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

[Rick Halperin]

April 10



ILLINOIS:

Dugan's attorneys to file sixth challenge to death penalty


Brian Dugans attorneys object to the death penalty  5 times so far and
another to come.

DuPage County States Attorney Joseph Birkett intends to seek that sentence
against the already twice-convicted killer, who now is awaiting trial in
the 1983 kidnapping, rape and murder of 10-year-old Jeanine Nicarico of
Naperville.

Prosecutors say he admitted his guilt in the Nicarico case during
protected plea negotiations for the 1985 murder of 7-year-old Melissa
Ackerman of Somonauk and the 1984 abduction, rape and murder of Geneva
nurse Donna Schnorr, 27.

Already serving 2 life sentences, Dugan, 51, will not formally confess to
Jeanines murder without immunity from the death penalty.

Dugan's defense team has already filed 5 motions objecting to the death
penalty with a 6th expected to be filed next week.

Those motions on file are routine in nature for a capital crime case,
citing unconstitutional arguments because of the admittance of aggravating
evidence in the trial and that the procedure is considered cruel and
unusual by opponents.

But it is the 6th motion that defense attorney Matthew McQuaid said will
make an argument based on new death penalty laws.

Prosecutors have until May 1 to file a response to the motions, which is
when Dugan will appear in court next. A future date will be set for
arguments.

(source: Aurora Beacon News)






NORTH CAROLINA:

Judge recused as Berry tries to avoid death penalty


Theresa Fetter's family is still searching for closure nearly 10 years
after she was murdered by Kyle Berry.

After Thursday's hearing in New Hanover County Superior Court - the latest
in Berry's seven-year legal odyssey to save his own life - the Fetters
aren't any closer to justice.

In an unusual turn of events, Judge Ronald E. Spivey, who was set to
decide whether Berry's death sentence should be reduced to life in prison,
was forced to remove himself from the case because of his knowledge of the
jury's deliberations in Berry's 2004 resentencing hearing.

It remained unclear Thursday when the case would move forward again. The
motion to recuse Spivey said the hearing should be postponed until the
court system can find another judge.

Berry has been fighting his death sentence since 2001, when a jury found
him guilty of killing Fetter in 1998.

Berry appealed. While the North Carolina Supreme Court upheld the guilty
verdict, the justices ruled that Berry should have another sentencing
hearing.

The justices said the judge mistakenly allowed jurors to use Berry's
alleged involvement in the previous murder of Lisa Maves, a 42-year-old
Raleigh woman, to determine if Berry had displayed a history of violence,
which could be used in sentencing.

But Berry was again sentenced to death in the 2004 hearing, which Spivey
presided over.

This week, Spivey presided over a hearing on whether Berry's sentence
should be reduced. The hearing was granted after Berry's defense team
filed a motion in N.C. Supreme Court arguing that the jury in the 2004
resentencing hearing was denied hearing evidence that mental illness ran
in Berry's biological family. Berry was adopted.

That evidence, Berry's lawyers argue, could have swayed at least one juror
to vote for life.

During closing arguments on Tuesday, defense attorney Marilyn Ozer and
Spivey exchanged comments about the jury's deliberation in the 2004
sentencing hearing, specifically about whether the jury struggled with
imposing the death sentence.

According to court transcripts, Ozer said: "I'm sure they were doing their
job and going through it methodically. But the reason-"

"Isn't it equally possible they just had one vote?" Spivey countered.

"That is possible," Ozer said. "We don't know."

"Keep in mind," Spivey replied, "you're talking to the person that talked
to the jury right after they finished their deliberations."

That comment was enough for Berry's lawyers to file a motion Wednesday for
Spivey to be removed from the case. Judge John E. Nobles was called in to
decide if Spivey should be recused.

Berry's lawyers argued that Spivey was no longer impartial and objective
since he had first-hand knowledge of the jury's deliberations. Assistant
District Attorney Todd Fennell called the motion "ridiculous" and said it
was an "outrage to question Judge Spivey."

But after the brief arguments and a brief deliberation, Nobles returned,
promptly accepted the defense motion and immediately recessed the court.

Berry was not in court Thursday because he waived his right to appear, but
Carl Fetter, Theresa Fetter's father, let out a long sigh and dropped his
head into his hands after hearing the decision.

"It means we'll have to go through it again," he told reporters after the
hearing. "2 juries convicted him and two juries sentenced him to death.
How many more times does it take?"

Fetter then went upstairs to Fennell's office, to discuss what happens
next.

(source: Wilmington Star)