Jan. 24 TEXAS----impending execution Killer faces Wednesday death date----Latest appeals rejected in case where 4 executed Marion Butler Dudley ferried drugs from a southwest Houston home to his Tuscaloosa, Ala.-based operation for almost a year until a violent day in 1992 when he decided to eliminate the middlemen. In June of that year, Dudley, Antonia Lamone Dunson and Arthur "Squirt" Brown arranged to buy 3 kilograms of cocaine from their drug contact Rachel Tovar, according to trial testimony and subsequent court records. Prosecutors said that Dudley, known as "Red," had already made it known he wanted to cut out Tovar and her estranged husband, Jose G. Tovar Jr. The drug buy, prosecutors said, was a ruse. On June 20, Dudley, Dunson and Brown tied up the Tovars and 4 other people. The group included Rachel Tovar's son, 17-year-old Frank Farias, and his pregnant 19-year-old girlfriend, Jessica Quinones, and 2 friends of the Tovars who had the bad luck of stopping by at the wrong time. Minutes before the 6 were shot, Dudley told Jose Tovar, "You stupid Mexican, I never did like you." The gunmen likely never imagined 2 of their victims would survive. Arguments Barring a last-minute reprieve, Dudley, 33, will be put to death Wednesday for the slayings of Jose Tovar, 32, Farias, Quinones and neighbor Audrey Brown, 21. The Court of Criminal Appeals has denied his latest appeal, but his attorney has petitioned the U.S. Supreme Court. Arthur Brown, 35, no relation to Audrey Brown, also is on death row. Dunson, 33, is serving a life sentence. Dudley declined the Chronicle's request to be interviewed for this article. If the sentence is carried out, he would be the 1st man executed in Texas this year. Dudley's business dealings with the Tovars began about eight months before the murders, according to court documents. Rachel Tovar typically sold him anywhere from one-half to 2 kilograms of cocaine, at a cost of $22,500 per kilo. At one point, Dudley argued with Rachel Tovar about wanting to deal directly with her and her husband's supplier. Taken to bedroom On that June evening, when Rachel Tovar returned to her home after visiting a neighbor, she was greeted by Dunson, armed with a pistol. He escorted her to a bedroom, where her husband was kneeling, hands behind his head with a revolver pointed at him. She was taken into another room where her son, his girlfriend and Audrey Brown were also being held. Brown, who had stopped by the home, began to cry and asked to leave, but was denied. Quinones, almost at full term, felt faint and lay back on the bed. "You stupid (expletive)," Dudley said, "don't you go into labor on me." Frank Farias yelled, "Why don't you all take whatever you want and just leave." Dunson attempted to strike him, but his mother, Rachel, blocked the blow. Arthur Brown left the room and returned with strips from a bedsheet to tie them up. Rachel Tovar could hear Dudley warning her husband: "There better not be any more money in the house." She yelled in reply that some money was stored in a top bedroom dresser, but the admission failed to quell the situation. Nicholas Cortes, who once lived with the family, stopped by the home and was forced inside. He was robbed of the $20 on him and was also tied up. Although shot, Rachel Tovar regained consciousness some time later only to find her husband dead on the floor. Cortes, who was on a bed, asked her if the gunmen had left. Rachel told him they had. She stumbled over to her son and tried to revive him. Quinones, on the floor in the bathroom, was struggling to breathe. Rachel Tovar staggered to a neighbor's home and called police. Jose Tovar, Quinones and Farias all were found dead by police, while Audrey Brown died later at a hospital. Cortes and Rachel Tovar recovered from their wounds. The gunmen fled after being identified by Rachel Tovar, who picked them out from police mugshots. Dudley and Dunson were captured while hiding in a mobile home in North Carolina. They had $30,000 on them. Arthur Brown was later arrested in Tuscaloosa. In his appeals, Dudley argued that his trial attorneys R. Christopher Goldsmith and Connie Williams failed to request a lesser charge of robbery. Goldsmith maintained, in a court filing, that evidence did not exist to support the lesser crime. Denied a plea In another appellate claim, Dudley argued that the mention of his flight from authorities was improper to include in the jury charge. The Court of Criminal Appeals on Friday denied a plea filed by Dudley's attorney, Ken McLean, that raises the claim that prosecutors withheld a possible deal with a crucial witness. McLean said he found an undated, unsigned letter to Alabama's parole board requesting that the witness' parole date be moved up. The witness, Jasper Finney, was serving two 15-year sentences in an Alabama prison. The letter, according to court documents, states that without the testimony, "I may not have received the death penalty against Marion Dudley." McLean said Dudley's defense attorneys were not told of any deal. If such a deal had been made, Finney could have been questioned about the deal during the trial, which may have led jurors to question his reliability. Assistant District Attorney Ann Lee Dulevitz, of Harris County's appellate division, argues in response that the letter is not typed on official letterhead. She wrote that Jane Waters, the assistant district attorney who prosecuted the case, "has no independent recollection of writing or sending a letter" to Alabama's parole board on Finney's behalf. Other witnesses provided similar testimony as Finney about Dudley's drug dealings and other crimes, the response states. "I think he's making an effort," Dulevitz said of McLean's filing. "And this is the only thing he's found that he can contest." (source: Houston Chronicle) ****************** TEXAS COALITION TO ABOLISH THE DEATH PENALTY PRESS RELEASE TEXAS COALITION TO ABOLISH THE DEATH PENALTY TO CONVENE ANNUAL CONFERENCE IN SAN ANTONIO: EVENT COMES AS COLLOSAL MISTAKES SURROUNDING TEXAS' DEATH PENALTY SCHEME CONTINUE UNABATED Jan. 25, 2006 - The Texas Coalition to Abolish the Death Penalty will host its annual conference Saturday, Jan. 28 at the San Antonio Marriott Northwest, 3233 NW Loop 410. The TCADP will be convening at a time when new questions have been raised about the execution of Ruben Cantu of San Antonio, about the fallibility of the Houston Police Department crime lab; and about whether the state of Texas continues to execute people who are severely mentally retarded, despite Supreme Court edict, and continues to execute people with severe mental illness and who are possibly innocent. "The time has come to have no executions, no exceptions, and no excuses," said TCADP President Rick Halperin. "In Texas, we have put to death people who were severely mentally ill, mentally retarded, juveniles and even people who were innocent of the crimes for which they were convicted. Almost 2 billion in tax dollars have been spent to perpetuate the system and yet the public is no less safe, our schools remain underfunded, too many Texans still lack opportunities to achieve and crime - because of so many factors - continues to be a problem. It's high time we took a smart-on-crime approach to making our streets, our communities and our families safer. The death penalty does nothing to address this." Newsmaker events at Saturday's TCADP conference: ***A keynote luncheon presentation by David Dow, distinguished professor at the University of Houston Law Center. Dow heads the Texas Innocence Project, represents a number of people on Texas' death row and is author of the award-winning book, "Executed on a Technicality: Lethal Injustice on America's Death Row." Dow's talk will take place in the Marriott at 12:15 p.m. ***A panel discussion on "Faith Viewpoints on the Death Penalty. Panelists include Rev. Marty Elsner, S.J., Pastor of Our Lady of Guadalupe Catholic Church; Rev. Ann Helmke, Lutheran minister and the animating director of the peaceCENTER in San Antonio; Imam O. Adib Shakir, Resident Imam, Masjid Bilal Ibn Ra'bab of San Antonio; and Ms. Barbie Gorelick, co-founder of theTri-Faith Dialogue of San Antonio and recipient of the Imagineer Award from the Mind Science Foundation. The panel discussion will begin at 3:15 p.m. in the Atrium Room at the Marriott. ***A first-ever film festival, scheduled at 6:30 p.m. at the peaceCenter, 1443 St. Mary's. The festival, entitled "Love & Death Film Festival," will feature the U.S. premiere of two new films about the death penalty. Both filmmakers will be on hand to discuss their work. The first film, "Thou Shall Not Kill," features interviews with three Texas inmates condemned to death as well as the former Texas death house chaplain and the former warden of the Walls Unit, where executions are carried out. The second film, "Step by Step: A Journey of Hope," features the chronicling of the emotional journey of hope with family members who oppose the death penalty as they trekked through the state of Texas and spoke out against executions in Texas last fall. (source: TCADP) USA: Statement of Senator Russ Feingold On the Nomination of Judge Samuel Alito, Jr. to the United States Supreme Court January 24, 2006 Mr. Chairman, Justice O'Connor's retirement in July touched off a period of intense and important work in this Committee. Just over 6 months later, that work seems finally to be coming to a close, at least for now. I want to commend you for the thorough and fair process you have overseen. The nominees have been treated fairly, and both sides on the Committee have been treated fairly as well. I want to thank you for that. Supreme Court nominations truly are among the most important responsibilities of this committee and the Senate. I have given the nominations the President has sent to us in the past 6 months serious and careful consideration. The scrutiny to be applied to a President's nominee to the Supreme Court is the highest of any nomination. I have voted for executive branch appointees, and even for Court of Appeals nominees, whom I would not necessarily vote to put on the Supreme Court. The Supreme Court, alone among our courts, has the power to revisit and reverse its precedents, and so I believe that anyone who sits on that Court must not have a pre-set agenda to reverse precedents with which he or she disagrees and must recognize and appreciate the awesome power and responsibility of the Court to do justice when other branches of government infringe on or ignore the freedoms and rights of all citizens. This is not a new standard Mr. Chairman. It is the same standard I applied to the nomination of Chief Justice Roberts. In that case, after careful consideration, I decided to vote in favor of the nomination. In the case of Judge Samuel Alito, after the same careful consideration, I must vote no. Judge Alito has an impressive background and a very capable legal mind, but I have grave concerns about how he would rule on cases involving the application of the Bill of Rights in a time of war. Some of the most important cases that the Supreme Court will consider in the coming years will involve the government's conduct of the fight against terrorism. It is critical that we have a strong and independent Supreme Court to evaluate these issues and to safeguard the rights and freedoms of Americans in the face of enormous pressures. Confronted with an executive branch that has jealously claimed every possible authority that it can, and then some, the Supreme Court must continue to assert its constitutional role as a critical check on executive power. Just how "critical" that check is has been made clear over the past few weeks, as Americans have learned that the President thinks his executive power permits him to violate explicit criminal statutes by spying on Americans without a court order. With the executive and the legislature at loggerheads, we may well need the Supreme Court to have the final word in this matter. In times of constitutional crisis, the Supreme Court can tell the executive it has gone too far, and require it to obey the law. Yet Judge Alito's record and testimony strongly suggest that he would do what he has done for much of his 15 years on the bench: defer to the executive branch in case after case at the expense of individual rights. Although he has not decided cases dealing with the Bill of Rights in wartime, he has a very long record on the bench of ruling in favor of the government and against individuals in a variety of contexts. Indeed, Mr. Chairman, this is an important distinction between Judge Alito and Chief Justice Roberts. Our new Chief Justice had a very limited judicial record before his nomination. Judge Alito has an extensive record. There is no better evidence of what kind of Justice he will be on the Supreme Court than his record as a Court of Appeals judge. He told us that himself. A whole series of analyses by law professors and news organizations has shown that Judge Alito is very deferential toward the government, and one detailed analysis by the Washington Post concluded that he is more deferential than his Third Circuit colleagues and even than Republican-appointed appeals judges nationwide. This vividly demonstrates the concern I have about this nomination. Judge Alito is not simply a conservative judge appointed by a conservative President. His record is that of a jurist with a clear inclination to rule in favor of the government and against individual rights. In particular, Judge Alito's record in Fourth Amendment cases shows a recurring pattern. In almost every Fourth Amendment case in which Judge Alito wrote an opinion, he either found no constitutional violation or argued that the violation should not prevent the illegally obtained evidence from being used. In more than a dozen dissents in criminal or Fourth Amendment cases, not once did Judge Alito argue for greater protection of individual rights than the majority. In one case that he was asked about on several occasions at his hearing, Judge Alito, in dissent, argued that the strip search of a 10-year old girl and her mother passed constitutional muster, even though they were not suspected of any crime or specifically mentioned in the search warrant. Judge Alito's answers to questions at the hearing about this case only reinforced concerns identified by outside scholars that he seems to ignore the serious interests of privacy and personal dignity protected by the Fourth Amendment and instead relies on technical readings of warrants so that he can authorize the government action. Cases challenging government power comprise nearly half of the current Supreme Court's docket. A Supreme Court Justice should protect individual freedoms against government intrusion where justified, and, specifically, should appreciate that the Fourth Amendment serves to limit government power. As Yale Law School Professor Ronald Sullivan testified: In the United States, perhaps no right is more sacred - more worthy of vigilant protection - than the right of each and every individual to be free from government interference without the 'unquestionable' authority of the law. Judge Alito . . . shows an inadequate consideration for the important values that underwrite these norms of individual liberty - the very norms upon which this constitutional democracy relies for its sustenance. . . . [T]his Senate's decision on whether to consent to Judge Alito's nomination will profoundly impact how liberty is realized in the United States. At the hearing, I and many other Senators repeatedly asked Judge Alito whether the President can violate a clear statutory prohibition, such as the Foreign Intelligence Surveillance Act and the ban on torture. He never answered the question. He returned again and again to a formulaic response that told us nothing at all: he said that the President must follow the Constitution and must follow the laws that are consistent with the Constitution. Mr. Chairman, any first-year law student could tell you that. That kind of stock phrase, which Judge Alito repeated over and over, tells us absolutely nothing about his view of whether the President can, consistent with the Constitution, violate a criminal law. Judge Alito did point to Justice Jackson's three-part analysis in Youngstown. That is an appropriate framework, but merely citing Youngstown doesn't tell you anything about how he would apply that framework. Even when presented with the alarming hypothetical of whether a President can authorize a murder in the United States, Judge Alito would say no more. These practiced and opaque responses gave me no reassurance about Judge Alito's views on these issues. What troubled me even more was that he repeatedly, and in some cases gratuitously, raised issues of justiciability and the political question doctrine - that is, he seemed to question whether the courts can even weigh in on these serious legal battles between the legislature and the executive. Although he said he thought the courts could address questions involving individual rights, Judge Alito's instinct in discussing these historic issues was to focus on whether the courts even had a role to play. It wasn't to talk about the gravity of the issues at stake for our system of government, but to question whether he as a judge could even participate in the resolution of such critical constitutional conflicts. Mr. Chairman, I found that very disturbing, and it has played a significant role in my decision to vote against him. Judge Alito's record and his testimony have led me to conclude that his impulse to defer to the executive branch would make him a dangerous addition to the Supreme Court at a time when cases involving executive overreaching in the name of fighting terrorism are likely to be such an important part of the Court's work. I am also concerned about Judge Alito's record and testimony on cases involving the death penalty. The Supreme Court plays a crucial role in death penalty cases. Judge Alito participated in five death penalty cases that resulted in split panels, and in every single one of those he voted against the death row inmate. A Washington Post analysis found that he ruled against defendants and for the government in death penalty cases significantly more often than other judges. And his testimony gave me no reason to believe that he will approach these cases any differently as a Supreme Court Justice. To be blunt, Mr. Chairman, I found Judge Alito's answers to questions about the death penalty to be chilling. He focused almost entirely on procedures and deference to state courts, and didn't appear to recognize the extremely weighty constitutional and legal rights involved in any case where a person's life is at stake. I was particularly troubled by his refusal to say that an individual who went through a procedurally perfect trial, but was later proven innocent, had a constitutional right not to be executed. The Constitution states that no one in this country will be deprived of life without due process of law. It is hard to even imagine how any process that would allow the execution of someone who is known to be innocent could satisfy that requirement of our Bill of Rights. I pressed Judge Alito on this topic but rather than answering the question directly or acknowledging how horrific the idea of executing an innocent person is, or even pointing to the House v. Bell case currently pending in the Supreme Court on a related issue, Judge Alito mechanically laid out the procedures a person would have to follow in state and federal court to raise an innocence claim, and the procedural barriers the person would have to surmount. Judge Alito's record and response suggest that he analyzes death penalty appeals as a series of procedural hurdles that inmates must overcome, rather than as a critical backstop to prevent grave miscarriages of justice. The Supreme Court plays a very unique role in death penalty cases, and Judge Alito left me with no assurance that he would be able to review these cases without a weight on the scale in favor of the government. One important question that I had about Judge Alito was his view on the role of precedent and stare decisis in our legal system. At his hearing, while restating the doctrine of stare decisis, Judge Alito repeatedly qualified his answers with the comment that stare decisis is not an "inexorable command." While this is most certainly true, his insistence on qualifying his answers with this formulation was troubling. Combined with a judicial record in which fellow judges have criticized his application of precedent in several cases, Judge Alito's record and testimony do not give me the same comfort I had with Chief Justice Roberts that he has the respect for and deference to precedent that I would like to see in a Supreme Court Justice. With respect to reproductive rights, Judge Alito said that he would look at any case with an "open mind." That promise, however, is not reassuring given his prior denunciations of Roe, his legal work to undermine Roe, and his failure to disavow the strong legal views he had expressed in the 1980s when given the opportunity at his hearing. In his 1985 Justice Department job application, Judge Alito wrote that he believed that the Constitution does not protect a right to abortion, and, as an Assistant to the Solicitor General, he wrote a memo advocating a strategy for the Reagan Administration to chip away at Roe v. Wade, with the ultimate goal of overturning that decision. Since he refused to say that he changed his mind, despite numerous chances, one can only think that he still believes what he said in 1985. And his opinions as a Third Circuit judge raise a legitimate concern that he will, if given the opportunity, be inclined to narrow reproductive rights. Mr. Chairman, I want also to say a brief word about ethics. The Vanguard case could have been disposed of fairly easily if Judge Alito had only admitted his mistake up front. Under questioning, Judge Alito finally admitted that there is no evidence that he followed through on his 1990 promise to the Committee to recuse himself from any cases involving Vanguard. He also said that some of the explanations that he and his supporters gave for his failure to recuse from the Vanguard case in 2002-- such as a "computer glitch" or the fact that his promise to the Committee was somehow time-limited -- were not in fact the true reasons that he failed to recuse himself from the 2002 case. While I am not basing my vote on this matter, it continues to trouble me. First, it is not clear to me that Judge Alito took his 1990 promise to the Committee seriously. Second, Judge Alito failed to clear up the inconsistent explanations before or at the outset of his hearing, even after documents revealed that those explanations were implausible and even though he knew that they were not the real reasons that he failed to recuse himself in 2002. The concept of recusal, which recognizes that from time to time the public might reasonably believe that judges' biases or interests may cast doubt on the integrity of a judicial decision, is part of ensuring due process and protecting the public's confidence in the integrity of our system of justice. Despite numerous other reports of Judge Alito's honesty and integrity, I am not satisfied that he appreciates the importance of recusal. His written answer to my question about how he would analyze recusal motions related to the Third Circuit judges who testified on his behalf raises concerns about his approach to conflicts of interest. Judge Alito wrote that he thinks Supreme Court Justices have "less latitude to err on the side of recusal" than other judges, because recusal could lead to evenly divided decisions. But when Congress amended the federal recusal law in 1974, it specifically removed any so-called "duty to sit" in favor of a general standard requiring recusal if there is a reasonable basis for doubting the judge's impartiality. The purpose of that change was to enhance public confidence in the impartiality and fairness of the judicial system. In my view, Supreme Court Justices should have no more latitude in interpreting ethics rules than other judges; indeed, the recusal statute specifically applies to Supreme Court Justices. I would argue that treating recusal issues seriously is even more important for Supreme Court Justices since they are solely responsible for their recusal decisions. There is no judicial review of their decisions, no formal procedure for the full Court review of such decisions, and, when a Justice improperly participates, a tainted constitutional decision cannot be undone. That is why it is so important to have Justices who adhere to the highest ethical standards. Judge Alito repeatedly told us that he seeks to carry out his duties in accordance with both the letter and spirit of all applicable rules of ethics and canons of conduct. He wrote in a letter to the Chairman "my personal practice is to recuse myself when any possible question might arise." Unfortunately, his description of how he would handle recusal motions as a Supreme Court Justice does not seem consistent with those statements. Mr. Chairman, it gives me no pleasure or satisfaction to vote against a nominee to the Supreme Court. If confirmed, he may well serve for over 20 years. I would very much like to have confidence that this new Justice, who plainly has a keen legal mind, would be the kind of impartial, objective, and wise Justice that our nation needs. But I do not, so I will vote No. Thank you Mr. Chairman. (source: Sen. Russ Feingold) INDIANA----impending execution 'King Kong of Kokomo' faces execution The Indiana Parole Board voted unanimously Monday to recommend against clemency for Marvin Bieghler, the self-professed "King Kong of Kokomo" sentenced to death for the execution-style slayings of a Howard County couple in 1981. Barring a last-minute reprieve from Gov. Mitch Daniels or the courts, Bieghler, 58, is scheduled to die by lethal injection at the Indiana State Prison in Michigan City early Friday. Bieghler, an admitted marijuana dealer, was convicted of killing Tommy Miller, 20, and Kimberly Jane Miller, 19, whose bodies were found Dec. 11, 1981, in their mobile home near Russiaville. Tommy Miller had been shot six times and his pregnant wife 3 times. Authorities contended he killed the couple because he believed Tommy Miller had told police about his operation moving marijuana from Florida to the Kokomo area and also felt Miller owed him a drug debt. "By his own testimony, Mr. Bieghler stated he was the 'King Kong of Kokomo' in the drug business," Valerie Parker, vice chairwoman of the Parole Board, said, reading her letter to Daniels recommending against clemency. Board Chairman Raymond Rizzo acknowledged Bieghler was convicted largely on circumstantial evidence, as the condemned prisoner's attorney had argued during the clemency hearing earlier in the day. "What we have is a convicted double killer, scheduled for execution in less than 96 hours, who also lacks evidence proving his innocence, woven deeply into a sordid saga of marijuana by the bale, money by the cooler-full, guns of every type, and a seemingly endless parade of felons, all of whom seem eager to drop a dime on each other," Rizzo said. Bieghler had dropped a dime on each of the victims' bodies, according to court records, to send a message to that he would not tolerate informants. Authorities have said Miller was not an informant. Bieghler told the Parole Board Friday that he was innocent and wanted Daniels to commute his sentence to time served, but that if not granted his freedom, he wanted to die. "If I can't get out, then let's get at it," he said. "I'm not in here begging for my life. I'm not going to do life without parole for something I didn't do." Bieghler's attorney, Brent Westerfeld, asked the board to recommend clemency as it had in the case of another death row inmate, Darnell Williams, in 2004. Former Gov. Joe Kernan commuted Williams' sentence to life in prison without the possibility of parole. Others implicated in Bieghler's drug operation cut deals with prosecutors in exchange for the testimony that wound up convicting his client, Westerfeld said. "The evidence against Marvin was never strong," Westerfeld said. "Police pressured (one witness) to get a story. They made a deal to get a story." Kimberly Jane Miller's brother, John Wright of Greentown, choked back tears as he testified during Monday's hearing. "Our family pleads with this board and Governor Daniels to go through with and uphold this death penalty," Wright said. The Parole Board also heard the reading of a letter from Tommy Miller's mother, Priscilla Hodges, in which she lamented losing the opportunity to be a grandmother to the slain couple's unborn child. "This entire family has been victimized by what Marvin Bieghler did for over 20 years," Hodges wrote. The Parole Board has recommended clemency in a capital case just once since the death penalty was reinstated in Indiana in 1977. Board members unanimously recommended clemency for Williams in 2004, saying his case had too many unresolved questions. Daniels commuted the death sentence of Arthur Baird II to life without parole last August. Baird's lawyers argued that he was mentally ill, but the state Parole Board voted 3-1 to recommend that the execution be carried out. It was not clear when Daniels would decide whether to grant clemency to Bieghler. Daniels spokeswoman Jane Jankowski said the governor had received a briefing on the case and was reviewing the information. 5 people have been executed since Daniels took office in January 2005. (source: Associated Press) NORTH CAROLINA: Judge spares killer----Death row inmate mentally retarded; McLaughlin was convicted of killing 3 people. A federal judge has removed a Bladen County man from the state's death row because he is mentally retarded, ruling that he should not be executed for murdering 3 people in 1984.Elton O. McLaughlin, 55, is the 12th death row inmate in North Carolina spared because he was found to be mentally retarded. But his case comes with a twist. In 2001, the legislature outlawed the death penalty for the mentally retarded. Defendants are considered retarded if they score 70 or less on an IQ test and show poor life skills before age 18. State law also requires that the IQ test be "individually administered by a licensed psychologist or psychiatrist." In McLaughlin's case, some disputed the validity of a test he took at age 10. It showed he had an IQ of 70, but it was given by a teacher. The state's lawyers argued that the IQ test wasn't properly administered and therefore could not be used as proof that he was mentally retarded. In June 2003, Bladen County Superior Court Judge James F. Ammons Jr. sided with the state, finding no credible evidence that McLaughlin scored an IQ of 70 or less. Ammons quoted the N.C. Supreme Court's description of McLaughlin as a cold, calculating contract killer. But U.S. District Judge Terrence W. Boyle noted that what state law requires was not possible in the segregated Bladen County school that McLaughlin attended in the 1960s. The school did not have psychologists to administer IQ tests. To require such conditions now under state law is unfair, Boyle reasoned in his order Jan. 13. "Where, as in this case, the absence of such a test has been shown to be the result of illegal segregation of the public schools, imposing such a requirement" is inconsistent with a U.S. Supreme Court decision in 2002, Boyle wrote. The court's ruling in Atkins v. Virginia outlawed the execution of people who are mentally retarded but let states set their own standards for determining retardation. Sentence vacated Boyle concluded that McLaughlin "has shown by a preponderance of the evidence that he is mentally retarded." He ordered that McLaughlin's death sentences be vacated and that he serve the rest of his life in prison. The state's lawyers have not decided whether to appeal. "It is absolutely a correct ruling based on both the law and the evidence," said McLaughlin's lawyer, Jonathan E. Broun with the Center for Death Penalty Litigation in Durham. "Elton McLaughlin was the type of defendant that both Atkins and the North Carolina statute are supposed to protect." Broun and Chapel Hill lawyer J. Kirk Osborn represent McLaughlin. They say McLaughlin didn't start school until he was 8 years old and was identified as a special-needs student. He reads at a sixth-grade level and does math at a 3rd-grade level. On IQ tests over the years, McLaughlin has scored between 68 and 76, his lawyers said. Murder for hire McLaughlin was sentenced to death for a murder-for-hire plot to kill James Elwell Worley, whose wife, Shelia Worley, wanted him dead. McLaughlin also was sentenced to death for later murdering Shelia Worley because she failed to pay him $3,000 and talked to police. At the same time, McLaughlin killed Worley's 4-year-old daughter, Psoma Baggett. Eddie Carson Robinson, McLaughlin's co-defendant in all three killings, also has raised a mental retardation claim on appeal but has not had a hearing. McLaughlin and Robinson are the only two death row inmates prosecuted by Gov. Mike Easley, the former district attorney in Bladen, Brunswick and Columbus counties. An Easley spokeswoman said it would be inappropriate for the governor to comment on the ruling. Bladen County District Attorney Rex Gore said 2 juries agreed that McLaughlin should die for the crimes based on the nature of the killings, the number of victims and McLaughlin's prior conviction of involuntary manslaughter for killing another man. "My main concern with this ruling is how it will affect other mental retardation claims in North Carolina," Gore said. "It appears to me at least to call into question the method we are using to determine mental retardation." (source: News Observer)
