Jan. 21 OHIO: Gaps plague Trimble case----Killer's claims that police botched hostage situation still echo year after rampage that left KSU student, 2 others dead 1 year ago today, an eight-man SWAT team took James Trimble into custody inside the apartment of Kent State University student Sarah Positano, the third and final victim of his deadly shooting rampage. 2 hours later, as Trimble was being examined on a gurney in the emergency room of Robinson Memorial Hospital, he made his 1st detailed comments about the Positano shooting to Brimfield Township Police Chief David Blough. According to the chief, Trimble told him: "I have something I need to get off my chest. The 3rd one, you know, the 3rd one? "The 3rd one didn't have to happen. That's on your SWAT team," Trimble told him. "They broke the rules of engagement." Trimble explained that he saw an officer crawl into the lower floor of the 2-story apartment, fire a shot at him as he held Positano hostage upstairs, and that his gun accidentally discharged, killing the woman, after he made an agreement with a Metro SWAT hostage negotiator to free her in 2 hours. 10 months later, in the moments before he was sentenced to death, Trimble repeated those claims in a final statement to the court. Portage County Prosecutor Victor V. Vigluicci branded the remarks as nothing more than "the ramblings of a cold-blooded, remorseless murderer." But were they? A Beacon Journal review of police investigative records and trial testimony raises many unanswered questions about the ballistic evidence in the Positano shooting -- as well as other cloudy issues that were never fully explained by anyone involved in the police response. Ultimately, the haunting question emerges: Did Sarah Positano have to die? To this day, even her family in her hometown of Sault Ste. Marie, Ontario, doubts they have heard the whole story. Michael T. Callahan, the former Summit County prosecutor who is now in private practice and representing the Positano family, confirmed last week: ``They've got a lot of unanswered questions." Callahan declined to be specific, saying the family was keeping its options open to a possible wrongful death action, but he did say: "I know they met with Portage County officials when they were in town (for Trimble's sentencing), and they left those meetings still feeling there were more unanswered questions." Indisputable killings Trimble, now sitting on death row at Ohio State Penitentiary in Youngstown, was convicted in October of three counts of aggravated murder in the longest trial in Portage County history. He never tried to deny shooting his girlfriend, Renee Bauer, and her 7-year-old son, Dakota, on Jan. 21, 2005. But the circumstances surrounding the death of the 22-year-old Kent State student -- who became the third victim early the following morning amid the confusion of the hostage standoff -- have never been fully resolved. Foremost among the unanswered questions are those raised by the ballistic evidence. Trimble's hospital interview with the chief, which was tape-recorded, was never entered into evidence by the prosecution. Thus, the jury never heard it. Trimble, who was holding a 9mm pistol to Positano's head in a narrow hallway in the upstairs of her apartment, told Blough he saw a sniper crawl into the lower level, then move to a blind corner near double patio doors, where Trimble had broken in about 11:15 p.m. According to Blough, Trimble said the sniper must have heard a commotion upstairs and "tried to shoot me," adding: "I guess the next 2 or 3 shots (were fired as) they were trying to exit back out the door." Consistent story Trimble's 1st statement about police gunfire, in the aftermath of Positano's death, might have been easily dismissed. Yet he never wavered from it. And he repeated it two days later in another taped interview with Sheriff Duane Kaley in the sheriff's office -- before he had a lawyer -- and he said it again in 2 more statements read at the trial. Public defender Dennis Day Lager -- who later was appointed by the court to represent Trimble -- based his case on evidence provided by the state in diagrams and more than a week of testimony from special agent John S. Saraya of the Ohio Bureau of Criminal Identification and Investigation. Shortly after arriving at Positano's apartment to view the evidence, Saraya said he was told by SWAT personnel that SWAT snipers had fired only 2 or 3 shots into the apartment -- all from their positions outside. Of those 2 or 3 shots, Saraya said he found evidence of only 2 -- 1 spent bullet was found on the stairs and a second split into fragments and was found in kitchen cabinets and a 1st floor bathroom. Vigluicci did not pursue the point further in his questioning. However, through extensive questioning by Lager, the jury was told of at least 3 -- and as many as 8 -- bullet holes or bullet projectiles that could have come from police weapons. Lager pointed out that one of the likely police bullets revealed by the state -- which fragmented after passing through a first floor stairwell -- likely came from inside the apartment, just as Trimble claimed. Nearby, another bullet from a hole in the 1st floor stairwell was not recovered by Saraya, but he said the hole it left was consistent with the weapons police were using, not the weapons Trimble was using. During cross-examination, Saraya admitted he had missed another bullet hole that Lager pointed out in a first floor wall near a closet door. Upstairs, above and around the area where Positano's body was found, there were four marks that were likely caused by gunfire, but Saraya said he didn't recover any of them because they were too deeply embedded. He testified that removing them could have compromised the support structures in the walls. In December when the trial was over and the court-imposed gag order was no longer in effect, Lager asked rhetorically in an interview: ``If the state, by its own evidence, recovered only 2 police rounds inside the apartment, how then do we get evidence of at least 3 police bullets?" Lager claimed Saraya's lack of thoroughness at the crime scene should have had clear meaning for the jury. Although the agent's testimony confirmed a single shot from Trimble's pistol had killed Positano, Lager said the remainder of Saraya's testimony about what might have prompted that fatal shot was "wholly unreliable" because it left so many unanswered questions. 911 tape evidence A tape of Positano's 911 call to the Ravenna post of the State Highway Patrol, played in court for the jury, appeared to buttress defense claims that Trimble did not shoot her in a fit of rage. Trimble was clearly heard on the tape, in the beginning, being hostile toward police who, by then, had the apartment surrounded with a small army of officers and vehicles. After fleeing the scene of the 1st shootings, Trimble had roamed free in the woods for nearly 3 hours before he came upon Positano's apartment and broke in. At the end of the recording of Positano's 911 call, however, Trimble was talking calmly to her in the background and reassuring her she was "going home" because he had just agreed to free her if the police would back off from their positions. At one point, Trimble even told Positano he was sorry because he had stepped on her foot as they were moving around in the hallway. But then, moments after Metro SWAT negotiator Mike Korach made the agreement with Trimble to free Positano, a faint crack of a single gunshot was heard on the 911 tape, followed immediately by Positano's screams that she had been shot. Negotiations cut off >From that point forward, cell-phone communication between Trimble and the hostage negotiator were at an end and no further evidence of what had happened was heard on the tape. Chief Blough made an emphatic effort in his testimony to dismiss the notion that police had done anything that would have prompted Trimble to shoot Positano. No police officer, he testified, entered the apartment until more than 7 hours after the fatal shot. The chief explained his assertion by saying he and other commanders were not certain Positano was dead and wanted to continue to try to negotiate with Trimble. Yet six minutes after the fatal shot was fired, Blough said he gave all SWAT officers the authority to shoot and kill the intruder at the first good chance. In SWAT terminology, it is known as the "Delta Order." Scott Robertson, the Metro SWAT commander directly in charge of the standoff at the apartment, backed Blough's assertions. Voluminous investigative reports from all his officers, Robertson said, further confirmed the chief's scenario. But what about Trimble telling Positano she was "going home" in 2 hours? Robertson explained that he took that comment to mean she was "going home to be with the Lord." In several interviews about the actions he said he ordered in setting up SWAT snipers outside the apartment, Robertson said Trimble's claims about the sniper inside the apartment were nothing more than a lame "excuse" to avoid culpability on a third aggravated murder charge. But In a development that was largely overlooked, officer Korach, the Metro SWAT negotiator who made the agreement with Trimble to free Positano, left the jury with one of the more gripping, yet intriguing images of the trial. For if other law enforcement officers were confused about what had happened shortly after midnight inside Sarah Positano's apartment, Korach apparently was not. He testified that he had heard Trimble repeat the promise Trimble had made to release Positano, but then suddenly lost all contact with him. Korach told the jury he frantically tried to call Trimble again and again but got no response. So he went outside his mobile command post on Ranfield Road because -- as he told the jury -- he wanted to be alone. Last month, well after the trial was finished, Korach declined to discuss the matter with a Beacon Journal reporter, saying he was not authorized by the SWAT team board of governors to grant interviews. (source: Akron Beacon Journal) PENNSYLVANIA: Jones believes he deserves death penalty in Leo case -- He hopes to write book to help others avoid pitfalls of drugs Brian K. Jones agrees with anyone who says he deserves to die. Jones believes the death sentence would have been appropriate punishment for his crime - stabbing an 87-year-old Wilkes-Barre woman to death Aug. 2. A Friday plea agreement with Luzerne County District Attorney David Lupas' office ended any chance of a jury having to decide whether he lives or dies. Jones was sentenced to life in prison without parole for killing Mary Leo. Jones expressed indifference to his fate during an interview at the Luzerne County Correctional Facility shortly after his sentencing. "I agreed with (Judge Peter Paul Olszewski's) sentence," Jones said, wearing a red prison jumpsuit. His hands were cuffed and feet were shackled. "If it would have reached the death penalty stage, I would have accepted that, too," he said. "I take full responsibility for my actions." Lupas reasoned the plea spared the family the anguish of a trial and saved county taxpayers from bearing the expense. When Lupas told him Leo's family did not want to go through a trial, Jones decided to plead guilty to 1st-degree murder. The evidence against him and numerous confessions left him with no defense, Jones said. He also insisted the apology he made Friday morning in a Luzerne County courtroom to Leo's family was sincere. "I know words can't change what happened," Jones said. "I'll forever feel remorse for what I've done throughout my life and I'll feel it for the rest of my life." Jones believes the family realized his sincerity, because one of Leo's family members said, "God bless you," as he left the courtroom. Jones now hopes he is sentenced to the State Correctional Institution at Graterford, Montgomery County, because it is close to his mother and younger brother, who live in New Jersey. He has not seen them since his August incarceration, but said they plan to visit in the future. He also intends to write memoirs that may help someone avoid the dangers of drugs. His inability to beat his drug addiction led to a life of crime, Jones said. "I feel more for my mother and for the victim's family than for myself," Jones said. "As sad as it is, I've become sort of accepting of this way of life. I've had so many other opportunities to get myself together, but I was never able to capitalize." (source: The Citizens Voice) FLORIDA: Judge: Death penalty possible Daytona BeachA judge ruled Friday that the state can seek the death penalty against 3 men accused of brutally beating 6 people to death with baseball bats in 2004. A defense attorney in the Deltona massacre case argued that the state's death penalty is unconstitutional and should not be applied if the 3 are convicted of 6 counts of 1st-degree murder and 8 other felonies. Circuit Judge William A. Parsons said he had no choice but to deny the motion because Florida's law allows for the death penalty. "I'm a law follower, not a law maker," the judge said. "I'm obligated to follow the law." Troy Victorino, 29, Jerone Hunter, 19, and Michael Salas, 20, are scheduled to stand trial April 10 for the Aug. 6, 2004, slayings at a Telford Lane home. A 4th man, Robert Anthony Cannon, 19, pleaded guilty to the charges last year and faces life in prison without parole after he testifies against the other 3. (source: Orlando Sentinel) CALIFORNIA: State sees no acceleration in executions -- Short-term increase not a sign of things to come, official says If Michael Morales is executed as scheduled in February for a 1981 murder in San Joaquin County, he will be the 3rd prisoner put to death in a little more than two months in California. That's a much faster pace than at any time since executions resumed in California in 1992 after a 25-year hiatus. In the 13 years before Stanley Tookie Williams was executed by lethal injection in December, the state put 11 inmates to death. But officials say the short-term cluster of executions doesn't foreshadow a long-term acceleration in a state where condemned prisoners are more likely to die of natural causes than of lethal injection. "We don't see any remarkable increase in the pace of executions in California," said Nathan Barankin, spokesman for Attorney General Bill Lockyer. At most, he said, the state will probably have two to three executions a year in the near future. Of the 645 inmates on Death Row, Barankin said, only one besides Morales has made his final appeal to the Supreme Court and could be executed this year if he loses: Mitchell Sims, convicted of robbing and murdering a pizza deliveryman in Los Angeles County in 1985. Sims has also been sentenced to death in South Carolina for 2 murders there. Five other condemned prisoners could run out of appeals in 2007, said Dane Gillette, senior assistant attorney general and the state's death penalty coordinator. They include Kevin Cooper, who was convicted of 4 San Bernardino County murders in 1983 and won an 11th-hour stay of execution from a federal appeals court in February 2004. The court ordered new DNA testing of evidence, which was conducted and found by a judge to reaffirm Cooper's guilt. He has filed a new appeal. Natasha Minsker, the American Civil Liberties Union's chief death penalty lawyer in Northern California, forecast three to four executions a year in California in the short term, and perhaps a further increase in 5 to 10 years. She based her predictions on the large number of death sentences issued by California juries in the late 1980s and early 1990s, many of which are now reaching the later stages of appeal. That projection is "ironic, when public support for the death penalty continues to drop and jurors are less likely to return death verdicts," Minsker said. According to state prison officials, California averaged 32 death sentences a year from 1988 through 2000, twice the average of the early to mid-1980s. Death verdicts then declined to a low of nine in 2004 before rising to 18 last year. The recent figures coincide with a dip in public support for capital punishment as measured by opinion polls. But the death penalty as a possible punishment for murderers still commands strong majority support; its political potency was illustrated Thursday when a bill to halt executions in California for two years, while a state commission examines possible flaws in the system, was shelved for the year by the Democratic-controlled Assembly Appropriations Committee. Morales, 46, of Stockton was sentenced to death in 1983 for the murder of 17-year-old Terri Winchell two years earlier. The U.S. Supreme Court denied his final appeal in October, and he is scheduled to be executed at San Quentin State Prison on Feb. 21. His lawyers have filed a new suit challenging the state's lethal injection procedure and also plan to ask Gov. Arnold Schwarzenegger for clemency, arguing that the death sentence was based on the false testimony of a jailhouse informant. Schwarzenegger has yet to grant clemency in any of the four cases that have come before him. The duration of Morales' imprisonment is not unusual. According to the state Department of Corrections and Rehabilitation, the 13 men executed since 1992 spent an average of 17.8 years on death row, and the last five were each held more than 20 years. Williams, a Los Angeles gang leader who became an anti-gang advocate and children's book author in prison, spent 24 years and 8 months under a death sentence, a record for the state, before being executed Dec. 13 for 4 1979 murders. Clarence Ray Allen, put to death Tuesday just after midnight for orchestrating 3 murders from behind bars, had spent 24 years and 2 months on death row. Both sides in the death penalty debate agree that the system of review takes too long, but efforts to speed it up have made little headway. A 1996 federal law limited appeals by state prisoners and restricted federal judges' authority to override state judges' decisions. But courts have disagreed over its meaning, and its impact has been limited. A recent U.S. Supreme Court ruling increased the number of California cases covered by the law and could speed some future appeals, said Gillette, the state's death penalty coordinator. But courts found that a provision of the 1996 law intended to impose time limits on federal judges was unclear and ineffectual; backers are trying to revive it by attaching it to the latest version of the USA Patriot Act. The state, meanwhile, still has trouble finding qualified lawyers to take death penalty appeals. New Death Row inmates wait about three years for attorneys to be appointed, despite recent increases in state legal fees that have reduced the backlog. Difficulties in preparing trial transcripts sometimes keep cases on hold for years. Death penalty appeals decided by the state Supreme Court -- which upholds nearly every death sentence it considers -- commonly involve crimes that date back at least to the early 1990s. The state court ruling is followed by federal appeals that can last as long as a decade. Since 1978, when the first of the current death row inmates was sentenced, 31 condemned prisoners have died of natural causes, the corrections department says. Another 12 have committed suicide. 2005 executions Executions by state in 2005 Texas -- 19 Indiana -- 5 Missouri -- 5 North Carolina -- 5 Alabama -- 4 Ohio -- 4 Oklahoma -- 4 Georgia -- 3 South Carolina -- 3 California -- 2 Arkansas -- 1 Connecticut -- 1 Delaware -- 1 Florida -- 1 Maryland -- 1 Mississippi -- 1 (Source: Death Penalty Information Center) (source: San Francisco Chronicle) Judge upholds death penalty----West Covina man killed bank guard during robbery The West Covina man who murdered a guard during an Ontario bank robbery is all but guaranteed to receive a death sentence after a judge on Friday refused to impose a lighter sentence or grant him a new trial. A jury recommended the death penalty in November for Joe Henry Abbott, who entered a Bank of America in disguise and killed Brink's guard Samuel Saenz of Hesperia before fleeing with a bag of money. Judge Craig Kamansky told attorneys on Friday he had reviewed all of the evidence in the case and found no reason to overturn the jury's recommendation. "This was a cruel and cold-blooded execution of an innocent man for no reason," Kamansky said. Abbott will return to West Valley Superior Court on Feb. 16 to be sentenced. Abbott, an African American, paid a professional makeup artist to disguise him as an old white man the day before the Oct. 30, 2000, slaying. He waited inside the bank at 735 N. Euclid Ave. until Saenz wheeled the sack of money into the lobby. He then rushed the married father of 3 and fired 2 shots into the guard's head. Saenz fell to the floor. Abbott grabbed the money bag and fired a 3rd and fatal shot into Saenz's head. Whenever a jury recommends the death penalty, a judge must automatically review the decision. If there is an error in the trial, the judge can order a retrial. If a judge believes the sentence is unjust, he can reduce it to life in prison without parole. Abbott's lawyers asked Kamansky to do just that, arguing the circumstances of the murder were no worse than many other murders in San Bernardino County that result in lesser penalties. Prosecutors argued that Abbott, 36, deserves the death penalty because the murder was heinous and Abbott has a long history of crime and violence. Kamansky told the attorneys on Friday that he believes the murder was "cruel and calculated," and that "the penalty of death is warranted." (source: San Gabriel Valley Tribune)
