Inmates on the death row

For first time in more than 30 years, no Harris County death row inmates executed

December 6, 2017

For the first time since 1985, no Harris County killers will be executed by the state of Texas this year, a landmark shift for a county once known as the “capital of capital punishment.”

Despite a slight uptick in executions nationwide, Harris County’s one execution this year was cancelled after a desperate death row plot led to a last-minute stay for serial killer Anthony Shore in October. Two U.S. Supreme Court rulings spared two other inmates.

“This has been an important year in terms of death penalty litigation,” said District Attorney Kim Ogg. “I view it as a positive thing. I don’t think that being the death penalty capital of America is a selling point for Harris County.”

Nationwide, executions reached a high water mark in 1999, and Texas executions topped out at 40 the next year. But it’s Harris County courts that have kept the death chamber busiest, with 126 executions since the state resumed capital punishment in 1982.

“Harris County has always symbolized America’s death penalty because it has executed more people than any other county and — apart from the rest of Texas — more than any other state,” said Robert Dunham of the Death Penalty Information Center. “It is both symbolic and emblematic of the change in capital punishment in the United States. For the first time in a generation, the nation’s largest executioner has executed no one.”

STUDY: Conservatives’ distaste for death penalty sends support to 45-year low

In part, that’s due to the long-range impact of the Lone Star State’s introduction of life without parole as a sentencing option starting in 2005. Before that, jurors on capital murder cases had to pick between death and the possibility of eventual release.

But it’s also due to the more immediate impacts of court actions this year. In October, death row inmate Duane Buck was given a life sentence after the Supreme Court granted him a new hearing in light of testimony from an expert who told the jury that Buck was more likely to be a future danger because he is black.

Then in November, Harris County prosecutors asked for a life sentence for Bobby Moore, months after the Supreme Court determined that Texas did not properly consider whether he was too intellectually disabled to face execution.

Falling murder rates and changing political tides have also contributed to the decline in capital punishment.

“Perhaps the most important change is that the public is substantially less supportive of the death penalty than it has been at any time since 1972,” Dunham said, citing a recent Gallup poll. The research group’s October findings showed that 55 percent of U.S. adults support capital punishment for convicted murderers, a low not seen since March 1972.

Outspoken death penalty supporter Dudley Sharp blamed the drop on the length of time between sentencing and execution.

“At this point it’s more than doubled since the 1980s, which would dramatically lower the execution rate,” Sharp said.

Even without Harris County, Texas regained its spot this year as the busiest death chamber in the nation with seven executions. Nationwide, 23 prisoners were put to death — three more than the year before — amid an otherwise downward trend.

MOORE: Prosecutors ask for life sentence for Texas death row inmate Bobby Moore

A generation ago, it was a different story.

A year before Karla Faye Tucker’s execution grabbed national headlines amid the tough-on-crime efforts of the 1990s, Harris County saw 11 killers in 1997 executed. Tucker, the first woman executed in Texas since the 1800s, was convicted of a brutal pickaxe slaying; she blamed the killing on drugs.

The next execution in Texas is Jan. 18, when “Tourniquet Killer” Anthony Shore is slated to die by lethal injection.

Shore’s execution on Oct. 18 was halted at the last minute after he told investigators of an abandoned confession plot with fellow death row inmate Larry Swearingen, a Montgomery County killer whose execution was also delayed.

A handful of other Harris County killers who are nearing the end of their appeals process could potentially net 2018 execution dates, including Carlos Ayestas, a Honduran man convicted in a 1995 slaying. The court heard oral arguments in the case in October and is expected to offer a decision next year.

No new death sentences, however, were imposed in Harris County this year — Ogg’s first to helm the district attorney’s office.

“I think it reflects both the new administration and the new skepticism about the death penalty and life without parole all combined with a dash of Harvey,” said local defense attorney Pat McCann. “And then of course there’s the simply bizarre continuing tale of Mr. Shore and Mr. Swearingen and the frankly inexplicable turn of events there.”

Next year could be different, however.

“When you have an historic low one year it’s not surprising to see the numbers rise slightly the following year,” Dunham said.

Death row exoneree Anthony Graves lauded local prosecutors for their role in the shifting tides.

“Kudos to the administration for being out front on criminal justice reform,” he said. “Because this is what it is, this is what it looks like.”

Attorneys seek to ensure Scott Dozier won’t be executed until 2018

December 5, 2017

A judge in Las Vegas kept a condemned prison inmate’s execution on hold Tuesday over concerns about a never-before-tried three-drug combination planned for use during Nevada‘s first execution in more than 11 years.

Clark County District Court Judge Jennifer Togliatti also said Tuesday that she wants to see written filings before she decides several other key issues.

With the Nevada Supreme Court expected to review the case and decide if Scott Raymond Dozier’s execution should go forward, Togliatti took no immediate action on a request by state and local prosecutors to reverse her Nov. 14 order halting the execution, which had been planned the same day.

State attorney general’s office lawyers say they’re drafting an appeal to the state high court of Togliatti’s order that the state Department of Corrections must remove a disputed paralytic, cisatracurium, as the third drug in a protocol using high doses of the sedative diazepam and the potent opioid fentanyl.

“You could have proceeded. He could be dead today,” the judge told attorney general solicitor Jordan Smith on Wednesday, noting that he said the state would appeal instead.

The judge added that she felt Supreme Court review of the three-drug cocktail will be important if the state wants to use it in future executions.

Togliatti canceled a Dec. 7 hearing, and made it clear that Dozier will have to wait at least several months for the execution he has said repeatedly he wants carried out.

She set a Jan. 17 hearing on a bid from the attorney general and Clark County district attorney’s offices to proceed using just diazepam and fentanyl. A medical expert witness called by federal public defenders challenging the case said those two drugs should be enough to kill the inmate.

She also is being asked to decide if federal public defenders should continue to represent Dozier in a review of the state’s proposed execution protocol.

Dozier, appearing by videoconference from Ely State Prison, did not say he wanted attorneys David Anthony and Lori Teicher to stop representing him.

Togliatti barely contained exasperation over what she termed “manipulation of the court process,” and asked the inmate if a flurry of filings in recent days meant he was asking for a “do-over” of the lengthy proceedings that began in July and required almost daily action in the run-up to the scheduled execution date.

Dozier called the months of hearings that made his case a topic of national interest “vital,” noted that they led to revisions of the protocol, and said he feels now “like I had to take a less-than-ideal option because that was the only option available.”

Dozier, 47, has been on death row since 2007 for convictions in separate murders in Phoenix and Las Vegas.

Jonathan VanBoskerck, a chief Clark County district attorney, has said that local prosecutors have an interest in seeing the penalty that Togliatti imposed 10 years ago carried out. He said Tuesday that other arguments are irrelevant since Dozier is not challenging his sentence or the process.

“The bottom line is it’s his choice,” VanBoskerck told the judge.

 

RELATED | Condemned inmate Scott Dozier complains of death penalty delay

 

Shreveport man freed from death row files suit in hopes ‘injustice never happens again’

December 5, 2017

SHREVEPORT — The lawsuit filed by former death row inmate Rodricus Crawford is about more than justice for Crawford; it’s about getting Caddo Parish officials to change their death-penalty-dealing ways, one of the now-freed man’s attorneys said during a recent interview.

“Rodricus seeks justice not only for himself and for all that he lost, but also for people who might – God forbid – face similar circumstances,” Crawford’s attorney David J. Utter, counsel with The Claiborne Firm in Savannah, Georgia, said during a Louisiana Record email interview. “This lawsuit provides parish and city officials do the right thing by examining what went wrong in Rodricus’ case, and instituting checks and balances to ensure such an injustice never happens again.”

Those checks and balances were severely lacking when a Caddo District Court jury handed down the capital punishment sentence the following year against the Shreveport man in the 2012 death of his 1-year-old son Roderius “Bobo” Lott, according to Crawford’s lawsuit.

“Mr. Crawford was convicted and sentenced to death based upon false evidence as a result of the failure of Defendants to conduct an unbiased autopsy based on professional standards of practice, and to properly train and supervise prosecutors in Caddo Parish,” said the lawsuit filed Nov. 16 in U.S. District Court for Louisiana’s Western District.

“Because of the lack of training and supervision and adherence to professional standards, the prosecution was illegally based upon both race and religion, and a complete indifference to the evidence. In addition, Mr. Crawford raises state law negligence and intentional infliction of emotional distress claims; but for the reckless and willful conduct of defendants, Mr. Crawford would not have been prosecuted let alone convicted of capital murder.”

In his lawsuit filed on behalf of himself and his minor daughter, Crawford claims he did not receive his constitutionally guaranteed right to a fair trial. Named defendants in the case include Caddo Parish Coroner’s Office, Caddo Parish District Attorney’s Office, Caddo Parish District Attorney James Stewart, former Caddo Parish District Attorney Dale Cox, Shreveport Fire Department and Coroner James Traylor. Crawford’s lawsuit asks for a jury trial.

The Caddo Parish District Attorney’s office did not respond to a Louisiana Record request for comment.

“Defendants knowingly participated in the investigation, arrest and capital prosecution driven by Caddo Parish, Louisiana’s well-known history of racism and the arbitrary application of the death penalty,” Crawford’s lawsuit said. “But for Defendants’ actions, no prosecution and conviction of Mr. Crawford would have occurred.”

Crawford was taken into custody after bruises and other injuries were discovered on the child’s body. Crawford reportedly told police his son had fallen in the bathroom and Crawford consistently maintained that he had never harmed his son.

His attorneys also consistently maintained that the jury relied on bad forensic science, and pointed to strong medical evidence that the child was suffering from pneumonia and died of sepsis.

“The conduct of the officials in this case, particularly the coroner Dr. Traylor and the prosecutor, were particularly egregious, outside the norm of a mistake or error,” Utter said. “There was intentional misconduct.”

By the time Crawford’s conviction was overturned by the Louisiana Supreme Court in November 2016, Caddo Parish juries were widely noted for having sentenced five people to death in six years, 38 percent of the state’s total death sentences.

The state’s highest court ordered a new trial for Crawford after finding serious issues with the case, including unconstitutional exclusion of black jurors. Louisiana prosecutors dropped charges against Crawford this past April and he was freed soon after that.

“As the result of Defendants’ unconstitutional, negligent and intentional acts, Mr. Crawford spent 4 years, 9 months, and 6 days illegally in custody,” Crawford’s lawsuit said.

Utter credited Baton Rouge lawyer Cecilia Trenticosta Kappel, his co-counsel in Crawford’s lawsuit who is active with the Capital Appeals Project and the Promise of Justice Initiative, for much of the work done to exonerate Crawford.

“Cecelia is the real hero amongst the lawyers on the case,” Utter said.

Crawford’s lawsuit is necessary to get defendants and others to do the right thing, Utter said.

“Unfortunately, many innocent people who spent time in jail or prison have to file a lawsuit before officials will do what is right,” Utter said, referring to the overturned murder conviction of Sabein Burgess in Maryland.

“Rodricus only filed because the officials responsible for this miscarriage of justice failed to apologize and offer to discuss a settlement that provided justice to him, his family and ensure something like this never happens again in Shreveport,” Utter said.

ACLU files lawsuit on behalf of death row inmates against Ricketts, Corrections Department

December 5, 2017

Sandoval

ACLU of Nebraska filed a lawsuit Monday on behalf of death row inmates that claims the ballot initiative that stopped the state Legislature’s 2015 repeal was illegal.

The complaint is an attempt to stop any executions, or even steps toward an execution, of the men on Nebraska’s death row.

Death row inmate Jose Sandoval said last week he intends to fight the execution. At that time, he had no ongoing legal actions or appeals in federal or state courts.

“My reaction to the notice (of lethal injection drugs) was not a surprise. I’ve been expecting it for a year now,” Sandoval said. “I intend to fight with the help of my attorneys — Amy Miller and company.”

The ACLU confirmed Sunday that Miller, its legal director, has been in contact with Sandoval, who was notified Nov. 9 of the state’s intention to execute him with four specified lethal injection drugs. The organization is preparing to announce the scope of its representation of Sandoval early this week, it said.

The four drugs in combination that would be used in Sandoval’s execution, if it takes place, have never been used to execute a person.

The complaint charged the ballot initiative violated the Nebraska Constitution’s separation of powers. It said Gov. Pete Ricketts was the driving force behind the 2016 referendum, exploiting government staff, resources and his own elected position to raise money for the ballot initiative and to persuade voters to support it.

“In Nebraska, our state Constitution … establishes a strong tradition with a clear separation of powers,” ACLU Executive Director Danielle Conrad said Sunday. “The governor can’t have it both ways and serve both as a member of the executive and legislative branches.”

The petition drive got underway in 2015 and the sponsoring group, Nebraskans for the Death Penalty, gathered 167,000 signatures, enough to stop the repeal from being in effect until a vote in November 2016.

The Legislature had voted to repeal Nebraska’s death penalty with a bill (LB268) that passed on a 32-15 vote. Ricketts vetoed the bill and then the Legislature voted to override the veto on a 30-19 vote that cut across party lines.

Shortly after that, Nebraskans for the Death Penalty was formed and raised just over $913,000, a third of it contributed by Ricketts and his father, Joe Ricketts.

The governor’s actions pose important legal questions with grave consequences, Conrad said.

She said the end result of those actions was the restoration of a “broken” death penalty that is racially biased, risks execution of innocent people and raises constitutional concerns about the Eighth Amendment’s prohibition against cruel and unusual punishments.

Ricketts’ office responded in a statement issued Sunday evening.

“The Governor’s Office holds itself to a high standard and follows state law regarding the use of taxpayer resources,” said Taylor Gage, the governor’s spokesman. “This liberal advocacy group has repeatedly worked to overturn the clear voice of the Nebraska people on the issue of capital punishment and waste taxpayer dollars with frivolous litigation. The administration remains committed to protecting public safety and creating a safe environment for our Corrections officers.”

The ACLU lawsuit — filed on behalf of death row inmates against Ricketts, Treasurer Don Stenberg, founders of Nebraskans for the Death Penalty, Attorney General Doug Peterson, the Department of Correctional Services and Director Scott Frakes — asked the court to immediately stop all preparations for executing Sandoval and the other 10 men on death row.

Peterson plans to ask the Nebraska Supreme Court for a death warrant after 60 days following the notification of drugs that would be used.

That ACLU complaint said that as the governor, Ricketts’ power over the repeal bill ended when the Legislature overrode his veto.

It claimed the subsequent ballot initiative should not stand, as it was the result of repeated, extensive and illegal abuses of the governor’s power. The state’s constitution reserves ballot initiatives as a legislative power for the people to use as a check on the legislature, and it further prohibits anyone in one branch of government from exercising powers over another branch, the ACLU said.

Ricketts encouraged or ordered members of the executive branch and his allies in the Legislature and local governments to work for the referendum campaign or to express public support for it, the complaint said.

For example, Stenberg was simultaneously a leader of the campaign in the first few months, serving as co-chairman with Sen. Beau McCoy, the ACLU charged. In the middle of the campaign, Ricketts rewarded Jessica Flanagain, the campaign manager and coordinator, with a publicly paid position in the government as special adviser to the governor for external affairs, with a salary of $130,000, the complaint alleges.

The lawsuit also noted that Nebraskans for the Death Penalty made an error that invalidated the referendum by failing to submit sworn statements from its sponsors, as required by law to assure the sponsors’ names aren’t fraudulent and assure transparency in the working of ballot campaigns.

Previous litigation more narrowly alleged the referendum petition was not legally sufficient because a list of sponsors filed with the petition did not include the name of Ricketts, who it claimed engaged in activities that established that he was a sponsor of the referendum. The district court dismissed the complaint. The Supreme Court affirmed, holding Ricketts’ alleged financial or other support of the referendum did not make him a person “sponsoring the petition.”

Maslon gets inmate off Texas death row

December 5, 2017

Witness by witness, statement by statement, inkling by inkling, a pro bono team at Maslon put together a habeas corpus case that got its client off death row in a Texas prison.

Douglas Tyrone Armstrong was not exonerated of a murder he says he didn’t commit, but he will get a new punishment hearing and will be removed from death row, where he has been in solitary confinement for all but 10 hours per week for 10 years. He was represented by Maslon’s pro bono committee chair Julian Zebot, Catherine Ahlin-Halverson, Michael McCarthy and Nicole Narotzky. Many others were involved in the case during the 11 years the firm worked on the case.

The Texas Court of Criminal Appeals, in a 5-4 opinion, determined that Armstrong’s defense counsel failed to conduct a constitutionally adequate investigation of mitigating evidence. The lower court also found that the defense failed to investigate, but that Armstrong was not prejudiced thereby.

The team has brought other habeas issues that are yet to be resolved, i6ncluding Armstrong’s claim of actual innocence.

“Tyrone has consistently proclaimed his innocence,” Zebot said. His trial lawyers were ineffective at the culpability phase as well as the punishment phase — “essentially he didn’t get much of a defense at all.”

He added, “We are going to fight for the client’s complete exoneration.”

The eyewitness testimony changed several times during the process, shifting in a direction unfavorable to Armstrong, he said. Additionally, the physical evidence doesn’t match up to the rest of the evidence, he said.

Wiggins standard

The Texas court relied on Wiggins v. Smith, a 2003 Supreme Court opinion where the court said that the standard of review is whether counsel’s investigation was reasonable under prevailing professional norms, including a context-dependent consideration of the challenged conduct as seen from counsel’s perspective at the time. It’s unusual for a court to grant relief under Wiggins, Zebot said.

Maslon lawyers dug deeply into Armstrong’s history and presented additional evidence of his disadvantaged background and entirely new expert testimony with respect to his mental state at the time of the offense, not evidence that was essentially more of the same character of evidence presented at trial. A Wiggins claim is not barred by the presentation of some mitigating evidence by the trial counsel, if the habeas counsel provided new evidence that demonstrated a reasonable probability that at least one juror would have held out against the death penalty, the court said.

The most compelling evidence to the Texas court appeared to be the new mental health evidence, and it relied primarily on that to conclude that there was a reasonable probability of a different outcome had that evidence been available.

But to get to that expert testimony, the lawyers needed to develop more lay testimony, mostly from Armstrong’s family. They interviewed witnesses and were assisted by a mitigation investigator. They looked for school and medical efforts but most of them had been destroyed.

“The family was so brave in sharing their stories. They were willing to offer this really traumatic history to the experts and the court,” Ahlin-Halverson said. “You’re asking people to share extraordinarily painful personal history.”

“You could hear a pin drop when the family was testifying. It was absolutely riveting,” she said.

The lawyers and investigators worked to establish trust over time, Ahlin-Halverson continued. “The first time we met with the family members we didn’t learn everything. Every time we spoke with them we got a deeper and more comprehensive understanding.

“To me, the most important thing we did was stick with them, and be where we said we would be so they could learn to trust us.”

Critical to the success of the case is the strong internal team at Maslon.

“We had so many attorneys, paralegals and staff running around in different directions, gathering affidavits. The case was going to rise or fall on the strength of the people working on it,” Zebot said.

“It demonstrates Maslon’s commitment to pro bono. We literally spent thousands of hours,” Zebot said. It was also a significant financial commitment, he added.

History of abuse

The family member’s testimony included accounts of physical abuse endured by all the children, including Armstrong. Armstrong was frequently locked in an empty room for days at a time, with no food or access to a bathroom. The parents were alcoholics and both beat the children with some kind of tool. Armstrong was beaten in the head.

His siblings also learned to physically abuse him. Armstrong and his sister were the only siblings who had the same father, and he raped the sister, resulting in a pregnancy. There were other instances of sexual abuse in the family. Additionally, the parents spent all their resources on alcohol and never bought food for the children. The family moved constantly because the parents did not pay their rent. Armstrong was introduced to alcohol by his brother at the age of five.

Neuropsych evaluation key

The experts were Dr. Phillip D. Harvey, a clinical psychologist in the field of study and diagnosis of cognitive impairment; and Dr. Robert Lee Smith, a forensic psychologist and addiction specialist.

Harvey’s neuropsychological evidence was the “linchpin” of the court’s opinion, Ahlin-Halverson said. His diagnosis was borderline intellectual functioning and acquired dementia. The dementia was likely caused by substance abuse, repeated traumatic brain injury and extreme life stress, he said. Those symptoms were fully formed by the time of the murder for which Armstrong was convicted.

Smith diagnosed Armstrong with dysthymic disorder (long-standing depression), substance dependence and personality disorder-not otherwise specified. He attributed the dysthymia to environmental factors in Armstrong’s past.

The absence of psychological evidence was prejudicial, the court determined. The court could not determine that the state’s evidence would clearly outweigh the totality of the mitigation evidence, the court concluded.

Armstrong is incredibly grateful to his lawyers, Ahlin-Halverson said. He speaks of his love for his family often, she said.

At some hearings the judge has allowed Armstrong to greet and hug (unshackled) each of his family members, including his son. “That really brings it home, what he’s been through,” Zebot said.

“You’d have to have a heart of stone not to be moved,” Ahlin-Halverson said.

Miami mom is on trial a third time for the torture and murder of ‘Baby Lollipops’

December  4,2017

For the third time, a jury heard about Baby Lollipops’ short and tragic life — and the details remained just as ghastly now as they did in 1990, when his body was discovered in the bushes of a Miami Beach home.

The skeletal, malnourished 3-year-old weighed just 18 pounds. His soiled diaper was duct-taped onto his filthy body. His cheek bore a burn mark, likely from a cigarette.

Two teeth were knocked out, taking out a portion of his jaw. Blow after blow, inflicted month after month, eventually left his tiny body battered. He was unable to walk, his skull was fractured, his brain stem severed.

“His left arm was so badly injured that the muscle from the elbow to the shoulder had fused into the bone making it impossible for this young child to extend his arm,” Miami-Dade prosecutor Christine Hernandez told jurors on Monday.

Lazaro Figueroa died an unimaginably horrible death. And to blame, prosecutors allege, was his own mother, Ana Maria Cardona, who beat and abused her youngest child over months.

“This young baby was the subject of her hatred, this baby was the target of her rage,” Hernandez told jurors.

The start of the trial Monday marks the third time Cardona has faced a jury for the November 1990 murder of little Lazaro, whose corpse was discovered dumped outside a home in Miami Beach.

As detectives hunted for his killer and identity in a case that captivated South Florida, they dubbed him “Baby Lollipops” for the design on his shirt. Homicide detectives soon arrested Cardona, a cocaine addict who had lived in a Miami efficiency with her two other children and lover, Olivia Gonzalez.

Cardona’s defense team on Monday shifted the blame.

“We’re going to bring you testimony that while Olivia Gonzalez was serving time in prison, she bragged that she was the one who hit the child over the head with a baseball bat and killed him,” Miami-Dade Assistant Public Defender Manuel Alvarez said.

Jurors will not hear that twice before, Cardona was sent to Death Row after convictions for first-degree murder and aggravated child abuse.

Lazaro Figueroa died an unimaginably horrible death. And to blame, prosecutors allege, was his own mother, Ana Maria Cardona, who beat and abused her youngest child over months.

“This young baby was the subject of her hatred, this baby was the target of her rage,” Hernandez told jurors.

Ohio Supreme Court to hear local man’s death penalty appeal

December  4,  2017

 

 

 

COLUMBUS, Ohio — On Tuesday, the Ohio Supreme Court is to preside over a legal debate over whether the death penalty should be executed on a young Clayton man – the second youngest on Ohio’s Death Row – for the murder of an even younger Warren County man at his home outside Waynesville in January 2014, according to the Journal-News.

Warren County Prosecutor David Fornshell will personally argue for the state to continue forward toward the execution of Austin Myers, now 22, of Clayton, although another Clayton man, Timothy Mosley – like Myers 19 years old at the time – actually stabbed to death Justin Back, 18, a 2013 Waynesville High School graduate about to enter the U.S. Navy.

“Austin Myers killed Justin. Tim was his weapon of choice,” Fornshell said last week, quoting Back’s stepfather, Mark Cates, a local prison guard.

It will be Fornshell’s first appearance before the high court on behalf of Warren County.

Lawyers appointed to appeal Myers’ death sentence have identified 18 violations of law they claim should convince the state’s high court to set aside his death sentence, including his age and the lesser sentence – life in prison without parole – Mosley received in exchange for his testimony.

Three years later, Myers is still the second youngest of 140 Ohio prisoners facing the death penalty. Damantae Graham, 20, convicted of killing a Kent State University student, is the only one younger.

Myers’ lawyers also claim errors or misconduct by the judge, prosecutors and defense lawyers in the case, decided more than three years ago in Warren County Common Pleas Court, should convince the high court, including appointed Judge Cynthia Westcott Rice of Ohio’s 11th District Court of Appeals, to spare his life.

“Mr. Myers’s rights under the Constitution of the United States and the Ohio Constitution were violated and he was denied a fair trial and sentencing proceeding. Accordingly, this Court should reverse and discharge the defendant or grant a new trial. In the alternative, this Court should vacate the death sentence, remand for a resentencing hearing, and order the life sentence imposed,” lawyer Timothy McKenna said in his brief to the high court.

The appeal, pending since Oct. 27, 2014, was set for oral arguments on Oct. 20, after a second Ohio Death Row inmate was executed. These came after the postponement of scheduled executions starting in January 2014 following problems during the execution of Dennis McGuire, a Preble County man.

Rice was appointed to the high court on Nov. 6, replacing Justice Bill O’Neill, who recused himself after announcing he was running for governor.

The case

Myers and Mosley were arrested in July 2014 after Back’s mutilated body was found in Preble County, in a wooded area outside Versailles known as Crybaby Bridge. They both gave statements during interrogation at the Clayton Police Department used by investigators in reconstructing the crime, according to police and court records.

According to their statements, Mosely’s testimony and other evidence, after a day of preparation and planning, Myers and Mosley went to Back’s home in a small neighborhood along the Little Miami River, east of Waynesvile. With a garrote – fashioned by a friend who was not charged – Mosley came up behind Back and began choking him, while Myers restrained Back. When the garrote caught on Back’s chin, Mosley pulled out a knife and stabbed Back to death.

After cleaning the home and stealing Back’s iPod and wallet, as well as a gun and safe belonging to Cates, Mosley and Myers removed Back’s body, dumping it in Preble County after dousing it with chemicals to quicken decomposition. Before leaving the body, Myers shot it twice with Cates’ gun.

At trial, prosecutors convinced the jury that Myers was the mastermind of the crime and he was sentenced to die. Mosley, in exchange for his testimony, was sentenced in a plea bargain to life without parole.

The issues

Mosley was represented by Dennis Lieberman, a lawyer hired by Mosley’s family. Myers was represented by Greg Howard and John Kaspar, appointed by the court.

But Fornshell said Mosley got the deal because – unlike Myers- he offered to cooperate. Prosecutors needed one or the other to “put in the back story,” Fornshell said.

In addition, Fornshell said Mosley accepted responsibility and Myers was “exponentially more dangerous,” pointing to evidence indicating Myers handled the bulk of the planning and wanted to go back and kill Cates.

“He’s a serial killer who got caught the first time,” Fornshell added.“There is absolutely no doubt in my mind.”

McKenna and co-counsel Roger Kirk did not respond to requests for interviews.

But their 110-page brief indicates they will emphasize Myers “was a 19 year-old immature adolescent with behavioral issues” who should be spared the death penalty, in part because Mosley’s sentence spared his life, although he wielded the murder weapon.

In addition, they claim prosecutors rendered Myers’ lawyers “admittedly ineffective” by withholding evidence until “on the Friday eve before the Monday trial,”as well as the fact that Mosley was to be a witness.

The appeal

The appeal is to be the first of a series of cases heard on Tuesday and Wednesday.

All arguments are streamed live online at sc.ohio.gov and broadcast live and archived on the Ohio Channel, according a release from the high court.

The court typically issues opinions within six months, but it was unclear when a decision would be issued in this case.

SCOTUS rejects case of Alabama Death Row inmate who claims racial discrimination in jury picks

December 4, 2017

Christopher Floyd

The U.S. Supreme Court, in a ruling issued today, refused to hear the appeal of Alabama Death Row inmate Christopher Anthony Floyd, who says prosecutors struck 10 of 11 blacks from the jury pool at his trial.

Floyd appealed earlier this year to the U.S. Supreme Court after a ruling by the Alabama Supreme Court last year.

The Alabama Supreme Court’s decision came despite a previous U.S. Supreme Court order that told the Alabama court to take another look at Floyd’s case in light of a similar case in Georgia – Foster v. Chatman. In the 2016 appeal of that case, SCOTUS reversed a conviction for discriminatory jury selection involving prosecutors’ striking blacks from the jury pool.

However, the Alabama Supreme Court in November 2016 concluded that the Foster case did not require a change in the outcome of Floyd’s case, and again affirmed Floyd’s conviction. Floyd then turned again to SCOTUS.

In 2005, Floyd was convicted in Houston County for the murder and robbery of Waylon Crawford. Floyd was sentenced to death.

In selecting the jury for Floyd’s case, the prosecutor and Floyd’s lawyers exercised a total of 36 peremptory challenges, according to the state supreme court order. Prosecutors used its 18 challenges to remove 10 of 11 African-American venire members and 12 of 18 female venire members. Floyd’s lawyers removed one African-American and seven female venire members. The final jury consisted of six white male jurors, six white female jurors, two alternate white male jurors and one alternate African-American female juror.

Floyd, who is white, did not object to the jury based on Batson v. Kentucky– a previous U.S. Supreme Court ruling prohibiting racial discrimination in jury selection, court records show.

In Monday’s rejection of Floyd’s appeal, SCOTUS did not render an opinion. Associate Justice Sonia Sotomayor, with which Associate Justice Stephen Breyer concurs, issued a statement.

“Although the unique context of Floyd’s case counsels against review by this Court, I find the underlying facts sufficiently troubling to note that in the ordinary course, facts like these likely would warrant a court’s intervention,” Sotomayor wrote. “During voir dire, the Houston County District Attorney’s Office exercised peremptory challenges against 10 out of 11 qualified African-American venire members, and used 12 of its 18 strikes against women. The prosecutor also marked the letter “‘B,’ as in black,” next to the name of each potential African-American juror.”

“That we have not granted certiorari should not be construed as complacence or an affirmance of all of the reasoning of the courts below,” Sotomayor wrote. “The unusual posture in which Floyd raised his Batson and J. E. B. claims warrants caution in the exercise of the Court’s review here. Yet, courts reviewing claims in circumstances like these must be steadfast in identifying, investigating, and correcting for improper bias in the jury selection process. Such discrimination “‘casts doubt on the integrity of the judicial process,’ and places the fairness of a criminal proceeding in doubt.”

Death row inmate who survived his own execution really doesn’t want a do-over

November  2017

An Ohio man who became the third U.S. death row inmate in seven decades to survive his own execution filed a new appeal for mercy Tuesday, arguing that Ohio’s lethal injection protocol constitutes cruel and unusual punishment because one of its drugs may not work properly.

Alva Campbell, a 69-year-old man sentenced to death in 1998 for killing 18-year-old Charles Dial in a robbery, had his execution halted about 25 minutes after it was scheduled to start, according to the Associated Press. The execution team, it turned out, couldn’t pinpoint a vein that they could use to inject Campbell with a dosage of lethal drugs.

In court documents filed before the execution, Campbell’s lawyers warned that this was a possibility, as Campbell has a history of chronic heart and lung problems that can make finding a vein tricky. In fact, the prison was so worried that Campbell’s lungs would give out and he would stop breathing, while lying on the execution gurney, that the team gave him a wedge pillow to help him stay calm and alive until they could execute him.

Campbell’s lawyers also cited Ohio’s bad track record when it came to successfully carrying out executions. Though the first failed execution in modern U.S. history took place in 1946, when Louisiana’s attempt to execute Willie Francis using the electric chair failed, the second was much more recent: In 2009, an Ohio execution team made 18 attempts over the course of two hours to find a vein to inject Romell Broom with lethal injection drugs. Then-Gov. Ted Strickland ultimately ordered them to give up. Broom remains on death row, locked in a court battle where he argues that trying to execute him a second time would be unconstitutional.

Alva Campbell, 69 (Ohio Department of Rehabilitation and Correction )

Campbell’s new appeal to the U.S. Court of Appeals for the Sixth Circuit Court, however, technically centers around a different issue: the use of midazolam, a sedative that’s meant to render an inmate unconscious.

Midazolam has been used in several recent botched executions, including in Ohio. In 2014, the state executed convicted killer and rapist Dennis McGuire, even though McGuire reportedly gasped, snorted, and snored minutes after he should have been knocked unconscious. A judge ended up declare Ohio’s lethal injection procedure unconstitutional, leading the state to halt executions for years.

As drug manufacturers and distributors become more and more reluctant to allow their wares to be used in executions, however, states are scrambling to find drugs they can use in lethal injections. That’s led midazolam’s popularity to skyrocket.

Evidence “from recent executions demonstrates the disturbing signs that prisoners remain sensate to severe pain, aware, and conscious following injection of 500 mg. of midazolam or more are ‘the rule,’ not ‘the exception,’” Campbell’s lawyers write in his latest appeal.

Campbell’s new execution date is June 6, 2019.

Death row inmate Lotter’s attorneys ask U.S. Supreme Court to hear case

December 1,  2017

A Nebraska death row inmate has asked the U.S. Supreme Court to take his case and review decisions by a federal district court and appellate court to deny his latest challenge to his sentence.

John Lotter, who was convicted in the killing that inspired the 1999 movie “Boys Don’t Cry,” specifically is seeking review of an 8th Circuit Court of Appeals order July 31 denying him permission to go forward with an appeal in U.S. District Court in Nebraska.

Rebecca Woodman and Jessica Sutton, of the Death Penalty Litigation Clinic in Kansas City, Missouri, had sought to challenge Nebraska’s sentencing method, which relies on judges and not juries to determine if someone gets the ultimate punishment.

They started the challenge in U.S. District Court in Lincoln.

But in February, Senior U.S. District Judge Richard Kopf refused and denied Lotter’s habeas corpus petition, in part because the attorneys hadn’t gotten permission from the 8th Circuit Court to file it.

He likened the filing to a Hail Mary pass.

Lotter, who is raising the same challenge in state court based on a U.S. Supreme Court decision in a Florida case last year, appealed.

In a one-page judgment July 31, a three-judge 8th Circuit panel said after carefully reviewing the district court file it was denying Lotter’s application for a certificate of appealability.

The court’s permission is required for him to go forward in federal court because he has had at least one prior habeas corpus petition.

Lotter also is appealing a Richardson County District judge’s decision to deny him an evidentiary hearing.

Lotter was sentenced to death for his role in the 1993 killings of Brandon Teena and two witnesses, Lisa Lambert and Philip DeVine, at a rural Humboldt farmhouse.