[Deathpenalty] death penalty news----TEXAS, FLA., WASH., N.C., LA.

[Rick Halperin]

Dec. 1



TEXAS:

Dallas County DA re-examines murder probation----Action follows report
Dallas County led Texas in plea deals that let killers walk free


The Dallas County district attorney's office has decided to review dozens
of plea bargains in which prosecutors agreed to release killers on
probation.

The move follows a Dallas Morning News investigation last month that
showed Dallas County led Texas  the nation's death penalty capital  in
granting probation as a punishment for murder from 2000 through 2006.

9 % of all Dallas County murder sentences resulted in probation, meaning
at least 47 killers were set free. That was twice the number that the
county sent to death row during the same time.

And it was more than double the rate of Harris County, which had the
state's 2nd-highest number of probation-for-murder cases.

District Attorney Craig Watkins and his top assistant, Terri Moore, said 2
veteran prosecutors will re-examine the probation-for-murder plea deals,
many of which were made despite strong evidence against the killer.

"I don't want to be so arrogant," Ms. Moore said, "that I've got a closed
mind and say, 'Well, whatever we decided, it must have been right.' If
somebody calls something into question, then let's stop and review it, and
make sure we're taking the proper course."

The review is expected to begin in January, and prosecutors will then make
recommendations to the district attorney and his aides.

Mr. Watkins said he isn't sure what might result from the review. But 2
types of cases identified by The News caught his attention.

First were killers who were "clearly guilty," he said, but got probation
because of their age, health or gender. Prosecutors made deals either
because they feared juries might find the killers sympathetic and go easy
on them or because they didn't want to see them imprisoned.

"To rectify that," Mr. Watkins said, his office will check for any rules
that were violated that could provide grounds to seek revocation of the
killers' probations.

There were also a smaller number of cases in which prosecutors pursued
murder charges despite strong self-defense arguments or tenuous evidence.
Some defendants told The News that they accepted plea bargains because
they were afraid of being convicted and viewed probation as a "get out of
jail" card.

Mr. Watkins said his office could request early releases for such
defendants, whose probation typically runs 10 years. Doing so  under the
type of probation they were given, known as deferred adjudication  would
mean the murder convictions wouldn't appear on their criminal records.

Some cases also could be sent to the conviction integrity unit for further
review, officials said. That is the unit Mr. Watkins created after taking
office this year to investigate whether DNA evidence could exonerate some
inmates. Mr. Watkins has made credibility and public confidence key themes
of his administration.

"A lot of folks just look at that unit as dealing with DNA
[exonerations]," he said. "But it deals with all these convictions that we
should have gotten or that we shouldn't have gotten. We have to go back
and fix that."

Dallas County leads the nation in the number of convictions overturned on
DNA reviews.

Robert Schuwerk, who helped write the rules that govern Texas lawyers,
said Mr. Watkins' decision is a "very encouraging sign and consistent with
the district attorney's ethical responsibility to undertake this kind of
review."

Mr. Schuwerk was one of a half-dozen legal experts from around the country
who reviewed cases The News identified. All questioned the reliance on
probation-for-murder deals, saying they endangered public safety and
risked punishing innocent people.

"You really need to make an effort to find out why these things happened
and not just whether it was just or unjust," said Mr. Schuwerk, who
teaches legal ethics at the University of Houston Law Center, "and then to
evaluate whatever systems are in place in the office now to see whether or
not any defects that the DA notices can be prevented in future cases."

News of the review encouraged the defense attorney for a 17-year-old who
said she killed her ex-boyfriend in self-defense.

The 34-year-old ex-boyfriend, who had an extensive criminal record,
attacked Jacqueline Fox in 2000, hitting her repeatedly with a 2-by-4 so
forcefully that it broke, records show.

Ms. Fox said she didn't believe stabbing him twice with a kitchen knife
was murder. But she said she agreed to a plea deal for probation after
spending 4  months in jail awaiting trial and out of fear of prison.

"I think it's a promising sign," said her attorney, Clark Birdsall, a
former prosecutor. "I think it's consistent with everything you see from
Craig Watkins. In my opinion, Craig is trying to undo the sins of others."

In many states, probation is a rare or even impossible sentence for
murder. But The News found that it happened in Texas at least 120 times
from 2000 through 2006.

Legal loopholes made probation available even for killers with violent
criminal histories  including previous murders. One such case in Dallas
involved 71-year-old Eddie Mae Dudley, whose prosecutor termed her a
"little sweet old lady." The prosecutor was unaware of her past killing
but told The News that it wouldn't have changed his decision to offer
probation.

Most of Dallas County's probation sentences for murder came about through
deals offered by prosecutors. Juries made most of the other decisions.
Under a new state law, juries will no longer be able to offer probation
for murder.

Once freed, some killers violated their probations repeatedly with few
consequences, based on The News' review of probation supervision records.
Several committed new crimes, such as dealing drugs and illegally carrying
weapons. 3 hurt innocent people while free.

Mr. Watkins said some of the violators who remain free could fall under
the district attorney's review. However, any decision to punish such
killers with prison would be made by judges, who, The News found, often
view probation as an opportunity for reform.

Killers on probation need to understand there is a consequence for
violations, Mr. Watkins said. "Obviously, just based on your article, a
lot of those folks don't understand that," he said, "and so we have to do
something about that."

(source: Dallas Morning News)






FLORIDA:

Killer May Become Florida's Only Woman Facing Death Sentance


There are 386 inmates sentenced to death in Florida -- all of them men.

That could change after nine of 12 members of a Duval County jury on
Thursday voted to recommend the death penalty for Tiffany Cole -- 1 of 4
people convicted of kidnapping, armed robbery and burying alive a St.
Nicholas couple 2 years ago.

If Judge Michael Weatherby agrees, Cole, 25, will go from the Duval County
jail to Florida's death row. She would be in her cell 24 hours a day, 7
days a week -- allowed out only twice a week for showers.

Both the prosecution and defense agreed that gender was not a factor in
Cole's trial.

"The reality is, I think law-abiding citizens understand that if you break
the law, then there are consequences for your behavior," Assistant State
Attorney Jay Plotkin said. "That doesn't matter if you're a woman or a
man, and I think that's what happened in this case."

Cole's attorney told Channel 4's Dan Leveton the fact that there were 10
women on the jury, and only two men, didn't matter, and he didn't
necessarily want it to.

"I don't think gender was an issue," defense attorney Quenlin Till said.
"You don't want to play the gender card. Everybody now is expected to be
treated equally. You won't hear me argue, 'Well, she's a female, so let's
go a little easier on her.'"

According to the Death Penalty Information Center, of about 3,300 convicts
currently on death rows around the country, only 49 of them are women.
Since the center began tracking executions in 1976, of 1,100 people put to
death in the United States, just 11 were women.

2 of those executions were in Florida: Judy Buenoano in 1998 for murdering
her husband, and the highly-publicized case of Alieen Wuornos in 2002. The
story of Wuornos, a prostitute who admitted she was a serial killer, was
told in the 2003 movie titled "Monster."

Andrea Hicks Jackson, a woman sentenced to death for killing Jacksonville
police Officer Gary Bevel in 1983, had her sentence commuted to life in
prison after a series of appeals.

Tiffany Cole will not likely be sentenced until early next year.

(source: News4jax.com)






WASHINGTON (state):

Man loses appeal of death sentence----State Supreme Court says defense was
adequate


The only Whatcom County resident to be sentenced to death under the modern
court system had his appeal denied by the Washington State Supreme Court
last week.

Clark Richard Elmore, 55, pleaded guilty in 1995 to aggravated 1st-degree
murder for the brutal rape and killing of Kristy Lynn Ohnstad, the 14-
year-old daughter of his girlfriend at the time.

Elmore argued in his appeal that the team of public defenders that
represented him during the penalty phase of the trial, including local
attorney Douglas Hyldahl and Jon Komorowski, current director of the
countys public defender's office, did not do an adequate job. The state
Supreme Court turned down a previous appeal in 1999.

In an 8-to-1 decision, the court ruled that Elmores defense team acted
reasonably in the case.

Komorowski said if the court turns down a motion to reconsider the case,
Elmore will have exhausted his appeals in the state court system but could
still appeal in the federal system.

"We'd love to see this done quickly," Whatcom County Prosecutor Dave
McEachran said of the 11 years of appeals of the sentence. "But nothing
about this case has been fast."

While driving Kristy to Fairhaven Middle School, Elmore stopped in the
woods near Lake Samish. He raped and strangled the girl, beat her head
with a sledge hammer and left her body. The killing apparently happened
after Kristy threatened to tell police that Elmore had molested her when
she was 5.

When Kristy was reported missing, Elmore spearheaded the search for her
and criticized Bellingham police for not taking the search seriously. He
fled the area for Oregon once he realized investigators would find the
body. He returned shortly after and admitted to the crime.

McEachran pushed for the death penalty in the case, and 12 county
residents sitting on the jury agreed that Elmore should die for his
crimes.

"It was just heinous," McEachran said of the case. "I can remember talking
to the officers (at the crime scene.) We've worked on who knows how many
homicides  this was a category that absolutely warranted the death
penalty."

In the appeal, Elmore claimed that his defense team had erred in several
ways during the penalty phase of the trial, including:

Failing to properly investigate Elmore's possible mentalhealth issues,
including the fact that he had suffered "numerous serious head injuries
throughout his life" and exposure to Agent Orange in Vietnam.

In a 40-page opinion, Justice Barbara A. Madsen wrote that there was no
indication that Elmore had been suffering from severe mental-health
issues.

Not attempting to seek a plea bargain that would spare Elmore's life.

Madsen wrote that McEachran had indicated that he would not consider a
plea bargain, so it didn't matter that the defense team did not attempt to
cut a deal.

Failing to call enough witnesses to testify to Elmore's remorse over the
crime.

Madsen wrote that Elmore's defense team called several witnesses who spoke
of his remorse and desire to take responsibility for the crime, and any
additional witnesses would not have added to the defense's case.

McEachran said he is preparing a motion that will argue for the case to be
expedited, which would make the federal courts less likely to hear
Elmore's case. McEachran said approximately $240,000 has been spent on
appealing the case in the state court system.

McEachran said the decision to seek the "ultimate penalty" was not one he
took lightly, and only came after lengthy meetings with his staff and law
enforcement involved in the case.

"I feel (the death penalty) should be used very sparingly," he said.

McEachran has sought the death penalty in only one other case  the 1979
arrest of Kenneth Bianchi, the "Hillside Strangler," who admitted to
killing 2 Western Washington University students. Bianchi pleaded guilty
to those murders and 5 more in Los Angeles in exchange for life in prison
and his testimony against an accomplice.

(source: The Bellingham Herald)






NORTH CAROLINA:

Victim's Family Furious as Ex-Death Row Inmate Nears Parole


A man once sentenced to die for an Onslow County slaying was released on a
weekend leave in Raleigh Friday night and is scheduled to be paroled next
month.

Jon Lee Benson shot and robbed restaurant manager Melvin LaVecchia in
August 1985 as LaVecchia made a night deposit at a Jacksonville bank.
Benson was convicted of 1st-degree murder and was sentenced to die.

The state Supreme Court vacated the death sentence in 1988, saying the
sentence didn't fall into line with similar cases. Benson's sentence was
reduced to life in prison.

"We figured he would be in jail for life," said LaVecchia's son, Larry
LaVecchia.

But before North Carolina introduced structured sentencing in 1994, life
sentences rarely meant prisoners spent their lives behind bars.

After spending 22 years in prison, Benson is scheduled to be paroled on
Dec. 21 after participating in a program that transitions inmates from
prison to work release to freedom.

Mary Harrop with the parole commission said Benson was allowed into the
program 2 years ago because of his good behavior in prison.

About 500 inmates, most of them serving life sentences, participate in the
early-release program, according to Harrop.

Benson is serving the end of his sentence at Wake Correctional Center in
Raleigh. He also has gotten married during his incarceration. Benson says
prison made him a much different person than the one who shot and killed
Melvin LaVecchia 22 years ago.

"It doesn't matter if you spend a day in here, it changes you," Benson
said. "But it hasn't changed me for the worst. If anything, it's changed
me for the better because I've seen the worst that humanity has. And so
now, I don't want to be like that."

Benson worked for LaVecchia at the Po Folks restaurant in Jacksonville.
One summer night in 1985, he waited for LaVecchia to make his nightly bank
deposit. When he did, Benson was there to rob him.

He shot him in the legs with a 12-gauge shotgun, severing a major artery.
LaVecchia died at the hospital, and Benson took off with $757 in cash.

"I wasn't trying to kill him," Benson said. "If I was trying to kill him,
naturally a person's going to shoot him in the  an area of the body where
you're going to kill the person. It's just unfortunate thats what
happened."

LaVecchia's family is furious about Benson's pending release.

"A convicted murderer getting out? I mean, they say you play this game,
you pass the test, you get out. This just isn't right," Larry LaVecchia
said.

Family members also are upset that they were never notified that Benson
was up for parole.

"They basically said since we didn't register online they had no way to
notify us," Larry LaVecchia said. "But yet the information was given to
them in 1986 when there was no Internet."

(source: WRAL News)






LOUISIANA:

Court to review racial element in picking jury


Jefferson Parish, long a nearby cousin to New Orleans, takes pride in
being different, a law-and-order antidote to the crime and chaos that has
often gripped this city.

The Crescent City Connection bridge was famously blocked by police in the
days after Hurricane Katrina to prevent, many said, the city's
impoverished and angry African-American evacuees from spilling from the
flooded ruins over to the majority-white parish on the other side.

Jefferson Parish was the place that gave birth to the political career of
ex-Klansman David Duke. Few parishes in Louisiana embrace the death
penalty with the fervor of Jefferson. Critics charge that for its
prosecutors, simply gaining a conviction often isn't good enough and that
going the extra mile sometimes includes keeping as many black people off
juries as possible.

The accusation of race-based jury selection will be aired before the U.S.
Supreme Court this week in a case involving a former Jefferson Parish
prosecutor who once kept a toy electric chair on his desk. A lawsuit filed
by a Death Row inmate, Allen Snyder, alleges the prosecutor struck all the
African-Americans from the jury in his case in order to encourage the
white jury to do some racial score-settling in the days after the
world-famous O.J. Simpson trial.

This won't be the 1st time the justices have addressed the issue of
racially motivated jury strikes. The court first condemned the practice
more than 40 years ago, ruling that striking a juror because of his race
is unconstitutional. But that wasn't the end of the matter. The issue in
Snyder vs. Louisiana is the kind of evidence a court can examine in trying
to determine the prosecutor's overall motive for striking jurors.

Snyder contends the desire to compare his case to Simpson's is proof that
prosecutors intentionally kept blacks from the jury. Some court watchers
believe the Supreme Court might have taken the case because of the
provocative Simpson angle, perhaps looking to make a point about whether
such comparisons prejudice other African-American defendants.

The question in Snyder's case was always whether he would be put to death.
There was never much doubt about his guilt. His lawyers on appeal have
made that clear in their brief to the court. No one doubts that in the
summer of 1995, a jealous Snyder repeatedly stabbed his estranged wife and
her late-night paramour, killing the man, Howard Wilson. After the attack,
Snyder retreated to his house, barricaded himself inside and called
police, threatening suicide. He eventually confessed.

Almost immediately upon Snyder's arrest, an assistant district attorney
for Jefferson Parish, James Williams, told local media he had his "O.J.
Simpson case." Snyder's lawyers from the public defender service tried to
get the judge to shut Williams up about Simpson, saying the remarks were
racially inflammatory because many white Americans believed that the jury
in the Simpson case was wrong to acquit him. Williams pledged to the court
that he wouldn't mention Simpson to the jury.

The lawyers questioned 85 potential jurors, of which nine were
African-American in a parish where 1 in every 5 people was black. 4 black
jurors were dismissed for cause. Then Williams used his peremptory
challenges to eliminate the remaining five. It's the striking of those 5
that forms the basis of Snyder's appeal.

Quick murder conviction

The jury quickly returned a verdict of 1st-degree murder. Then, during the
sentencing phase in 1996, Williams brought up Simpson by saying that
Snyder's case was "very, very" similar to "the most famous murder case,
and all of you have heard about it." Williams went on to say that the
"perpetrator in that case claimed that he was going to kill himself as he
drove in a Ford Bronco and kept the police off of him. And you know what?
He got away with it." The jury came back with a death sentence in 2 1/2
hours.

"Jim Williams never said 'O.J. Simpson is black,' " said Jelpi Picou, a
lawyer for Snyder with New Orleans-based Capital Appeals Project. "But he
never needed to."

The Louisiana Supreme Court affirmed the death sentence. But several
justices dissented, arguing that Williams had used the O.J. Simpson
verdict "to racially inflame the jury's passion to sentence this defendant
to death" and that there was no doubt that Williams "had a racially
discriminatory purpose for excluding the African-American jurors."

William Sothern, another one of Snyder's lawyers, said that because Snyder
committed a crime of passion, he should have been charged with and
convicted of manslaughter, without a death sentence.

Ex-prosecutor stays mum

Williams, ironically, is now a criminal defense lawyer in Jefferson
Parish. A person answering his law office phone said Williams would not
comment on the case and hung up. In its brief to the Supreme Court, the
state of Louisiana argues that the Simpson issue is tangential to the
case, that the black jurors were not struck because of their race and that
Snyder's lawyers failed to properly object to the strikes at the time.

But beyond the Snyder case, some contend Williams was part of a larger
effort to exclude black jurors in Jefferson Parish in order to secure
death sentences. In 2003, the Louisiana Capital Assistance Center reviewed
some 23,000 prospective jurors for trials in the parish over 10 years and
concluded that prosecutors were 3 times more likely to strike a black
juror than a white one.

Jefferson Parish District Atty. Paul Connick in 2003 called the
allegations unfounded. He suggested that people with political agenda,
namely those opposed to the death penalty, published the report.

"Any time someone raises an allegation, especially a decision made by this
office based on race, we certainly take that seriously," Connick said.
"But I know this office and I resent the allegation that we make decisions
in this office based on race. We make our decisions on the cases we
prosecute strictly on the basis of the facts and evidence presented."

Connick's office declined to comment on the Snyder case or the allegations
of racial impropriety.

A controversial figure

Williams has been a controversial figure here, having worked both in
Jefferson Parish and across the river in New Orleans as a prosecutor. In
an interview in 1995, he was quoted as saying that African-Americans think
of the death penalty as "white man's justice." And in his Jefferson Parish
office, he kept a tiny model electric chair, with cut-out faces of five
African-American men Williams sent to death row pasted to it.

Two of those men are free today, having been exonerated. The sentences of
2 others have been commuted to life in prison. One is facing a new trial.

One of those free men is John Thompson, whose conviction was reversed and
who maintains that Williams prosecuted him even though he knew Thompson
was innocent from blood-type evidence.

Thompson filed suit against the Orleans Parish district attorney's office
and obtained a $14 million judgment, now on appeal.

Critics say the law-enforcement culture in Louisiana rewards prosecutors
who win death sentences. The district attorney in Baton Rouge used to take
prosecutors to an expensive steakhouse after a successful capital case. In
Jefferson Parish, 2 prosecutors were criticized 5 years ago for wearing
ties with an image of a noose, and prosecutors like Williams were given
"ultimate prick" awardsplastic syringes mounted on wooden tabletsfor
scoring a death sentence.

(source: Chicago Tribune)