Sept. 6 NEW JERSEY: State appeals to reinstate death penalty Death was swift for Maria P. Marshall, but not for the man who orchestrated her murder. Though he was sentenced to die more than 18 years ago, there is no execution in sight for Robert O. Marshall, the Toms River insurance salesman who hired Louisiana hit men to pump 2 bullets into the back of his 42-year-old wife as she slept in the passenger seat of the couple's yellow Cadillac Eldorado in a darkened rest area on the Garden State Parkway on Sept. 7, 1984. With the 20th anniversary of his wife's death approaching -- it's tomorrow -- Marshall was removed from New Jersey's death row earlier this year after a federal judge overturned his death sentence. The April 8 decision by U.S. District Judge Joseph E. Irenas, which prompted an appeal by the state Attorney General's Office, creates the potential for seemingly endless legal wrangling. Those involved in the case are left unable to predict if or when Marshall, who was on death row longer than anyone else in New Jersey after the state reinstated the death penalty in 1982, will ever be executed for his wife's murder. "That's an impossible question to answer," said Deputy Attorney General Robert Bonpietro. "That's the answer I would have given you 10 years ago, and it's the answer I would give until we actually have an execution." State files appeal Bonpietro, seeking to reinstate Marshall's death sentence, has filed an appeal of Irenas' decision with the 3rd U.S. Circuit Court of Appeals in Philadelphia. The outcome of the appeal, which will be heard by a panel of three federal judges, will create a road map of legal avenues to be pursued before the case can finally be resolved. Marshall's execution was originally set for April 25, 1986, by Superior Court Judge Manuel H. Greenberg on March 5, 1986. That was the same day an Atlantic County jury found Marshall guilty of his wife's murder and sentenced him to death by lethal injection. But the execution was automatically put on hold while Marshall exercised his rights to appeal his guilty verdict and death sentence. Both were continually upheld until Irenas ruled that Marshall had ineffective assistance of counsel during the death penalty phase of his trial because his attorney, Glenn A. Zeitz, did not call witnesses to ask the jury to spare Marshall's life. Guilty verdict stands Irenas' decision did not affect the jury's finding that Marshall, in order to collect $1.5 million in life insurance on his wife and continue an extramarital affair, arranged Maria Marshall's murder during a faked robbery after a staged breakdown of the couple's car at the Oyster Creek Picnic Area on the Garden State Parkway. Irenas ordered that a new jury determine whether Marshall should be put to death for the murder. But the Attorney General's Office, in its appeal, is seeking to have the death sentence reinstated without a new death penalty phase. "We are pursuing this because we feel it was a valid judgment entered into by a jury that considered not only the evidence of his guilt but, we feel, enough evidence to get that jury to reject the notion that this is a man of good character who should not get the death penalty," Bonpietro said. "To be with his girlfriend and collect $1.5 million in insurance, he paid somebody to come from another state and murder his wife -- the mother of his three children," he said. Stephen E. Kirsch, assistant deputy public defender, will have to respond to Bonpietro's brief asking that the death sentence be reinstated. "Mr. Zeitz didn't do what a competent defense attorney would have done, and Judge Irenas agreed," Kirsch said. Bonpietro said he will argue that courts should give deference to the legal strategies of defense attorneys. Another delay sought The 3rd Circuit Court of Appeals set Sept. 27 as the deadline for the Attorney General's Office to file its brief, and it gave the Public Defender's Office 30 days to respond to the brief. Bonpietro said both sides have agreed to ask the court for an extension of those deadlines because of the volumes of materials that must be reviewed. "There's a lot to go through in terms of briefing and what documents will be submitted to the court," he explained. Neither Bonpietro or Kirsch anticipates oral arguments on the appeal to be scheduled before early next year, and neither could say when the ap-peals court could issue a decision. If the 3rd Circuit tribunal over-turns Irenas' decision and rein-states the death sentence, Marshall will still have one last chance to ask the U.S. Supreme Court to hear an appeal. If the Supreme Court does not agree to hear the case, Kirsch said he could foresee an execution date being set within a year. Bonpietro noted, though, that no death row inmate has ex-hausted his appeals since the death penalty was reinstated in New Jersey. But based on expe-riences in other states, he said, he would expect that if an exe-cution were to be scheduled, there would be an application for clemency and other legal filings "trying to stop the execu-tion at the last minute." 'Unknown territory' Bonpietro said he could not predict the outcome of the last-minute maneuvers. "We have no experience with them," Bonpietro said. "It's just unknown territory. We don't know, when faced with the prospect of a possible execu-tion, what the governor would do with a clemency petition or what the Supreme Court (state or U.S.) would do with a petition for a stay of execution." He said the state and U.S. su-preme courts have the right to stay executions. If the 3rd Circuit Court upholds Irenas' decision, the attorney general would have to decide if the U.S. Supreme Court would be asked to hear an appeal or if the state would simply retry the penalty phase of the case. Bonpietro said it is premature to decide whether the Attorney General's Office would contin-ue to prosecute the case if there was a penalty-phase retrial, or if the case would be given back to the Ocean County Prosecu-tor's Office, which tried it orig-inally. Both Bonpietro and Kirsch said it is too soon to decide whether a retrial would again have to be moved out of Ocean County -- as it was in 1986 because of pretrial publicity -- or be heard in Ocean Coun-ty, where the murder occurred. Aggravating factors The prosecution does not have to present the entire case again, only evidence of aggra-vating factors that warrant the death penalty, which includes a murder for hire, according to Bonpietro. "Whoever the prosecutor is will be confronted with trying to reconstruct something that is 20 years old," Ocean County Prosecutor Thomas F. Kelaher said. "I don't know if you could re-create in the minds of the jurors all of the facts and circumstances in evidence at the first trial." At a retrial, the public defender will have the opportunity to call witnesses to ask that Marshall's life be spared. Bonpietro surmised they could include family members who support Marshall, who might testify he was a good father, as well as people who might say he is an asset to the prison system. Another defense witness could be Marshall himself, who told Irenas last year that if he knew he could testify during his first death penalty phase, "I would have asked (the jurors) not to make orphans out of my sons." Kirsch would not speculate on what witnesses would be called at a new trial but said, "There is a vast pool of witnesses out there that can be tapped." Parole possibility If a new jury decided to spare Marshall's life, he would be re-sentenced to life in prison with no parole before serving 30 years, under the law that was in effect when the crime was committed. Under that scenar-io, Marshall, behind bars since his arrest in December 1984, could be considered for parole in a little more than 10 years. But Kirsch said a Parole Board decision allowing the release of a murderer must be unanimous, and few murderers are paroled on their first eligibility date. In the event a new jury sen-tences Marshall to death, his appeals process starts anew. The possibility of another round of appeals raises another potential outcome of the case -- that the aging Marshall could die in prison before an execution takes place, as have three other death row inmates before him. And, the potential for another protracted legal battle has some questioning the usefulness of the state's death penalty law. "It's a tremendous waste of judi-cial resources," said Zeitz, whose efforts failed to spare Marshall from a death sentence the first time around. Kelaher said of the law, "If it's on the books and not being used, it raises the question of whether it should be abolished. "The death penalty is supposed to be a deterrent. If you execute someone 20-plus years after the crime, it certainly raises the question, 'How much of a deterrent is it?'" (source: Asbury Park Press) MISSISSIPPI: Coast man to argue death penalty appeal to High Court A Biloxi man sentenced to death for the killing of 3 members of a Gulf Coast family will argue for a new trial before the Mississippi Supreme Court on Sept. 21. The case is among a number of appeals the court has scheduled for oral arguments in September and October. Dozens of other appeals will be decided on briefs submitted by prosecutors and defense attorneys. The appeal from death row inmate Thong Le is 1 of 2 capital murder cases the justices will hear this term. Le was convicted and sentenced to death in Jackson County Circuit Court in 2002. Le was charged in the 2001 deaths of Minh Hieu Thi Huynh, 46, and her daughters, Thuy Hang Huynh Nguyen, 15, and Thanh Truc Nuynh Nguyen, 11. Prosecutors said Le went to the family's house in St. Martin on Nov. 1 to rob them of $1,300. But the daughters, home alone, refused to give Le and his co-defendant, Ngan Tran, the money. Prosecutors said that's when Le and Tran tied up, beat and strangled the girls. They also attacked the mother when she came home later that night, even after she gave them money. Le did not testify at his trial. According to the court record, jurors heard him confess to the crime in his taped interview with police. Tran committed suicide in April 2002 while being held at the Jackson County Jail. Le's lawyer claimed Le robbed the family but had nothing to do with the murders. Other testimony at the trial came from 5 Jackson County jail inmates who said Tran had bragged about the killings after he was arrested and said Le didn't participate in the murders. On cross-examination, though, 4 of the inmates admitted that Le never denied murdering the family, according to the court record. In the other death penalty case, the justices will hear the appeal of Roger Eric Thorson on Sept. 27. It is Thorson's 2nd appeal before the Supreme Court. Thorson was sentenced to death in 2002 for the murder of his former girlfriend 15 years ago. During Thorson's Harrison County trial, prosecutors presented DNA evidence linking Thorson to the crime and played a tape of Thorson's confession. Thorson was charged with the kidnapping, rape and murder in 1987 of Gloria McKinney, a Biloxi mall cafeteria co-worker whom he dated. The Supreme Court threw out Thorson's 1st conviction because of questions about jury selection at his trial. (source: Associated Pres) VIRGINIA: Virginia Governor Seeks Tests of DNA Evidence Gov. Mark R. Warner is reviewing a proposal to test random samples of old DNA evidence from thousands of crime scenes after genetic tests exonerated a man who had served 22 years in prison for 2 rapes, the 3rd such reversal in Virginia. "The justice system is an imperfect system," Warner spokeswoman Ellen Qualls said Saturday. "We neither want innocents jailed or the guilty free." Arthur Lee Whitfield was released Aug. 23, the 3rd Virginia inmate exonerated since 2001 based on evidence discovered in the files of a former state lab analyst, Mary Jane Burton. The 2 other men freed through DNA evidence saved by Burton had served a combined 36 years; they received state restitution of more than $1 million each. Burton, who died in 1999, worked in the lab from 1974 to 1988 and saved copious amounts of DNA evidence even before the genetic fingerprint became a staple of law enforcement and the courts. Since then, Virginia has amassed one of the nation's largest DNA databases and has been a leader nationally in the use of DNA evidence in criminal prosecutions. Warner is studying a proposal he requested from Paul Ferrara, director of the state Division of Forensic Science, for sampling of biological material dating back 2 decades. Ferrara did not respond to a call to his home telephone Saturday seeking detail on his proposal. "The governor decided that we needed to take a look at what we had in some logical fashion," Qualls said. Whitfield, 49, was convicted in 1982 of 2 rapes on Aug. 14, 1981. Both women identified him as their assailant. The DNA samples that cleared Whitfield implicate a man who is serving a life sentence for an unrelated rape, prosecutors have said. At the time of the trial, DNA testing was not available, although state scientists conducted forensic analysis on the samples taken from the victims and Whitfield. Attorney General Jerry Kilgore opposes Warner's request for random state tests, a spokesman said Saturday. "We feel the mechanism is there for inmates to pursue this path," Tim Murtaugh said. "There is absolutely nothing stopping any inmate from pursuing DNA evidence." But a staff attorney for the Innocence Project, which successfully used DNA evidence to exonerate Virginia death row inmate Earl Washington Jr. 9 days before his scheduled execution, said Warner is "absolutely right" to seek out innocent people who may be in prison. "You have people in prison who are illiterate and may not \be aware of the DNA law in Virginia. You have people who suffer from mental illness," said Vanessa Potkin. "There's great potential out there to leave out those people who are not contesting their conviction." (source: Associated Press) MISSOURI: High court to hear death-row appeal----Mount Vernon man's attorney says his poverty, lack of preparation time led to an unfair trial. The Missouri Supreme Court will hear an appeal Thursday for a Mount Vernon death row inmate convicted of killing two brothers nearly 9 years ago. Brandon S. Hutchison, 29, was convicted of two counts of 1st-degree murder in 1996 for the fatal shootings of Ronald and Brian Yates. Columbia attorney Melinda Pendergraph, who represents Hutchison, filed an appeal seeking a new trial. It listed several reasons she thought the Mount Vernon man was unfairly treated. She argued that co-defendant Freddy Joe Lopez got a lesser sentence because he paid a $200,000 civil lawsuit settlement to the Yates family, prompting relatives to request that Lawrence County Prosecutor Robert George seek a 10-year prison term. "Brandon was prejudiced because he received death not because he is the most culpable, but because he could not pay the victims' family lots of money," Pendergraph alleged. She also argued that Hutchison's trial attorneys failed to present evidence that the Mount Vernon man had suffered from multiple disorders because of a lack of adequate preparation time. Assistant Attorney General Stephanie Morrell said in a filed response that nothing indicated the prosecutor or trial court had any knowledge or involvement in Lopez's civil suit, she said. "There is absolutely no evidence that the state sought the death sentence against (Hutchison) because he was indigent and sought a lighter sentence for Lopez because he was wealthy," Morrell wrote. The appeal is among four cases the Supreme Court judges will hear Thursday in Jefferson City. Beth Riggert, Supreme Court spokeswoman, said Hutchison may seek additional appeals if the court rules against Pendergraph. According to court documents filed in Hutchison's case, the Yates brothers went to Lopez's auto shop in Verona late Dec. 31, 1995, looking for their brother Tim, and stayed for a New Year's Eve party. About 4 a.m., Lopez and his wife argued and went to their bedroom in an adjacent residence. While Lopez was gone, Michael A. Salazar Jr. shot the brothers, claiming one had tried to stab him. Medical evidence showed the brothers were still alive despite suffering gunshot wounds. Hutchison, Lopez and Salazar then took the brothers to a road near Freistatt, where the Yateses were shot again. Lopez claimed he stayed in a vehicle while Hutchison and Salazar got out. Prosecutors alleged Hutchison got out with a pistol and said: "We got to kill them." Lopez reported hearing several gunshots before Hutchison and Salazar returned. Defense attorneys contended Hutchison did not orchestrate the murders that night. Law enforcement officials found a piece of carpet that fiber analysis determined was from the trunk of Lopez's car. Hutchison and Salazar were arrested several days later in California. After Hutchison received a death sentence, Salazar received life in prison following a jury's guilty verdict of 1st-degree murder in June 1997. Lopez, who testified against Hutchison, pleaded guilty to 2 counts of 2nd-degree murder in November 1997 and received 10 years in prison. Hutchison is 1 of 55 Missouri death row inmates the state listed in custody this summer. Other Springfield-area death row inmates include: - Walter Barton of Christian County, who was convicted of beating and killing an 81-year-old Ozark woman in 1991. - Donald Hall of Springfield, who was convicted of shooting a jewelry store owner during a 1992 robbery. (source: Springfield News-Leader) OHIO: Death Row prisoner appeals to US courts A Scottish man who is on Death Row in America is urging the courts to make a decision on his latest appeal and as he says 'put an end to it all'. Kenny Richey, who was brought up in Edinburgh, was sentenced to death for his role in a fire which killed a child. He has always protested his innocence. He said: "I think about it every day in one way and I wake up thinking that maybe this will be the day when they render a decision on the case and finally put an end to it all. It gets harder, every day is another day in this hell hole. Every day is another day waking up to an injustice. Every day is another day of waking up to one more day of my life been stolen from me you know." ************************ Tightly shackled with chains on his arms and ankles, Kenny Richey walked slowly from his death row cell. It is been three years since he last met GMTV's Alan Fisher. He looks much older, heavier, and his health has deteriorated. Every day for the past 15 months, he has waited for a federal court ruling on what is essentially his final appeal. A decision which could come any time, a decision on whether he lives or dies. Kenny Richey said: "I think about it every day in one way and wake up thinking that maybe this will be the day that they'll render a decision on the case and finally put an end to it all. The 40-year-old was convicted in 1986 of starting a fire which killed a two-year-old girl. Experts have cast serious doubts on the guilty verdict. Kenny Richey has always maintained his innocence and says every day without a decision is agony. He said: "It gets harder, every day is another day in this hell-hole, every day is another day of waking up to an injustice, every day is a day of waking up to one more day of my life being stolen from me, one more day of not being with my family, one more day of not being able to do what I want to do, one more day of not doing whatever I want to do, any time I want to do it, one more day...period. One more day of not being home. Keep me in prison for the rest of my life or go ahead and kill me, I'll make you do the job." Asked if the death sentence was preferable to life in prison, he said: "Kill me...period. Kill me or set me free." 2 weeks ago he received a call; - his father has cancer. The outlook is not good. He said: "He's trying to make out there's nothing wrong, nothing going on, you know. Trying to be brave because he thinks I've got enough to worry about." Asked if he had managed to fool people into believing he was innocent when the American courts have looked at your case several times and still say he was guilty, he said: "The Amercian courts haven't looked at my case. The American courts looked at the issues surrounding my case, they haven't looked at new evidence. All the American courts have done is look at when I was convicted, all the testimonies that came forward, all testimonies that came on the stand, what the judges did and said at the time, all they have done is look at that and say "Well there was no error committed here and no error committed there" and then they have pushed it forward, they haven't looked at new evidence." More than 200 MPs, the foreign office, the Pope and Hollywood stars have called on America to look again at the case, but this morning Kenny Richey is still closer to the execution chamber than freedom. (source: Scotland Today)
