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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

Death row inmate Jason Sharp, convicted in 1999 Madison County slaying, to get new case review

NOVEMBER 1, 2012 http://blog.al.com

The Alabama Supreme Court wants the state’s criminal appeals court to take another look at the case of Jason Sharp, who is on death row after being convicted of the 1999 rape and murder of Tracy Morris.

The case took years to go to trial before Sharp was convicted in 2006.

The appeals process has bounced back and forth from various Alabama courts since Sharp’s lawyers alleged prosecutors improperly struck black would-be jurors from the jury pool.

jason sharp.JPGJason Sharp is led from Judge Laura Hamilton’s courtroom by Madison County Sheriff deputies from left, Sgt. Emmanuel Simmons, E.T. Burrows and Avery Miller after being sentenced to the death penalty Thursday Sept. 14, 2006 for the murder of Tracy Morris. (The Huntsville Times/Robin Conn)Brian Lawson | blawson@al.com

The U.S. Supreme Court has ruled that prosecutors must have race-neutral reasons for striking jurors. Both Sharp and Morris are white.

The state’s high court today denied a request by the State of Alabama to reconsider its order from last month, directing the Alabama Court of Criminal Appeals to allow Sharp’s attorneys and the state to file new briefs on the issue of whether Sharp received a fair trial.

The dispute centers the complaint by Sharp’s attorneys that the prosecution improperly struck all but two of 13 potential jurors who were African American. The defense struck the other two black potential jurors.

In December 2009, the Alabama Supreme Court overturned the conviction andordered a hearing before Circuit Judge Laura Hamilton, who presided over Sharp’s trial. The court required prosecutors to spell out their reasons for striking black jurors. If the prosecution, led by Madison County District Attorney Rob Broussard failed to persuade the trial court that the juror strikes were proper, Sharp would be entitled to a new trial.

The hearing was held and Hamilton ruled in June 2010 that prosecutors did not discriminate in picking a jury. The prosecution had argued a number of the black potential jurors said they opposed or would be reluctant to impose the death penalty, or didn’t appear to have the professional or social “sophistication” to comprehend technical DNA evidence.

Broussard said he struck twice as many white potential jurors based on the DNA issue and has insisted there was no discrimination in the Sharp case.

The sophistication argument was ridiculed by the defense for appearing to suggest the jurors weren’t intelligent enough. And in one instance, a woman with a bachelor’s degree from Alabama A&M University was excluded, the defense argued, but two white jurors with no college education did make the jury.

The case took another turn in February 2011, when the Alabama Court of Criminal Appeals ruled that the prosecution had discriminated against the black members of the jury pool and said Sharp was entitled to a new trial.

But in February of this year, the same court, though with a slightly different make-up,reversed its decision from the previous year and said prosecutors did not discriminate.

That ruling was appealed by Sharp’s lawyers to the Alabama Supreme Court. The court ruled Oct. 18, that the lower court must let the two sides provide briefs to the appeals court on the issue of whether Hamilton’s ruling was correct that the prosecution did not discriminate against members of the jury pool.

FLORIDA – Jacksonville man faces death penalty again after getting life in first murder case. DeShawn Leon Green

Octobre 30, 2012 http://m.jacksonville.com

For the second time, the state is attempting to put DeShawn Leon Green on Death Row.

Tuesday the state began prosecuting Green, 28, in the murder of Robert Lee Kearney and the attempted murder of Katherine George. The two were both victims of a drive-by shooting outside Jacksonville’s Confederate Point Apartments in March 2009.

Police said Kearney, 24, and George, then 20, were outside the apartments when a vehicle pulled up and more than a dozen shots were fired from a rifle. Prosecutors are arguing that Green fired those shots with a AR-15 assault rifle he’d nicknamed “Baby.”

Assistant State Attorney Richard Mantei said Green shot the two because friends of his had been shot at earlier in the night by Kearney, and Green was out for revenge.

“The defendant in this case pulled the trigger at least 13 times,” Mantei said to the jury. “He was there to settle a score.”

But defense attorney Francis Shea argued that the real shooters blamed Green and pointed the finger at Bruce Brice Jr., the man police believe Kearney fired a gun at earlier in the night but didn’t wound.

When police questioned Brice and another witness, they didn’t mention Green at all. It wasn’t until months later that they fingered Green as the culprit, Shea said.

“Mr. Brice had everything at risk,” Shea said. “While Mr. Green had no motive.”

Green was previously convicted in the August 2009 shooting of Willie Golden, 28, in a home on West 26th Street. The prosecution withdrew seeking the death penalty because the jury said premeditation wasn’t proven.

Prosecutors said Green killed Golden in retaliation of a drive-by shooting on a drug house that Green ran just two streets over from the shooting.

Green also faces a third trial for the murder of Bryan Clemons, 23, who was gunned down with an assault rifle in April 2009 as he sat in a chair in a home on West 13th Street.

The Clemons killing was the result of an ongoing dispute between two groups of men from Green’s Grand Park neighborhood and the nearby Flag Street area.

The dispute began in November 2008 when the two groups fought over a drink thrown at a nightclub. The next day, Clemons’ brother, Jerry, was slain in a drive-by shooting at West 14th and Canal streets.

Green is also eligible for the death penalty in the killing of Clemons.

Supreme Court To Hear Texas Death Row Inmate’s Case – Carlos Trevino

October 29, 2012 http://www.texastribune.org

The U.S. Supreme Court agreed on Monday to hear the case of Texas death row inmate Carlos Trevino in a case that could determine whether a defendant in Texas has a right to “competent” attorney during habeas appeals — a challenge to a criminal conviction that considers whether the defendant’s constitutional rights were violated during his trial.

In March, the nation’s highest court decided inMartinez v. Ryan that the failure of state habeas lawyers to argue that their client’s trial counsel was ineffective should not keep the defendant from being able to make that argument later in the appeals process.

The question in the Trevino case is whether the court’s decision in Martinez applies in Texas, said Trevino’s lawyer, Warren Alan Wolf. The U.S. 5th Circuit Court of Appeals decided in November 2011 that since the laws governing habeas appeals in Texas are different from those in Arizona, the Martinez decision does not apply.

Wolf said he had expected the court to select the case of John Balentine, another Texas death row inmate, as the one with which to decide the question. Balentine was an hour away from execution in August when the court granted him a stay to decide whether his state habeas attorney should have raised claims that his trial counsel had been ineffective. His trial lawyer, Balentine contended, failed to consider mitigating evidence that might have convinced jurors to sentence him to life rather than death.

Dissenting from the 5th Circuit Court of Appeals’ refusal to grant Balentine a hearing, two judges wrote that, “The issue of Martinez v. Ryan’s applicability to capital habeas petitioners in Texas presents an issue of exceptional importance.”

Trevino was convicted in 1997 of the rape and murder of 15-year-old Linda Salinas at a park in San Antonio. At the time, he was a member of the Pisteleros gang, and several other members were charged for the murder. Trevino was the only one sentenced to death.

Trevino’s first habeas attorney, Albert Rodriguez, did “no investigation” outside of the record that already existed, Wolf said, and then became sick and “didn’t want to proceed.” As a result, he explained, “Carlos never really got fair representation.

TEXAS – Death Row inmate didn’t commit murders, witnesses say – Lester Leroy Bower,

October 29,2012 http://www.star-telegram.com

SHERMAN — In a day of dramatic testimony Monday, two women implicated a gang of drug dealers in the 1983 slaughter of four men in a Grayson County airplane hangar.

After 29 years on Texas’ Death Row for the crimes, Lester Leroy Bower, who was a chemical salesman living in Arlington when he was arrested, hopes their accounts will help him win his freedom, or at least a new trial.

One of the women, identified in court as Witness No. 1, said her boyfriend told her that he participated in the killings on the October night they happened.

“He said he and his friends had gone there for a drug deal,” the witness said. “It didn’t go right and they had to kill some people.”

The boyfriend was identified in court as Lynn. Others in the gang were identified as Bear, Ches and Rocky, part of a methamphetamine ring operating in southern Oklahoma at the time, she said.

Several days after the killings, the woman testified, she heard Lynn and Ches discussing it.

“Ches was laughing, telling Lynn, ‘Did you see the guy’s face when you shot him in the head?'” the witness testified. “Lynn said, ‘I had to shoot him. He was running for the door.'”

The witness, who said she was the mother of a slaying victim, said she went to Bower’s defense lawyers in 1989 after learning that Bower had been convicted and faced the death penalty.

“As the mother of a homicide victim, I know how important it is to make the right person pay for what they did,” the witness testified. “I don’t believe Mr. Bower is that person.”

Bower’s lawyers have filed an appeal with the Texas Court of Criminal Appeals, arguing that new evidence points to the innocence of their 64-year-old client, the fourth-oldest man on Death Row. The appellate court ordered state District Judge Jim Fallon to hold this week’s hearing in Sherman, in part to build a record of testimony that can be used later in a decision on Bower’s fate.

Bower, a graying man dressed in orange prison coveralls, also testified Monday, the first day of the hearing.

The condemned man, who did not take the stand at his 1984 trial, denied killing the men but said his own lies contributed to his conviction. Bower admitted lying repeatedly to investigators to try to steer clear of the case, and to his wife, fearing that she would have been upset by his secret purchase of an ultralight aircraft.

Bower said he bought the aircraft from the victims shortly before they died.

“This is my doing,” Bower said Monday. “I’m responsible for my actions, my trying to stay out of this and lying to authorities. Lying to my wife, that’s probably where this started.”

Monday was the first time the testimony of Bower and other defense witnesses had been heard in state court. When Bower was sentenced to die, state law specified that new evidence could not be presented unless it had been discovered within 30 days of the conviction. That law has changed.

Some time after this week’s hearing, Fallon is expected to issue a ruling that could suggest upholding the conviction, recommend that Bower be released, or recommend a new trial. Ultimately, the Texas Court of Criminal Appeals will decide the case.

Grayson County prosecutors have vigorously contested alternate theories presented by the defense, saying Bower was convicted on the basis of strong circumstantial evidence. That included Bowers’ repeated lies to FBI agents and that he was known to have owned a firearm and exotic ammunition similar to that used in the crimes. Additionally, parts of the ultralight aircraft were discovered in his home.

The victims — Bob Tate, Philip Good, Jerry Mack Brown and Ronald Mayes — were found shot to death in a hangar five miles from Sherman, the Grayson County seat.

During Monday’s hearing, friends and relatives of the victims sat on one side of the crowded courtroom, supporters of Bower on the other. Robbie Dutton, Brown’s widow, listened from the first row, just behind the prosecution table.

“Just rehashing, you know,” she said of her feelings after Monday’s testimony concluded. “We’re not wanting him to be punished for something he didn’t do, but the evidence presented in 1984 was so damning.”

Nothing she heard Monday changed her belief in Bower’s guilt, she said.

“It’s hard to hear all of this again,” Dutton said.

Witness No. 1 testified that she was told of the killings hours after they occurred, while she and Lynn drove through Sherman.

“When he told me about all this, it was like my whole world shifted at that point,” she said. “It was like I just stepped into a TV movie.”

She also described her boyfriend’s behavior in the days after the killings.

“He would have a hard time sleeping,” she said. “He would have nightmares. He would be up pacing. He said he could see the man’s eyes he shot and he could hear the noise reverberating off the tin building.”

The second witness, identified as Witness No. 5, said she was the wife of Bear, who died of cancer five years ago. She testified that several times she heard her husband and the other men talk about a shooting in an airplane hangar in which four men were killed.

“I believe they committed the crime, yes,” she said.

Grayson County prosecutor Kerye Ashmore attacked the credibility of both women, citing their heavy drug use at the time of the slayings, and in the case of Witness No. 1, a felony conviction for forgery.

Bower also faces what likely will be a vigorous cross-examination as the hearing resumes today.

On Monday, Bower described meeting the men in the hangar and paying $3,000 cash as a down payment for the ultralight. But he hid his purchase.

“I was concerned how my wife would react,” Bower said. “I was quite sure she would not have approved.”

He said he was stunned and frightened when he heard of the slaughter a few days after it happened. The following January, FBI agents tracked Bower down through telephone records of his calls to one of the victims. When questioned, he said, he admitted inquiring about the aircraft but did not say he had visited the crime scene.

“Once I headed down the proverbial bad path, I kept on going,” Bower said. “I told them the same lie.”

 

California’s longest-serving death row inmate spared execution – Douglas Stankewitz,

October 30,2012 http://www.chicagotribune.com

SACRAMENTO (Reuters) – A federal appeals court has overturned the death sentence of California’s longest serving death row inmate, a 54-year-old Mono Indian man convicted in 1978 for killing a woman during a drug- and alcohol-fueled carjacking.

Douglas Stankewitz, who has spent 34 years awaiting execution, will be re-sentenced to life without the possibility of parole unless prosecutors decide within 90 days to retry the penalty phase of his trial, which would consider punishment only, not guilt or innocence.

The decision late on Monday by the Ninth Circuit Court of Appeals comes just a week before Californians vote on a referendum to abolish the death penalty in the state.

A federal judge halted all California executions in 2006, saying a three-drug lethal injection protocol risked causing inmates too much pain and suffering before death. California revised its protocol, but executions have not resumed.

An appeals court panel, in a 2-1 decision, ruled that Stankewitz received ineffective legal counsel during the penalty phase of his murder trial, when he was sentenced to die.

His lawyer, they wrote, failed to investigate and present evidence “including evidence of his deprived and abusive upbringing, potential mental illness, long history of substance abuse and use of substantial quantities of drugs leading up to the murder.”

In a recent interview with Reuters inside San Quentin State Prison, Stankewitz called the death penalty “a joke,” and described how long delays in the appeals process, coupled with ineffective counsel, had led to him spending more than three decades waiting to die.

“They can’t kill me because the system is messed up so bad,” Stankewitz told Reuters during that interview.

Stankewitz suffered alcohol exposure in the womb, was removed from his home at age 6 after his mother beat him and bounced between foster care facilities where he was severely troubled and abused, court documents show.

He was 19 when he and a group of friends carjacked Theresa Graybeal, 22, from a K-Mart parking lot in Modesto and drove across California’s rural heartland to Fresno, roughly 100 miles away. There, Graybeal was shot and killed.

TEXAS – Death penalty case reviewed – FARYON WARDRIP

October 26, 2012  http://www.timesrecordnews.com

A federal magistrate judge for the Northern District of Texas, Paul D. Stickney, is trying to decide what will happen with the death penalty case of convicted serial killer Faryion Wardrip in the appeals process.

Wardrip was sentenced to death in 1999 after being convicted of the murder of 20-year-old Terry Sims. He received life sentences for three other murders — Toni Gibbs, Ellen Blau and Debra Taylor.

Wardrip murdered at least four women in the North Texas area in the mid-1980s. The cases were unsolved for years.

Wichita Falls District Attorney Maureen Shelton was in Dallas on Wednesday to hear the appellate hearing.

The Texas Court of Criminal Appeals confirmed the death penalty decision.

“Once that happens, it switches over, and they can file a federal writ,” Shelton said. “The federal writ was filed Dec. 31, 2002.”

A district judge, Joe Fish, passes the case to Stickney, who makes a ruling on the case. Fish then decides whether to adopt the decision.

In July, 2008 Stickney ruled that he would allow a new punishment hearing because the defense attorney wasn’t effective, Shelton said. Fish approved the ruling April 19, 2010.

“Once that happened, the state of Texas is represented by the attorney general’s office in federal court.

The attorney general’s office appealed that decision to the Fifth Circuit, which is controlling over our area in New Orleans. The Fifth Circuit agreed with the state of Texas and vacated the district judge’s order,” Shelton said.

On June 10, 2011 Stickney and Fish were instructed by the Fifth Circuit to rework the case. Wednesday’s hearing is the result of the previous decisions.

“Once the magistrate issues his next ruling, and if the district judge adopts that, then the losing party, odds are, will appeal it,” Shelton said.

If the Fifth Circuit affirms the original decision for the death penalty, Wardrip’s attorneys can appeal the case to the U.S. Supreme Court.

The Supreme Court does not have to hear the case.

No matter the outcome of the appeal, Wardrip still has three consecutive life sentences to serve for the deaths of Gibbs, Blau and Taylor.

Shelton said the murders were the most horrific she has ever known about in Texas.

“It’s the worst serial murder we’ve had in, certainly, our history, and I’d say even nationally this is a horrific serial murderer,” Shelton said. “I don’t know how you don’t seek the death penalty for somebody like that.”

When the case comes back to the state court, an execution date can be set.

Wardrip was sentenced to 35 years in prison for the death of Tina Kimbrew in 1986, and under old parole laws, was paroled after serving 11 years in prison.

According to a previous Times Record News story:

The time he spent in prison for Kimbrew’s death is at the heart of the appellate issue going through the federal system.

Wardrip’s request for relief on grounds of ineffective assistance of counsel during his trial included the assertion that his attorney — then-public defender John Curry, who has since died — should have presented evidence from his time in prison. Wardrip claimed the evidence should have shown he took classes, wrote for a prison newspaper and took part in a fundraiser for a young man with medical needs.

 

 

 

 

 

 

 

 

 

 

 

 

 

TEXAS – A Death Row Struggle Between Advocates and Lawyers – Preston Hughes III

October 25, 2012 Texas Tribune

LIVINGSTON — Preston Hughes III, a death row inmate, is 46 but seems much older, with white hair, thick glasses and a quiet, slow voice that rises only when the subject of his lawyer comes up.

Mr. Hughes, convicted in 1989 of fatally stabbing two young people, has tried multiple times to dismiss his court-appointed lawyer, Patrick McCann. He said that Mr. McCann, who has been his lawyer for 14 years, had not raised his claims of innocence and is “helping the state cover this up.”

Mr. McCann says he cannot comment on why he will not pursue these claims, which were not introduced in Mr. Hughes’s original trial. But Texas and federal law set a high burden of proof for new claims of “actual innocence” so late in the judicial process, a bar that Mr. McCann said was “almost impossible” to meet.

Mr. Hughes, who says he did not commit the murders, is scheduled to be executed Nov. 15. He says all of his lawyers have failed him. “They just want to do things on their own,” he said recently from death row in Livingston.

While Mr. McCann is suing the state over lethal injection procedures, arguing that prison officials would be “experimenting” on his client, a handful of advocates are publicizing what they believe is new evidence of Mr. Hughes’s innocence.

The advocates, who do not have legal training, are campaigning for Mr. Hughes’s exoneration and supporting his efforts to have Mr. McCann fired.

The issue of advocates’ doubting the work of lawyers is common in death penalty cases, especially as an execution date nears.

“Once the lawyers do the spadework, a lot of people want to come in,” said Jeff Blackburn, a lawyer who runs the Innocence Project of Texas, “and they don’t understand that we’re limited with the art of the possible here.” He called Mr. McCann a “great lawyer.”

The official facts of the crime, on their face, pointed directly to Mr. Hughes. On the night of Sept. 26, 1988, Shandra Charles, 15, and her cousin Marcell Taylor, 3, were fatallystabbed in a Houston field. A police sergeant reported that before she died, Ms. Charles identified the name “Preston” and said, “He tried to rape me.”

Detectives located Mr. Hughes in a nearby apartment complex. Investigators found evidence of blood on his clothing and a knife in his apartment, as well as Ms. Charles’s eyeglasses on his couch. Mr. Hughes, who said the glasses were planted, confessed to the murder during the investigation but then denied involvement during the trial. No biological evidence tied him directly to the crime.

Convicted and sentenced to death in 1989, Mr. Hughes had multiple appeals rejected. Then, this year, several unlikely advocates became interested.

John Allen, 64, a retired engineer in California, writes a blog called The Skeptical Juror. With the help of Barbara Lunsford, an accountant in Corpus Christi, and Ward Larkin, an activist from Houston, he has spent nine months and more than 100,000 words delvinginto the forensic and legal details of Mr. Hughes’s case. None of the three are affiliated with an official organization, and while Mr. Allen has written about other convictions in the past, he said he had stopped looking at other cases for now.

After reviewing documents related to the trial, appeals and evidence, he deduced that Ms. Charles must have lost brain function within two minutes, and she could not have told the police the name of her attacker. “This is a seemingly overwhelming case” of innocence, Mr. Allen said, adding that he also believed that the victim’s glasses were planted in the apartment, based on his review of crime scene photographs.

In September, Mr. McCann said he had never heard of Mr. Allen’s investigation. This week, he said Mr. Allen “sounds like a very sincere man who is attempting to right a wrong.”

“Like in fantasy football,” he said, “I think lots of people are happy to offer thought without skin in the game.”

As for Mr. Hughes’s petitions to have him replaced, Mr. McCann said he thought they were the product of desperation. “When a person is drowning,” he said, “they sometimes try to fight the guy holding a life preserver.”

Mr. McCann agreed that Ms. Charles would have “been unconscious in a matter of seconds based on the blood loss,” and so she could not have said Mr. Hughes’s name to the police. Despite being troubled by this evidence, he is not filing a claim of innocence.

“I find myself in an odd position,” he said, “because I’m ethically bound not to advance a claim I think is false.”

Mr. Allen learned about the case while investigating the work of James Bolding, the head of blood analysis for the Houston Police Department’s crime lab at the time, who testified at Mr. Hughes’s 1989 trial. Mr. Bolding tested for blood on Mr. Hughes’s knife while he was in the courtroom. Mr. Hughes said the blood came from a rabbit he had killed months before.

Judge George Godwin said at the time that he found the “cavalier attitude and lackadaisical attitude of doing tests right while we’ve got a jury waiting to come in and hear testimony unacceptable.” He nevertheless ruled that the testimony was permissible.

Mr. Hughes said he trusted Mr. Allen more than his lawyer, Mr. McCann. In September, Mr. Hughes filed a petition to have Mr. McCann replaced, and a court rejected it.

Mr. McCann plans to follow the case to the end. In September, he sued the Texas prison system, saying that by using a single drug for the execution, as a result of a recent policy change, officials would be experimenting on his client. The Court of Criminal Appeals, Texas’ highest criminal court, has ordered the civil court overseeing the case not to stay Mr. Hughes’s execution.

Mr. McCann does not know when the court will rule. “The unfortunate timing of this is it’s before a contested election,” he said.

Murray Newman, a Houston defense lawyer, said he believed Mr. McCann was doing his best and cared about Mr. Hughes. “He works so hard on these cases. It’s like losing a family member,” Mr. Newman said.

From death row, Mr. Hughes sees it differently, as he plays basketball during his hour of recreation every day, eats food he calls “pitiful” and learns about court decisions from a small, black radio.

 

“We don’t like each other,” he said of Mr. McCann. “I don’t feel somebody who doesn’t like me is going to do anything for me.”