death penalty news October 7, 2004
NORTH CAROLINA: Ruling delays execution Lethal injection challenge proceeds The state's planned execution early Friday of convicted murderer Sammy Perkins was still on hold late Wednesday after a federal appeals court declined to lift a trial judge's freeze order. The U.S. 4th Circuit Court of Appeals in Richmond, Va., rejected the state's request to let the execution go forward despite Perkins' claim that lethal drugs the state uses could torture him. The state then asked the U.S. Supreme Court to lift a stay Chief U.S. District Court Judge Terrence Boyle issued Friday. The high court's decision wasn't known Wednesday evening. Boyle issued the stay after Perkins' attorneys said he should be allowed to pursue a lawsuit challenging the legality of the state's lethal injection method. Attorney General Roy Cooper's office declined to comment on the court action or the case. Ken Rose, director of the N.C. Center for Death Penalty Litigation, said Perkins' case raises serious issues that affect other inmates slated for execution. "The 4th Circuit in essence is acknowledging that questions remain," he said. "I cannot understand why the Attorney General's Office wants to rush it. Why push it? Why experiment with it?" Also Wednesday, a state court judge denied Perkins' request for a new trial, The Associated Press reported. Perkins, 51, was sentenced to death in 1993 for the rape and murder of a 7-year-old Pitt County girl, Lashenna "Jo Jo" Moore, who was the granddaughter of his girlfriend. Pitt County Superior Court Judge Wilton Duke rejected the claim that Perkins was convicted on illegal hearsay evidence. Duke said a U.S. Supreme Court ruling that limits the use of evidence not directly from a witness didn't apply because the ruling came down after Perkins' state trial. Duke also admonished the defense, noting the Supreme Court case was decided nearly seven months ago, yet Perkins waited until three days before his scheduled execution to file the appeal. Shortly after Duke ruled, the defense appealed to the state Supreme Court, which quickly denied a request for a hearing and a separate stay of execution. Perkins now awaits word on whether the U.S. Supreme Court will lift Judge Boyle's stay and let the execution proceed at 2 a.m. Friday. He was moved Wednesday afternoon from death row to the isolated area near the death chamber at Central Prison in Raleigh. (source: newsobserver.com) ============ USA: High court reconsidering execution of minors Case of Roper v. Simmons During the second week of October, the United States Supreme Court will hear argument in Roper v. Simmons. The case calls upon the Court to consider once again the question whether the Constitution permits the government to execute offenders who committed their crimes while under the age of eighteen. In 1989, in Stanford v. Kentucky, the Court answered the question yes, even though it had held a year earlier, in Thompson v. Oklahoma, that the Eighth Amendment barred the execution of convicts who were fifteen years of age or younger at the time of their crimes. The distinction between fifteen and sixteen, said the Court, was based upon the respective presence or absence of a national consensus. The issue of executing minors raises important questions about what we believe makes a person deserving of the ultimate sanction. The Missouri court's bold decision Roper is an unusual case in the boldness of the ruling that preceded its presentation before the highest court in the land. The Supreme Court of Missouri granted the petition of Christopher Simmons for relief from his upcoming execution, in spite of the fact that the U.S. Supreme Court had specifically rejected the very grounds on which the Missouri court based its decision: the fact that the petitioner was under eighteen at the time of his offense. A state supreme court, of course, does not have the power to overrule a U.S. Supreme Court decision on the meaning of the U.S. Constitution. According to the Missouri Justices in the majority, however, the meaning of the Eighth Amendment ban on cruel and unusual punishments has changed since 1989, when Stanford was decided, and this change has rendered (previously legal) juvenile executions unconstitutional. The Missouri court reasoned that the nation's views underlying the earlier Supreme Court decision have evolved, and so, therefore, has the constitutional status of such sentences. Comparison of minors and mentally retarded In determining that there is now a national consensus against the execution of minors, the Missouri Supreme Court considered, among other things, the 2002 U.S. Supreme Court ruling in Atkins v. Virginia, prohibiting the execution of the mentally retarded. Years before it decided Atkins, the Court previously affirmed the execution of the retarded - in Penry v. Lynaugh. Coincidentally, Penry came down the same year in which the Court affirmed the execution of sixteen and seventeen year olds. A comparison between execution of young people and of the mentally retarded may thus shed some light on the question currently before the Supreme Court. Let us consider first the public emotional impact of executing a mentally retarded person, and how it might differ from that of executing a juvenile offender like Christopher Simmons. When a mentally retarded person is executed, the person dying in the electric chair or the gas chamber or the lethal injection gurney is - by definition - mentally retarded at the time of his execution. The developmentally disabled, in other words, do not grow out of their impaired mental status. The convicted youthful offender who is sentenced to die, by contrast, will ordinarily no longer be a minor by the time his sentence is carried out. A person who is sixteen or seventeen years old will -- in another year or two -- no longer be under the age of eighteen. And the process of death penalty appeals often takes longer than two years. As a result, the American public will not usually have to face the spectacle of a "child" dying a scheduled death at the hands of the state in the way that it faces the spectacle of a "mental child" being executed in the analogous context of the mentally retarded. To the extent that the national consensus responds to the sympathy factor at the moment of execution, the youthful offender thus has one strike against him. On the other hand, the fact that a younger person, unlike a mentally retarded person, will tend to change a great deal over time, may, in another regard, prove helpful to youthful offenders like Christopher Roper. A mentally retarded person who faces the death penalty several years after his crime will probably seem like the same person who committed the earlier murder for which he is being punished. The youthful offender, on the other hand, will often look and sound like an entirely new person by the time of his execution. Because the public may feel the understandable desire to punish the same person who committed a murder, his evolution over time can greatly help the cause of the youthful offender. Blameworthiness and execution of minors As I have noted, an offender's status (or relative status) at the time of his execution may affect the nation's emotional response. Yet the legal arguments that appeal to judges generally concern the offender's age or mental status at the time he committed his offense. The reason that age, in particular, matters to the law, is that full criminal blameworthiness under the law is understood to require a minimum level of maturity. Until a person has reached a given age, she may not be fully capable of appreciating the depth of harm that she inflicts on others when she commits a murder. Also, a young person's self-control may not be as developed prior to adulthood. In the absence of a completely functional capacity to appreciate the wrongfulness of crime and to control destructive impulses, some argue, it is unfair to punish an offender with the most severe punishment available under the law. The notion that youthfulness is associated with an underdeveloped conscience - an inability to fully appreciate the wrongfulness of crimes - and reduced willpower has proven consistent with ongoing scientific study. As people age out of childhood, they apparently become better able both to appreciate the wrongfulness of, and to control, their murderous impulses. The death penalty is supposed to punish the most blameworthy actors for their crimes. If criminals under a particular age are less blameworthy than other criminals, in terms of their mental and emotional capacities, it might seem to follow that we should spare such criminals the harshest sentence. Underinclusiveness Looking critically at this argument, however, we should note that the age cutoff is both under-inclusive and over-inclusive in addressing whatever incapacities accompany youth. Consider its under-inclusiveness first. If we ought to avoid executing people who lack the abilities fully to appreciate the evil of their crimes and to control their impulses, then we should exempt many more people from the death penalty than just the young. Indeed, any person who suffers from a mental disorder that affects his self-control and his ability to empathize should be similarly exempt. This lack of fit between incapacity and exemption, moreover, is hardly a trivial one. Some would argue that almost all murderers on death row show characteristics that make them more like teen-agers than like adults, in both their ability to experience the weight of their crimes and their capacity to control themselves. Indeed, it is these weaknesses that may largely define much of the criminal population. The under-inclusiveness problem, then, is that many (perhaps most) individuals on death row should qualify for exemption by the same reasoning as the young offender. Maturity and overinclusiveness In addition, there also turns out to be an over-inclusiveness problem in exempting all minors from the death penalty. The problem is this: At whatever age we choose, whether it is eighteen, seventeen, sixteen, or fifteen, there will be people in that age group who do in fact have the same ability as or a greater capacity than their elders to understand and stop themselves from committing crimes. We know of young people carrying out heroic deeds in times of war, for example. Such heroes are evidently able to understand fully and put into practice the difference between right and wrong. It would therefore seem that some murderers - those, for example, who believe in the righteousness of their cause - could be fully responsible at a very young age. They should therefore be ineligible, as a matter of logic, for the exemption that they would receive under Missouri's approach to the Eighth Amendment. Taking other factors into account I have been assuming consensus on the view that those who lack the capacity fully to appreciate the wrongfulness of their actions and to control their destructive impulses are less deserving of the ultimate sanction. But that assumption may, in fact, be in error. Some people take the position that the harshness of a punishment should correspond to an individual criminal's character, as revealed by the circumstances surrounding his crime. On this view, for example, a young person who commits a childish prank should perhaps not be punished very harshly, because the prank does not reveal anything significant about the prankster (other than that he is a normal child). A murder, however, of the sort that would expose a person to the death penalty (that is, a murder committed in the presence of aggravating circumstances) might be thought to reveal a very evil character in the person committing the crime. Being evil, moreover, may be entirely consistent with being incapable of empathy and poor at impulse control - the marks, some would say, of a psychopath or a recidivist criminal. If a teenager (of whatever the magic age) is capable of deliberately inflicting grave harm on another person, some people might be more rather than less inclined to judge such a person "rotten to the core." "He was already committing murders at the tender age of sixteen," they could say. Rather than mitigating an offense, then, youth might actually serve as a signal that we are in the presence of a truly bad person. Another way of saying this is that many people do not expect the murderous teenager to "outgrow" his affinity for violence, even if, theoretically, his ability to do so matures. A wicked child may thus be beyond redemption. The national debate and evolving consensus over executing young people is not subject to easy resolution. For those of us who reject capital punishment, it follows necessarily that the young (at any age) may not be subject to the ultimate sanction. But for those who accept the death penalty, it might not be quite so obvious that only legal adults should be subject to it. The answer may ultimately depend on whether we really believe that those teen-agers who murder other human beings are likely to become better as they get older. [Sherry F. Colb, a FindLaw columnist, is Professor and Judge Frederick B. Lacey Scholar at Rutgers Law School-Newark. Her earlier columns may be found in the archive of her work on this site.] (source: CNN) =============== VIRGINIA: Jury, Men eligible for execution Jurors decided Wednesday that two men convicted in an Albemarle County ambush killing carried out the slaying in such a heinous and cruel fashion that they should be considered for execution. The decision means the jury will return to U.S. District Court in Charlottesville today to hear evidence on whether to recommend the death penalty for Shawn A. Breeden and Michael A. Carpenter. The men were convicted Tuesday of participating in a drug conspiracy; crossing state lines with the intent to commit robbery in furtherance of the conspiracy; and crossing state lines with the intent to kill, injure, harass or intimidate the victim. The use of firearms in each of the crimes caused the government to seek capital punishment. Jurors agreed that the government met its burden of proving at least one aggravating factor required by federal law in death penalty cases: that Breeden and Carpenter each committed the offenses "in an especially heinous, cruel or depraved manner in that it involved torture or serious physical abuse to the victim." Police found Kevin Lee Hester's dead and bloody body in the parking lot of the Meadows apartments on Mountainwood Road on Aug. 8, 2002. The 30-year-old had been shot in the leg and head and stabbed in the chest. "Shawn Breeden just didn't kill Kevin Hester. He butchered him. He massacred him," Assistant U.S. Attorney Timothy J. Heaphy told jurors. Breeden, who lived in Washington during the summer of 2002, targeted Hester for robbery after losing his girlfriend's car payment money in a dice game. Hester had been Breeden's friend and drug connection in Charlottesville. Prosecutors said Breeden enlisted the help of Carpenter and two other men in the robbery. Denise Y. Lunsford, an attorney representing Breeden, called the crime a robbery gone bad and said a killing was never planned. "There is no evidence that there was substantial planning by Mr. Breeden to kill this man," Lunsford said. Carpenter's lawyer, J. Lloyd Snook III, told jurors that while he did not want to minimize the importance of Hester's death, the crime did not rise to the level of an "extraordinary killing" that would warrant execution. "This case may involve a lot of bad things but it does not involve torture," Snook said. When Hester met Breeden at the apartments, Carpenter emerged from a wooded area with a shotgun and shot Hester in the leg. Afterward, Breeden stabbed Hester, and a third man, Robbie Outterbridge, fired two shots from a 9 mm pistol at Hester's head. One round hit the ground, while the other pierced the victim's skin but did not penetrate his skull. A medical examiner testified that both the shotgun wound to the leg, which broke bones and tore through critical arteries, and the stab wounds, which pierced Hester's heart and lung, would have been fatal. Outterbridge and Kevin T. Cassell, who drove the getaway car, pleaded guilty to the same six charges and took the stand last week in hopes of reduced prison terms. (source: Daily Progress) ==================== SOUTH DAKOTA: Supreme Court upholds conviction and death penalty The South Dakota Supreme Court has once again upheld Donald Moeller's convictions and death sentence for the 1990 killing and rape of a 9-year-old Sioux Falls girl. The high court ruled unanimously Thursday that Moeller got a fair trial and that his lawyers did an effective job of representing him. Moeller, 52, has been sentenced to die by lethal injection for the May 8, 1990, slaying of Becky O'Connell of Sioux Falls. He also was given a 25-year sentence for raping the child. "We're delighted," South Dakota Attorney General Larry Long said of Thursday's decision. Moeller was convicted by a Yankton County jury on Sept. 1, 1992, for first-degree murder and rape. But the state Supreme Court reversed the convictions in May 1996, ruling that improper evidence was used at the trial. A second trial was held in Rapid City, and Moeller was convicted again in 1997. The Supreme Court upheld those convictions and Moeller's death sentence in a direct appeal nearly four years ago. Moeller then returned to court to argue his convictions should be set aside because his constitutional rights were violated by the introduction of some evidence, instructions to the jury and the process used to sentence him to death. Moeller is unlikely to be executed for a number of years because of further appeals in federal court. "We're not looking for an execution anytime soon," Long said. (source: AP) ================== PENNSYLVANIA: Death penalty sought in Beaver County killing Beaver County prosecutors say they will seek the death penalty against a Pittsburgh man they say was paid to kill someone. Claron Hanner is accused of killing Frank Helisek Junior of New Brighton on January 19th.Beaver County District Attorney Dale Fouse isn't saying who paid Hanner. At the time of the shooting, Helisek's son was in jail and expected to testify for prosecutors in a drug case.Police say they connected Hanner to the slaying through a cell phone that was dropped at the scene. (source: AP)
