispatch.com

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 http://www.wacotrib.com

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.

OKLAHOMA – EXECUTION, GARRY ALLEN 11/06/2012, EXECUTED 6.10 P.M

November 6, 2012 http://mcalesternews.com

March 7, 2012 dead
Oklahoma death row inmate Garry Thomas Allen, 56, was executed this evening in the death chamber at the Oklahoma State Penitentiary in McAlester.

Witnessing the execution were two media representatives, two of Allen’s attorneys, the victim’s sister-in-law, Oklahoma Department of Corrections Director Justin Jones and several Department of Corrections employees.

At 5:58 p.m., Jones gave the go-ahead for the execution procedure to begin and the blinds between the witness area and the execution chamber were raised.

Allen raised his head from the execution gurney and looked into the witness room. His eyes wandered until they landed on familiar faces. When he saw his attorneys he said, “Hi.” And they lifted their hands and waved at him.

Allen then began to talk. He rambled unintelligibly about Obama and Romney. Allen’s garbled speech about the presidential race coincided with a loud banging noise as the other inmates in H-Unit said their good-byes.

“Obama won two out of three counties. It’s going to be a very close race,” Allen said just before Oklahoma State Penitentiary Deputy Warden Art Lightle asked him if he had a last statement.

Allen looked at Lightle and asked, “Huh?” Then he continued in his garbled speech and then again raised his head and said, “Hi,” to his attorneys. Allen’s unintelligible ramblings continued. He spoke about Obama and Jesus.

“I hope that more realize Jesus is the son of God — the only son of God. Jesus is the one and only savior,” Allen said. This statement was followed by more unintelligible ramblings.

Lightle told Allen that his two minutes were coming to an end. Allen turned his head to look at Lightle and asked, “What?” Then he continued his garbled speech.

One of Allen’s attorneys began to get teary eyed and she leaned down and placed her head in her hands. At 6:02 p.m., when she sat back up, and as Allen’s unintelligible talking continued, Lightle said, “Let the execution begin.”

Allen again turned his head and looked at Lightle and asked, “Huh?”

Then he lifted his head and looked at the witnesses, fixing his eyes on his attorneys. “Hi,” he said to them again. And again they both lifted their hands and waved at him.

His garbled speech continued until the concoction of execution drugs apparently affected his system. He turned and lifted his head one last time and looked at Lightle. He made a loud, strained grunting sound and laid his head back down on the gurney.

At 6:07 p.m., the attending physician checked Allen’s vital signs and said something about a pulse. The physician rubbed Allen’s chest and then stepped away as Allen’s attorney wiped a tear from her cheek.

The physician stepped back to Allen’s body minutes later, checked his vital signs and pronounced Allen’s death at 6:10 p.m.

The victim’s family submitted the following written statement following Allen’s execution:

“Our beloved Gail — daughter, sister and mother of two young boys was taken from our family tragically and senselessly due to domestic violence.

“For over 25 years we have waited for justice to be served and for this sentence to be carried out.

“We are thankful to close the book on this chapter today, but we will never stop grieving the loss of Gail.

“It has been an emotional roller coaster for our family and one we have endured far too long.

“Gail’s memory will continue to live on through the lives of her now grown sons and her grandchildren.”

This was not the first time Allen was scheduled for execution. In April, officials at the OSP conducted normal execution day procedures while waiting to find out about approval or disapproval of an appeal filed with the U.S. 10th Circuit Court of Appeals

A stay was issued for Allen one day before his scheduled execution on April 12.

“A federal judge stayed Garry Allen’s execution,” said OSP Warden’s Assistant Terry Crenshaw in April. U.S. District Judge David L. Russell issued the stay, ruling that Allen’s claims that he is insane and ineligible for the death penalty should be reviewed. Allen had been diagnosed with schizophrenia and his attorneys argued his mental state deteriorated on death row.

“Oklahoma Attorney General Scott Pruitt has filed a notice of appeal to the stay of execution,” Crenshaw said in April. If the appeal to the stay of execution was granted, officials at OSP had “measures in place to carry out the execution according to court orders.” However, Pruitt’s appeal was not granted at that time.

Allen was also set for execution on Feb. 16, but Oklahoma Gov. Mary Fallin granted a 30-day stay of execution for the condemned man. She said the stay was issued so her legal team could have more time to consider a 2005 recommendation by the Oklahoma Pardon and Parole Board to commute his sentence to life.

“Having thoroughly reviewed the arguments and evidence presented in this case, I have determined that clemency should be denied in this case, and that the sentence of death be carried out,” Fallin wrote in an executive order filed March 13.

The 30-day stay would have set Allen’s execution for March 17, but that date was moved to April 12, before being stayed yet again.

Allen received his death sentence for the 1986 murder of his 24-year-old wife, Lawanna Gail Titsworth. The McAlester News-Capital reported in May of 2008 that Allen’s conviction and death sentence came after he gunned down Titsworth four days after she moved out of their home with their two sons, who were 6 and 2 at the time.

Allen was first scheduled to be executed May 19, 2005. A stay of execution was granted by Judge Thomas Bartheld one day before his scheduled execution. The Associated Press reported Allen’s mental competency was in question after a psychological exam at OSP indicated he had developed mental problems while confined on death row. The doctor’s report noted Allen had dementia caused by seizures, drug abuse and being shot in the face.

The U.S. Supreme Court and state law prohibit execution of inmates who are insane or mentally incompetent.

On May 1, 2008, a Pittsburg County jury decided, on split decision, that Allen is “sane to be executed.” For more than three years since, numerous court motions and legal arguments have been heard in the case.

On Dec. 28, Bartheld signed a legal order vacating Allen’s stay of execution, stating “the court … having reviewed the pleadings, finds that the issue of the sanity of Garry Thomas Allen for execution has been resolved…”

On Nov. 21, 1986, reports indicate Allen went to his children’s daycare center in Oklahoma City when his wife, Titsworth, was scheduled to pick them up. Titsworth had gone to the parking lot when Allen confronted her, according to court records. As Titsworth opened the door to her truck, Allen shut the door and prevented her from entering, court documents state.

As the two argued, Allen reached into his sock, pulled out a revolver and shot Titsworth twice in the chest.

“It is unclear whether Titsworth was holding her youngest son at the time of the shooting or had picked him up immediately thereafter,” documents filed with the 10th U.S. Circuit Court of Criminal Appeals state.

After Allen shot Titsworth, she begged him not to shoot her again and fell to the ground. Allen then asked Titsworth if she was all right and lifted up her blouse, apparently attempting to examine her injuries.

“At the time of the shooting, some of the daycare employees were in the parking lot and several of the children were in a van parked a few feet from Titsworth’s truck,” court documents state.

“After the shooting, Titsworth managed to get up and start running toward the building along with a daycare center employee.”

As they headed up the steps leading to the front door, Allen pushed the daycare employee through the door and shoved Titsworth down on the steps, where he shot her twice in the back at close range.

Oklahoma City police officer Mike Taylor responded to a 911 call within minutes and a witness pointed to an alley where Allen was hiding. Taylor spotted Allen in the alley, pulled his revolver and ordered him to stop and remain still.

Although Allen initially complied with the order, he turned and began walking away. When Taylor reached out to place a hand on him, Allen quickly turned and grabbed the policeman’s gun.

During a struggle, Allen gained partial control of the gun and “attempted to make officer Taylor shoot himself by applying pressure to Taylor’s finger which was still on the trigger,” court documents state.

As the struggle continued, Taylor regained control of the gun and shot Allen in the face, according to court records.

Allen was hospitalized for approximately two months for injuries to his face, left eye and brain. Afterwards, he entered a blind plea — meaning no plea bargain agreement had been reached — to first-degree murder and other charges on Nov. 10, 1987.

An Oklahoma County judge subsequently sentenced Allen to death. The appeals court later ordered a second sentence hearing, which also resulted in the death sentence.

According to the Oklahoma Department of Correction’s website, at http://www.doc.state.ok.us, Allen had been incarcerated at OSP since Dec. 23, 1987, and was housed on death row in the prison’s H-Unit.

 

PROPOSITION 34: Death penalty initiative losing in early returns

Death penalty opponents saw their effort to abolish capital punishment fall behind in early returns late Tuesday.

64.5 percent of voters had voted no by midnight and 35.5 percent of voters had voted yes.

Voters in the state with the nation’s largest death row were deciding whether to repeal the death penalty. Proponents of Proposition 34 say incarceration and litigation costs are too high for too little return.

California has spent about $4 billion since capital punishment resumed in 1977, yet just 13 inmates have been put to death.

An independent analysis says the state would save between $100 million and $130 million a year by converting death sentences to life-without-parole, money supporters say could be put toward public schools and local law enforcement investigations.

“The death penalty is a giant rathole where so much of California’s budget is thrown with no discernible benefit,” said Dionne Wilson, whose husband, a police officer, was killed by a man now on death row.

A supporter of Proposition 34, she said the death sentence given to her husband’s killer “didn’t change anything. I still don’t have a husband and my children and family are devastated.”

Opponents say the argument is merely a smoke screen by the American Civil Liberties Union and other longtime opponents of capital punishment.

Promoting Proposition 34 as a budget-saving mechanism is a convenient way to achieve their goal of ending capital punishment and minimizes the rights of victims, say the law enforcement and victims’ rights groups who are waging the campaign against the initiative.

“He deserves the ultimate punishment for what he did to my daughter,” said Marc Klaas, whose 12-year-old daughter, Polly, was abducted, raped and killed by Richard Allen Davis in 1993. “The crimes these characters have committed are so beyond the pale that you need an extreme punishment.”

Klaas, an outspoken Proposition 34 opponent, acknowledged the state’s death penalty is broken because so few inmates have been executed. But rather than do away with it, he said, the appeals process should be streamlined so more executions can be carried out, especially one for his daughter’s killer.

Three former California governors – two Republicans and a Democrat- have spoken out against the initiative. One, Republican Pete Wilson, co-wrote the official argument against Proposition 34 that says the ACLU, which is pushing the initiative, is largely responsible for the high costs of housing death row inmates and the lengthy appeals process.

That the group would focus on money to be saved if capital punishment ended is hypocritical, he wrote. Repeal also could lead to higher court costs because prosecutors use the possibility of a death sentence as a way to get defendants to plead guilty to a lesser sentence and thus save costs, said Mike Genest, part of the No on 34 campaign.

Citing one study, he said eliminating that bargaining chip could lead to four times as many criminal trials.

Genest, a former state finance director, also said the roughly $100 million a year that might be saved by repealing the death penalty is a negligible amount in a state general fund that typically is more than $90 billion.

“If you’re considering voting `yes’ on this because it saves money, that’s ridiculous,” he said. “It’s either incorrect, it won’t save money or it’s irrelevant – it won’t save enough money to have any consequence.”

If Proposition 34 passes, it would be only the second time in U.S. history – and the first time since a 1964 election in Oregon – that voters have repealed a state’s death penalty, according to the Death Penalty Information Center.

A total of 17 states have repealed the death penalty, 16 through their legislatures. Five state legislatures have done so in the last five years, including Connecticut this year.

A Field Poll in late September found Proposition 34 failing to gain majority support among likely voters, with 42 percent in favor. Yet the poll also found a softening of support for the death penalty overall, with 45 percent saying California should retain capital punishment. The rest were undecided.

Proposition 34 would strike capital punishment from the state’s books and shutter death row at San Quentin State Prison, the country’s largest at 725 inmates. The sentences would be converted to life in prison without the possibility of parole.

Opponents of Proposition 34 argue that eliminating the death penalty makes the state more dangerous, ignores the wishes of many crime victims and allows some of the most notorious killers, including Scott Peterson, Richard “the Night Stalker” Ramirez and Charles Ng, to escape justice.

Their slogan is “mend it, don’t end it.” A more streamlined process, including using a single execution drug rather than the current three-drug mixture, will speed up the process and limit expenses, they say.

A federal judge in 2006 halted executions in California and ordered prison officials to overhaul the state’s procedures, which included carrying out lethal injections in San Quentin’s former gas chamber.

Since then, the corrections department has built a new death chamber that resembles a bright and antiseptic hospital room and adopted new written protocols. Those protocols, though, are the subject of a state judge’s order barring executions until they are properly adopted according to California’s administrative code.

The last time voters weighed in on the question was 1978, when 71 percent approved expanding the death penalty law passed the previous year by the Legislature. Since then, public opinion surveys have shown consistently that California voters support executions.

Among those supporting the ballot initiative is a victim of a violent crime, J. Rose Steward. She was abducted, raped and left for dead by Dean Phillip Carter, who went on to kill four other women and received the death penalty in 1990. He is still on Death Row, and Steward morally opposes his execution.

“I don’t want blood on my hands like he has,” she said.

Lawsuit has potential to stay all executions in Pennsylvania

NOVEMBER 4, 2012 http://www.pennlive.com

It’s been more than a decade since Pennsylvania executed an inmate on death row. Although another execution is scheduled for Thursday, it’s possible the execution will not happen and that the chamber at Rockview State Prison will remain empty for some time to come.

There’s a little-known 6-year-old federal class action lawsuit — Chester v Beard — that has the potential to stay all executions in Pennsylvania until it is resolved.

04michael.jpgHUBERT MICHAEL

The suit challenges the constitutionality of Pennsylvania’s execution protocol; the “class” in the action is composed of all inmates on death row, and there’s a hearing in the case Monday morning.

The immediate relevance is the pending execution of Hubert Michael, whose lawyers have asked the judge for a stay.

Michael is on death row for the July 12, 1993, murder of 16-year-old Trista Eng near Dillsburg in York County.

Michael, who was living in a boarding house in Lemoyne at the time, picked up Eng as she walked to work at the Dillsburg Hardee’s on Route 15. He drove her to a remote area of State Game Lands 242 and shot her three times with a .44 magnum — twice in the chest and once in the head.

When Michael subsequently pleaded guilty to the murder, he said he had been frustrated with women due to an unrelated rape charge in Lancaster County.

His attorneys recently asked a federal judge to reopen his appeals proceedings, citing serious mental health issues as the reason for Michael having repeatedly changed his mind on whether or not he wanted the appeal to proceed.

There’s a hearing on that later this week.

But the separate class action suit, in which his attorneys have also filed a motion for a stay, has the potential to affect all executions in Pennyslvania.

The U.S. Supreme Court ruled in 2008 that death by lethal injection is not — in and of itself — unconstitutional, but the ruling left open the possibility that individual state protocols for lethal injection could be challenged on constitutional grounds.

At issue is the fact that two of the three drugs used in the procedure can cause excruciating pain if the first drug — a fast-acting barbiturate — is an insufficient dose or improperly administered. What’s more, the second drug paralyzes the person, so he would not be able to communicate the fact he’s in excruciating pain. For this reason several states have banned use of the second drug when euthanizing animals.

In an oft-cited concurring opinion in the 2008 decision, Justice John Paul Stevens wrote, “It is unseemly — to say the least — that Kentucky may well kill [inmates] using a drug that it would not permit to be used on their pets.”

Nevertheless, the Supreme Court — including Stevens — ruled that Kentucky’s protocol passed constitutional muster.

Among the issues raised in the Pennsylvania case is the source of drugs to be used in the execution.

Certain drug manufacturers have banned the use of their product in executions, and lawyers for the prisoners argue that if black market or diluted drugs are used, the procedure could be unconstitutional.

The Department of Corrections argues that revealing the source of the drugs could result in the source refusing to sell them the drugs.

Two federal judges have ruled that the source of the drugs is pertinent and ordered DOC to reveal the information, but in doing so, both judges recognized DOC’s concern and ordered the information to be kept confidential. DOC refused.

Last week, Secretary of Corrections John Wetzel, on the advice of lawyers from the Attorney General’s office, refused to divulge the source of the drugs desipte the federal court orders.

Today’s hearing now includes a request for sanctions against Wetzel and DOC for “clear, flagrant and deliberate” violation of federal court orders.

With the parties in the case still fighting over discovery, it’s possible there might be no final resolution soon.

Experts in death penalty law say execution stays could be likely as long as the case is open.

Marc Bookman of the Atlantic Center for Capital Representation said the judge in the Pennsylvania case — Yvette Kane — “is a thorough judge who wants to do it properly.”

He noted that, “Lethal injection litigation has stayed executions in other states.”

Michael’s death warrant is the only one signed by Gov. Tom Corbett that has not been stayed for some other reason.

If Kane grants a stay, and if Chester v Beard continues its path through federal court, it could render any future death warrants moot until the case is settled.

When asked about that, Janet Kelley in the governor’s press office said, “The governor took an oath to uphold the law, and the law in Pennsylvania includes signing execution warrants.”

California’s Death Penalty: All Cost and No Benefit by Danny Glover and Mike Farrell

November 4, 2012 http://www.huffingtonpost.com

While many important issues will be decided this Tuesday, one stands out for its national and historic importance: In California, the future of the death penalty hangs in the balance with Proposition 34. Also known as the SAFE California Act of 2012, Prop 34 will replace the death penalty with life in prison with no possibility of parole.

The fact is, California’s death penalty is all cost and no benefit. The latest Field Poll, out Friday, shows that more voters than ever before support replacing the death penalty, and that Prop 34 is leading in the polls. The Field Poll says 45 percent of likely California voters support Prop 34, while 38 percent oppose. Of those who have already voted, a full 48 percent said they voted yes, while 42 percent voted no.

A big reason for the spectacular surge in support is people’s awareness that the Golden State is flat broke. Voters now understand that the death penalty is far more expensive than life in prison with no chance of parole. They realize that California has sunk billions of dollars into a broken system — while most death row inmates die of old age.

The costs come from special housing, special lawyers and special trials imposed by the U.S. Supreme Court to lessen the risk of executing another innocent person. And those costs really add up. According to The Legislative Analyst’s Office, a nonpartisan government agency, Prop 34 will save the state $130 million every year. A comprehensive five-year study by Federal Judge Arthur Alarcón (who is pro-death penalty) and Loyola Law Professor Paula Mitchell (who is not) showed the state has spent $4 billion on the death penalty since 1978. They’ve just updated that report to show that California is on track to spend $5 to $7 billion, over and above the cost of a sentence of life in prison without parole, between now and 2050. Five to seven billion dollars!

It’s staggering to realize that with all those billions spent, California has executed only 13 inmates since 1978, at a cost of about $307 million per execution.

But money’s not everything. The fact is that the death penalty is not making us any safer. A shocking 46 percent of murders and 56 percent of reported rapes go unsolved in California every year. California Crime Victims for Alternatives to the Death Penalty released a report yesterdayshowing that underfunded, overburdened crime labs with long backlogs can’t process the evidence needed to solve crimes. Prop 34 would direct $100 million of the savings into local law enforcement programs and activities, like DNA testing, fingerprint analysis, and better funding of local crime labs, so we can find the criminals responsible and put them in jail. It’s no secret that the best way to prevent crime is to solve it.

California’s Prop 34 vote has all the markings of a historic shift away from the death penalty in the United States. Support for undoing this ineffective policy in the nation’s largest and most populous state is broad and deep, and includes some surprising voices. Supporters include the lead campaigner for the 1978 death penalty initiative, Ron Briggs, the author of that original law, Don Heller, former LA District Attorney Gil Garcetti and staunch conservative Bill O’Reilly. Jeanne Woodford, a life-long corrections professional who served as Warden of San Quentin and oversaw four executions is the official spokesperson for the initiative. The Sacramento Bee even reversed its 155-year support for the death penalty to endorse YES on 34, joining 47 major newspapers from across the state.

The vote in California will be felt far and wide. Our state has the dubious distinction of housing nearly one-quarter of the nation’s death row inmates and the most expensive death row in the nation. Tragically, California leads the nation in wrongful convictions at 123, according to theNational Registry of Exonerations. So if any state could make another fatal mistake, it’s this one. Passing Prop 34 will ensure that doesn’t happen.

What’s clear is that the death penalty is broken beyond repair, and it’s time to replace it with life in prison without the possibility of parole. We support Prop 34 — and we encourage California voters to get the facts and vote YES on 34 on Tuesday.

TEXAS – Death row inmates loses appeal – Jerry Duane Martin

NOVEMBER 2, 2012 http://itemonline.com

The Texas Court of Criminal Appeals has upheld the conviction of an inmate sentenced to death for the murder of a Texas Department of Criminal Justice employee during an attempted escape from a Huntsville prison in 2007.

A jury found Jerry Duane Martin, 42, guilty of capital murder in 2009 for the death of correctional officer Susan Canfield. Martin used a stolen truck to ram a horse Canfield was riding while trying to prevent him and John Ray Falk Jr. from escaping from the Wynne Unit on Sept. 24, 2007.
Canfield was thrown from the horse and died as a result of head injuries she sustained when she struck the windshield of the truck and fell to the ground.
Jury selection is under way in Bryan for Falk’s capital murder trial for his role in Canfield’s murder. He is also facing the death penalty. Attorneys for the state and defense are interviewing potential jurors. More than 200 Brazos County residents were summoned and the process is expected to take a couple of more weeks.
The Court of Appeals on Wednesday rejected Martin’s appeals, which contained 20 points of error during his trial three years ago. Among those, Martin’s attorneys alleged jury misconduct and that Martin should have been granted a new trial.
The defense argued Martin was denied an impartial jury because one juror withheld information that her family member worked for TDCJ when her husband had been a correctional officer for 18 months and had been stabbed by an inmate. The juror testified during a motion for a new trial that this did not influence her because it happened 17 years ago and her husband had said that he did not think the incident was a “big deal.”
Martin’s attorneys also noted that two other jurors were admitted to the jury who had ties to the Texas prison system. One had formerly worked at the Limestone County Detention Center and the other had been married to a man who was a correctional officer for 20 years.
The appeals court did not see any reason to overturn the trial court’s ruling and issued this opinion: “After reviewing appellant’s 20 points of error, we find them to be without merit. Consequently, we affirm the trial court’s judgment and sentence of death.”
Walker County grand jury indictments
A grand jury handed down the following indictments last week:
• Joe A. Thomas, illegal dumping commercial weight/barrel or drum.
• Juvenal Pimentel, possession of a controlled substance point grade one less than one gram.
• Willie Ray Shelton, possession of a controlled substance point grade two more than or equal to four grams but less than 400 grams.
• Christopher Tyrone Cooper, possession of a controlled substance point grade one less than one gram.
• Jerry W. Williams, driving while intoxicated third or more.
• Robert Cartwright, indecency with a child sexual contact.
• Angela Lee Morris, possession of a controlled substance point grade one more than or equal to one gram but less than four grams.
• Christopher Fazio, fraud possession of a controlled substance/prescription schedule I/II.
• David Karl Schneider, possession of a controlled substance point grade one less than one gram.
• Anthony Lamont Person Jr., possession of marijuana more than four ounces but less than five pounds.
• Kourtnae White, driving while intoxicated third or more.
• Jacqualine Christine Hardy, two counts of driving while intoxicated third or more.
• Shelton Bernard Hightower, possession of a controlled substance point grade one less than one gram.
• Leah Taylor Yeley, credit card or debit card abuse.
• Michael Quinn Sykes, credit card or debit card abuse.
• Robert Lee Austin III, credit card or debit card abuse.
• Kristin Winfrey, driving while intoxicated third or more.
• Christopher Damon Stuart, burglary of a building