Nov. 9 NEVADA----new execution date////volunteer Nevada inmate may get wish for execution despite innocence claim A death row inmate who maintains his innocence in the 1988 killing of a Reno woman waived his appeal Wednesday and was ordered to be executed in what his lawyer says amounts to "state-assisted suicide." Daryl Mack, 47, will be executed by lethal injection at the Nevada State Prison in Carson City sometime from Nov. 28 to Dec. 4, under the order signed by Washoe County District Court Judge Robert Perry. "He does not admit to the killing he's being executed for, but he's not going to contest the finding that he's guilty," his lawyer Marc Picker said after the hearing. "He told me his decision in July 2004 and has never wavered from that since then," Picker told The Associated Press. Mack was in prison for murdering Kim Parks in 1994 in a Reno motel when he was linked through DNA evidence to the murder of Betty May. May, 55, was sexually assaulted and strangled in her Reno home in a case that had remained unsolved for more than a decade. Judge James Hardesty, now a Nevada Supreme Court justice, found Mack guilty of killing May, and a three-judge panel sentenced him to death in 2002. Before being linked to May's murder, Mack was serving a no-parole life term for Parks' murder. "He's been in the system a long time," Picker said. "He does not want to be on death row anymore. He said he's made peace and he's ready to move on," he said. "He knows the outcome of his petitions and other avenues of appeal would take a long time and he'd not be looking at freedom anytime soon if he was successful." Mack, with a mustache, long black beard and long hair in dreadlocks, had little to say during a 40-minute hearing. "I'm prepared to sign the order that ultimately is going to lead to your execution," Perry told him. "I want to make sure that this is really what you want to do and haven't had any second thoughts about that. Are you still certain this is what you want to do," the judge asked. "Yes, yes sir," Mack responded. Perry asked a variation of the question twice more and Mack answered the same each time. "We've been going at this a long time," the judge said. "I believe he has had adequate opportunity" to reconsider. I'm convinced this is a decision he's competent to make and ready to go forward." During the hearing, Washoe County Deputy District Attorney Gary Hatlestad - trying to reduce the possibility of future appeals- requested that Perry formally ask Mack's lawyers if there was any legal reason why the execution should not go forward. They told Perry there was none. Mack still could make a last-minute bid for an appeal as the execution approaches, but Picker said that was unlikely because he's already undergone 3 psychiatric examinations and 4 or 5 court hearings. "If I had to predict, I'd say Daryl Mack is not going to do anything like that," he said. 10 of the 11 inmates executed since Nevada reinstated capital punishment in 1977 have dropped their appeals. Picker acknowledged the ethical question about putting to death someone who maintains their innocence but agrees to the execution. "Breaking it down to the simplest sense, it is state-assisted suicide. There's no question that is what we are dealing with. But he has accepted the penalty," Picker said. Picker said Mack and his defense team that includes Scott Edwards discussed procedural matters leading to the execution, including visits and his last meal. "He's not interested in a spiritual adviser. He's very calm with his decision and about his religion," Picker said. (source: Las Vegas Sun) MARYALND: Attorneys File For Execution Stay In Baker Case Attorneys for a man scheduled to be put to death in Maryland next month have asked a judge for another stay of execution. But a prosecutor says the lawyers' arguments have been rejected before and should be thrown out again. The appeal, which was filed Monday, is based on a study conducted for the state that showed murderers are more likely to be sentenced to death if they are black and their victims are white. Wesley E. Baker, who is black, was sentenced to death for killing Jane Tyson, a 49-year-old white woman he shot to death in 1992 in front of her 2 young grandchildren in a parking lot robbery that netted $10. The study also found the death sentence was much more likely to be sought in Baltimore County, where Baker shot his victim, than in other counties and Baltimore. Last month, Maryland's highest court upheld the death sentence, rejecting the argument that it was illegal. Gary Christopher, who is representing Baker, filed for the recent stay request in Harford County, where the trial was held. Christopher said an earlier filing for a stay related to the study was thrown out of court on a technicality. "We have now brought it by way of a motion to reopen the post-conviction proceedings, which is clearly a proper way to bring it," Christopher said in an interview Tuesday. Baker's lawyers also have argued for the stay on the basis of another case. The claim maintains that aggravating circumstances in a capital punishment case must be included in an indictment before a person can receive the death penalty. That claim has been argued in the Maryland Court of Appeals on behalf of another death-row inmate, Vernon Evans. "That's an open question," Christopher said. "The courts are at argument in it." But Ann Brobst, a Baltimore County assistant state's attorney who prosecuted Baker, said the arguments by Baker's lawyers already have been rejected. "They raised each of these issues three times before," she said. "They've been dealt with by the courts and rejected and they should be rejected again." Baltimore County prosecutors continue to work on the case at the circuit court level. The attorney general's office handles matters at the appellate level. The request for a stay is now before Harford County Judge Maurice Baldwin. Last week, Gov. Robert Ehrlich signed a death warrant for Baker. The warrant orders what would be the state's first execution in more than a year to take place during the five-day period beginning Dec. 5. (source: The WBAL Channel) OHIO----new execution date set New execution date set for killer professing innocence Gov. Bob Taft signed a two-month reprieve on Tuesday for a condemned inmate, giving him until Jan. 19 to work on proving his claims of innocence. John Spirko had been scheduled to die by injection on Nov. 15 for the 1982 killing of postmistress Betty Jane Mottinger in Elgin in northwest Ohio. Taft agreed Monday to grant a reprieve request from Attorney General Jim Petro to allow for DNA testing of a tarp, cinder block and duct tape found with Mottinger's body. It's the 2nd time Taft has agreed to delay Spirko's execution over questions about his conviction. Taft also said he would delay considering Spirko's request for clemency until the tests are complete. The Ohio Parole Board has twice voted 6-3 to recommend against changing the death sentence to life in prison. Spirko's attorneys have been prodding officials to follow up on a 1997 tip from a house painter who implicated another man, and requested the tests to see if that man's DNA would show up on the crime scene materials. 2 months is enough time to complete the testing, Petro spokeswoman Kim Norris said. (source: Associated Press) ****************** Brother pleads for killer's life With John Hicks' scheduled execution 20 days away, his younger brother pleaded Tuesday for state officials to spare the convicted killer's life. Hicks' sister-in-law, in an equally passionate plea to the Ohio Parole Board, asked that Hicks die by lethal injection Nov. 29. While the two relatives sought different outcomes, it's up to the nine-member parole board to recommend to Gov. Bob Taft whether Hicks lives or dies. John Hicks was found guilty of strangling his 5-year-old stepdaughter, Brandy Green, in August 1985. He's also serving a life sentence for murdering his 56-year-old mother-in-law, Maxine Armstrong, while robbing her to buy crack cocaine. "Have mercy on my brother," said Ricardo Hicks, 42, of Toledo. "I know what he did was horrible ... I know my brother wouldn't have done this crime if he hadn't been addicted to drugs." But Pamara Y. Hughes of Cincinnati pleaded that her brother-in-law be executed for killing her mother and niece. "Why he would kill two of our family members who cared for him ... we have tried for 20 years to understand," Hughes said. "Mr. Hicks has lived for 20 years longer than he allowed my mother and my niece to live. Brandy would be 25 years old now. "Carrying out the death penalty will not bring back my mom and Brandy, but it will close a 20-year chapter in our lives," she said. "We will never forget them, but we will not have to think of the person that took their lives." Defense attorneys played a videotaped interview from an expert on drug addiction. Dr. Theodore Parran of Case Western Medical School said Hicks, now 49, suffered a drug-induced psychosis. His acts could appear deliberate to a jury, but Hicks did not know what he was doing, Parran said. "I've seen people in the midst of cocaine psychosis sell their children," Parran said. "This is an absolute textbook example of the horrendous consequences of cocaine psychosis." But Ron Springman, Hamilton County assistant prosecuting attorney, and Chuck Wille, principal assistant attorney general, said Hicks' deliberate use of string to strangle the victims and his forethought to bring duct tape to the crime scene to suffocate Brandy proves premeditation. Hicks would be the 19th Ohio killer put to death since the state resumed executions in 1999, and the 5th from Hamilton County. The parole board will make its recommendation to Taft on Tuesday. (source: Cincinnati Enquirer) ******************** New Execution Date Set For Man Convicted Of Killing Van Wert County Postal Employee Ohio Governor Bob Taft has set January 19th as the new execution date for death row inmate John Spirko. Taft signed the 2-month reprieve yesterday. This came one day after he agreed to post-pone the execution to allow DNA testing into Spirko's claims he did not kill Betty Jane Mottinger of Van Wert County. Spirko was scheduled to be executed next Tuesday for Mottinger's murder in 1982. (source: WPTA News) ALABAMA: A question of innocence You can hold Anthony Ray Hinton's life in the palm of your hand. 6 mangled lead slugs, supposedly fired from a rusty, Smith & Wesson .38 special found in his mother's home near Dora, sent Hinton to death row in 1986. Police recovered the spent slugs from victims of a string of robbery/murders at fast-food restaurants in the Birmingham area in 1985. Jefferson County prosecutors used that evidence to help convince a jury Hinton committed the crimes and should be put to death. Hinton's lawyers believe those slugs and others tested by firearms experts they hired provide ammunition that ultimately could prove Hinton innocent and free him after 19 years on Alabama's death row. Hinton would become the 6th death row inmate exonerated in the past dozen years. "I absolutely think the evidence surrounding his case is some of the most disturbing and troubling in a death penalty case here in Alabama," said Bryan Stevenson, Hinton's lead lawyer and the executive director of the Equal Justice Initiative of Alabama, which represents poor people on death row. "I don't think there's any question he's innocent." Bob McGregor, who led Hinton's prosecution for the Jefferson County district attorney's office, doesn't think there's any question either - that Hinton is guilty. "I've never had a case in my life that I've been so absolutely convinced by the evidence," he said. "I had referred to Anthony Ray Hinton (during trial) as one of the coldest killers who ever walked a sidewalk in Jefferson County. I haven't changed my opinion in the slightest." 20 years later, McGregor describes Hinton as "one of the most evil people" and a "sociopathic jerk." He said Stevenson is "selectively extracting information" to build a case for Hinton's innocence, while ignoring damning testimony and evidence. Fatally flawed: Good people can argue the cases of the 5 men already emancipated from death row and reach different conclusions about their guilt or innocence. But good people should be outraged Alabama's capital punishment system is so fatally flawed that 5 men convicted of capital murder have walked free since 1993 and, if Hinton's lawyers are right, he will, too. Those who value life must demand at minimum a fair, impartial system designed to prevent the abhorrent possibility of the state killing an innocent person. Since 1973, 121 inmates in 25 states have been released from death row, according to the Death Penalty Information Center in Washington, D.C. In addition, thanks to DNA testing, dozens of others have been cleared in nondeath-penalty cases - exonerations that have called into question the reliability of eyewitness accounts, co-defendant testimony and even confessions in all kinds of criminal cases. To put it simply, our system of justice isn't as foolproof as many of us once thought. That's why more than a dozen states have launched reviews of the death penalty, as more and more people come to understand that bias, poor legal representation, questionable tactics by authorities and charged emotions can send innocent people to jail and potentially to their deaths, while leaving guilty people walking the streets. Based on trial court transcripts and filings and interviews with both sides in the Hinton case, there is no way to know beyond a reasonable doubt whether he is innocent. But Hinton's lawyers raise several troubling issues that question whether he is guilty beyond a reasonable doubt - the standard the law requires. Hinton, by his own admission, didn't stand a chance at his September 1986 trial. Police had arrested him the year before on charges of robbing and murdering assistant managers at a Mrs. Winner's on Southside and a Captain D's in Woodlawn. Sidney Smotherman, a night manager at Quincy's in Bessemer, survived a similar attempt. Smotherman's description of his assailant resulted in a police sketch that a Quincy's employee who knew Hinton immediately identified as Hinton, leading to his arrest. No fingerprints or other physical evidence from any of the scenes linked Hinton to the crimes, and he passed a polygraph test, which wasn't allowed into evidence. But prosecutors, armed with testimony from state forensics experts, argued the 6 bullets used in the 3 crimes all came from the same gun - the .38 pistol with a rusty barrel taken from the home of Hinton's mother. As damaging as that was, Hinton, who was on parole after serving time for theft, believes the death blow to his case came from his own ballistics "expert," hired in desperation by Sheldon Perhacs, Hinton's court-appointed lawyer. Perhacs had contacted several out-of-state experts about testifying, but he said they turned him down because the amount of money the court provided wouldn't cover their fees. Hinton's expert, Andrew Payne, who has since died, was a civil engineer with a military background. Payne testified he didn't think the bullets came from the gun found in Beulah Hinton's home. But the prosecutor shredded Payne on cross-examination like a corporate wrongdoer destroys damning documents. Payne admitted he never test-fired the Hinton firearm to compare test bullets to recovered slugs; he didn't know how to turn on the state Department of Forensic Sciences microscope and repeatedly had to ask for help operating it; he couldn't even see the bullets under the microscope for most of his analysis. The cross-examination ended like this: "Mr. Payne, do you have some problem with your vision?" "Why, yes." "How many eyes do you have?" "One." During closing arguments, the prosecutor reminded jurors of the 1-eyed "charlatan" whose testimony was "startling and disturbing, alarming and almost sickening." Hinton knew he was doomed. "The way the prosecutor chewed him up ... not a jury in hell would have found me not guilty," Hinton said recently to Daniel Farbman, a law student working with Stevenson. (The Department of Corrections turned down a request from The News to interview Hinton.) "Man, I cried for my expert. ... You have a man's life on the line, and this is what you give him for an expert?" Hinton said. On Sept. 19, 1986, jurors deliberated for about 2 hours and convicted Hinton on two counts of capital murder. They voted 10-2 that Hinton be sentenced to death, and Circuit Judge James Garrett obliged. But Hinton's lawyers over the years, most recently Stevenson and EJI, believe they have raised issues that damage the prosecution's case. Among the most compelling: Three nationally known forensics experts, including the former chief of the FBI's firearm and toolmark identification unit, dispute the crucial trial testimony of 2 former state forensics employees. While the 2 state firearms experts testified at trial they matched the 6 recovered bullets to Hinton's gun, Lannie Emanuel, Raymond Cooper and John Dillon Jr. say they cannot match the bullets to a single gun, nor can they match the Hinton weapon to any of the 6 bullets. Emanuel and Cooper work at the Southwestern Institute of Forensic Sciences in Dallas. Dillon, formerly with the FBI, is a recent president of the Association of Firearm and Toolmark Examiners. The 3, who almost always testify for prosecutors, testified in a 2002 hearing before Garrett that Hinton's weapon was mechanically incapable of firing the bullets recovered in the Smotherman crime. The firearm and toolmark association's ethical rules require that when examiners reach different conclusions, they work to resolve them. Emanuel in the hearing said he asked the former state forensics department director who testified at Hinton's trial "if he would show us what he had seen, what he had ... used to make his determination ... they were all fired from the same gun." "He declined," Emanuel said. Prosecutors didn't give Hinton's trial lawyer evidence that could have helped his defense, as they are required to do, Stevenson said. For example, prosecutors didn't tell Hinton's lawyer about a detective's interview with a Quincy's employee who went with Smotherman to a nearby Food World after they closed the restaurant. The employee said the detective attempted to coerce him into identifying Hinton from a lineup and placing him at Food World. Also, Stevenson said, state forensics employees didn't turn over ballistics worksheets that show they had questions about what are known as "class characteristics" of the 6 slugs recovered from the crime scenes that calls their testimony into question. "That's not necessarily true, because the experts at trial said they made their match on striations," said Corey Maze, an assistant attorney general handling the prosecution's case on appeal. "The experts always testified they were not sure on class characteristics. So the worksheets are completely consistent (with their testimony)." Striations are microscopic markings on bullets that ballistics experts use to match bullets to each other and to a weapon. At trial, state forensics experts said they matched those striations from the recovered bullets to test bullets fired from Hinton's gun, Maze said. But none of Hinton's experts could find striations on the recovered bullets, and the state's original test bullets have been lost. Hinton, a temporary employee at the Bruno's warehouse in Ensley, arrived at work on the night of the Smotherman shooting at 11:57 p.m. and was clocked in at 12 a.m., his time card and trial testimony from his supervisor showed. Hinton received his work assignment at 12:10 a.m., and his supervisor checked on him a half hour later and "at least 3 times" in Hinton's 1st 2 hours of work. Smotherman and several Quincy's employees left the restaurant at about 12:14 a.m. He and 2 employees stopped at Food World, in which 1 employee testified he saw Hinton, and left at 12:26 a.m., according to Smotherman's cash register receipt. Smotherman's assailant then bumped his car from the rear, forced him out of his car and made Smotherman go with him back to the restaurant, where he was robbed and shot. The state's theory: For the state's theory to work, Hinton would have had to sneak out of the Bruno's warehouse, drive to Quincy's and follow Smotherman to Food World, commit the crime and be back at the warehouse by 12:40. The warehouse in Ensley is 15 miles from the Bessemer Quincy's. "Being locked into a secure facility 15 miles away is about as good as it gets," Stevenson said. But not good enough. Assistant AG Maze suggests Hinton could have been signed in without actually being at work, plus there was trial testimony that people could slip out undetected. "There's really no proof it was actually Hinton that signed in," Maze said. There's no proof, if you ignore the testimony of Tom Doll, who supervised Hinton and other temporary employees. Doll, now a math teacher at Collinsville High School in DeKalb County, said there is no way Hinton is guilty. "I really don't see how he could have done this. It's amazing," Doll said. "I think about him often. I hope the best for him." This past January, 2 years after the hearing, Garrett signed the proposed order the attorney general's office wrote, refusing to overturn Hinton's conviction or death sentence. June 10, Stevenson appealed the ruling to the Alabama Criminal Court of Appeals with a 120-page brief that begins: "Anthony Ray Hinton is innocent. Mr. Hinton seeks expedited review because he has been on death row for 19 years for 2 capital murders he did not commit." The state countered in its Aug. 26 response that "Hinton was guilty in 1986, and he is still guilty today. Simply wrapping an old defense in a new cover does not prove innocence. Beneath the new wrapping still lies the same defense and evidence previously rejected by the jury." Stevenson sought oral arguments, which the court granted, setting a hearing for Nov. 15. That's a small victory, he said. The ultimate victory for Hinton, of course, would be for the court to order his immediate release, Stevenson said. The criminal appeals court - Presiding Judge H.W. "Bucky" McMillan, and Judges Sue Bell Cobb, Pam Baschab, Greg Shaw and Kelli Wise - must weigh seriously Hinton's claims of innocence, even as they make sure the state's case is as ironclad as McGregor and the attorney general's office say it is. Among questions the judges must consider: How were state forensics experts able to match the 6 slugs to each other and to test bullets fired from the same gun when national experts were unable to replicate their findings? Why won't the state's experts work with the national experts to resolve their differences? How could Hinton have clocked in to work at midnight and been assigned his tasks at 12:10 a.m. on the night of the Smotherman shooting, yet driven to Quincy's 15 miles away in just 4 minutes? For the court to take on these types of questions may well be, as the state argues, a request by Hinton for "a 5-juror retrial." But when a man who could be innocent faces execution, how could the court possibly do otherwise? Attorney General Troy King said if there is any evidence of innocence in a death row case, "I would go to the court myself" - much like he did to argue for death sentences in the recent high-profile cases of Kerry Spencer, who killed three Birmingham policemen, and Westley Devon Harris, convicted of gunning down 6 members of his girlfriend's family. Anthony Ray Hinton's next day in court is Tuesday. King should make it a point to attend. (source: Opinion, Birmingham News) VIRGINIA: Kilgore Death Penalty Ads Didn't Cost Him Election With last nights Virginia gubernatorial election behind us, the pundits have already begun their Monday morning quarterbacking, so why should I be any different? The Democrats, of course, will try to make this about President Bush. They will try to say that Kaines victory was a signal that voters are expressing their displeasure at Bushs policies. Once the Democrats have finished blaming Bush, they will say Kilgore's "attack ads" cost him the election. I find it ironic that when Democrats lose, they blame it on Republican attack ads, and when they win, they say it's because of Republican attack ads. You cant have it both ways; they either work or they don't. I was one of many who went on record saying the death penalty ads (produced by Scott Howe) were legitimate and very effective. In retrospect, I believe they would have been more effective under the following circumstances: The Swift Boat ads were highly effective and emotional. However, because they were delivered by a third party (rather than the Bush campaign), there wasn't much of a backlash for "going negative." Granted, Virginia law is different from federal law. Still, if a 3rd party - or a surrogate - had been able to deliver the attacks on Kaine, Kilgore would have been able to stay above the fray. The ads aired too soon. The ads worked well initially (some people have forgotten that, already). The ads put Kaine on the defense, and gave Kilgore a quick boost in the polls. Had these ads been embargoed until the week before the election, there would have been no time for Kaine to respond, and the backlash would have been minimal. For some unknown reason, the ads mentioned Hitler. Granted, it is factually true that Kaine would oppose the death penalty, even if it were for Hitler. But was it wise to inject his name into this debate? It was a particularly curious choice, when you consider that just months ago Sen. Rick Santorum and Mark Dayton were both excoriated for drawing Hitler analogies. Hindsight is 20/20. Critics will blame Bush and blame the ads, but the ultimate reason Kilgore lost and Kaine won was the zeitgeist. It was a good year to be a Democrat. Last year would have been completely different, and I'm hoping that next year will be, too. A lot can happen in 12 months. (source: Mr. Matt Lewis has managed political campaigns and served as director of grassroots for the Leadership Institute, as well as political director for GOPAC. In 2002, Campaigns & Elections Magazine selected him as a "Rising Star of Politics."--Human Events Online)
