March 22
TEXAS: Killer's lawyers target Harris prosecutor----Seldom-used argument accuses Owmby of pattern of misconduct Prosecutors often point to a defendant's criminal history as they attempt to influence the outcome of a trial. Now defense attorneys for a man serving life in prison for murder hope to use that same logic to convince the courts that their client should receive a new trial. They argue in court filings that Harris County Assistant District Attorney Joe Owmby has a pattern of prosecutorial misconduct. In their request for an evidentiary hearing, attorneys for convicted murderer Jonathan Drew cite what is known as the Doctrine of Chances - a seldom-used, but sometimes effective argument recognized by the Texas Court of Criminal Appeals that basically maintains that where there's smoke, there's fire. Specifically, in addition to what they say were Owmby's improprieties in the Drew case, the attorneys also point to the prosecutor's work in two high-profile cases: Andrea Yates and Josiah Sutton. Yates, who confessed to drowning her 5 children in June 2001, awaits retrial after her murder conviction was overturned because a prosecution witness gave false testimony. Sutton spent almost 5 years in prison after faulty DNA evidence and testimony resulted in his conviction for rape. Allegedly ignored problems Owmby was the lead prosecutor in both trials and, according to the motion, knew of the problems in both cases but did nothing to correct them. "If the shoe was on the other foot, the prosecution would be arguing that the defendant was guilty if you had a case where you had all of these events occurring with such similar characteristics," said Jack B. Zimmermann, one of Drew's attorneys. "How many times have you heard a prosecutor argue to the jury that the defense wants them to think that this is a coincidence? How many coincidences can there be?" Owmby refused to discuss with the Houston Chronicle the accusation made against him. However, he did acknowledge being familiar with the Doctrine of Chances. "I hadn't heard of that being used as a theory in this type of proceeding," Owmby said. "But I'm not surprised anymore at what will be heard in an (appellate) hearing." Beyond that, Owmby refused to comment, citing past bad experiences with the media. "What happens is this," said the prosecutor, "and what has happened to me before, is that I've commented on something. Had an incorrect memory or stated something that was wrong at the time. And then it's an 'aha' moment for a lot of people. And, you know, the Doctrine of Chances says I can't be wrong more than once." According to the motion filed by Drew's attorneys, Owmby has been wrong far more than once. List of accusations In 1999, Drew, then 26, was charged with capital murder in the November 1998 kidnapping, rape and slaying of 23-year-old Tina Flood. Although Owmby had hoped to seek the death penalty, the jury convicted Drew on the lesser charge of murder, and he was sentenced to life in prison. During both the trial and sentencing, Owmby played "fast and loose with the rules" of prosecutorial ethics, said Zimmermann. In his motion, Zimmermann alleges that Owmby: -Suppressed evidence about the criminal backgrounds of two key prosecution witnesses. -During the punishment phase of the trial, agreed with the defense that DNA evidence collected from an alleged second victim did not come from Drew. However, in an attempt to portray Drew as sexual predator, Owmby told the jury that semen on the woman's stomach - semen that was never tested - had been deposited by Drew. -Argued that Drew had attacked the alleged 2nd victim with the help of his friend, Jason Stamper. However, on the date of the attack, Stamper was an inmate in the Harris County Jail. Stamper was never charged in the second crime, and the charges against Drew in that case were eventually dropped. In his motion, Zimmermann describes those acts and others by Owmby as "egregious prosecutorial misconduct that abrogated Mr. Drew's right to a fair trial." But the motion by Zimmermann also looks beyond the Drew case. In pointing to the Yates case, Zimmermann focuses on the testimony of Dr. Park Dietz, an expert witness for the state. During the trial, Dietz incorrectly told the jury that the television show Law & Order, which Yates watched regularly, had featured an episode where postpartum depression had been used as a defense, suggesting that Yates may have gotten the idea to kill her children by watching the show. But in reality, there was never a Law & Order episode about postpartum depression. Instead, the issue had been addressed in an episode of L.A. Law - a fact that had been brought to the attention of the District Attorney's Office in an e-mail from Tomball schoolteacher Shauna Thornton prior to the trial. According to her testimony, when she saw on television that Dietz had testified about the wrong program, Thornton said, she immediately e-mailed the District Attorney's Office again to point out the mistake. Thornton also stated she sent a 1-line message to the office - while the trial was still in progress. Testimony defended Although the Yates trial ended in March 2002, Owmby said he did not see an e-mail from Thornton until April 18, 2002 meaning he would not have known about the mistake until after the trial. The District Attorney's Office also produced a copy of the 2-paragraph e-mail bearing Thornton's name for the court. Contacted last week, Philip Hilder, Thornton's attorney, said his client "emphatically" stands by her testimony. Both state District Judge Belinda Hill and the Texas 1st Court of Appeals have ruled that the allegations against Owmby in the Yates case have no merit. As for the Sutton case, Zimmermann points out that during questioning of an HPD DNA lab technician during the trial, Owmby directed the witness away from talking about the testing of DNA sample that was later found to have problems. In a subsequent interview with KHOU-TV Owmby admitted that he knew there were problems with the testing in the Sutton case. A few moments later, he orders the camera to be turned off, then later explains that he misspoke. After his conviction, Sutton was sentenced to 25 years in prison. He served more than 4 years before being pardoned by Gov. Rick Perry. However, the defense attorney who eventually won Sutton's freedom says he does not believe Owmby engaged in prosecutorial misconduct. "My impression from (the) Sutton (case) was that Owmby was caught as unaware as anyone else," attorney Bob Wicoff said. "It was a mistake created solely by the crime lab." But according to Zimmermann, even if Owmby didn't know about any of the problems with any of the cases, it was his job to know. District Judge Brian Rains, who will hear the motions in the Drew case, last month told the attorneys involved that he would review the accusations against Owmby by affidavits filed by each side. While some of the charges have been denied by the District Attorney's Office in prior appeals of the case, Assistant District Attorney Baldwin Chin, of the DA's appellate division, says he is waiting for written questions for Owmby from the defense lawyers. "I need to know what everybody has to say, and know what everybody wants to know before I can reach any kind of conclusion about anything," Chin said. (source: Houston Chronicle) ************* Ex-Fiesta carny gets stay of execution Tommy Lynn Sells, the serial killer who claims to have more than 20 victims, including a 9-year-old girl abducted during Fiesta, has been granted a stay of execution. Sells had been scheduled to die May 9 for the 1999 murder of 13-year-old Kaylene Harris in Val Verde County. Considered relatively routine, the temporary reprieve issued last week by U.S. District Judge Alia Moses Ludlum of Del Rio merely allows Sells to appeal in federal court. "Everybody gets a stay at this point of the proceeding," said John E. Wright, one of Sells' attorneys. Months before the murder in Del Rio, Sells had been a carnival worker at Fiesta when he encountered 9-year-old Mary Bea Perez. Sells avoided the death penalty for Perez's murder by pleading guilty in exchange for life in prison. (source: San Antonio Express-News) FLORIDA: Man is facing death penalty in Dixie County slaying Bullet fragments extracted from a tree and those taken from a shooting victim's body are expected to figure prominently in this week's trial of a Dixie County man. James K. Lawrence Jr., 46, is facing the possibility of being sentenced to death if convicted of murder for the Oct. 31, 2004, shooting death of Charles E. Carr, 62, of Old Town. Lawrence was indicted on charges of murder while armed and burglary while armed. During opening statements Tuesday morning, State Attorney Jerry Blair gave jurors an overview of what they could expect to hear during the weeklong trial, including that the alleged murder weapon, a 9 mm handgun, has never been found. Blair said he is seeking the death penalty. Carr and his fianc? Judith Osteen, lived next to the furniture store that Carr owned on State Road 349 north of Old Town and near the mobile home park he also operated. At about 2 a.m. on Oct. 31, 2004, a burglar alarm went off inside the store, alerting Carr and Osteen as well as the alarm company in Gainesville and the Dixie County Sheriff's Office that someone may have gotten into the store's office. "Mr. Carr went next door to investigate," Blair told the jury. "That decision cost Mr. Carr his life." Carr's body was found by a Dixie County deputy between the front of the store and the two-lane highway. He died of a single 9 mm gunshot wound to the chest, according to the Medical Examiner's report following an autopsy. Blair told jurors that a Florida Department of Law Enforcement expert was able to match the spent bullet taken from Carr's body with spent bullets removed from a tree that Lawrence was known to use for target practice while using his father's 9 mm handgun. Blair also told jurors that investigators found the nylon holster for the gun behind the seat of Lawrence's truck. Lawrence's attorney, Herb Ellis of Lake City, said jurors should be prepared to hear that Lawrence arrived at the store after Carr had been shot and was quite shocked by the discovery. Ellis also told jurors that the reason the gun used to kill Carr was never found was because the "person who shot Mr. Carr left with that gun and still has it today." Lawrence's trial at the Dixie County Courthouse is expected to last until at least Friday. (source: The Gainesville Sun) NEW YORK: Death penalty is possible in trooper killing The men accused of murdering State Trooper Andrew Sperr could face the federal death penalty. Federal authorities and the Chemung County District Attorney's Office are discussing whether federal charges should be brought against the men accused in the killing of the 33-year-old Sperr, making the case eligible for the death penalty. There has been no firm decision, but there have been talks about a federal prosecution, said First Assistant U.S. Attorney Kathleen Mehltretter. "There is a possibility for a death penalty in the federal court," she said. Sperr, a Greece native, was slain March 1. 3 Chemung County men have been indicted on murder charges in the killing. Authorities allege that Anthony Horton of Elmira fatally shot Sperr after he and 2 other men - brothers Bryan Adams and Wayne Adams - robbed a bank in Big Flats, Chemung County. If the case were to move forward in federal court, Chemung DA John Trice could be appointed as a specially designated federal prosecutor and be part of a prosecution team, Mehltretter said. "They've been doing an absolutely fantastic job (with the prosecution) in Chemung County," she said. Trice could not be reached Tuesday. The case would likely be tried in U.S. District Court in Rochester. Sperr's brother, Bill, said he's aware there have been talks about a federal prosecution. "From my perspective, it's a good thing," he said, noting New York state's death penalty has been found unconstitutional. "Therefore, let's take it federal and get these guys what they deserve," Sperr said. Republican Gov. George Pataki recently renewed a push for the death penalty for cop killers; the Democrat-controlled Assembly has stymied measures that would restore capital punishment. Local activist Clare Regan, a death penalty opponent, said she thinks the U.S. Department of Justice is eager for executions in areas where there is no capital punishment. "Any state that doesn't have the death penalty, if they can work the feds in, they will," she said. But federal executions have been rare. Three people - including Oklahoma City bomber Timothy McVeigh, who grew up in Pendleton, Niagara County - have been executed for federal crimes in the past 5 years. The federal death penalty statute allows for capital punishment for murders committed during a bank robbery. Horton, as the man accused of the fatal shooting, could fall within those legal parameters, while it could be more difficult to seek the death penalty for the Adams brothers. Andrew Sperr shot Bryan Adams 4 times during the shootout. Adams survived. Mehltretter said authorities were discussing whether all 3 of the accused men could be eligible for execution. (source: Rochester Democrat and Chronicle) OHIO: Holdout juror saves murderer from execution----Andre Bell gets life in shooting 1 woman saved Andre Bell's life Tuesday. 11 jurors determined Bell deserved to die for fatally shooting Stephanie Bowling in the fall of 2004, but one juror held out, saying the death penalty wasn't appropriate. As a result, Bell, 34, of Westwood, will spend the rest of his life in prison, with no chance of parole, on a conviction of aggravated murder. Hamilton County Common Pleas Judge Dennis Helmick ordered the sentence Tuesday after the jury deliberated overnight and came back with the life-in-prison recommendation. Helmick also ordered Bell to serve an additional 18-year sentence for attempted aggravated murder for shooting his ex-girlfriend, Casandra Jent, and for illegally having a gun. Bowling was Jent's best friend. "The jury was very diligent in weighing all the evidence," said Bell's attorney, Perry Ancona. "They realized he had an extremely bad childhood." Bell's mother was mentally ill and often left him alone on weekends, Perry said. Hamilton County Prosecutor Joe Deters said Bell's childhood is no excuse. "Hundreds of thousands of people had bad childhoods and they don't go out and kill someone," Deters said. Jent, 21, told the jury Bell was angry because she broke up with him the morning of Oct. 29, 2004. So he waited in a closet of the apartment the two shared, popping out when she came home with Bowling. Bell shot Bowling, a mother of three, four times as she scrambled into a closet for cover. He then turned the gun on Jent, firing a shot into her head. Jent slumped to the ground, pretending to be dead. Bell walked away, but was arrested several months later in Nashville. Jent wasn't in court Tuesday. "I'm glad it's over," said her sister, Elizabeth Stacey. She said she and her family didn't necessarily want a death sentence. "We did want justice and we got that," she said. "He'll spend the rest of his life in jail without hurting anybody else." (source: Cincinnati Enquirer) VIRGINIA: Moussaoui death penalty trial resumes this morning The death penalty trial for confessed al-Qaida member Zacarias Moussaoui resumes this morning in federal court in Alexandria, Virginia. In testimony yesterday, an FBI terrorism supervisor defended not taking concerns of a field agent more seriously, saying they were only "hunches and suppositions." The agent who arrested Moussaoui 4 weeks before 9/11 testified earlier that he warned headquarters from the outset that he thought Moussaoui was part of a plot to hijack airliners. Prosecutors, arguing for the death penalty, are trying to show that if Moussaoui had talked, officials might have been able to prevent the attacks or at least minimize them. (source: Associated Press)
