Jan. 24 CALIFORNIA: Inmate's Death Sentence Fought----Riverside County judge is asked to spare a 46-year-old who killed a boy and 2 women in 1984 but whose lawyers say is mentally retarded. Attorneys for condemned killer Horace Edwards Kelly asked a Riverside County judge Monday to spare their client because, they say, he is mentally retarded. It's the 1st court case to be tested under a recent California Supreme Court ruling that defined the disability for inmates facing execution. Kelly, convicted of murdering an 11-year-old boy and two women in 1984, could have his death sentence reduced to life without parole if the judge decided he was mentally retarded and his behavioral and practical disabilities began before he was 18. Last February, the state's high court ruled that inmates could challenge their death sentences as long as a qualified expert said they were retarded. Defense attorney Harry Simon told Riverside County Superior Court Judge W. Charles Morgan that two mental health experts had determined that Kelly, 46, met that criteria. However, Riverside County Chief Deputy Dist. Atty. Kevin Ruddy said his psychiatric expert would testify that Kelly was mentally competent and that there was no evidence showing he was found to be mentally retarded before he became an adult. Ruddy, during a break in what is expected to be a two-week hearing, said that an IQ test given to Kelly in high school scored him at 85, which was "way above" the IQ level associated with mental retardation. The average IQ is 100. Kelly faces 3 death sentences, including 1 for the shooting death of Danny Osentowski on Thanksgiving Day in 1984. The boy was walking home with his 13-year-old female cousin from a convenience store in the Riverside County town of Pedley. Kelly's shift as a security guard at a nearby construction site had just ended, and he grabbed the girl and held a .357 magnum handgun to her neck as he dragged her to his van, court records show. Danny kicked Kelly, allowing his cousin to escape. Kelly shot Danny once in the chest. "The 1st shot was nonfatal," Ruddy said. "Kelly shot again, but we believe the boy pushed the gun away because the 2nd shot missed and the boy had a bruise on his hand. But the 3rd shot hit Danny right between the eyes." Kelly confessed to the slaying. Detectives then determined that bullets from his gun matched bullets used in 2 San Bernardino County murders the week before. Sonia Reed and Ursula Houser had been found shot in the back of the head and nude from the waist down. Kelly took 2 of Houser's rings, giving 1 to his wife and selling the other to his mother-in-law, prosecutors said. He confessed to raping the women, court records show. During Monday's hearing, Kelly's attorney argued that his client had displayed significant mental deterioration, including language problems and major intellectual and behavioral problems that included the hoarding of his feces and rotten food in his prison cell. Kelly has also been diagnosed with schizophrenia, his attorneys say. Dr. Stephen Greenspan, a University of Colorado clinical psychiatry professor scheduled to testify for Kelly's defense, concluded that "Kelly's mental retardation renders him incapable of assisting counsel," according his pre-hearing declaration. Kelly suffered traumatic head injuries from child abuse that caused brain damage, he stated. Another defense expert, Sophia Vinogradov, a clinical, academic and research psychiatrist employed by the San Francisco V.A. Medical Center, wrote in a declaration that Kelly "is one of the most-impaired adults I have ever met." Kelly "suffers from mental impairments so profound that he is incapable of coherently and accurately expressing his perceptions, thoughts, decisions, desires or memories," she said. "Kelly frequently speaks in an incoherent word salad that makes his speech practically unintelligible." Kelly attended Monday's hearing. He wore an orange Riverside County jail jumpsuit and had a thick, black mustache and beard peppered with gray. Nancy Thomas, whose family ran a board-and-care home for the mentally disabled in San Bernardino, testified said Kelly was referred to the home in the early 1980s by a local church official. Thomas discussed Kelly's lack of hygiene, education and common sense. She said Kelly spent in the home's basement, which was dark, cold, moldy and infested with rats. "He just didn't operate in an arena I called common sense," said Thomas, who added that Kelly once told her "if he howled at the moon, he'd turn into a werewolf." However, Kelly's aunt, Alice Butcher, testified that her nephew "took on the role of provider" for his mother following the death of his father, working several jobs, getting a driver's license and doing several chores around their home. "Kelly just plays dumb wherever he goes; he just acts goofy," Ruddy said. "That's his M.O." In 2002, the U.S. Supreme Court ruled that executing a mentally retarded person was unconstitutional because it qualified as cruel and unusual punishment. The high court left it to the states to define retardation. The California Supreme Court addressed the issue in February. The court rejected pleas from prosectors to define retardation as having an IQ of 70 or below. Instead, The court ruled that a judge must decide whether it was more likely than not that a defendant had "significantly subaverage general intellectual functioning" and that the disability began before age 18. Kelly twice has been within a week of a scheduled execution. He won stays both times. (source: Los Angeles Times) ************** Appeals seek to alter death penalty----Inmate's challenge over lethal injection method is among many capital punishment disputes. Like so many other administrative complaints made by California prisoners, the one filed by Michael Angelo Morales this month is squeezed onto a 1-page prison form. But Morales' message sounds an unusual note of urgency: "My execution by lethal injection is imminent and will be a cruel and unusual form of punishment." Morales has a Feb. 21 date in the death chamber for the rape and murder of a teenage girl in Lodi. In a neat script he explains his "grave concerns." He fears that pancuronium bromide, the second of three drugs administered in executions by California and 26 other states - yet banned by the American Veterinary Medical Association in euthanizing animals - will leave him conscious of torturous pain but paralyzed and unable to cry out. The issue has potential for postponing Morales' death and altering California executions. State lawyers have been directed to explain why they consider the paralyzing drug necessary in a federal court hearing Thursday in San Jose. The lawyers, citing an opinion by Dr. Mark Dershwitz, contend in a brief filed Monday that "over 99.999999999999 % of the population would be unconscious within 60 seconds" of receiving the 1st of 3 drugs, a 5-gram dose of the sedative sodium pentothal, administered before the pancuronium bromide. According to the prosecution brief, the lawyers also will challenge whether it's the court's function to suggest a "more humane or medically acceptable execution protocol." Nearly three decades after capital punishment was reinstated in California, the constitutionality of using pancuronium bromide is one of several active disputes that could force systemic changes. Another, concerning the rights of foreign nationals, including dozens on California's death row, is likely to be decided by the U.S. Supreme Court this year. Other battles are under way or are brewing - defense lawyers have presented them to the courts but haven't yet persuaded judges to grant hearings, said Michael Laurence, director of the Habeas Corpus Resource Center, which represents California death row inmates in the latter stages of their cases. The foreign nationals issue is before the high court in cases from Oregon and Virginia, though most of the death row inmates who will be affected by the decisions are in California. The question is the validity of sentences imposed by states on foreign nationals who were denied consular access after their arrests, in violation of the Vienna Convention on Consular Relations. A decision is expected by early summer. A 3rd active contest over California's death penalty could derail the system completely, though no decision seems imminent. Thelton Henderson, a senior U.S. district judge in San Francisco, has granted a review of evidence that the state has been violating standards set by the U.S. Supreme Court when it outlawed capital punishment in 1972. The high court ruled then that states must give juries sufficient guidance concerning which killers truly deserve execution. The justices suggested in 1972 that the low percentage of death sentences in Georgia and Texas - they were being handed down in 15 to 20 % of eligible cases - was evidence of arbitrariness. One study has pegged the comparable figure for California at 11.4 %. Ronald Matthias, the state's lawyer in the current case, is arguing that no court has condemned a state death penalty system "for being too lenient, too forgiving, too compassionate or otherwise too accepting" of arguments in favor of sparing a defendant's life. The backdrop for the debate is the case of Troy Ashmus, convicted of the 1984 sexual assault and murder of a 7-year-old girl in a Sacramento park. Other issues with potential for major disruption of California's death penalty system are percolating, but it's uncertain whether any court will put them on the front burner: * U.S. Supreme Court Justices John Paul Stevens and Stephen Breyer have expressed concern - Breyer as recently as a few weeks ago, when California executed 76-year-old Clarence Ray Allen - that holding prisoners on death row for several decades may violate the constitutional prohibition of "cruel and unusual punishment." A ruling to that effect could force profound changes in the state's graying death row population and its elaborate death penalty review process. * A 2005 study by researchers from the University of Colorado and Northeastern University concluded that application of the California death penalty is fundamentally unfair because death sentences in the state are far more likely to be handed down in predominantly white, rural counties. California's record before the U.S. Supreme Court in recent death penalty cases has been mixed. The court has broadly interpreted a 1996 statute that limits the role of the federal courts in reviewing state capital cases. Dane Gillette, who coordinates the prosecution of capital appeals for the California attorney general's office, said that's one explanation for the state's recent cluster of execution dates. On the other hand, recent rulings have prohibited capital punishment for the mentally retarded and expanded the right to an unbiased jury, signaling that the justices haven't become content with the status quo. That gives Morales reason to press his case. There's another reason. The 9th U.S. Circuit Court of Appeals - the next step up the ladder after U.S. District Judge Jeremy Fogel rules for or against Morales - has considered the pancuronium bromide issue previously without deciding the merits. A year ago, before permitting California to execute Donald Beardslee, the 9th Circuit said the question was "to say the least troubling." The court said it would be reconsidered "another day, based on a full record." (source: Sacramento Bee) *********** SoCal convict seeks escape from death row with retardation claim Lawyers for convicted murderer Horace Edwards Kelly argue that their client should be allowed off death row because he is mentally retarded. The hearings that began Monday are the first attempt to have a death row inmate's sentence commuted based on a retardation claim since California's Supreme Court issued new guidelines for such cases last year. The California judges ruled in February that inmates claiming to be retarded could have their death sentences reduced to life in prison without parole if a qualified expert says they are retarded. That ruling put into force a U.S. Supreme Court decision that executing mentally retarded convicts constitutes cruel and unusual punishment. Some 30 death row defendants statewide are also trying to have their sentences reduced based on that decision. Kelly, now 45, was convicted of 3 murders over several days in November 1984. He was found guilty of raping and killing 2 woman near his San Bernadino home, and fatally shooting an 11-year-old boy who tried to stop Kelly from abducting his 13-year-old female cousin. Kelly wasn't executed as scheduled in 1998 after a San Quentin prison psychologist expressed doubts about his sanity. A jury found him sane enough to be executed, but his appeals continued and the case was eventually sent back to Riverside County Superior Court after the California high court's decision. The hearing will include testimony from mental health experts that Kelly, whose mother drank through her pregnancy and gave birth to him prematurely, showed signs of retardation as a child. In court papers, public defender Harry Simon writes that Kelly's "deficits in adaptive functioning from childhood onward ... meet the criteria for mental retardation." But Riverside County prosecutor Kevin Ruddy said other experts will testify that Kelly's mental state is advanced enough for him to be executed. Ruddy's experts contend in court filings that Kelly's advanced vocabulary, as well as his success in driving himself cross-country, serve as proof of adequate intelligence. Ruddy also said that Kelly's IQ of 81 puts him several points ahead of the upper limit of mental retardation, which is 70 to 75. Testimony is expected to continue Tuesday. (source: Associated Press) OHIO: Prosecutors seek death penalty in Knox County killing Knox County prosecutors will seek the death penalty against a man indicted yesterday in the death of a 30-year-old Mount Vernon man. Wesley Allen Park Jr., 31, formerly of Mount Vernon, is currently serving a prison term for a grand theft conviction in Delaware County and now faces an aggravated murder charge with a death penalty specification in the death of Jonathan "J.C." Sheasby, authorities say. He also is charged with an alternative count of murder with a gun specification, aggravated robbery, intimidation of a witness and tampering with evidence. Sheasby, of Mount Vernon, vanished March 21. He left his wallet, his dog and all of his belongings in his apartment. He had been missing for nearly 3 months before his body was identified by dental records. Park's indictment alleges that on March 22, Park murdered Sheasby because he was a witness to a crime Park committed in Delaware approximately 1 week earlier, Knox County Prosecutor John Thatcher said in news release. Thatcher also said it appears Park murdered Sheasby to prevent him from giving testimony against Park for the earlier crime. Park will be arraigned in Knox County Common Pleas Court at a later date. (source: The Columbus Dispatch) ************* Too many holes James Trimble killed Sarah Positano. Under what circumstances? A year later, questions linger about the death of Sarah Positano. The 22-year-old Kent State student was the 3rd victim of a shooting rampage by James Trimble, now on death row. The basic facts are not in doubt: Trimble took Positano hostage, then shot her in the upstairs hallway of her Brimfield Township apartment. But the details leading up to that tragic moment and its aftermath have not been nailed down so precisely. By the early morning hours of Jan. 22, negotiations with Trimble had produced a deal. He would free Positano in two hours if police backed off. Minutes later, everything fell apart, Positano fatally wounded, the negotiations over. Despite hearing Positano scream over the phone, it would be more than 7 hours before Metro SWAT entered the apartment. What happened? Trimble has been held accountable for his role, and rightly so. Still unanswered is what part the activities of law enforcement officers on the scene may have contributed to the tragic turn of events that led to Positano's death. Troubling is the question of the thoroughness of the investigation, the possibility a police sniper was in the apartment briefly, firing a shot that Trimble claimed caused him to accidentally fire his pistol. That account was dismissed by prosecutors. Trimble stuck to it from the beginning. Harder to dismiss are the eight bullet holes and fragments found by the defense that don't fit with expert testimony from the state that only 2 shots were fired into the apartment, both from the outside. Brimfield Police Chief David Blough and Metro SWAT commanders say nothing was done that could have provoked Trimble. Still, a review by an outside police agency would help put the matter to rest. For the sake of the Positano family and the public's confidence in law enforcement, a more complete accounting of police actions is essential. (source: Editorial, Akron Beacon Journal) ************** Auditor to quit race for governor ---- Montgomery, lagging in fundraising, now plans run for attorney general The Republican race for governor likely will narrow to 2 major conservatives today after state Auditor Betty D. Montgomery withdraws to run for attorney general. Sources said Montgomery, lagging in fundraising, will announce that she's quitting the governor's race this morning in Bowling Green during a news conference at the Wood County Courthouse, where she served 8 years as county prosecutor beginning in 1981. Mark R. Weaver Montgomery's campaign spokesman, refused to comment last night. Although she could seek re-election, Montgomery is expected to run for attorney general, a post she relished but had to give up in 2002 because of 8-year term limits. Montgomery is the 1st woman in state history to be elected auditor and attorney general. Her exit from the governor's race creates a likely GOP showdown between Secretary of State J. Kenneth Blackwell and Attorney General Jim Petro. A lesser-known Republican, Cleveland contractor Pete Draganic, also has announced plans to run for governor. A spokesman for Petro declined to comment last night, and one for Blackwell could not be reached. Viewed as more moderate than Blackwell and Petro, mainly because of her support for abortion rights, Montgomery has finished 3rd in recent polls of Republican voters and has trailed Petro and Blackwell in fundraising. Campaign reports due next Tuesday are expected to show Petro and Blackwell widening their moneyraising lead over Montgomery. Even though she was the top GOP vote-getter in the statewide elections of 1998 and 2002, Montgomery determined she would have trouble winning the gubernatorial nomination in a May 2 primary expected to be dominated by antiabortion conservatives. Blackwell has courted conservatives by leading the successful 2004 ballot initiative to ban same-sex marriage, but Petro has narrowed the race with a $1.5 million television ad blitz asserting his Christian beliefs and conservative credentials. Montgomery's decision to run for attorney general complicates matters for 2 Republicans who already have declared their candidacies - Franklin County Prosecutor Ron O'Brien and state Sen. Timothy J. Grendell, of Chesterland. Grendell said yesterday that he intends to stay in the race: "I've been campaigning for nine months and I've been to 54 counties. I'm running not because I need the job, but because I want the job." O'Brien, who held a campaign fundraiser last night at the Columbus Athletic Club and has 2 more scheduled this week, was waiting to hear the news directly from Montgomery, saying she had assured him shortly before Christmas that she was in the governor's race to stay and would not run for attorney general. "I'm in this race because she told me she's not," O'Brien said. "I'm a candidate and I don't know if her announcement in Wood County would change that." So far, 3 Democrats have announced their candidacies for governor - U.S. Rep. Ted Strickland, of Lisbon, State Sen. Eric D. Fingerhut, of Cleveland, and former state Rep. Bryan Flannery, of Lakewood. (source: Columbus Dispatch) OKLAHOMA: Federal Appeals Court Rules For Attorneys Of Oklahoma Death Row Inmates Oklahoma death row inmates and their attorneys win a significant ruling from a federal appeals court. The 10th Circuit Court of Appeals in Denver ruled Monday that attorneys for Oklahoma death row inmates are entitled to be paid with federal funds for work in state clemency hearings. The 8-to-3 ruling reversed a 2004 decision by US District judge in Tulsa who concluded Congress didn't intend to use federal funds for that purpose. But the defense attorneys said other federal judges in Oklahoma had authorized federal funds for that purpose 47 times in the past 10 years. The attorneys warned they would stop taking post-conviction death penalty cases if the appeals court did not come to their rescue. They said they could not financially afford to work on clemency hearings if they are not paid. (source: Associated Press)
