July 6 TENNESSEE: Ban Pavulon in executions For the sake of inmates who have been condemned to death, and for the sake of society, Tennessee should ban the use of Pavulon in lethal-injection executions. The Tennessee Supreme Court is considering a case that challenges the use of the drug. Attorneys for Abu-Ali Abdur'Rahman want Tennessee to devise a different execution protocol that eliminates the use of Pavulon. Other challenges to the use of Pavulon are surfacing; about 28 states use Pavulon as part of their execution process. Pavulon is the second of three drugs administered during a lethal-injection execution. The first drug is an anesthetic that puts the inmate to sleep. Then comes the Pavulon, which paralyzes the facial and skeletal muscles but not the brain or nerves. The third drug, potassium chloride, stops the heart. That means that people who have been given Pavulon can still feel intense pain; they just can't show it. An anesthesiologist who testified about the drug's use called it a "chemical tomb," saying that if the anesthetic wears off or is not sufficient, the prisoner will feel the excruciating pain caused by the potassium chloride. That fact alone indicates that the use of Pavulon could meet the definition of being "cruel and unusual" punishment, which is constitutionally prohibited. Lethal injections have become the execution method of choice because the process seems more sterile than others. But Pavulon doesn't make death easier, or faster, or more painless for the person on the receiving end. Pavulon just makes executions easier to watch for witnesses - and that's where the real problem lies. The whole purpose of having witnesses at executions is to make the event real to society. If those witnesses see a prisoner doze off, then quit breathing, they may believe the execution was painless. If they see a person who thrashes around violently, vomits or defecates, that may change their perception of capital punishment. State law bans the use of Pavulon on animals. Human beings deserve the same consideration. (source: Tennessean) VERMONT: Death penalty most likely would be carried out in Indiana If the jury in the Donald Fell case orders that the defendant be executed, that execution most likely would be carried out in Indiana. But there's a chance that the man convicted late last month in the kidnapping and killing of Terry King could be executed much closer to Vermont. The federal prison in Terre Haute, Indiana, is where the federal death penalty is usually carried out. The method is lethal injection. But in another federal case based in New England, the judge ordered that Gary Lee Sampson be executed in New Hampshire, where the 2nd of 2 people Sampson killed had lived. Sampson is currently appealing his sentence. (source: Associated press) ************************ Fell deserves death penalty The Rutland Herald in their Friday, July 1, edition ask: Who is Fell? My answer: A cold-blooded, ruthless, sick individual who is a murderer. There is nothing else to say about him, and he deserves the death penalty. This person exhibited many bad behaviors from his early childhood. He was crying out for help and no one was there. Now because he committed a heinous crime and faces death, they're all out to save something that is not worth saving, quite frankly. Why didn't the "professionals" catch this guy and rehabilitate him? I think I may know the answer to this one: He didn't want the help, he liked the life of crime until one day when he finally killed a poor helpless woman who was larger than life. To Fell's attorneys: You have pulled a fast one in trying to alleviate the criteria for death by having Fell admit that he killed Mrs. King and to feel remorse and is sorry. But hopefully, the jury will see right through your games. And the statement about Fell doing well in a "structured setting," what a joke. We hear about Fell's "bad" life (that he helped create, and never sought help), well, I want to talk about Tressa King. There is so much to say, but I'll start with this. She was a loving wife, mother, sister, grandmother, friend and a person in society. She owned her home with her husband of more than 40 years, paid taxes, contributed to society, was the twinkle in her family's eye, her life revolved around her children and grandchildren. Tressa King is greatly missed every day by her family and people around her, and this society wants to make Fell's problems ours. Well, I am not taking responsibility for this person. This person deserves what he has coming to him under federal law, and I only pray that the King family will find resolve in that. God bless the King family. GREGORY THAYER - Rutland (source: Letter to the Editor, Rutland Herald) KENTUCKY: Death row inmate appeals over flawed evidence ----Bullet analysis now discounted Ronnie Lee Bowling sits on death row at the Kentucky State Penitentiary for 2 murders he claims he didn't commit -- convicted in part through forensic analysis that scientific experts now say is deeply flawed. No eyewitnesses or direct physical evidence tied him to the execution-style slayings of two gas station attendants in Laurel County a month apart in 1989. There were no fingerprints, no DNA. But at Bowling's trial, an FBI examiner testified that tests showed some of the .38-caliber bullets recovered from both bodies -- and from bullets in an attempted murder at a third station in Rockcastle County -- came from the same batch of lead. More crucially, FBI Special Donald Havekost said, they matched some of the cartridges found in Bowling's mobile home. Havekost told the jury he'd never seen a bullet match in crimes that weren't related. Asked about the likelihood of finding another bullet matching Bowling's, Havekost said, "I'd spend a good part of my life looking and probably never find it." But last year, a National Research Council panel found that FBI examiners repeatedly had failed to tell juries that such bullet matches might be mere coincidence. The bureau responded by suspending lead analysis, which it had used in 2,500 cases over 40 years. Then in March, the 1st conviction in the nation was reversed based on concerns about the reliability of bullet-lead analysis. Ordering a new trial for a man convicted in New Jersey of murder, an appeals court said "the integrity of the criminal justice system is ill-served by allowing a conviction based on evidence of this quality to stand." The prosecutor in the Kentucky case said there was plenty of other evidence to convict Bowling, now 36. But Bowling is staking his life on the argument that he wouldn't have been convicted without that forensic evidence -- arguing on appeal that the new disclosures about such testing demand that he get a new trial. "If there is any truth and justice in this country, my wrongful conviction shouldn't be allowed to stand," he said in a 2-hour interview at the penitentiary, where he has been held since Dec. 24, 1992, for the murders of Ronald L. Smith, 28, and Marvin Hensley, 48. Overstated significance After a yearlong study, a research council panel reported in February 2004 that FBI analysts repeatedly overstated the significance of bullet-lead matches and underplayed the likelihood of a false match. "FBI examiners should not rely on bullet lead analysis to testify in criminal cases about the statistical probabilities that a crime-scene bullet originated with the defendant," concluded the report of the Washington-based council, the operating arm of the private, nonprofit National Academy of Sciences and National Academy of Engineering. Bowling cited that report and other attacks on bullet-lead testing in motions seeking a new trial that he's filed in Laurel Circuit Court and U.S. District Court in London. No execution date is pending, although he is entering the last phase of his appeals. One of his lawyers, Vince Aprile, likened bullet analysis to hypnosis and Victorian-era phrenology -- the abandoned belief that intelligence could be determined by the shape of the head. Aprile said the national council's report "exposes it as an insidious endeavor to clothe biased speculation in the impressive robes of science." But relatives of the victims say Bowling is just grasping for straws. And former Commonwealth's Attorney Tom Handy, who won Bowling's conviction and has since retired, said, "I don't have any doubt that he was the perpetrator." Handy concedes that bullet evidence was important to his case -- he told the jury in his closing statement that the trial came down to "cold, analytical facts tested by an FBI agent." But he said that stronger proof came from Ricky Smith, owner of the third station, a Sunoco in Rockcastle County. Smith, who is not related to Ronald Smith, testified that three days after Hensley was murdered, Bowling came into his station and opened fire, then fled, leading police on a 32-mile chase that ended with Bowling's capture outside his home in Clay County. State police who pursued him later found a gun along the road and determined, through traditional ballistics testing, that it was the same weapon used in the murders. Bowling claimed that he hadn't shot at Ricky Smith and that the gun wasn't his. Bullets found at the Sunoco station were too mangled for conventional ballistics tests, in which marks on bullets from the crime scene are compared with marks on test bullets fired from the same gun. That is where Havekost came in. He testified that one of the bullets from the Sunoco station had the same chemical makeup as 5 of the bullets found in a partially filled box of ammo at Bowling's home, meaning, he said, that they originated from the same manufacturer's batch of bullet lead. He also said that 1 bullet from each of the 2 murders matched and that three of the bullets that killed the 2nd victim, 3 of the bullets found at the scene of the third shooting, and 16 of the 24 bullets found in Bowling's home all matched. How testing works The FBI did bullet-lead analysis in cases where no weapon was found or where ballistics analysis was impossible. Since 1986, five examiners testified 521 times about bullet-lead tests, the bureau has said, although it's also said it doesn't know where or against whom. The Washington-based Forensic Justice Project, part of the nonprofit National Whistleblower Center, has sued the FBI to get that information, contending the government won't release it for fear it might trigger hundreds of new trials. No one knows how many times bullet-lead analysis has been presented in Kentucky courts, but it figured in the case against Shane Ragland, whose conviction for the murder of a former football player was reversed on other grounds last year by the Kentucky Supreme Court. Another defendant, Tyron Anton Wilcox, was acquitted of murder in a 2002 trial in Jefferson County in which an FBI examiner presented bullet-matching evidence. Here's how it works: Bullets from the crime scene are tested for trace amounts of seven elements, including arsenic and tin. The same test is conducted on bullets linked to the suspect. If bullet lead from both sets is found to contain the same amounts of those elements, FBI examiners have historically concluded that the samples came from the same batch of lead. Some examiners went so far as to testify that the bullets came from the same box. The findings have rested on twin assumptions -- that every batch of lead was consistent throughout and that no two batches were exactly the same. The FBI's own collection of about 13,000 bullets seemed to confirm the theory: no 2 bullets in it seemed to match unless they came from related crimes. But a statistician hired by the FBI found the bureau's database was too small to draw valid conclusions. And other researchers, including the FBI's former chief metallurgist, William Tobin, began challenging the findings. Tobin and colleagues went to lead smelters and found that different samples from the same batch sometimes had different compositions, and that samples from different batches sometimes had the same composition. In other words, a bullet match might just be a coincidence. "It's like saying that because two people have the same chemicals in the blood, they have the same parents," said Tobin, now an independent consultant and expert witness whose pro bono research helped win the New Jersey defendant a new trial and Wilcox his acquittal. His research also found that in rural areas, where there are fewer stores that sell ammunition, the chances are great that different customers will buy bullets that match. In Juneau, Alaska, for example, the odds that an "innocent" purchaser would buy bullets likely to match the "suspect's" bullet ranged from 87 percent to 100 percent, depending on the brand, he found. Tobin, who also has advised Bowling's lawyers, said the bullet testimony in that trial was scientifically invalid and unsupported. "If somebody is guilty of capital murder," he said, "send them to the electric chair. But don't do it with comparative bullet-lead analysis." The National Research Council panel, for its part, found that, while the actual testing of bullet lead is sound, the testimony of FBI examiners often was not -- that juries weren't told about the possibility of coincidental matches or that a single batch of lead can produce between 12,000 and 33 million bullets. "It would be like a Nike shoe print, size 10, found at a crime scene," said Case Western Reserve University law professor Paul Giannelli, who served on the committee. If a suspect were found with the same brand and size sneakers, "it would be admissible in court, but there would be a large number of people with that type of shoe." A spokeswoman for the FBI laboratory, Special Agent Ann Todd, said the bureau is in the final stages of reviewing the National Research Council's report. In an interview, Havekost, who retired from the FBI soon after Bowling's trial and now lives in Nebraska, said that if he'd been asked, he would have testified that many people could have bought matching bullets in a rural area like Laurel County. But nobody asked, he said. Other evidence Ricky Smith had just opened his Quality Sunoco station at 6 a.m. on Feb. 25, 1989, when Bowling came in asking about a job, then pulled out a revolver and started shooting, according to court records. Smith ducked for cover, escaping injury, and returned fire with his own gun, he testified, grazing Bowling's head with 1 bullet. Bowling didn't testify at his Laurel County trial but has since claimed that he wasn't armed and that Smith started shooting at him because he was nervous after the recent murders in a neighboring county. Asked why he would run from police if he hadn't done anything wrong -- state troopers testified they chased him at speeds up to 100 mph -- Bowling said an interview that he was rushing home so his wife could take him to the hospital. To win a new trial based on newly discovered evidence, Bowling's lawyers -- Aprile and assistant public advocates David Harshaw and Susan Martin -- will have to show there is a "reasonable certainty" that his trial would produce a different result with the recent disclosures about bullet-lead analysis. In an interview, the foreman on Bowling's jury said the bullet evidence wasn't much of a factor for the jury. "I don't remember anybody really bringing that out in deliberations," said Lisa Trett of Corbin. Jackie Steele, the Laurel assistant commonwealth's attorney who is fighting Bowling's motions, noted that Bowling was convicted of attempted murder at a separate trial in the Rockcastle shooting without bullet-lead analysis. He was given an additional 20-year sentence on that charge. Steele said there was plenty of other evidence to support the Laurel County conviction. 2 witnesses, for example, said they saw Bowling at Hensley's station a couple of weeks before he was murdered, and that he seemed to be casing the store. Another witness, who had shared a jail cell with Bowling, testified that he'd confessed to shooting a service-station owner five times in the back. And while Bowling had told police he didn't own a .38-caliber gun, the prosecution at trial presented a family picture showing Bowling with that caliber weapon in the background. Bowling and his lawyers dispute that evidence. They say the men who saw Bowling at the 1st station were friends of Hensley whose court testimony went beyond what they initially told police. In a 2-hour interview in the penitentiary's visiting room, Bowling said the gun belonged to his father, as his father testified at trial, and that the jailhouse snitch -- Timothy Chappell -- "lied and ratted his way" to win lenient treatment on pending federal charges. Court records show that Chappell, who faced 20 years in prison on 4 counts of mail fraud, pleaded guilty to 1 count and got a 2-year sentence. He was later convicted as a child molester, according to Georgia's sex offenders Web site, which says he has failed to register his most recent address. He couldn't be found for comment. 'Horrific crimes' Bowling has been incarcerated for more than 16 years. He said he spends his time reading, studying Zen Buddhism and working as a legal aide for the 34 other men on Kentucky's death row. A prison spokeswoman said he has had only one disciplinary write-up in 13 years. He acknowledged in the recent interview that the Laurel County murders were "horrific crimes." One of the victims, Hensley, was known for frequently giving gas, food and shelter to people in need. Besides operating his station, he was pastor at Lighthouse Assembly of God Church near Mount Vernon. Ronald Smith, the other victim, was divorced and had 1 daughter. He lived with his mother, Oda Proffitt, who said in an interview that her son was just starting to get his life together. "I think about him every day," she said. But Bowling said there is nothing that connects him to the Laurel County crimes other than bullet-lead analysis. "The link doesn't exist," he said. "They misled the jury in my trial by presenting evidence that was flawed, unreliable junk science." (source: Courier-Journal)
