USA NEWS

Connecticut may be latest state to repeal death penalty

april 5 2012

(CNN) — The Connecticut Senate on Thursday voted to repeal the death penalty, setting the stage for Connecticut to join several states that have recently abolished capital punishment.

In the last five years, New Jersey, New Mexico, New York and Illinois have repealed the death penalty. California voters will decide the issue in November.

The bill now goes to the House of Representatives, where it is also expected to pass. Gov. Dannel Malloy, a Democrat, has vowed to sign the measure into law should it reach his desk, his office said.

“For everyone, it’s a vote of conscience,” said Senate President Donald Williams Jr., a Democrat who says he’s long supported a repeal. “We have a majority of legislators in Connecticut in favor of this so that the energies of our criminal justice system can be focused in a more appropriate manner.”

In 2009, state lawmakers in both houses tried to pass a similar bill, but were ultimately blocked by then-Gov. Jodi Rell, a Republican.

Capital punishment has existed in Connecticut since its colonial days. But the state was forced to review its death penalty laws beginning in 1972 when a Supreme Court decision required greater consistency in its application. A moratorium was then imposed until a 1976 court decision upheld the constitutionality of capital punishment.

Since then, Connecticut juries have handed down 15 death sentences. Of those, only one person has actually been executed, according to the Death Penalty Information Center, a nonpartisan group that studies death penalty laws.

Michael Ross, a convicted serial killer, was put to death by lethal injection in 2005 after giving up his appeals.

“It’s not a question of whether it’s morally wrong, it’s just that it isn’t working,” said Richard Dieter, the group’s executive director. “I think when you hear of 15 to 20 years of uncertain appeals, that’s not closure and that’s not justice. It’s a slow, grinding process.”

Eleven people are currently on death row in Connecticut, including Steven Hayes and Joshua Komisarjevsky, who both were sentenced for their roles in the 2007 murders of the Petit family in Cheshire, Connecticut.

The high-profile case drew national attention and sparked conversations about home security and capital punishment. In vetoing the measure to eliminate the death penalty in 2009, Rell cited the Cheshire deaths.

Dr. William Petit, the sole survivor in that attack, has remained a staunch critic of repeal efforts.

“We believe in the death penalty because we believe it is really the only true, just punishment for certain heinous and depraved murders,” Petit told CNN affiliate WFSB.

Advocates of the existing law say capital punishment can act as a criminal deterrent and provides justice for victims.

Opponents say capital punishment is often applied inconsistently, can be discriminatory and has not proven to be an effective deterrent. They also point to instances in which wrongful convictions have been overturned with new investigative methods, including forensic testing.

“Mistakes can be made and you may not know about it until science later exposes them,” said Dieter.

But a recent Quinnipiac poll found that 62% of Connecticut residents think abolishing the death penalty is “a bad idea.”

“No doubt the gruesome Cheshire murders still affect public opinion regarding convicts on death row,” said Quinnipiac University Poll Director Douglas Schwartz.

That number jumps to 66% among Connecticut men, and drops to 58% among the state’s women, according to the poll.

The Senate’s proposed law is prospective in nature, meaning that it would not apply to those already sentenced to death.

Texas – TDCJ wants to block release of lethal injection drug info

april 3, 2012 source : http://www.chron.com

The Texas Department of Criminal Justice is refusing to disclose the size of its stock of a key pharmaceutical used in executions, saying doing so would endanger its drug makers and suppliers.

The charge comes in a brief filed with the Texas Attorney General’s Office in response to a December query by an British newspaper concerning the contents of state’s death house medicine chest. The agency said releasing such information would provide ammunition for Reprieve, a British anti-death penalty group that successfully has pressured drug makers to stop selling to executioners.

Likening Reprieve’s campaigns to those of violent prison gangs, the brief written by TDCJ Assistant General Counsel Patricia Fleming asserts that releasing information “creates a substantial risk of physical harm to our supplier. … It is not a question of if, but when, Reprieve’s unrestrained harassment will escalate into violence…”

TDCJ is seeking authorization not to answer questions posed in a December public information request by Ed Pilkington, the New York correspondent for The Guardian, a national British newspaper. An attorney general’s response is expected this month.

Pilkington sought to determine how much pentobarbital, one of three drugs used in executions, the death house had in stock. He also asked how the agency met requirements that a second “back up” dose of lethal drugs be available at executions.

“I was very surprised by the language they chose to use, which was pretty inflammatory, really,” Pilkington said. “Obviously, there is an international disagreement over the death penalty. … Usually that discourse is conducted in a civilized manner.”

He called the claim that the prison system’s drug suppliers were in jeopardy, “pretty far-fetched.”

‘Public interest’

Joseph Larsen, a lawyer for the Freedom of Information Foundation of Texas, said Pilkington’s questions go to the “heart of how effectively TDCJ performs its official functions.”

“The whole idea behind the Texas Public Information Act is that the governmental bodies do not get to control the information that underlies political discussion,” he said. “Specifically, the governmental body does not even get to ask why a requestor wants certain information. How then can a governmental body base its argument for withholding on what use it anticipates will be made of the information if released?”

In a 2008 case, the Attorney General’s Office sided with TDCJ in denying Forbes magazine the names of companies that supplied execution drugs, noting that “releasing the names of the companies would place the employees of those companies in imminent threat of physical danger.”

Drug’s maker pressed

An appeals court rejected that ruling the following year.

Pentobarbital was added to the state’s lethal cocktail in May 2011, replacing sodium thiopental after that drug’s maker stopped production, in part because of Reprieve’s anti-drug agitation.

Reprieve followed by directing international pressure on Lundbeck, pentobarbital’s Danish maker, obtaining a July 2011 agreement that the company no longer would sell to prisons in death penalty states. The production plant later was sold, but the new owner abided by the agreement.

Reprieve also targeted a pharmaceutical company that had supplied sodium thiopental to Arizona. On its website, Reprieve posted photos of the supplier’s office along with its tax returns and the name, phone number and address of its owner.

Texas – Appeals Court Orders Re-evaluation of Death Row Case

april 4, 2012 source :http://www.texastribune.org

Dr. George Denkowski conducted psychological exams for 14 current death row inmates. 1) Anthony Pierce 2) Virgilio Maldonado 3) Calvin Hunter 4) Roosevelt Smith Jr. 5) John Matamoros 6) Derrick Charles 7) Kim Ly Lim 8) Coy Wesbrook 9) Joel Escobedo 10) Jamie McCoskey 11) Warren Rivers 12) Tomas Gallo 13) Steven Butler 14) Alfred BrownDr. George Denkowski conducted psychological exams for 14 current death row inmates. 1) Anthony Pierce 2) Virgilio Maldonado 3) Calvin Hunter 4) Roosevelt Smith Jr. 5) John Matamoros 6) Derrick Charles 7) Kim Ly Lim 8) Coy Wesbrook 9) Joel Escobedo 10) Jamie McCoskey 11) Warren Rivers 12) Tomas Gallo 13) Steven Butler 14) Alfred Brown

The Texas Court of Criminal Appeals today ordered a Harris County criminal court to re-evaluate whether death row inmate Coy Wayne Wesbrook is intellectually competent enough to face execution for the murders he was convicted of in 1998.

Wesbrook was sentenced to death for the 1997 fatal shootings of his ex-wife and three men. He appealed his death sentence, raising claims that he was mentally retarded. His claims were denied in 2007 after Dr. George Denkowski testified as an expert for the state in his case.

The state’s highest court has ordered similar reviews in at least two other death penalty cases involving Denkowksi, who was reprimanded last year for his work. (See story below.)

(12/15/2011) — The Texas Court of Criminal Appeals on Wednesday ordered lower courts to review two death penalty cases that involved a psychologist who was reprimanded earlier this year for using questionable methods to determine whether defendants were intellectually competent enough to face capital punishment.

“What we’re seeing is a growing awareness on the part of the Court of Criminal Appeals for scientific integrity in criminal cases,” said Kathryn Kase, interim executive director of the Texas Defender Services, which represents death row inmates. “The evidence of retardation in both of these cases is pretty compelling.”

The state’s highest criminal court sent the cases of Steven Butler and John Matamoros back to Harris County courts to re-evaluate the evidence used to sentence the two men to death. Dr. George Denkowski examined both of the men and told the juries they did not suffer from mental retardation.

In April of this year, the Texas State Board of Examiners of Psychologists (TSBEP), issued a reprimand against Denkowksi, whose methods were widely criticized. Denkowksi agreed not to conduct intellectual disability evaluations in future criminal cases and to pay a fine of $5,500. In return, the board dismissed the complaints against him. The psychologist admitted no wrongdoing and defended his practice. But defense lawyers were hopeful that the reprimand would prompt the courts to review other cases where juries relied on Denkowski’s evaluations to hand down death sentences.

Denkowski evaluated 14 inmates who are now on Texas’ death row — and two others who were subsequently executed — and found them intellectually competent enough to face the death penalty.

The U.S. Supreme Court ruled in 2002 that states cannot execute mentally handicapped people. The court, though, left it to the states to create guidelines for determining whether a person is mentally handicapped. Texas courts have generally adopted a three-part definition that requires the convicted inmate to have below average intellectual function, lack adaptive behavior skills and to have had those problems from a young age.

Prosecutors regularly relied on Denkowski to perform psychological evaluations to determine whether a murder suspect would be eligible for execution. But in 2009, other psychologists and defense lawyers complained to the TSBEP that Denkowski used unscientific methods that artificially inflated intelligence scores to make defendants eligible for the death penalty.

In his 2006 evaluation of Steven Butler, who was convicted in the shooting death of a store clerk, Denkowski rejected other IQ test scores that indicated Butler was well below average intelligence. He discounted behavioral evaluations from Butler’s family and friends, who said that Butler couldn’t understand the rules of basketball, had to have others read menus for him and that he had failed basic classes.

The U.S. 5th Circuit Court of Appeals stayed Butler’s execution pending the outcome of the complaint against Denkowksi. And on Wednesday, the Texas Court of Criminal Appeals said it was acting on its own initiative to remand the case to the trial court in Harris County and “allow it the opportunity to re-evaluate its initial findings, conclusions, and recommendation in light of the Denkowski Settlement Agreement.”

The U.S. 5th Circuit Court of Appeals had also stayed the execution of Matamoros, who was convicted in 1992 of stabbing to death a 70-year-old Houston man. As in the Butler case, the criminal appeals court said it was taking initiative to send the case back for re-evaluation based on the psychologist’s reprimand.

Kase said she hoped the court would also order re-evaluation of the other death penalty cases in which Denkowski examined the defendants.

“Exonerations, I think, have caused the court to become concerned about the integrity of forensic evidence,” she said. “That’s really, really important here, where the decision about whether someone has retardation is a matter of life and death.”

Death Row inmate who killed mother dies after illness

april 4, 2012 source : http://www.pressdemocrat.com

SACRAMENTO — A Death Row inmate has died of natural causes while awaiting execution for killing his own mother.

Lt. Sam Robinson, a spokesman for San Quentin State Prison, said Frank Manuel Abilez died in the prison’s hospital Tuesday.

Abilez, who was 53, had a long-term illness. Robinson says his death was expected but would not discuss the illness, citing privacy laws.

Abilez was on death row for sodomizing and strangling his 68-year-old mother in 1996. He was convicted by a Los Angeles County jury in 1997 and sentenced to die for killing Beatrice Abilez Loza, a mother of 10.

The state Department of Corrections and Rehabilitation says 76 condemned inmates have died of natural causes or committed suicide since California reinstated the death penalty in 1978. Fourteen have been executed.

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OREGON – Prosecutor agrees with OR death row inmate

april, 3 2012 source : http://www.dailytidings.com

PORTLAND, Ore. — As Oregon death row inmate Gary Haugen fights a reprieve, he has a supporter in Marion County District Attorney Walt Beglau whose office won the death penalty conviction.

Haugen wants to be executed and has asked a circuit court to rule that Gov. John Kitzhaber’s reprieve is legally ineffective because Haugen doesn’t accept it.

Beglau told The Oregonian that’s the central issue in the case. Beglau says he disagrees with Kitzhaber’s reprieve and won’t defend it. The Oregon Justice Department will.

Haugen was sentenced to die for killing another inmate in prison. The governor is opposed to capital punishment.

Ohio’s execution process, death row inmates face uncertain future

With Ohio’s execution process tied up in court, 153 inmates on death row face an uncertain future.
The 2011 Capital Crimes report, issued today by Ohio Attorney General Mike DeWine, summarizes the status of the death-penalty process, including the 12 inmates with scheduled execution dates and 46 inmates lethally injected since 1999. The report, required annually by state law, goes to the governor, state lawmakers and the courts.
What DeWine’s report does not say is when, or if, executions will resume. Reginald Brooks, a Cuyahoga County man who murdered his three sons in their beds, was the last person executed, on Nov. 15 last year.
Since then, the state has been tied up in federal court on a legal challenge to the lethal injection process. U.S. District Judge Gregory L. Frost has been highly critical of the state’s lethal-injection protocol and stopped an execution; Gov. John Kasich postponed others, anticipating federal court entanglements.
In general, the appeals process in capital punishment cases takes so long that 22 Death Row inmates died before their execution, DeWine said. That number increased by one this week with the death by natural causes of Billy Sowell, 75, of Hamilton County.
DeWine’s report covered the calendar year through Dec. 31, 2011.
DeWine reported there are 14 convicted killers with scheduled death dates, although the number is now 12 with two having been postponed. The death dates run through Jan. 16, 2014.
The 46 men who have been executed were responsible for killing 76 people, 17 of them children.
Source: Columbus Dispatch, March 31, 2012

Death row inmate’s effort to spare live gains momentum – Rob Will

march 31 2012 source : http://www.chron.com

Robert Gene Will II says he couldn't have killed a Harris County officer because Will's hands were tied behind his back. Photo: Ben DeSoto / Houston Chronicle

Like so many before him, Texas death row inmateRobert Gene Will II says he’s not guilty. Given the state of Texas’ record in seeing its death sentences carried out, the odds on getting the right people to believe him are not great.

But there have been exceptions. Will insists that if he can get a fair hearing, he will be another one. He admits he was no saint in his younger days, that he ran with a bad crowd, and yes, that he and a buddy were breaking into a car on the morning of Dec. 4, 2000, when a spotlight suddenly caught them in its glare. Within moments his life changed forever, and Harris County Sheriff’s Deputy Barrett Hill lost his.

Will claims he did not shoot Hill. He has claimed as much since the day of his arrest. He could not have done it, he says, because his hands literally were tied behind his back.

“I am COMPLETELY INNOCENT,” Will wrote on a website dedicated to securing his freedom, “and I am sure anyone who takes the time to look into my case will come to that same conclusion.”

Perhaps not. Those convicting of killing law enforcement officers are even less likely than most of death row’s 288 residents to find sympathy. So it was bound to draw notice when U.S. District Judge Keith Ellison recently showed legal solidarity even as he denied Will’s latest appeal. Ellison said legal limitations – technicalities, if you will – precluded him from siding with Will.

“Questions as to Will’s possible innocence do remain,” Ellison wrote in a March 19 order granting Will the right to appeal to a higher court. “Unfortunately, the court is powerless to address the merits of additional claims raised post-judgment, unsettling though they are.”

Judge suggests review

In a separate opinion two months earlier, issued after a hearing at which Will was allowed to introduce evidence, Ellison reiterated his frustration at not being able to help, and he went further. Although he also denied Will’s motion, the judge made clear that Will’s case should get a broader review. He called one of the original trial judge’s rulings an “error of grave proportion” and said that the presence of rows of uniformed law enforcement officers in the courtroom “would have likely justified post-trial relief had the issue risen on direct appeal.”

“The questions raised during post-judgment factual development about Will’s actual innocence create disturbing uncertainties …,” Ellison wrote in a Jan. 17 memorandum. “On top of the considerable evidence supporting Will’s innocence and the important errors in the trial court, there must also be addressed the total absence of eyewitness testimony or strongly probative forensic evidence. With facts such as these, and only circumstantial evidence supporting Will’s conviction and death sentence, the court laments the strict limitations placed upon it.”

Questions abound

Will, 33, admits that he and Michael Rosario were burglarizing a car when Hill came across them. They ran, but Will was apprehended. He claimed that he was handcuffed when Rosario showed up and shot the deputy. Prosecutors contended that Will shot the deputy and admitted as much to a motorist he encountered during a later carjacking as he was trying to escape. Will’s lawyers argue that the motorist did not mention that in any of her early statements to police.

Will’s lawyers also have argued that Rosario, the son of a Houston police officer who was not charged in the murder, has admitted killing Hill to at least five individuals. They also point to an absence of any forensic evidence connecting Will to the shooting, and to a bullet graze on the back of a jacket Will wore that morning – consistent with a shot being fired by Rosario toward Hill when the latter was close by and in custody. Hill’s weapon was not fired.

Justices’ ruling a factor

Ellison’s sympathetic language after reviewing the case was the first good news Will’s legal team has had in a long time. But even better news arrived on March 20 when the U.S. Supreme Court ruled that simple fairness, if not the Constitution, requires that the lawyers who handle the early appeals of a capital murder conviction do so competently.

In a 7-2 decision in Martinez v. Ryan, the high court ruled those convicted of a crime can in some instances challenge the effectiveness of those hired for so-called habeas corpus appeals at the state level. It is unclear, experts said, whether such a challenge is limited to the very narrow circumstances raised by that Arizona case, or whether it can be applied to all manner of misconduct that results in a defendant being unable to raise an issue in future appeals, such as missing a deadline or failing to file certain claims.

“I think it is arguable that Martinez covers the latter scenario and will be argued by defense counsel that way, but the opinion as written is pretty restrictive,” said Brad Levenson, head of the State Office of Capital Writs, a public defender’s office for appeals in capital murder cases that was established in 2010 in part because of concern over the consistence of legal representation. “I think only time will tell how far Martinez can be interpreted.”

If the decision turns out the be less restrictive than the specifics of the Martinez case, the ruling could be significant. Critics of the decision, including dissenting Justice Antonin Scalia, raise fears that it will prolong death row appeals and be a burden to states. Defense lawyers who specialize in capital cases say it could be a great boon to those who have drawn the black bean of a lousy appeals lawyer.

Ex-lawyer defends work

Will’s former state habeas lawyer, Leslie Ribnik, filed a 28-page legal brief on Will’s behalf, the first 20 pages of which were the same — word for word, typo for typo — as the one he filed in the case of Angel Maturino Resendiz, the notorious “railroad killer” whose serial murders led to his conviction and ultimate execution in 2006.

Ribnik admitted making mistakes in Resendiz’s appeal and missed deadlines, which resulted in the default of some claims. Ribnik later removed himself from the appellate lawyer list and acknowledged he suffered from Parkinson’s disease and likely was feeling the effects even as he was preparing Will’s appeal.

Nevertheless, Ribnik has previously insisted he did an adequate job on Will’s appeal.

“I will own up to my screw-ups — I’ll take my lumps,” Ribnik told the Austin American-Statesman in 2006. “As for Will, I think I did a good job on that one.”

Will’s later appeals lawyers disagreed, pointing out that Ribnik did not investigate the statements from individuals about Rosario’s alleged statements about the shooting, or investigate anything.

“The damage was real,” Will’s lawyer, Samy Khalil, said of Ribnik.

Ellison seemed inclined to agree. If Will’s appeal is again placed before him, he may be able to do something.

“It seems that Judge Ellison could hear the claim now,” Levenson said. “And from what I know, it could be a substantial claim.”

Demand “Justice” But Beware The Rush To Judgment In The Trayvon Martin Case

march 31, 2012 source : http://fairandunbalancedblog.blogspot.com

There are many disturbing questions surrounding the shooting of Trayvon Martin, many of them outlined here.  A rigorous independent investigation geared towards answering these questions and determining the extent to which George Zimmerman committed criminal acts is essential.  But as rallies today by civil rights groups and others “demand justice” and call for Zimmerman’s “immediate arrest,” I want to urge caution.

I remain very uncomfortable with the demands and petition drivescalling for Zimmerman’s prosecution (not to mention the vigilante response) based only on the selected facts to which we, the public, have become privy.

There are very good reasons to doubt the good faith of local law enforcement and the prosecuting agencies in this case, and we should certainly be demanding justice.  But we can’t know yet what a just response is.  We should await the findings of the special prosecutor — which may very well spur more legitimate questions and demands — rather than rush to judgment now based on the limited information filtered down to us from the media.

Far more often than not, in the wake of a tragic death it is the suspicious-looking African American in the hoodie for whom there is this kind of clamor for “swift justice.”

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State Court Allows False-Confession Experts, but Bar Is High

march, 30  source : http://www.nytimes.com

ALBANY — New York’s highest court said for the first time on Thursday that expert testimony about false confessions should be allowed at trial if it is relevant to the facts of a case.

But the court also seemed to set a high bar for determining that relevance: In a 5-to-2 decision, the judges upheldthe conviction of a defendant, Khemwatie Bedessie, in the rape of a 4-year-old boy, arguing that the testimony of her expert witness was not germane to the specifics of her confession.

Still, the decision by the New York Court of Appeals was a welcome sign for defense lawyers and innocence advocates who have argued that police interrogation tactics can lead people to admit to crimes they did not commit. About a quarter of the convicts exonerated by DNA evidence nationwide gave false confessions, made self-incriminating statements or pleaded guilty, according to the Innocence Project.

“That the phenomenon of false confessions is genuine has moved from the realm of startling hypothesis into that of common knowledge, if not conventional wisdom,” Judge Susan P. Read wrote in the majority opinion.

Vincent M. Bonventre, an Albany Law School professor, called the ruling “a big step.”

“The kind of evidence, which in the past people relied on more heavily than anything else, now the Court of Appeals is saying, ‘Yeah, we understand a lot of these confessions might be false,’ ” he said.

In her 21-page opinion, Judge Read also acknowledged what has become a hot-button issue at the Capitol: the videotaping of police interrogations.

“While electronic recording of interrogations should facilitate the discovery of false confession and is becoming standard police practice, the neglect to record is not a factor or circumstance that might induce a false confession,” she wrote.

Peter J. Neufeld, a co-director of the Innocence Project, said he hoped that acknowledgment would spur the State Legislature to act on a proposed measure to require the videotaping of all interrogations, one of the key pieces of legislation that defense lawyers are promoting.

“We’ll never know what actually happened there, because there was no videotape of the interrogation,” Mr. Neufeld said of the Bedessie case. (In fact, she confessed twice, and the second one was videotaped.)

Not surprisingly, Chief Judge Jonathan Lippman joined Judge Theodore T. Jones in his dissent, because both thought that the expert in the Bedessie case should have been allowed to testify. Judge Lippman has long advocated for greater protection againstwrongful convictions through things like the videotaping of confessions and changes in the way lineups are conducted. Judge Lippman commissioned a taskforce, co-chaired by Judge Jones, that in January recommended legislation to put those measures in place.

Although the court refused to overturn the conviction of Ms. Bedessie, who is serving a 20-year sentence, “It’s a wonderful decision for defendants in the future,” said Ronald L. Kuby, who represented her in the appeal.

Ms. Bedessie, a teacher’s assistant, was charged in 2006 with performing sexual acts on a 4-year-old boy under her supervision.

At her trial the following year, Ms. Bedessie testified that she did not do the things she had described doing with the boy, and had confessed to them only after a police detective told her she could either tell the truth and go home or “go to Rikers Island jail, where she would be beaten,” according to Judge Read’s decision.

Before her trial started, Ms. Bedessie’s lawyer asked the court to allow Dr. Richard J. Ofshe, an expert on false confessions who interviewed the defendant, to testify. The trial judge denied the request, declaring, among other things, that Dr. Ofshe’s testimony would not be of value to the jury.

The Court of Appeals ruled that Dr. Ofshe’s testimony would not have been relevant to this case, after examining a report he had submitted on behalf of Ms. Bedessie. “The body of his report was filled with discussion of extraneous matters, speculation and conclusions based on facts unsupported even by defendant’s version of her interrogation,” Judge Read wrote.

For instance, Judge Read wrote, Dr. Ofshe provided an analysis suggesting that the boy was coerced into the allegations, but that had nothing to do with whether Ms. Bedessie falsely confessed. Dr. Ofshe also failed to show any link between studies of false confessions and some of the tactics that the detective was said to have used to get Ms. Bedessie to confess, the judge wrote.

Judge Jones, in the dissenting opinion, called the majority’s conclusion “curious.” The report, he wrote, “involved research concerning incidents that lead to false confessions and the tactics in this case that may have compromised the reliability of the confession.”

California – Judge rejects Raymond man’s request for new trial

march, 31 source : http://www.unionleader.com

BRENTWOOD — A judge rejected a Raymond man’s argument for a new trial, which was based on claims he was wrongfully convicted of raping a 41-year-old woman in 2009.

Raymond Payette, 55, a former Raymond public works employee, claimed he received ineffective assistance from his defense lawyer and that prosecutors engaged in misconduct.

He alleged prosecutors should have never allowed the victim to testify about DNA found on her underwear.

Chief Justice Tina Nadeau heard testimony from Payette’s former lawyer at a hearing in February before reaching her decision on March 22.

Payette is serving 7 to 15 years in state prison after being convicted by a jury of aggravated felonious sexual assault.

Defense lawyer Tom Gleason argued that Payette’s former attorney, Gerard LaFlamme, should have objected to testimony about DNA samples found on the woman’s underwear. The DNA did not match Payette, according to Gleason.

LaFlamme testified he made a tactical decision to not object to the woman’s testimony about the DNA as a means to question her veracity.

Nadeau agreed LaFlamme’s decision was a sound tactic to use at trial.

“Even objectionable testimony can help a defendant’s case,” Nadeau wrote in a five-page order.

During the trial, Payette even argued the sex he had with the woman was consensual, lessening the importance of the testimony, Nadeau noted.

Nadeau also rejected the contention that Payette was barred from testifying in his own defense. LaFlamme testified in February that after analyzing the evidence against his client before and toward the end the trial, he advised against Payette taking the stand, Nadeau wrote. LaFlamme was concerned that Payette was not hold up under questioning by prosecutors.

But the decision whether to testify was ultimately left up to Payette, Nadeau wrote.

The sexual assault happened on the night of July 16, 2009. Payette made his way into the woman’s home by asking to wash his hands after petting horses that were behind her home, prosecutors said.

Payette was recently completed a 1-to-2 year prison sentence on a witness tampering conviction related to the sexual assault case. He will be eligible for parole in July 2016 on the sexual assault sentence.