u.s supreme court

Case Targets Florida Death Penalty Sentencing

The U.S. Supreme Court this fall will hear arguments in a challenge to the way Florida sentences people to death — a challenge backed by 3 former Florida Supreme Court justices and the American Bar Association.
The case, which stems from the 1998 murder of an Escambia County fast-food worker, focuses on the role that juries play in recommending death sentences, which ultimately are imposed by judges.
Attorneys representing death row inmate Timothy Lee Hurst, including former U.S. Solicitor General Seth Waxman, contend that Florida’s unique sentencing system is unconstitutional. Supporting that position in friend-of-the-court briefs are former Florida Supreme Court justices Harry Lee Anstead, Rosemary Barkett and Gerald Kogan, along with the American Bar Association and seven former Florida circuit judges.
Part of the argument centers on what are known as “aggravating” circumstances that must be found before defendants can be sentenced to death. Hurst’s attorneys argue, in part, that a 2002 U.S. Supreme Court ruling requires that determination of such aggravating circumstances be “entrusted” to juries, not to judges.
Also, they take issue with Florida not requiring unanimous jury recommendations in death-penalty cases. A judge sentenced Hurst to death after receiving a 7-5 jury recommendation.
“Florida juries play only an advisory role,” Hurst’s attorneys wrote in a May brief. “The jury recommends a sentence of life or death based on its assessment of aggravating and mitigating circumstances, but that recommendation has no binding effect. Moreover, the jury renders its advisory verdict under procedures that degrade the integrity of the jury’s function. Unanimity, and the deliberation often needed to achieve it, is not necessary; only a bare majority vote is required to recommend a death sentence.”
But in an earlier brief, attorneys for the state argued that the U.S. Supreme Court and the Florida Supreme Court have repeatedly denied challenges to the sentencing process, including the Florida Supreme Court rejecting Hurst’s challenge. The state attorneys argued that a jury, in recommending the death penalty, has found facts that support at least one aggravating factor — which can be the basis for sentencing a defendant to death.
“Therefore, because the jury returned a recommendation of death, this court may infer the jury did find at least one aggravating circumstance beyond a reasonable doubt,” state attorneys wrote in a January brief in the U.S. Supreme Court.
The U.S. Supreme Court this week scheduled oral arguments in the case for Oct. 13, according to an online docket. The court agreed in March to take up the case.
Hurst, now 36, was convicted in the 1998 murder of Cynthia Lee Harrison, who was an assistant manager at a Popeye’s Fried Chicken restaurant where Hurst worked. Harrison’s body was discovered bound in a freezer, and money was missing from a safe, according to a brief in the case.
In sentencing Hurst to death, a judge found 2 aggravating circumstances — that the murder was committed during a robbery and that it was “especially heinous, atrocious or cruel,” according to the brief filed by Hurst’s attorneys. That brief, along with others in the case, were posted on an American Bar Association website and on SCOTUSblog, which closely tracks U.S. Supreme Court proceedings.
Much of the October hearing could focus on how to apply the 2002 U.S. Supreme Court decision — a major case known as Ring v. Arizona — to the Florida law. Hurst’s attorneys contend that the 2002 decision held that “findings of fact necessary to authorize a death sentence may not be entrusted to the judge.” They said Florida’s system undermines the juries’ constitutional “functions as responsible fact-finder and voice of the community’s moral judgment.”
The brief filed on behalf of Anstead, Barkett and Kogan raised similar arguments and said there is “no assurance that Florida death sentences are premised on a particular aggravating circumstance found by the jury.”
“And because jury unanimity is not mandated during the sentencing process, there is no assurance that a Florida jury’s death recommendation represents a reliable consensus of the community,” the brief said. “As a consequence, (the former justices) believe that the jury’s role is impermissibly denigrated and that there is an unacceptable risk that Florida death sentences are erroneously imposed, in violation of the Sixth and the Eighth Amendments to the Constitution of the United States.”
Source: WUSF news, August 1, 2015

Texas executes Tommy Lynn Sells

april 4, 2014

HUNTSVILLE, Texas (AP) — A serial killer has been put to death in Texas after the U.S. Supreme Court rejected his lawyers’ demand that the state release information about where it gets its lethal injection drug.
Tommy Lynn Sells was executed Thursday evening. He became the first inmate injected with a dose of newly replenished pentobarbital that Texas prison officials obtained to replace an expired supply of the sedative.

Texas Department of Criminal Justice officials pronounced him dead at 6:27 p.m., about 13 minutes after he was injected with a fatal dose of pentobarbital.

As he waited word on his U.S. Supreme Court appeal Thursday, Sells was kept in a small holding cell just outside the execution chamber in Huntsville, said Jason Clark, spokesman for the Texas Department of Criminal Justice. Sells was quiet, reserved and accompanied by a chaplain. He had access to a phone, Clark said.

His attorneys had hoped the courts would force prison officials to reveal more information about the pharmacy that supplied the drug. They argued the new pentobarbital could lead to unconstitutional pain.

Lawyers for Sells argued, in part, that, “the increasing scarcity of execution drugs — and consequent concerns about the quality and states’ desperate efforts to keep the source of drugs secret — have become the central feature of botched executions and Eighth Amendment concerns.”

The state prison agency wants the information kept secret to protect the pharmacy from threats of violence.
A Val Verde County jury sent Sells, 49, to death row in 2000 for the December 1999 stabbing death of 13-year-old Kaylene Harris in her family’s trailer home near Del Rio. He confessed after a friend who was sleeping over that night survived having her own throat slit and helped identify him to authorities.

He later pleaded guilty in Bexar County to strangling 9-year-old Mary Beatrice Perez, who was abducted from a Fiesta event at Market Square in 1999. District Attorney Susan Reed agreed to drop her bid for a second death sentence, instead settling on life in prison, in exchange for the plea.

Court records show Sells claimed to have committed as many as 70 killings in states including Alabama, California, Arizona, Kentucky and Arkansas.

The families of both slain children were on a list to witness the execution. Kaylene’s witnesses included her father, brother and two grandmothers. Also present were the mother and grandmother of Mary.

Sells’ execution is the fifth lethal injection this year in Texas, the nation’s busiest state for the death penalty.

Source: AP, April 3, 2014

TEXAS- UPCOMING EXECUTION Kimberly McCarty JUNE 26, 2013 Executed

Update june 26

Update June 25

Texas’ highest criminal court has denied a request to block a Dallas County woman’s execution this week.

Kimberly McCarthy’s execution would be the 500th in Texas since the state resumed carrying out the death penalty in 1982. She contends black jurors were improperly excluded from her trial by Dallas County prosecutors and this wasn’t challenged by her lawyers.

But the Texas Court of Criminal Appeals in Austin denied McCarthy’s request on Monday. The court said it didn’t consider the merits of McCarthy’s appeal because she should have raised her claims previously.

Maurie Levin, McCarthy’s attorney, said she is “reviewing the order and considering our options.”

McCarthy, 52, also would be the first woman put to death in the U.S. since 2010 if she receives lethal injection on Wednesday.

UPDATE JUNE 20

APPEAL FILED FOR KIMBERLY McCARTHY

DALLAS – Attorneys for Kimberly McCarthy filed an appeal Wednesday designed to block her execution.

The motion was made in the 292nd District Court of Dallas County, the site of McCarthy’s original trial on a charge of murdering her neighbor.

If McCarthy does not succeed in her appeals, she is slated to be executed Wednesday..

june 19 2013 source : http://www.kwtx.com

Kimberly McCarthy (Texas prison photo)

The lawyer for former nursing home therapist Kimberly McCarthy, 52, who’s scheduled to die next week for the murder of an elderly neighbor, has filed an appeal in an effort to block the execution.

McCarthy, who’s on women’s death row in Gatesville, is scheduled to receive a lethal injection next Wednesday.

If she does, she would be the first woman put to death in the U.S. since 2010 and the 500th prisoner executed in Texas since the death penalty resumed in 1982.

She was sentenced to die for the fatal stabbing, beating and robbery of her 71-year-old neighbor, retired college professor Dorothy Booth, in 1997.

McCarthy’s state court appeal contends black jurors were improperly excluded from her trial, and that her lawyers should have challenged the exclusions.

Lawyer Maurie Levin says the punishment should be stopped in light of a recent U.S. Supreme Court decision backing another Texas prisoner who raised similar arguments about attorney competence.

I. BACKGROUND

On July 21, 1997 McCarthy entered the home of her 71-year-old neighbor Dorothy Booth under the pretense of borrowing some sugar and then “stabbed Mrs. Booth five times, hit her in the face with a candelabrum, cut off her left ring finger in order to take her diamond ring, and nearly severed her left little finger as well.” McCarthy v. State, No. 74590, 2004 WL 3093230, at *2 (Tex. Crim. App. 2004). McCarthy then took Mrs. Booth’s purse and its contents, along with her wedding ring and fled in her car. Later, McCarthy bought drugs with the stolen money, used the stolen credit cards, and pawned the stolen wedding ring. This was the last in a series of robbery-murders that McCarthy committed against her elderly female acquaintances.

On August 18, 1997, McCarthy was charged with capital murder for causing Booth’s death in the course of committing and attempting to commit robbery. (Vol. 1, State Clerk’s Record, “CR”, at 2-3) Her first conviction and death-sentence in 1998 was reversed on direct appeal by the Texas Court of Criminal Appeals (“CCA”). See McCarthy v. State, 65 S.W.3d 47 (Tex. Crim. App. 2001) (hereinafter “McCarthy I”). She was subsequently tried and found guilty of capital murder in November of 2002, which was affirmed, see McCarthy v. State, 2004 WL 3093230 (“McCarthy II”), and her petition for a writ of certiorari was denied by the Supreme Court of the United States. McCarthy v. Texas, 545 U.S. 1117 (2005). McCarthy filed her second state habeas action on August 24, 2004, which was denied (without an evidentiary hearing in the trial court) by the CCA on September 12, 2007. Ex parte McCarthy, No. 50,360-02, 2007 WL 2660306 (Tex. Crim. App. 2007). On September 11, 2008, McCarthy filed in this court a petition for a writ of habeas corpus within the one-year limitations period.

Victim Dorothy Booth, 71.

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.”

John Lotter, ‘Boys Don’t Cry’ Killer And Death Row Inmate, Denied Appeal By U.S. Supreme Court

march, 27  source : http://www.huffingtonpost.com

OMAHA, Neb. — The U.S. Supreme Court has denied the appeal of a Nebraska death row inmate whose murder case inspired the 1999 film “Boys Don‘t Cry.”

John Lotter and a co-defendant were convicted in the 1993 slaying of Teena Brandon, a 21-year-old woman who lived briefly as a man, and two witnesses to her killing. Lotter has maintained his innocence.

In August, a three-judge panel of the 8th U.S. Circuit Court of Appeals rejected Lotter’s attempt to appeal his conviction, and his request for the full court to consider his appeal was denied.

Lotter then appealed to the U.S. Supreme Court which last week denied Lotter’s request without comment.

Lotter’s attorney, Andre Barry of Lincoln, declined to comment on Tuesday. Lotter can petition the U.S. Supreme Court for a rehearing of the appeal.

Along with Brandon’s death, Lotter and Nissen were convicted of killing Lisa Lambert, 24, and Philip DeVine, 22, who witnessed Brandon’s death in the farmhouse near Humboldt, about 80 miles southeast of Lincoln.

Brandon had reported being raped by the two men. A former Richardson County sheriff was later criticized for his handling of the rape charges and for failing to offer Brandon protective custody.

In a deal with prosecutors to avoid the death penalty, Nissen testified that he stabbed Brandon, but Lotter fired the shots that killed the three. Nissen was sentenced to life in prison.

But in July 2007, he changed his story and said he, not Lotter, shot all three.

true story  of brandon Teena

No. 11-8458      *** CAPITAL CASE ***
Title:
John L. Lotter, Petitioner
v.
Robert Houston, Warden
Docketed: January 24, 2012
Lower Ct: United States Court of Appeals for the Eighth Circuit
  Case Nos.: (11-2223)
  Decision Date: August 23, 2011
  Rehearing Denied: October 31, 2011
~~~Date~~~ ~~~~~~~Proceedings  and  Orders~~~~~~~~~~~~~~~~~~~~~
Jan 20 2012 Petition for a writ of certiorari and motion for leave to proceed in forma pauperis filed. (Response due February 23, 2012)
Feb 17 2012 Brief of respondent Robert Houston, Warden in opposition filed.
Feb 28 2012 Reply of petitioner John L. Lotter filed. (Distributed)
Mar 1 2012 DISTRIBUTED for Conference of March 16, 2012.
Mar 19 2012 Petition DENIED.

TEXAS – Court Ruling Could Affect Texas Death Row Cases

march, 21   source :http://www.texastribune.org

Death row inmate Jesse Joe Hernandez, set to be executed next week for the 2001 death of a 10-month-old boy in Dallas, is hoping that a ruling Tuesday from the U.S. Supreme Court could give him another chance to prove that the tragedy was not entirely his fault.

The nation’s highest court ruled that the failure of initial state habeas lawyers to argue that their client’s trial counsel was ineffective should not prevent the defendant from making that argument later on. Lawyers across the country, including those for at least two Texas death row inmates, were eagerly awaiting the court’s ruling in the Martinez v. Ryancase out of Arizona, which could expand appeals access for inmates.

“A procedural default will not bar a federal habeas court from hearing those claims if, in the initial-review collateral proceeding, there was no counsel or counsel in the proceeding was ineffective,” the court majority held.

Habeas lawyers investigate issues that could or should have been raised during a defendant’s original trial.

Brad Levenson, director of the Texas Office of Capital Writs, filed a petition with the Texas Court of Criminal Appeals on Tuesday afternoon on behalf of Hernandez,arguing that his March 28 execution should be stayed, in part, because of the court’s ruling.

Although the ruling applies to federal courts, Levenson said, Texas’ highest criminal court should take its cue from the nation’s highest court and hear Hernandez’s claims.

Hernandez was convicted in 2002 for the death of a child who lived in the home where he lived at the time. Hernandez admitted he hit the child, who was rushed to the hospital, where he was put into a medically induced coma and then died after he was removed from life support.

In a writ filed Tuesday with the Texas Court of Criminal Appeals, Hernandez argues that his actions did not directly cause the child’s death. Instead, an expert who recently reviewed the medical records concluded that the hospital gave the child a lethal dose of the drug pentobarbital and that he was pulled from life support too soon.

“There’s no way to tell at end of day whether he would have survived,” Levenson said. “Our expert said there’s a very real probability the child could have lived.”

Levenson said Hernandez’s trial lawyers and his initial appeals lawyers were ineffective because they failed to do further investigation and hire their own experts to find out why the child died. Levenson, who took the case only three weeks ago, hired a doctor who reviewed the medical records and determined that the little boy had not been diagnosed as brain-dead before he was removed from life support and that he was given toxic doses of pentobarbital.

“It’s not to say that Mr. Hernandez is not guilty of a crime, but he’s not guilty of capital murder,” Levenson said.

Current law, though, could prohibit Hernandez from arguing that because his original trial lawyers were ineffective by not further investigating the cause of death that he should get a new trial. Those kinds of claims must be raised from the beginning of the appeals process to be valid later on. And Hernandez’s previous habeas lawyers did not argue that he was inadequately represented.

Levenson said that even though Tuesday’s Supreme Court ruling applies to claims made in federal court — not state writs like the one he filed — the same principle ought to apply.

“We’re saying the state courts should also take a look at these claims for the same reason the Supreme Court would take a look at them,” he said.

The ruling could also be a boon for death row inmate Rob Will, who was convicted in 2002 of fatally shooting a Harris County sheriff’s deputy. Will says that the man he was with that night was the real shooter and that he is innocent.

In January, U.S. District Court Judge Keith Ellison denied Will’s pleas for a new trial but wrote that he lamented doing so because of “disturbing uncertainties” raised about his guilt.

Will is hoping the court’s ruling in Martinez will allow him to argue that he should get a new trial because both his trial lawyer and his state-appointed habeas lawyer were ineffective when they failed to track down several witnesses who have testified that the other man confessed to the killing.