[Deathpenalty] death penalty news----TEXAS, US MIL., MD., USA, OHIO

[Rick Halperin]

Sept. 9


TEXAS:

Death row inmate starts 2nd chance----Hearing begins process of a new
trial for Graves


After 12 years on Texas' death row, Anthony Graves strode into a Burleson
County courtroom Friday for the first in a series of hearings that will
lead to a new trial.

Although the hearing before state District Judge Reva Towslee-Corbett
would have been routine in most other cases, for Graves it marked the
beginning of a 2nd chance to argue that he is innocent of taking part in
the 1992 slayings of a grandmother and five children in nearby Somerville.

Graves, who was transferred from death row Wednesday to the Burleson
County Jail, grinned and nodded at his mother and 3 sons as they sat in
the audience during the hearing.

The 5th U.S. Circuit Court of Appeals gave him his second chance in March
when it found that the prosecution in his 1994 trial withheld from the
defense 2 crucial statements. As a result, U.S. District Judge Samuel Kent
in Galveston ordered that Graves receive a new trial by Sept. 12 or be
released.

"We are satisfied that this constitutes the initiation of trial
proceedings," Graves' attorney, Jeff Blackburn, of Amarillo, told the
judge.

Towslee-Corbett imposed a gag order prohibiting Graves and attorneys for
both sides from speaking publicly about the case. She also set a Sept. 22
hearing to determine how much Burleson County must spend for expert
witnesses and investigators for Graves' defense, since he has no income.

Blackburn; Houston lawyer and University of St. Thomas journalism
professor Nicole Casarez, whose students uncovered evidence they say shows
Graves is innocent; and the Amarillo law firm Mullin Hoard & Brown have
volunteered their services, but Blackburn said they will depend on the
county to pay for everything else. "The fact is that he has been
unlawfully held for 15 years," Blackburn told the judge. "That's the
decision of the 5th Circuit (Court)."

Joan Scroggins, assistant district attorney for Burleson and Washington
counties, countered that the capital murder charge is the only matter
before the court.

Towslee-Corbett disagreed with Blackburn's assertion that the federal
court should decide whether Graves should be allowed to go free on bail
while awaiting a 2nd trial.

She said she will take up the issue later.

Blackburn has asked Kent to allow Graves' release on bail, but the federal
judge has not taken action.

District Attorney Renee Ann Mueller declined to comment because of the gag
order, but Blackburn said the order could not take effect until it is
issued in writing. He accused Burleson County officials of wanting a gag
order to shield them from publicity about "the most vile prosecutorial
conduct."

He said he will seek a change of venue because he believes it would be
difficult for Graves to get a fair trial in Burleson or Washington
counties.

Graves and Robert Carter were convicted in separate trials of bludgeoning,
stabbing and shooting to death Bobbie Joyce Davis, 45, her 16-year-old
daughter, Nicole, and four grandchildren, ages 4 to 9.

Although Carter testified against Graves, he recanted several times.
Moments before he was executed in 2000, Carter again said Graves was
innocent.

(source: Houston Chronicle)

***********

3 held in Pizza Hut murders


In Terrell, 3 people are under arrest and police are seeking a 4th in the
slayings of 2 Pizza Hut employees. The workers were shot and killed last
weekend in an apparent robbery.

Darius Hubbard, Anthony Holliman and Bianca Newman were all in custody
late Friday after surrendering to Terrell police.

Investigators are seeking a fourth suspect on a capital murder warrant.

Police said Holliman was a cook at the restaurant where manager Stephen
Mitcheltree, 47, and assistant manager Patricia Oferosky, 40, were slain.

A friend of one of the employees found the bodies early Sunday morning.
Both had been shot.

Detectives said Hubbard had been fired from the Pizza Hut two weeks ago,
so they are investigating revenge and robbery as possible motives.

Police said $1,500 was stolen from the restaurant's cash register. Some of
the blood-stained money was recovered at local businesses where the
suspects allegedly made purchases after the killings.

(source: WFAA-TV)

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

Judge describes being cornered by Bigby


The last time retired state District Judge Don Leonard saw convicted
killer James Eugene Bigby in Criminal District Court No. 3, he was the
presiding judge in Bigby's 1991 capital murder trial.

On Friday, he sat in the courtroom and told jurors how Bigby, a paranoid
schizophrenic, tried to kill him during the trial.

Leonard testified that during a break in the trial, Bigby grabbed a loaded
gun from the bench and cornered him in his chambers.

Bigby pointed the .38-caliber revolver at his face and stuck it against
his ribs.

Bigby said, "Let's go, Judge," Leonard recounted for the jury.

With the help of a prosecutor and bailiff, he eventually wrestled the gun
from Bigby.

"He never said another word to me," Leonard said.

He said he believed that Bigby "wanted an out and thought he would kill
me."

After order was restored, Bigby's trial continued, and the jury eventually
found him guilty and sentenced him to die in the shooting death of his
friend Mike Trekell and the drowning of Trekell's 4-month-old son, Jayson.

Last year, the 5th U.S. Circuit Court of Appeals overturned his sentence,
ruling that jurors should have considered whether his mental illness was a
mitigating factor in the crimes.

Jurors spent Friday listening to testimony and will decide whether Bigby
should die or get prison time for the killings.

Bigby is also accused of killing 2 other friends -- Frank Johnson, 33, of
Arlington and Calvin Crane Jr., 38, of Fort Worth -- during the 1-day
spree. Those cases are pending.

Prosecutors are trying to show that Bigby should die because he poses a
future threat to society.

On Friday, Leonard, his grand jury bailiff at the time -- Barbara Hackney
-- and former prosecutor Robert Mayfield gave their accounts of what
happened on March 8, 1991.

They said they were talking in the judge's chambers when the ruckus began
during a 10 a.m. recess.

Bigby rose from his chair in the courtroom and headed toward a desk drawer
at the bench where Leonard kept a handgun.

The gun was there just in case "things ever totally went sour and I wanted
to survive," Leonard said Friday.

Bigby pointed the gun at a courtroom bailiff before running out the back
of the courtroom, across a hallway and into the judge's chambers.

Bigby was familiar with Leonard's office because he had been taken through
there after the elevator that he usually took back to his jail cell was
broken, according to testimony.

Mayfield said that at the time, he could not believe what was happening.

"This just doesn't happen," he told the jury Friday. "This is either the
worst practical joke I've ever seen in my life or I'm dreaming."

Mayfield, now a Johnson County judge, said that when he realized what was
happening, he fled.

"I shot back into the bathroom and closed the door and locked it," said
Mayfield, who became emotional as he testified.

"I knew the judge was out there by himself fighting this man, and I
couldn't stay in this bathroom."

Mayfield eventually helped Leonard and a bailiff wrestle the gun from
Bigby.

(source: Fort Worth Star-Telegram)

***********

Family spokesman: Suspect is innocent----McKinney: He says evidence
lacking in real estate worker's death


The family spokesman for a Dallas man accused of fatally stabbing a real
estate professional in McKinney says that Kosoul Chanthakoummane is
innocent and that he doesn't believe evidence gathered at the crime scene
ties his friend to the homicide.

Jason Herrin, boyfriend of Mr. Chanthakoummane's sister, said Mr.
Chanthakoummane, 25, came to Texas 7 months ago for a new start after
having been in prison since age 16.

"We thought this would be the best place for him, away from his old
crowd," Mr. Herrin said. Mr. Chanthakoummane was released from a North
Carolina prison in February after serving 7 years of an 11-year sentence
for 2 counts each of aggravated kidnapping and aggravated robbery.

"This was his fresh start. ... Do you think he's going to do something to
go back to prison?"

McKinney police believe he did. They say they are confident that Mr.
Chanthakoummane stabbed Sarah Anne Walker 27 times on July 8 and then
stole the Rolex watch and a silver ring she was wearing.

McKinney police Capt. Randy Roland, who oversees the criminal
investigation unit, said police are strengthening their case for
prosecution. But before an arrest was made this week, police had forensic
evidence from the model home where Ms. Walker was found, witness accounts
and a composite sketch all pointing to Mr. Chanthakoummane.

Police would not comment on whether a DNA match led to Tuesday's arrest.
But sources have told WFAA-TV (Channel 8) that DNA taken from the crime
scene matches the suspect's DNA.

Mr. Chanthakoummane's family doesn't believe it.

Mr. Chanthakoummane has two half brothers in North Carolina and a sister,
Sopha "Monica" Chanthakoummane, who has said that she doesn't want to
speak publicly. Neither of their parents, who are immigrants from Laos,
speaks English very well. As a result, Mr. Herrin said he is the family
spokesman.

"Someone has to say he didn't do this. He's innocent," Mr. Herrin said
Friday, while sitting outside a coffee shop near the North Dallas
apartment that he, his girlfriend, her son and Mr. Chanthakoummane share.

It's the same apartment where police arrested Mr. Chanthakoummane on
Tuesday night. He was watching his 7-year-old nephew at the time.

Ms. Chanthakoummane's son is confused by his uncle's arrest and police
being in his home, Mr. Herrin said.

"We asked him if he knows 'what is going on with your uncle.' And he says,
'Yeah, he killed some girl,' " Mr. Herrin said. "I have to explain to him
that the police say he did this. But it's not true."

As of Friday, Mr. Chanthakoummane did not have an attorney. David Kleckner
was assigned to be his court-appointed attorney Wednesday but was pulled
off the case Thursday, because Mr. Chanthakoummane "does not qualify for a
court-appointed attorney," Mr. Kleckner said.

Mr. Herrin said the family was told that he doesn't qualify because he's
not indigent.

Mr. Chanthakoummane had been working as a delivery driver since June,
making about $10 an hour, Mr. Herrin said. And he was just accepted into
the University of Phoenix to study business. On his MySpace page, Mr.
Chanthakoummane said he is a college student and makes less than $30,000.

Mr. Chanthakoummane's MySpace page also has a picture of his white 1993
Ford Mustang. People in the McKinney neighborhood where Ms. Walker was
slain described seeing an Asian man with a newer model white Mustang in
the area that day, police said.

Police have seized Mr. Chanthakoummane's car. But Mr. Herrin isn't worried
about what evidence might be found there.

"There's nothing to find, so I'm not concerned," he said.

He describes Mr. Chanthakoummane as a quiet man who's focused on his
family.

When he wasn't working, Mr. Chanthakoummane was usually at home, Mr.
Herrin said. But he occasionally went to the movies or car races with a
small group of friends.

Vivian Hua, 23, one of those friends, said Mr. Chanthakoummane kept a low
profile.

"We would invite him out to clubs, and he wouldn't go," Ms. Hua said.
"He'd say, 'There's no way I'm going to put myself back in that situation'
" of going back to prison.

(source: Dallas Morning News)






US MILITARY:

Murder, military and wisdom of 'warrior judgment'


This last week, an officer responsible for investigating the killing of
several Iraqi civilians by four U.S. soldiers from the 101st Airborne
Division in Iraq recommended that they be charged with premeditated murder
and face the death penalty. If the commanding general of the division
accepts this recommendation, which is the common practice - he will send
these charges to a general court-martial that will ultimately decide their
fate, possibly sentencing them to death.

If these cases reach a military courtroom, they will no doubt trigger
debate on the "justice" of trying American soldiers for their conduct in
battle. The prospect of four Americans - all of whom volunteered to fight
this war on behalf of the nation - being sentenced to death for killing
Iraqi detainees will strike many as an ultimate symbol of hypocrisy.

Why should such cases be pursued? And Why should the American
peopleAmericans, on whose behalf these soldiers went to war, have
confidence in the legitimacy of the process that is grinding forward
toward s trial? These are important questions that can only be answered by
understanding both the importance of preserving discipline on the
battlefield and the quality of the military justice system.

War, no matter what term politicians use to describe it, is a brutal
business for those called upon to fight. Soldiers are not asked, but
required to inflict death and destruction wherever their commanders order
them to do so. But for as long as war has been an organized endeavor,
military leaders have understood the need to place limits on this
brutality.

These limits serve the interests not only of innocent victims of war, but
also of the warriors themselves, by providing a framework enabling them to
reconcile the consequences of their conduct with their innate sense of
morality. The most fundamental tenet of this framework is that soldiers
are obligated to kill, but only when killing is justified by the
requirements of military necessity. Once an enemy has been subdued, no
such justification exists.

When soldiers violate this framework by killing for personal revenge
instead of the necessity of war, they endanger not only the legitimacy of
the national objective, but also the discipline of their own units. It is
principally this latter reason, and not an obsessive focus on "legalism,"
that compels commanders to investigate and punish such misconduct. If
these allegations are true - that soldiers released a detainee simply to
create a false justification to kill him - the killing serves as a
reminder that not all killings on the battlefield are the same, and that
the line between justification and revenge must be preserved. Ignoring
such misconduct dilutes this fundamental tenet of warfare not only for the
soldiers involved, but for the entire unit.

The military justice system is uniquely suited to respond to such
allegations of battlefield misconduct. Unfortunately, the media focus on
the military commissions at Guantanamo may have created among many
Americans the false perception that these special tribunals are indicative
of the military justice system. Nothing could be further from the truth.

A general court-martial is a well-established judicial proceeding,
affording in many cases more protections for a defendant than exist in
state or federal criminal courts. But of all the attributes of this
system, perhaps the most significant in relation to why Americans should
have confidence that justice will be served in these and similar cases is
the unique role of military leadership in the military justice process.

These cases cannot be tried by a general court-martial unless the
commanding general of the 101st Airborne Division decides that such a
response is appropriate. Although in making this decision, the commander
will be advised by a highly qualified legal officer; it is ultimately his
"warrior judgment" that will prevail. This special role of military
commanders is no accident.

It is a reflection of the very foundation of the military justice system:
that justice in the military context involves a balance between individual
rights and the interests of preserving a well-disciplined force.

The same confidence the American people place in our military commanders
to lead our young men and women into combat must be extended to their
judgments on the necessity to bring such cases to trial. Such decisions
reflect the wisdom of experienced and battle-hardened leaders who
understand intuitively the importance of dealing with battlefield
misconduct through the military justice process. Like the military leaders
who preceded them throughout history, such judgments reflect an
understanding of warfare that Americans must respect, even if they might
not totally understand.

(source: Houston Chronicle, Viewpoints -- Geoffrey Corn is a professor at
the South Texas College of Law and a retired JAG lieutenant colonel)






MARYLAND:

Serial killer's brother speaks at the Mount


For David Kaczynski, the decision to tell FBI agents that he suspected his
older brother Theodore Kaczynski as the mastermind behind 17 years of
serial bombings was a matter of preserving life.

If his brother was the Unabomber, Mr. Kaczynski risked more violence
against innocent people if he did not turn him in.

However, if his brother was convicted of the bombings that led to 3 deaths
and 23 injuries, Theodore might face the death penalty.

In a lecture at Mount St. Mary's University on Thursday evening, Mr.
Kaczynski outlined the discovery that his brother was responsible for the
bombings.

He also explained how he made his decision to go to authorities despite
personal opposition to capital punishment.

"We were in a position where anything we did could result in somebody's
death," Mr. Kaczynski said.

11 years ago, his wife Linda Patrik approached her husband and pointed out
similarities between Theodore and information that had been released about
the elusive Unabomber.

Bombings had occurred in places the pair knew Theodore had been, for
example, Chicago and Salt Lake City.

Like the suspected Unabomber, Theodore had connections at the University
of California, Berkeley. Theodore had been a math professor at the school
before quitting to live a survivalist lifestyle in a cabin in Montana.

The Unabomber's manifesto, which had been sent to media outlets before his
capture, spoke against technology, a sentiment Theodore had often shared
with Mr. Kaczynski in written correspondence.

"Here I am in my living room and my wife's saying, 'Gee, do you think your
brother is the Unabomber?'" Mr. Kaczynski said. "I guess I'm feeling, this
is my brother after all, a little defensive."

After poring over the manifesto and looking for similarities in letters
sent from Theodore, Mr. Kaczynski contacted FBI officials.

Weeks later, Theodore was arrested. A live bomb was found under his bed in
the Montana cabin.

"We were the only people who could do something," Mr. Kaczynski said. "We
were the only ones who could stop the violence."

Theodore pleaded guilty and is serving life in federal prison in Colorado.
He does not contact his family.

Capital punishment

After his brother's trial, Mr. Kaczynski became the executive director of
New Yorkers Against the Death Penalty.

He speaks at places like the Mount to share his story and stance against
capital punishment.

"I was always personally opposed to the death penalty," he said. "But I
never thought I'd have a personal experience with the capital punishment
system."

During his lecture at the Mount, Mr. Kaczynski explained that he believes
the American justice system is flawed because a person's ability to obtain
good legal counsel, not their guilt or innocence, often determines if they
will receive the death penalty.

"When you think of the justice system, justice isn't always the priority.
There are a lot of balls in the air," he said. "... If you think of the
death penalty as ultimate justice, then you're probably using the wrong
words."

Mr. Kaczynski said he does not have a solution for revamping the American
justice system, but he would prefer capital punishment not be an option.

"If you have alternatives like life in prison without parole, why not use
that so if you made a mistake, you can correct that mistake?" he said.

(source: The Frederick News-Post)






USA:

Death Penalty Being Invoked Against Child Molesters


Politicians in primarily southern U.S. states have passed laws that expand
the use of the death penalty to include repeat child sex offenders-a move
mental health professionals say is ineffective in stopping molestation and
abolitionists believe ultimately will be ruled unconstitutional.

Despite the warnings, two states - South Carolina and Oklahoma - this
summer enacted laws that allow repeat child sex offenders to be put to
death. They join Louisiana, Florida, and Montana, which already have
similar laws on their books.

The governors of both Oklahoma and South Carolina argued that the sexual
abuse of children is as bad as murder because molestation causes permanent
damage to the life of the child.

"(It) is about sending a very clear message that there are some lines that
you do not cross, and that if those lines are crossed the penalties will
be severe," said South Carolina Gov. Mark Sanford in a statement.

Oklahoma State Sen.Jay Paul Gumm echoed the sentiment. "We allow the death
penalty for someone who has killed a body," Gumm, who authored the
Oklahoma bill, said in a statement. "Why would we allow someone to escape
who has killed a soul?"

Critics dismiss such reasoning as irrational and unconstitutional, even
though they acknowledge that child rape is a serious crime.

"Obviously, it's a very, very serious crime," said John Holdridge,
director of the American Civil Liberties Union's (ACLU) capital punishment
project, in an interview."But this law is totally disproportionate to the
crime, which does not involve a case of an eye for an eye."

Holdridge's remarks seem to parallel the U.S. Supreme Court's 1977 opinion
on a case involving the rape of an adult woman in Georgia. The ruling
suggests that the death penalty may only be applied in cases of murder,
not rape.

Deciding the case, the Court observed that execution for rape was
"disproportionate to the crime."

"Rape is without doubt deserving of serious punishment," the ruling said,
"but in terms of moral depravity and of the injury to the person and to
the public, it does not compare with murder, which does involve the
unjustified taking of human life."

Moreover, citing the Eighth Amendment of the U.S. Constitution, the Court
described the death penalty for rape as "a cruel and unusual punishment."

Along with the majority of lawmakers in South Carolina and Oklahoma who
voted in favor of death penalty laws, Gumm reasoned that only an unusual
punishment, such as execution, could deter those who repeatedly use sexual
violence against minors.

One death penalty opponent called it "a very stupid message," and
Holdridge agreed. "This law is terrible for the victim," he said. "It
gives no incentive to the offender not to kill the victim."

Moreover, in most child molestation cases, the victims and offenders know
each other. Holdridge doubts family members would be willing to report the
cases of child rape. Family members would not like to see the offender
executed, they said.

Since the 1977 Supreme Court ruling, no one convicted of child molestation
has been executed in the United States. One inmate in Louisiana, however,
currently sits on death row for raping a child.

Patrick O. Kennedy was sentenced to die in 2003 for raping an 8-year-old
girl. His case is working through appeals courts in Louisiana. It is not
clear when or if it would come before the U.S. Supreme Court.

Since the Supreme Court's previous decision against using the death
penalty in the rape case involved an adult victim, proponents of execution
for child rape are hoping the high court will not take that ruling into
consideration.

Opponents, however, say despite the fact that the Supreme Court is now
dominated by conservative judges, the possibility that judges may decide
the Louisiana case in the light of its 1977 decision cannot be ruled out.

"When it finally reaches the Supreme Court," Richard Dieter of the Death
Penalty Information Center (DPI), and a long-time observer of capital
punishment cases, said. "It's most likely to be struck down."

Other critics of the death penalty laws say they fear that children may be
forced by malevolent adults to make false statements against the innocent.

"There was a flurry of trials during the 1980s and 1990s of adults charged
with sexual crimes against children in daycare centers," according to
Amnesty International, the London-based rights group. "(But) time has
shown that all, or almost all, of the alleged perpetrators were innocent."

Indeed, mental health professionals who work with repeat sex offenders say
they do not believe the death penalty will deter a child molester.

Said Gerald Landsberg, professor of social work at the New York
University: "It's a very simplistic way to deal with the issue of child
molestation."

(source: Louisiana Weekly)

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

Forgiving requires strength----Friends, loved ones often hardest to
forgive


Thinking about forgiveness...

I know a former NBA coach who said he would watch a game film over and
over and over.

"After awhile, I'd start to hate all my players,'' he said. "I'd watch
them make the same mistake 6 times and believe they were doing it to me
personally.'' He said that he'd see a player make 2 key mistakes, but it
seemed like 12 because he watched the tape 6 times.

That's why it can be so hard to forgive what sometimes seems a minor
issue. We go over it and over it and over it in our heads. We think about
it at least 10 times, but it actually only happened once.

Sir Francis Bacon said: "We read we ought to forgive our enemies -- but we
don't read that we ought to forgive our friends.'' Actually, we're
supposed to forgive everyone, but it's easier to forgive a stranger or
even a boss than friend or relative. We hold the people closest to us to
higher standards, and tend to be less tolerant when they fall short.

A breakthrough point came for me when someone told me: ``Forgiving is not
the same as reconciling. Forgiving doesn't mean letting a dangerous or
crazy person back into your life.''

Suppose you were sexually or physically abused by someone. You can forgive
them without allowing them into your home. If an uncle once abused you as
a child, you don't leave your kids with him -- even if you have forgiven
him. And, yes, even if the uncle has sincerely apologized and seemingly
changed his life -- well, you still don't take any chances, or tempt him
in an area where he was weak.

In his book Everyone is Normal Till You Get to Know Them, John Ortberg
wrote: "Forgiveness means giving up the right to get even.'' That's
because it's impossible to ever "get even.'' Trying to get even can become
like poison, because it makes us obsess on the wound, it's like picking at
our own scabs with dirty fingernails. Suddenly, the cut is an infection.

In the book Forgiving and Reconciling, Everett Worthington Jr. wrote: "We
usually try to suppress feelings of unforgiveness. We deny that we feel
hate. We think, 'That hurt didn't matter.' Instead of suppressing our
feelings, we mostly come to grips with them.''

We don't want to overestimate our injuries, but it's even more dangerous
to deny that we've been hurt. If you've been in an abusive relationship
for years, counseling may be a part of forgiving. It won't happen in one
day, or one week.

Someone else once told me this story: In ancient days, a form of execution
was to strap a fresh corpse to the back of criminal. The diseases from the
corpse would infect the live body, killing him slowly. Many of us are like
that -- we carry around the corpses of old battles and slights, angry at
some people who are dead or have long forgotten us -- and it's killing us.

It's just a personal opinion, but without God's strength, I have a hard
time forgiving anyone. Over and over, I have to call out to God and say,
"Lord, I'm giving this to you. I can't deal with it by myself.'' Gandhi
said, "The weak can never forgive. Forgiveness is the attribute of the
strong.''

For me, it takes God's power to help me see my situation from someone
else's point of view. I resist it. But when I take the time, and sometimes
have others help me see it, then it does become easier to forgive. Rarely
am I 100 % in the right.

Forgiving does not necessarily mean forgetting. Some scars will always be
with us. Forgiving also doesn't mean the person won't do it or say it
again. On the job or with our families, sometimes we have to forgive over
and over just to function.

Perhaps my favorite forgiveness quote comes from Lewis Smedes (author of
The Art of Forgiving): "To forgive is to set a prisoner free and discover
the prisoner was you.''

(source: Terry Pluto, Akron Beacon Journal)






OHIO:

Under law, defense can't get public records----So lawyer seeks documents
from Plain Dealer


Ohio law prohibits criminal defendants and their attorneys from seeing
public records that could help them argue their case, even though the
documents are ones that everyone else can obtain.

That legal barrier is why lawyers for death-row inmate Tyrone Noling this
week asked a federal judge to force The Plain Dealer to turn over public
records the newspaper obtained that call into question Noling's guilt.

Noling's lawyers said they have been unable to get the records because of
a 1994 Ohio Supreme Court ruling that bars defendants, inmates and their
lawyers from getting police records that anyone off the street can easily
obtain.

"We feel we've been hamstrung because we don't have access to documents,"
said Kelly Culshaw, an Ohio public defender representing Noling.

Noling was convicted and sentenced to death in 1996 for the murders of
Bearnhardt and Cora Hartig, an elderly Portage County couple.

Last month, The Plain Dealer published stories challenging the
prosecution's claim that Noling used a .25-caliber handgun to kill the
Hartigs and ordered an accomplice to get rid of the gun. The articles, by
reporter Andrea Simakis, presented evidence that wasn't offered at
Noling's trial, including reports that another man questioned about the
murders refused to take a polygraph and owned a .25-caliber Titan, 1 of 4
makes that ballistics experts concluded could have been used to shoot the
Hartigs.

Defense lawyers also never knew that a psychologist hired by prosecutors
warned them that a key witness might make up testimony to win immunity.

Three friends of Noling's confessed to participating in the 1990 killing
of the Hartigs and named Noling as the shooter. They later recanted,
saying they lied to save themselves because an investigator for the
prosecutor's office threatened them. They also said that after they agreed
to cooperate, the investigator provided them with details of the crime so
they could give convincing testimony.

Portage County Prosecutor Victor Vigluicci has said that the allegations
are false and that the investigator did nothing wrong.

Noling's attorneys asked that the case against their client be returned to
state court for a hearing on the facts revealed in the Plain Dealer
articles. They said they did not have some of the evidence cited in the
articles; that evidence was obtained from the Portage County prosecutor's
office.

State lawyers maintain the newspaper's discoveries are unsubstantiated and
would not have helped Noling's case. They also say that Portage County
prosecutors had had an "open file" discovery process at the time and
defense attorneys were permitted to go through prosecutors' records.

"While the bits and pieces of information from The Plain Dealer expos may
withstand the uninformed perusal by the general public," state lawyers
wrote, " . . . they are a patchwork quilt filled with so many holes that
they cannot hold up in court."

The Plain Dealer has put records it obtained from the Portage County
prosecutor's office online. To view them, go to
http://secure.plaind.com/records/.

Plain Dealer Editor Doug Clifton said he finds it troubling that Noling's
lawyers have been unable to get documents the rest of the public can
obtain.

"I think it's more than strange that the defense team has to subpoena a
newspaper reporter to get records that the reporter got by virtue of being
a citizen," Clifton said. "There's something drastically wrong with the
law."

Lawyers for the state did not return calls seeking comment. Culshaw,
Noling's attorney, said she expects them to object to the request and cite
the 1994 Supreme Court ruling as the reason.

Columbus lawyer Terry Sherman was on the losing side in that case, known
as the Steckman decision. The Supreme Court's ruling makes it nearly
impossible for defense lawyers to obtain information that raises doubt
about their clients' guilt, he said.

"Newspapers get more information than we can," Sherman said. "You're
writing a story, and we're trying to defend his life."

The Steckman ruling consolidated motions in three murder cases. In each,
defendants or people working on their behalf tried to obtain records about
their cases. Instead of trying to get the information through criminal
discovery procedures - in which prosecutors are required to turn over to
defense lawyers any information they have that might help the accused -
they filed requests with police departments, citing Ohio public-records
law.

Defense attorneys have long complained that the discovery process is
already skewed against them because prosecutors get to decide what is
relevant and should be turned over.

The justices ruled 5-2 that defendants and their lawyers could not use
public-records law to get information that prosecutors did not turn over
in discovery.

Writing for the majority, Justice Andrew Douglas said public-records
requests caused "interminable delays" in criminal prosecutions.

"Trial courts, courts of appeals and this court are consuming tremendous
time and resources to review, in some cases, boxes and boxes full of
records alleged to be public," Douglas wrote.

"We recognize that our decision will not be met with universal approval,
but those who would criticize do not see the daily bombardment on our
criminal justice system that we see," Douglas continued. ". . . It is now
time to return to a level playing field between accusers and the accused."

Sherman said that if justice was truly the goal, the courts should welcome
all relevant information.

"If you want to minimize the chance of an innocent person getting
convicted, you would want to have as much information as possible,"
Sherman said.

Instead, he said, prosecutors are required to turn over only statements
from witnesses, a list of potential witnesses, physical evidence and lab
reports. Police reports that show detectives' opinions about who may have
committed the crime are not turned over, he said.

"It's prosecution by ambush," Sherman said. "How does that serve justice?"

Lawyers for Noling say many of the documents cited in The Plain Dealer
article should have been turned over during discovery because they raise
doubts about their client's guilt. Culshaw wrote in a motion that she has
never seen the documents and "has a good-faith belief that the trial
prosecutors suppressed this evidence."

State lawyers countered that the information contained in the Plain Dealer
stories was simply a rehash of old facts that would not have substantially
influenced the outcome of the 1996 trial.

Cleveland defense attorney Tim Sweeney said that barring access to public
records almost rewards prosecutors for hiding evidence in discovery and
during the trial. The result, he said, is that defense attorneys are never
sure they got everything in discovery.

"Did I get everything I was supposed to get? How would I know? Public
records would shine a light on that, but Steckman says I can't get them,"
Sweeney said.

(source: Cleveland Plain Dealer)