Feb. 25 TEXAS: Texas watching lethal injection challenges----State officials plan no policy shifts after doubts cast on same method used in other states. By postponing a killer's execution this week, California became the 2nd state in as many months to pause over the issue of whether lethal injection is a painless passing or whether it masks a painful and potentially unconstitutional death. The legal debate is expected to heat up in coming months as California and Florida examine their execution procedures while the U.S. Supreme Court considers whether to take up the issue. Meanwhile, officials in Texas, the state with the nation's busiest death chamber, say they have no plans to change a thing. "We're watching the situation, but there has not yet been any court ruling that has impacted Texas," said Michelle Lyons, a spokeswoman for the Texas Department of Criminal Justice, which has executed four convicts this year and has an additional 15 queued up for lethal injection into June. In all, almost 850 people - including 359 in Texas - have been executed across the United States since the death penalty was reinstated 3 decades ago. The latest debate intensified when a California federal judge ordered the state's 3-drug execution procedure modified because of concerns that it might cause a painful death, which could be considered cruel and unusual punishment, something that is prohibited by the U.S. Constitution. Texas uses the same 3-drug method: a sedative, a muscle relaxant and a heart-stopper. California opted to use a lethal dose of a barbiturate but then stopped Michael Morales' execution when anesthesiologists refused to participate because of ethical issues. Death penalty foes have cheered the development, insisting that it is a first step to getting the issue before the U.S. Supreme Court. In recent months, the high court halted two executions in Florida over the question of whether death-row convicts can lodge 11th-hour appeals on whether lethal injection is cruel and unusual. Based on that, Florida Gov. Jeb Bush earlier this month announced that he will not sign any more execution warrants until the pending legal questions are resolved. Although death penalty advocates generally have branded the development as just another in a long string of challenges that will fail, some legal scholars and supporters say the challenges could succeed. The reason: Oklahoma was the 1st state to adopt the lethal injection protocol in 1977, and Texas and most other states copied it "without much scientific backup for what they were adopting," said Kent Scheidegger, legal director of the Crimi- nal Justice Legal Foundation in California, an organization that has defended capital punishment in several major cases. "It may be that an amended protocol is adopted and upheld," Scheidegger said. Death penalty opponents make much the same argument, citing a recent article in the British medical journal The Lancet saying that lethal injection, instead of being painless, may cause unnecessary suffering because enough anesthesia is not used. Even before the Florida and California rulings, the issue had surfaced in Texas cases. When Corpus Christi killer Jeff Doughtie, 39, was executed in August 2001, his last words were that he felt a burning sensation. Other convicts have unsuccessfully challenged the method of lethal injection in recent months in their final appeals, officials said. Like other opponents, Dave Atwood, a founder of the Texas Coalition to Abolish the Death Penalty, said he was surprised by the California ruling after so many years of courts rejecting such challenges. "I don't see that happening in Texas," he said, "because most of the judges would not rule that way." Even so, Atwood said, the recent developments almost certainly will figure in the appeals of condemned convicts who face execution in coming months. "They'll all be trying it," he said. "But I don't see anything changing unless the (U.S.) Supreme Court agrees." (source: Austin American-Statesman) **************** Prosecutors on the defense----Judge withholds ruling on new trial as attorneys try to refute allegations of misconduct A judge did not immediately decide Friday whether Andrea Yates should avoid a 2nd trial for her children's drownings since defense attorneys plan to call more witnesses next week to bolster their claims of prosecutorial misconduct. State District Judge Belinda Hill is expected to decide Monday whether to press ahead with Yates' retrial on March 20 or grant defense attorneys' request to prohibit further prosecution against her. In court papers, Yates' attorneys have alleged prosecutors knowingly used false testimony to secure a capital murder conviction against her in 2002 for the children's deaths at the family's Clear Lake home. Prosecutors, however, told the court Friday the inaccurate testimony, provided by a nationally renowned forensic psychiatrist, was simply a mistake and said there was no attempt to hide it. Dr. Park Dietz told a jury during Yates' 1st trial in 2002 that the TV drama Law & Order aired an episode about a woman suffering from postpartum depression who drowned her children in a bathtub shortly before Yates' 5 children were killed under similar circumstances. After Yates was convicted, Dietz learned no such episode of Law & Order existed. Last year, the First Court of Appeals overturned Yates' conviction because of Dietz's mistaken testimony. Dietz testified Friday he immediately notified prosecutors of his mistake. They, in turn, said they notified Yates' attorneys. Yates' attorneys, prosecutors testified Friday, seemed satisfied by alerting jurors of the mistake and did not take up Dietz's offer to return to Houston at his own expense. Yates' attorneys have argued that subjecting her to another trial would amount to double jeopardy. If the judge disagrees and Yates chooses to appeal that finding, her trial could be delayed for up to a year, said Harris County Assistant District Attorney Alan Curry. But if Hill also declares the defense's double jeopardy claim to be frivolous, Yates' trial could proceed as scheduled, Curry said. "Obviously, we're taking this very seriously," Curry said after Friday's hearing. "When Dr. Dietz testified about this, we believed he knew what he was talking about. The court of appeals clearly found there was no evidence of prosecutorial misconduct." Those who testified Friday included Dietz; Tomball area resident Shauna Thornton, who alerted the Harris County District Attorney's Office of Dietz's mistaken testimony; and the Harris County prosecutors assigned to the Yates case, Joe Owmby and Kaylynn Williford. Thornton said she first sent an e-mail to the district attorney's office one week after the Yates children died to alert prosecutors the A&E network had aired a rerun of L.A. Law that concerned a woman found not guilty of killing her child by using a "postpartum psychosis" defense. The program, Thornton said, aired shortly before the children's deaths. Prosecutors followed up by talking to Thornton, but said they did not give her message much weight because there was no way to prove that Yates had actually watched the TV program. They said they were busy chasing down numerous other leads. Owmby said he mistakenly referred to the TV program as Law & Order when he briefly discussed the matter with Dietz, asking the psychiatrist to check if such an episode existed. "I really had no interest in the matter except to put it to rest and get it out of the way," Owmby testified Friday. When Dietz testified at Yates' 1st trial in March 2002, he said Law & Order had aired an episode about a case with circumstances similar to the Yates children's deaths. Owmby and Williford both said Friday they had no reason to doubt Dietz's testimony at the time, although they were surprised by it. Thornton said she sent another e-mail to the district attorney's office after seeing media coverage of Dietz's testimony to alert them of the mistake. "Actually, we shouted at the TV, 'The name of the show is L.A. Law, not Law & Order,'" she recalled Friday. Owmby said Friday if he had known Dietz's testimony was incorrect, he would have spoken up immediately. Yates' attorneys did not prevail on some of their other motions Friday. Hill denied their requests to declare Texas' insanity standard unconstitutional. In other court papers filed Thursday, prosecutors revealed they have statements from 2 women who shared jail cells with Andrea Yates regarding their discussions with her about the drownings. One witness, Felicia Doe, told authorities Yates advised her "how to beat" her case by acting mentally sick and crazy. Yates, Doe said, advised her not to eat, not to speak properly and to avoid friendly behavior. Doe told authorities Yates would act "distinctly different" when a jail attendant could see her, particularly by showing no interest in food. Doe said Yates "did this because she was making it look like she was starving herself," prosecutors' court papers state. Another woman, Lynnette Licantino, said Yates told her the children "were just too much," court papers show. Yates said she was stuck with the children all the time and didn't have any help, Licantino told authorities. Yates also appeared worried that her husband would leave her, Licantino said. (source: Houston Chronicle) FLORIDA: Eaglin found guilty of murder -- Sentencing to begin on Monday The 3 women who were at his trial all week exchanging smiles and tiny waves sat solemnly behind him on the left side of the courtroom -- one wiping away tears while the court clerk read the guilty verdict for Dwight T. Eaglin. On the other side of the courtroom, the families of Eaglin's murder victims, Darla Kay Lathrem and Charles Fuston, wept quietly as well. "We feel justice has been served today," said Lathrem's sister, Carol Miller. "But nothing will replace what we have lost." The jury of 12 took 2 1/2 hours to return to the courtroom at the Charlotte County Justice Center on Friday, finding Eaglin, 30, guilty on two counts of 1st-degree murder for his role in the death of Charlotte Correctional Institution officer Lathrem and inmate Fuston in 2003 after a failed prison escape. As the verdict was read, Eaglin sat with a restrained smile. Circuit Judge William Blackwell asked Eaglin to rise as he affirmed the jury's verdict. Straightening his jacket, Eaglin crossed his hands in front of him and looked at the judge directly, with his head held high and jaw set. After being fingerprinted, Eaglin walked back to the defense table, the passive restraints on his legs rattling quietly, and smiled widely, looking to the rear of the courtroom. While being escorted out, he looked over at Lathrem's family and smiled again before nodding to the media. One reporter asked him if he was afraid of the death sentence he could face. Eaglin smiled and shook his head. The 3 woman watched him leave before hurrying out of the courtroom - never identifying themselves and ducking out of the way of television cameras. State Attorney Steve Russell said he couldn't comment much on the verdict. "I really can't talk about it because of the ethics for the issues coming up Monday and the proprieties of the court," he said leaving the courtroom. "I just can't talk." Eaglin's sentencing hearing, in which he faces the death penalty, will start Monday. Eaglin's attorneys said they could not comment about their client or the guilty verdict. Day 5 Day 5 of Eaglin's trial started with his defense attorneys resting their case -- without calling a single witness. On Tuesday, Eaglin's attorneys reserved giving opening arguments until the state rested, which it did Thursday. On Friday, attorney Neil McLoughlin gave a brief five-minute opening statement before Russell started his hour-long closing arguments. Holding up the sledgehammer that the state says was the weapon used to kill both Lathrem and Fuston, Russell swung the tool and suggested the jury pick it up and feel the weight of it when they deliberated. "The defendant deliberately slammed it into (Lathrem's) head at least 3 times, caving in her face," Russell said, raising his voice. Russell told the jurors they had a puzzle to figure out. "How did we get from here," he said, holding up picture of Lathrem, Fuston and John Beaston -- who was injured during the escape -- then switching to Lathrem's and Fuston's autopsy photos, "to here?" "There is the common denominator," he said pointing to Eaglin. "It's right there. That's your puzzle." During his closing arguments, McLoughlin tried to discredit the state's witnesses, Jesse Baker and Kenneth Lykan, who were both serving prison sentences at CCI. The men testified that they had both overheard Eaglin talk about the escape prior to the attempt on June 11, 2003. McLoughlin also asked the jury to consider why, if Eaglin had killed Lathrem and moved her beaten body, he didn't have more blood on his clothes or hands. "It's not that easy to wash off blood," he told the jury. McLoughlin said there was no way Eaglin could have managed to kill Lathrem, beat Fuston and Beaston, wash off, then build the large ladder found outside of the prison lying by a razor-wire fence in the hour and a half time the state claimed. "It just doesn't make sense," McLoughlin said. The crime Eaglin, a former state welterweight boxing champ known as "The Fighting Irishman," was serving a life sentence for stabbing and killing a man in 1998 outside a Pinellas County topless bar when he was charged in Lathrem's and Fuston's deaths. Eaglin's co-defendants, Michael Jones, 49, and Stephen Smith, 45, also face 2 counts of premeditated murder for their alleged roles in the killings. According to court records, Eaglin, Smith and Jones had planned to escape the night of June 11, 2003, while they were working a construction detail. Lathrem, 38, armed only with pepper spray, was the only officer assigned to guard the men as they worked with sledgehammers and other tools. The escape attempt failed and all three men were recaptured. Lathrem was later found dead in a broom closet. Fuston, 36, was found in his cell. He died several days later. Lathrem was the first female CCI officer murdered in the state's history. A Department of Corrections internal investigation released in 2004 specified numerous instances of CCI officials failing to adhere to basic safety procedures and policies. As a result of the department's findings, several CCI officials were demoted. The families of Fuston and Lathrem have both filed lawsuits against the Florida Department of Corrections, alleging the department violated its own rules and policies. The penalty phase Eaglin's sentencing hearing will start at 9 a.m. Monday at the Justice Center in Punta Gorda. Defense attorney Douglas R. Withee announced he would possibly need three-quarters of a day for his witnesses to testify during the penalty phase. Russell said he wouldn't need as much time. Withee said he wasn't sure how many people he would call or even who he would call. "I have to work on that," Withee said. "I have an idea, but I don't know yet." Both victims' families have said they hope Eaglin will receive the death penalty when he is sentenced. "He should die the way my sister died," Miller said emphatically. (source: Sun-Herald) ****************** Punta Gorda jury convicts inmate in death of female prison guard A jury convicted a prison inmate Friday in the slayings of a female guard and another inmate during a botched escape attempt in 2003. The 12-member jury deliberated for 2 1/2 hours before finding Dwight T. Eaglin guilty on two counts of 1st-degree murder in the deaths of Charlotte Correctional Institution guard Darla Lathrem and inmate Charles Fuston. A sentencing hearing was scheduled Monday. Eaglin faces the death penalty. "We feel justice has been served today," said Lathrem's sister, Carol Miller. "But nothing will replace what we have lost." Eaglin's attorneys, who did not call any witnesses during the 5-day trial and rested their case Friday, declined comment. State investigators said Eaglin, 30, was one of three prisoners who attacked Lathrem, beat her to death and stuffed her body into a locked mop closet at the Charlotte Correctional Institution on June 11, 2003. Fuston died several days later from injuries sustained in the attack. Lathrem was on duty alone, armed only with pepper spray and a radio. She was the 1st female officer ever killed in Florida. Inmates Michael Jones and Stephen Smith each are also charged with 2 counts of 1st-degree murder. Prosecutors are seeking the death penalty. Jones' trial is scheduled to begin April 17, and Smith is scheduled to stand trial June 12. The families of Fuston and Lathrem have both filed lawsuits against the state's Department of Corrections, alleging the department violated its own rules and policies. (source: Associated Press) ********************** John Robert Ballard remains at a state prison John Robert Ballard was set free from death row after the state Supreme Court ruled there was insufficient evidence to convict him of killing 2 friends but he didn't rush out of prison Friday at the 1st opportunity to savor his freedom. Ballard, who was expected to be released Friday afternoon and reportedly had a bus ticket home, remained at the Union Correctional Institution in Raiford hours after prison officials said he was free to go. What was the holdup? "When people are released from prison, sometimes they have to wait on their ride," Department of Corrections spokesman Robby Cunningham said. "It's very common that there's not someone at the front door the second they walk out." Ballard decided to wait for a relative to pick him up from the prison rather than riding a bus back home to Naples. But a sister who said she was driving from Marco Island to pick him up told the Associated Press Friday evening that Ballard may have to spend another night in prison. The sister, who identified herself as Karen and declined to give her last name when reached on her cell phone, said that she expected to pick Ballard up Saturday around noon. Ballard, 37, had served nearly 3 years for the 1999 murders of Jennifer Jones and Willie Ray Patin Jr. at their apartment, even though there was little to connect him to the slayings of his friends. The Supreme Court ordered Ballard acquitted Thursday, overruling a jury's verdict, saying there wasn't sufficient proof. Ballard's conviction had been based almost entirely on the discovery of one fingerprint and arm hair being found in the victims' Collier County apartment - a place he had visited numerous times. Collier County prosecutors said Friday they felt the circumstantial evidence against Ballard was strong enough for a conviction. "We convinced the jury beyond a reasonable doubt of his guilt in both murders, we got past the judgment of acquittal, and the judge obviously found the verdict was proper because he went on and sentenced him to death," said Randall McGruther, chief assistant state attorney. McGruther declined to comment on whether police and prosecutors will pursue charges against Ballard in other crimes or keep him under surveillance. (source: Associated Press) DELAWARE: Supreme Court ruling impacts sentence for killer In Wilmington, a 29-year-old man convicted of killing the granddaughter of a state legislator and her boyfriend was spared the death sentence this morning because his younger accomplice was barred from being executed. Superior Court Judge Peggy L. Ableman sentenced Darrel D. Page to 4 life sentences plus 113 years for the 1999 murders of Maneeka D. Plant, 24, and Cedric U. Reinford, 30. "In light of the recent abolition of the juvenile death penalty, this court finds that it would be inequitable and unjust to impose the death penalty upon Page, when it is constitutionally prohibited from imposing the same sentence upon the co-defendant," Ableman wrote in her decision. The U.S. Supreme Court in March banned the death penalty for killers younger than 18 when their crimes were committed. Page's accomplice, Michael L. Jones, was 17 at the time of the killings. Jones was sentenced last year to 3 life terms plus 44 years. (source: News Journal) OHIO: Parole Board is reviewing its guidelines As the Ohio Parole Board has recently received a lot of attention and questions regarding its role, I want to more fully explain the responsibilities of the Parole Board and its members. The Ohio Parole Board, composed of nine men and women, is charged with ensuring the safety of Ohio's residents and communities while protecting the rights of the offenders in our custody. The board's membership includes corrections professionals who possess specialized expertise in psychology, mental health, law, research and victims'-rights issues. Each year, the board must decide release eligibility for thousands of convicted felons whose sentences require them to be considered for parole. Determining the best time to return an offender to society as a productive member of the community is a complicated responsibility that requires the board to balance the rights of offenders with the safety of the community. Among other things, the board considers the seriousness of the offense, the impact on the victim and the community, placement options, the offenders attitude and his or her participation in institutional programs. The members must consider these factors along with the release guidelines established by the Parole Board in 1998 that aid the board in equalizing the time served for like offenses and circumstances. In 2004, the Parole Board took all of these issues into consideration more than 15,000 times when considering release for felony offenders housed in Ohio's 32 correctional facilities. Whenever an offender is released, the board members invite feedback from the victims, victim advocates, inmate-rights advocacy groups, inmate family members and criminal-justice professionals, particularly the prosecutors, defense attorneys and judges who are involved in the case. Currently, the Ohio Parole Board is in the process of reviewing its release guidelines to ensure that they are striking the appropriate balance. In fulfilling this objective, the members of the board must also recognize changes to the Ohio Revised Code provisions governing parole consideration, as well as the concerns of the Ohio legislature and the public. The question is, will some offenders who have been granted parole reoffend? Unfortunately, the answer is yes. However, the vast majority will successfully complete their term of supervision and quietly resume their lives in communities throughout Ohio. The Ohio Parole Board plays a vital role in ensuring a successful transition from incarceration to the community. This task is not an easy one nor is it one board members take lightly, and I am confident the new Parole Board chairwoman, Cynthia Mausser, will effectively lead the board through these challenges. REGINALD A. WILKINSON -- Director Ohio Department of Rehabilitation and Correction Columbus) (source: Editorial, Columbus Dispatch) ******************** DNA at heart of law enforcement issues DNA is the building block of life, and in recent years it has also jumped to the forefront of law enforcement. Several DNA-related issues have hit the news recently, including a debated mandatory criminal DNA-sampling law that could eventually find its way to the Ohio Supreme Court. Cold cases It doesn't always work exactly like it does on TV in shows like "CSI" or "Cold Case," but it's true that one of the most universally heralded applications of DNA testing is its use in criminal investigations, especially cold case investigations. A cold case is defined as any unsolved case on which a lead detective is no longer assigned and many such cases, often murders or rapes, ran cold years ago. But DNA evidence is changing that. A federal grant has enabled the state Bureau of Criminal Investigation and Identification to team up with local law enforcement agencies to identify and pursue cold cases that may benefit from DNA testing. According to Ohio Attorney General Jim Petro, one of these investigations recently linked a deceased criminal to the 1999 murder of Rhonda Jones, a 37-year-old Akron resident who was struck by a blunt object and stabbed multiple times. Evidence from the crime scene was compared to information in the national Combined DNA Index System. The DNA information matched that of Bouchard J. Kindell, whose DNA was in the system as a result of being convicted for a separate incident. However, Kindell, who was 24, was shot and killed outside an Akron bar in 2005. Petro said BCI has been able to work with Summit, Lucas and Montgomery county officials since last June on cold case investigations. Last month, another investigation in Akron led to death row inmate Donald Craig being charged with the 1995 kidnapping, rape and murder of 13-year-old Malissa Nicole Thomas. Post-conviction DNA testing Even years after a crime, DNA testing can be used to determine guilt. However, it can also be used to determine innocence. State lawmakers are currently considering Senate Bill 262, a bill that would allow convicted criminals to apply for state-funded DNA analysis of crime scene evidence in certain cases. A similar bill was passed in 2003 but its provisions were set to expire after one year. The bill was extended the next year but finally expired in October 2005 and was not renewed. The new bill would make the process permanent. Under the proposal, convicted criminals with at least one year remaining on their sentence could apply for DNA analysis of their case if no definitive testing was conducted in the past, or if the outcome of the test could conclusively prove guilt or innocence. Other stipulations include having the biological material necessary for testing and the inmate having pleaded not guilty at trial, although, in certain cases, special approval can be granted for guilty or no contest pleas. Petro has gone on record supporting the permanent availability of DNA testing to convicted offenders. "Post-conviction testing is an important component of our justice system that should not be subject to an expiration date," he said in a written statement. "DNA testing allows us, in many cases, to conclusively determine if someone did or did not commit a crime." Petro cited the recent case of Clarence Elkins, an Ohio inmate who was imprisoned for the 1998 rape/murder of his mother-in-law and the rape of his 6-year-old niece. Petro said that post-conviction DNA analysis exonerated Elkins and led to a new suspect in the crime, prison inmate Earl G. Mann. Petro said that during the two years that the post-conviction DNA testing applications were accepted, 307 were filed. Of those filings, 2 inmates, Elkins and Donte Booker, have been exonerated; decisions are pending in 90 applications. Legal Issues Most agree that DNA is a powerful forensic tool, one that can be used to convict or exonerate. However, there are strong disagreements revolving around exactly how far the state can and/or should go when it comes to collecting and using DNA information. Since 1996, Ohio has been collecting DNA samples from some of its most violent felons; however, new laws have mandated that all Ohio felons, and some misdemeanor offenders as well, have their DNA sampled and put on file in the Combined DNA Index System so it can be compared to DNA evidence from unsolved crimes all over the country. Some groups, like the Ohio ACLU, disagree with the idea of gathering DNA samples from all criminals. The ACLU argues that it invades privacy and will not help solve crimes. "It is highly invasive for no good reason," Jeff Gamso, legal director of the Ohio ACLU, said in a previous News interview. Gamso added that sex offenders and other violent offenders who are most likely to leave behind DNA evidence were already required to give DNA samples before the new law. The state's program also suffered a legal setback last week when an Ohio appellate court ruled that the Ohio could not force an offender who was convicted before the passage of the law, to give a DNA sample. According to the court, the law made no reference to retroactive application of mandatory DNA sampling, and therefore could not be applied to offenders convicted before its passage. Petro disagreed with the ruling, saying it could have "disastrous ramifications" for the DNA database, which has more than doubled in size, from approximately 61,000 profiles to nearly 130,000. Many of the new DNA samples have come from offenders convicted prior to passage of the law. He added that the DNA samples have been used in more than 1,500 investigations here and in other states since 2000, and further pledged to file a brief with the Ohio Supreme Court in an attempt to reverse the appellate court decision. (source: Mount Vernon News)
