July 25 TEXAS: Father: Death is only justice for teen's killer----He opposes plea deal for man who stabbed woman to death last year. The 2 teenage sisters got home at 6 p.m. on a Monday and found a ghastly scene: Their older sister, Virginia "Jenny" Garcia Hayden, was half-naked, hands tied, mouth taped. A butcher knife was stuck in her chest. The telephone cords in her family's North Austin house were cut. Soon after the 18-year-old St. Edward's University student's death on Jan. 26, 2004, one of her former co-workers at an IHOP restaurant, David Diaz Morales, was arrested; later, he was charged with capital murder. Now, Garcia's father says he and Travis County District Attorney Ronnie Earle are at odds over whether Diaz should face the death penalty. Humberto Garcia says prosecutors told him that today, at a hearing before state District Judge Wilford Flowers, they will accept a plea bargain that would put Diaz, 22, in prison for at least 50 years. Humberto Garcia wants Diaz to die. "I believe that the way this guy did this, not just what he did, but the way he did it, he should get the death penalty," Garcia said. "It was a heinous, gruesome crime." First Assistant District Attorney Rosemary Lehmberg declined to comment on the case, saying that a potential jury pool could be tainted. She did say that her office aggressively seeks the input of victims' families before deciding whether to seek the death penalty but that ultimately, the decision is made solely by Earle. In a state that leads the nation in executions, juries deciding Earle's cases hand down fewer death penalty sentences than those in other urban districts. Since the death penalty was reinstated in 1976, Travis County has sent 15 people to death row, fewer than any other urban county, according to the Texas Department of Criminal Justice. The next closest is El Paso with 18; Harris County tops the list with 280 people sent to death row since 1976. Under the proposed plea bargain, Diaz would plead guilty to capital murder and burglary, receiving consecutive sentences of life in prison and 20 years. He would become eligible for parole after 40 years on the capital murder charge. If he wins parole then, he would begin serving time on the burglary charge and would have to serve at least 10 years on that charge before becoming eligible for parole and release. Diaz's defense lawyers declined to comment. "Legally, it's their decision," Humberto Garcia said of the prosecutors, "but morally it's my decision, not his." Whose decision? Advocates on both sides of the death penalty issue agreed that ultimately, it should be prosecutors, not victims' families, who call the shots on seeking death. Robert Blecker, a criminal law professor at New York Law School and a leading death penalty proponent, said the ancient Greeks and Hebrews, the "twin sources of Western culture," pioneered that philosophy. "Early, we recognized that the murder was a crime against the community," he said. "While the victim's family would have a voice, they shouldn't have a veto. "The death penalty should be reserved for only the worst of the worst, and while understandably an aggrieved family might want the killer dead, nevertheless, that doesn't mean the killer deserves to die." Linda White, chairwoman of the anti-death penalty Murder Victims' Families for Reconciliation and an adjunct professor of philosophy at Sam Houston State University in Huntsville, said a death sentence is not a "victim-friendly" punishment. "What victims want and what victims need is not always the same thing," she said. White speaks from experience. Her 26-year-old daughter, Cathy, was abducted, raped and murdered in Brazoria County in 1986. >From then until the day the two murderers were sentenced, she lived in limbo, she said, "waiting for something to happen until you can truly move on with your life." Death sentences only prolong that process, she said, because appeals can last 10 years or more after the jury's verdict. "You might feel better that the person is no longer breathing," she said. "But you wait too long for it. . . . And the fact is, nothing will ever make the difference except your own personal journey into healing." Daddy's girl Jenny Garcia was born and raised in Spain and moved to Austin with her family a year and a half before she was killed. "She was an absolute angel, this little girl," Humberto Garcia said. "My daughter was charitable, generous, understanding . . . a real daddy's girl." She graduated from Anderson High School and in her first semester at St. Edward's earned four A's and a C. She took a part-time job at IHOP on U.S. 183 near Duval Road, close to her house, to help her family financially. There, she met Diaz. He, his father and 2 siblings were abandoned by their mother when Diaz was an infant, and when Diaz was 9 years old, his father was sent to jail, according to a psychiatrist's report from this year that found him competent to stand trial. After a year in foster homes, Diaz and his siblings were sent to their native Mexico to live with family; at 18, he returned to Texas, the report said. Diaz told Jenny about his troubled childhood, and she tried to be understanding and told her family about his search for his father, said Humberto Garcia, who went to the IHOP once to meet Diaz and offer assistance. But when Jenny started steadily dating someone the month before her death, Diaz became "obsessed," Garcia said. Jenny had returned from classes about 2:30 p.m. on the day she died, Garcia said. Diaz parked nearby and forced his way into the Garcias' one-story brick house on Whispering Valley Drive, Garcia said. Diaz brought his own tools to commit the crime: plastic ties for Jenny's hands, duct tape for her mouth and a knife, he said. "It was totally premeditated," Garcia said. "The only thing he changed is the little 5-inch knife he brought for my big butcher knife. "He cut through her like butter, stabbed her 3 times and killed her." That night, police say, Diaz called the homicide tip line about 11 p.m. after he saw reports on the murder. When pressed for information on their relationship, he hung up. Police said detectives later found jewelry at Diaz's apartment that had been taken from the Garcia house. How long is enough? After Diaz cut his wrists in December, a jury in the 147th District Court found him incompetent to stand trial, and Flowers sent him to Vernon State Hospital in North Texas. In March, psychiatrist Joseph Black suggested that Diaz had been faking mental illness and found him competent. Diaz was returned to Travis County. A week and a half ago, an assistant district attorney called Garcia and told him that Diaz's lawyers had made a plea bargain offer that prosecutors were considering, Garcia said. The 50 years Diaz would have to serve isn't enough for Garcia, who has other reasons for wanting death for Diaz, including his daughters' fear that Diaz would harm them if released. "Fifty years is long time," Garcia said. "The problem is that social mores change. The composition of the high court changes, and therefore laws change. A law could be passed 8 years from now, throwing out all sentences over 20 years." Garcia plans to rally family and friends to protest for "justice for Jenny" at the Criminal Justice Center before today's hearing and will ask Flowers, who must approve any plea deal, whether he can address the court about Earle's decision. "If (Earle) doesn't take this to court, if he doesn't allow a jury of his peers to handle this, if he wants to supplant the jury and he accepts this plea," Garcia said, "he will be spitting on my daughter's grave." Capital murder cases in Travis County Since 2001, 26 capital murder cases have been concluded in Travis County. District Attorney Ronnie Earle's office sought the death penalty in 7 of them. In the other 19, prosecutors pursued the 2nd option under Texas law: life in prison. The outcomes of the 7 death penalty cases: - In 2 cases, prosecutors agreed to plea bargains, opting for long prison sentences. - In 3 cases, juries sentenced defendants to life in prison. - In 2 cases, juries sentenced defendants to death. (Source: Travis County district attorney's office) (source: Austin American-Statesman) ********************* County jail escapes feds' eye----Dallas: Officials say probe isn't needed, but critics welcome it Just as in Dallas, county jails in Los Angeles, Santa Fe, N.M., Memphis, Tenn., Baltimore, Long Island, N.Y., and elsewhere have been cited for egregious problems in the delivery of health care to inmates, particularly the mentally ill. The big difference among these jails: Dallas is the only one, so far, not to have the federal government swoop in and order widespread improvements under threat of a federal lawsuit. County officials say it would be inappropriate for the U.S. Department of Justice Civil Rights Division to launch an investigation in Dallas now, since the commissioners have recognized the jail's ills and are moving to fix them. But many improvements the Justice Department forced on other counties are not in place at the Dallas County Jail. And mental-health advocates say Dallas would be ripe for a federal investigation. "There's just as much basis for their involvement here as in those other cities," said Laurance Priddy of Advocacy Inc., an advocacy group for mentally ill inmates. "We'd welcome any outside intervention since the county still isn't doing anything, and we still have people not getting their medications," Mr. Priddy said. County Judge Margaret Keliher said she is not worried about the possibility of a federal investigation. "We've recognized we have a problem, and we're way down the road towards making major changes," she said. "I think it would be inappropriate for them to come in now." Other commissioners have had costly outside intervention on their minds. Commissioner Maurine Dickey has urged swift action to improve jail health, after a scathing February report noted severe staff shortages and conditions that were life threatening to some inmates. "We're going to have to put money into it," she said in March. "Let's ... not wait until we're forced to by some outside party." Commissioner John Wiley Price said federal intervention has never been discussed by the commissioners. "I just hope we don't need DOJ to come in for us to become compliant," he said. "Personally I don't believe we've delivered on the standards for health care in the jail." Mr. Price said the commissioners are now moving to fix things, but it will take time, money and a struggle against a tight market for nurses. "We're trying to play catch-up," he said. "We didn't get into this quagmire overnight, and we won't get out of it overnight. It's going to take dollars." Commissioners set up a committee to fix jail health and are still waiting for final suggestions from a team of experts. Now that the University of Texas Medical Branch has decided not to renew its contract to oversee jail care, Parkland Memorial Hospital officials are gearing up to take over in November. But they are pressuring the commissioners for a tax increase to help raise spending on jail care by at least $6 million. Over the past decade, the Justice Department has been aggressive in investigating county jails. At the Nassau County jail on suburban Long Island, N.Y., "people were not getting their meds or even properly diagnosed with mental illness at book-in, and people who were suicidal were not getting flagged," said Steven Greenfield, executive director of the Mental Health Association of Nassau County. "And if people were on their meds before they entered the jail, the meds were terminated at book-in and the mentally ill inmates decompensated." Outside pressure After investigating, the Department of Justice mandated a number of changes. "There's no question that outside oversight exerted pressure for change," Mr. Greenfield said. "County government never want to raise taxes, so a stick from the outside definitely played a role." The Department of Justice also pressured Los Angeles County to make jail improvements. "It moved the improvements along more quickly," said Richard Van Horn, president of the Mental Health Association of Greater Los Angeles. "If you get the DOJ to come in, it will definitely improve your mental health care in the jail." Many changes ordered by the federal government in an agreement signed with Los Angeles County in 2002 are similar to the changes many advocates are calling on Dallas County to make: - Inmates must be asked questions at book-in to learn whether they have mental illness history or suicidal feelings. Questioning is to take place "by an appropriately trained individual," and in "a reasonably quiet and private area." In Dallas, medical screening is handled by jail guards who have no medical training. Experts say they can easily miss symptoms of illness as a result. And screening takes place in a large open room with dozens of people. Experts say that reduces the chance someone will admit they have a mental illness. - The county must ensure "continuity of appropriate medicine" to "mentally ill who were receiving medicine prior to entering the jail." In Dallas, family members often can't get medications to their jailed relatives, and state hospital officials have said they send medications with patients going back to the jail that are not used. - The county must ensure "adequate therapy and counseling" for mentally ill, "adequate space for treatment," and "adequate staff to provide treatment." In Dallas, there are too few staff members to distribute medications, and the mentally ill often go without their medication for weeks at a time. Lack of funding Many mental-health advocates argue that the larger problem is inadequate funding for programs that would help mentally ill people function successfully in the community. But because those programs are under stress, many mentally ill people stop taking their medications, causing their condition to erode. They end up committing minor crimes that land them in jails, which were never designed to provide such care. "It's a national crisis that people with mental illness are winding up in jails in many cases for quality-of-life offenses," Mr. Greenfield said. "What could be worse for the recovery of someone with a mental disorder than to be placed in an isolated cell?" The Los Angeles jail is still the single largest mental hospital in the nation, Mr. Van Horn said. "Like Texas, we've been underfunded for mental health programs for years," he said. California voters just passed an initiative to charge a 1 percent income tax on those with incomes exceeding $1 million to raise more money for mental health care. That could generate an additional $750 million for such programs, Mr. Van Horn said. Some of the money will fund urgent care centers. "This will make a huge difference, because police will have a place to drop mentally ill people off besides the hospital emergency room" or the jail, he said. "We need to be improving care for people on the outside," he added, "before they even get to jail." (source: Dallas Morning News) VIRGINIA: Killer's fate hanging on his IQ The life of a convicted murderer is hanging in the balance while a US jury considers whether his intelligence has increased enough to allow him to be put to death. Daryl Atkins was named in a landmark Supreme Court ruling in 2002 that said it was unconstitutional to execute the mentally retarded. But the intellectual stimulation the killer got by constant contact with lawyers in the case is thought to have raised his IQ above the threshold of 70, which puts him in line for the death penalty in Virginia. The 27-year-old's case has divided lawyers and psychologists and has become the latest battleground for those arguing for and against state-sanctioned executions in America. It raises questions over who should decide on a criminal's competency and whether knowing details of their crime can skew that life-or-death decision. Capital crime Atkins is a violent killer, with a string of felony convictions. In 1996, he and another man abducted Eric Nesbitt, 21, a US airman from Langley Air Force Base. They forced him to withdraw money from a cash machine, then took him to an isolated field where Atkins shot him eight times, killing him. Atkins' IQ was tested in 1998, and was found to be 59, well below the level at which a person is deemed retarded in Virginia. But when he was retested following the Supreme Court ruling defence experts found his IQ had risen to 74, while prosecutors said it was two points higher. Dr Evan Nelson, who tested Atkins in 1998 and 2004, wrote in a report last year that "his constant contact with the many lawyers that worked on his case" gave him more intellectual stimulation in jail than he got during childhood. "That included practising his reading and writing skills, learning about abstract legal concepts and communicating with professionals." But prosecutors say Atkins was never retarded in the first place, indicated by the fact that he was able to load a gun, direct the victim to a cash machine and identify a remote spot for the killing. Faking a result For a person to be legally defined as mentally retarded in the US, the retardation must have been present before the age of 18. It is expected that the jury will be asked to consider a wide range of evidence to determine Atkins's mental capacity. This will include records from his childhood, various intelligence and memory tests and interviews with people who have known him as an adult. An independent forensic psychologist, Dr Bob Stinson, told the BBC it would be "unusual and unexpected" for a person's IQ to rise 17 points in 7 years. "It would be easy to deliberately do badly on one IQ test," he said. "But it would be very difficult to feign low cognition across time, different settings and multiple examiners." Psychology tests used to evaluate a criminal's cognition typically include sophisticated traps to catch fakers. Difficult questions that appear to be easy may be inserted to test whether people answer correctly because they feel they can allow themselves to get a simple answer right. Other questions that look very different, but which are actually very similar, may be used to test consistency. 'Symbolic case' But some fear Atkins will not get a fair hearing, because the jury will be told the full details of the murder. Richard Dieter, of the Death Penalty Information Center, said: "This should be an objective determination, but it will be infected by the jury's knowledge of Atkins' crime. "The Supreme Court ruled that we should not execute the mentally retarded, it did not say it should be a balancing act with the gruesomeness of a crime." The DPIC says courts across the country have been struggling to put procedures in place that deal with possible mental retardation cases in the wake of the Supreme Court's ruling. Mr Dieter said that while 19 people with low IQs had been given stays of execution in Texas - the US state that puts the most people to death - they were still on death row. "This is a symbolic case," he added."There will be a lot of attention around the country to the outcome." (source: BBC News) ARIZONA: Death penalty to come into play in extradition from Mexico Maricopa County prosecutors pursuing the extradition of a Mexican man suspected in the killing of his children's grandparents and uncle will likely have to forget about seeking the death penalty in the case, because Mexico doesn't impose that punishment. Rodrigo Cervantes Zavalais is accused of killing the 3 in Queen Creek before abducting his 2 children. He was captured July 18 near a truck stop in Puerto Vallarta. The children were returned unharmed to Arizona with their mother Wednesday. Maricopa County Attorney Andrew Thomas isn't saying what charges he has filed against Cervantes Zavala or even if he has filed them. "I just have a major problem with a foreign government that systematically encourages its citizens to immigrate illegally to the United States," Thomas said. "And when some of those Mexican citizens allegedly murder people in the United States, they refuse to extradite them unless we agree to waive our own laws." Under Arizona law, those killings meet the description of 1st-degree murder, which is punishable by death if certain other criteria are satisfied. If death doesn't apply, then a judge may choose between natural life in prison with no chance of parole or life in prison with possibility of parole after 25 or 35 years. In Mexico 1st-degree murder carries a sentence of 30 to 60 years. (source: Associated Press) NORTH CAROLINA: Inmate awaits ruling on DNA----A judge is to decide whether test results should free a man on North Carolina's death row A judge may decide today whether Rex Dean Penland -- after 11 years on North Carolina's death row -- should be released from prison, thanks to new DNA evidence that his lawyers say proves he is innocent of the 1992 rape and murder of a Winston-Salem prostitute. Under a 2001 law that allows DNA testing if none was done for the trial, Penland is entitled to a hearing once the test results are complete. If Guilford County Superior Court Judge John O. Craig III finds the test results favorable to the defendant, he could release Penland, grant a new trial or reduce the sentence. Craig also could agree with the state that the DNA evidence doesn't prove anything and allow Penland's death sentence to remain. Penland's lawyers say the DNA results show that the victim's blood was not on the alleged murder weapon and that Penland's DNA did not match that of the rapist. Penland's lawyers say he was convicted largely because of the testimony of his nephews Larry and Gary Sapp. The lawyers say the twins' plan to shift blame to their uncle for the rape and killing succeeded. The Sapp brothers, both 30, testified with hopes of avoiding death sentences. They pleaded guilty to lesser charges and are out of prison. State appellate lawyers counter that the defense is overstating the importance of the DNA test results. The new evidence doesn't conclusively prove Penland is innocent of the rape and killing of Vernice Alford, they say; therefore, he still deserves to die. Craig will hear arguments today from both the state and the defense in Danbury, a Stokes County town 30 miles north of Winston-Salem. Penland, 45, who has always denied any role in the crimes, testified during his trial in 1994 that he passed out from drinking more than a case of beer on the day in question while he and his nephews were driving around. Revisiting the evidence Invoking the 2001 DNA test law, defense lawyers Ken Rose of Durham and Stephen G. Royster of Mount Airy sought analysis of all of the crime's biological evidence that had not previously been tested. The same law helped Darryl Hunt, a Winston-Salem man who was exonerated after serving 18 years of a term of life in prison when DNA testing showed that another man raped and killed Deborah Sykes in 1984. Penland's lawyers persuaded a judge to order DNA testing for the rape evidence and the knife that prosecutors say was used to kill Alford, a 29-year-old waitress and prostitute. At the time of Penland's trial, an SBI agent testified that there was insufficient blood on the knife and not enough evidence of the sexual assault for DNA testing. Since then, the technology has advanced, and testing is possible. Blood doesn't match The testing found that only Penland's blood was on the knife and ruled out Penland as the sexual assailant, the defense lawyers said. "The testing has revealed that the blood on the knife was not the blood of the victim and that Rex Penland did not contribute the sperm," Rose and Royster wrote in a court motion. Penland's blood was on the knife because he had accidentally sliced his finger while skinning a deer, according to his testimony. The Sapp brothers testified that the 3 of them picked up Alford in Winston-Salem and drove her to a deserted logging road in Stokes County, prosecutors said. Penland and Larry Sapp had sex with Alford, and then Penland tied Alford to some trees, the brothers testified. Penland, the brothers say, told them he was going to kill Alford, and moments later Gary Sapp heard a scream. Then Penland came back with a bloody knife, they say. Further DNA testing proves neither of the Sapp brothers raped Alford, the state lawyers say. Barry McNeill, a special deputy attorney general, argues that just because Penland's DNA wasn't found on the sexual assault evidence doesn't prove he didn't rape Alford. It also is possible that Alford, who worked as a prostitute, had sex earlier in the evening, McNeill suggests. McNeill points out that the blood on the murder weapon produced only a "limited" DNA profile, which was consistent with Penland. However, McNeill says, the test results do not "conclusively demonstrate" that Alford's blood was never on the knife blade, handle or case. "It is possible that Penland successfully removed most, if not all, of the blood or genetic material from the knife, the knife handle and the knife case," he wrote. (source: News & Observer) *************** Hearing Scheduled On Effort To Free Death Row Prisoner In Danbury, a hearing is scheduled today in Stokes County on efforts to overturn the conviction of a man in the murder of Winston-Salem prostitute. Rex Penland has been on death row for more than 11 years after being convicted in the December 1992 slaying of Vernice Alford. But his attorneys said in court papers filed earlier this month that DNA evidence shows Penland is innocent. State prosecutors said in a filing in April that they didn't view the DNA findings as favorable to Penland. Penland was convicted of murder, rape, sexual offense and kidnapping. The state Supreme Court upheld Penland's conviction and sentence in 1996. But last year, following a defense motion in Stokes Superior Court, a judge ordered the sperm and blood samples be tested again. (source: WFMY News)
