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

[Rick Halperin]

April 18



CALIFORNIA:

Bill on doctors' execution role----A measure to prohibit physician
participation clears Assembly panel.


Sparked by controversy over the planned execution of convicted killer
Michael Angelo Morales, proposed legislation to bar physicians from
participating in capital punishment cleared its 1st legislative committee
Monday.

Assembly Bill 1954 would prohibit physicians from attending executions in
an official capacity, monitoring vital signs, determining an inmate's
point of death, or prescribing, administering or supervising the injection
of lethal medication.

Proponents said AB 1954 would not prevent the state from carrying out
executions by using non-physician personnel.

"This legislation is not about the death penalty," said Assemblyman Alan
Nakanishi, R-Lodi, an eye surgeon by profession and a co-author of AB
1954. "This measure is totally about the medical profession."

But others said there is no way to divorce AB 1954 from debate over
Morales' proposed execution or controversy over the death penalty itself.

Nathan Barankin, a spokesman for state Attorney General Bill Lockyer, said
a 2-pronged attack seems to be emerging against the death penalty.

Morales' lawyers have raised the legal argument that doctors should
participate in executions to ensure that medications are dispensed
properly in compliance with inmates' constitutional right against cruel
and unusual punishment.

But AB 1954 would make it illegal for doctors to play any role, Barankin
noted.

"When you put the 2 together, you've invalidated the death penalty in
California," he said.

AB 1954 passed the Assembly Business and Professions Committee by
obtaining the bare minimum 6 votes needed.

Assemblyman Van Tran, R-Garden Grove, said he cast the final affirmative
vote as a courtesy, to continue discussion.

If the measure is not amended before reaching the Assembly floor, Tran
said, "I would vote against it."

Critics of AB 1954 complained Monday that it could open a Pandora's box by
banning doctors from participating in a particular procedure, even if
their conscience dictates otherwise.

Assemblyman Joe Canciamilla, D-Pittsburg, called AB 1954 a "slippery
slope" that could be precedent-setting in future debates over issues
ranging from abortion to the dispensing of emergency contraceptives by
pharmacists who object to them.

Canciamilla argued that current state law does not compel any physician to
participate in executing a prison inmate.

"Why the need for a state law?" Canciamilla said. "Why not simply say, as
a matter of state policy, we're not going to (force doctors to)
participate in any way, shape or form?"

The question of physician participation in capital punishment sprang from
the case of Morales, who was sentenced to death for the 1981 rape and
murder of 17-year-old Terri Lynn Winchell of Lodi.

Morales' attorneys initially challenged California's execution process,
claiming it constitutes cruel and unusual punishment because inmates might
have been conscious when they received an excruciatingly painful cocktail
of lethal drugs.

U.S. District Judge Jeremy Fogel ultimately ruled that Morales could be
put to death with participation by a "licensed medical professional," such
as a physician, surgeon, nurse or other medical technician.

Prison officials halted the execution Feb. 21, shortly before Morales was
to die, partly because they could not find a medical professional willing
to assist.

AB 1954, pushed jointly by Nakanishi and by Assemblyman Ted Lieu,
D-Torrance, is sponsored by the California Medical Association.

"If physicians were allowed to participate in executions, or become
executioners, it tarnishes the profession," said Francisco Silva, a CMA
spokesman.

"A physician, as a member of a profession dedicated to preserving life,
should not be a participant in an execution," the CMA said in a letter
supporting AB 1954.

CMA also argues that assisting with executions could pose a moral dilemma:
If an inmate did not immediately die from lethal drugs, would a physician
be obligated to kill the person or to save that person's life?

California has every right to bar physicians from participation, Lieu
said.

"Because it's a state-controlled activity, the state can decide who it
allows in and who it will not allow in," said Lieu, who does not contest
the state's general right to execute condemned prisoners.

Barankin said the state's protocol for capital punishment requires that a
physician determine the point of death.

Assemblywoman Sally Lieber, a Mountain View Democrat who has proposed
separate legislation to impose a temporary moratorium on executions, said
AB 1954 indirectly could help her effort.

"Anything that keeps raising the issue helps," Lieber said.

Harriet Salarno, president of Crime Victims United, said AB 1954 could
create a Catch-22: A judge could order physician participation and the
state could not legally comply.

"Why are we doing this?" she said. "It just seems it's for one reason - to
stop the death penalty."

Mack Winchell, father of Morales' victim, said the state should not
interfere with capital punishment.

"I'm thoroughly disgusted with them bringing this all up," he said. "Go
ahead and execute him. He's already had 25 years to think about what he
did to my daughter."

(source: Sacramento Bee)

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

Justices to Rule on Photos at Trial----An appeals panel threw out the
conviction of a California man because family members wore buttons
displaying the victim's picture in court.


The Supreme Court agreed Monday to decide whether a California murderer's
right to a fair trial was denied when members of the victim's family wore
buttons in court with a photo of the slain man. It is the latest instance
of the high court's reconsidering a ruling from the liberal-leaning U.S.
9th Circuit Court of Appeals in a criminal case.

Separately, the high court reversed a ruling by the 9th Circuit in an
asylum case, holding that an immigration court judge should consider the
issue of whether a white South African family was entitled to stay in the
United States because they feared persecution in their homeland.

In the murder case, the appeals court, in a 2-1 decision, last year
overturned the conviction of Mathew Musladin of San Jose for the 1994
shooting of his ex-wife's fiance, Tom Studer. Judge Stephen Reinhardt of
Los Angeles said the buttons with the victim's photo "conveyed the message
that the defendant was guilty" and might have prejudiced the jury. Judge
Marsha S. Berzon of San Francisco agreed with him.

The trial judge had said he saw no problem with the family members wearing
buttons in court. They were probably seen by jurors as a sign of "the
normal grief occasioned by the loss of a family member," another state
judge said. The California courts and a federal judge upheld Musladin's
conviction before his case reached the 9th Circuit.

After their separation in 1992, Musladin had threatened to kill his former
wife, Pamela, and the 2 had repeated confrontations over who would have
custody of their son. In 1994, Pamela was engaged to marry Studer. On an
afternoon in May of that year, Musladin came to her house in San Jose to
pick up their son for a visit. In the driveway, he angrily shoved Pamela
to the ground.

When her brother and Studer came to her aid, Musladin shot Studer, first
in the shoulder and then in the head. He maintained the shooting was in
self-defense.

During the trial, 3 family members wore buttons with 2- to 4-inch photos
of Studer. The jury convicted Musladin of 1st-degree murder and he was
sentenced to 32 years in prison.

Congress in 1996 made it harder for federal judges to overturn state
criminal convictions. It said U.S. judges should not free state inmates
unless their convictions arose from "an unreasonable application of
clearly established federal law," as set by the Supreme Court.

Nonetheless, the 9th Circuit has continued to overturn state convictions
with regularity.

Seven judges on the 9th Circuit filed a dissent, saying the full appeals
court should reconsider the decision set by Reinhardt and Berzon.

California Atty. Gen. Bill Lockyer appealed to the Supreme Court, urging
the justices to reverse the ruling.

On Monday, the court issued an order granting the appeal and saying it
would hear the case in the fall.

(source: Los Angeles Times)






NORTH CAROLINA:

Judge Allows Device to Be Used for Monitoring Lethal Injection


A federal judge who had ordered officials in North Carolina to find
qualified medical personnel to supervise an execution by lethal injection
ruled yesterday that a brain wave monitor could be used instead to ensure
that the prisoner would be unconscious and unable to feel pain.

Lawyers for the prisoner, Willie Brown Jr., 61, convicted of 1st-degree
murder, have appealed, saying that only a medical professional trained to
administer anesthesia can ensure that Mr. Brown will be unconscious and
thus not subject to "cruel and unusual punishment," prohibited by the
Eighth Amendment.

The case is the 2nd this year in which a judge has raised concerns that
doctors be present to ensure that the lethal cocktail of drugs is
administered humanely. The American Medical Association's code of ethics
prohibits doctors from directly participating in executions.

Doctors in the first case, involving Michael A. Morales, a California
inmate who had been scheduled to die in February, backed out at the last
minute, citing ethical concerns. Their refusal to participate ultimately
delayed Mr. Morales's execution pending the outcome of a May 2 hearing on
pain and lethal injections.

"Forty-eight states outlaw putting a dog down the way they put human
inmates down," said David Senior, a lawyer for Mr. Morales. "We have laws
that specify that a veterinarian be present to assure the animal is asleep
before it is euthanized."

Mr. Brown's case also appeared to hinge on issues of medical supervision
when Judge Malcolm J. Howard of Federal District Court ordered on April 7
that "personnel with sufficient medical training" be present and
accessible throughout the execution to ensure that Mr. Brown would not
feel the effects of potassium chloride. That drug is the last of three
used in lethal injections and can cause excruciating pain if the inmate is
not unconscious.

In his ruling on Monday, Judge Howard said he was satisfied that an
"execution team," which the state says includes a licensed physician and a
registered nurse who routinely monitor North Carolina's executions, could
watch a brain wave monitor to make sure Mr. Brown stayed unconscious.

J. Donald Cowan, a lawyer for Mr. Brown, disagreed. Because the state has
not revealed the names or the qualifications of the doctor and the nurse,
he said his client could not be certain they had adequate training, or
that they would act if he was not fully unconscious.

John R. Grele, one of Mr. Morales's lawyers, said he had read the rulings
in the Brown case, "and the issue in their case is the same as it is in
our case."

"That is," he continued, "when doctors watch from another room, are they
prepared to step in if something starts going wrong? That's when everybody
starts getting squeamish."

Also at issue is whether the brain wave monitor is suitable for use in a
nonmedical setting by professionals untrained in anesthesia. Doctors at
Aspect Medical Systems, which makes the device, have said they would not
have sold one to the state if they had known its intended use.

(source: New York Times)

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

Judge: State can execute Brown----The convicted killer's lawyers argued
drugs used in lethal injections don't fully sedate the person


After 10 days of uncertainty, a federal judge ruled Monday that North
Carolina may execute death row inmate Willie Brown Jr. later this week.

Brown, 61, is scheduled to be executed at 2 a.m. Friday at Raleigh's
Central Prison. He was sentenced to death for the March 1983 killing of a
Williamston convenience store clerk. Brown had kidnapped Vallerie Roberson
Dixon from the store, taken her to a logging road and shot her 6 times. He
got $90 from the cash register.

On April 7, U.S. District Judge Malcolm Howard ruled that Brown's
execution could only go forward if prison officials made medically trained
professionals available to ensure Brown didn't experience a painful
execution.

Brown's lawyers had raised concerns that the drugs commonly used in lethal
injections across the country didn't fully sedate inmates before they were
given paralyzing and heart-stopping drugs, but rather left them awake to
experience agonizing deaths. Brown's lawyers said only an
anesthesiologist's presence could alleviate their concerns.

A similar legal challenge has stalled executions in California, where a
federal judge required an anesthesiologist to be present. But the doctors
refused to participate, citing medical ethics.

Prison officials in North Carolina responded to Howard's initial ruling by
arranging to have a doctor and nurse evaluate Brown's level of
consciousness on a brain wave monitor in a room adjacent to the execution
chamber.

Officials also would have execution staff prepared to inject additional
sedative if Brown wasn't unconscious based on the machine's readings.

In a seven-page order issued Monday, Howard said he was satisfied with the
state's proposal. The judge chastised Brown and his attorneys for trying
to create a similar standstill here.

"[Brown] attempts to force a conflict of medical ethics by taking the
issue of the positioning of medical professionals in and around the
execution chamber, and dressing it in constitutional clothes," Howard
wrote.

One of Brown's lawyers, Don Cowan, said they have appealed the ruling to
the federal appeals court in Richmond, Va.

Brown's lawyers had argued that a machine was not a replacement for an
anesthesiologist, who evaluates the machine's data in conjunction with
other information to make sure a patient is sufficiently sedated. They
said there was no assurances from the state that the doctor or nurse had
been trained on these brain wave monitors.

Keith Acree, a spokesman for the N.C. Department of Correction, declined
to comment about the ruling.

(source: The News & Observer)

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

State drops appeal in death-penalty case


A mentally retarded man will be removed from North Carolina's death row
after the state's top prosecutors dropped their appeal of the federal
order that released him from the death sentence.

Elton O. McLaughlin, 55, was sentenced to death in a plot to kill James
Elwell Worley, whose wife wanted her husband killed. Mc-Laughlin was also
sentenced to death for kil-ling the wife, Shelia Worley, after she failed
to pay him $3,000. He also killed Worley's 4-year-old daughter, Psoma
Baggett.

Last month, U.S. District Court Judge Ter-rence Boyle ruled that
McLaughlin should be released from death row. The state began an appeal,
but dropped it just as a deadline loomed for filing a list of evidence
that it planned to use.

William McKinney, a spokesman for N.C. Attorney General Roy Cooper, said
that the 4th U.S. Circuit Court of Appeals in Richmond received the
state's motion to drop the appeal yesterday.

"Although we disagree with portions of the judge's order, we believe it is
in the best interest of future prosecutions and the state of North
Carolina that we not appeal this case," McKinney said.

Boyle said that a test showing McLaughlin had an IQ of 70 was valid
although it was administered by a teacher and not a psycho-logist as
required by law. The test was administered in the 1960s at a Bladen County
school when McLaughlin was 10 years old.

The death penalty was outlawed in 2001 for the mentally retarded, defined
as scoring 70 or less on an IQ test and showing poor life skills before
they reach age 18.

Attorney Kirk Osborn said that McLaughlin will be resentenced in Bladen
County.

(source: Associated Press)



ILLINOIS:

Death penalty argued in slayings


Attorneys for a Bellwood man charged in the shooting deaths of two men at
a Broadview gas station in 2002 argued Monday that capital punishment
should be declared unconstitutional.

Sammie Daniels, 21, is accused of the shooting deaths of a gas station
clerk and a customer at the Shell Station at Roosevelt Road and 25th
Avenue in July 2002.

The state is seeking the death penalty in the case.

But in Cook County Court in Maywood, Judge Thomas Tucker said the
constitutionality of the state's death penalty is not affected by the
current moratorium on executions.

Defense attorney Preston Jones argued that because DNA testing had cleared
Death Row inmates and prompted a moratorium on executions in Illinois, a
death sentence should not be a consideration for Daniels, who was 18 at
the time of the shooting.

(source: Chicago Tribune)






USA:

Moussaoui's Sisters Defend 'Sweetheart'----Both are mentally ill and
institutionalized in France. They describe an abusive family.


Zacarias Moussaoui's two sisters told his jury Monday how their baby
brother tried to escape the family's poverty and abuse but instead fell
under the spell of Muslim extremists who turned a hopeful young man into
one filled with hate.

The videotaped testimony of his sisters, both of whom are mentally ill,
was recorded last year. They were questioned at their quarters in separate
institutions in France, only after it was certified that they had been
taking medication to ward off schizophrenia.

They were interviewed in French; their answers were displayed in English
subtitles on a dozen TV screens around the courtroom. Defense lawyers
played the tapes to demonstrate the grave mental disorders that run in
Moussaoui's family, hoping to persuade the jury to spare their client's
life because he long ago lost his ability to reason.

The sisters, Djamilla and Nadia Moussaoui, often stared vacantly into the
camera, showing little emotion about the brother they have not seen for
more than a decade.

"I am in another reality," Djamilla said of her own psychoses. "I can't
find myself. I'm in another place. The doctors tell me I will never be
cured."

Their father, Omar Moussaoui, who moved the family from Morocco to France,
was an alcoholic who routinely beat their mother, Aicha. She and the
children often went hungry; a dinner of potatoes or sardines was
considered a feast.

The parents' 1st son died of dehydration at 6 months of age. The 2nd son,
a week old, died after a botched circumcision.

Then came the 2 girls: Djamilla was hit in the head by a glass thrown by
her father and later attempted suicide, while Nadia, who wanted to learn
to dance, tried to escape by moving to Paris. But she could not shake the
demons of her childhood.

"As an infant he hit me like an adult," Djamilla said. "He made holes in
my head." But young Zacarias, she said, "was the little sweetheart of the
family."

They all hoped he would overcome his infancy spent in orphanages and his
formative years fearful of his father and distrusting a mother who would
not protect him.

Moussaoui was arrested three weeks before the Sept. 11, 2001, attacks
while taking flying lessons in Minnesota. Last year he pleaded guilty to
capital murder; the jury now must decide - possibly by the middle of this
week - whether he lives or dies.

He has testified twice in his sentencing trial, expressing his glee at the
nearly 3,000 people killed on Sept. 11. He also has boasted he was to fly
a fifth plane that day into the White House.

Such bizarre behavior, his defense lawyers say, is indicative of a man who
is mad. To emphasize that conclusion, the lawyers called to the witness
stand 2 mental health experts who have examined Moussaoui or interviewed
his relatives and friends.

Xavier Amador, a clinical psychologist, diagnosed Moussaoui as
schizophrenic with "paranoid" tendencies. He said that three other mental
health experts agreed, and that 2 others found Moussaoui "most likely" had
"delusions and a schizophrenic thought disorder."

Jan Vogelsang, a clinical social worker, said Moussaoui was the product of
his broken home. "I'm going back three and four generations," she said. "I
heard stories after stories after stories of mental illness and
starvation."

Several of Moussaoui's friends in his teenage years, testifying live in
court or on videotape, recalled better times. He was ambitious, they said,
and hoped to make a career in international business, but often was
humiliated by racial prejudice.

He broke up with a girlfriend of 6 years and moved to London, where he
eventually earned a master's degree in business.

But fellow students in London said that after several setbacks, he came
under the grip of radical Muslims hanging around a local mosque.

The mosque's imam, Abdul Haqq Baker, said the radicals were always
outside, passing out leaflets and trying to recruit young drifters. Baker
said much of their rhetoric was vitriol against America and Israel.

Moussaoui soon began espousing their beliefs. He grew a beard and shaved
his head. He came to the mosque in military clothing and talked about
taking up arms for Islam.

"He kept asking me impatiently, 'Where is the jihad in the world? Where is
it?' " Baker said.

After the imam asked him to leave, Moussaoui returned to France.

According to witnesses, he repeatedly asked his mother to forgive him -
for what was never made clear - before he could go on jihad. His ambition
was gone. He was moody, often tired. He would sit in a chair for hours,
crying. He mumbled.

That behavior is similar to what he does now. Vikas Ohri, a deputy guard
in the Alexandria jail, said Moussaoui often stands at a wall in his cell,
wagging a finger, speaking to no one.

The prisoner also has told the guard his dreams. He envisions how Sept. 11
happened. He recounts how he was arrested. And he predicts that President
Bush will set him free, that he will fly from New York to London. There he
will write a book, make a fortune and live to fight with Al Qaeda in the
mountains of Afghanistan.

"You'll see," Ohri said Moussaoui told him. "I will be set free."

(Los Angeles Times)

**********

Moussaoui's Childhood Is Presented as Mitigating Factor


Lawyers trying to persuade a jury to spare the life of Zacarias Moussaoui
began presenting testimony about his childhood on Monday, to show that he
grew up in a neglectful household in France where his father beat his
mother regularly and that he spent much of his youth in orphanages.

Witnesses also said Mr. Moussaoui was unprepared to deal with the racist
anti-Islamic taunts of schoolmates and the hostility of the parents of a
French girlfriend.

Jan Vogelsang, a clinical social worker from South Carolina, led off with
a psychological survey of the Moussaoui family and their continuing mental
health problems. The day concluded with the testimony of Dr. Xavier
Amador, a psychologist who has interviewed the defendant several times and
told the jury that Mr. Moussaoui suffered from schizophrenia of the
paranoid variety.

Between the testimony of those two mental health professionals, the jury
heard from friends of Mr. Moussaoui in France during his teenage years and
early 20's. The man they described was nearly unrecognizable from the
angry defendant the jury saw last week expressing regret that more people
had not been killed on Sept. 11, 2001.

The friends, some testifying in person and some via videotape, described
the young Mr. Moussaoui as joyful company and a loyal friend. A boyhood
friend, Gilles Cohen, testified in person that they often discussed the
conflict between Israel and the Palestinians. Mr. Cohen, who has a Jewish
parent, said he and Mr. Moussaoui had agreed that they "exemplified the
possibility of 2 people of different origins to come together to have an
understanding."

Ms. Vogelsang, who did not interview Mr. Moussaoui but spoke with his
relatives, teachers and doctors in France, testified that Mr. Moussaoui's
father, a former boxer, regularly beat both of Mr. Moussaoui's sisters but
that most of the abuse was directed at his wife, who frequently required
hospitalization. Ms. Vogelsang said the father, Omar Moussaoui, who had
immigrated to France from Morocco, also "used starvation to control" his
wife. It was unclear if and how often Zacarias Moussaoui was beaten.

Ms. Vogelsang also said Mr. Moussaoui was unprepared to deal with racism
at schools and orphanages.

Mr. Moussaoui, the only person to be tried in an American courtroom in
connection with the Sept. 11 terrorist attacks, has pleaded guilty to
conspiracy, and the jury has determined that he is eligible for the death
penalty. In the 2nd phase now under way, the jury must decide whether Mr.
Moussaoui should be executed or spend the remainder of his life in prison.
To do that, jurors are to weigh the heinousness of the crime against any
mitigating factors.

Prosecutors have presented a parade of witnesses, including surviving
family members who testified about their grief and the enduring impact of
the 2001 attacks.

The day's testimony was part of the effort to demonstrate that a
mitigating factor is Mr. Moussaoui's unstable childhood and mental
illness.

Ms. Vogelsang testified that Mr. Moussaoui's father was in a mental
institution in France and was incoherent during her interview because he
was heavily medicated. Mr. Moussaoui's two sisters, who testified via
videotaped depositions, are also under care and living in government
housing for the mentally ill. Jamilla Moussaoui described her little
brother as "the sweetheart of the family."

Ms. Vogelsang also said that from the age of 16 to 22 Mr. Moussaoui had a
girlfriend named Karine Bocat with whom he went to parties and bars. She
said Mr. Moussaoui "suffered a lot of pain about not being accepted by the
family" because he was of Moroccan heritage.

Mr. Moussaoui, whose attention seems to wander much of the time, appeared
to listen carefully as Ms. Vogelsang described his warm relationship with
Ms. Bocat and noted that she was married with 2 children.

Another old friend, Christophe Marguel, testified in a videotaped
deposition that Mr. Moussaoui had hoped to spend his life with Ms. Bocat
but that the parents' opposition proved insurmountable and that their
rejection "diminished him."

David J. Novak, a prosecutor who cross-examined Ms. Vogelsang, asked if
Mr. Moussaoui's brother also endured the same difficult home environment.
After she acknowledged that he had, Mr. Novak then noted that the brother,
Abd Samad, was a successful engineering teacher in France and not a
terrorist.

(source: New York Times)