Jan. 30 TEXAS----impending execution Houston man set to die for double slaying Prison inmate Jaime Elizalde Jr. readily admits his presence at a Houston cantina was a violation of his parole, but he insists he had nothing to do with the shooting deaths of two men there that night. A Harris County jury, however, decided Elizalde was the gunman and should be put to death for the 1994 slayings of Juan Saenz Guajardo, 29, and Marcos Sanchez Vasquez, 33. He's set for lethal injection Tuesday at the Huntsville Unit of the Texas Department of Criminal Justice. Elizalde's execution would be the second this year in the state. 3 more inmates have death dates in February. "I was in the wrong place at the wrong time," Elizalde, 34, said in a recent interview on death row outside Livingston. "I know it sounds like a cliche, but it's the truth. The 2 men got killed, but I had nothing to do with it." Lawyers for the condemned prisoner were arguing in the courts that he could be mentally retarded and ineligible for execution. The Texas Court of Criminal Appeals rejected the claim Monday. Attorneys also were challenging the lethal injection method as unconstitutional, saying it caused pain and made his execution cruel and unusual punishment. A federal district judge denied the appeal, sending the case to the federal appeals courts. The U.S. Supreme Court, in a Florida case, last week stopped an execution and said it would review the lethal drug issue. Then days later, in an Indiana case, the high court rejected a similar appeal and the prisoner was executed. "Sometimes there is a rhyme or reason for when they grant relief, sometimes there's not," said Philip Wischkaemper, one of Elizalde's attorneys. "We're just going to have to see." At the time of the killings, Elizalde had been on parole about 8 months after serving almost four years of a 10-year term for cocaine possession and auto theft, a conviction he picked up at age 17. Jurors at his capital murder trial were told of his leadership in the prison gang the Mexican Mafia and heard evidence of his involvement in assaults while in prison, including the stabbing of another inmate. "I've never considered myself a saint," Elizalde said. "I'm not a violent person, but I will defend myself if pushed." The owner of the bar and a family acquaintance of one victim, both familiar with Elizalde, identified him as the gunman. "It's not like they were two people who didn't know him," said Bill Hawkins, the Harris County assistant district attorney who prosecuted the case. Elizalde's father, who also was at the bar, was arrested in the case and jailed for some 2 years before he was released because of insufficient evidence. Authorities said the shooting culminated an argument the father had with one of the victims a few days earlier. The younger Elizalde said he saw several men leave after his father went outside to make a phone call, then heard shots. "I was worried more about my dad," he said. "I thought he was the one who got shot," Elizalde was set to die in November but received a reprieve after confessing to another killing that landed someone else in prison. He also said the man convicted of that slaying was responsible for the two killings that earned him a spot on death row. When a judge called on him two weeks ago to testify about the other case, he took the Fifth Amendment and refused to answer questions. Besides the court appeals, Karen Parker, a San Francisco-based lawyer with the Association of Humanitarian Lawyers, has filed a petition with the Organization of American States to pressure Texas and the U.S. stop Elizalde's punishment. The execution would be a violation of human rights laws the U.S. is "trying to force other countries to comply with," she said. On the Net: Texas Department of Criminal Justice execution schedule: http://www.tdcj.state.tx.us/stat/scheduledexecutions.htm Jaime Elizalde Jr.: http://www.todesstrafe-usa.de/death_penalty/voices_tx_elizalde.htm (source : Associated Press) ****************** Case of slain teacher hits a snag----David Temple's trial in wife's death is put on hold by witness problems A former high school coach who was set to go on trial today, accused of killing his pregnant wife more than seven years ago in their Katy home, will have to wait until later this year to learn his fate. David Mark Temple's highly anticipated murder trial is expected to draw the attention of national news programs amid inevitable comparisons to the widely publicized Laci Peterson case in California. But the trial has been put on hold, possibly until late summer and perhaps even next year, because of problems with a state witness who was supposed to testify about gunshot residue evidence. Attorneys on both sides could not comment on the delay because of a gag order. Temple, 37, now living in Richmond, was arrested in November 2004 and accused of killing his wife, Belinda. The 30-year-old Katy High School teacher was found shot to death in their home on Jan. 11, 1999. Harris County sheriff's detectives said Belinda Temple, 8 months pregnant with the couple's second child, was hit in the back of her head by a shotgun blast, apparently while on her knees in the master bedroom closet. David Temple claimed he arrived home to find a partially open back door with a broken window pane. He told detectives he found his pregnant wife balled up on the floor of the closet upstairs. But detectives said signs of a burglary at the house appeared staged. They said gunshot residue was found on his jacket in the master bedroom, his shirt in the downstairs utility room and one of his tennis shoes, found outside the home. In an arrest affidavit, detectives also cited an affair Temple had with a co-worker in the days before his wife's death. He and that woman - Alief Independent School District teacher Heather Scott Temple - are now married. >From the day of his arrest, Temple's attorneys have said they were eager to go to trial in hopes of clearing his name. Over their objections, however, state District Judge William Harmon this month granted prosecutors' request to delay the trial. Prosecutors asked for more time because an FBI forensic scientist who was expected to testify about the gunshot residue was transferred to another division recently and is no longer certified to testify or perform lab tests on such evidence, court papers show. Another FBI employee - the agency's only analyst certified to work with gunshot residue cases - will not be available for the trial because she is due to give birth in February and will be on leave for 6 months, according to court documents. Even after she returns, she must be recertified before she can perform tests or give testimony. Temple's attorney, Dick DeGuerin, opposed the trial's delay, saying the residue analysis is unreliable and should not be admitted as evidence, since it was tested by an FBI employee who no longer is certified. DeGuerin also cited speedy-trial concerns, contending that prosecutors have not made diligent efforts to summon that employee to testify. Although DeGuerin lost his bid to move ahead with the trial, Judge Harmon last week granted his request for a defense expert to witness any additional gunshot residue tests that may be conducted. The delay is the latest twist in a case that has been fraught with surprises and difficulties. Last year, a Texas inmate claimed in an affidavit that he heard someone else confess to Temple's slaying. Prosecutors later sought unsuccessfully to recuse Harmon as presiding judge after he gave an affidavit defending prosecutor Kelly Siegler when the inmate filed a State Bar grievance against her. The grievance was dismissed. Defense attorneys also complained that prosecutors were not making all of the evidence available to them. Prosecutors have given notice that they will offer evidence of David Temple's past troubles, including a 1984 incident in which he was accused of pointing a shotgun at his brother, Darren. The brother has proclaimed Temple's innocence in the murder case on national TV. Prosecutors also plan to bring up Temple's 1987 conviction for vehicle burglary during his days as a Katy High School football hero; an incident of vandalism and theft targeting a former girlfriend in 1987; and his fight with another player during an intramural co-ed basketball game at Stephen F. Austin State University in 1991, court papers show. Meanwhile, defense attorneys have issued subpoenas for the attendance and disciplinary records of several former Katy High School students; records of any students who met with Belinda Temple on the day of her death; and the names, addresses and phone numbers of any meter readers who may have worked in the Temples' subdivision or at their home on the day of the slaying. (source: Houston Chronicle) DELAWARE: Capano appeals murder conviction, wants new trial Thomas Capano filed an appeal with the U.S. District Court today seeking a new trial on charges he murdered Anne Marie Fahey. In the 7-page document, Capano argues his conviction should be overturned because the trial judge did not allow the jury to consider lesser-included charges at his 1999 trial. Capano attorney Joseph Bernstein charges this violated Capano's right to due process and runs contrary to previous Supreme Court rulings. Earlier this year, the Delaware Supreme Court overturned Capanos death sentence. Today's filing was expected and all the issues raised in the petition were made by Capano's attorneys in state-level appeals. "We've already litigated those issues so it is safe to assume our position wont change," said Assistant U.S. Attorney Ferris Wharton, who prosecuted Capano at the original trial. Bernstein also argues in todays filing that it was improper for the trial judge to allow hearsay statements by Fahey, to include evidence of other "bad acts" by Capano and to allow prosecutors to question Capano about why he invoked his right to remain silent after his arrest. The "habeas corpus" petition also argues Capano had ineffective trial counsel because his "dream team" of attorneys did not raise the above issues at trial. Finally, the petition argues state prosecutors should not be allowed to re-try the penalty phase of Capano's case, exposing him to the possible re-imposition of the death penalty. Bernstein argues that to allow the state to do so would violate the ban on double jeopardy. Wharton said prosecutors have not yet made a decision on if they will seek the death penalty a 2nd time or have the judge impose a sentence of life in prison. (source: The News Journal) USA: Let's go back to guillotine . . . Recently, while I was scanning the national headlines on my computer's home page, I came across one of the many controversial stories about lethal injection. I was intrigued at how today's society had complicated this procedure into a scientific experiment. Now, my personal opinions on capital punishment aside, can we not find a simpler way to execute a prisoner? Although death by toxic gas, firing squad, electrocution and hanging are all still practiced in the United States, I shall aim my attack at the most commonly used and perhaps most overcomplicated method of modern execution, lethal injection. I happen to be one of an estimated 22 percent of Americans suffering from "aichmophobia," or a fear of needles, and can think of nothing more terrifying than having an inexperienced orderly inject an IV in my arm. Upon further research, I realized that people have a skewed view of this painful practice. The first misconception exists with the expertise of the administrator of the fatal prick. Most of these "professionals" are nothing but prison orderlies with minimal medical training beyond first aid. Due to medical-ethics policies, trained doctors cannot participate in any of the execution procedures. This results in poor implementation of the various needles used, often improperly injected into a muscle or an undersize vein, causing pain for its victim. In cases of such improper practice, the lethal toxins can take over a half-hour to properly take effect, causing great physical and mental strain on the prisoner. In my pondering, I formulated an improvement upon our system. To my understanding, billions of people have met their deaths in human history, and less than 1 percent of those fell under the category of lethal injection. I believe many problems in our capital-punishment procedure can be solved with the use of the effective method of the guillotine. This popular instrument of execution is most commonly associated with the French Revolution, but was used in various parts of the world until 1877, when its last assignment was carried out. It's estimated that the guillotine was used for nearly 600 years. Why? Because it was efficient. The guillotine is an all-too-appropriate machine for the task it's designed to complete. It is a cheap, re-useable, easily operated and nearly flawless in completing its objective. As has been proven to me by various early-morning infomercials in the area of kitchen appliances, we now have the technology to produce sharper blades. Such technology would be useful in avoiding the much publicized "accidents" involved with the original machine, in which total decapitation did not occur. It is my belief that due to the speed of the blade drop and immediate severing of the spinal cord, the prisoner would suffer an instant and then have a painless death. This process would also eliminate the several minutes of helplessness that occur during our current procedures after the drug is injected and the irreversible sequence of events is put into play. Some people are quick to point out flaws in my point of view. One of the most common arguments lies with the gruesome nature of such a practice. It is my belief that death, being the highest form of punishment that can be sentenced by our government, should be as simple and painless for the condemned as possible. Another objection people have is about what the witnesses must view and the extensive cleanup. Death is not a spectator sport and should not be adjusted for the entertainment value of others. As for the cleanup, I have witnessed far gorier scenes on prime-time episodes of "CSI." The truth is that there are many professions in which such violent and bloody scenes are all too common. Those who are immune to the graphic nature of the practice would handle such situations. The truth is that in today's society, murder by the court has been deemed acceptable. I find the current means inhumane and brutal. Once one is sentenced, the manner in which the punishment is carried out should result in as little suffering for its victim as possible. It is my firm belief that in a country where lethal injection, electrocution, gassing, firing squad and hanging are all acceptable and practiced forms of capital punishment, in the event a more appropriate solution is presented, i.e. the guillotine, it must be considered as an alternative. It is my belief that for the sake of the prisoner, who is the only one whose care and comfort should be considered, such a choice should be presented. Although the view of capital punishment will never be unanimously supported, maybe we can agree on a more decent execution of this practice. (source: Fort Wayne News Sentinel - By Josh Cocks, a staff writer for the Leo High School Lion's Tale) ********************** Its not our problem, is it? -- a simple observation One of you 2 is going to hang for this. Since you're the nigger, you're elected." This is not the climax of an overly-dramatic made-for-television movie. Nor is it an irrelevant memory confined to the pages of a history book. Instead, these were the very real and horrifying words of a Texas police officer. They were directed at Clarence Brandley, an innocent black man sentenced to death. They offer the truest glimpse of the discrimination within our society that has infected our justice system. After 10 years of community outrage and protest, Brandley would escape his legal lynching. In 1990 Brandley became one of the lucky few, a group of 122 people exonerated prior to execution in the United States since 1973. Its a terrible irony that there would ever be a circumstance under which a man who had been stripped of 10 years of his life would be considered "lucky." But the reality is that Brandley has regained some semblance of a life while there remain innocent individuals still waiting in the shadow of their impending death. I've imagined myself in Brandleys position - to be in a situation where every day offers only another opportunity to think about societys betrayal. Whatever your beliefs regarding the effectiveness or righteousness of the death penalty, it is an indisputable truth that innocent individuals are being put to death. Advocates justify the spilling of innocent blood as an unavoidable, unintentional consequence of human fallibility. In recent years, however, study after study has revealed that the execution of innocents is about as intentional as murder can be. >From the illegal misconduct of district attorneys to the abusive investigative tactics of police departments to the racially-based selection of jurors, racial discrimination is poisoning the justice system at every level. Statistically, being black is more of an aggravating factor than "causing great fear, harm or pain" or "committing a murder with another felony," and just behind "murder with torture" (see www.deathpenaltyinfo.org). In Philadelphia, a black man convicted of the same crime as a white man is 3.9 times more likely to receive a death sentence. Compounding the problem, and an injustice in and of itself, is the inherent discrimination of a system that refuses to pay reasonable compensation for public defenders. The justice system, instead, provides the least-qualified, most reprimanded attorneys to defend the poor. How telling is it that when a black man can afford the best the system has to offer, we call it the "trial of the century?" But when a court-appointed attorney fails to do any pre-trial investigation and is, therefore, unable to tell the jury that another man has already confessed to his clients alleged crimes, we disregard it as an aberration. Ronald Williamson spent 11 years on death row for that "aberration." When Johnny Cochran tells the jury "if it doesn't fit, you must acquit," we scoff at the possibility that a black man is going to get away with murdering a white woman. But when a poor man can't afford the eloquence and legal maneuvering of the "Dream Team" when, instead, he is provided with an attorney who offers no mitigating evidence at a sentencing hearing and closes with the 26-word argument, "You are an extremely intelligent jury. You've got that mans life in your hands. You can take it or not. That's all I have to say" - there is no public outrage. Jesus Romero was sentenced to death at that hearing and executed in 1992. And when a wealthy black man is found innocent of murder, we speak of injustice and question the integrity of the system. But there is no outcry when Aden Harrison, Jr., a young black man, is forced to put his life in the hands of a court-appointed attorney who served for 18 years as an Imperial Wizard of the Ku Klux Klan. With a reality this surreal-for these injustices and hundreds more-why aren't we asking questions? Because weve determined that theres only one question worth asking: "Why should we change a system that discriminates in our favor?" The answer to this question has for decades now provided the leaders of North Carolina the motive for delaying at every turn even the admission of the possibility that the death penalty may be discriminatory. And isn't that a valid motive? I mean, I can certainly understand their perspective. I'm white. My Duke education will undoubtedly grant me financial security. So why should I give a damn about the death penalty? This is Brandleys problem. This is Williamson and Harrison's problem. This is - scratch that - was Jesus Romeros problem. It's not mine, and it's not yours. Is it? (source: The Chronicle -- Daniel Bowes is a Trinity junior. His column runs every other Monday----Duke University, North Carolina) OHIO: Clemency board rejects mercy for killer of 2 women The Ohio Parole Board on Monday voted against granting clemency to a condemned killer scheduled to die Feb. 7 for raping and killing 2 women 20 years ago. The board voted unanimously against mercy for Glenn Benner, 43, who had not sought clemency. Benner was convicted of kidnapping, raping and murdering Cynthia Sedgwick, 26, in August 1985 in woods at the Blossom Music Center near Akron where she had attended a concert. He also was convicted of raping and murdering a friend, 21-year-old Trina Bowser, in Akron in January 1986. Benner also was convicted of raping and trying to kill 2 other women in the months between the killings, but not sentenced to death in those crimes. The board said there was no doubt about Benner's guilt and no circumstances in his life that would outweigh the seriousness of what he did. "Benner committed heinous crimes against innocent female victims," the report said. Gov. Bob Taft can accept the recommendation or change the sentence to life in prison without parole. Benner has said he didn't seek clemency because the process doesn't take into consideration whether inmates have changed while incarcerated. He added that he didn't want to cause the families of his victims further pain. If executed, Benner would become the 20th man put to death in Ohio since 1999, when Ohio resumed carrying out executions. (source: Associated Press) FLORIDA----impending execution Federal court denies Rutherford appeal, another pending Convicted murderer Arthur D. Rutherford lost a federal appeal Monday, one day before his scheduled execution, but he had another pending, one of his lawyers said. If that fails, the Vietnam veteran will appeal to the U.S. Supreme Court, which last week stayed the execution of another Florida death row inmate on an issue Rutherford also has raised, that the state's lethal injection procedure is cruel and unusual punishment. "We're just waiting to see what happens," attorney Linda McDermott said. The 56-year-old carpenter was convicted of killing and robbing Stella Salamon in 1985 at her home in Milton, where he had done repair work for her. She had been strangled or asphyxiated and her body was found in a bathtub. The U.S. Supreme Court granted a last-minute stay of execution to Clarence Hill last week so the justices can determine whether the 11th U.S. Circuit Court of Appeals in Atlanta erred by denying him a chance to appeal the lethal injection claim. The 11th Circuit was taking another look at the issue in Rutherford's pending appeal. Hill, 48, of Mobile, Ala., had fatally shot a Pensacola police officer during a 1982 bank robbery. He was strapped into a gurney with intravenous lines attached to his arm Tuesday when Justice Anthony M. Kennedy granted a temporary stay. The full court the next day extended the stay to give lawyers time to present their arguments. Gov. Jeb Bush, speaking in Tampa, said Monday that he hopes the court doesn't wait until the last-minute to spare Rutherford. "I hope they don't do it while the guy's on the gurney. There's got to be a little better system. It was very frustrating, I'm sure, for all parties .... when there was a delay and then a stay. Hopefully the courts can make these decisions a little bit earlier in the day," Bush said. Attorneys for the 2 inmates contend that a cocktail of 3 chemicals used by Florida and several other states can cause excruciating pain. A study published in The Lancet medical journal last year by a University of Miami researcher found that a painkiller is likely to wear off before a 2nd chemical causes the inmate to suffer a heart attack. The 3rd chemical paralyzes the inmate so he cannot react to or express the pain, according to the study. The Florida Supreme Court refused to grant Hill or Rutherford a trial court hearing to present evidence on the issue, concluding that the study was inconclusive. The state justices Friday also rejected Rutherford's claim that new evidence might exonerate him. His lawyers had argued a key prosecution witness with a history of mental problems had changed her story at least twice since the trial. In one version she told a former housemate, now in prison, that she had killed the victim, but she later denied making such an admission. (source: Associated Press) NORTH CAROLINA: Students Call for Death Penalty Moratorium Some UNC-Chapel Hill students are joining calls for a moratorium on the death penalty in North Carolina. A handful of members of the student organization Campaign to End the Death Penalty held a rally outside the State Capital in Raleigh this morning. They want Governor Mike Easley to stop executions for 2 years. "A majority of North Carolinians support this issue. Even those that support the death penalty are willing to say, look, let's halt executions," said the group's Ryan Presley. "Let's look at the problems with fairness, costs, racial disparity. Let's look at these issues, and after 2 years of analysis, let's go from there." The students shot a documentary to help advance their cause. After the rally, the delivered the video to the governor's office. (source: ABC News) OKLAHOMA: Lone tribe has death penalty When a Cache man was implicated in the death of his girlfriend in January 2005, prosecutors indicated he could face the death penalty. No such comments were made in August after a Fort Cobb father was arrested in the deaths of his 3 children. The difference was a realization the death penalty is not an option in most murder cases that end up in federal court because they happened on Indian land. Only one of 562 recognized tribes -- the Sac and Fox Nation of Oklahoma -- opted to allow the death penalty when the government modified the list of crimes punishable by death in 1994. That means life in prison is the harshest punishment for Jon Kent Red Elk and Dean Robert Payne if they are convicted of 1st-degree murder. Red Elk of Cache is charged with 1st-degree murder after the January 2005 death of his girlfriend on Comanche Nation land. He contends he only helped her commit suicide. He is awaiting trial as the 10th U.S. Circuit Court of Appeals considers an evidentiary issue in his case. Payne, a member of the Comanche Nation, told authorities he planned to kill his children and then himself because he was upset over marital problems. He survived his suicide attempt and faces murder charges in federal court in Oklahoma City. His attorney has indicated he will pursue an insanity defense at his February trial. His case is in federal court because the crime was on Comanche land. "Under the law, the death penalty is not an option" in such cases, Justice Department spokesman John Nowacki said. States take action Since 1976, when the Supreme Court ruled the death penalty was constitutional, 38 states and the federal government have authorized its use in certain criminal cases, according to Justice Department records. Congress modified the government's list of crimes punishable by death in 1994, opening the door for Indian tribes to opt in, as well. Former Sac and Fox treasurer Truman Carter said it was a simple decision for the tribe, which historically has been strict about law and order. It was the 1st tribe to establish a full police department and court system. Carter said the number of violent crimes on Indian land was rising when the death penalty discussion began more than a decade ago. He said Sac and Fox leaders unanimously passed a resolution to allow the death penalty for murders committed on its land, which occupies part of Lincoln, Payne and Pottawatomie counties. "We wanted that sanction, the death penalty, to be an option," said Carter, a Shawnee attorney who specializes in federal Indian law. Other tribes have not followed suit. Caddo Nation Chairwoman LaRue Martin said she doesn't remember the tribe considering the death penalty, likely because there weren't any crimes on tribal land to spur such talk. Martin said there still appears to be no interest in allowing the death penalty, even after 3 children who were members of the Caddo Nation were killed by their father. Most tribes refused to consider the death penalty because their members believe the punishment is imposed more often on Indians. Attorney Ken Bellmard, who has worked for more than a dozen tribes, said most tribes had discussions about the death penalty when Congress made it available to them in 1994 but never really considered it. Melissa Tatum, a professor at the University of Tulsa's Native American Law Center, said tribes balked because a disproportionate number of American Indians are already tried in federal court. Federal courts have jurisdiction in prosecuting most serious crimes that occur on Indian land, so more Indians end up there. "Most tribes don't view the death penalty as appropriate, given those circumstances," she said. Tribes historically vary on whether to allow the death penalty, Tatum said, but there is not any cultural objection to it. Many formerly had some form of capital punishment. She said there are several documented instances from the 1800s when the Muscogee (Creek) Nation executed people convicted of larceny for the third time. Others chose less harsh methods of punishing members guilty of serious crimes. (source: The Oklahoman)
