[Deathpenalty] death penalty news----CALIF., USA

[Rick Halperin]

April 4


CALIFORNIA:

Judge acts to protect executioners' privacy


In San Francisco, a U.S. federal judge reviewing whether lethal injection
is cruel and unusual punishment ordered on Monday that identifying
information on California's executioners not be made public.

In his order, Judge Jeremy Fogel in the Northern District of California
said lawyers for a killer set to die by lethal injection could gain
details about the executioners at San Quentin prison but not make that
information public.

"The court has found that the records of recent executions raise
substantial questions as to whether the drugs are in fact being
administered properly," Fogel wrote in a protective order.

"Under these circumstances, plaintiff must be given a reasonable
opportunity, in a manner that will not jeopardize the safety of prison
personnel, to explore possible answers to these substantial questions,
including answers that relate to the background, training and experience
of the members of the execution team."

Last Thursday, Fogel made an unusual visit to the death chamber at San
Quentin prison north of San Francisco to question the lead executioner in
detail about California's lethal injection procedure.

Lawyers for Michael Morales, who raped and bludgeoned a 17-year-old girl
to death in 1981, say the 3-chemical lethal injection causes undue pain
prior to death.

As lawyers review personally identifying details about the San Quentin
staff who inject the lethal chemicals, they are barred from making those
details public, the judge said.

During Fogel's visit last week, the guard who leads the execution
expressed concern about others learning of his role in the administration
of society's harshest punishment.

Inmate Morales was scheduled to be executed in February, but the
proceeding was scrapped at the last minute when the prison proved unable
to have two anesthesiologists present as ordered by Judge Fogel.

Fogel is scheduled to hold a full hearing on lethal injection next month.
Attorneys for Morales on Monday filed a motion asking for a delay of his
execution until September to allow a more thorough examination of the
issue.

"A full and fair, timely hearing has the potential to resolve this issue
for the courts, the defendants and approximately 660 currently condemned
inmates and countless more to come," lawyer John Grele wrote.

(source: Reuters)

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

Killer's Retardation Claim Is Denied----Riverside County judge upholds
death sentence of a man who shot a boy in 1984. His case now goes to
state's high court.


A Riverside County judge on Monday upheld the death sentence of Horace
Edwards Kelly in the 1st case tried under a recent California Supreme
Court ruling that allows mentally retarded inmates to challenge their
execution sentence.

Riverside County Superior Court Judge W. Charles Morgan ruled that Kelly's
attorneys failed to prove that Kelly was retarded when he killed 3 people
in 1984, including an 11-year-old boy.

The state's high court ruled in February 2005 that inmates could receive a
hearing to challenge their death penalties if an expert said they were
retarded. Kelly's attorneys had argued that their client displayed
significant mental deterioration and suffered from schizophrenia.

Morgan said he doubted the credibility of the defense witnesses and asked
why lawyers did not cite a deteriorating mental status in Kelly's previous
trials.

"These things don't happen in real life," Morgan said. "I call into
question the vast majority of the witnesses that the petitioner called."

Kelly, who has twice come within a week of execution but was awarded
stays, will have the case heard in the state's high court, Riverside
County Chief Deputy Dist. Atty. Kevin Ruddy said.

Defense witness Dr. Sophia Vinogradov, a clinical, academic and research
psychiatrist in San Francisco, wrote that Kelly "frequently speaks in an
incoherent word salad that makes his speech practically unintelligible."
Kelly was also sexually and physically abused by his father as a child,
defense attorneys said.

Kelly faces 3 death sentences, including 1 for killing Danny Osentowski,
11, on Thanksgiving Day in 1984.

Danny and his 13-year-old cousin Shannon Prock were walking to a
convenience store in the Riverside County town of Pedley, when Kelly, a
security guard at a nearby construction site, grabbed the girl and held a
handgun to her neck as he dragged her to his van, court records show.

Danny kicked Kelly in the shins, allowing his cousin to escape. Kelly then
fatally shot Danny in the chest and head.

After Kelly confessed to the slaying, detectives determined that the
bullets from his gun matched bullets from 2 San Bernardino County killings
the week before.

Sonia Reed and Ursula Houser were both found shot in the back and nude
from the waist down.

Kelly stole 2 of Houser's rings, giving one to his wife and selling the
other, prosecutors said.

Ruddy argued that Kelly successfully held a job and had a driver's
license, proving that he was not mentally retarded.

"This is the culmination of 20 years of Mr. Kelly not taking
accountability for what he did," Ruddy said. "It's as simple as that."

Kelly is at San Quentin State Prison and was not present at Monday's
ruling.

In 2002, the U.S. Supreme Court ruled that executing a mentally retarded
person was unconstitutional because it was cruel and unusual punishment.

Justices left it to each state to arrive at a definition of retardation.

Last year, the California Supreme Court ruled that a judge must decide
whether it was more likely than not that a defendant had "significantly
subaverage general intellectual functionings" and that the disability
began before age 18.

(source: Los Angeles Times)

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

Suspect in Elk Grove shooting rampage faces death penalty


In Davis, a man who allegedly went on a shooting rampage through the
streets of Elk Grove faces the death penalty for the murders of 2 men and
attempted murders of several others.

28-year-old Aaron Norman Dunn was arraigned in a closed hearing today at
his bedside in U-C Davis Medical Center. He still is recovering gunshot
wounds suffered during a police confrontation that ended the March 25th
rampage.

Dunn was charged with 2 counts of murder and 7 counts of attempted murder
with special circumstances.

Authorities say the rampage began when Dunn -- wielding a 12-gauge shotgun
-- shot a man sitting outside a restaurant in his car. Dunn then allegedly
drove down the street, shot another man and continued shooting at parked
cars and other bystanders until a police officer shot him.

Authorities say Dunn was high on methamphetamine at the time.

His next court hearing is scheduled for April 12th.

(source: Associated Press)






USA:

Analysis: Moussaoui case full of twists


Thanks largely to Zacarias Moussaoui himself, prosecutors have cleared the
highest hurdle in their effort to execute the al-Qaeda conspirator. But
the path to the death chamber might still contain some unpleasant
surprises for the government.

When the case began more than 4 years ago, it looked easier. The
government at first thought Moussaoui was intended to be a 20th hijacker
on Sept. 11, 2001. Once it became clear that wasn't his role, the
government dialed back its case.

But it didn't want to drop the death penalty for the only person charged
in this country in the nation's most deadly terrorist attack. The biggest
problem was that Moussaoui was in jail on 9/11 and had been for almost a
month.

The final government theory bore some resemblance to a pretzel: Moussaoui
was directly responsible for deaths on 9/11 because he hadn't confessed
all he knew when arrested, thus preventing the FBI from moving to block
some or all of the four hijackings that day.

Another twist was added when many of the government witnesses for the
prosecution gave as much or more comfort to the defense: They acknowledged
misstep after misstep in handling leads about Moussaoui and other
terrorists in the summer of 2001, raising doubts about what if anything
Moussaoui could have said to change things.

Then Moussaoui took the stand over the objections of the court-appointed
defense lawyers. He abandoned claims he'd made for 3 years that his plot
to fly a 747 into the White House was unrelated to 9/11. For the 1st time,
he said he had been training to hijack a 5th jetliner on 9/11 and fly it
into the White House.

"This stage of the penalty phase was probably harder for the government,
but that was before he took the stand and connected all the dots for the
jury," said Richard Dieter, executive director of the Death Penalty
Information Center, a group that advocates more equitable administration
of the death statute.

"Whether this act (lying to agents) fits the federal death penalty law may
have been a tougher question without his testimony," Dieter added.
"Whether his acts a month or months ahead of time directly caused these
deaths is a good question. The fact that the defendant himself says they
were directly connected doesn't necessarily prove it, but it was enough
for the jury."

Now testimony shifts in the 2nd phase to whether Moussaoui deserves the
death penalty for his actions. Prosecutors will introduce evidence of how
heinous the crime was, while the defense will try to show mitigating
factors.

What do they have: Prosecutors can pick among the personal tragedies of
the families of nearly 3,000 people who died in the 9/11 attacks. The
defense has indicated it will try to call a doctor to testify Moussaoui
was schizophrenic and sociologists to describe his impoverished upbringing
in France and the racism he faced there and in England for his Moroccan
ancestry.

The testimony of victim families "is going to be a highly emotional,
devastating presentation to the jury," said Mary Cheh, a law professor at
George Washington University, who thought the eligibility phase could have
gone the other way. "I can't imagine his being able to overcome that."

Now defense attorneys "are going uphill all the way," Cheh added. "I have
no idea what they will come forward with."

Northwestern University Law Professor Ronald Allen agreed that Moussaoui's
team has "a very uphill fight," but he cautions that the first phase is a
formal decision while "the second decision is whether to kill somebody.
That becomes intensely personal. It's moral and complicated and messy."

Dieter agreed: "It only gets more complicated when a person's life is in
the balance."

Another George Washington University law professor, Stephen Saltzburg,
also thought prosecutors had gotten past the hard part and their phase two
presentation would be pretty straightforward. "You're going to see some
powerful testimony from the families," Saltzburg said. "It's going to be a
chance for some of them to get closure as best they can."

And Moussaoui could harm his own case again, Saltzburg said. He doubted
the 37-year-old Frenchman would cooperate in any effort by his lawyers to
portray him as a lunatic, but "he's liable to want to testify again, and
do himself even greater harm. I would not be surprised if he doesn't
invite them to give him the death penalty."

That would bring on the last step: appeals.

Dieter said the government's unusual case left many questions for an
appeal, where anything could happen.

For prosecutors, "the more difficult time is going to be on appeal," said
Jesse Chopper, law professor at the University of California at Berkeley.
"His appointed lawyers are going to have many, many potential issues to
raise. Compared to that, the penalty phase will be a piece of cake."

(source: The Associated Press)

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

The 'Enemy' Delivers Himself


They swallowed their skepticism and took him at his word, these jurors,
and at the same time they gave him what he wants. They believed the
testimony of a despicable man whom his own attorneys call a "homicidal
liar" and in doing so brought a suicidal jihadist much closer to the
virgin-laden paradise he thinks is waiting for him after he gets lethally
injected at the federal penitentiary in Terre Haute, Indiana.

So now Zacarias Moussaoui, perhaps the most inept terrorist Al Qaeda ever
has produced, is a couple of weeks or so away from hearing that he is on
his way to death row. That result surely is ordained given the enormity of
the crime with which Moussaoui now has been legally linked and the
relative paucity of any "mitigating" factors that would tend to make
jurors sympathetic to the man who told them to their faces in court last
Monday that they are his sworn enemies.

By finding that the confessed terror conspirator is eligible for the death
penalty, the federal jury of nine men and three women declared that
Moussaoui knew enough about the Sept. 11 plot to have helped government
officials avoid it had he just told the truth when arrested on immigration
charges in August 2001. By endorsing the link between a terror trainee who
never contacted any of the 19 actual Sept. 11 hijackers and the deadliest
crime in American history, the panel rejected defense claims that our
government was so blind, deaf and dumb before Sept. 11 that it would not
have been able to properly process information from Moussaoui no matter
how dramatic his story might have been back then.

Prosecutors no doubt will spin this verdict as a victory and on paper it
looks that way. After all, they now can boast that they "won" the most
important battle yet in the only Sept. 11-related criminal trial we are
ever likely to see. By inflating Moussaoui's status to that of a cog in
the Sept. 11 terror machine, and therefore conflating his malicious intent
with those of the real hijackers, the government was able, at least for
now, to cover the fact that there was no good evidence establishing that
Moussaoui caused death on Sept. 11 when he failed to tell federal agents
the truth about his intentions one month earlier. Let's be clear: the
government's death penalty pitch was built on shifting sands, on whispers,
hunches and guesses. If ever there were a prosecution case to be labeled
"woulda, coulda, and shoulda" this would have been it.

That's why the feds ought to feel more lucky than proud over how the case,
and the sentencing trial, has played out over the course of 4-plus years.
With a level of irony (or poetic justice, depending upon your point of
view) that almost defies belief, the feds owe this verdict, and the
continuing hopes for an ultimate death sentence, to one man and one man
only. Every time prosecutors seemed doomed - and it happened more times
than even they would care to admit - they were bailed out by none other
than Moussaoui himself.

That's right. The guy who says he hates America helped America get this
verdict against him more than anyone or anything else. He helped the
government first by trying to represent himself, with disastrous effects,
several years ago. Then he helped the government he hates by trying to
plead guilty a few years ago, only to have U.S. District Judge Leonie M.
Brinkema reject his plea request when he refused to agree that he was part
of the Sept. 11 plot. Then he actually pleaded guilty, last year, and
thereby saved the government the arduous task of proving even more than
they had to prove in this case. And, when it became clear a few weeks ago
that this tactic wasn't working, he decided to try something else.

So he helped prosecutors most vividly just last Monday by rescuing their
dismal case against him. He sat in the witness box and told jurors that he
was heavily involved in the Sept. 11 plot and gleefully lied to cover it
up. There is no way this verdict would have come down the way it did, or
at least as quickly as it did, without Moussaoui's own incriminating
statements made as a witness. He tied up the case with a neat little bow
so that jurors could simply hang it all on him. Even the judge herself
commented on the "dramatic" change in the dynamic of the case after
Moussoaui testified.

That testimony, and it alone, gave jurors all they felt they needed - in
law, fact and conscience - to decide that this death sentencing proceeding
can and should continue. Moussaoui's own words gave the panel an excuse,
you might say, to reach a conclusion they might have wanted to reach
anyway, but probably couldn't bring themselves to reach, after sorting
through the detritus of the government's evidence. Often in these cases,
after all the complexity thrown at them, jurors choose the simplest
explanation for the evidence they've seen. Moussaoui's latest
"confession," contrary though it may be to all of his previous
confessions, offered jurors that simple path and they have chosen it.

So now the only way Moussaoui now avoids the death penalty is if jurors
disregard the law about "aggravating" and "mitigating" factors during the
next phase of the sentencing trial and simply decide that the best way to
punish the guy is not to grant him martrydom but instead to make him rot
in the Supermax prison in Florence, Colo. for the rest of his days. But if
they were going to take that route you'd think they'd have simply ended
the trial now and not forced themselves into a few more weeks of
testimony, which will be as emotionally devastating as anything ever
offered in any courtroom ever.

No, I think these jurors have decided that if Moussaoui wants to leave
this world, whether he is lying or not, or whether they care or not, that
they are not going to get into his way. And if he gets his way, and
ultimately makes it to Terre Haute, it'll be about the first time in his
miserable life that he hasn't failed.

(source: CBS News - Attorney Andrew Cohen analyzes legal issues for CBS
News)

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

Advocates want more DNA tests in criminal cases

Kirk Bloodsworth spoke recently at 2 area events about his nearly 9
hellish years in prison, 2 of them on death row. He was released and
became the 1st American death-row inmate exonerated through DNA evidence.
But it took until 2003 - a decade after his release from a Maryland state
prison - for people to stop calling him a rapist and child killer.

Bloodsworth, 45, like others wrongfully convicted and on death rows
throughout the country, needed DNA tests as proof to gain clemency,
vindication and exoneration.

DNA testing freed Bloodsworth from prison, but it did not free him from
naysayers who thought of the testing as merely a loophole in the law. He
was cleared - after being condemned to death - in the 1984 rape and murder
of Dawn Hamilton, 9, in a Maryland suburb, but he was still ostracized by
people he had thought were his neighbors and friends. Strangers would call
his home and yell out, "Murderer."

He was exonerated when forensic experts ran DNA tests on the semen on the
victim's underwear and found that it did not match that of the convicted
man. Bloodsworth was relentless - he urged authorities to search the FBI's
national database, called CODIS, to see it held a matching DNA profile.

It did. The rapist and killer was Kimberly Shay Ruffner. Ruffner was
serving a sentence for an unrelated rape at the time Bloodsworth was
imprisoned. The 2 even worked out together. When Bloodsworth found out in
2003 that Ruffner was Dawn Hamilton's killer, he commented that he was
sure Ruffner knew Bloodsworth was serving time for Ruffner's crime.

Ruffner is now serving life in prison for the girl's violent rape and
murder.

One of the most disturbing aspects of his imprisonment, Bloodsworth said,
was knowing that someone who was still out there had savagely killed a
child.

Eddie Hicks, of Galloway Township, a married father of two, knows what
it's like to lose a child. He thought about the death penalty when his
daughter, Jamila, 26, a Pleasantville High School graduate, was shot to
death in North Carolina in May 2000 when she intervened in a scuffle
between the shooter and her younger brother.

"Look, I'm not light on crime," said Hicks, a retired Atlantic City
firefighter recently appointed to the governor's Death Penalty Study
Commission. He added that he does not support the death penalty and said
DNA should be tested in cases where it's available, to make sure the
innocent go free.

The bottom line, advocates such as Bloodsworth and Hicks say, is that DNA
evidence can resolve cases if authorities will listen, and if prisoners
persist in their belief that they have hope for justice.

Jorge Ortiz Jiminez did. He was in the Atlantic County jail for 22 months
awaiting DNA results that would exonerate him after he accused of slitting
a teen's throat in a bar fight in July 1999.

"I am innocent," Jimenez told a judge after he was charged. He demanded a
trial rather than accept a plea bargain for a disorderly persons offense.

In May 2001, Jimenez's DNA tests came back. They showed the blood on
Jimenez's shirt did not belong to stabbing victim Benjamin Garcia, then
16, of Cape May. The Atlantic County Prosecutor's Office dropped the
charges of aggravated assault and weapons offenses, and Jimenez, who had
no prior criminal record, was freed.

"I had nothing to do with the crime," Jiminez told a reporter in 2002
after filing a civil lawsuit. "As a human being I have rights like any
other human being, but I feel like I was mistreated."

It can take as long as 10 days for a DNA test to be completed, but results
sometimes do not become available for as long as a year, because of the
large number of cases in the system.

It took Bloodsworth an additional 3 months to get out of prison when DNA
proved his innocence. At his talk recently, he said officials with the FBI
wanted their own tests done.

"After waiting almost 10 years, I figured what's another few months,"
Bloodsworth said.

Sharon Hazard-Johnson, whose parents, Richard and Shirley Hazard, were
murdered in their Pleasantville home by Brian P. Wakefield during a home
invasion on Jan. 18, 2001, is a proponent of the death penalty. Wakefield
is on death row for the murders.

"When I read how Kirk Bloodsworth was exonerated and the real murderer of
9-year-old Dawn Hamilton was identified by DNA analysis, my thoughts and
prayers went out to Dawn, her survivors and to Kirk," Hazard-Johnson said.

"In today's world, murders are becoming increasingly cruel and sadistic
and there are no indications that they are not getting worse or becoming
less frequent," Hazard-Johnson said. "I've always been for the death
penalty when it fits the crime, and believe it's a good thing that DNA
exists and serves to confirm and convict the guilty as well as exonerate
or protect the innocent."

Charles Herlands, a Richard Stockton College of New Jersey professor who
serves as Amnesty International's Atlantic County coordinator, is a strong
opponent of the death penalty and speaks out about prisoners' rights.

"Since 1976 we executed more than 1,000 people in the country, and we will
never know if they were innocent or not," Herlands said Saturday,
referring to those who were put to death without DNA evidence either
available or tested.

In Bloodsworth's case, 2 children identified a man they thought was the
killer - a thin, blond-haired man. Bloodsworth was and always has been a
burly, red-haired man.

"There are all kinds of factors that impact because the more heinous the
crime the more they want someone to pay," Herlands said. "I think what we
learned in society is if all you have is eyewitness identification, then
you may be convicting an innocent person."

(source: Press of Atlantic City)