[Deathpenalty] death penalty news-----CALIF., N.C., MD./USA

[Rick Halperin]

March 29


CALIFORNIA:

JUDGE TO RULE ON IF MEDIA WILL BE ALLOWED IN SAN QUENTIN HEARING


In San Jose, a federal judge said he would rule before noon today on
whether or not members of the media will be allowed to witness a court
hearing scheduled for Thursday inside the execution chamber at San
Quentin.

The hearing is part of condemned killer Michael Morales' challenge to the
constitutionality of the death penalty that has temporarily halted
execution in California since February.

U.S. District Court Judge Jeremy Fogel indicated that the media has
presented a strong case for why they should be able to witness the
hearing.

"The news organization's have articulated a strong First Amendment
interest in being able to observe all aspects of the tour tomorrow," Fogel
said.

The attorney for the California Attorney General's office raised 2
objections to the media's presence at the hearing: first that there is not
enough room for more than the 12 people already scheduled to attend the
hearing and 2nd that a reporter might identify the member of the San
Quentin execution team that will be testifying at the hearing.

"We're still very uncomfortable ... with having their identity exposed,"
Assistant Attorney General Dane Gillette said.

(source: Bay City News)

*****************

As testimony begins in liquor store owner's slaying, prosecutors seeking
capital punishment may face an uphill battle.


Confessed killer Omar Dent III, who spent nearly 15 years on death row in
the killing of a liquor store owner, is fighting for his life for a 2nd
time in a Torrance courtroom.

The tedious but crucial process of picking a jury for Dent's capital
murder case concluded this week after more than a month, and testimony
began Tuesday in his retrial.

Dent was convicted in 1991 of murdering a Hawthorne liquor store owner,
Byung Jin Kim, outside a Lawndale bank, and the attempted murder of
off-duty police officer August Cardino, who intervened and was shot by
Dent.

The state Supreme Court, however, reversed Dent's conviction and death
sentence in 2003, finding the trial judge erred by prohibiting Dent from
representing himself at trial.

If experts and statistics are to be believed, securing a 2nd death
sentence for the 43-year-old Dent should be a difficult endeavor for
prosecutors.

They must deal with evidence that has grown stale, a bolstered defense
case that has learned from mistakes in the first trial and, perhaps most
importantly, a drop in the formerly solid popular support for the death
penalty in California, legal experts say.

"The juries seem to be just a little bit more cautious, certainly, about
exercising their prerogative and finding for death," said former
California Attorney General John Van de Kamp.

Van de Kamp and others cite a recent Field Poll that found that 63 % of
Californians support keeping the death penalty, with 32 % opposed. In 1985
and 1986, the same poll found about 83 % of the public supported capital
punishment laws.

Not only has California's latest execution been on hold indefinitely over
the issue of anesthesia for condemned killers, but the public's confidence
in the death penalty's integrity has diminished, especially since more
than 100 death verdicts have been overturned in recent years when
convicted killers were found innocent.

"There is a lot of press about exonerations and plays and television
specials and I think it's causing people to pause and wonder whether the
system is as accurate as it purports to be," said University of San
Francisco School of Law Professor Steven F. Shatz.

As a general rule, the experts say securing a death verdict on a retrial
is more difficult.

A 2000 study by a Columbia University School of Law professor found that
82 % of people whose capital judgments were overturned by state high
courts did not get the death penalty on retrial. In addition, 7 % were
found to be not guilty of the underlying crime, according to the report.

Dent's attorneys feel their client should never have faced the death
penalty in the 1st place.

"This would not normally be a death case by most standards," public
defender Kelly Buck said, adding that most of those on California's death
row have longer, more violent criminal histories and have committed more
egregious crimes than Dent.

"If this crime had happened in 2003 instead of 1988, then we wouldn't be
engaging in all this work that we're doing because Mr. Dent would have
pleaded guilty, accepted responsibility and spent his life in prison,"
Haig said.

Dent is accused of the 1st-degree murder with the special circumstance of
killing during a robbery for the death of Kim, 40, outside California
First National Bank on Aug. 19, 1988.

Kim left the bank with $800,000, which was to be used to cash his
customers' paychecks. But as he got into his van, Dent allegedly fired 3
shots from his .357-caliber Magnum through the vehicle's window.

Dent allegedly pushed Kim's lifeless body to the van's floor and sped
away. Later, he pushed the body from the van.

A former New Jersey police officer confronted Dent in the Leuzinger High
School parking lot, and Dent allegedly shot him, too, but he survived.
Cardino testified against Dent at his 1st trial, but passed away recently
from natural causes. On Tuesday, jurors heard his testimony read from
transcripts of the first trial.

The jurors know Dent was previously tried and sentenced to death, they
just don't know why his case has returned, nor are they allowed to
consider it in their deliberations.

Defense attorneys say prosecutors have not been willing to back down from
the death penalty, even for life in prison without the possibility of
parole.

Deputy District Attorney Lisette Suder would only say: "We have reviewed
all the evidence and still believe defendant Dent's conduct is deserving
of the death penalty."

Statewide figures aside, there appears to be solid support for capital
punishment in the Torrance Courthouse. Potential jurors questioned in
Dent's case have showed a strong belief that death is the best punishment
for murder.

Approximately 1,000 potential jurors were called to Judge William
Hollingsworth's courtroom for the retrial. Of those, about 250 filled out
23-page questionnaires that probed their views on the death penalty and
the justice system in general, as well as their backgrounds in such things
as psychology, weapons use, military experience and employment.

They were then brought in for one-on-one questioning by the attorneys, and
the majority were dismissed because of their strong beliefs in favor of
capital punishment.

One potential juror, who was excused, said she believes there are too many
people on death row. "I think there should be more executions," she said,
adding that, in her mind, anyone who commits murder should get the death
penalty.

Even when the prosecutor pressed her to consider if she would ever vote
for the only other possibility in this case -- life without the
possibility of parole -- the woman replied: "I'd have to say no."

Moments later, a 19-year-old woman who said she hadn't given much thought
to the capital punishment issue offered that a guilty murderer "deserves
what he deserves to get."

"If he's cruel and mean and has no heart, then he should get the death
penalty," the woman said. Later, though, the woman said she's not sure
she'd "have the guts" to impose it.

The woman, who was kept in the pool for further questioning, said her
decision would depend on how the defendant grew up and became a killer.

If Dent is convicted of murder and the trial reaches a penalty phase, his
troubled childhood will take center stage as his attorneys argue his life
should be spared and prosecutors try to prove he remains a malignant mole
on society that deserves to be excised.

While the facts of the murder case remain relatively the same, jurors
hearing the retrial, compared with those who recommended Dent be executed
in 1991, will be presented a much longer, more detailed defense case
during the penalty phase, Dent's attorneys say.

At Dent's first penalty trial, the defense presented its case in about
half a day. Deputy Alternate Public Defenders Jerome Haig and Buck said in
a recent interview they expect it will take a month to show the jury why
they think Dent's life should be spared.

"They're going to hear about the circumstances in which he was raised,"
Buck said, noting that Dent was born to a criminal father and an
alcoholic, abusive mother who had more children than she could care for.

"That's the beginning for him and it got much worse," Buck said.

(source: Daily Breeze)

**************

Community Paid For Costly Case


After countless man-hours and lots of money putting Scott Peterson on
death row, Stanislaus County and the city of Modesto are finally getting
some financial help from that case.

On Tuesday, State Controller Steve Westly handed County Auditor Larry
Haugh a check for $1.2 million dollars. The money is a state reimbursement
for costs incurred during the 6 month Scott Peterson murder trial. The
city and county had asked for more than $3 million dollars. "We have 270
officers, in essence at times probably 1/3 or more of the department, was
working on this investigation," said Modesto Police Chief Roy Wasden.

Controller Westly says there's a reimbursement formula for city and county
governments, but they don't usually kick in this much money. He said
Stanislaus got such a large amount because the Peterson trial put
unprecedented burdens on the police and courts. Even then, it took a
number of legislative bills to get final approval for the payment. "We
used 3 separate Senate bills, a couple of Assembly bills, put language
into 2 different budgets under 2 different governors," said State Senator
Jeff Denham.

Laci's mother, Sharon Rocha says the whole process, on top of everything
she went through, is personally overwhelming. "Going through it yourself
you realize you don't have a clue what they're really going through. It's
beyond what you can even imagine."

(source: KTXL News)






NORTH CAROLINA:

Murder trial's key witness says he lied----Man says prosecutors knew deals


The key witness in a 1996 murder trial now says he made up testimony that
helped convict his cousin of killing a Union County jewelry store owner.

The witness, Johnell Porter, also told the Observer that former Union
prosecutors Ken Honeycutt and Scott Brewer were present when he was
promised favors in exchange for his testimony.

The N.C. State Bar alleges Honeycutt and Brewer knew of those deals but
failed to tell the trial judge and Jonathan Gregory Hoffman's defense
team.

After reviewing the state bar's findings, Union District Attorney Michael
Parker is expected to decide in coming weeks whether to charge Honeycutt
and Brewer with crimes.

The deals Porter received in exchange for his testimony did not become
public until 2004. By that time, Hoffman had been on death row for 7 1/2
years for the robbery and shooting death of Marshville jeweler Danny Cook.
Based on the disclosure of those deals, he won a new trial, set for
October.

In an interview Monday, Porter said a Sunday Observer article on the case
prompted him to "come forward" with more details.

On the stand in 1996, he testified that Hoffman confessed to robbing the
jewelry store and killing Cook.

Porter now says he lied to get even with his cousin.

After the 2 were indicted on charges of robbing a Huntersville bank,
Porter said, he grew suspicious that his cousin was working with federal
authorities to convict him. Around the same time, he said, his cousin
stole $18,000 from him. (In court, Porter testified the amount was closer
to $6,000.)

Porter told the jury Hoffman confessed to the murder while the 2 were in
the same Mecklenburg County jail cellblock on the bank robbery charges.

"Jonathan Hoffman never told me nothing," Porter said Monday. "I
improvised the story because he had snitched on me and robbed me ... The
opportunity came for me to get him back."

Following Hoffman's trial, Union County prosecutors said they likely could
not have convicted Hoffman of murder without Porter's testimony.

In exchange for that testimony, Porter received several concessions: a
reduced sentence in the bank robbery case, reward money and federal
immunity in other crimes. Porter was released in September from S.C.
prison.

Honeycutt and Brewer have said they were unaware of Porter's deals, other
than a promise they made to put in a good word for him when he was
sentenced on a bank robbery charge. That deal was discussed several times
in court. They said a federal prosecutor arranged the other deals with
Porter's attorney and didn't tell them.

Honeycutt and Brewer have denied wrongdoing. Their attorneys did not
return calls Tuesday.

In Monday's interview, Porter said Honeycutt and Brewer discussed the
pending deals with him in the Mecklenburg jail. Porter's former attorney,
Aaron Michel, has said in an affidavit that he, too, was at the meeting
when Honeycutt discussed the deals. Brewer was there as well, the
affidavit states.

Jail logs show that Honeycutt and Brewer frequently visited Porter in
1996, but the men have denied discussing deals beyond the promise of a
good word at his bank robbery sentencing.

The N.C. bar says it has evidence the men committed obstruction of justice
and subornation of perjury.

On Tuesday, the National Association of Criminal Defense Lawyers urged
Parker to recuse himself from investigating the former Union prosecutors.
Parker once worked as Honeycutt's chief assistant when Honeycutt was Union
County's DA. Honeycutt also recommended Parker as his successor when he
retired in 2004.

The N.C. Academy of Trial Lawyers also has asked Parker to step aside in
the case.

The association said Parker should call for a special prosecutor to decide
if Honeycutt or Brewer broke the law.

"Given your personal relationships with the 2 individuals whom you are
investigating, you simply cannot exercise the detached decision-making
demanded of a fair prosecutor," the association said in the letter.

The Washington, D.C.-based association said Parker should not be
investigating conduct related to a case his office will retry.

The association also noted that Brewer, now a district judge, routinely
hears cases argued by Parker's staff.

Honeycutt and Brewer also deserve to have "someone who is independent"
decide their case so that the outcome is "viewed as legitimate and not
mere favoritism," the association wrote.

Parker declined comment Tuesday. He has said he intends to be thorough and
fair.

******************

Text of letter from lawyers group


This is the text of a letter sent Tuesday from the National Association of
Criminal Defense Lawyers to Union County DA Michael Parker.

Re: Investigation into actions of Kenneth Honeycutt and Scott Brewer

Dear Mr. Parker:

The National Association of Criminal Defense Lawyers (NACDL) seeks to
insure fairness in the administration of the criminal justice system
nationwide. Through NACDL's Law Enforcement and Prosecutorial Misconduct
Committee, it has come to our attention that you have personally
undertaken to investigate the allegations of felonious conduct by former
District Attorney Kenneth Honeycutt and District Court Judge Scott Brewer
arising out of their actions as prosecutors in the case of State v.
Jonathan Hoffman. Both former prosecutors have been accused by the N.C.
State Bar of withholding exculpatory information and committing acts
which, if proved, would constitute the crimes of felony obstruction of
justice and subornation of perjury. Because of the actions of Mr.
Honeycutt and Judge Brewer, Mr. Hoffman's conviction has been set aside
and he awaits a now trial.

We write to urge you to recuse yourself from any further review of the
actions of Mr. Honeycutt and Judge Brewer. The conflicts of interest which
stem from such an investigation are numerous and only serve to heighten
concern that the Hoffinan matter will ever be treated in conformity with
traditional notions of fairness. Some of the most apparent conflicts arise
from the fact that you served as the Chief Assistant District Attorney to
Kenneth Honeycutt and that you were employed as such when Mr. Hoffman was
wrongfully convicted and sentenced to death. Moreover, Mr. Honeycutt
recommended you for your current position, and you and your staff continue
to regularly appear before Judge Brewer in District Court.

Given your personal relationships with the two individuals whom you are
investigating, you simply cannot exercise the detached decision-making
demanded of a fair prosecutor. The public bas a right to expect that a
neutral prosecutor will fairly exercise prosecutorial discretion both when
conducting this investigation and then deciding whether or not to
prosecute. Moreover, Mr. Honeycutt and Judge Brewer also deserve to have
this decision made by someone who is independent so that if a decision is
made not to prosecute, it is viewed as legitimate and not mere favoritism.
Finally, the public has a right to expect that these men will be
prosecuted if an independent prosecutor concludes that their conduct
warrants it. Any careful prosecutor would have this matter investigated by
special counsel independent of your office.

Additionally, how can your office continue to handle cases in front of
Judge Brewer while he is being investigated by you? Does this not create
issues for every defendant your office prosecutes before Judge Brewer
during the pendency of this investigation? Certainly, an argument could be
made that a judge who is being investigated by your office would be
inclined to treat prosecutors from your office favorably to curry favor in
the hopes of not being prosecuted. That is all the more reason why you
should not be investigating these charges.

Compounding the obvious conflicts noted above, is the fact that you have
undertaken, yet again, to seek a sentence of death against Jonathan
Hoffman. The results of any investigation into the conduct of the two
former prosecutors whose actions stripped Hoffman of a fair trial raise
the immediate specter that Mr. Hoffman's retrial is already tainted. When
a prosecutor, who is re-prosecuting a capital defendant, is also
investigating misconduct by two former prosecutors for their actions in
the defendant's first flawed trial, the misconduct investigation will
almost certainly have a direct impact on the capital case.

It is unseemly for a district attorney to investigate his own office's
misconduct regarding a case that his office is currently prosecuting. This
is particularly true when there is a chance that the misconduct which
infected the original trial may be criminal in nature. The system of
recusal, as well as the concept behind the code of professional
responsibility, not only protects the public, but also protects the
institution of the law and how it is viewed by the public. Investigating
the misconduct of your own office creates an unavoidable conflict with the
principles of an open system above reproach and subjects the system to the
appearance of misconduct.

Further, as prosecutor in the capital case, if and when you uncover
misconduct by your office, you would have a duty under Kyles v. Whitley,
514 U.S. 419 (1995), to make it known to the defense. Under this set of
circumstances, you and other staff members may become witnesses in the
capital case. The effect obviously would be to delay the retrial due to an
obvious, direct conflict. Where there is an implicit conflict, as is
clearly present here, the appropriate course to promote respect for the
law and the criminal justice system, and to ensure a fair trial for
Jonathan Hoffman, is to step aside from the investigation of your former
colleagues.

As a long time member of the Bar of North Carolina, we assume that you are
familiar with the Revised Rules of Professional Conduct and the degree to
which those rules address the problem of conflicting interests. While you
are purporting to review the alleged criminal misconduct of Kenneth
Honeycutt and Scott Brewer, you do so under a cloud of impropriety due to
the conflicts cited above.

We hereby request that you refer the investigation and potential
prosecution of Kenneth Honeycutt and Scott Brewer to a special prosecutor
or other official with whom there would be no appearance of conflict or
impropriety.

Sincerely,

Barbara Bergman

President, NACDL

CC: Calvin E. Murphy

President. North Carolina State Bar

Clifford P. Britt

President, North Carolina Academy of Trial Lawyers

Mike Klinkosum

Chair, North Carolina Academy of Trial Lawyers Criminal Defense Section

(source for both: Charlotte Observer)






MARYLAND/USA:

Time Out -- Change To Patriot Act Could Shorten Death-Row Inmates' Time To
Appeal Cases


The 5 current residents of Marylands death row probably don't pay much
attention to the actions of members of Congress down the road in
Washington. But earlier this month, when President Bush signed into law
the reauthorized version of the anti-terrorism USA Patriot Act, some of
them may have - at the stroke of a pen - moved at least 6 months closer to
execution.

Thats because of a little-noticed provision in the act aimed at speeding
up the procedure through which death-row inmates appeal their cases in
federal courts - a process known as habeas corpus.

Defense lawyers and most state judges - including the national Conference
of Chief Justices, of which Maryland Chief Judge Robert M. Bell is
president-elect - opposed the measure.

The new law isn't good news for those death-row inmates languishing in
their cells at Baltimores bleak Supermax facility on East Madison Street,
though at first glance, it doesn't appear that the provision will change
much. The legislation amends a 10-year-old system for expedited appeals in
federal courts - a system that never took off because, for a state to be
allowed to expedite an appeal, federal judges had to rule that the state
could provide competent defense lawyers. Only Arizona met that burden;
many states never made much attempt to apply.

Congress has now decided that the U.S. attorney general, rather than a
federal judge, should make the decision as to whether a state has provided
a defendant a competent defense lawyer. Critics of the change say this
puts the decision in the hands of a prosecutor, current Attorney General
Alberto Gonzales, who is likely to favor execution. A judge, on the other
hand, would be a neutral arbiter.

"Presumably it will be easier" for states to join the expedited-hearing
process, says Richard Dieter, executive director of the Death Penalty
Information Center, a Washington-based organization opposed to capital
punishment. Dieter predicts that the Patriot Act provision will have "a
speeding-up affect on a lot of cases" around the country.

If a state joins the expedited-hearing schedule, lawyers deadlines to file
motions are shorter, reduced to 180 days from a year. Another provision in
the act redefines the point at which a case is considered pending in
federal court, which controls when a judge can issue a stay. Under current
law, a federal court can issue a stay even when a petition for a stay has
not yet been filed. But under the changed law, a petition is only
considered pending after it has been filed (unless the inmate does not
have a lawyer).

Gary E. Bair, a criminal defense lawyer who used to head the criminal
appeals division of the Maryland Office of the Attorney General most
recently in 2004, believes the new system could cut about six months off
the average death-row case.

"Maybe the average time for Maryland cases is now eight to 10 years, and
perhaps it will decrease to 7.5 to 9.5 years," he says in an e-mail
regarding the matter. Bair is not working on any capital cases at the
moment, although his law partner, Fred Warren Bennett, represents
death-row inmate Jody Miles.

Prosecutors who favor the death penalty have welcomed the change to the
appeals law. They say that their opponents - the defendants' lawyers -
often wait until the last minute to meet court deadlines. And if a
particular judge is so inclined, he or she may push deadlines for filings
back for years, according to Stephen Bailey, deputy states attorney in
Baltimore County, the Maryland jurisdiction most likely to seek the death
penalty.

"Our arguments have come with defense counsel who have no interest in
moving the matter forward in a timely fashion, who game the system," he
says. Bailey understands why defense lawyers try to draw out the process,
but he says the pending Patriot Act provision will take the issue out of
their hands. "In individual cases it certainly could move the process
forward," he says of the change to the law.

The good news for those currently on Maryland's death row is that these
changes aren't likely to take place anytime soon. The law may face legal
challenges around the country, and Maryland has to formally apply to "opt
in" to qualify for the expedited appeals process.

There is no word yet from state Attorney General J. Joseph Curran Jr., who
has voiced his opposition to the death penalty in the past, as to whether
Maryland will apply to act under the changed law. Kevin Enright, spokesman
for Curran's office, says the state is still studying the new law and has
not yet reached a conclusion about whether it should apply here.

Vernon Evans, the death-row inmate closest to execution, would not be
affected if the state does opt in to the new law because he has already
exhausted nearly all of his appeals. Evans was convicted of murdering
Susan Kennedy and her sister's husband, David Scott Piechowicz, in April
1983 in the lobby of the Warren House Motor Hotel in Pikesville. Fellow
death-row inmate Anthony Grandison was sentenced to death for hiring Evans
to commit the crime.

One candidate for execution who would be affected by the revised law is
Lawrence Borchardt. He is technically not on death row because he is being
resentenced after winning an appeal last year. But if his death sentence
is reinstated following yet another appeal, the new time lines may apply,
Bailey says.

Borchardt, who was a long-term heroin addict, stabbed an elderly couple to
death in their home in eastern Baltimore County on Thanksgiving Day 1998.

The remaining inmates on Marylands death row are Miles, convicted in
Wicomico County, John Booth, convicted in Baltimore City, and Heath Burch,
convicted in Prince Georges County. The last man to be executed in
Maryland was Wesley Baker last December.

As Dieter notes, the intense scrutiny of Marylands death-penalty statute
by the courts means that most defense attorneys will - at the moment, at
least - be more interested in Evans last-ditch appeal than the changes to
the Patriot Act.

The Maryland Court of Appeals is set to consider Evans' fate in May in a
case that could affect all capital cases, as it raises issues concerning
the legality of lethal injection and also alleges racial bias in the way
the death penalty is implemented. If the court rules against Evans, and he
is subsequently executed, similar cases that are at present stalled will
then start wending their way through the federal courts, Dieter says.

After that, defense attorneys may start worrying about the Patriot Act.

"In the short term, nothing is imminent," says Dieter. "But it will have a
big affect on all states, including Maryland."

(source: Baltimore City Paper)