[Deathpenalty] death penalty news----MD., COLO., MO., FLA.

[Rick Halperin]

July 16



MARYLAND:

Prosecutor Considering Death Penalty Case-By-Case


Baltimore County's new state's attorney is trying out a new approach in a
county known for aggressively pursuing capital punishment, emphasizing the
circumstances surrounding crimes before making a decision instead of
seeking the death penalty for nearly every eligible case.

State's Attorney Scott Shellenberger campaigned on a promise to change the
policy by former State's Attorney Sandra A. O'Connor, who retired last
year. O'Connor sought the death penalty for nearly every possible case.

"All cases are not equal and I felt like the death penalty should be used
for the most heinous of murders and the most deserving of defendants,"
Shellenberger told The (Baltimore) Daily Record last week.

He has outlined protocols for reviewing eligible cases. The 1st round of
reviews under the policy was completed in April and examined 3 cases.
Death notices were filed in 2 of those cases.

Dominic Alan Strong, who is accused of beating a 51-year-old man to death
in Dundalk, would almost certainly have faced the death penalty under
O'Connor, Shellenberger said.

"In my view, these are 3 cases, including the 3rd one, that I believe
under the prior administration, they would have filed a death notice,"
Shellenberger said. "So, I guess we're filing one less than would have
been filed."

Shellenberger's new policy includes a committee of seven senior
prosecutors who review each case and make individual recommendations to
Shellenberger, who then has the final say.

Shellenberger declined to discuss all the factors that are considered,
because he was concerned that "people will tend to think that certain
factors are more important than others." He said they look "strongly" at
statutory aggravating and mitigating factors that a judge or jury would
have to consider in sentencing.

Shellenberger said a major factor against seeking death in Strong's case
was the fact that he was only 10 days over the age of 18, the
death-eligible age, when he committed the crime.

"I think my change in the policy is really a more consistent approach with
how we approach every case, every day," he said.

Assistant Public Defender Stefanie McArdle, deputy division chief of the
capital defense division, said she remains hopeful that Shellenberger's
policy will make a difference, but she said her division has not yet seen
much of a change.

"This time last year, we had 5 death penalty cases pending trial in
Baltimore County," she said. "This year, at this time, we have 5 death
penalty cases pending trial."

(source: Associated Press)






COLORADO:

Questions about eye surgeon, DNA testing shadow bid for new trial


Timothy Masters' current bid for a new trial hinges on the belief that not
only could someone else have committed the murder, but that the jury would
have agreed if only they'd been given information by the prosecution about
other people who defense lawyers believe should have been considered as
suspects in Hettrick's death.

One of them was a confessed murderer who killed 2 women the same year
Hettrick was murdered by stabbing them in the back; another confessed
specifically to killing Hettrick.

While either of these individuals may have cast doubt on Masters' guilt in
the eyes of the jury, none offered as compelling -- or complicated -- a
case as that of Dr. Richard Hammond, a prominent Fort Collins eye surgeon
who was arrested in 1995 for surreptitiously videotaping girls and women
in his guest bathroom. Hammond had set up his video equipment to film
extreme close-ups of his victims' genitals, and when police searched his
house, they found hundreds of videotapes labeled with victims' names.

Some of the victims were family members of those in the District
Attorney's office, creating a conflict of interest that required the
office to disqualify itself from prosecuting the crime. However, the
Hammond case never got to the prosecution stage.

After his arrest, Hammond was placed on a 72-hour mental health hold, but
shortly after he was released from protective custody, he checked into a
Denver hotel and committed suicide.

According to court documents, several police detectives believe Hammond
should have been thoroughly investigated for Hettrick's murder. Not only
did he have an obvious morbid fascination with female genitalia, he also
had the medical skill and biological knowledge to perform the precise and
delicate excisions that were performed on Hettrick's body. Finally,
Hammond's home, like Masters', overlooked the field where Hettrick's body
was discovered.

But rather than expand their investigation of Hammond, police instead
closed the case after his suicide -- in fact, investigators didn't even
look at all the videotapes to see if Hettrick appeared on one. Instead,
they burned the evidence to spare Hammond's victims, including family
members of those in the DA's office, further embarrassment and
humiliation.

The defense knew nothing of this investigation, or that some members of
the police department thought Hammond should have been investigated as a
suspect in Hettrick's murder.

"The evidence appears extremely strong and incontrovertible that we
weren't given the information we needed," said Erik Fischer, who along
with Nathan Chambers (who also served on Oklahoma City bomber Tim
McVeigh's defense team) represented Masters during his trial and appeals.

Fischer adds that he believes Gilmore "perjured himself" during Masters'
trial when he told the jury that law enforcement had cleared all other
suspects in Hettrick's murder.

"I believe ... we should have gotten Hammond as an alternate suspect," he
said. "I think Tim would have walked in 10 minutes."

Through a message left by a court assistant, Gilmore declined to comment
for this article, citing the ongoing litigation in the Masters case. Blair
is out of town and was unavailable to respond to a request for comment.
The lead detective in the Masters case, Jim Broderick, also declined to
comment in light of the possibility of a new trial.

But Stuart Van Meveren, the district attorney at the time of Masters'
trial, said it was up to the judgment of investigators and prosecutors to
decide what information to turn over to the defense.

"Those decisions were left to the investigating agency," he said, "and if
they knew about (the cases), they obviously thought they weren't
significant."

He said he doesn't believe Gilmore or Blair did anything wrong.

"They're both outstanding prosecutors and very ethical individuals," he
said, "and that's evident in that they both were appointed to the bench."

Other observers aren't as certain. Daniel Coyne, an associate professor of
clinical law at the Chicago-Kent College of Law, said that it's not up to
the prosecution to decide what is relevant for the defense.

"The case law is really clear that that's not the prosecutor's right to
make that determination," he said. "If it's useful to the defendant, then
a prudent prosecutor will turn over (the evidence) or make it available
for inspection.

"If there was a decision to withhold information," Coyne continues, "and
the response as to why the information was withheld was that, 'we didn't
determine it to be important,' that may call into question the competency
of the people who made that decision."

It could also call into question their motives, said Richard Moran, a
professor of sociology and criminology at Mount Holyoke College in
Massachusetts. Moran recently completed a study of wrongful convictions in
death penalty cases. He found that since the death penalty was
reinstituted in the late 1970s, 81 of 123 exonerations were the result of
what he calls "illegal prosecutions."

"When there is a wrongful conviction, if that's what the court ends up
deciding, they're not usually the result of good faith efforts," he said,
"but the result of a criminal or malicious act committed by one of the
members of the court, either the police, the prosecutors or sometimes the
judges.

"You put a guy in jail for life because you're convinced that he did it.
You don't want to share evidence that he might not have done it with the
defense because you think he's going to walk, so you misbehave so that he
gets convicted."

Gavaldon, the Fort Collins attorney, said it's up to the courts to decide
whether information in the Masters case was improperly withheld. But he
agrees with Moran.

"The criminal justice system is not an arena for hide and seek," Gavaldon
said. "What ensures that justice is served is that there is full
disclosure on both sides, of all the evidence, so that those issues are
decided by a jury on something as serious as a life sentence."

It remains to be seen if Masters will get a new trial, but defense
attorneys Maria Liu and David Wymore are gaining momentum in that
direction since beginning in 2003 a so-called 35 (c) proceeding, which
seeks a post-conviction review of the trial. This is different than the
appeals in which matters of evidentiary rules and the introduction of
character evidence were reviewed and found to be sound; the hearings now
being prepared for will determine if Masters deserves a new trial based on
the allegations of prosecutorial misconduct and defense inadequacy.

Since 2003, his attorneys have succeeded in having the entire Eighth
Judicial District removed from the case. Likewise, the Larimer County
District Attorney's Office has turned the case over to special prosecutors
from Adams County after the defense filed a motion in January alleging a
conflict of interest. Although a hearing on whether or not to grant a new
trial will be held in Fort Collins, the case is now in the hands of the
special prosecutors and a retired judge under special contract to hear
motions in the case.

Recent allegations point to why the defense doesn't want the locals
involved in the case any further. In court documents filed in January,
Masters' lawyers claim that evidence from the victim was illegally sent by
the District Attorney's office to the CBI lab in Denver, where it was
subjected to destructive DNA testing. Masters had been granted a motion
allowing his own DNA testing to look for evidence that someone else killed
Hettrick, but before the evidence was turned over, the DA's office sent
the material to the lab for its own testing. This, Masters' lawyers argue,
amounts to theft and destruction of evidence.

The DNA evidence is crucial to the defense's contention that Masters
deserves a new trial. In an affidavit filed with the court, forensic
investigator Barie Goetz -- who worked for the CBI from 1981 to 2004 and
is now employed by Masters' defense team -- outlined an entirely new
scenario explaining Hettrick's death that he believes can be proven by
DNA. He believes the evidence will show that Hettrick was not murdered or
mutilated where her body was found, but stabbed in the back while seated
in a car. He said the evidence will also show that her mutilations were
surgical in nature and occurred at "a suitably equipped location other
than the scene at Landings" and that two people carried her body into the
field and left in a vehicle.

If any of this turns out to be true, or even possible in the minds of
jurors, it could lead to Masters' acquittal. And an overturned murder
conviction could wreak havoc in the Eighth Judicial District and those who
tried the case the 1st time.

"If in fact he is innocent or he did not get a fair trial, that obviously
reflects badly on the justice system," said Pat Furman, who was a defense
attorney for 20 years before his current position as professor of clinical
law at the University of Colorado-Boulder. "If there was prosecutorial
misconduct, it might rise to the level of something that the (state)
Supreme Court looks at in terms of unethical behavior."

Furman said sanctions could involve disbarment, which, in the case of
Gilmore and Blair, would mean they could no longer serve as judges since
district judges are required to be lawyers. There could also be criminal
penalties, he said.

Repercussions could also be felt more widely, since an overturned verdict
could lead to other appeals on the same grounds in different cases.

(source: Greeley Tribune)






MISSOURI:

Missouri should not execute while flaws remain in system


Editor, the Tribune: This is in regard to an article on June 4 in the
Tribune, "Executions may resume after ruling."

In Illinois, the Northwestern Center on Wrongful Convictions has managed
to establish a 6 % exoneration rate in capital punishment cases; see
http://www.law.northwestern.edu/depts/clinic/wrongful/exonerations/Illinois.htm.

This strongly suggests that before the moratorium instituted by Republican
Gov. George Ryan, Illinois was executing innocent people 6 percent of the
time. Put this in context with the recent revelations of the use of
torture by the Chicago Police Department to extract confessions, and you
have a picture of official abuse of authority resulting in the state
executions of Illinois residents not guilty of the crimes for which they
had been charged.

Gov. Matt Blunt and Attorney General Jay Nixon would do well to heed the
Illinois experience, do as Gov. Ryan did and establish a moratorium on
capital punishment in Missouri until it can be determined that innocents
are not being executed here. Those who suggest that inmates on death row
are already treated too well are basing their statements on a misguided
belief in the infallibility of our capital punishment system.

Our legal system is far from foolproof. Those who are unjustly executed
have their ultimate right, their lives, irrevocably stripped from them.
Evidence suggests that with the limitations inherent in our current legal
system, the state should no longer execute those convicted of capital
crimes.

Patrick Feehan

(source: Letter to the Editor, Columbia Tribune, July 15)






FLORIDA:

Debate leaves man in death row limbo


Freddie Lee Hall lives on death row at Union Correctional Institution, and
the 61-year-old will die there - of old age, probably.

After all, he's already dodged a date with the executioner for 29 years,
despite being convicted of committing crimes prosecutors argued were cold,
calculated, premeditated, heinous, atrocious and cruel.

His case has been embroiled in numerous appeals, including his lawyers'
insistence that he is mentally retarded. That is an issue that John
Evander Couey's lawyer has raised in his defense in his conviction in the
rape, abduction and slaying of 9-year-old Jessica Lunsford.

In 1978, Hall and another man abducted a 21-year-old woman from a Leesburg
grocery store parking lot, took her to Sumter County and shot her to
death.

Hall's co-defendant, Mack Ruffin, was convicted of raping her.

Karol Lea Hurst, who was seven months pregnant, begged for the life of her
unborn child. She even wrote them a check, "so you won't have to rob any
more stores."

The killing didn't stop with the slaying of of the former high school
cheerleader. Hours later, the 2 men killed Hernando County Sheriff's
Deputy Lonnie Coburn during a convenience store robbery.

RETARDATION CLAIM

Key to many of Hall's death sentence appeals has been his lawyers' claims
that he is retarded.

Prosecutors dispute the claim, but some Florida Supreme Court justices
have agreed with the assessment.

In a 1993 decision, then-Justice Rosemary Barkett wrote in her dissenting
opinion that, "testimony reflects that Hall has an IQ of 60; he suffers
from organic brain damage, chronic psychosis, a speech impediment and a
learning disability; he is functionally illiterate; and he has a
short-term memory equivalent to that of a first-grader."

The court noted that the judge and sentencing jury were aware of the
claim, despite Hall's claim in court papers that they were not.

ABUSIVE CHILDHOOD

There's no doubt that he and his 16 siblings grew up in a hellish
household.

Testimony from his surviving siblings (2 were murder victims themselves)
revealed that his parents fought each other with guns, knives or whatever
was handy.

His mother tied him up each night, then woke him up in the morning by
hoisting him toward the ceiling and beating him.

Forced to work in the fields, almost from the time they were old enough to
walk, the children would sometimes go home at night to find out that she
refused to feed them.

Once, she buried Hall to "cure" his asthma, and she left instructions with
neighbors to beat him any time they saw him.

In 1989, the state Supreme Court, calling his childhood "pitiful," ordered
a new sentencing hearing.

Hall also benefited from a state Supreme Court ruling that said defense
attorneys weren't limited to issues mitigating against the death penalty
contained solely in the law books.

APPEAL ARGUMENTS

Hall's lawyers have filed numerous motions for post-conviction relief on
various issues, won for him a new evidentiary hearing, a temporary stay of
execution and a resentencing on the way to quashing two death warrants.

But jurors at the resentencing still upheld his death sentence.

In 1999, he argued that his appeal lawyer essentially was incompetent in
failing to argue the claim that he is mentally retarded.

At the time he made that argument, the U.S. Supreme Court, in Penry v.
Lynaugh found that no constitutional ban existed on the execution of
mentally retarded criminals.

In 2002, the U.S. Supreme Court, in Atkins v. Virginia, ruled that it
would be a violation of the Eighth Amendment against cruel and unusual
punishment to execute retarded prisoners.

But that decision doesn't appear to help Hall, either. That ruling said
that states have the right to determine the standards in how they
determine retardation.

In Florida, a judge determines whether a person is mentally retarded.
Defense attorneys must provide "clear and convincing" evidence that the
person has an IQ of less than 70, has problems adapting to their
environment and that the condition existed before the age of 18.

In every instance, courts have agreed with prosecutors' expert witnesses
who argued that Hall is not retarded.

In 2001, then Gov. Jeb Bush signed into law a ban on executing retarded
prisoners, and laid out the steps lawyers must take if they are to claim
the exemption. Couey's lawyers have filed those motions, which will be
debated at Tuesday's hearing.

(source: Ocala Star-Banner)