Jan. 12 OKLAHOMA: AG seeks execution date for death row inmate Oklahoma Attorney General Drew Edmondson asked the Oklahoma Court of Criminal Appeals Wednesday to set an execution date for a man who killed his cell mate in the Oklahoma State Penitentiary. John David Duty, 52, was sentenced to death for killing Curtis Wise, 22. Duty, who was serving time for rape, robbery and shooting with intent to kill, persuaded Wise to be tied up to convince guards that Duty had taken Wise hostage. Once Duty had Wise tied up, he strangled him with shoelaces. Duty has requested the death sentence. Edmondson asked the court to set the execution date for 30 days from Wednesday or at the "earliest date the court deems fit." (source: Associated Press) KENTUCKY: Medical licensure board to hear grievance against Fletcher A state medical board panel is scheduled to review a grievance Thursday against Gov. Ernie Fletcher, which claims he violated medical ethics by signing a death warrant for a condemned inmate. The panel of the Kentucky Medical Licensure Board could decide whether Fletcher - a medical doctor - overstepped doctors' ethical boundaries. "I think that we have a pretty clear case that, acting as governor, I've done nothing that is outside the realm of my maintaining my license as a physician," Fletcher said Wednesday. "And I would hope that they recognize that, but we'll have to wait and see." Fletcher is a physician, and has maintained his medical license in Kentucky. The governor occasionally mentions that he's a doctor in speeches, and highlighted it during his gubernatorial campaign. A group of doctors claims that because Fletcher is a doctor he should not have ordered Thomas Clyde Bowling Jr.'s execution by signing his death warrant on Nov. 8. They brought the matter before the board asking whether Fletcher's actions were ethical. Bowling, convicted of killing a Lexington couple in 1991, was scheduled for execution Nov. 30. He was spared, at least temporarily, when the Kentucky Supreme Court and a Franklin Circuit judge blocked the execution pending the outcome of other cases involving Bowling. American Medical Association guidelines prohibit doctors from participating in executions. Kentucky law says doctors must follow the AMA ethical guidelines. Lloyd Vest, general counsel to the licensure board, said the board has 3 alternatives in considering the Fletcher complaint. It could determine there is a possible violation and order a formal investigation. If such a probe found Fletcher violated ethical guidelines, his medical license could be in jeopardy. Or, the board could find - based on the complaint and Fletcher's response - that the case doesn't warrant further response. The board could also issue a letter of concern or admonition and end the matter. The 4 people who filed the original complaint asked to make a personal presentation to the board, but Vest said that won't be allowed to happen. Vest said the board is involved in an investigation that is exempt from the requirements of the Open Meetings Law. Any vote that is taken will be done in open session, Vest said. Fletcher has maintained it was appropriate for him, acting as governor, to order Bowling's execution. Fletcher's attorneys called the grievance against the governor an "irresponsible game of political football" with the governor's medical license. They have asked the board to dismiss the grievance, in papers filed with the board. "This board should not approve a backdoor attempt to abolish capital punishment during the governor's term of office," Fletcher's deputy general counsel Michael Adams wrote. "Though high on headline-seeking sensationalism, this grievance has absolutely no merit." But, Dr. Stuart Urbach, an associate professor at the University of Louisville, disagreed. Urbach said that while Fletcher may not be directly participating in the execution, it could not happen without his order. "It's just kind of repugnant for an MD to be involved in an execution," Urbach, 1 of the 4 who filed the grievance, said. "It just seems that it's against all of a doctor's nature, even though he's the governor." (source: Associated Press) CONNECTICUT----impending volunteer execution Serial Killer Describes Execution Nightmares A serial killer set to become the 1st person put to death in New England since 1960 said he has recurring nightmares about his execution but is angry with his ex-attorneys for trying to block it. Convicted killer Michael Ross, 45, is due to die by lethal injection on Jan. 26 in Connecticut. In a 3-hour videotape made public on Wednesday, Ross described that in his dreams he would be strapped to an electric chair "and then I would float out over the prison, and watch the crowd as they counted down my execution just like it was New Year's Eve." The tape was a recording of a psychiatrist's court-ordered examination to determine whether Ross was competent to waive appeals of his death sentence. Ross has admitted killing 8 women in the 1980s, and has repeatedly said he does not want to fight his execution. An attorney for Ross submitted the tape to Connecticut's highest court in response to claims by his former public defenders that he is incompetent. In the videotape, which shows the serial killer speaking from behind the bars of a prison cell, Ross said he was furious with the public defenders -- whom he fired last year -- for trying to intervene on his behalf. "I never in the world thought that people that I trusted would betray me by filing stuff like this and lying," he said. At the same time, however, Ross said that if the state were to offer him a life sentence with no possibility of parole, he would take it. "Because not to take it would be suicide, in my view, that would be suicide," he said during the competency exam, which was administered last month. Ross spoke of how a desire to end the suffering of families of his victims was a main reason for his decision to allow his execution to move forward. "I owe these people," he said. "I killed their daughters." A survey released on Wednesday found that 7 in 10 Connecticut voters favor the death penalty for Ross. (source: Reuters) KANSAS: Some say debate on death penalty is premature Some legislators and prosecutors worried Wednesday that the Legislature was moving too quickly in trying to resurrect the state's death penalty law after the Kansas Supreme Court struck it down. Johnson County District Attorney Paul Morrison said trying now to fix a flaw identified by the Kansas court would be counterproductive. He said legislative action would make it less likely that the U.S. Supreme Court would review the Kansas court's decision. Senate Majority Leader Derek Schmidt, R-Independence, said, "I want to be cautious" in dealing with the death penalty before hearing from the U.S. Supreme Court. Their comments came as the Senate Judiciary Committee began reviewing the law and the court's decision. Chairman John Vratil, R-Leawood, said the panel would have hearings later this month. The Kansas court declared the 1994 capital punishment law unconstitutional last month because of a provision on how juries weigh evidence for and against imposing a death sentence. The provision says if a jury finds the evidence about equal, it must impose death, something the court's 4-3 majority said represented cruel and unusual punishment. The decision invalidated the death sentences of 6 convicted killers. A 7th capital murder defendant, Gary W. Kleypas, had his sentence overturned in 2001 and was awaiting resentencing. Attorney General Phill Kline has promised to appeal the decision to the U.S. Supreme Court. A new death penalty law can't be applied to the men retroactively, so the U.S. Supreme Court represents the state's only chance to put them back on death row. Morrison said the Legislature should wait for the U.S. Supreme Court to consider Kline's appeal. "I think it has a chance," he said. "It's not a long shot." Kline spokesman Whitney Watson said the attorney general wants legislators to reinstate capital punishment. But Watson also acknowledged doing so could affect Kline's appeal. "The Kansas Supreme Court has put the Legislature in a terrible position," he said. Meanwhile, Vratil said his committee will tackle another issue: strengthening language designed to prevent the execution of mentally retarded defendants. Under Kansas law, to avoid execution, a defendant's mental retardation must be severe enough to prevent the defendant from understanding that his or her conduct is criminal. Also, a person's functioning must have been impaired at birth or in childhood. But a 2002 U.S. Supreme Court decision declared the execution of any mentally retarded defendant unconstitutional, and an advisory committee of judges and lawyers concluded in 2003 that state law needed revising. Vratil said his committee also would review a bill striking the capital punishment law from the books. Bill Lucero, an anti-death penalty activist from Topeka, said he and other capital punishment opponents don't see a need for such a bill with the Kansas court's ruling. Legislators, he said, should do nothing. But the repeal bill's sponsor, Sen. David Haley, D-Kansas City, said he wants to eliminate the "stigma" of being a death penalty state. Schmidt said considering any death penalty proposal will spark a discussion about both eliminating capital punishment and expanding its use. "There is a large potential for unintended consequences," he said. On the Net: Kansas Legislature: http://www.kslegislature.org (source: Associated Press) MISSOURI: Supreme Court more 'deliberative' on death penalty, chief justice says The Missouri Supreme Court is taking "a more deliberative approach" to the death penalty, Chief Justice Ronnie White acknowledged Wednesday while discussing for the 1st time why the court has slowed the state's once steady execution pace. In the past 2 years, the Supreme Court has overturned about half the death sentences it has considered, and the death row population has fallen from 67 to 50. Missouri hasn't executed anyone in more than year. While death penalty opponents have rejoiced, Attorney General Jay Nixon and some local prosecutors have grown increasingly frustrated. Asked if the court had become more skeptical of the death penalty, White replied that "the court has taken a more deliberative approach." "Anytime you're going to impose the ultimate punishment, deliberation is necessary, and I think the court is being very deliberate," White said in an interview after delivering his annual State of the Judiciary speech to the Legislature. White, through a court spokeswoman, had denied previous interview requests to discuss the court's application of the death penalty. Just a few years ago, Missouri was one of the most active death penalty states. Between 1989, when Missouri resumed executions, and 2002, the state put to death 59 inmates - 2nd only to Texas' 220 and Virginia's 80 during the same period. Yet Missouri carried out just 2 executions in 2003 and none last year. During that time, the Supreme Court overturned the death penalty in 15 of the 31 capital punishment cases it considered. White said the decline in executions is partly attributable to a reduction in the number of cases in which prosecutors are pursuing the death penalty. But he said the court's more deliberative approach is the result of its new members. Since White was appointed in 1995 by Democratic Gov. Mel Carnahan, 4 more new Supreme Court judges have been picked by Democratic governors - replacing appointees of Republican Gov. John Ashcroft. "Each judge brings a different perspective to the court than the judge that they succeeded," White said. "So you're going to see some changes in the way we conduct our business, not as a planned effort but as a combination of new people coming in and others leaving." The turning point came in March 2002, when the addition of Judge Richard Teitelman tipped the 7-member court to a majority of Democratic appointees. That majority has since united in a series of 4-3 decisions overturning death sentences. White pointed to one particular case while explaining the more deliberative approach. Inmate Joseph Amrine had at one time been scheduled for execution before the Supreme Court ruled that evidence appeared to show he was innocent of fatally stabbing another prisoner. In the past, the Missouri Supreme Court set execution dates within weeks of receiving a petition from the attorney general. The court has yet to set executions for 6 inmates on which Nixon filed requests, some dating to 2002. But White did sign orders last month directing four of the inmates to show a reason why the Supreme Court should not set their execution dates. White said the Supreme Court has not intentionally held up executions. "We take them in due course," he said. "Once the appeals are done, we set an execution date." ON THE NET----Missouri Judiciary: http://www.osca.state.mo.us (source: Associated Press) SOUTH DAKOTA: Death penalty case argued before U.S. Supreme Court South Dakota Attorney General Larry Long told the U.S. Supreme Court on Wednesday that the appeal strategy of death-row inmate Charles Russell Rhines and others like him should be limited. Long, in his first appearance before the nation's highest court, urged the justices to enforce a strict time limit on federal habeas corpus petitions filed by state prisoners. The attorney general said Rhines is trying to circumvent a carefully crafted congressional scheme designed to ensure that legal issues raised by people convicted of crimes in state courts be fully exhausted there before those matters may be raised at the federal level. "I don't think that the system needs to be tinkered with," Long told the justices. In 2003, the 8th U.S. Circuit Court of Appeals ruled that U.S. District Judge Karen Schreier could not freeze the clock on Rhines' federal habeas petition while he returned to state court with legal claims that had not been exhausted. In a habeas corpus procedure, prisoners challenge the legality of their sentences and claim that their constitutional rights have been violated. Rhines, 48, was sentenced to lethal injection after being found guilty of slaying a former co-worker during the 1992 burglary of a Rapid City doughnut shop. Donnivan Schaeffer, 22, was stabbed to death when he stumbled upon the burglary. Long and Rhines' lawyer, Roberto Lange of Sioux Falls, argued Wednesday over the federal Antiterrorism and Effective Death Penalty Act. Congress passed the law in 1996 to limit the seemingly endless legal wrangling that typically precedes executions. Under the act, an inmate generally has one year after state appeal proceedings hit a dead end to file for habeas relief in federal courts. But prisoners must exhaust all state remedies before filing for federal habeas corpus, allowing state judges 1st crack at correcting any legal mistakes. Rhines filed a federal habeas in February 2000 and amended it nine months later. He claims such things as violation of his right to remain silent during police questioning, improper jury selection, ineffective legal representation and that the death penalty is unconstitutional. Schreier ruled in July 2002 that Rhines' habeas petition contained several unexhausted state claims, and she placed his federal habeas on hold while ordering him to quickly return to state court on the unsettled issues. Challenging Schreier's ruling, the South Dakota Attorney General's Office argued that the 1-year statute of limitations had expired by then, and the 8th Circuit Court of Appeals reversed Schreier. Rhines' lawyer next asked the U.S. Supreme Court to resolve the issue. Lange noted Wednesday that the 8th Circuit ruling is contrary to decisions in several other federal appeals courts. Lange said many of the issues that Rhines took to federal court were complex, and it took Schreier a long time to sort them all out and determine that some issues had not been settled in state court. Rhines should not be penalized by losing his federal habeas review, Lange said. But Justice Sandra Day O'Connor said Congress has insisted that all state court issues be fully settled before filing for federal habeas relief. "This does an end run around that approach," she told Lange. "What do we do to encourage the procedure to be followed?" Long said allowing federal judges to extend the time for federal habeas petitions defeats the purpose of the 1996 law that is supposed to streamline the post-conviction process. Prisoners should not be allowed to bounce back and forth between state and federal courts, he said. "There's nothing about this that denies relief for Rhines in state court," Long said. "If there's a truly meritorious claim, he'll get relief in state court. What he shouldn't get to do is go back to federal court." The state attorney general said Rhines' federal habeas should be dismissed because it contained unsettled state issues, or Rhines should be allowed to proceed in the federal courts only with exhausted state habeas issues. Rhines, like other death-row inmates, has no incentive to speed through the courts, Long said. But Lange said Rhines should be permitted to return to state court on unexhausted legal claims and then be able to fully pursue his federal habeas claims. He accused the state of trying to penalize prisoners who file federal habeas petitions that later are found to have unexhausted state claims. Those inmates should not have to give up unexhausted state claims or face forfeiture of federal habeas review, Lange said. Rhines' lawyer also said a favorable ruling would not cause unnecessary delays in similar cases because federal judges can set deadlines for exhaustion of state-court proceedings and prompt resumption of federal habeas proceedings that are put on temporary hold. "The delay concern that the state raises is overwrought," he said. "The state is pursuing the creation of an unprecedented, one-way turnstile that would prevent prisoners, once in federal court, from returning to state court for any reason without forfeiting the right to federal review," Lange added in a written argument supplied to the high court. Justice Antonin Scalia said the one-year statute of limitations is a strong incentive to exhaust state claims before going to federal court. But Scalia and other justices said some prisoners seeking federal habeas relief do not have lawyers and may get stung by the time restriction and complexity of issues that are supposed to be settled first in state courts. South Dakota was joined by 28 other states in its opposition to freezing the 1-year statute of limitations. All but 2 of those states have the death penalty. If the high court rules against Rhines, Kathy Swedlow, an associate professor at the Thomas M. Cooley Law School in Lansing, Mich., is unsure if many other inmates would be affected. Only inmates who file federal habeas petitions that contain some claims that have not been exhausted in state courts will be subject to the eventual ruling, she said. Unlike South Dakota, many states prevent prisoners from filing more than one post-conviction habeas petition, Swedlow said. "Not everyone will be in a situation to return to state court to exhaust claims," she said. Should the high court allow judges to freeze the statute of limitations on federal habeas proceedings, few prisoners likely would be affected, Lange said. There are no remaining state court remedies available by the time most prisoners go to federal courts because state-imposed time limits have expired or states do not allow more than one habeas filing, he said. Several justices noted Wednesday that South Dakota is unique in allowing a second state habeas in certain circumstances. Justice Anthony M. Kennedy said prisoners barred by the time limit from federal habeas proceedings have one other avenue available: They can ask the Supreme Court for direct review of their cases. Justice Ruth Bader Ginsburg worried that the time restriction may not be fair to all inmates. While some federal judges may quickly decide if any unexhausted state issues are contained in habeas petitions, other judges may take most of the one-year period to fully sort things out, she said. "What do you do with these cases where it's really hard to tell if a claim has been exhausted?" Ginsburg asked. Long said Rhines would not have been caught by the one-year statute of limitations if he had quickly gone back to state court after acknowledging that several unexhausted state issues were contained in an amended federal habeas petition he filed in November 2000. At that point, Rhines still had 80 day left to stop the clock by returning to state court but did not do so, the attorney general said. ****************** 4 men on South Dakota's death row Charles Russell Rhines, who told police that he murdered Donnivan Schaeffer but is trying to get his death sentence overturned, is 1 of 4 men scheduled for execution in South Dakota. Rhines has the distinction of being furthest along in the legal process. Unless he is successful in future appeals, he likely will be the 1st person legally put to death in the state since 1947. Electrocuted that year was George Sitts, 33, who killed 2 lawmen near Spearfish while on the run from a murder in Minnesota. 13 others, all hanged, have been executed in state history, including 4 who were executed before statehood in 1889. The state's 1st execution took place in 1877 when Jack McCall was hanged for killing Wild Bill Hickok during a card game in Deadwood. Rhines was sentenced to death in 1993. He confessed to Schaeffer's murder when questioned by police. In the taped admission, he gave a detailed description of the fatal stab wound where the skull meets the spine. If Rhines is ultimately executed, he first will be put to sleep with a strong sedative. Then a lethal drug will be pumped into his body to stop his heart. Also on death row are Donald Moeller, who murdered and raped a young Sioux Falls girl in 1990, and Briley Piper and Elijah Page, who murdered a Spearfish man in 2000 after burglarizing his mother's home and stealing her vehicle. Moeller filed habeas corpus proceedings in federal court last month, claiming that his constitutional right to a fair trial was violated. He wants his conviction and death sentence set aside. (source for both: Associated Press)
