August 5 SOUTH DAKOTA: Death-row inmate takes appeal to U.S. Supreme Court An appeal by South Dakota death-row inmate Charles Russell Rhines will be considered during the October term of the U.S. Supreme Court. Rhines, 48, wants the high court to decide if his future appeal strategy may be limited. A 3-judge panel of the 8th U.S. Circuit Court of Appeals ruled last October that Rhines must choose between continued appeals in state or federal court. The decision overturned U.S. District Judge Karen Schreier of Sioux Falls, who had ruled in 2002 that Rhines could continue in state court with issues not exhausted there while his federal habeas corpus petition was put on hold. Rhines was found guilty of 1st-degree murder for fatally stabbing Donnivan Schaeffer, 22, at a Rapid City doughnut shop on March 8, 1992. Schaeffer worked at the shop and was killed during a burglary. Rhines has alleged that he did not get a fair trial and that he illegally received the death penalty. He is one of four men on death row in South Dakota and is considered to be the closest to execution. The last execution in the state took place in 1947 when George Sitts, 33, was electrocuted after killing 2 South Dakota lawmen while on the run from a murder in Minneapolis. Sitts died a few minutes after being led from his cell to the electric chair. Wearing a black hood with blinders over his eyes, he was given alternating shocks of 2,300 volts and 575 volts. Sitts, who had earlier been in jail and prison for other crimes, kept his bravado to the end. His final statement was: "In my experience, this is the first time the authorities ever helped me escape (from) prison." If Rhines is executed, he will first be numbed by a fast-acting sedative and then his heart will be stopped by a lethal drug. Electrocution was repealed by the 1984 Legislature, which decided that future executions should be more humanely done by lethal injection. John Schlimgen and Roberto Lange, 2 Sioux Falls attorneys representing Rhines, argue in a written brief to the U.S. Supreme Court that a one-year restriction on federal habeas corpus proceedings does not expire while state habeas proceedings are pending. In an effort to shorten the lengthy appeal process in death-penalty cases, Congress passed a law in 1996 that limits the time to file federal habeas corpus petitions to one year after completion of direct appeals. The Anti-terrorism and Effective Death Penalty Act also restricts the scope of review by federal judges and generally limits prisoners to a single federal appeal; a 2nd appeal is allowed only if new evidence of innocence is convincing. State lawyers who are fighting Rhines' legal maneuvers would not be reached Wednesday. They were attending a death-penalty conference in Portland, Ore. One of those lawyers, Deputy Attorney General Craig Eichstadt, has said in the past that Rhines should not be allowed to continue his appeal efforts in both state and federal courts. Eichstadt also has argued that Rhines cannot legally bring up some issues not raised earlier. (source: Associated Press) ALABAMA - impending execution Protests don't halt preparation to execute 74-year-old prisoner With numerous pleas before the courts and Gov. Bob Riley to stop the execution, Alabama authorities Wednesday continued preparations for the lethal injection today of 74-year-old James Barney Hubbard. Hubbard would be the oldest person to be executed in the United States since 1941. "At age 74, with all of his illnesses and his documented dementia, regardless of that you think about the death penalty, there is no deterrent value or any other purpose served by putting Mr. Hubbard to death," said Hubbard's attorney, Alan Rose of Boston. Hubbard, the oldest inmate on Alabama's death row, was convicted of the 1977 slaying of Lillian Montgomery, a 62-year-old Tuscaloosa storeowner who took him in after he was paroled from prison in another murder. He has been on death row 27 years. During incarceration, Hubbard has developed dementia, cancer, emphysema and hepatitis. His attorneys have based appeals on his age and his medical and psychological problems, saying it would be cruel and unusual punishment to execute him. "He's confused. A psychologist has pointed out that Hubbard is unable to understand any complex procedure. His memory is extremely poor. He's in constant pain, and he can only walk with great difficulty and great pain," Rose said. Rose this week filed briefs with the 11th Circuit Court of Appeals, but the court Wednesday refused to block the execution and he filed a petition with the U.S. Supreme Court. "We also continue to have high hopes for our pleas before Governor Riley," Rose said. "I have confidence that Governor Riley will do the right thing and commute to life without possibility of parole." By late Wednesday, the governor had not intervened or commented publicly. Spokesman John Matson said Riley had received more than 100 requests to stop Hubbard's execution. The majority were from outside the United States, Matson said. The National Coalition to Abolish the Death Penalty is among the groups that asked Riley for clemency. The Washington-based group said governors in Oklahoma, Indiana and Texas have granted clemency requests this year. "Even if one supported the death penalty, it is difficult to understand what purpose James Hubbard's execution would serve," said David Elliot, communications director for the coalition. "This is a clear case for mercy." The Alabama attorney general's office has fought appeals based on Hubbard's age. "Just because he chose to murder somebody when he was 50 doesn't mean he should obtain some benefit from that just because he's a little older than some death row inmates," said Clay Crenshaw, head of the capital litigation division with the AG's office. The dementia diagnosis was vague and should not be considered, he said. "There's absolutely nothing in the records to show that he's incompetent or that there's anything wrong with his mental health," Crenshaw said. Victim's 2 sons: One person close to the case who will not attend the execution is Lillian Montgomery's son, Johnny Montgomery, 58, a Homewood Realtor. Montgomery said Hubbard deserves to die but he has forgiven him, a step he says was necessary for his Christian faith and recovery from alcoholism. "If I hadn't of forgiven him, I'd still be stuck. I'd still be full of anger, bitterness and resentment." Montgomery, an award-winning triathlete, said his family's battles with alcohol have spawned much turmoil in their lives. He's been sober 14 years and will be speaking to a group of recovering addicts tonight when Hubbard is scheduled to die. "I started drinking when I was 5 years old. We were bootleggers, that's how I learned to run, carrying whiskey through the woods," Montgomery said. His slain mother, too, was an alcoholic. She had a soft heart and gave a job at the family store to Hubbard when he got out of prison. "If mother wasn't an alcoholic, probably Mr. Hubbard wouldn't be there to begin with," Montgomery said. It saddens him when he thinks his daughters never knew their grandmother. "She was a pistol," he said. "If it would bring my mother back, I would be down there, but nothing I can do down there will resolve anything," he said. His older brother sees things differently and will be witnessing the execution. "This thing here has been a big weight on my shoulders for many years," said Jimmy Montgomery, 66, of Tuscaloosa, a retired lieutenant colonel in the Army. "I have a lot of hate and a lot of anger. Johnny tries to work on me about this. I just can't forgive this guy and let it go. "If somebody does me wrong, it stays with me a long time," said Jimmy Montgomery, also a recovering alcoholic. "And I waste a lot of good time thinking about these things." The haze of alcohol has long been an issue in the case. Hubbard had been drinking when he was arrested. Tuscaloosa police cracked open a bottle of whiskey to "steady his nerves" so he could sign a confession, Rose said. One court wrote that the police conduct was unprofessional. "I think the reason it has taken so long is that the courts have been very, very disturbed by some of the grounds we have raised," he said. The execution is scheduled for 6 p.m. at Holman Prison in Atmore. (source: Birmingham News) SOUTH CAROLINA: Basham death penalty trial to start Aug. 30 The federal death penalty trial for a 2nd man accused of carjacking and killing a Conway woman nearly 2 years ago will begin Aug. 30 and could last 2 months. The trial of Branden Basham could be delayed by holidays and U.S. District Judge Joseph Anderson's previous commitments. Basham's co-defendant, Chadrick Fulks, has been sentenced to death for killing and carjacking Alice Donovan in November 2002. Fulks was the first man to receive a federal death sentence in South Carolina. Fulks pleaded guilty before his trial began and jurors spent about a month listening to testimony before deciding his sentence. Basham's lawyers refuse to say if their client might do the same thing. "We plan on going to trial," attorney Jack Swerling said. Donovan was last seen on video from a surveillance camera being carjacked in the parking lot of a Conway store, prosecutors said. Both Fulks and Basham have told authorities Donovan is dead, but her body has never been found. Prosecutors said it was part of a crime spree that started when the 2 broke out of a Kentucky jail. The pair also face state and federal charges in West Virginia in the death of Marshall University student Samantha Burns. Her body also has not been found. During Fulks' sentencing, his lawyers tried to show that Basham bullied Fulks during the crime spree and was the one who killed the 2 women. In turn, Basham's lawyers are expected to blame Fulks for being the ringleader. During a hearing Wednesday, Basham's lawyers said they want anyone who knows Fulks was sentenced to death to be left off the jury. Anderson will rule on that later. Anderson denied a defense request to keep people from Horry County off the jury. Fulks' jury included at least 1 person from Horry County. (source: Associated Press) NEW YORK: Jury rejects death penalty in case A federal jury rejected death as a sentence Thursday for two men convicted of killing a government informant, bringing an emotional end to a case in which the trial judge had concluded the federal death penalty was unconstitutional. Alan Quinones and Diego Rodriguez will be formally sentenced in September to life in prison after the jury announced its conclusion after less than 2 hours of deliberations. Relieved relatives of the defendants quietly sobbed after the verdict was announced by an anonymous jury that had convicted Quinones and Rodriguez several days earlier in the 1999 murder of informant Edwin Santiago. U.S. District Judge Jed S. Rakoff had warned spectators they would be ushered from the courtroom by U.S. marshals if there were outbursts as the verdict was read. The rejection of the death penalty was met with such quiet that Rakoff felt obligated to tell the jury he had ordered the muted response. Even before the case went to trial, Rakoff made it a focus in the nation's death penalty debate by declaring the federal death penalty statute unconstitutional in July 2002. Rakoff said too many innocent people have been executed and that the federal death statute amounted to the "state-sponsored murder of innocent human beings." His ruling energized death penalty challengers. The National Association of Defense Attorneys and the American Civil Liberties Union Capital Punishment Project submitted papers on appeal. But the 2nd U.S. Circuit Court of Appeals in Manhattan in December 2002 overturned Rakoff's ruling, finding that only the Supreme Court can change "well-settled" law. The government then proceeded with its death-penalty case against Quinones and Rodriguez. Prosecutors argued for death, saying the murder of the informant in the Bronx was particularly heinous because the 2 drug dealers tortured and strangled their victim and then burned the body. The defense argued that the defendants had terrible childhoods. The case marked only the second time in Manhattan that a federal jury has considered whether the death penalty should be imposed since the 1953 execution of Julius and Ethel Rosenberg. Since then, the death penalty statute has changed considerably, placing much more responsibility with jurors. In the Rosenbergs' 1951 trial, the law called for the judge to impose death in a capital crime unless the jury recommended mercy. Under current law, a separate penalty hearing is held following a conviction for a capital crime. The jury's decision is binding unless a judge finds it to be tainted. In 2001, 2 men convicted of conspiracy in the 1998 terrorist bombing of 2 U.S. embassies in Africa were sentenced to life in prison when a jury rejected the death penalty for each of them. (source: Associated Press) ********************** Let Death Penalty Law Simply Expire On Sept. 1, 1995, the New York state death penalty statute took effect. Many of the supporters of the law were right-thinking and well-intentioned people. On June 24, the New York State Court of Appeals found the state death penalty statute to be unconstitutional. The issue now lingers before the Legislature. The lawmakers can either "fix" the flaw in the statute, or they can let the law die a natural death. Since 1995, $160 million has been invested in the death penalty. Seven inmates have been sentenced to execution. No one has been executed. Supporters of the law promised that the death penalty would be administered fairly. But statistics show that upstate prosecutors are 4 times more likely to pursue the death penalty than downstate prosecutors. Three of the 7 cases that resulted in death sentences were from Suffolk County. Statistics also show that prosecutors are far more likely to seek death if the victim of the crime is white than if the victim is black. Statistics do not indicate that the law has deterred crime. In Monroe County, where prosecutors have sought the death penalty more than any other county, the homicide rate has risen dramatically in recent years. In Manhattan, where capital punishment has not been sought since the early 1960s, the homicide rate has reached a 40-year low. The death penalty law has been a costly, unsuccessful experiment. The only good thing is that the worst fear of opponents has not been realized no one has been wrongly executed. Let us stop before we make that fatal mistake. Jeanne E. Mettler, Katonah (source: Letter to the Editor, Journal News)
