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An L.A. court mistakenly destroyed evidence a death row inmate says would free him. Now what?

December 17, 2017

From his small cell on California’s death row, Scott Pinholster swore he could prove his innocence. The proof, he said, was in the dried blood on a work boot and a pink towel recovered from his home years ago.

The condemned inmate insisted that modern DNA testing — nonexistent when he was convicted of a double murder in 1984 — would show the blood belonged to him, not the victims, as the prosecution argued at his trial.

But a recent search for the items has led to a disturbing discovery that could throw the case into jeopardy: The Los Angeles County courts mistakenly destroyed the evidence.

A judge must now determine what, if anything, should be done to remedy the high-stakes error.

Pinholster’s attorney has asked for a hearing on how the destruction happened and says he will eventually ask for a new trial. Prosecutors, however, argue that a killer’s life shouldn’t be spared simply because of an innocent mistake by court staff.

One of the jurors who voted to send Pinholster to death row more than three decades ago was shocked to hear that the man convicted of fatally stabbing and beating two men might get a second chance.

“Oh my God!” said the juror, who spoke on condition of anonymity, when recently contacted by The Times. “He’s liable to get off then?”

Pinholster is one of 744 people awaiting execution in California — the largest death row population in the country. Although the state hasn’t put anyone to death since 2006, that could soon change, as voters passed a measure last year to speed up the process. Of the state’s condemned inmates, about 20 have exhausted their appeals, putting them at the front of the line. Among them is Pinholster.

California law requires that courts keep evidence until after a death row inmate is executed or dies behind bars — a safeguard put in place to preserve evidence for future testing. Mary Hearn, a spokeswoman for the Los Angeles Superior Court, said the court’s procedure for destroying evidence, which was updated last year, now requires that staff first contact California’s Supreme Court to confirm a death row inmate has died. The court, Hearn said, began a review of its procedure before learning of Pinholster’s case.

Hearn said Pinholster, 58, is the only known example of evidence destruction in a case of a living death row inmate convicted in L.A. County. But a small number of cases around the country have raised similar legal problems.

On the eve of an execution in 2005, Virginia’s governor reduced a condemned death row inmate’s sentence to life in prison without the possibility of parole after learning that a court clerk had destroyed evidence in his murder case despite being warned by subordinates not to do so. Two years later, a man on death row in Oklahoma was released from prison after a judge ruled that a police lab analyst had intentionally destroyed hair evidence that could have pointed to the inmate’s innocence.

Elisabeth Semel, a UC Berkeley law professor who directs the school’s clinic that defends condemned inmates facing execution, said destruction of physical evidence cripples the ability to examine an inmate’s innocence claim.

“If the very evidence you need is gone … how do you make justice happen for these individuals?” she said, describing the scenario as “terribly, terribly devastating.”

The importance of such tests was highlighted last month when Gov. Jerry Brown pardoned a prisoner who spent 39 years behind bars for the 1978 killing of a young woman and her 4-year-old son in Simi Valley. After the prisoner, Craig Coley, exhausted his appeals years ago, a judge authorized the destruction of the crime-scene evidence. But a cold-case detective recently found the evidence and when tested, it helped clear Coley of the murders.

For Pinholster, prosecutors point to a 1988 U.S. Supreme Court decision that makes it difficult for prisoners to reverse convictions or reduce sentences unless they can show that evidence was destroyed in “bad faith.” In Pinholster’s case, prosecutors argue, the destruction was the result of “at most negligence, incompetency, recklessness,” but not “bad faith.”

At his trial, a prosecutor argued that the blood on the boot and towel found in the defendant’s Van Nuys apartment belonged to at least one of the two victims — Thomas Johnson, 25, and Robert Beckett, 29. The men were stabbed and beaten to death at the Tarzana home of a marijuana dealer on Jan. 9, 1982.

The state’s key witness, Art Corona, told police that he, Pinholster and a third man, Paul Brown, were all armed with buck knives when they barreled into the home looking to steal drugs and cash. Minutes later, Corona said, the two victims showed up. Pinholster attacked the men with a knife, his fists and his feet, Corona said, adding that Brown also stabbed one of the men.

Their loot: $23 and a quarter-ounce of pot.

Pinholster said he had stolen drugs from the home a few hours before the killings but never harmed anyone. When he took the stand, he seemed to revel in his criminal record. Asked for his occupation, he smirked and responded, “a crook,” according to court documents. He also boasted to jurors of having committed hundreds of robberies, but insisted he’d always carried guns, not knives.

A Sheriff’s Department criminalist told jurors that he’d tested the right work boot and towel collected from Pinholster’s home and found they came back positive for human blood, but technology at the time couldn’t narrow down whose blood it was. The prosecutor suggested that Pinholster had stepped in a pool of blood at the Tarzana home and used the towel to wipe off the murder weapon.

Neither Pinholster nor his attorney argued at trial that the blood was from him — an omission the district attorney’s office said undercuts his current claim. His new attorney said Pinholster was never asked during the trial who the blood belonged to.

Contacted recently, another juror who asked to be identified only as a 76-year-old woman said she was confident in the verdict.

“He was absolutely guilty,” she said. “No question.”

Even after three decades, she said, she can conjure a haunting memory of an image painted at trial by the prosecutor — Pinholster, wearing boots, kicking in the skull of one of the victims.

After his conviction, state courts rejected appeals from Pinholster, but a federal judge overturned the death sentence in 2003, ruling that his trial counsel had failed to tell jurors about the extent of Pinholster’s mental health problems. In 2011, however, the U.S. Supreme Court restored Pinholster’s death sentence.

“He’s been very discouraged,” said Sean Kennedy, Pinholster’s current lawyer.

But months after having his death penalty restored, the inmate got good news. A judge had finally approved his request to have DNA testing done on the towel and boot. Pinholster contends that the bloodstains came from his repeated intravenous use of heroin.

A Los Angeles police officer was assigned to scour an LAPD storage room for the items in case the court had returned them after the trial. The search came up empty, so officers checked inside another police storage facility. Still nothing. As the hunt stretched into a fourth year, Kennedy grew suspicious. Finally, a prosecutor stepped in to help speed up the process.

“And that,” Kennedy said, with a shake of his head, “is when they finally fessed up.”

Court documents from January 1998 show that People vs. Pinholster was mistakenly listed among more than a dozen cases deemed eligible for evidence destruction. The trial exhibits, records show, were destroyed that summer. Two top Los Angeles County Superior Court officials signed the destruction order — Judge John Reid and Ty Colgrove, an administrator who helped run the court’s criminal operations. Both men have since retired.

Reached for comment, Colgrove said he didn’t recall the case, as he’d signed hundreds of destruction orders over the years, but added that he relied on lower-level employees to properly sort through the cases.

Hearn, the court spokeswoman, said Reid could not comment, as he still sometimes fills in on the bench. In a recently signed declaration, Reid wrote that if he’d known the evidence from a capital case was going to be destroyed, he “would not have signed the order.”

Kennedy, an associate clinical professor at Loyola Law School whose work on Pinholster’s case carried over from his days as the federal public defender for the Central District of California, bristled at the rationale.

“It’s almost like the judiciary is facilitating wrongful executions,” he said.

Life on death row has worn on Pinholster. Last year, as California voters weighed two options — speeding up executions or banning the death penalty — Pinholster was quoted in a Times article, expressing apathy.

“After 30 years,” he said, “you don’t care one way or the other.”

But there’s still some hope for his exoneration, Kennedy said, pointing to trial exhibit 29 — a pair of bloodstained jeans also recovered from Pinholster’s home years ago. While court employees have said they presume the jeans are lost or destroyed, they haven’t found any documents showing they were, in fact, discarded.

Kennedy has asked for a special hearing so he can question the court officials who approved the destruction. A judge is expected to rule on that request early next year.

For Michael Kumar, the former marijuana dealer who lived at the home where the killings took place, the mention of Pinholster brings a rush of memories. Although he’d been out of town the weekend of the murders, the pain is still raw over the loss of Johnson, his best friend — a gentle giant who loved to play classical piano. When asked about the possibility of a new trial, Kumar sighed.

“It’s preposterous to me…. It’s completely a joke if this guy says he’s innocent,” said Kumar, 58, who now sells parts for and restores classic cars. “I’m not going to say he doesn’t have the right, because I’m not sure what the technicalities are, but it’s just that — a technicality.”

 

Ex-death row inmate re-sentenced to life in prison

December 18, 2017

ST. LOUIS — A longtime Missouri death row inmate whose conviction in the 1991 rape and killing of two sisters was overturned has pleaded guilty to murdering them and been re-sentenced to life behind bars.

Reginald Clemons, who spent 22 years on death row, pleaded guilty Monday to two counts of second-degree murder and other crimes. His plea agreement calls for him to serve five consecutive life sentences.

The Missouri Supreme Court in 2015 dismissed Clemons’ conviction after finding that prosecutors suppressed evidence that police had beaten a confession out of him.

Clemons was among four men convicted in the deaths of 20-year-old Julie Kerry and her 19-year-old sister, Robin. Authorities say the sisters were raped and shoved off the old Chain of Rocks Bridge in St. Louis.

Mississippi Man Back on Death Row, Mental Evaluation Ordered

JACKSON, Miss. — The Mississippi Supreme Court on Thursday reinstated the death sentence of an inmate convicted of killing a prison guard.

Justices also ordered a state circuit court judge to hold another hearing on the mental capacity of Willie C. Russell , who came within hours of being executed more than two decades ago.

Russell, now 57, was convicted in the 1989 killing of Argentra Cotton, a guard at the Mississippi State Penitentiary at Parchman, where Russell was imprisoned for armed robbery, escape and kidnapping convictions in Hinds County.

A federal appeals court blocked the execution in January 1997 after Russell claimed he didn’t have a lawyer to appeal his death sentence. Russell later claimed he was intellectually disabled and could not be executed.

Sunflower County Circuit Judge Betty W. Sanders agreed and overturned the death sentence, and Russell remained in prison. On Thursday, justices said Sanders should have heard more testimony.

A majority of justices wrote that Russell underwent psychological testing in 2006 in an aggravated assault case, but he never underwent an assessment of intellectual disability.

In 2014, Sanders denied the state’s request for Russell to be evaluated for intellectual disability, saying the previous testing was sufficient. Five of the nine justices said Thursday that the judge conducted a “one-sided” hearing about Russell’s mental capacity before she overturned his death sentence.

However, four justices wrote a dissent, saying Russell had undergone enough psychological testing in 2006, and results of those tests could be used to determine whether he has an intellectual disability.

The U.S. Supreme Court ruled in 2002 that it is unconstitutional to execute a person who has intellectual disabilities.

Sanders is retired from the bench. A majority of justices said Thursday that an expert chosen by the state must be allowed to evaluate Russell before a circuit judge holds new hearing about his mental capacity.

 

Officials urging mercy for death row inmate convicted under ‘law of parties’ now include prosecutor

December 14.2017

There is no dispute over whether Jeffery Lee Wood ever killed anyone.

He did not. He didn’t pull a trigger, didn’t wield a knife, didn’t take any direct action that caused another person’s death.

But twice now, Wood, 44, has come within only a few days of being executed by the state of Texas. He was convicted under Texas’ felony murder statute, informally called the “law of parties,” after he waited outside in a truck while an accomplice robbed a Kerrville convenience store in 1996 — and ended up killing a clerk named Kriss Keeran.

A growing bipartisan chorus agrees that, while Wood was complicit in a crime, he does not belong on death row.

One of those voices belongs to the prosecutor who put him there. Last week, The Texas Tribune reported that Kerr County District Attorney Lucy Wilkehas joined a long list of Texas officials who want to see Wood’s death sentence reduced to life in prison.

In a letter co-signed by the Kerrville police chief and the district judge overseeing Wood’s appeal, Wilke — a young, relatively inexperienced prosecutor at the time of Wood’s 1998 trial — says life imprisonment is the appropriate punishment in this case.

Wilke’s change of heart is not based solely on misgivings over the law of parties used in Texas murder trials. She has also expressed concern over testimony supplied by forensic psychiatrist James Grigson — “Dr. Death” — whose methods and credentials were later called into question.

But her letter urging the Texas Board of Pardons and Paroles to recommend that Gov. Greg Abbott reduce Wood’s sentence to life in prison specifies that “the offender was not actually the person who shot the victim” as a factor in her request.Wilke’s letter reflects a fair and candid evolution of thought about appropriate use of the death penalty in Texas, an evolution she shares with many others.

Honest disagreement remains over capital punishment in this state. This editorial board has urged its discontinuance; many others believe just as strongly that it should be preserved.

But all thoughtful people can agree that the death penalty, if used, should be applied carefully, sparingly, and reserved for the “worst of the worst” offenders — a standard that Wood, while culpable, does not meet.

“At the time of the jury trial in this case, I was a newly licensed attorney with 13 months of experience … the decision to seek the death penalty was mine,” Wilke wrote. “Again, I now respectfully request that this offender’s death sentence be commuted to a capital murder life sentence.”

Unfortunately, in spite of strong bipartisan efforts, state lawmakers passedon an opportunity to reform the Texas statute regarding the law of parties’ use in capital cases during their most recent session. It’s an issue that must be revisited.

In the meantime, a growing number of voices that bridge the political spectrum is calling on Abbott to intervene in this case.

Abbott, sensitive to protecting his red-state bona fides, has not reduced a capital sentence to life since he took office in 2015. But the case of Jeff Wood would be a sensible and honorable place to start.

Texas leads the nation in executions, but its death row population is dropping

December 14, 2017

The number of inmates on Texas’ death row dropped again this year, continuing a decades-long trend.

The decline is caused largely by fewer new death sentences and more reduced punishments in recent years, according to end-of-year reports released Thursday by groups critical of the death penalty in Texas and across the country. But Texas still held more executions than any other state.

“Prosecutors, juries, judges, and the public are subjecting our state’s death penalty practices to unprecedented scrutiny,” said Kristin Houlé, executive director of the Texas Coalition to Abolish the Death Penalty, in the release of the group’s annual report. “In an increasing number of cases, they are accepting alternatives to this flawed and irreversible punishment.”

Kent Scheidegger, legal director of the Criminal Justice Legal Foundation, which has supported death penalty practices in legal cases throughout the country, said he agrees that the decline is partially due to shifting attitudes among jurors and prosecutors, but added that death sentences are also down because there has been a drop in the murder rate nationwide.

“The support for the death penalty for the worst crimes remains strong,” he said.

There are currently 234 inmates living with death sentences in Texas, according to the state’s prison system. That number has been dropping since 2003. The death row population peaked at 460 in 1999, according to the Bureau of Justice Statistics.

Here’s how the death row population has changed over the last year:

Seven men were executed.

The same number of men were put to death this year as in 2016, which had the fewest executions in two decades. But even with its relatively low number, Texas was still the state with the most executions in the country. This isn’t unusual given that the state has put to death nearly five times more individuals than any other state since the death penalty was reinstated in 1976, according to the Death Penalty Information Center.

Texas accounted for 30 percent of the nation’s 23 executions in 2017. Arkansas was second in the country with four. Last year, Georgia put more people to death than Texas — the first time Texas hasn’t been responsible for the most executions since 2001.

Four more men got cells on death row.

One more person was sentenced to death this year than in 2015 and 2016, when only three men were handed the death penalty in each of those years.

The number of new sentences, which ranged in the 20s and 30s each year in the early 2000s, dropped in 2005 after jurors were given the option to sentence convicts to life without the possibility of parole as an alternative to the death penalty. Before then, if a capital murder convict wasn’t sentenced to death, he or she would be eligible for parole after 40 years. About 10 people in Texas were sentenced each year after that until the additional decrease in 2015.

Two men died while awaiting execution.

Joseph Lave and Raymond Martinez both died this year before they were taken to the death chamber, even though they had had extended stays in prison. Lave passed away more than 22 years after his murder conviction, and Martinez had lived more than 30 years with a death sentence.

Four men had their sentences changed from death to life in prison.

Two U.S. Supreme Court decisions this year have so far resulted in the reduction of three death sentences to life in prison. The high court ruled against Texas in the death penalty cases of Duane Buck and Bobby Moore.

Buck reached a plea agreement with Harris County prosecutors to change his death sentence to life in October after a February ruling by the court said his case was prejudiced by an expert trial witness who claimed Buck was more likely to be a future danger because he is black.

In Moore’s case, the justices invalidated Texas’ method for determining if a death-sentenced inmate was intellectually disabled and therefore ineligible for execution. Though Moore’s case has yet to be resolved (Harris County has asked the Texas Court of Criminal Appeals to reduce his sentence to life), two other men on death row with intellectual disability claims received life sentences after the ruling.

Another man this April received a new punishment hearing in a 1991 murder and pled guilty, landing four consecutive life sentences over the death penalty, according to the Texas death penalty report.

Nine men narrowly escaped execution — for now.

Executions were scheduled — then canceled — for nine men this year. Six were stopped by the Texas Court of Criminal Appeals in light of pending appeals, and one was stopped by a federal court, the report said.

One man, Larry Swearingen, evaded execution in November because of a clerical error, and convicted serial killer Anthony Shore’s death was postponed because prosecutors were concerned he would confess to the murder for which Swearingen was convicted.

 

Former Death Row Inmate in Arkansas Released on Parole

December 14, 2017

An Arkansas inmate who spent more than 14 years on death row has been released on parole.

Tim Howard was originally sentenced to death for the 1997 slayings of a south Arkansas couple. But his conviction was overturned in 2013 and at a new trial, he was convicted of second-degree murder and sentenced to 38 years in prison. Howard has maintained his innocence.

The state Parole Board approved Howard’s parole last month, and Arkansas Community Correction spokeswoman Dina Tyler says Howard was released Wednesday. Tyler tells the Arkansas Democrat-Gazette that Howard’s parole will require employment, periodic drug testing, obeying a curfew and having no contact with the victims’ family.

Tyler says those terms are standard given Howard’s conviction and number of years served.

Mentor-on-the-Lake death penalty case: New trial confirmed by Ohio Supreme Court

December 13, 2017

Joseph Thomas

It’s official.

The former Perry Township man who was sentenced to death row for a Mentor woman’s rape and murder will get a new trial.

The Ohio Supreme Court has refused to reconsider its previous decision that reversed Joseph Thomas’ convictions.

Thomas was found guilty in 2012 for the death of Annie McSween.

The 49-year-old victim’s body was found on Nov. 26, 2010, in a wooded area outside of Mario’s Lakeway Lounge in Mentor-on- the-Lake, where she worked as a bartender.

Lake County Prosecutor Charles Coulson said he is disappointed the high court did not grant his request to reconsider the case.

“In my opinion, the court’s reasoning for reversal was both factually and legally flawed as pointed out in our motion for reconsideration,” Coulson said. “Now we will have to retry the case.”

A new trial date before Lake County Common Pleas Judge Richard L. Collins Jr. had not yet been scheduled.

Thomas will remain in prison until trial, the prosecutor said.

After Thomas was convicted, Collins chose to adopt the jury’s recommendation of death rather than downgrade the sentence to life in prison. In a 4-3 vote in October, the Supreme Court overturned the death sentence and ordered a new trial be scheduled for Thomas.

The Lake County Prosecutor’s Office then filed a motion for reconsideration, arguing that the high court’s majority neglected to fully analyze the issues, confused legal standards and failed to use its own law, instead “cherry-picking cases from outside Ohio” to make its decision.

McSween was strangled and stabbed multiple times in the neck and back on Black Friday. The power lines to the bar had been cut, and McSween and two other women had their tires slashed.

Thomas has maintained his innocence and claimed he had no motivation to commit the crime.

Although Thomas had frequently been seen carrying a blue pocketknife before that night, it was not recovered during the criminal investigation. At trial, prosecutors introduced five other knives Thomas owned, describing them as “full Rambo combat knives.”

Justice Terrence O’Donnell wrote the court’s lead opinion, which determined the trial court committed plain error by admitting those five knives that prosecutors knew were not used in the crime into evidence. The majority found a reasonable probability that the error affected the outcome of the trial, and that reversal was necessary to prevent a manifest miscarriage of justice.

“The state claims that the Court has ignored Ohio cases on this evidentiary issue, in favor of cases from other jurisdictions. That is a false and unfair accusation,” Thomas’ appellate lawyer Timothy F. Sweeney argued.

The three dissenting justices found the prosecution presented substantial evidence to support the jury’s verdict independent of the admitted knife evidence.

What Do the Last Words of Death Row Inmates Tell Us?

December 12, 2017

Any last words?

It’s a question prisoners on death row hear before their execution begins. Along with last meals and long cell block walks, the opportunity to give a final statement has become deeply ingrained in the highly ritualized process of executing prisoners.

Most prisoners take the opportunity to pause on the lip of annihilation and utter a final statement, and the content of these messages range from expressions of guilt and sorrow to expletive-laced outbursts. Examining the final thoughts of people who have not only had time to think about their ultimate end, but who must also wrestle with overwhelming feelings of guilt and sorrow (though not in every case), provides a unique opportunity for sociologists and psychologists alike.

It’s Time

There is a growing body of scientific literature centered around the study and analysis of prisoners’ last words, although the subject is far from closed. At the moment, most studies work to identify recurring themes, though work in the future could go beyond this to search for correlations between last words and type of crime, prisoner demographics, personal history and mental health. At the moment, we can break down the final statements of death row inmates into a few broad categories: expressions of guilt and remorse, proclamations of innocence, spiritual statements and communications to their families. Journalist Dan Malone undertook such a content analysis in 2006, and found a few broad categories into which most final statements fall.

For many prisoners, the act seems to be an attempt to reach some sort of peace with their situation. Statements like “I’m ready” and those that express hope for some sort of afterlife are common. Some choose to address their victim’s families directly, and nearly every one that does so expresses remorse for their actions. Many acknowledge that they can never make up for what they did. Most inmates stop short of admitting guilt — instead of focusing on the past, they look to the future.

More rarely, the soon-to-be executed will directly own up to their crimes, most usually along with an expression of sorrow or an apology. In rare cases, the prisoner will choose to go down swinging, lashing out with angry and defiant words in their final minutes.

Still, these cases are rare, and it seems that the finality of death impresses a measure of humility and grace on most people. Most common overall are words of regret and personal statements, usually concerning their family, such as “I love you,” or references to being in a better place. It’s an oddly one-sided view of men who have been convicted of horrible crimes.

What Does It Mean?

Of course, it can be difficult to trust the words of someone who won’t be around to face the consequences of their actions any more. On the other hand, a dying man has very little left to lose, and few among us want to die with regrets. Further work is needed to truly parse out exactly why prisoners choose to say the things they do. As of right now, we have a few hints, though.

Many final statements seemed aimed at lessening psychological pain, something that a 2017 study identified as one of three main themes among prisoners’ last words. Identification with lost or forgotten ideals and rejection and aggression were the other dominant subjects that emerged in their analysis, which aligns roughly with what Malone found in his work.

This makes sense, since both studies used very similar datasets. Because of the nature of the death penalty in the United States, the statements come largely from Texas, which has been responsible for about a third of all executions since the death penalty was re-instated in 1976. While no recording devices are permitted in the execution chamber, a secretary is on hand to transcribe the prisoner’s final words, and, at least up till 2005, when Malone’s study ended, the Associated Press had a reporter on hand to chronicle the event as well.

This means that the final words of Texas death row inmates carry outsized influence in these kinds of studies. Most death row inmates are also men, another limitation. To truly understand the impact that final statements have, and what they say about our relationship with death, a more diverse sample size is necessary. These studies are a start, of course, but looking at how final statements differ across countries, by type of crime, and by demographic could prove illuminating. In addition, the prevalence of mental illness among death row inmates could impact the way they frame their crime, and their lives, just before execution.The last words we say before death are not usually uttered casually. This doesn’t mean they necessarily offer a glimpse of who we truly are, but instead a premonition of who we wish we were, or hope to be someday. It’s a rarified moment in a human being’s life; one that could help us all come to terms with our impending doom.

Military Court Dismisses Appeal Of Serial Killer On Death Row

December 12, 2017

Ronald A. Gray has lost another court battle aimed at stopping his execution.

A military appeals court dismissed Gray’s request for extraordinary relief last month.

Gray, a convicted serial killer whose crimes were committed in Fayetteville and on Fort Bragg, had asked the court to review his case as he sought to have his convictions and death sentence vacated.

The Nov. 13 opinion of the U.S. Court of Appeals for the Armed Forces was the latest in a nearly 30-year legal battle over Gray’s case.

On Monday, an Army spokeswoman was not immediately able to comment on whether there are any other pending legal proceedings in the case. The spokeswoman also could not comment on whether an execution date has been scheduled or will be scheduled.

Gray is the longest-serving inmate on the military’s death row and is the only current prisoner whose execution has been approved by a president — a requirement before the military can carry out a death sentence.

President George W. Bush approved Gray’s execution in 2008, but a federal court issued a stay of execution to allow Gray to make an appeal.

Late last year, a federal judge removed that stay, potentially clearing the way for the Army to schedule Gray’s death.

The military appeals court, which has heard numerous appeals as part of the Gray case, ruled last month that it did not have the jurisdiction to provide the relief Gray sought in the form of a writ of error coram nobis, a legal order that allows a court to correct a judgment based on the discovery of a fundamental error, which did not appear in the records of the original trial.

Gray’s legal team has argued he was tried while incompetent to stand trial; that he was denied due process when military authorities failed to disclose evidence about his competency during appeal; that his appellate counsel rendered ineffective assistance; that his sentence was the result of racial discrimination; and that the military death penalty violates evolving standards of decency under the Eighth Amendment.

The latest opinion stated that if the court did have jurisdiction, Gray failed to prove those claims and show he is entitled to extraordinary relief.

The court wrote that Gray’s case is final, after years of legal wrangling.

“Appellant has exhausted all of his remedies in the military justice system,” according to the opinion.

Gray has had numerous appeals to the U.S. Court of Appeals for the Armed Forces, the Army Court of Criminal Appeals and various civilian federal courts.

A former resident of Fairlane Acres near Bonnie Doone in Fayetteville, Gray was an Army cook before he was convicted of a series of rapes and murders in Fayetteville and Fort Bragg. His crimes were committed in 1986 and 1987 on Fort Bragg and near Fairlane Acres Mobile Home Park off Santa Fe Drive.

Gray killed cab driver Kimberly Ann Ruggles, Army Pvt. Laura Lee Vickery-Clay, Campbell University student Linda Jean Coats and Fairlane Acres resident and soldier’s wife Tammy Wilson, and raped several other women.

A former Army private, Gray was convicted during two trials. A Fort Bragg court sentenced him to death in 1988, after convicting him of the rape and murder of two women and the rape and attempted murder of a third woman, among other offenses.

A civilian court in 1987 sentenced him to eight life sentences, including three to be served consecutively, after convictions on charges of two counts of second-degree murder, five counts of rape and a number of other offenses all related to different victims.

Gray has been confined at the U.S. Army Disciplinary Barracks at Fort Leavenworth, Kansas, since he was sentenced to death.

If he is executed, it would be the first death sentence carried out by the U.S. military since 1961. An execution would likely take place at the United States Penitentiary in Terre Haute, Indiana — the same facility where, in 2001, terrorist Timothy McVeigh was executed for the bombing of a federal building in Oklahoma City in 1995.

Man convicted 3rd time of killing neighbor sentenced to death

December 11, 2017

JACKSONVILLE, Fla. – For the third time since a woman was brutally killed nine years, a Duval County judge has sentenced Randal Deviney to be put to death for the murder.

In August 2008, when Deviney was 18 years old, he slit the throat of Delores Futrell and beat her during an attempted burglary. He then moved her body and staged the scene to make it appear that she had been sexually assaulted.

 

In October, after two days of testimony from detectives, forensic scientists, family members and psychologists, a jury unanimously recommended he be given the death penalty. On Monday, Judge Mark Borello formally sentenced Deviney to be returned to death row.

On Monday, Judge Mark Borello said that the crime, cruelty of the crime and age of the victim were all factors that led him to give Deviney to the death penalty.

“We’re glad it’s finally over (and) he got the sentencing he deserved,” Futrell’s granddaughter Raqia Blades said after the October hearing. “I’m glad we don’t have to keep replaying the memories of what happened and keep asking the question, ‘Why?'”

It was the third jury that has been asked to sentence Deviney to death for the crime. The first conviction was overturned on appeal and his second sentence was thrown out when the Florida Supreme Court ruled that death penalties are only constitutional if there is a unanimous jury recommendation.

Futrell, a dialysis technician and mother of four, was described in court this week as loving life and having a thirst for knowledge.

“A person like my mom should have died a peaceful death,” said Jacquelynn Blades, Futrell’s oldest daughter.

During the sentencing hearing, the defense presented 37 mitigating factors to try and convince the jury to spare Deviney from the death penalty. It called Deviney’s father and a forensic psychologist to testify an abusive childhood.

Despite Deviney mental, sexual and physical abuse as a child, Borello said Deviney still had a loving family and that abusive history did not excuse Deviney’s actions.

The crime

According to court documents, an officer responding to a 911 call from Futrell’s townhome found her in a “sexual position.” Deviney later told a psychologist that he placed her that way to make it look like someone else killed her. Investigators found no physical evidence that Futrell had actually been raped, court records show.

READ: Details of murder from court documents (Warning: graphic content)

According to detectives investigating the murder scene, evidence showed that Deviney cut Futrell’s throat near a Koi pond in the backyard before dragging her inside the home and trying to cover up the murder by making it appear to have been a sexual assault.

The autopsy showed that Futrell had struggled with her attacker before her throat was cut and that the wound sliced her larynx, preventing her from breathing. She bled to death, according to court records. The Medical Examiner also found evidence that Futrell’s killer had tried to strangle her either after she was dead or while she was still dying from her neck wound.

DNA found under Futrell’s fingernails was matched to Deviney by analysts from the Florida Department of Law Enforcement.

Deviney claimed he just snapped while talking with Futrell one day, but prosecutors argued that the murder was premeditated because Deviney wanted to steal from Futrell.

Court history

Deviney was first convicted of killing Futrell in 2010. The conviction and death sentence were overturned after it was found that detectives had coerced a confession out of Deviney without reading him his Miranda rights.

In July 2015, Deviney was found guilty again, and a jury recommended he be sent back to Death Row with an 8-4 vote.

The state Supreme Court upheld that second conviction, but later ruled the death penalty unconstitutional unless there is a unanimous jury recommendation.

Deviney’s case is one of seven Duval County death sentences overturned this year by the Florida Supreme Court.

Over the years, Deviney’s behavior behind bars came under scrutiny. Before the start of his second trial, Deviney publicly made claims that Donald Smith, the man charged with murdering 8-year-old Cherish Perrywinkle, had told him about another murder he committed years before. He even attempted to use that information as leverage for a shorter prison sentence. The State Attorney’s Office said Deviney’s claims were not credible.