death penalty

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

December 14.2017

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Former Death Row Inmate in Arkansas Released on Parole

December 14, 2017

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

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

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

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

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.”

Death Sentence Commuted to Life For William Gregory, Double-Murderer of Flagler Beach

December 4, 2017

The murders happened on August 21, 2007, at a house on John Anderson Highway in Flagler Beach. William Gregory, 24 at the time, walked in on his ex-girlfriend Skyler Dawn Meekings, 17, and her boyfriend of two months, Daniel Arthur Dyer, 22, as they slept together, and shot them both at close range with a shotgun. A 1-year-old child Gregory had with Meekins was sleeping in a bedroom nearby.

He was tried, found guilty, and in 2011, sentenced to death in the culmination of a case that had drawn such notoriety locally that it was moved to Volusia County. It eas tried before Circuit Judge William A. Parsons.

But the jury’s recommendation for death in 2011 was by the slimmest possible margin of 7-5, back when Florida was one of just two states that still allowed death sentences to be imposed after less than a unanimous jury verdict. That changed less than two years ago, when U.S. Supreme Court and Florida Supreme Court decisions found Florida’s method of sentencing defendants to death unconstitutional.

Recommendations must now be unanimous. In Gregory’s case, the Supreme Court in August threw out his death sentence and returned the case to circuit court in Flagler County for a new sentencing phase.

That would have meant an elaborate process, similar to a trial, involving pre-trial hearings, the impaneling of a jury, the questioning of witnesses at a sentencing hearing
and jury deliberations. In other words it would have meant bringing back Meekins’s family to relive those events again.

It would have also raised other procedural issues Gregory’s attorney raised in 2016, claiming there would have been grounds for a mistrial in the original case.

William Gregory at his latest booking at the Flagler County Jail in November.

William Gregory at his latest booking at the Flagler County Jail in November.

Monday morning, Circuit Court Judge Dennis Craig commuted Gregory’s death sentence to life in prison without parole on both counts.

“We looked at the case and and consulted with the family,” Assistant State Attorney Jason lewis said. “They did not want to go through the process again.” So the prosecution agreed to a commutation in what amounted to a hearing lasting all of five minutes. Gregory had been brought in from his death row cell at the state prison near Raiford.

“We’d have to basically do a whole new penalty phase,” Lewis said, “and we take the family’s wishes very seriously. That’s what they wanted.”

The families’ positions were no mystery, as Daniel Dyer’s big sister had expressed it in her statement to the court before the 2011 sentencing: “The worst thing about Dan’s death,” she wrote, “is the way he died. He didn’t die in an accident or a health condition. He was murdered by a cowardly little twit. He was such a coward that instead of confronting Dan, like a real man, he crept in the dark into Skyler’s room, and shot them both in the head while they were asleep. The wounds were so horrible that we couldn’t even have an open casket for Dan so we could see him one last time.”

She had asked for the death penalty. “He had the right to a judge and jury,” she’d written, “but what about Dan and Skyler’s rights? They had no judge, no jury, only a 12-gauge shotgun to the head while they slept.” Using Gregory’s nickname, she went on: “And what has Billy done this entire time? He shows no remorse, no sorrow, he just sits there, so arrogant, that somehow he thought he ws smart enough to get away with it, that he had the right to play God and kill 2 innocent people. Foe what? The simple fact that Skyler had left him for a real man.”

The families of the victims were not in court this morning. But Skyler’s aunt Deborah Meekins had written the court six years ago that while she had never been much for the death penalty, “what I do know–Billy is all for it. Billy sentenced Skyler and Dan to the death penalty, right there, that night, as they slept together alone for the first time.”

Skyler’s father, Hap Meekins, had written of his daughter in 2011: “Skyler was very talented. A straight-A student with ambition. But the thing that I remember the most was her dedication toward anything she did. Being the youngest of three girls did not matter. Like the summer she spent fishing on the Pier. The three girls would spend hours fishing for King Fish. She caught a 30-lb. King Fish which didn’t go over well with her sisters. She never minded getting her hands dirty whether it was fishing, playing soccer, or helping me with the garden. She was very unselfish; she would help me [with] anything I asked.” And he’d concluded: “My memories will keep me going for the rest of my life. I love you Skyler always and forever. No one can take that away.”

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.”

Op-ed: Abolishing the death penalty is not a ‘defense’ of society’s worst criminals

November  1, 2017

A Nov. 16 op-ed addressed an October panel discussion centered around the various issues with the death penalty (“Addressing false assumptions about the death penalty”). The author claims the panel “defended the indefensible” — rapists and murderers. The panel’s purpose was not to “defend” anybody, but to address a broken system and discuss better alternatives. What is indefensible is the perpetuation of a failed policy that doesn’t keep the public safer, risks executing innocent people and costs taxpayers millions of dollars in the process.

The author claims that the death penalty acts as a deterrent and saves lives — that more executions means a lower overall murder rate. The problem with that argument, though, is that it’s false on its face. He cites that in 1960 there were 56 executions and 9,140 murders. Four years later there were 15 executions and 9,250 murders. Therefore, because there were 41 fewer executions in 1964 versus 1960, and an increase of 110 murders, the death penalty must be an effective deterrent. What he fails to factor in is the population increase in the United States from 1960 to 1964. This means the homicide rate was lower in the year with fewer executions — 5.1 murders per 100,000 in 1960 and 4.9 in 1964.

When comparing death penalty states against non-death penalty states, the lack of deterrent effect is apparent. In the last decade, death penalty states have seen an average increase in their homicide rates of 2.25 percent, from 5.31 per 100,000 people in 2007 to 5.43 in 2016. Non-death penalty states have actually seen their homicide rates decrease by 7.9 percent, from 5.28 in 2007 to 4.86 in 2016.

Additionally, of the 10 states with the lowest murder rates in 2016, eight of them were states with no death penalty. Finally, since the argument is that more executions means an overall lower murder rate, when you take the top 10 states with the highest execution numbers since the death penalty was reinstated, they have an average homicide rate of 5.78 over the last decade, roughly 17 percent higher than the national average of 4.94 during the same time.

Dozens of studies far more exhaustive than an op-ed allows have shown there is no deterrent benefit to the death penalty. The most comprehensive analysis was conducted by the renowned National Research Council, which examined over three decades of studies and concluded there is no deterrent effect by having the death penalty. The conclusion of these scientists and academics is shared by experts on the front lines of keeping our communities safe. In two separate national surveys of police chiefs, the death penalty was ranked the least effective tool to prevent violent crime.

Beyond not being an effective deterrent to crime, the death penalty is flawed in other profound ways. Since 1976, at least 160 people have been released from death rows due to evidence of their innocence (an average of one person every three months) — some within hours of their scheduled executions. Additionally, the costs are outrageous. According to Utah’s Legislative Fiscal Analysis Office, the death penalty costs us $1.6 million more than life without parole per inmate. Unavoidable mandates from the U.S. Supreme Court mean capital cases take decades from trial to conclusion (which in most cases is a legal reversal of some sort, not an execution). This lengthy process is also a nightmare for the victims’ families who are promised a punishment and then forced to wait through year after year, appeal after appeal, while the condemned becomes a celebrity.

Those of us who spoke on the panel last month did so with a desire to expose the ugly truth that our death penalty system isn’t serving our state. We are eager to cultivate a robust and honest dialogue about a punishment that has cost our state millions of dollars, provides false promises to victims, risks executing innocent people and — as experts continually attest — doesn’t make us any safer.

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.

Prosecutor: Why Arizona still needs the death penalty

November 27, 2017

County attorney: As long as there are horrific murders, there will be a role for the death penalty as a just and proportionate punishment.

n a coordinated campaign, death penalty opponents submitted nearly identical op-eds in major publications across the U.S. seeking to persuade the United States Supreme Court to review the case of Arizona vs. Hidalgo and abolish the death penalty.

Understanding how a decision is made to pursue the death penalty, the facts of this case and about the death penalty in Arizona undermines their arguments.

Few murders become death penalty cases

My office follows a thorough and deliberative process for reviewing all death penalty eligible cases under tight deadlines. Arizona law requires us to make an initial decision within 60 days of the murderer’s arraignment.

During this period, we request any and all information the defense team can offer to assess whether the death penalty can be supported by the evidence and is an appropriate punishment.

If more time is needed to gather information, we regularly work with the defense to extend deadlines. After receiving input from victims, reviewing everything provided by the defense, and considering the facts and circumstances of the case, an experienced team makes a recommendation to me.

MORE: Maricopa County runs out of death penalty attorneys

I consider the recommendation carefully before making any decision. Approving the filing of a “notice of intent to seek the death penalty” is the most consequential decision I make as county attorney.

Should more information be provided later on, we regularly review it and, where appropriate, we revisit our initial decision and resolve cases accordingly.

Lastly, not all murder cases are death penalty cases. In fact, Maricopa County has averaged 203 murders each year from 2012 through 2016, and a death notice has been filed in an average of 14 cases each year – less than 8 percent of the murders.

Why Hidalgo was sentenced to die

As for the op-eds, they fail to acknowledge the extensive protections provided to capital defendants to safeguard constitutional rights and ensure a fair and just process.

In Hidalgo’s case, every constitutional right was protected. Hidalgo had a qualified capital defense team that included experienced investigators and mitigation specialists. The trial judge that presided over the case had presided over numerous death penalty cases and had represented several capital defendants before becoming a judge.

A jury unanimously imposed a death sentence on Hidalgo for good reason.

Hidalgo agreed to kill the victim on behalf of a street gang for $1,000. When Hidalgo went to kill the victim, the victim was not alone.

Hidalgo murdered this second victim to eliminate a potential witness. He shot one victim in the back of the head and the other in the forehead. Even though both victims were certainly dead, Hidalgo shot each victim an additional five times.

Before determining death was an appropriate punishment, the jurors found that Hildalgo had actually killed four people, the two Arizona victims and two Idaho women.

Like other death penalty cases in Maricopa County, the question was not who did it.  Hidalgo actually pleaded guilty to the charged offenses. The only contested issue was what the penalty should be.

A just system needs the death penalty

Next, death penalty opponents assert that the death penalty in Arizona is racially disparate. But this does not match the facts. Currently, there are 69 Caucasians, 25 Mexican Americans, 17 African Americans, four Native Americans, three Asians and two classified as “other” awaiting justice on Arizona’s death row.

Continuing complaints about the cost and time to impose the death penalty neglect the costs associated with constitutional protections and thorough appellate review caused by the very people complaining about costs and the time involved.

For Arizona, this has led to excessive litigation in the U.S. Ninth Circuit Court of Appeals and unnecessary delays averaging more than 20 years with associated costs. Other federal circuits in the United States routinely and thoroughly review death penalty appeals within 10 years. This tolerance for endless litigation is an area ripe for criminal justice reform.

Recent polls continue to reflect that a majority of Americans support the death penalty, and 31 states have determined there is a place for the death penalty in a just and proportionate system of punishment.

One year ago, voters in Nebraska reinstated the death penalty abolished the year before by their legislature. Voters in California recently rejected an initiative to abolish the death penalty and passed Proposition 66, which seeks to speed up the process for final review of capital sentences.

As long as there are horrific murders reflecting the worst of crimes, there will be a role for the death penalty as a just and proportionate punishment.

Bill Montgomery is Maricopa County attorney.

Law changes force dozens of old death penalty, juvenile cases back into courtrooms

November  29,  2017

A black teenager, just shy of his 16th birthday, was arrested for raping a white woman in 1967 in Escambia County.

Lester Simmons pleaded guilty through an agreement with the state that allowed him to avoid the death penalty.

But had the case been prosecuted today, it would have likely been handled differently.

After the passage of a new law, Simmons’ public defender, Kelly Richards, is now tasked with proving her client should be released from prison 50 years later, despite his life sentence.

Richards said the case is rife with racial and social undertones indicative of the time. A partial transcript from Simmons’ trial shows he stayed in the woman’s home for some time after the crime, during which the victim sparked a conversation with him about how difficult it was to be a black person in that era.

Now, his defense team will ask a judge to weigh how much those societal factors affected his sentence and try to prove Simmons, now 66, should be free.

Simmons is one of dozens of offenders in the First Judicial Circuit whose cases have been reopened this year after two unprecedented Supreme Court decisions. Both of these decisions have forced prosecutors and defense attorneys to invest hours of research and additional costs to re-examine the old cases.

The first decision brings back the case of every juvenile who has been sentenced to life in prison. With more research on brain development, the U.S. Supreme Court decided in 2012 that juveniles should be entitled to special hearings before a judge to ascertain their crime was heinous enough to warrant a life sentence, despite certain factors such as their immaturity and family or peer pressure.

The second decision mandates new penalty phase hearings for all death row inmates who were sentenced by juries that did not unanimously recommend the death sentence.

In 2016, the Florida Supreme Court declared the previous law unconstitutional based in part on the local case of Timothy Hurst. In all of the cases that warrant a new penalty phase, a new jury will be selected to hear the facts of the case and determine the death penalty aspect. None of the inmates are at risk of being released, as the guilt factor of their offense still remains.

The Legislature didn’t allocate additional funding to absorb the costs, so the Public Defender’s Office and the State Attorney’s Office have instead authorized overtime, travel costs and shuffled senior attorneys to lower divisions to help with the additional workload.

In the First Judicial Circuit, which covers Escambia, Santa Rosa, Okaloosa and Walton counties, the state is dividing 31 juvenile resentencing cases and as many as 10 death penalty resentencing cases among its attorneys.

“It is a lot of work, and on the death penalty resentencings, we are requesting two weeks to try those cases because we expect most of the evidence from the original trial will have to be presented again in order for the jury to evaluate the aggravators, the mitigators and the death penalty sentence,” State Attorney Bill Eddins said.

Eddins said juvenile sentencing hearings are being scheduled for between two and five days.

If each of the cases — both the juvenile sentencing hearings and death penalty resentenchings — were heard at their maximum and in the same court consecutively, it would equate to nearly a year dealing with cases affected by the two new laws — and that doesn’t take into account new crimes or pending cases.

Public Defender Bruce Miller said for each of the death penalty resentencing cases and juvenile resentencings, his office curates a legal team of a lead attorney, second chair, mitigation specialist, legal assistant and fact investigator.

Mitigation specialist Lindsey Johnson is tasked with tracking down old records for the defendants, finding their families and friends, organizing psychologists and other experts to testify about brain development, and locating key witnesses to the original case. For some of the cases, those witnesses are as recent as five years ago, but others case are decades old and the witnesses have since died.

“With a lot of the older ones especially, one of the guys has no family, it’s hard to find people,” Johnson said. “They’ve been in prison so long that sometimes even if they do have family they kind of forget about them.”

While neither the state nor defense is required to present the same witnesses or use the same attorney as during the original trial, it’s helpful if they can, Eddins said. To keep up with the strain, his office has brought in supervisors who usually act as managers to handle cases.

John Molchan, for example, usually oversees felony cases as a supervisor and serves on the circuit’s death penalty assessment board. But he has taken on the majority of the death penalty resentencing cases as the lead prosecutor.

Miller and Eddins said the state hasn’t funneled any additional funding to either the Public Defender’s Office or the State Attorney’s Office to help with the resources and manpower needed to bring back these old cases.

Aside from salaries and overtime allowances, there’s travel to speak with inmates housed in prisons across the state and the cost of bringing in experts to assess the case and testify.

There hasn’t been a cost assessment on the financial impact of the two Supreme Court decisions on local courts, but a conservative estimate for expert defense witnesses in just one of juvenile resentencing case would be more than $20,000, Miller said.

“The hours that go into something like this are enormous,” Miller said.

He said his office has requested additional attorneys in next year’s budget to help with the workload, but he expects the office will need to work within its means to accommodate the law shifts.

In the case of Simmons, the black teenager serving a life sentence, the state and defense must delve into 50 years of law revisions and present an argument that accurately reflects the sometimes-foggy details they can find in old court records from 1967. Nowadays, the death penalty wouldn’t even be on the table for a juvenile offender, said Simmons’ attorney, Richards.

“These are so time consuming because we have to go back to 1967 to find out exactly what happened, what may have happened legally in between and different laws come into play depending on when the original crime occurred, so they’re all different, it’s not cookie cutter anything,” Richards said.

Several of these cases have already been heard, including the case of Britnee Miller, who pleaded guilty to killing an acquaintance with her mom and neighbor in 2010 when she was 16.

During Miller’s sentencing hearing in October, Circuit Judge Gary Bergosh heard of Miller’s abusive childhood, of her dependency on her mother and her mom’s approval, and of how Miller has matured in the seven years since the death of Audreanna Zimmerman. Bergosh took those factors into account, but ultimately maintained Miller’s life sentence.

Another case, that of then-17-year-old Clifford Barth, who helped a group of friends rob and kill an auto parts employee in 1991, had a different outcome. Barth served 25 years in prison, and the judge decided in September he should be released.

In that case, both the state and defense agreed Barth should be released, and there wasn’t much argument by either side. He had no prior record, was immediately remorseful for his actions and hadn’t received any disciplinary reports during his decades in prison.

The Public Defender’s Office isn’t dealing with as many of the reopened cases as the State Attorney’s Office because some defendants are represented by private attorneys or the Public Defender’s Office has a conflict of interest.

Still, Miller, the Public Defender, said Johnson’s recommended caseload for death penalty cases is between four and seven, and with the influx, she’s over that recommendation.

“The juvenile resentencing especially is just a seismic shift in the legal arena, so to speak, and it’s still evolving,” Richards said. “Cases are coming out, being appealed, different circuits are handling things different so you’ve got to stay on top of the case law.”

While some juvenile sentencing hearings have been held in the First Judicial Circuit since the law shift, the region has yet to see death penalty sentencing phases heard in local courtrooms.

Eddins said he expects a number of juries to be impaneled in those cases as soon as next year. Cases like that of Jonathan Lawrence, a mentally ill man who killed several people in Santa Rosa County, and Willie Hodges, who killed a Pensacola woman with a claw hammer, have penalty phase trial dates set for next year already to reassess their death row status.

The others are still being assessed and are going back and forth between state and defense filings as each tries to keep up with precedents, tracking down witnesses who thought their involvement in cases were done decades ago, and working with defendants who may get a second chance at a life outside of prison.