Jan. 13 INDIANA: Death penalty still in doubt for Canaan Keith B. Canaan may get a second chance to argue for his life. Canaan, convicted of fatally stabbing a young beauty school student 19 years ago on Evansville's East Side, was sentenced to death. But in 2003, U.S. District Judge David F. Hamilton ruled Canaan's lawyers didn't properly advise him about the possibility of testifying during the penalty phase of his trial. The U.S. 7th Circuit Court of Appeals on Tuesday concurred with Hamilton. So, even though Canaan's conviction stands and he's still in prison, his death sentence remains overturned, pending a possible appeal to the U.S. Supreme Court. Vanderburgh County Prosecutor Stan Levco said he's read the federal appeals court's opinion and is considering his options, which include conducting a new death penalty hearing or talking to the state attorney general about another appeal of Hamilton's ruling. Levco said he will also speak to relatives of the stabbing victim, Lori Ann Bullock. On Dec. 29, 1985, Bullock was found dead in her apartment of 22 stab wounds. Bullock, 22, had 2 roommates and had recently moved out on her own for the first time. A manicurist, she worked at the old Executive Inn barbershop and was attending beauty school. Before his arrest for the murder, Canaan had been in and out of jail since he was a boy growing up in Ohio. He was paroled a month before Bullock's slaying after serving three years in prison for overpowering a guard and escaping from a Gibson County, Ind., jail. Jurors convicted Canaan of murder, burglary and attempted criminal deviate conduct. They agreed with prosecutors that Canaan intentionally killed Bullock while committing the other two crimes, which were aggravating factors cited in recommending a death sentence. Jurors concluded that no mitigating factors existed to outweigh the aggravating factors. According to the U.S. 7th Circuit Court of Appeals, if Canaan had testified at the sentencing hearing it could have been considered by jurors as a mitigating factor. But Canaan did not take the stand. "In the absence of any other mitigating evidence, (Canaan's lawyers) should have informed Canaan of his right to testify on his own behalf," the appeals court justices wrote. "Instead of receiving advice from counsel, Canaan received none at the critical moment. "With nothing to put on the mitigating side of the scale, the jury was almost certain to choose a death sentence." A telephone message left at the law office of Canaan's lead defense counsel in the 1986 trial, Barry Standley, wasn't returned Wednesday. The federal appeals court said it affirmed Hamilton because of the issue pertaining to Canaan testifying and not because jurors were wrongly instructed before deliberating Canaan's attempted criminal deviate conduct charge. Hamilton, in his 2003 ruling, cited both of those issues in throwing out Canaan's death sentence. (source: Courier and Press) ALABAMA: Mental retardation ruling clouds death row Alabama once led the nation in executing mentally retarded people, but since the U.S. Supreme Court ruled that states cannot do that, there's an argument beyond guilt or innocence going on in courthouses around the state: Who's mentally retarded? Last week, for the first time in Alabama since the 2002 Supreme Court ruling, someone was released from death row. A 5-0 opinion by the Alabama Court of Criminal Appeals found that James Henry Borden Jr. fit the diagnosis of mentally retarded. About the same time, a man in Houston County was re-sentenced to death after one psychologist said he was retarded and another said he was not. The U.S. Supreme Court decision has left prosecutors and defense attorneys in disagreement over who is mentally retarded. In some cases, each side has an expert to back up its claim. Without a state law defining the disability, decisions are bound to be inconsistent in the dozen or so cases yet to be appealed, experts say. No definition: Most states with a death penalty define mental retardation in their laws; Alabama does not. "It can get very contentious" in the absence of a statute, said Richard Dieter, director of the Death Penalty Information Center, a group that opposes the death penalty. "In each case there's a new group to debate that, and you get different judges and different prosecutors." Alabama Assistant Attorney General Clay Crenshaw, whose office works to uphold capital convictions, said the standards are clear, even though there's no definition in state statutes. 2 elements are required by the courts to establish mental retardation. Someone must have below-average intellectual functioning, considered at 70 or below on the Wechsler scale, and the person must have deficits in functions such as hygiene and relationships. The conditions must manifest themselves before age 18. "You have to have both," Crenshaw said. Borden, 55, the 1st mentally retarded man to exit Alabama's death row under the Supreme Court ruling, killed a Lawrence County woman in front of her grandchildren in 1993. He had a previous murder conviction. Separate tests have put his IQ at 53 and around 65 or 66. Crenshaw said the attorney general's office agreed to the lesser sentence of life without parole after the most recent test. That happened after a lot of litigation and new data, said Bryan Stevenson, director of the Equal Justice Initiative, a Montgomery firm that represents poor people on death row. "His claim of mental retardation was initially denied," Stevenson said. Faking it: Just as attorneys for the condemned worry about retardation being underdiagnosed, prosecutors are concerned that defendants will fake mental retardation to be spared. "Obviously, one of the big problems you run into is anybody on Death Row or who has a capital case pending is going to be told by somebody that if you're retarded you can't get the death penalty," said Doug McKeown, a Dothan psychologist who evaluates defendants for courts in south Alabama. McKeown said there is disagreement over how to interpret the Supreme Court's decision. Some judges look mostly at IQ, others take into effect living skills. McKeown's testimony helped return Jerry Jerome Smith to death row last week in Dothan. Smith, convicted of killing three people at a crack house, was classified in school as educably mentally retarded, generally pupils with IQs of 55 to 70. Evaluations scored his IQ from 65 to 72. But McKeown determined Smith was street smart and had life skills. He testified that Smith was not mentally retarded, and Houston County Presiding Circuit Judge Lawson Little sent him back to death row. Smith's attorney, Aaron Gartland, said he will appeal. Gartland's argument, in part, will rest on the fact that McKeown reviewed prior tests rather than testing Smith for mental retardation. The expert witness for the defense, Florida psychologist Mike D'Errico, found that Smith is retarded. Prior to McKeown's getting the contract to test, D'Errico was the county's court-appointed evaluator, the one who tested Smith for the initial trial. D'Errico scored Smith's IQ at 67 and noted 2 deficiencies in adaptive functions. "We thought, sure, he was the forensic expert appointed by the court, what stronger evidence could there be?" Gartland said. Stevenson said McKeown's decision not to test Smith was unacceptable. Diagnosing should not be so contentious, he said. There are other incidents where people are tested for mental retardation, and the state needs to use the same standards that are used for things like education, the military and social benefits. "There's just such resistance in recognizing any disability when someone's been accused of a crime," Stevenson said. "People with mental retardation are disproportionately represented in the criminal justice system when their deficits and disabilities are not properly managed by social service agencies." (source: The Birmingham News) VIRGINIA: State seeks 1st-degree charge in Beach slaying Westmoreland County Commonwealth's Attorney Richard H. Stuart says he will seek a 1st-degree murder indictment against a 17-year-old accused of killing a Colonial Beach man Sept. 29. Police have accused Jaime Lewis Smith of Monroe Hall of shooting David Peyton, 24, of Colonial Beach twice in the back of his head after a Sept. 29 crap game in a vacant lot on Jackson Street across from Peyton's home. Westmoreland Juvenile and Domestic Relations Court Judge Maston Davis declined last week to certify a f1t-degree charge against Smith, saying evidence in the case did not support the premeditation required for 1st-degree murder. Stuart said he disagrees and will seek to reinstate the 1st-degree charge when a county grand jury hears evidence against Smith on Jan. 27. Stuart said Smith will be tried as an adult, but will not face the death penalty if the 1st-degree indictment is returned. Smith has been jailed in a juvenile detention facility in Williamsburg since his arrest. The grand jury also will consider an indictment of Dawayne C. West of Colonial Beach in the Sept. 20 shooting death of a Maryland man at a Colonial Beach apartment complex. West remains jailed at Warsaw. (source: The Free Lance-Star) MISSOURI----female faces death penalty Grand jury indictment allows for death penalty----Lisa Montgomery is charged with cutting baby from expectant mother. In Kansas City, a federal grand jury issued an indictment Wednesday that allows prosecutors to seek the death penalty against a Kansas woman accused of killing an expectant mother and stealing her unborn child. Prosecutors have not yet decided whether to seek a death sentence for Lisa Montgomery, 36, of Melvern, Kan., who was indicted on a single count of kidnapping resulting in death. But, said U.S. Attorney Todd Graves, "Clearly, in this document, we have protected that option." Montgomery is charged with driving to the northwest Missouri town of Skidmore on Dec. 16, strangling the 8-months-pregnant Bobbie Jo Stinnett and cutting the baby from her womb. Stinnett, 23, was found by her mother in a pool of blood, her midsection sliced open. Authorities have said that on the day of the killing, Montgomery called her husband from Topeka, Kan., and told him she had just delivered a baby girl. The girl survived the attack and is at home with her father. Graves said Wednesday that Montgomery would be arraigned sometime during the next week. The arraignment will be the first opportunity for Montgomery, who is being held at a federal detention center in Leavenworth, Kan., to enter a plea in the case. Wednesday's indictment accuses Montgomery of strangling Stinnett with a rope, then cutting the baby from her womb with a kitchen knife. It says Montgomery killed Stinnett "in an especially heinous, cruel and depraved manner." Graves said he will make a recommendation to a Department of Justice committee about whether to pursue the death penalty. That group will then make its own recommendation to the U.S. Attorney General's office. That process usually takes several months to complete, Graves said. He said he doesn't expect to file any more charges against Montgomery, though he said he would not rule out charges against other people involved the case. Montgomery and Stinnett became acquainted through a community of rat terrier dog breeders. They met at least once, at a dog show in Abilene, Kan. The 2 also occasionally communicated through an Internet message board dedicated to rat terriers. Authorities said Montgomery, posing as a woman named Darlene Fischer, sought directions to Stinnett's home through the message board on the day before Stinnett's death. Prosecutors have said Montgomery confessed to the crime. Graves declined to discuss whether he thinks Montgomery will use an insanity defense at her trial. (source: Associated Press)
