August 30 TEXAS: Attorneys: Inmate can't be executed----Defense cites 2002 Supreme Court ruling in review of case An Amarillo death row inmate's attorneys argued Monday that their client can't be executed for the brutal 1990 slaying of a pizza delivery man because of a 2002 Supreme Court ruling barring execution of the mentally retarded. In 2003, Gregory Van Alstyne's execution was halted and the case was ordered back to Amarillo for review in the wake of the Supreme Court's decision. In 1992, Van Alstyne, 38, was convicted of capital murder in the 1990 killing of James Atkinson, 42, According to court records, Van Alstyne beat, stomped and stabbed Atkinson, and robbed him of $16 as he delivered a pizza in the 1400 block of Northwest 18th Avenue on April 17, 1990. At the time, Van Alstyne had been on parole 7 days after serving about 11 months of a 5-year robbery prison sentence. Assistant 47th District Attorney Pat Murphy and defense attorneys David Dow and Kristen McKeever argued their respective cases Monday before 181st District Judge John Board. Dow told Board a series of IQ tests and other criteria indicate Van Alstyne is mentally retarded and cannot be executed under the Supreme Court's decision. But the state is challenging that assertion. Annette Holland of Amarillo testified Monday that Van Alstyne lived with her family for a few months in the late 1980s, but was unable to handle basic tasks such as cooking, doing his own laundry or mowing the lawn. "I would say slow," Holland said of Van Alstyne. "Something is wrong somewhere." TiRone Stovall, Holland's son, said he and other children occasionally played football with Van Alstyne, but he said Van Alstyne never grasped the rules. Stovall said he also found Van Alstyne hiding one day, pulling the legs off crickets and eating them. "I caught him doing it twice. Twice," Stovall said, laughing. Dow also gave the judge affidavits from doctors and family members that he said support the defense's claims. On Monday, the state presented expert testimony from a prosecution psychologist who said three separate IQ tests indicated Van Alstyne was mildly retarded, but the expert questioned whether Van Alstyne skewed the results of one test in an attempt to avoid the death penalty. Psychologist David Egerton said IQ tests placed Van Alstyne in the mildly retarded range, but he said such tests have a margin of error. Egerton said he tested Van Alstyne and that the test indicated an IQ of about 56, 13 points below two other tests that placed the inmate's IQ at 69. Experts generally regard an IQ level of 70, combined with other factors, as threshold indicators of mental retardation. Murphy asked Egerton if an individual could "dumb down" the results of an IQ test. Egerton responded that a person could, in some instances, skew the results of an IQ test if they chose to and said Van Alstyne knew his IQ test score could have a life-or-death impact on his case. "He was aware of the significance of this. You have to question that in this particular situation," Egerton said. The state also presented testimony from 2 death row prison guards, who testified Van Alstyne was acclimated to prison life and understood their orders. One guard also testified Van Alstyne's prison records show the inmate owned a typewriter, a radio and a "hot pot" commonly used by prison inmates for cooking. Testimony continues today in 181st District Court. (source: Amarillo Globe-News) MISSOURI----stay of impending execution Johnston gets stay of execution Timothy Johnston, who had been set to be executed tomorrow for murdering his wife in 1989, won a reprieve late today from the 8th U.S. Circuit Court of Appeals. A 3-judge panel of the court voted 2-1 to grant him an emergency stay of execution until 12:01 a.m. next Thursday, Sept. 8. Johnston claims the three drugs used to execute death-row prisoners in Missouri violate his Constitutional right against cruel punishment because the state's protocol for using the drugs has not been adequately studied and could lead to extreme pain while he is paralyzed and lying on a gurney. The state of Missouri says the protocol, and the drugs themselves, have been adequately studied and there is no evidence to support the belief they will cause pain. The appeal panel did not state its reasons for granting the stay. The two judges who voted for the stay were Gerald Heaney and Kermit Bye. In a dissent, Judge Pasco Bowman opposed granting the stay, saying he found no error by a U.S. District Court judge who refused to grant a stay last week. Bowman added that the case has shown that the protocol for administering the drugs "has been carefully designed to avoid the infliction of pain." The chance of Johnston suffering any pain during the execution is "virtually nill," the judge wrote. Johnston, 44, is facing execution for murdering his wife Nancy in 1989, by repeatedly beating and kicking her car and at their home in the 4700 block of Minnesota Avenue. He confessed to the crime, saying he had become enraged over an argument they had in a bar. Michael Gorla, attorney for Johnson, said he doesn't know why the court granted an appeal until Sept. 8, and Johnston's defense team did not request that date. Gorla said he had sought an emergency stay of execution while Johnson's appeal was pending. "I have no idea how that Sept. 8 date got put in there," he said. The Missouri Attorney General's office has opposed any delay in the execution. A spokesman for the office could not be reached to comment on whether it will ask the full 8th Circuit 9court to rehear the appeal. (source:St. Louis Post-Dispatch) ******************************* Mo. Supreme Court overturns overturns death penalty for 2 men The Missouri Supreme Court on Tuesday ordered new penalty phase trials for 2 death row inmates after the U.S. Supreme Court said jurors could have been prejudiced by seeing the defendants in shackles. The court remanded Carmen L. Deck back to Jefferson County and Donald Joe Hall back to Greene County for new penalty trials. A jury in 1998 convicted Deck, of south St. Louis County, of 1st-degree murder in the 1996 robbery and killings of James Long, 69, and his wife, Zelma Long, 67, of rural De Soto. The jurors later sentenced Deck to death. The state Supreme Court later upheld the conviction but overturned the penalty, requiring a new penalty phase. During the new penalty phase, court officials required Deck to wear arm and leg restraints and a belly chain in full view of the jury. The court justified the restraints by saying Deck was a convicted criminal and possibly a risk. His defense attorneys objected, saying the restraints would make jurors assume Deck was an extremely violent man and would influence their decision of whether to sentence him to death or prison. The objection was overruled. But in May, the U.S. Supreme Court, in a 7-2 decision, said the restraints were unconstitutional because the lower court hadn't shown adequate evidence that Deck was a security risk and needed the restraints. "Where a court, without adequate justification, orders the defendant to wear shackles that will be seen by the jury, the defendant need not demonstrate actual prejudice to make out a due process violation," the high court said. The state Supreme Court also set aside the death sentence for Hall, who was convicted of the 1992 murder of Bill White, a Springfield jewelry store owner. The court upheld Hall's conviction and sentence in 1998, overruling Hall's complaints that he too was forced to wear visible restraints during his sentencing trial. (source: Associated Press) NORTH CAROLINA: House approves death penalty study bill, anti-meth legislation Despite other failed attempts this session, North Carolina's capital punishment system would come under review after all under legislation the House approved Tuesday. The bill calls for House Speaker Jim Black, D-Mecklenburg, to appoint a 15-member commission that would consult with law enforcement, representatives of victims and others as it studies the adequacy of counsel and the impact race has in capital cases. The death penalty study bill is one of several measures the House took up in what is expected to be the final days of a lengthy legislative session. Other bills included restrictions on sales of cold medicines that contain an active ingredient used to make methamphetamine and a limit on the forms of identification that can be used to get a driver's license. The bills now go the Senate, but it's unclear if that chamber will consider them before next spring. After senators approved a lottery bill Tuesday, Senate leader Marc Basnight said they were adjourning for the session. "I hope we don't come back again," said Basnight, D-Dare. Black said the House may adjourn for the year Wednesday. The capital punishment provisions, part of the traditional session-ending bill that directs the Legislature to study issues while not in session, is watered down from other death penalty study proposals that have been offered this session. One would have allowed judges to delay some scheduled executions and another would have banned executions from taking place for 2 years. But supporters couldn't get enough votes in the House to pass a standalone capital punishment study bill. House Majority Leader Joe Hackney, D-Orange, has tried to get the moratorium bill approved, but couldn't. "So obviously a backup position is to do the study," he said. For years, death penalty opponents have sought legislation to stop executions during a study of judicial fairness. The state Senate in 2003 became the first legislative body in the South to pass a moratorium bill, but the legislation never won House approval. Under the bill approved Tuesday by a 96-14 vote, the commission is to submit a final report to the General Assembly by the middle of 2008. (source: Associated Press)
