Dec. 7 TEXAS: Court majority finds discrimination----Justices say prosecutors left blacks off jury deliberately in death penalty case Faced with a Dallas County prosecutor's old training manual advising against choosing jurors who are black, Jewish, Hispanic, Italian-American, bearded, fat or female, a U.S. Supreme Court majority said Monday that a black defendant clearly suffered discrimination when blacks were excluded from his 1986 jury. Antonin Scalia was the only justice to speak in favor of the state of Texas, which executes more killers than any other and is defending the way Thomas Miller-El was sentenced to die for capital murder. For the second time in two years, the high court heard legal arguments from the state and the convict's lawyers Monday. A decision on Miller-El's move to overturn his conviction is expected by July. Most of the justices Monday were openly critical of the lower courts that handle Texas death penalty cases. Court-watchers predicted the court will again try to corral what is considered a rogue appeals court, the New Orleans-based 5th U.S. Circuit Court of Appeals. Perhaps the only question now involves how strong the rebuke will be. Lawyers keep fighting Miller-El was convicted and sentenced to death in the 1985 shooting death of Irving motel clerk Doug Walker. His jury included nine whites, an African-American, a Hispanic and an Asian-American. Miller-El's lawyers have argued that 2 Dallas County prosecutors with a history of discriminating against minorities in jury selection had deliberately kept blacks off his jury. Lower courts disagreed. When the case reached the Supreme Court in February 2003, eight of the nine justices found overwhelming evidence of discrimination. As in several other Texas death cases, they sent the case back to the 5th Circuit, demanding it take another look. But the appeals court reached its same conclusion, based not on the opinion of the Supreme Court majority but on that of the lone dissenter, Justice Clarence Thomas. Scalia repeatedly tried to help Texas Assistant Attorney General Gena Bunn make the argument that there was no discrimination in Miller-El's case. 'This is discriminatory' Most other justices appeared to side with Seth Waxman, the former U.S. solicitor general, who said evidence of discrimination was flagrant. Waxman noted that the 5th Circuit essentially had plagiarized from Thomas' dissent, defying the guidance of the majority. Justice Stephen Breyer, apparently exasperated, agreed. "What came out in the 5th Circuit that we didn't have before us the 1st time?" he asked. "I'm reading (our) opinion to say, unless something changes here, this is something bad, this is discriminatory." Bunn answered that the 5th Circuit did its duty in taking a second look and more closely analyzed the questioning of several potential jurors. Looking at evidence Breyer and Justices David Souter, Anthony Kennedy, Ruth Bader Ginsburg and John Paul Stevens said they found Miller-El's evidence convincing. It included the fact that prosecutors used a practice unique to Texas - a shuffling to rearrange the order of potential jurors whenever several blacks were seated in the front rows, where they were more likely to be chosen. The 4 judges also questioned why prosecutors had taken notes on each juror's race and sex. Bunn argued the notations could have been made as visual cues to help prosecutors remember the jurors, or to help them ensure that minorities and women were not excluded from the jury. "You have a manual that says you don't want women, Jews, blacks, fat or bearded people," Souter responded, sighing. "Isn't it a reasonable inference that's what they were noting it for?" (source: Houston Chronicle) CALIFORNIA: State Supreme Court Upholds Death Sentence for Man Convicted in 1992 of Killing His Wife and Niece The California Supreme Court yesterday unanimously affirmed the conviction and death sentence of Rodney Jess San Nicolas, found guilty 12 years ago of the 1990 murder of his wife and her 12-year-old niece. Justice Carlos Moreno, writing for the court, said that none of the arguments advanced by the defense, including the claim that San Nicolas killed in an uncontrollable rage, required that either the conviction or the penalty phase verdict be set aside. The bodies of Mary James, 37, and her niece, April James, were found hidden in Mary James' Modesto home the day after both were stabbed to death. San Nicolas was arrested in Sparks, Nev., 4 days after the killings. Evidence showed he used his wife's bank card to withdraw cash in Modesto the day of the killings and in South Lake Tahoe the next day. The same Stanislaus Superior Court jury that returned the death verdict found San Nicolas guilty of 2 counts of 1st-degree murder, 1 count of forcible rape and 1 count of lewd conduct with a child. In addition to the murder charges, the jury found there were special circumstances to support the death penalty, including multiple murders, murder of a witness, and murder in the commission of rape and child molestation. Witnesses testified that before the killings, James frequently complained about San Nicholas' failure to find a job. They said she belittled him and told him on several occasions to move out of the house. The defense argued that the killings were committed in a frenzy, and that San Nicolas did not form the premeditated intent to kill. The sexual assault and killing of the niece, who apparently found San Nicolas covered in his wifes blood, was the product of a "spillover" of rage directed at Mary James, a defense expert testified. The defense also contended April James was already dead when the defendant penetrated her sexually, so that the defendant could not be convicted of first degree murder on either a premeditation or felony-murder theory. The prosecutor argued that both murders were deliberate and premeditated, that April James was killed at least in part because San Nicolas feared that she would testify against him, and that the rape was committed while April James was alive and for sexual gratification. In the penalty phase, the prosecution offered evidence of 6 prior felony convictions, 2 for passing bad checks, two for forging drivers licenses, and others for grand theft and escape from prison. The defense countered that there were mitigating circumstances, including the impact of James putdowns on San Nicolas' mental state, a difficult childhood, and a lack of prior criminal violence. He was the oldest of 10 children in his family and was responsible for the care of his younger siblings, family members testified. They said his parents were strict and set high moral standards for the children. Moreno, writing for the high court, concluded that there was sufficient evidence of premeditation for a jury to reach 1st degree murder verdicts as to both killings. Even assuming that San Nicolas had no intent to kill April before, as he told police, she saw him standing over the bathroom sink holding the knife with which he had just stabbed his wife, the justice wrote, the "brief period between seeing Aprils reflection and stabbing her is adequate for defendant to have reached the deliberate and premeditated decision to kill April." In addition, the justice wrote, jurors "fairly could have concluded that defendant was intent upon killing April due to the sheer number of wounds on Aprils body, many of which individually would have been fatal." Moreno also rejected the defense attack on the witness-killing special circumstance, explaining that there is no requirement that a prosecution be launched before the murder is committed for it to be construed as a witness killing. Jurors could have reasonably inferred from the evidence that San Nicolas feared that he would be prosecuted for Mary James murder and that killing April was necessary to prevent her from testifying against him, Moreno said. "April caught defendant in the bathroom in a very compromising state, carrying a knife and soaked in Marys blood," the justice wrote. "Defendant admitted that he saw Aprils reflection in the bathroom mirror prior to turning and killing her. In People v. Garrison...47 Cal.3d at page 792, we found the evidence insufficient to support a witness-killing special circumstance where the witness had not witnessed anything at all, rejecting the prosecutions claim that the victim had been killed to keep her from becoming a witness. The same cannot be said for April; whether or not she saw or heard defendant actually kill Mary, or knew that Marys dead body lay in the adjacent room, she certainly witnessed defendant covered in blood in the immediate aftermath of the murder." The case is People v. San Nicolas, 04 S.O.S. 6257. (source: Metropolitan News Company) CONNECTICUT: Death penalty opponents plan rally Connecticut's 1st execution in more than 40 years is scheduled for 7 weeks from tomorrow. Now that the governor has ruled out a reprieve for convicted serial killer Michael Ross, the next move will come from a judge in New London. 2 developments; death penalty opponents are planning an anti-death penalty rally at the capitol Friday in an effort to get the law changed, and Ross' attorney visited with him to prepare him for another court appearance on Thursday. Michael Ross will leave the confines of his jail cell in Somers on Thursday and make the trip to New London Superior Court for the competency hearing before Judge Patrick Clifford. Ross's lawyer, T.R. Paulding, who has known Ross for ten years, says the serial killer's decision to end his life is not a desire for suicide because he's depressed over his long confinement. "I'm convinced of that," Paulding says. "I think he has, frankly, more noble reasons. I think he is remorseful. I think he does not want to put the victim's families through any more of this." Paulding also says that Ross is fully aware that he has appeals left, he just doesn't want to pursue them. And despite the fact that he has been on and off strong medications to control his sexual sadism tendency for years, his decision to move forward with a lethal injection execution on January 26th, was made with a clear mind. "I think this is a clear headed, logical decision. I guess, maybe, one must believe that a person is capable of logically, and intelligently, overcoming the inherent human desire to live and it is possible that a person can decide against that, and I think he has." Those working against the death penalty say that Ross is clearly mentally ill, another reason not to execute him. They also say the death penalty is not a deterrent and because of all the appeals it's not cost effective. They also take issue with Gov. Jodi Rell's logic in announcing that she would not grant a reprieve. "She contradicted herself, and that is the contradiction of the death penalty," says Robert Nave. "We kill people who kill people because, we say, killing people is wrong. That is inherently illogical." Nave says his group, which is part of Amnesty International, is planning a public awareness campaign to try to convince people that the death penalty is wrong and is not a deterrent. ---- Connecticut Network Against the Death Penalty----http://www.cnadp.org (source: WTNH) KENTUCKY: Chapman Pleads Guilty, Asks Judge for Death Penalty A Boone County man has pleaded guilty Tuesday to the murders of 2 children. During a hearing in Boone County Circuit Court, Marco Allen Chapman asked a judge to sentence him to death for the killings. Chapman says his death would be a sort of -- quote -- "redemption" to the children's family. But a decision on Chapman's fate was not made today. Circuit Judge Tony Frolich set a sentencing date for next Tuesday. Chapman was accused of killing 2 Warsaw children and stabbing their mother and sister 2 years ago. 6-year-old Cody Sharon and 7-year-old Chelbi Sharon died in the attack. Their mother, Carolyn Marksberry and another daughter suffered multiple stab wounds. Chapman pleaded guilty today to 2 counts of murder and 6 other related counts. (source: Associated Press) ***************************** Victims' family members meet with Fletcher on execution In the debate over the death penalty prompted by the impending execution of Thomas Clyde Bowling, Rosie and Leroy Earley don't want the victims forgotten. The Earleys, along with their grandson, Christopher Earley, met with Gov. Ernie Fletcher Tuesday and were assured Fletcher will sign another death warrant for Bowling if the courts clear the case, general counsel John Roach said. Bowling was convicted of murdering Edward and Tina Earley and shooting then-2-year-old Christopher outside the couple's Lexington dry-cleaning business in 1990. Bowling was within days of execution when his challenge to the state's method of lethal execution was taken up in Franklin County Circuit Court. Fletcher had a chance meeting with Bowling's mother, Iva Lee Bowling, late last month during a weekend rally against the death penalty. Mrs. Bowling told Fletcher her son was innocent and his sentence should be commuted. "Rosie (Earley) said she did not want the fact that her son and daughter-in-law had been murdered by T.C. Bowling to be lost in all the anti-death penalty hoopla," said Fayette County Commonwealth's Attorney Ray Larson, who arranged the meeting Tuesday. Roach said Fletcher is convinced of Bowling's guilt and will set a new execution date once the courts resolve Bowling's pending appeal. Larson said the Earleys want Bowling's sentence to be carried out. (source: Associated Press) ARIZONA: Death penalty hearing begins in Andriano case Deputy county attorney Juan Martinez began presenting testimony this week to the same panel of jurors who found Wendi Andriano guilty of murder, and who will now be asked to decide whether the Ahwatukee Foothills woman should be sentenced to death. It's the next step following a lengthy trial. Jurors heard 11 weeks of testimony before spending 2 hours deliberating on whether Andriano was guilty of killing her husband, Joe. She was found guilty on Nov. 18. They gathered Tuesday in Maricopa County Superior Court to hear evidence for their first decision on whether Andriano's October 2000 crime qualifies for the death penalty. They will decide based on whether the murder of Joe was "cruel, depraved and heinous," according to state law. If the jury agrees the crime warrants the death penalty, panel members will then hear additional testimony before deciding if the mother of two should be put to death. The new 3-step process in which a jury first decides guilt or innocence, then decides if the murder qualifies for the death penalty and finally decides if the death penalty should be given aligns the judicial process with a June 2002 U.S. Supreme Court decision. In Ring v. Arizona, the high court ruled that a jury, and not a judge as was the custom in Arizona and other states, must decide if a defendant receives the death penalty. If the jury of 9 women and 3 men decide Andriano should receive death by lethal injection, the 34-year-old Ahwatukee Foothills resident will join Debra Jean Milke, the only other woman on Arizona's death row. Milke was convicted of conspiring to have her 4-year-old son killed for a $5,000 insurance policy in 1989 by 2 boyfriends. The men lured the child into the desert with a promise that he was going to meet Santa Claus. Instead they shot the boy and left his body in a wash. All 3 persons are on Arizona's death row. Arizona has executed one woman in the state's history, and that execution ended the use of the hangman's noose in the state. In 1927, Eva Dugan was convicted of the murder of her employer and sentenced to die by hanging. But a miscalculation resulted in her decapitation when Dugan dropped through the trap door in 1930. The outcry resulted in Arizona switching to what was then consider the more humane gas chamber instead of the less reliable gallows. (source: Ahwatukee Foothills)
