Nov. 30
OHIO: Richey decision common sense It seems like common sense to us, but the 6th U.S. Circuit Court of Appeals needed it pointed out, so perhaps this is worth making clear: If you set out to kill someone, but kill the wrong someone, you still are responsible for capital murder. That's what U.S. Supreme Court justices decided when they overturned the 6th Circuit's ruling that convicted killer Kenneth Richey should receive a new trial or be released from prison. A 3-judge panel found Richey guilty of setting a 1986 apartment fire in Columbus Grove that killed 2-year-old Cynthia Collins. Prosecutors said Richey intended to kill his ex-girlfriend and her new boyfriend in an apartment downstairs from the one in which Collins died. Ohio's transferred-intent law allowed prosecutors to try Richey for capital murder. The Cincinnati federal appeals court threw out Richey's death sentence because his trial lawyers failed to provide adequate representation and his murder conviction was invalid because he killed the girl, not the two people prosecutors said he intended to kill. The Supreme Court ordered the 6th Circuit to reconsider whether Richey received adequate representation, a process that could take more than year to finish. The high court reinstated Richey's conviction and death sentence in ruling that Ohio's transferred-intent doctrine was valid. It remains to be seen if Richey's lawyers demonstrate that his trial representation was inadequate. Whatever the 6th U.S. Circuit Court of Appeals decides after reviewing his legal counsel's performance at trial, the Supreme Court is likely to be asked again to hear an appeal. Both the defense team and the attorney general's office previously said they will appeal to the highest court. For now, the Supreme Court has ruled that if you set out to kill someone, but accidentally kill the wrong someone, you remain guilty of capital murder. The logic seems simple enough, but apparently it needed to be pointed out. (source: Opinion, Lima News) **************************** Supreme Court Affirms McKnight Convictions and Death Sentence for 2 Killings; state v. mcknight, case no. 2002-2130, vinton county The Supreme Court of Ohio today affirmed the convictions and death sentence of Gregory McKnight for the separate murders of Gregory Julious of Chillicothe and Emily Murray of Gambier in 2000. McKnight was found guilty of the kidnapping, robbery and aggravated murder of 20-year-old Kenyon College student Emily Murray in November 2000 and the murder of Gregory Julious of Chillicothe earlier that year. Murray, who worked with McKnight at a pizza restaurant in Gambier near the Kenyon campus, disappeared along with her green Subaru Outback after working a late-night shift with McKnight. Her family filed a missing persons report the next day, and a police alert was issued with a description of Murray and her car. 5 weeks later, a deputy sheriff serving an unrelated warrant at McKnight's trailer home in rural Vinton County found him not at home but wrote down the license number of an Outback with New York plates he found parked behind the trailer. A computer check disclosed that the car was linked to the missing student. Police immediately obtained a warrant to search the trailer, where they found Murray's body concealed in a rolled-up rug in a back bedroom. She had been killed by a single gunshot to the head. While searching the area around McKnight's trailer for evidence in the Murray killing, sheriff's officers and FBI investigators found bones which were later identified as the dismembered remains of Julious, an acquaintance of McKnight's who had disappeared in May 2000 after being last seen in McKnight's company. McKnight was arrested and charged with kidnapping, aggravated robbery and aggravated murder with death penalty specifications in the death of Murray, and with murder for the killing of Julious. One death penalty specification alleged that the murders of Julious and Murray were conducted as part of a "pattern of conduct" involving the killing or attempted killing of two or more persons. The Vinton County Common Pleas Court initially granted a motion by McKnight's attorneys to drop the death penalty specifications in the case, indicating that the county's limited financial resources might be insufficient to conduct a capital murder trial in a manner that fully protected the defendant's due process rights. The court later granted a motion by the state to reconsider that decision, and reinstated the death penalty elements. The Vinton County prosecutor sought and received assistance from the Ohio Attorney General's Office in preparing and trying the charges against McKnight. The court denied pretrial motions by the defense to move the trial to a different county because of intense local media coverage, and also denied a motion by McKnight to sever the Julious murder charge from the other charges against him, which all related to the killing of Murray. Following a jury trial, McKnight was convicted on all counts and specifications and sentenced to death. In today's decision, written by Justice Alice Robie Resnick, the Court rejected all 30 allegations of legal and procedural error that had been advanced by McKnight's attorneys as grounds to reverse his convictions or reduce his death sentence. These included claims that the trial court should have granted defense motions to vacate the jury's guilty verdicts for kidnapping and the death penalty specification of murder in the course of kidnapping because the evidence presented at trial was insufficient to prove the elements of the crime of kidnapping beyond a reasonable doubt. Writing for the Court, Justice Resnick noted that McKnight's claim of insufficient evidence was based on the argument that no witnesses testified that they saw him remove or restrain Murray, and no evidence was presented about where she was murdered. "We find that appellant's sufficiency claims lack merit," wrote Justice Resnick. "The state proved that appellant kidnapped Murray by showing that Murray and appellant left work at approximately the same time on the night Murray disappeared, that Murray's car was found parked behind appellant's trailer, and that Murray's murdered body was found rolled in a carpet inside appellant's trailer." The majority also noted that trial evidence showed that Murray did not have her wallet, driver license or credit cards with her at the time of her disappearance, and that she did not tell anyone that she planned to leave Gambier "despite her habit of informing friends of her whereabouts." With regard to the absence of eyewitnesses, Justice Resnick quoted the Court's 1990 holding in State v. Heinish that "(w)e have "long held that circumstantial evidence is sufficient to sustain a conviction if that evidence would convince the average mind of the defendant's guilt beyond a reasonable doubt." Here, circumstantial evidence, forensic testimony, and appellant's own statements proved beyond a reasonable doubt that appellant kidnapped and murdered Murray." Justice Resnick's opinion was joined in full by Justices Evelyn Lundberg Stratton, Maureen O'Connor and Terrence O'Donnell. Justice Paul E. Pfeifer concurred in affirming McKnight's convictions for the murders of Murray and Julious, but dissented from imposition of the death penalty based on his view that the trial record "does not contain proof beyond a reasonable doubt that McKnight kidnapped Murray or that he committed aggravated robbery." In his dissent, Justice Pfeifer reviewed the circumstantial and forensic evidence cited by the majority, but concluded that none of this evidence proved beyond a reasonable doubt that McKnight had committed the statutory elements of kidnapping by showing that he - "by force, threat or deception - remove[d Murray] from the place where [she was] found or restrain[ed her] liberty." Justice Pfeifer also disputed the sufficiency of the trial court's evidence to support McKnight's conviction for aggravated robbery, noting that the mere presence of Murray's Subaru on McKnight's property did not constitute proof that he stole it. Chief Justice Thomas J. Moyer entered a separate opinion, joined by Justice Judith Ann Lanzinger, in which he concurred with the majority in affirming McKnight's murder and kidnapping convictions and the death penalty specifications for felony murder, but said he would reverse the trial court's guilty verdict on an additional death penalty specification linking the murders of Julious and Murray into a single "course of conduct." While agreeing with the majority that the interval of more than 5 months between the two killings did not automatically disqualify the crimes from being part of the same "course of conduct," the Chief Justice found that "(n)o distinctive modus operandi" and "no other pattern or psychological thread" - linked the murders of Murray and Julious other than the use of the same weapon and disposal of both bodies on McKnight's property. Murray was murdered as part of a kidnapping and robbery," the Chief Justice wrote. "There is no evidence that Julious's murder was motivated by similar secondary crimes." Justice Pfeifer also concurred with the portion of Chief Justice Moyer's opinion disputing the "course of conduct" death penalty specification. (source: Ohio Supreme Court) FLORIDA----new death sentence Jury: Mosley Should Die For Murder Of Baby The Duval County jury that convicted John Mosley Jr. of 2 counts of 1st-degree murder earlier this month took just 2 hours to recommend that he be sentenced to a life term for killing his former girlfriend and be put to death for killing her 10-month-old son. 2 weeks ago, Mosley was found guilty in the strangling death of Lynda Wilkes and the suffocation death of 10-month-old Jay-Quan in 2004. Wilkes disappeared after meeting with Mosley about paying child support for Jay-Quan. Mosley denied that he was the child's father, but a paternity hearing was scheduled. Wilkes' burned body was found in the woods of Alachua County. The baby's remains were never found. All 4 of Lynda Wilkes' children testified for the prosecution in the penalty phase of the trial. "If I could say something to my mom and my brother, it would be: I love them, I wouldn't be anything without them and that I miss them," said 8-year-old Bryanda Thompkinson said. The defense called only two witnesses: Mosley's mother and a close friend. Channel 4's Jennifer Waugh said they originally wanted to call 22 character witnesses, but Mosley wouldn't allow it. During the lunch recess, Mosley asked to read a five-page statement that he wrote, but changed his mind when he was told that prosecutors could then ask him questions. Mosley then said he'd like to take the stand and tell the jury to "finish the job." The judge said that was not in Mosley's best interest, and Mosley did not testify. Mosley, who cried when his mother testified, showed no emotion when the jury announced they had voted 8-4 that he should be put to death. "This is closure for my family, but whatever happens, doesn't bring sister and nephew back," Wilkes' sister, Joyce Johnson, said after the sentencing recommendation was announced. "Five or 10 years, he still gets to talk to his family, gets to his children that he had; but I don't get to talk to my sister any more." Mosley, who was taken out of the courtroom in shackles, had nothing to say. Mosley's family also declined comment as they left. (source: News4Jax) **************** Killer called 'a good daddy' In Sarasota, Joseph Smith's lawyers sought the testimony of several witnesses to try to persuade the jury to recommend a life sentence instead of execution. A probation officer, a barbershop owner and a friend of a man convicted of kidnapping, raping and murdering an 11-year-old girl testified Tuesday that Joseph Smith was a talented mechanic, a loving father and a drug addict who wanted to kick his habit. The series of witnesses were called by Smith's defense attorneys in an effort to persuade jurors to recommend a sentence of life in prison without parole rather than death by lethal injection for murdering Carlie Brucia last year. Circuit Judge Andrew Owens ultimately will decide the sentence. Barbara Dossey, whose daughter, Dusty, dated the defendant, said Smith always would help with repairs around her house and treated her grandchildren "as if they were his own." Barbara Messenger, who owned a hair salon with her husband that Smith patronized, said Smith was a terrific mechanic whom she recommended to her clients. Messenger, an evangelical Christian, has written letters about spirituality to Smith in jail and said she saw the defendant with his young daughters. "He was a good daddy," Messenger said. "Joseph is a good daddy." Paul Grudzina, who considered Smith one of his best friends in Florida, described him as "very caring, affectionate," with his 3 daughters. Under cross-examination by prosecutors, however, most of the witnesses conceded they had had only limited contact with Smith and that he had kept his drug addiction hidden from them. A former probation officer, Marcos Olivari, said Smith had expressed a desire to kick his drug habit but never enrolled himself in a drug treatment program. The defense also planned to call two underage witnesses, whose names defense attorney Adam Tebrugge asked the judge to stop from being made public. An attorney representing several media organizations said he would object to a prohibition on using the witnesses names. Jurors convicted Smith on Nov. 17 of kidnapping, sexual battery and 1st-degree murder. Carlie's murder received worldwide attention because her Feb. 1, 2004, abduction as she walked home from a friend's house was captured by a carwash surveillance camera. Her death spurred the introduction of federal and state legislation to crack down on probation violators. (source: Associated Press) ARIZONA----new death sentence Killer receives death sentence for murdering woman in 1987 The brother of a brutally murdered Phoenix woman wept Tuesday as her convicted killer, also weeping, was sentenced to death. Frank McCray, 46, was sentenced to die by lethal injection for the killing of Chestene "Tina" Cummins, who was beaten, raped and strangled in her north-central Phoenix apartment May 21, 1987. "I think my family will feel better, feel like justice was done," said Cummins' brother, Michael Ramsey, 43. "It has been so many years, but we've never gotten over missing her. I haven't; she was my baby sister. No arrest was made in the killing until 2001. McCray was serving an unrelated prison sentence when police matched his DNA to the Cummins crime scene. In 1992 McCray had pleaded guilty to kidnapping and sexual assault for an attack on a Glendale woman. He was sentenced to 18 years in prison and was still there when investigators, who were searching DNA databanks across the country, identified the semen found in Cummins' body as McCray's. Nevertheless, McCray repeatedly protested his innocence and wept copiously Tuesday in Maricopa County Superior Court. "I did not kill this person, Your Honor," McCray tearfully said several times to Judge Douglas Reyas. But a jury of 11 men and 1 woman had believed otherwise when it found McCray guilty Nov. 14. On Tuesday, the jury decided the convicted man should die. "They made the right decision," Ramsey said. (source: Arizona Republic) ILLINOIS: Experts: Case influenced Ill. death penalty The way Rob Warden sees it, the case is the single most important chapter in the story of the death penalty in Illinois. Without the conviction and exoneration of Rolando Cruz and Alejandro Hernandez for the 1983 slaying of a 10-year-old suburban Chicago girl, he says, the Center on Wrongful Convictions at Northwestern University that he directs does not exist. The prisoners the center helped free are still behind bars for murders they did not commit. Former Gov. George Ryan does not issue a moratorium on executions and later empty the state's death row just before leaving office. "I do not believe any of this would have happened without the Cruz case," Warden said Wednesday. "Everything that has happened in Illinois can be traced directly to the Cruz case." Others don't go that far. But a day after a DuPage County grand jury charged convicted killer Brian Dugan with also murdering Jeanine Nicarico, there is no mistaking the case played a significant role in both the debate over the death penalty and how capital cases are investigated and prosecuted. For starters, death penalty opponents say, it changed the subject. After years of talk of the morality of capital punishment and whether it deters crime, the case brought with it a new set of questions, said Locke Bowman, legal director of the MacArthur Justice Center at the University of Chicago. "The unraveling of the case was so dramatic and so fraught with problems that I think that in Illinois the case began to focus attention away from the topics that had dominated the death penalty debate ... and toward the question of innocence and systemic error and wrongful convictions," he said. The case certainly loomed large when Ryan convened his Commission on Capital Punishment to determine what was wrong with the state's death penalty system. "It was probably one of the main reasons why the governor put the commission together," said Illinois appellate defender Theodore Gottfried, a commission member. Also, he said, "It was sort of the really big case that drove the media to look at others." While Cruz and Hernandez were just two of 13 death row inmates who had been found to have been wrongly convicted since the state reinstated the death penalty in 1977, their case generated more headlines for a longer period than the others. Trial after trial of Cruz and Hernandez; appellate court decisions; the indictment, trial and acquittal of former prosecutors and sheriff's investigators; and an unsuccessful defamation lawsuit against a newspaper all kept the case in the news for more than 2 decades. Dennis Culloton, Ryan's spokesman at the time, said the case had a profound effect on the governor. That was particularly true after watching what Culloton called "the continued stubborn position" of DuPage County prosecutors as they continued to bring Cruz to trial after Dugan was linked to the crime by his own statements and DNA evidence. "Over time the Cruz-Hernandez case became increasingly important" to Ryan, Culloton said. The case also helped prompt the commission to make two major recommendations concerning the way murder investigations are handled. First, after the commission learned about allegations that deputies had fabricated statements made by Cruz, commissioners recommended that the complete interrogation of murder suspects who are in custody be recorded. "We said if interrogations were all videotaped we'd see exactly what he said," said Gottfried. Second, the case also highlighted problems with the reliability of jailhouse informants. Prosecutors used a total of five informants in the case, Warden said. "There were informants at the first trial and (later) when they ultimately decided to say Dugan and Cruz were involved they came up with an informant who said Cruz confessed to that," Warden said. Gottfried and former U.S. Attorney Thomas Sullivan, another commission member, agreed that the case raised serious questions about informants, prompting the commission to recommend that a judge determine the reliability of jailhouse informants before they testify before a jury. Significantly, Sullivan said, "Both of those were adopted by the Illinois Legislature and are now in effect." (source: Associated Press) NORTH CAROLINA----impending (1000th USA) execution N.C. inmate hopes he's not number 1,000 An inmate set to become the 1,000th person executed in the U.S. since capital punishment was reinstated said Wednesday he doesn't think he deserves death for murdering his estranged wife and her father. "I don't like the idea of being picked as a number," Kenneth Lee Boyd told The Associated Press in a prison interview. "I feel like I should be in prison for the rest of my life." Boyd, scheduled to die by injection at 2 a.m. Friday, could have been the 1,001st inmate put to death since 1977 had outgoing Virginia Gov. Mark Warner not granted clemency to another inmate Tuesday. Warner, considered a contender for the 2008 Democratic presidential nomination, said destroyed DNA evidence led him to reduce Robin Lovitt's sentence to life in prison without parole. Boyd is seeking clemency from North Carolina Gov. Mike Easley. A federal appeals court also could block his execution, but a U.S. district court judge wrote in an order Tuesday that Boyd "has a nearly non-existent likelihood of success" in his arguments. Boyd does not deny killing Julie Curry Boyd and Thomas Dillard Curry, but said he remembered little about the 1988 shootings at Curry's home in Rockingham County on the Virginia state line. The Boyds had separated and Julie Boyd was living with her father when Kenneth Boyd killed them. "I remember sitting in my house, nobody there," Boyd said. "I blinked my eyes and I'd done shot my father-in-law. When they told me how many times I shot her, I couldn't believe it. "It's just a thing that happened, just snapped." Boyd's attorney, Thomas Maher, said Wednesday he plans to file appeals with the 4th U.S. Circuit Court of Appeals and the U.S. Supreme Court. But after the decision in Virginia put Boyd on schedule to become the 1,000th person executed since 1977, Maher said he also hoped the attention would lead Easley to take the clemency petition seriously. "But I hope that would be true regardless of whether this is case 999, 1000 or 1001," Maher said. A spokeswoman for Easley, Cari Boyce, said the governor will treat the execution like others he has considered. Easley has granted clemency twice since 2001, but both times there were extenuating circumstances not seen in Boyd's case. One case was marked by accusations that the jury was racially biased against the defendant, a black man convicted of killing the husband of a white woman with whom he had been having an affair. The other case involved lost DNA evidence, like the Virginia case in which Warner granted clemency to Lovitt. In 2001, a court clerk destroyed much of the evidence in Lovitt's case, including a pair of scissors used to stab a man to death in a 1998 robbery at an Arlington, Va., pool hall. Just a few weeks earlier, Virginia implemented a law requiring the preservation of DNA evidence in death row cases. Lovitt, 42, admitted grabbing the cash box in the robbery but denied killing Clayton Dicks. Initial DNA tests on the scissors were inconclusive, but Lovitt's lawyers, who include former Whitewater independent counsel Kenneth Starr, argued that more sophisticated DNA tests available today could have cleared their client. Warner, who has allowed 11 executions over nearly four years in office, had never before granted clemency to a death row inmate. "The commonwealth must ensure that every time this ultimate sanction is carried out, it is done fairly," he said. Warner's clemency decision could boost his national prospects, said Larry Sabato, director of the Center for Politics at the University of Virginia. Democratic party activists in Iowa, which has an early caucus, and New Hampshire, which has an early primary, are vehemently anti-death penalty, he said. The U.S. Supreme Court ruled in 1976 that state laws to reform capital punishment were valid, ending a 10-year moratorium on the death penalty. (source: Associated Press)
