[Deathpenalty] death penalty news----TEXAS, IND., USA, ILL.

[Rick Halperin]

Oct. 17



TEXAS:

Killer appeals death sentence


9 years after killing a Schreiner University professor, death row inmate
Ramiro Hernandez on Monday sought an appeal, which his attorneys are
basing on a 2002 Supreme Court ruling.

The appeal is being heard by 216th District Judge Steve Ables, who
sentenced Hernandez to death in 2000 for the 1997 capital murder of
49-year-old Glen H. Lich. The former Schreiner College professor was slain
in 1997 at his South Kerr County ranch, where Hernandez worked.

Attorneys for Hernandez are seeking to prove the Mexican citizen is
mentally retarded and should not be executed because of the 2002 U.S.
Supreme Court decision on the case Atkins v. Virginia. The high court
ruled in Atkins that executing mentally retarded criminals constituted
cruel and unusual punishment.

In court Monday, defense attorneys called Hernandez' brother, a friend and
a psychologist who evaluated the defendant in 2000. Under
cross-examination by Attorney Richard Langlois, Dr. Gilbert Martinez said
his 2000 report indicated that Hernandez had an IQ in the mid-50s.

"If a person scores between 50 and 65, they may be considered to have mild
retardation," Martinez said, Under questioning, he also reported that
Hernandez had impaired auditory and visual attention and social judgment.

District Attorney Bruce Curry asked Martinez if Hernandez's reported
struggle with depression could have reduced his IQ score from another
test, where the defendant was said to have scored an 83.

"Depression, especially severe depression, can cause changes of scores on
cognitive tests," Martinez said. "I don't believe depression would cause a
change of scores from 83 to 57."

The other witnesses testified that Hernandez was unable to follow
directions when sent on errands and playing games and did not complete
elementary school.

Hernandez' brother, Jorge Hernandez Llanas, testified that the family
members were natives of Tamaulipas, Mexico, but the brothers were raised
in a shack near dumps in Laredo. Llanas described working in the dumps
with their father, recounted a violent upbringing and said his brother was
unable to follow directions working in the dump or going to the store.

Under questioning from defense attorney Lucy Cavazos, Llanas said he did
not know if his brother successfully traveled alone as an adult in the
period following his escape from a prison in Mexico until he was arrested
for Lichs murder in Kerr County.

Earlier Monday, defense attorney Morris Moon and Cavazos questioned Llanas
about letters sent to him by his brother since his incarceration. Cavazos
sought to have Llanas identify handwriting belonging to his brother. Moon
unsucessfully tried to have the documents thrown out saying it was unclear
if the documents actually were written by Hernandez.

The hearing will resume this morning at Kerr County Courthouse.

(source: Kerrville Daily Times)

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

Graves still behind bars despite efforts to free him


A Brenham man jailed for almost 15 years for capital murder remains behind
bars despite efforts to free him on bail.

A jailer at the Burleson County lockup confirmed this morning that Anthony
Graves were still in that facility, despite some reports that he had been
freed on bail.

A Houston TV station reported last week that Graves had been freed on bond
after a federal magistrate recommended a $50,000 bond be set.

Magistrate John Froesch-ner recommended a $50,000 bond for Graves who was
convicted of capital murder in a 1992 case.

The recommendation, made following a hearing in Galveston, would restrict
Graves' travel outside of Texas without court approval.

Froeschner's recommendation has been forwarded to U.S. District Court
Judge Samuel Kent , who will make a final decision later this month.

The Texas Attorney General's office is expected to try to block Graves'
release. Attorneys from the AG's office and representing Graves have until
Friday to file any motions in the case.

An appeals court in March ordered a new trial for Graves, and he was
returned to the Burleson County Jail after being on death row for 14
years.

Exactly which court has jurisdiction to set bond in the case was unclear,
with the AG's office arguing a district judge in Burleson County must do
that.

District Court Judge Reva Towslee-Corbett said in a Sept. 8 pretrial
hearing that the issue of whether she or the federal court had
jurisdiction on bond was unclear.

Earlier this month, the U.S. Supreme Court refused to block a lower court
ruling ordering another trial for Graves.

The court refused to hear an appeal by the AG's office to overturn a
ruling by the Fifth U.S. Circuit Court of Appeals that Graves must be
given a new trial.

Carter, who was executed in 2000, originally implicated Graves in the
murders but later recanted Graves' involvement, including Carter's final
statement.

While strapped to a gurney in the Texas Department of Criminal Justice's
execution chamber, Carter said Graves was innocent.

The Fifth Circuit's ruling also said that saying that prosecutors withheld
earlier statements by Carter that Graves was not involved.

Those statements, the court said, should have been presented to jurors and
Graves' attorney.

Charles Sebesta, the retired district attorney who successfully prosecuted
Carter and Graves, has been adamant that he never considered Carter's
statement that he committed the murders credible or material and "simply
dismissed it."

Sebesta said evidence clearly showed more than one killer. Sebesta also
voluntarily took a lie detector test which showed there was no deliberate
deception on his part.

That test, Sebesta has said, showed he did not deliberately withhold any
evidence that would have cleared Graves.

(source: Brenham Banner-Pass)






INDIANA:

Cost takes another toll in death penalty cases


By the time it's finished, the death penalty trial of accused killer
Nicholas Harbison could cost Pike County hundreds of thousands of dollars.

For a rural county with a population around 13,000, the expense can be a
huge burden. In some states, such as Texas, death penalty cases have
bankrupted small county governments.

"A lot of counties don't seek the death penalty for that reason," said
Richard Dieter, executive director of the Washington, D.C., based Death
Penalty Information Center.

Cost was a factor in the decision to pursue the death penalty against
Harbison, 23, charged with three counts of murder and one count of
attempted murder, said Darrin McDonald, Pike County chief deputy
prosecutor.

But ultimately the wishes of the victims' families, who have repeatedly
voiced their support for the death penalty, weighed heavier, he said.

"On something that is extreme as anything that you can ever imagine, I
just figured that you can't weigh humans' lives, especially 17-, 18-,
20-year-olds," McDonald said.

"But really, any human life - you can't evaluate that in terms of cost."

Harbison is accused of killing Keela Lynch, 18, of Princeton, Ind.; Daniel
"Spencer" White, 21, of Franciso, Ind.; and Rebekah Acorn, 17, of
Evansville.

Their bodies were found July 17 in a remote Pike County cornfield. Police
say Harbison mutilated and tortured two of the victims after he shot them.

Harbison has 2 attorneys, Steven Ripstra and Nathan Verkamp. Both are
court-appointed public defenders.

Ripstra has requested a change of venue and discussed hiring a mitigation
expert and private investigator, whose services can run more than $100 an
hour.

To pay for those expenses, McDonald will likely seek aid from the Indiana
Public Defender Commission.

The commission was created in 1989 to help small counties pay for death
penalty cases. It has an annual fund of around $10 million that is used to
reimburse counties for both capital and noncapital cases, said Larry
Landis, executive director of the Indiana Public Defender Council.

Counties can be reimbursed for up to 50 % of expenses associated with a
death penalty case.

To be eligible, a defendant must have 2 attorneys and the support services
during the trial must comply with state standards.

"One case can cost $500,000," Landis said.

"For a small county that's an enormous expenditure."

Since 1976, 17 people have been executed in Indiana, according to the
Death Penalty Information Center.

Currently, there 37 people on Indiana's death row. Pike County's last
death penalty case was in 1981.

Richard Dillon was sentenced to death for killing 2 people, but that was
overturned.

The prosecutor agreed to a plea bargain in a retrial because of cost
concerns.

"If cost is the issue, when, if ever, would you support the death penalty
or pursue it in Pike County?" said McDonald, who reviewed the Dillon case
before deciding to seek the death penalty against Harbison.

"And if you look at cost as being a determinative issue, you might as well
hang a banner at the end of the county when you drive into Pike County
that says we're not going to pursue the death penalty no matter who it is
... (because) we just don't have the money.

"It just doesn't seem like it should fall out that way."

(source: Evansville Courier & Press)






USA:

US court challenge: How to corral 12 not-so-angry jurors


In Sugarland, Texas, a judge without a jury orders deputies to round up
160 citizens off the streets at random to sit in judgment.

In Providence, R.I., only 100 of the 200 potential jurors in the case of a
deadly nightclub fire showed up for jury duty.

Here at the mammoth Fulton County Courthouse in Atlanta, court
administrators are forced to send out twice as many jury summonses as
necessary in order to draw a big enough jury pool for a busy week at the
hall of justice.

The number of people not responding to a jury summons has become so acute
that it has prompted judicial groups to investigate. Outdated juror lists,
rundown jury rooms that feel like jails, and growing time pressures on
Americans are mostly to blame, their research has found. Nationally,
there's a 20 percent no-show rate, according to the American Judicature
Society. In some cities such as Miami, the rate is as high as 90 %.

The "no-show rate across the country is staggeringly high," says political
scientist Jeffrey Abramson, author of "We the Jury: The jury system and
the ideal democracy."

Problems of small jury pool

Whatever the excuse, a high no-show rate, critics say, causes deep
fissures in the bedrock of the republic mostly because a jury pool winds
up being unrepresentative of the community. Some people end up thinking
that jury duty is optional because courts can't take the time away from
conducting trials to follow up with all those who are absent and charge
them with contempt of court.

But other courts, including Cobb County, Ga., are taking an active role to
solve the problem. "We don't put up with [no-shows]. They either show up
or the sheriff goes out and gets them," says Skip Chesshire, the court
administrator in Cobb County.

If there are too many no-shows, "defense attorneys can ... persuasively
argue that you don't have a true cross section of your community
represented in the jury box," he says.

Excuses: 'The dog ate my summons'

Some of the earliest jury statutes from colonial Virginia fined tobacco
farmers who refused to leave their fields during planting season to render
verdicts at the courthouse.

Today people find other ways to get out of serving. All court
administrators have their favorite excuses: There was the businessman in
Massachusetts who went missing the 2d day of a trial. He claimed to be
sick in bed at home, but he was really in New Jersey at a business
meeting. The irate judge fined the juror $2,000 and forced him to sit
through the remainder of the trial in the courtroom in the audience,
according to Pam Wood, the jury commissioner in Massachusetts.

People that are most likely not to show up are busy professionals and poor
minorities who don't have consistent addresses.

"You wrestle with these people," says Doug Johnson, the court
administrator in Douglas County, Neb., which handles all of Omaha's legal
disputes. "Unless the sheriff comes and drags them in, you cut your
losses. People come up with the strangest things, like the dog ate my
summons."

For those people who do serve as jurors, the vast majority come away with
renewed confidence in the justice system, according to the Center for Jury
Studies in Williamsburg, Va.

Yet another study showed that one-third of those who sat on lengthy
death-penalty cases would "do anything to get out of doing it again," says
Scott Sundby, a law professor and jury expert at Washington & Lee
University in Lexington, Va.

High stakes in Fulton County case

Here in Fulton County, the stakes to find jurors are high in the
death-penalty case of Brian Nichols, an African-American who stands
accused of killing a white judge and three other people as he escaped the
Fulton County Courthouse in March 2005. Lawyers have filed motions
claiming that outdated addresses on the jury list have resulted in fewer
minorities showing up at the courthouse for jury duty. Research shows that
death-sentence convictions drop by 30 percent in black-on-white murder
cases when at least one juror is a member of the minority group, according
to Mr. Sundby.

"The word's out that you can sort of not show up if you don't want to,"
says Atlanta defense attorney Jack Martin, who tries cases at the Fulton
County Courthouse. "It's a lousy way to run a jury system."

More juror-friendly courts

In an effort to handle the problem, Fulton County is in the process of
updating its jury list.

Places which have been attentive to the growing number of absent jurors
have seen an improvement in their rates. Massachusetts ran an educational
campaign about the jury system and regularly pursues delinquent jurors.
The state has cut its no-show rate in half since 1996, from 14 %to 6 %.

"People have profound misconceptions about what jury duty entails," says
Ms. Wood. "Many people think they're not smart enough to be jurors or they
think they need to understand the law and the legal system, when in fact
all you need is to bring the impressions and values of the community and
your personal experience to bear on who's telling the truth or not."

The Center for Jury Studies estimates that about a third of the courtrooms
in the country now have a "one-day/one-trial" system where jurors no
longer have to wait around for days to serve. Other fixes in the nation's
courthouses include renovating jury areas to make them roomier and provide
a more comfortable atmosphere. Some courts in Colorado have installed
business centers so professionals can keep in touch with their colleagues
while they wait.

Next spring, Douglas County, Neb., plans to introduce an e-Jury program
using the Internet that aims to be more juror-friendly. It allows people
to go online to request deferrals or provide reasons why they're unable to
serve.

But some administrators say the main challenge for courts today is selling
the idea of a unique experience.

"[Jury duty] is participatory democracy at its best," says Wood as she
gives a sales pitch. "Come on down, we have plenty of seats and no
waiting. Well, almost no waiting."

(source: Christian Science Monitor)

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

Gimme an 'S': The High Court's Grammatical Divide


As one of its final acts last term, the U.S. Supreme Court issued Kansas
v. Marsh, a case involving the constitutionality of a state death-penalty
statute. The 5-4 decision exposed the deep divide that exists among the
nation's intellectual elite regarding one of society's most troubling
issues -- namely, whether the possessive form of a singular noun ending
with the letter "s" requires an additional s after the apostrophe.

The issue reached a crescendo in Marsh primarily because of two
circumstances. First, the statute in question originated from a state with
a name ending in "s." Second, the majority opinion was written by a
justice whose last name ends in "s." Given the confluence of these
factors, it was inevitable that the justices' philosophical differences on
matters of American usage would be thrust into the spotlight.

A BITTER DIVIDE

Justice Clarence Thomas, writing for the Court (and joined by Chief
Justice John Roberts Jr. and Justices Samuel Alito Jr., Anthony Kennedy,
and Antonin Scalia), concluded that the Kansas statute was not
unconstitutional. In reaching this conclusion, Thomas repeatedly referred
to the relevant law as Kansas' statute.

In response, Justice David Souter wrote a dissent that was joined by
Justices Stephen Breyer, Ruth Bader Ginsburg, and John Paul Stevens. The
dissent revealed Souter's bitter disagreement with both the substantive
conclusion of the majority and the grammatical philosophy of the opinion's
author. Whereas Thomas apparently believes that whenever a singular noun
ends in "s," an additional "s" should never be placed after the
apostrophe, Souter has made equally clear his conviction that an s should
always be added after the apostrophe when forming a singular possessive,
regardless of whether the nonpossessive form already ends in "s." With
this acrimonious undercurrent simmering in the background, Souter boldly
began his Marsh dissent as follows: "Kansas's capital sentencing statute
provides ... " This dramatic and gratuitous use of the possessive was an
obvious attack on Thomas, who, as one of three s-ending members of the
Court, is viewed as a role model for the millions of children who grow up
with the stigma of grammatical ambiguity attached to their names.

Is it fair to deprive a small minority of the population of the right to
assert possession in the same manner as everyone else? Whereas Souter
would answer an unequivocal no, Thomas would likely point out that he has
gone his whole life with only one "s." Because it worked for him, no one
else in a similar situation should receive any preferential treatment.
People who happen to be born with names ending in s should pull themselves
up by their own bootstraps and learn to go without the additional letter.
After all, it builds character.

Scalia, on the other hand, would probably take exception to the stance
taken by Thomas. In Marsh, Scalia wrote a separate opinion that concurred
with the substance of the majority opinion but nonetheless revealed a
clear ideological discord with Thomas. Unlike his colleague, Scalia
appears to believe that most singular nouns ending in "s" still demand an
additional "s" after the apostrophe. Thus, in his Marsh concurrence,
Scalia repeatedly referred to the relevant law as Kansas's statute. He
similarly added an "s" to form the words Ramos's and witness's.

Yet in other parts of the opinion, Scalia added only an apostrophe to form
the words Stevens', Adams', and Tibbs'. Based on this, it would seem that
he believes the extra "s" should be omitted if the existing "s" is
preceded by a hard consonant sound. So, whereas Thomas makes his "s"
determination based strictly on spelling, Scalia appears to look beyond
the spelling and examine pronunciation as well.

In addition to the opinions by Thomas, Souter, and Scalia, the Marsh case
generated an additional dissent by Stevens, who disagreed with the
substance of the majority but declined to address the "s" issue. A review
of recent opinions, however, reveals that Stevens and the remaining five
justices side squarely with Thomas.

WHAT ABOUT ARKANSAS?

Whenever the Court issues a landmark constitutional decision, commentators
immediately debate how the holding will apply to other states that have
similar statutory schemes. Such questions are particularly interesting in
the wake of Marsh, as there are four other states with names ending in
"s." Texas, like Kansas, has a vowel as both its penultimate letter and
its penultimate sound. Thus, for purposes of determining whether an
additional "s" should be used, Texas is both visually and aurally
identical to Kansas. If the current Court were to consider the Texas
death-penalty statute, one would expect the grammatical opinions of the
justices to be identical to those expressed in Marsh.

If, however, the statute at issue were from Massachusetts, then Scalia
would likely side with the Group of Seven, making Souter the sole justice
who would add an "s" at the end. (Last year, in Shepard v. United States,
Souter did indeed pen the word Massachusetts's, thereby bravely opining
that even a four-syllable proper noun ending in a double consonant before
the final "s" is entitled to an additional "s," regardless of the
awkwardness of the resulting pronunciation.)

But what about Arkansas? From a spelling perspective, the state bears an
uncanny resemblance to Kansas. Yet from a pronunciation perspective, the
two states diverge. Whereas the final sound in Kansas is a vowel-consonant
combination, the second "s" in Arkansas is silent, thus making the final
sound a short vowel. If faced with this situation -- or with a statute
from Illinois -- Souter would add an "s" and the Group of Seven probably
would not, based on previous opinions.

As for Scalia, one would assume that a noun with a vowel as its
penultimate letter and its final sound would present the most compelling
possible case for adding an "s" after an apostrophe. Yet in a 2003
opinion, Kentucky Association of Health Plans v. Miller, Scalia repeatedly
referred to the possessive of Illinois as Illinois' rather than
Illinois's. He has also shown other inconsistencies, such as his repeated
use of the word Congress', which is inexplicable in light of his
acknowledgment of the word witness's in his Marsh concurrence and his use
of the word Congress's in his 2004 majority opinion in Vieth v. Jubelirer.

In reviewing Scalia's lack of a pattern, the most logical conclusion is
that he simply doesnt care very much for the "s" debate. In fairness, the
issue does not easily lend itself to an "originalist" examination, because
the Constitution contains no possessive forms of s-ending singular nouns.
(In Article I, Sections 8 and 9, the Framers diplomatically avoided the
thorny issue by using the phrase "consent of the Congress," instead of
"Congress's consent" or "Congress' consent.")

MASS ILLOGIC

By a margin of 7-2, the strict anti-s view appears to be the clear
preference of the land's highest court. Yet experts on American usage
overwhelmingly agree that Souter's approach is the only one that is
proper. As explained by Bryan Garner, author of "A Dictionary of Modern
American Usage," most authorities on the subject recognize only two types
of singular nouns for which it is acceptable to omit the additional "s":
biblical or classical names, such as Jesus, Moses, or Aristophanes, and
nouns formed from plurals, such as General Motors or Legal Times.
(Journalists are often more liberal in excluding the additional "s," but
that is typically based on the pragmatic goal of conserving print space
rather than on any ideological grounds.)

The surprisingly popular practice of omitting the final "s" in all
s-ending words is both technically improper and completely illogical.
Indeed, the use of an additional "s" accurately reflects proper
pronunciation. Whereas an 's produces a clear sound, a mere apostrophe
produces no sound at all. Accordingly, if one were to pronounce the
sentence, "Kansas' statute is constitutional," it would sound exactly the
same as the sentence, "Kansas statute is constitutional." That wouldnt
make any sense. Furthermore, it is hard to imagine that law clerks for
Justice Thomas go around saying to people, "Hello, I'm Justice Thomas
clerk." (Of course, the same analysis applies to people like Jesus and
Moses, but they are apparently entitled to some type of "grandfather"
exception.)

Don't get me wrong. I realize that the written opinions of the Supreme
Court consistently exhibit a high level of adherence to accepted rules of
proper American usage. I also recognize that there is a limit to how much
influence the Court can have on the written and spoken word. I have lost
all hope, for instance, that the Court can do anything to reverse the
epidemic currently gripping the nation -- that is, the widespread
misunderstanding of the objective case for pronouns, which has resulted in
millions of highly educated people who repeatedly write and say things
such as "This is just between you and I," and "If you have any questions,
please feel free to call Mary Jones or myself." (In each of these
examples, the correct pronoun choice is me.)

Nevertheless, the time is now for leadership and unity. If the highly
visible writers on the Supreme Court cannot be good role models on the
relatively noncontroversial question of whether an "s" should be used to
form a possessive, then what chance is there that the nation will receive
unified guidance on some of the more legitimate debates of our time, such
as split infinitives, the use of a comma before the final element of a
series, which vs. that, and the use of a plural pronoun in place of a
singular pronoun for the purpose of achieving gender neutrality?

Perhaps the justices can convene next summer to take a closer look at all
these important issues. Grammarians anxiously await.

(source: Legal Times----Jonathan M. Starble is an attorney in West
Hartford, Conn.) Editor's note: Legal Times and Law.com admit to following
Associated Press style, which omits the "s" after the apostrophe in
creating possessives of all singular proper names ending in "s," not just
biblical and classical names.)





ILLINOIS:

Death penalty still in limbo


It will be months several months before prosecutors decide whether to seek
the death penalty against Tiffany Hall, who is charged with murdering a
friend and cutting her unborn baby from her womb. But if any case meets
the criteria for capital punishment, this would be one. Hall is also
expected to be charged with killing the woman's 3other children.

However, while Hall could be sentenced to death under Illinois law, it's
uncertain whether that punishment ever would be carried out.

The death penalty moratorium that former Illinois governor and now felon
George Ryan enacted in 2000 -- before he tried to win the Nobel Peace
Prize by commuting the sentences of everyone on death row -- is still in
place. Gov. Rod Blagojevich hasn't had the political fortitude to lift it,
and legislative leaders won't agree to a full and open debate on whether
to repeal the death penalty law.

For the politicians, this is the best of both worlds -- they can talk
tough about crime, but not have to enforce the death penalty. But it's
unfair to leave Illinois residents in limbo like this.

Ten people have made it to death row post Ryan, and the numbers will keep
increasing. If we no longer intend to enforce the law, then let's be
honest enough to change it. No sense putting families of victims through
the trauma and spending hundreds of thousands of dollars prosecuting these
cases unless we mean it.

(source: Editorial, Belleville News-Democrat)