Dec. 28 SOUTH CAROLINA: Newspaper Argues Against Judge's Request A newspaper asked a federal judge Tuesday to throw out a request that it investigate whether a staffer got a phone call from a juror during the death penalty trial of an escaped convict. Media "are not to be annexed as investigators," The Greenville News attorney Jay Bender told Judge Joe Anderson. Defense attorneys for Branden Basham, convicted last month of the kidnap and slaying of victim Alice Donovan, think a conversation between a juror and reporter should warrant a new trial, and want a newspaper representative to testify about the phone call. Jury forewoman Cynthia Wilson already testified she had a lengthy conversation with a television station employee. According to phone records, the paper was one of five news organizations contacted by Wilson before Basham was sentenced to die for his role in Donovan's death. Basham was convicted before Wilson made the calls. Besides contacting several TV stations and the (Spartanburg) Herald-Journal, Wilson called other jurors during different stages of the trial, defense attorney Greg Harris said. Some calls came on days when Basham acted disruptively in court, he said. Basham was not in court Tuesday because he refused to wear a monitoring device, a marshal testified. Basham and Chadrick Fulks, who also was sentenced to death in the case, escaped from a Kentucky jail in November 2002 and went on a 2-week crime spree through several states. Both men also are charged in the death of West Virginia college student Samantha Burns. Prosecutors have argued Basham shouldn't get a new trial because Wilson contacted the media to ask why they weren't covering the trial. There's no evidence she was influenced by the conversations with the media or other jurors, whom she probably befriended during the trial that spanned several months, assistant U.S. Attorney Scott Schools said. "We've really turned this mole hill into a mountain," Schools said. The judge didn't say when he would rule. (source: Associated Press) PENNSYLVANIA: Murderer avoids death penalty Michael Heberlig folded his hands, bowed his head and closed his eyes, praying softly for a moment Monday as he sat alone at a table in a Cumberland County Courtroom. Minutes later, he stood before Judge Edgar Bayley and pleaded guilty to shooting 33-year-old Lathan Spencer 8 times over a $400 cocaine-related debt he couldn't pay him on Oct. 28, 2003. "I'm truly sorry," the 35-year-old Shippensburg man said. He shook his head and began to sob, unable to continue speaking. Assistant Public Defender H. Anthony Adams finished for his client, stating, "He was under the influence and using cocaine heavily at the time (of the murder). ... Now he realizes the severity of what he's done. It has harmed not only (Spencer's family), but also his own family." Heberlig has a wife and two young children. Spencer, who lived near Mt. Holly Springs, also had two young children and a fiancee. The men met at a Penn Township park-and-ride lot off Route 233 to discuss Heberlig's debt. Spencer brought an additional $3,600 worth of cocaine, which was gone after the murder. Confessed Heberlig confessed in a Nov. 24, 2003, interview with Pennsylvania State Police that he shot Spencer and took the drugs. After unsuccessful attempts to get the cocaine robbery charge dropped and to suppress evidence from the confession, Heberlig agreed to plead guilty under the condition that he would be sentenced to 20- to 40 years in a state correctional institution. Originally, he was charged with 1st-degree murder as well as criminal homicide, burglary, robbery, theft by unlawful taking and receiving stolen property. The state was seeking the death penalty. Chief Deputy District Attorney Jaime Keating said the DA's office studied sentences in a number of previous drug-related death cases before offering the plea agreement. "We came up with what we feel was fair to the victim and to the defendant," he said. "At least Heberlig will be able to see his children, albeit through prison bars. Lathan Spencer got the death penalty for a drug deal, and his children will grow up without a father." Stolen weapons used Court documents say Heberlig told Trooper Douglas Howell and Cpl. George Cronin he was afraid Spencer would kill him or his family if he didn't kill Spencer first. Heberlig owed him $400 for a quarter-ounce of cocaine but did not have the money. He said he shot Spencer while the two sat inside Spencer's van at about 1 p.m., then Spencer tumbled into the lot. Heberlig took the cocaine, ran to his own vehicle and began to drive away. When he realized Spencer was still moving, Heberlig told police, he pulled alongside him and shot him again to ensure he would not survive and report the shooting. Keating said Monday that Spencer was shot 6 times with a .44-caliber pistol and 2 more times with a .223 rifle. The weapons were stolen from residences in Southampton and Penn townships. Spencer's wounds, categorized as "rabidly lethal," included a shot to the left arm that indicated he was lying on the ground, holding his arm up defensively, Keating said. He was also shot in the back of the head. A passerby found Spencer dead in the lot at 1:15 p.m. that day alongside his van, which was still running. Suppression efforts fail Spencer's then-fiancee, Michelle Webster, testified in a habeas corpus hearing Oct. 21 that she tried to convince him not to leave their home as he weighed 36 grams of cocaine for Heberlig hours before his death. An ounce consists of about 28 grams. "I thought that was just too much for one person to be buying n it didn't sound right. I thought he was being set up," she said. Heberlig maintained his innocence during that hearing as Adams argued there was no proof his client stole the cocaine. The drug robbery made the circumstances of the murder "aggravating," which meant the commonwealth could seek a death penalty against Heberlig. State police Trooper Gregory McCombs testified then that a sample of Heberlig's blood tested positive for the presence of cocaine 2 days after the murder. McCombs said he obtained cellular phone records for a phone he was told Heberlig used on the day Spencer died, and there were calls to Spencer's cellular phone on those records. In a separate suppression of evidence hearing, Adams said state police had not provided Heberlig with the proper Miranda warnings about his right to have an attorney present before interviewing him. Consequently, Adams said, transcripts of the interview - including his confession - should be invalid. Keating said the testimonies proved the charges, and Bayley issued an opinion denying both of Adams' arguments Nov. 22. In addition to the prison sentence, Heberlig was ordered to pay a $50,000 fine and $17,518 in restitution costs. No acknowledgement When court was adjourned, Heberlig shuffled out of the courtroom with shackles on his hands and feet. Flanked by officials from the Cumberland County sheriff's office, he did not look up as he walked past more than a dozen relatives n including his parents n who sat watching in the front row. The family hugged one another and some wept after he left. (source: The Sentinel) CALIFORNIA: Test results again tie Cooper to slayings In what has become a familiar refrain, the results of new scientific tests don't support Death Row inmate Kevin Cooper's claim that police framed him for the 1983 hatchet murders of four people in Chino Hills. It is the 3rd time science has failed Cooper since February, when a federal appeals court stayed his execution just hours before he was to die and ordered his long-standing protests of innocence examined. "Every single test we have done has come back concluding that Kevin Cooper was there and committed the murders,' said Nathan Barankin, spokesman for Attorney General Bill Lockyer. "And every time the evidence comes up pointing to his guilt (his lawyers) have to come up with some other theory on how he didn't do it.' The Attorney General's Office on Tuesday released results from the most recent DNA tests on a blood stained T-shirt found near the crime scene. Cooper claims police planted his blood on the shirt to frame him for the murders of Doug and Peggy Ryen, their 11-year- old daughter, Jessica, and 10- year-old houseguest, Christopher Hughes. All 4 were hacked to death inside the Ryen family home 2 days after Cooper escaped from the nearby California Institution for Men state prison. Traces of the victims' blood are also on the shirt. A faint smear was tested at Cooper's request earlier this year for the chemical EDTA, a crime lab preservative used by police. An expert chosen by Cooper found no significant levels of the chemical, suggesting that blood on the shirt did not come from a test tube. That same smear was then tested for DNA to confirm it came from Cooper and not the victims. The results, released Tuesday, included Cooper is as a possible donor of the DNA and excluded all of the victims. The DNA profile of the smear is found randomly in the general population in 1 in 46,000 blacks, 1 in 14,000 whites and 1 in 5,900 western Hispanics. Cooper is black. "We've now looked at the stain, it's his, and it doesn't show planted blood,' Deputy Attorney General Holly Wilkens said. "What more do you need?' Prosecutors did not present the T-shirt as evidence in Cooper's trial. They consider the planting theory absurd because, if true, police would have planted the blood in the mid-1980s, before DNA technology existed. Cooper's legal team on Tuesday vowed to continue their fight to prove Cooper innocent. They downplayed the significance of the DNA results and insisted more tests need be performed. "No reliable conclusions can be made at this time from the testing just completed,' the attorneys said in a written statement. They want more tests done on the smear to confirm it is blood, and they want additional DNA tests performed on non- stained areas of the shirt to check for background levels of DNA. The 9th U.S. Circuit Court of Appeals stayed Cooper's execution Feb. 9. The justices wanted the T-shirt tested for EDTA, and hairs in the victims' hands tested for DNA, to see if they could have been pulled from the head of an attacker other than Cooper. The hairs, tested in August, all appeared to have come from the heads of the victims. Unlike at trial, Cooper bears the burden in these appeals of proving his innocence. He has failed to meet that burden, prosecutors said. "The 9th Circuit's order was based on (Cooper's) assertion that these two simple, easy tests could be done and would conclusively establish whether Kevin Cooper is innocent or not,' Barankin said. "Obviously, we've had more than 2 simple tests and the overwhelming weight of the evidence continues to point to Cooper's guilt.' U.S. District Court Judge Marilyn Huff has given both sides until Jan. 7 to request additional testing. Huff has appeared skeptical of Cooper's claims throughout months of hearings in U.S. District Court in San Diego, and she hinted during several hearings that she wants to wrap up the case by year's end. If she denies Cooper's appeals, he is unlikely to face execution anytime soon. He would again appeal to the 9th Circuit court, and then to the U.S. Supreme Court. Such appeals are likely to take one to two years to complete. "The name of the game for Kevin Cooper is stalling us out as long as possible,' Barankin said. "The only thing we can do is keep presenting the facts and the science to the court and hope justice will be done.' (source: Pasadena Star News) KENTUCKY: Kentucky Governor's Execution Order Draws Fire The Hippocratic Oath doctors swear to save lives, not end them. But one doctor accused of doing just that also happens to be the governor of Kentucky, and a lawmaker willing to sign execution orders on death row inmates. "There is a distinct difference between acting as a physician for a patient and acting as a governor for the people of the commonwealth of Kentucky," Gov. Ernie Fletcher, a former family physician and U.S. congressman elected to the state's highest office last year, told FOX News. Last month, Fletcher signed the death warrant for 51-year-old Thomas Clyde Bowling, who was convicted in 1990 of killing a couple outside their dry cleaning store in Lexington, Ky. Death penalty opponents, including Amnesty International and the American Civil Liberties Union, protested the governor, arguing that the case against Bowling had flaws and that he is mentally retarded. The U.S. Supreme Court ruled in June 2002 that executing people with mental retardation is unconstitutional. Kentucky already had the prohibition on the books when the court ruled. But opponents to Bowling's execution also made the appeal that signing paperwork resulting in death violates Fletcher's oath as a doctor. "The basic Hippocratic Oath is 'do no harm,' and execution does irreparable harm," said Dr. Stewart Urbach at the University of Louisville. Fletcher said he was simply fulfilling his responsibility as governor. "I felt the jurors made a sound decision, and I wanted to recognize they made a sound decision and acknowledge that by signing the death warrant," Fletcher said. Now, a group of doctors has asked the state medical board to investigate whether Fletcher violated the rules of the Kentucky Medical Association, which licensed Fletcher. The state guidelines are in sync with guidelines from the American Medical Association, which say that physicians shouldn't participate in executions. The AMA defines an execution as anything that assists or contributes to the death of a condemned prisoner. "That is a direct violation of Kentucky law as well as the AMA ethics code and Kentucky medical Association ethics code," said Dr. Steven Lippman at the University of Louisville. Bowling's November execution date was stayed by two courts, including the Kentucky Supreme Court, which is still considering a claim from Bowling's attorney that her client is mentally retarded and therefore his sentence should be commuted. Meanwhile, officials at the Kentucky Medical Association say the KMA's board will rule on Fletcher's license early next year. Fletcher said he's not worried about the outcome. "I think reason will rule here, and I feel we have acted in a very reasonable way," he said. (source: Fox News)
