Dec. 31 TEXAS: Man convicted of murder can appeal sentence Condemned murderer Michael Dewayne Johnson has won at least 1 more day in court. The 5th U.S. Circuit Court of Appeals in a ruling issued earlier this month granted Johnson a "certificate of appealability," or permission to appeal his 1996 capital murder conviction and death sentence in the September 1995 shooting death of Jeff Wetterman. The New Orleans-based court gave Johnson a stay of execution in February 2003, a day before the 27-year-old Balch Springs man was scheduled to be executed. In issuing the certificate, the court told Johnson that it would consider two points of his 3-prong appeal his claims that McLennan County prosecutors withheld evidence that could have changed the outcome of the trial and that they solicited perjured testimony from Johnson's 17-year-old co-defendant, David Noel Vest. The court rejected Johnson's claims that his trial attorneys, Rob Swanton and Dwight Goains, were ineffective. Waco attorney Greg White based Johnson's application for appeal on allegations that prosecutors improperly failed to provide Johnson's trial attorneys with documents filed when Vest pleaded guilty that indicated that Vest, not Johnson, shot Wetterman. The documents could have been used to impeach Vest during his testimony, White alleges. Vest testified that Johnson, who was 18 at the time, shot Wetterman after the pair pumped gas into the stolen Cadillac they were driving at the Wetterman family convenience store in Lorena. Prosecutors allowed Vest to testify that Johnson shot Wetterman, knowing that Vest's plea documents indicate that Vest shot Johnson, White has alleged. White did not return phone calls to his office and home on Tuesday. A 5th circuit court clerk said that no date has been set for oral arguments in Johnson's case. McLennan County District Attorney John Segrest, who prosecuted Johnson with assistants Crawford Long and Mike Freeman, has said that the documents filed in Vest's case are routine pleadings filed in every capital murder case in which there is a co-defendant. Vest, also of Balch Springs, was charged under a doctrine known as the "law of parties," Segrest said, adding that the practice has long been upheld by appellate courts. He said Johnson's attorneys had access to the files in Vest's case and were present when Vest pleaded guilty to aggravated robbery charges in the incident and was sentenced to 8 years in prison. Vest was released from prison in September 2003. Long, Segrest's 1st assistant prosecutor, said he was confounded by the court's ruling. "The evidence clearly showed that Michael Johnson was the one who shot and killed Jeff Wetterman," Long said. "The stipulation signed by David Vest was simply a procedural step that we go through in taking a plea. Vest pleaded guilty as a party to the offense, which under the law makes him equally guilty, although he wasn't the shooter. There was no exculpatory evidence withheld and we hope that the court will so find after reviewing the facts." Trish Wetterman McLean, who had been married to the 27-year-old Wetterman for 3 weeks when he was killed, was making plans to go to Huntsville to witness Johnson's execution when he got the stay in February 2003. She said Tuesday that she didn't know what to make of the latest development in the case. "It's just a waiting game," she said. "It has taken so long. Originally, when they gave him the stay, they said it would be another year, (before he was executed) and now we are coming up on two. I just don't know why this has been allowed to drag on so long." Only 12 % of all cases filed in the 5th circuit are approved for oral argument, according to the court's Web site. Nearly 50 % of all criminal and civil cases filed are dismissed on procedural grounds or because they settle. (source: Waco Tribune-Herald) ******************************** Order to explain pursuit of death penalty ignored Jurors in the trial of a man accused of being the driver in a deadly smuggling attempt will be told by a judge that prosecutors ignored her order to provide information on why they are seeking the death penalty in the case. In the ruling made public Thursday, U.S. District Judge Vanessa Gilmore said she also will allow attorneys defending 33-year-old truck driver Tyrone Williams to use the government's refusal as evidence during the penalty phase if he is convicted on a death-penalty charge. Twenty of the 58 smuggling counts on which Williams was indicted carry a possible death sentence. Jury selection is to begin Wednesday. Defense attorney Craig Washington accused the government of singling out Williams because he is black. Washington presented evidence that of 68 cases involving immigrant deaths during smuggling attempts, Williams' case was the only one in which the government has sought the death penalty. Prosecutors denied that race was a factor. They argued that the information on how they chose Williams is privileged and that the request interfered with prerogatives of the executive branch. They also point out that they did not seek the death penalty for the other black defendant Fatima Holloway, who rode in the truck cab with Williams. After issuing the order, Gilmore denied a request by the U.S. Attorney's Office to delay the trial to give prosecutors time to ask the 5th U.S. Circuit Court of Appeals to block her from issuing the jury instruction. The U.S. Attorney's Office then appealed to the 5th Circuit. Prosecutors accuse Williams, a Jamaican immigrant from Schenectady, N.Y., of continuing to drive his tractor-trailer rig while more than 74 illegal immigrants in his sealed trailer fought to survive as temperatures soared. 17 bodies were found in the abandoned trailer May 14, 2003, at a truck stop near Victoria. 2 more people died in a hospital. The judge denied a request by Williams' attorneys to dismiss the death-penalty option and hold the U.S. Attorney's Office in contempt for failing to comply with her order to give the defense information on how Attorney General John Ashcroft decided to seek the death penalty. The attorney general makes the final decision on whether to seek death sentences in federal cases. (source: Associated Press) *********************************** Prosecutors slapped in truck death case----Judge's order to explain pursuit of death penalty was ignored The judge in an upcoming trial involving the deaths of 19 illegal immigrants will tell jurors that prosecutors ignored her order to provide information on whether they are seeking the death penalty because of the defendant's race. In a ruling made public Thursday, U.S. District Judge Vanessa Gilmore said she also will allow attorneys defending truck driver Tyrone Williams to use the government's refusal as evidence during the penalty phase if he is convicted on a death-penalty charge. Some legal experts said the order was a severe blow to prosecutors' effort to obtain the death penalty. "I'm sure it will carry considerable weight with the jurors," said Sandra Guerra Thompson, a professor at the University of Houston Law Center. 20 of the 58 smuggling counts on which Williams was indicted carry a possible death sentence. Jury selection is to begin Wednesday and is expected to take about 2 weeks. After issuing the order, Gilmore denied a request by the U.S. Attorney's Office that she delay the trial to give prosecutors time to ask the 5th U.S. Circuit Court of Appeals to block her from issuing the jury instruction. The U.S. Attorney's Office then appealed to the 5th Circuit. Prosecutors accuse Williams, 33, a Jamaican immigrant from Schenectady, N.Y., of continuing to drive his tractor-trailer rig while more than 74 illegal immigrants in his sealed trailer fought to survive as temperatures soared to lethal levels. The occupants screamed, beat on the walls and ripped away the insulation in a struggle for air. 17 bodies, including that of a 5-year-old boy, were found in the abandoned trailer May 14, 2003, at a truck stop near Victoria. 2 more victims died in a hospital. Judges normally issue sentences in federal courts, but only a jury can recommend a death sentence. "Most reasonable jurors are going to think the judge is nudging them toward the position that the government is not playing by the rules," said Charles "Rocky" Rhodes, a professor at the South Texas College of Law. Criminal attorney Tom Moran agreed with Rhodes and Thompson that Gilmore's order was unusual. "I think she's breaking new ground on this," Moran said. The judge also denied a request by Williams' attorneys to dismiss the death-penalty option and hold the U.S. Attorney's Office in contempt for failing to comply with her order to give the defense information on how Attorney General John Ashcroft decided to seek the death penalty. The attorney general makes the final decision on whether to seek death sentences in federal cases. Defense attorney Craig Washington accused the government of singling out Williams because he is black. Washington presented evidence that, of 68 cases involving immigrant deaths during smuggling attempts, Williams' case was the only one in which the government has sought the death penalty. Prosecutors denied that race was a factor, pointing out that they did not seek the death penalty for the other black defendant - Fatima Holloway, who rode in the truck cab with Williams. They argued that the information on how they chose Williams is privileged and that the request interfered with prerogatives of the executive branch. Assistant U.S. Attorney Tony Roberts told Gilmore in a contentious hearing Dec. 17 that the Justice Department would not comply with her order. The judge threatened to hold Roberts in contempt if he failed to produce a letter from Ashcroft by the end of the day, stating that he was refusing to comply. Instead, Assistant U.S. Attorney Daniel Rodriguez, the lead prosecutor, asked the judge to reconsider her order and reiterated the argument that Williams was the only person who could have saved the lives of those who died. Rodriguez refused to provide the letter from Ashcroft and said the proper sanction would be to withdraw the death-penalty option rather than hold Roberts in contempt. (source: Houston Chronicle) PENNSYLVANIA: Supreme Court won't reconsider decision overturning death penalty A Pennsylvania prosecutor says he'll try a man whose Ohio murder conviction and death sentence were overturned because the 2 victims were killed on the Pennsylvania side of the border. The Ohio Supreme Court on Tuesday refused to reconsider its decision overturning the conviction of Terrell Yarbrough. Yarbrough was convicted in 2000 of aggravated murder and other charges in the robbery, kidnapping and slaying of 18-year-old Brian Muha of Westerville and 20-year-old Aaron Land of Philadelphia. Both were students at Franciscan University in Steubenville. Yarbrough's co-defendant, Nathan Lane, was sentenced to life in prison. Earlier this month the Court ruled that Yarbrough shouldn't have been tried on Ohio murder charges because the students were killed in Pennsylvania. (source: WNEP TV News) MASSACHUSETTS: The perfect death penalty His Excellency the Governor has said that he plans to file a bill to reinstate the death penalty in Massachusetts. And this time it's going to be perfect: "it will guarantee only the guilty are executed." We expect Romney's bill to hew pretty closely to the report of the Commission that he appointed a few months ago whose charge was to design the perfect death penalty system. We have a lot of questions about the proposals in that report, but we'll hold off on specifics until the Governor actually files his bill. For now, we have just one big question: is Romney committed to funding the enormous expense that his death penalty plan will entail? His Excellency, of course, is opposed to new taxes in any form for any reason - he even thinks he can create universal health insurance in Massachusetts without raising taxes. Yet Romney's own death penalty commission - which advocates for extensive DNA testing and highly qualified counsel in every death penalty case to prevent the execution of innocent people - says the following (at page 5 of the report): [E]ach capital trial will be expensive. Moreover, additional costs inevitably will be incurred due to the proposed creation of new governmental institutions to review scientific evidence and post-trial claims of innocence. The Council strongly believes that, if the death penalty is to be reinstated in Massachusetts, such increased costs simply must be borne. It is not possible to have a death penalty system that is both inexpensive, and at the same time capable of being relied upon to produce accurate and fair results. We anxiously await the Governor's explanation of how he plans to fund his luxury death penalty program without raising taxes or choking off other necessary programs. Finally, this article on Romney's death penalty plan caught our eye. It quotes state Rep. Phillip Travis (D-Rehoboth), who supports reinstating the death penalty, as advancing the following airtight argument: Travis said, "God doesnt take a stand against the punishment of death." "Christ was executed," Travis added. Whew! Where to begin with that one? For one thing, the Romans' unfortunate penchant for crucifixion does not strike us as the best argument in favor of capital punishment. For another, there's that pesky "Thou shalt not kill" commandment to contend with. But we're sure Rep. Travis has answers at the ready. We look forward to hearing them in the coming debate. (source: Blue Mass ZGroup) KANSAS: Death penalty could get a second look Kansas Attorney General Phill Kline wants the state Supreme Court to rethink its ruling that the state death penalty is unconstitutional. Until the Kansas Supreme Court decides whether it will reconsider, Kline will hold off on a planned appeal to the U.S. Supreme Court. In a motion to the Kansas court, Kline said the justices could remove the flawed portion of the law that prompted the ruling while leaving the law intact. "By striking 3 words and a suffix, a grand total of 9 letters - the unconstitutional provision can be eliminated," stated the motion filed by Kline's office. The court ruled against the statute 2 weeks ago, pointing to a provision stating that when reasons for and against a death sentence are equal, the jury should choose death. A 4-3 court majority ruled that when reasons are evenly balanced, jurors should choose a life sentence over the death penalty. Last week, the court stayed its ruling to allow Kline to appeal to the U.S. Supreme Court. However, that appeal would come after the Kansas court considers the attorney general's latest request. "This stops the clock from running out on our appeal," said Jan Lunsford, a spokesman for Kline's office. Regardless of the case's outcome, the Kansas Legislature is expected to propose changes to correct the flaws highlighted by the Supreme Court. If the ruling stands, 6 men sentenced to death in Kansas would have their sentences commuted. The ruling also could prevent prosecutors from seeking death sentences in pending cases, such as the prosecution of Benjamin Appleby, who is charged in the death of Leawood teenager Ali Kemp. (source: Kansas City Star)
