July 28 TEXAS----impending execution Texas inmate set to die for slaying of Minnesota student Court documents illustrate a grim environment for David Martinez as he grew up. His mother may have abused and neglected him. Their house was filled with bird feces. His father was living elsewhere in an openly gay relationship and involved in the manufacture of sadomasochistic sex toys. He may have been abused there as well. What the courts were asked, however, as the condemned killer faced execution Thursday evening, was whether those factors should have been explored more thoroughly so jurors could have better considered whether Martinez deserved life in prison rather than the death penalty. Martinez, 29, was set to die for the 1997 rape-slaying of a 24-year-old art student from Minnesota at a park in Austin. He would be the 10th Texas inmate to receive lethal injection this year. "The state violated his due process because the same district attorney's office that was prosecuting David was also charged with the responsibility of investigating and prosecuting those persons who abused him, and they didn't do so," Martinez's appeals lawyer, Gary Taylor, said. "Therefore, they denied us that evidence." The appeal was dismissed Wednesday by the Texas Court of Criminal Appeals. Taylor said he was prepared to go to the U.S. Supreme Court, which earlier this year refused to review Martinez's capital murder conviction for the death of Kiersa Paul. "A lot of that came out during trial," Darla Davis, one of the prosecutors, said Wednesday. Authorities never had credible evidence Martinez was sexually assaulted, and if such evidence existed, Martinez "was sitting in jail and had every opportunity and motivation to let us know," Bryan Case, appellate division director in the Travis County District Attorney's office, said in the Austin American-Statesman. Martinez, from death row, refused to speak with reporters in the weeks preceding his scheduled punishment. 8 years ago last week, Paul told her sister she was heading out on her bicycle to a popular Austin park along the Barton Creek greenbelt to meet a guy she felt sorry for and knew only as "Wolf," which was Martinez's nickname. The pair apparently had met through mutual friends. The next morning, Paul's body was found by a jogger. She'd been raped, strangled, her throat cut at least 8 times and an "X" etched into her chest. Martinez was arrested days later. At his trial in 1998, a Travis County jury deliberated only 15 minutes before convicting him of capital murder. 2 weeks later, they decided he should be put to death. Paul, whose family lived in Bloomington, Minn., was a sophomore at the University of Minnesota and came to Austin to visit a sister. She decided to stay, finding work as a cashier at a bakery. Martinez was on probation for a 1995 conviction for possession of an explosive device, a homemade hand grenade police found in his car during a traffic stop. "This was a young man who had a very difficult life," recalled Bill White, one of Martinez's trial lawyers. "He couldn't stay with his mother, he couldn't stay with his father, and he found people who would take him in." At times, he lived on the streets. When Martinez was arrested, he had Paul's bicycle, her backpack and a book bag. A roommate who saw Martinez's new bicycle had called police. DNA tests tied him to the crime scene and the victim. At least 8 other Texas death row inmates have execution dates, 2 in each of the next 4 months. After Martinez, next on the schedule is Gary Sterling, set to die Aug. 10 for the 1988 robbery and slaying of a Navarro County man. (source: Houston Chronicle) USA: Bid to Speed Death Penalty Appeals Under Fire---Conservatives and former prosecutors are among foes of a bill, before a Senate panel today, to curtail 'endless' delays in cases. The Senate Judiciary Committee will take up legislation today meant to streamline the death penalty appeals process - something critics fear could lead to the execution of the wrongly convicted. Opposition is mounting to the Streamlined Procedures Act introduced in the Senate by Jon Kyl (R-Ariz.) and in the House by Dan Lungren (R-Gold River). Concerns come not only from death-penalty opponents but from individuals and groups not often thought of as vocal supporters of the rights of criminal defendants. Among the critics are the Rutherford Institute, a conservative legal group that specializes in religious freedom and antiabortion issues; Bob Barr, the conservative Republican former congressman from Georgia; more than 50 former prosecutors; and more than a dozen former federal judges. The legislation, opponents say, would dramatically restrict federal courts' ability to consider habeas corpus petitions from state prisoners who claim that their constitutional rights have been violated or that they have evidence they are innocent. Habeas corpus is the centuries-old method of challenging allegedly illegal imprisonments by giving inmates a day in court to assert that a serious error has been made in their case. Kyl and Lungren introduced virtually identical bills in the Senate and House to remedy "endless delays" between convictions in capital cases and executions. They say that restrictions Congress imposed in the Anti-Terrorism and Effective Death Penalty Act of 1996 are not enough. Kyl said the number of habeas corpus petitions pending in federal district courts had increased to 23,218 in fiscal year 2003, from 13,359 in fiscal year 1994, citing Administrative Office of the Courts data. The bill would impose a host of restrictions on an inmate's ability to get a federal court to hear a habeas corpus petition. A group of former federal judges, in a letter of opposition, told the Senate Judiciary Committee that "there are now too many instances to ignore in which innocent people were sentenced to prison, or even to death, and it took years for the evidence of their innocence to come to light." Kyl said the bill had an exception that would enable innocent people to obtain relief from a wrongful conviction. But the former judges - including William H. Webster and William S. Sessions, both of whom served as directors of the FBI in Republican administrations - countered that "the language of the exception is so narrow that it will cover virtually no one." The former jurists also said the bill would overturn several recent Supreme Court decisions interpreting the 1996 death penalty act "as well as several other decisions of the Rehnquist court, many of which have helped to further streamline the system and eliminate delays. It serves no one's interests to engender the kind of delays that this bill will create" by precipitating more litigation. Moreover, the judges said, the impact of the bill would be "far more sweeping" than death penalty cases. The restrictions it would impose would cover "every state criminal conviction," including cases involving businesses, firearms and the environment. The sweep of the measure is troubling and unwarranted, Barr said in a letter sent Wednesday to Judiciary Committee Chairman Arlen Specter (R-Pa.). "I stand second to no one in believing in swift and certain justice," wrote Barr, a former prosecutor and one of the authors of the 1996 law. He said he thought the law was "working well to restrict [habeas corpus] petitions" and had seen "no evidence to the contrary." "As a former member of Congress, I know that unfortunately there are times when political pressures lead to imprudent decisions that can be destructive to basic constitutional liberties." [This] is an example of legislation that is being pressed without sufficient deliberation, and without any real evidence that it is needed." Among the former prosecutors against the bill are Ira Reiner, who served as Los Angeles County district attorney from 1984 to 1992, and Gil Garcetti, who held the position for eight years after that. Reiner, who is a proponent of the death penalty and sought it dozens of times while running the district attorney's office, said he strongly opposed "this ill-conceived bill - whose transparent purpose is to strip the federal courts of their jurisdiction to review state criminal court proceedings." He said it would "eviscerate the role of the federal courts in ensuring that innocent persons are not mistakenly convicted of crimes and that state courts do not send people to prison in violation of their constitutional rights." At the first Senate hearing on the bill, Kent Cattani of the Arizona attorney general's office testified in support of the measure. Specter asked him whether Congress had "the authority to strip the courts of jurisdiction on constitutional issues." Cattani replied, "Yes, I think Congress has the authority to do so." At the same hearing, Seth P. Waxman, who was U.S. solicitor general in the Clinton administration, described four death penalty cases in the last four years in which the Supreme Court found major constitutional violations overlooked by state courts. In one instance, prosecutors hid critical information from the defense. In another, the Supreme Court found that prosecutors had improperly kept blacks off a jury. If the Kyl-Lungren bill had been in effect, none of those cases would ever have been reviewed by a federal court, Waxman said. "The title of this bill suggests that it would streamline the processing of habeas corpus cases," Waxman said. But Waxman said he found "something else entirely: Section after section of the bill would eliminate federal court jurisdiction to decide federal questions" in such cases. Attorney Barry Scheck, co-founder of the Innocence Project, which had played a key role in freeing more than 100 wrongly convicted people - 8 of whom had been on death row - said a number of those people would be in prison or dead if the proposed legislation had been in effect. Scheck told the Judiciary Committee that the proposed law turned the lesson of those cases "on its head. It threatens to make what is already a torturous, difficult mountain for the wrongfully convicted to climb into a wholly impenetrable steel wall." "Finding innocence is a fits-and-starts kind of process," said New York attorney George Kendall, who has litigated death penalty cases for more than 2 decades. "Habeas corpus was never supposed to be about innocence alone. It was always about whether the state courts faithfully applied federal constitutional law. "This bill turns that on its head," insulating state courts from any meaningful review, he said. 6 people exonerated as a result of federal habeas corpus proceedings attended the 1st Senate hearing, including Thomas Goldstein, who was freed last year after 24 years in prison for a wrongful conviction in a Long Beach murder. Goldstein's challenges to his conviction fell on deaf ears in state court. But five federal judges in California who reviewed the case found that his constitutional rights had been violated by prosecutors who used an unreliable jailhouse informant and by police who steered an eyewitness into incorrectly identifying Goldstein. (source: Los Angeles Times) WEST VIRGINIA: (Federal) Death penalty sought in case Lawrence County authorities will seek the death penalty against John David Anderson on charges that he killed a 71-year-old Deering area man and burned down his home earlier this month, Lawrence County Prosecutor J.B. Collier Jr. said Wednesday. Anderson, 19, a Carter County, Ky., resident, currently is lodged in the Carter County Detention Center in Grayson on a charge of aggravated murder. Sheriff Tim Sexton said Anderson confessed to the murder of Arthur Boyer, 71, a Deering area man. A special grand jury session has been called for Aug. 12 to hear evidence in the case, Collier said. "The man pleaded for his life" before he was killed, he said. Boyers body was found inside his home, which had burned down, and his car and several guns also were stolen, according to authorities. The car and guns subsequently were recovered. (source: The Herald-Dispatch) CALIFORNIA: Transgender teen did nothing 'to deserve death' ----But 1 accused killer said he vomited on finding she was male 1 of 3 men accused of murdering a Newark transgender teen nearly three years ago testified Tuesday that he was disgusted to learn that Gwen Araujo was not the woman he thought he'd had sex with -- but he did not want her to die that night. "She never should have been killed," said Jose Merel, 25, who was testifying for the 1st time at his retrial on murder charges. "There was nothing she did to deserve death." Merel admitted that he had participated in the attack against the 17-year- old Araujo, slapping her twice and striking her head with a frying pan as a show of "solidarity to my friends," he testified. Merel said he was devastated when friends at a party revealed that Araujo -- who called herself Lida and with whom Merel had previously had anal sex -- was biologically male. "It's hard to explain," Merel said in a Hayward courtroom. "Your whole life you think you're a heterosexual. Then you get pleasure from a homosexual. It disgusted me." Merel did not testify at the first trial, which ended in June 2004 with the jury deadlocked on charges against him and two other men, Michael Magidson and Jason Cazares, both 25. A fourth man, Jaron Nabors, pleaded guilty to manslaughter and testified against the others. The case, and the mistrial, outraged the transgender community. The retrial began last month. Wearing glasses and a white sweater in court, Merel said he had vomited and then cried when a woman at the Oct. 3, 2003, party at his home blurted out that Araujo had male genitalia. "Emotionally, I was crushed," he said, his voice at times hardly audible. When the 2 had met months before, Merel said, he thought "Lida" was "very attractive." "I thought it was impossible to derive pleasure from a man unless you were gay," he said. "I was having serious questions about my sexuality." Merel said he had slapped Araujo twice as others punched her and pushed her up against a wall. He then went into the kitchen, he said, grabbed a tin can and tried to scare Araujo with it. He then picked up a frying pan and hit her in the head, he said. Araujo then said, "I told you I was sorry," Merel testified, the last words he heard her speak that night. Merel said he was scrubbing Araujo's blood from the carpets and couch as Nabors and Cazares watched Magidson bind Araujo's ankles with a rope. He said he then retreated to his room because he did not want to cry in front of his friends again. When his attorney, William DuBois, asked Merel why he had not done anything to help Araujo, Merel took a long pause. "I don't know," he answered. "I don't really have an answer to that." Still, Merel said he thought Araujo was alive until Cazares brought him outside and he saw Araujo's body wrapped in a blanket in the back of Magidson's truck. "Nobody ever mentioned killing her," he said. Prosecutors say Magidson pulled a rope toward Araujo's neck after she had been tied up, and the accused killers buried Araujo's body in El Dorado National Forest. Merel said he felt horrible as he dug Araujo's grave. "Honestly, to me I was worrying how long it would take for the police to get to the house, how long before we were arrested," Merel said. "Anytime you do a crime, they always find you. It was the worst day of my life." On the ride home, Merel said, Magidson said he was not sure Araujo had died until she was hit with a shovel. Merel's attorney has seized on that point to try to show that Merel's earlier blows to Araujo's head were only glancing, not fatal as prosecutors have suggested. Araujo's killing came as Newark Memorial High School prepared a performance of "The Laramie Project," a play about the 1998 killing of gay college student Matthew Shepard in Laramie, Wyo., where he was beaten, tied to a fence and left to die. Merel will continue testifying today. (source: San Francisco Chronicle) OHIO: Scot set to stay on death row until Supreme Court ruling Scot Kenny Richey will be kept on death row in the United States until the Supreme Court decides whether to rehear his case, it was ruled last night. The decision is expected to keep Richey, whose murder conviction was overturned by an Ohio appeal court earlier this year, in custody until October. Richey's lawyer, Ken Parsigian, had hoped to get him transferred to a county jail and then released on bail, pending the Supreme Court's decision. But Ohio attorney general Jim Petro welcomed yesterday's decision. "This ruling keeps Richey on death row where, we believe, he properly belongs for his just conviction and sentence for the murder of 2-year-old Cynthia Collins," he said. Prosecutor Gary Lammers has already announced his decision to retry Richey and is currently putting his case to a grand jury. Richey, who grew up in Edinburgh, has been on death row for 19 years after being convicted of murdering the child in an arson attack. (source: The Scotsman) ****************************** Supreme Court justice places Richey's case on hold A U.S. Supreme Court justice has temporarily placed Kenneth Richey's new trial on hold until the court decides whether to hear the case. A decision on whether the full court will hear the case isn't expected until sometime in October since the nation's highest court is on leave. The order was issued after state prosecutors applied to halt a mandate issued by the 6th Circuit Court of Appeals that overturned Richey's 1987 death penalty conviction and ordered Richey be retried or released within 90 days. Richey was convicted of capital murder in the June 30, 1986, death of 2-year-old Cynthia Collins in a Columbus Grove apartment fire. In January, the 6th Circuit tossed Richey's conviction saying Richey's trial attorneys did not do an adequate job representing him and that under Ohio law at the time, prosecutors needed to prove Richey intended to kill the young girl to convict him of capital murder. Prosecutors said Richey's target was his ex-girlfriend. The order was issued Wednesday by Justice John Paul Stevens. It means Putnam County Prosecutor Gary Lammers does not have to seek a new indictment by Sept. 1 and places on hold an order by a state appellate court that said Richey should be moved to the Putnam County jail pending trial. Lammers could not be reached for comment Wednesday. Richey, in the meantime, will remain on death row. Ken Parsigian, a Boston attorney representing Richey, said the order will delay the process by a few months. He said there still remains little chance the Supreme Court actually will take the case. Parsigian also said he doubts Justice Stevens actually sat down to read the briefs before issuing the order. He said it's likely a staff person handled the matter and Stevens signed off without giving it a careful look. "If Justice Stevens actually sat down and read these papers I would bet large sums of my own money he would deny it," Parsigian said. Ohio Attorney General spokeswoman Kim Norris called the order "encouraging," saying attorneys from her office always have believed they had a good argument, one they hope to put before the whole court in hopes of reversing the ruling by the 6th Circuit. (source: Lima News) ********************************* State won't appeal order in restaurant slaying case The state will not ask the U.S. Supreme Court to hear an appeal of last month's federal ruling ordering Ohio to retry or release death row inmate Jamie R. Madrigal, convicted of killing an 18-year-old assistant restaurant manager during a 1996 robbery. The Lucas County prosecutor's office has already said it would retry Madrigal absent a Supreme Court appeal. Madrigal was convicted of shooting Misty Fisher, an Oregon high school senior, in the back of the head when she failed to open a locked safe quickly enough at the KFC restaurant at South Avenue and Anthony Wayne Trail in South Toledo on April 12, 1996. The U.S. 6th Circuit Court of Appeals upheld a lower federal court ruling that jurors should not have heard a purported accomplice's police confession implicating Madrigal when that witness made himself unavailable for cross-examination at trial by invoking the Fifth Amendment. "While we remain convinced that the court incorrectly decided this case, we do not believe that further appeals would be accepted," said Kim Norris, spokesman for Attorney General Jim Petro. "Instead, we will direct our energies to assisting Lucas County in reconvicting Mr. Madrigal at a new trial." (source: Toledo Blade)
