[Deathpenalty] death penalty news----TEXAS, N.C., GA., MD., N.J.

[Rick Halperin]

Sept. 19


TEXAS:

Waco judge rules death row inmate not retarded


With no evidence offered other than an unsworn affidavit from a
psychologist in Puerto Rico, a state district judge in Waco determined
Monday that death row inmate Ramiro Rubi Ibarra is not mentally retarded
and thus eligible for the death penalty.

For the second time in two months, Ibarras attorney, Gregory J.
Kuykendall, asked 54th State District Judge George Allen to postpone the
hearing, claiming he lacked the funds and time to adequately prepare for
the hearing.

The Texas Court of Criminal Appeals sent the case back to Allen in
November 2004 to determine Ibarras mental state. Allen waited to have
Ibarras hearing because the U.S. Supreme Court was considering an
unrelated case involving a death row inmates claims that executing
mentally retarded inmates violates Eighth Amendment protections against
cruel and unusual punishment.

However, the Court of Criminal Appeals recently ordered Allen to determine
the issue by Sept. 28.

The U.S. Supreme Court has since ruled that mentally retarded inmates are
not eligible for the death penalty.

Ibarra, 52, a Mexican citizen, was convicted in Allen's court in 1997 in
the sexual assault and strangulation death of Waco teenager Maria Zuniga
in 1987.

While Ibarra did not allege mental retardation during his trial, his
attorneys have since filed briefs alleging he has an IQ of about 65.

Kuykendall, a Tucson, Ariz., attorney who serves as director of the
Mexican Capital Legal Assistance Program, is being paid by the Mexican
government to appeal Ibarras case and those of the other 50 Mexicans on
death row across the country.

In seeking another postponement of the hearing, Kuykendall told the judge
that he needed more time to locate, interview and arrange travel to Waco
for witnesses who knew Ibarra as a child in rural Zacatecas, Mexico.

After Allen rejected his motion for a second time since July, Kuykendall
offered only a report by Puerto Rican psychologist Carol M. Romey that was
not notarized. Romey is not licensed to practice in the United States. She
wrote in her report that she was unwilling to travel to Waco without
assurances that she would be compensated.

"I didn't have any evidence," Kuykendall said after the hearing. But the
reason I didnt have any evidence was because of the judge.

Allen had granted an initial request from Kuykendall for up to $7,500 to
pay an investigator. Allen told him during the hearing that he requested
an additional $9,000 almost immediately without providing any
documentation about how or if he spent the initial allotment.

What you apparently want is an open bill to call anyone in the United
States and beyond to come down here, said Allen, growing increasingly more
impatient with Kuykendall. "I authorized $7,500. You havent furnished one
iota of evidence that you have spent one dime on anything."

Ibarra has the burden to prove he is mentally retarded. With no witnesses
and Romey's report standing alone to support Ibarras claims, special
prosecutor Enid Wade argued that there was plenty of evidence to show that
he is not mentally retarded and asked Allen to reject his claim.

"It is unbelievable to me that the state is being required to expend this
much time and money for this newly raised claim, Wade said after the
hearing. It is certainly no coincidence that Mr. Ibarra just decided he
was mentally retarded after the Supreme Court said that if you are
mentally retarded you cant be executed. He killed this girl in 1987 and he
didnt realize that he was mentally retarded until 2003."

Kuykendall said he will continue to appeal Ibarra's case.

"I understand the pain and the outrage, but people need to understand that
mental retardation is a very real phenomenon and it affects a high
percentage of the people who are on death row," he said.

Wade was appointed special prosecutor because John Segrest represented
Ibarra before being elected McLennan County district attorney. She said
Ibarra is "taking advantage of the system."

"What we have had is delay, delay, delay and more delay," she said. "They
knew full well what this hearing was about, and they show up and say Mr.
Ibarra has lived in the United States for 34 years. He has been on the
earth for 52 years. We have known about this hearing for a couple of
years. Yet we could not find one person on the planet to come here and say
he is mentally retarded.

Wade said she was prepared to provide evidence from Ibarras employers,
jailers and others and offer the trial testimony of his wife and brother,
who testified that he held good jobs and provided for his family.

After his trial in Waco, Ibarra was convicted of molesting his nephew in
Bell County and was sentenced to life in prison.

(source: Waco Tribune Herald)

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

Police Hunt Crucial Evidence In Sales Agent's Murder----Expensive Jewelry
Is Key In Case


McKinney police are on the hunt for the missing links to bring more
serious charges against the man arrested for killing a home sales agent.

A missing Rolex watch and designer ring could be key to launching a
capital murder case against Kosoul Chanthakoummane, the man accused of
stabbing Sarah Walker 27 times.

McKinney police told NBC 5 that in the coming weeks they will redouble
their efforts to find the jewelry they believe Walker was wearing when she
was murdered at the housing development where she worked as a sales agent.

Defense attorney and former prosecutor Barry Sorrels said prosecutors need
to prove the murder happened during a robbery in order to convict the
suspect in a death penalty case.

"It looks like without this property they're not going to have a death
penalty case. They're only going to have a murder case where death is not
one of the possible punishments," Sorrels said.

Finding the watch and ring would help the prosecution. Then prosecutors
would need to prove those items passed through Chanthakoummane's hands,
Sorrels explained.

"They've got to have some sort of evidence that puts it in his
possession," Sorrels said.

Police said they hope the suspect gave the watch and ring to someone who
might be willing to come forward.

"I would be surprised at this point if they did find it - but you never
know," Sorrels said.

Police told NBC 5 that in the coming weeks, they will do some additional
things to remind the public that the jewelry is still out there.

The suspect has not been indicted. There is no word yet on when that will
happen, but the grand jury does meet again Tuesday in Collin County.

(source: NBC5.com)






NORTH CAROLINA:

Killing case in a new round ---- Durham mother reliving the pain


DURHAM - Sharlene Pence sat rigidly in a Durham County courtroom, wound
tight with nerves, as the man who confessed several times to killing her
teenage son sat just a dozen feet away.

Todd Boggess, who was convicted in 1997 of beating Pence's son, Danny, to
death in Durham County, has been given a reprieve by the N.C. Supreme
Court because of an error by a trial judge. In a hearing last week before
Boggess' new trial, his attorneys tried to use new evidence to get 2
confessions thrown out.

It's almost too much for Pence to bear. She thought she was done with this
when Boggess was sentenced to death.

"This reminds me of the time my son was murdered," she said this week
during a break in the hearing. "That's not what I want to remember about
my son."

Boggess, now 31, has been described as a drifter. He is slight of build,
wears glasses and has forearm tattoos and a long, braided ponytail. His
fate might lie in stacks of pages of detective notes, interview
transcripts and a single sentence in a story on the Pence case that
appeared in a detective magazine in 1998. Boggess' attorneys hope details
within these documents will be enough to eliminate two confessions from
use once the new trial gets under way.

Attorneys will make their final arguments in a week or two, after which
Superior Court Judge Ripley Rand will rule on the new evidence.

Boggess met Danny Pence one August night in 1995 at Johnny Mercer's Pier,
a teenage hangout at Wrightsville Beach. Pence was looking to sell his
custom Ford Mustang, a car he had doted on -- changed its wheels, amped up
its sound system and repainted. Boggess, who was 20 at the time, and his
girlfriend, Melanie Gray, who was 14, went with Pence on what they said
would be a test-drive.

The trio eventually ended up in Durham -- where Gray grew up -- and
Boggess bludgeoned Pence to death on Terry Road, investigators said. They
then took the car, hastily repainted it, and drove back toward the coast.
They were eventually arrested in a Beaufort County cornfield.

Defense attorneys this week zeroed in on discussions detectives had with
Boggess after his arrest, first in Beaufort County and later on a drive to
New Hanover County, where Pence, a high school honor student, lived.

In Beaufort County, detectives questioned Boggess and had at least one
heated exchange with him. Detective Richard Buchanan of the Durham
Sheriff's Office accused the defendant of lying, according to testimony
this week.

Boggess bristled at Buchanan's accusation -- which was punctuated with an
expletive -- and said, "If y'all going to treat me this way, then I
probably would want a lawyer," according to testimony and the N.C. Supreme
Court's August 2004 ruling that overturned Boggess' conviction.

In its decision, the state's high court ruled that Boggess' statement did
not "constitute a request for an attorney."

Last week, detectives testified that they ceased interrogations once
Boggess made that statement. But defense attorneys hope a line in a
detective magazine will raise some questions.

In a 1998 issue of "Detective Files" magazine, writer John Railey -- using
a pen name -- summarized the Pence saga under the headline "A Death Ride
for Danny." In it, Railey detailed what happened while detectives Marc
Benson and Doug Vredenburgh, knowing Boggess had requested an attorney and
wished not to talk any further, drove him from Beaufort County to
Wilmington.

"As Benson drove, Vredenburgh took another crack at the suspect," the
story states.

In court last week, Vredenburgh claimed that line in the story was not
accurate. Attorneys brought in Railey -- now a Winston-Salem Journal
columnist -- to testify, but when he protested, agreed to admit his story
into evidence instead.

While in custody in New Hanover County, Boggess gave an incriminating
statement to investigators -- 1 of 2 his attorneys are now hoping to get
thrown out. The 2nd came a day later, in Durham, when Boggess sought out
Durham Sheriff's Office Detective Adam Clayton -- the case's chief
investigator -- and confessed to killing Pence, Clayton testified last
week.

About two months later, Boggess once again sought Clayton and again signed
a statement in which he confessed to the killing, Clayton testified.

Gray served a 10-year prison sentence for her role in the killing and was
released last year.

(source: The News & Observer)






GEORGIA:

Georgia high court hears arguments in Savannah death penalty case


A lawyer for a man accused in the brutal murder of a Savannah woman and
her 13-year-old daughter argued to the state Supreme Court on Monday that
several rulings by a lower court will hurt his client's chances of
avoiding the death penalty.

Darryl Scott Stinski is charged with murder in the 2002 deaths of Susan
Pittman and her daughter, Kimberly.

He was indicted by a grand jury on charges that he and Dorian O'Kelly
broke into the Pittmans' home, robbed it, tortured and killed the women,
then set the house on fire.

A coroner ruled that Susan Pittman died of stab wounds to the chest and
Kimberly Pittman died of smoke inhalation.

O'Kelly has already been found guilty of the crime and sentenced to death.

On Monday, Steve Sparger, one of Stinski's attorneys, told the Supreme
Court that his client was illegally arrested without a search warrant and
should not have been questioned about the killings after he was brought in
by police on drug and robbery charges.

He also protested a Superior Court ruling that graphic photographs of the
victims could be used during his trial. He said the photographs, taken
after the home burned, could anger jurors but wouldn't offer any
legitimate evidence.

"You're talking about charred bodies," Sparger said. "That's bad enough in
words and they want to put it on (an overhead projector) and up on a
10-by-10 screen. They don't need it."

Assistant district attorney David Lock said prosecutors haven't decided
which photos, if any, they will use at trial and that the judge in the
case could rule on each one at the time.

"The court has not made a ruling on individual photographs," Lock told the
justices. "I just don't think I ought to be hamstrung at this time ... if
it is shown to be relevant."

Lock said police, acting on a tip that Stinski and O'Kelly were at
O'Kelly's home, called a judge who told them they could make the arrest
first, then come to him to sign a warrant.

He also argued that it's a typical police tactic to arrest suspects on a
lesser charge to hold them while a more serious crime is investigated.

Sparger also argued that a change in the law about how witnesses can be
questioned would hurt his case. He said a witness he would like to call if
the trial reaches the sentencing phase has several pieces of information
that could help Stinski.

But that person also has information that could hurt his client, Sparger
said, and because of a change in state law, prosecutors could use that
information.

"I shouldn't have to bring something to kill my client," he said. "We have
things that help, but if that witness knows something that hurts, I have
to leave that witness out."

Superior Court Judge Lamar W. Sizemore Jr., of the Macon Judicial Circuit,
filled in for Supreme Court Judge Harold Melton at Monday's hearing.

Melton was legal counsel for former Gov. Roy Barnes when part of the law
being challenged in the case was written and recused himself from hearing
it.

The court is expected to rule on Monday's arguments by next spring.

(source: Associated Press)






MARYLAND:

Court to hear detailed account of executions----Death row inmate's lawyers
argue cruelty of injection


Lawyers for death row inmate Vernon L. Evans Jr. expect to bring into
federal court this week the men and women who have participated in
Maryland's previous executions to ask them what they did and how they were
trained and to inquire about any past problems with the lethal injection
procedures that the convicted killer is challenging.

The attorneys argue that Maryland's execution protocol violates the
constitutional ban against cruel and unusual punishment, and that decades
of intravenous drug use by Evans - including as recently as 4 years ago
when he was incarcerated in a federal prison in Atlanta - have so ravaged
his veins that he is at a particular risk of excruciating pain.

By calling medical and veterinary experts to testify - and even a witness
to a botched execution in Ohio during which the condemned man lifted his
head and declared, "It don't work" - Evans' lawyers are hoping to persuade
U.S. District Judge Benson E. Legg to direct Maryland officials to change
the state's execution procedures and to require that trained medical
personnel be involved.

"This court will be following well-traveled ground in granting relief to
Vernon Evans," attorney A. Stephen Hut Jr. told the judge during
yesterday's opening statements in the case. He noted that courts in
California, Missouri and North Carolina have required corrections
officials to modify lethal injection procedures and that judges in Ohio
and Arkansas have halted scheduled executions because of pending legal
challenges.

But an attorney for the state countered yesterday in her opening statement
that an execution is not a medical procedure and should not be held to the
standards for the practice of medicine.

"It is the antithesis of medical treatment. It is not undertaken to cure,
heal or ameliorate any illness or deformity," said Laura Mullally, an
assistant attorney general for the Department of Public Safety and
Correctional Services.

"The plaintiffs will attempt to present evidence that ... what has
happened in other states is a true foreshadowing of what is inevitable in
Maryland," Mullally said. "But other states' errors, if there are any, are
other states' errors."

Evans, 56, was sentenced to death 14 years ago for the 1983 contract
killings of David Scott Piechowicz and his sister-in-law Susan Kennedy at
a Pikesville motel where they worked. Piechowicz and his wife, Cheryl, who
was also a motel employee, were scheduled to testify in federal court
against drug kingpin Anthony Grandison.

Grandison, also sentenced to death for the fatal shootings, remains on
Maryland's death row.

With Evans scheduled to be put to death in February, the inmate's defense
team initially asked for an emergency injunction to challenge Maryland's
lethal injection procedures. Legg declined.

But when Maryland's highest court postponed Evans' execution - scheduled
for the week of Feb. 6 - to hear four legal challenges, Evans won time to
pursue the federal lawsuit. A decision from the Court of Appeals is
pending.

Deborah Denno, a Fordham Law School professor and national lethal
injection expert, said the legal landscape for death row inmates has
changed significantly in recent months.

Lending "particular momentum" to inmates' lethal injection lawsuits, she
said, was a California judge's Feb. 14 order in the Michael Morales case.
U.S. District Judge Jeremy Fogel directed state prison officials there to
either use only a fatal dose of anesthetic to execute Morales or else have
an anesthesiologist on hand to ensure he was unconscious before the
delivery of paralyzing and heart-stopping chemicals.

That combination of anesthetic, paralytic and heart-stopping drugs is used
by most of the 37 states, including Maryland, with lethal injection
statutes.

The Morales case is scheduled for a four-day evidentiary hearing next
week. Fogel has also visited California's execution chamber.

Legg, the judge overseeing Evans' case, similarly examined Maryland's
execution chamber in person over the summer, lawyers involved in the case
said. He is scheduled to hear seven days of testimony in Evans' case.

"With all these hearings, departments of correction are really being
pressed to the wall to describe in explicit detail what they do," Denno
added.

Hut, one of Evans' attorneys, told the judge that testimony from members
of Maryland's execution team will highlight not only their actions during
past executions but also what he characterized as the cursory screening
process for their selection.

A correctional officer responsible for mixing the chemicals has "an
extensive record" of disciplinary problems, including mistreating an
inmate and falsifying a report to cover his actions, Hut said.

A former state trooper responsible for injecting the fatal mixture into
the IV line was forced to retire after failing to cooperate with an
internal affairs investigation after he was charged with assaulting a
teenager, Hut said.

Testimony is scheduled to begin today and continue through the week.
Attorneys for the state are scheduled to present their case over 3 days in
October.

(source: The Baltimore Sun)

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

Evans' Lawyer: Death Penalty Is Unconstitutional


A death row inmate's lawyer argued Monday in federal court that Maryland's
lethal injection process could cause "horrific and painful death" in
violation of the Constitution's ban against cruel and unusual punishment.
But the state contended the process was quick and painless.

WJZ's Adam May has been following the case. May spoke with Evans' lawyer
who is arguing the state's method of execution is unconstitutional.

A. Stephen Hut Jr., an attorney for Vernon Evans Jr., attacked the way the
3-drug cocktail used in the process are administered. He also questioned
the qualifications of the execution team.

Hut said his client's veins have been so badly damaged from years of drug
abuse that lethal injection could cause extreme pain without more careful
attention than has been available in past executions.

But Laura Mullally, an attorney representing the state, said Hut's
argument has a "wolf-in-sheep's-clothing aspect." She emphasized that "an
execution is not a medical procedure."

"It is the antithesis of medical treatment," Mullally said, adding that
American Medical Association rules prohibit doctors from participating in
executions. Mullally said medical records indicated none of the five men
executed in Maryland since 1994 felt pain while being put to death.

Hut, however, said Maryland's current protocol for carrying out lethal
injection in Maryland must be changed to avoid being unconstitutionally
cruel. Hut cited a similar process used in Ohio, which announced plans to
change its system in June after experiencing a 90-minute delay in putting
a man to death because officials could not find a viable vein to inject
the lethal drugs.

Hut said witnesses heard moans and groans from behind a closed curtain as
a viable vein was sought, and that a witness will testify in Baltimore
about what happened.

Maryland uses three drugs during executions. Sodium pentothal makes the
inmate unconscious, pancurium bromide paralyzes the inmate's breathing and
potassium chloride stops the heart. State law calls for the lethal
injection to consist of an "ultra-short acting barbiturate" combined with
a "chemical paralytic agent" to cause death.

Hut said the process needs someone trained with knowledge of
anesthesiology to be in the execution chamber while the drugs are being
injected in case something goes wrong. He also criticized the logistics of
the rooms used in the execution.

Hut also questioned the qualifications of people who serve on the
execution team, saying supervisors have a "cursory at best" understanding
of participants' past professional and disciplinary records.

The case, which is being heard in federal court in Baltimore by U.S.
District Judge Benson Legg, will include testimony from doctors and
members of the execution team, whose anonymity will be protected by
closing the courtroom to the public when they testify.

Evans was sentenced to die for the murders of Scott Piechowicz and his
sister-in-law, Susan Kennedy, in 1983. In February, Maryland's Court of
Appeals stayed his execution.

The state's highest court heard arguments in 4 separate cases in May,
including a claim that racial bias played a role in the decision by
prosecutors to ask that he be executed.

The court has yet to rule on those cases.

(source: WJZ News)




NEW JERSEY:

Assemblyman changes mind on capital punishment


State Assemblyman Nelson T. Albano, D-Cumberland, Cape May, Atlantic,
announced Friday at a forum against the death penalty that he has changed
his mind and now opposes capital punishment. Albano told an audience of
about 50 people at Sacred Heart High School that his change of heart came
after reading a book about Kirk Bloodsworth, the 1st death-row inmate in
the United States to be exonerated by DNA evidence. The book, he said,
gave him compelling insight into why our capital-punishment system is
flawed and should be put on hold.

"I think we owe it to the people in our prisons who are innocent to stop
executing," he said.

The forum, which was sponsored by New Jerseyans for Alternatives to the
Death Penalty, featured talks by 2 prominent speakers in the national
campaign to abolish the death penalty.

Maryland resident Vicki Schieber, whose 22-year-old daughter was murdered
by a serial rapist in Philadelphia in 1998, told those in attendance why
she and her family opposed the death penalty for her daughter's killer.

"That doesn't help me heal, and it creates another grieving family,"
Schieber said. "That doesn't lessen my pain. That doesn't bring my
daughter back."

The other speaker, Juan Roberto Melendez, spent almost 18 years on
Florida's death row before he was exonerated in 2002 after discovery of
evidence prompted a judge to grant him a new trial.

"I was not saved by the system," Melendez said. I was saved in spite of
the system. I was saved by the grace of God. I was saved by miracles."

The speakers' appearance in Vineland follows their testimony this week to
New Jersey's Death Penalty Study Commission.

The panel, which was set up early this year by the Legislature to assess
the state's capital punishment system, consists of 13 members from the
state's law enforcement, legal and judicial segments as well as public
representatives. The panel will hold a series of meetings, including one
in Trenton on Sept. 27, before its final report is due in mid-November.

Albano said he has a strong personal connection to the ideas and feelings
associated with capital punishment. His 19 year-old son was killed Dec.
20, 2001, he said, by a drunken driver who was a 5-time repeat offender.
He considers his son's killing an act of murder.

"I know what it feels like to want revenge," he said. Let the guilty truly
suffer and live their lives without freedom."

According to NJADP director Celeste Fitzgerald, the organization was
founded in 1999 and has earned the support of more than 10,000 members and
250 supporting organizations such as the League of Women Voters. The
group, she added, began lobbying legislators to look at the state's
capital punishment system in 2003.

Fitzgerald said that 80 percent of the state's capital convictions are
overturned at some point in what she described as a lengthy and expensive
appeals process.

"The more you know about the death penalty, the less you like it," she
said.

For more information on NJADP, go to www.njadp.org.

(source: Atlantic City Press)