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

[Rick Halperin]

May 12



CALIFORNIA:

Prosecutors to seek death penalty in Vista market slaying


Prosecutors announced Thursday they will seek the death penalty against an
ex-con accused of fatally shooting a Vista market owner 12 years ago
during an attempted robbery.

Bryan Dammon Smith, 33, is charged with murder and a special circumstance
allegation of murder during a robbery in the June 7, 1994, death of Tayser
"Tom" El Farra, owner of the Buena Vista Market.

Judge Jeffrey Fraser set a March 5 trial date and assigned the case to
Judge Peter Deddeh.

A status conference is scheduled for Tuesday.

According to evidence presented at a preliminary hearing last November,
Smith fired twice at the victim, hitting him once.

Two weeks before the murder, Smith stole the semiautomatic gun used to
kill El Farra from an Oceanside sporting goods store by punching the
75-year-old clerk in the face, prosecutor Blaine Bowman alleged.

Smith was arrested 2 days after the killing on unrelated drug and weapons
charges and went to prison, the prosecutor said.

The defendant was re-arrested on drug charges in 1997 and went back to
prison, Bowman said.

The Cold Case Unit of the San Diego County District Attorney's Office was
able to crack the case after locating and interviewing key witnesses,
Bowman said last year.

Smith was living in Michigan when he was charged last June with El Farra's
murder.

(source: San Diego Union Tribune)

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

All lose when judges stray from the law----'Doing the right thing' can
damage the system and the people in it


No principle is more exalted and cherished for a judge than "Thou shalt
not legislate from the bench." It's the judicial prime directive: A
judge's job is to interpret and apply the law, not to write it.

The public usually only thinks about this rule when explosive issues like
abortion and same-sex marriage are in the news. Yet the vast majority of
judges never handle such hot-button controversies, instead toiling away on
routine criminal cases.

Although less visible, judges' decisions in these run-of-the-mill cases
are still very important, and the debate here is well-settled. All judges
agree they must obey the law even if they disagree with it and even if it
means imposing punishment that they personally feel is unjust.

There are victors and vanquished when judges legislate in emotionally
charged moral-values cases. Experience has taught that everyone loses when
they do so in administering criminal law.

The judge is certainly a loser. Most judges must be approved by the voters
to stay on the bench. Voters don't like criminals, and they have little
patience for judges who overrule tough sentencing laws. Chief Justice Rose
Bird learned this lesson first-hand when she was ousted because of her
opposition to the death penalty.

The public clearly loses when judges legislate from the bench. For elected
representatives and their constituents, nothing can be more frustrating
than shepherding a bill through the labyrinthine legislative process only
to see it undermined or overturned by someone wearing a robe.

One would think that criminal defendants would be the big winners when
judges legislate. Prosecutors definitely suffer when judges let their own
views trump statutorily prescribed results. However, freeing judges to "do
the right thing" would not invariably weigh in the defendant's favor.

For one, "the right thing" to do may well be to hammer a defendant,
notwithstanding statutory restrictions on punishment. Moreover, when
judges are kicked off the bench by voters for coddling criminals, those
who fill their shoes will bend over backward to avoid even appearing to
favor the defense. The threat of losing a judicial election creates a
chilling effect on the exercise of legitimate, statutory authority to
mitigate sentences and show mercy. The net result is more reactionary
judging and less individualized decision-making, which is bad news for
defendants.

A legislating judge does not have to overturn an entire scheme to do
considerable damage. Judges face countless discretionary choices every
day. Whether by granting one side or the other a continuance or admitting
or excluding prejudicial evidence in a trial, judges sometimes are tempted
to violate the spirit of the law in pursuit of a desired outcome.

Most of these small transgressions escape appellate scrutiny due to the
doctrine of "harmless error." Yet, disobeying the spirit of the law is a
two-edged sword: If judges get away with ignoring laws that break a
defendant, they can also ignore laws that give defendants a break.

For example, in deciding whether to release a defendant from custody
pending trial, judicial discretion is so wide that a judge will usually be
able to refuse to free a person on his own recognizance despite having
every assurance that the person will return to court. Such a practice may
be within the letter of the law, but it's definitely not within its
spirit. The judge may be acting to rehabilitate the defendant by forcing
him to sober up pending trial, but that's irrelevant. The road to
perdition is paved with the best intentions.

The duty to obey both the law and its spirit is a compact between a judge
and society that fosters respect and deference. In our system, it's the
Legislature and the public, through the initiative process, that write the
law and formulate policy. A judge's role is to interpret the will of the
people, not to usurp it by dictating what the correct result should be.

Every time a judge defies a law, he taps into the reservoir of trust that
the public has conferred on him. One day, in a close case where the
defendant truly merits the judge's compassion, the judge might find that
his power to act has gone dry.

(source: The Orange County Register - Alex Ricciardulli is a Los Angeles
Superior Court judge)







MISSOURI----new death sentence

Jury: Death penalty for murderer----Sentencing is set for June 12 in
Ernest Lee Johnson case


A Pettis County jury recommended a death sentence Thursday night for
Ernest Lee Johnson, the man convicted of killing 3 employees of a Caseys
General Store with a hammer in 1994.

After a little less than three hours of deliberation, jury members
returned to the room where they heard testimony for the past 4 days.
Johnson stood with his hands in his pockets. Family members of the victims
wiped tears from their eyes. Judge Gene Hamilton read the jury's verdict
and as all three murder counts came back with the same recommendation -
penalty of death - Defense Attorney Elizabeth Carlyle placed a hand on
Johnsons arm. He showed little emotion.

"It's been a long journey," said Barb McCown, whose older sister, Mary
Bratcher, had been killed by Johnson.

Tim Cisar, one of Johnson's 2 defense attorneys, expressed disappointment
at the verdict and said the sentence would ultimately be appealed.
Hamilton scheduled Johnson's sentencing for June 12 and said the defense
would have 25 days to file a motion for a new trial.

In his closing statement Thursday afternoon, Cisar had asked that the jury
show his client "justice tempered with mercy" because while the crime was
horrific, Johnson's upbringing and low intelligence set him on a violent
course.

But Prosecutor Kevin Crane created a contrasting portrait of Johnson as a
"cold-blooded, deliberate killer" with the wherewithal to plan and execute
a terrible crime. "Today, through you, the victims have the hammer," Crane
said. "It is a righteous instrument for you to use in this case."

Johnson was a regular customer at the Casey's General Store on Ballenger
Lane. He said he went to the store as it was closing on the night of Feb.
12, 1994, to steal money from one of the store's safes to buy drugs. He
wore a mask to keep himself from being identified and said he "lost it"
after he saw Bratcher, the store manager, trying to flush a key down the
toilet. He then shot and bludgeoned with a hammer Bratcher, and clerks
Fred Jones and Mabel Scruggs.

Early Thursday, the defense continued to build its case that Johnson was
mentally retarded and trying to feed a crack-cocaine habit when he went to
the store that night. Johnson's attorneys have argued that he should not
be put to death for the murders based on a U.S. Supreme Court decision
making it illegal to execute persons with a diminished mental capacity.

An educational psychologist, Denis Keyes, testified Thursday that he
believed alcohol consumption by Johnson's mother before his birth may have
contributed to what Keyes diagnosed as mental retardation. Keyes said that
in an IQ test he administered in December 2003, Johnson achieved a score
of 67.

"Mr. Johnson's IQ is roughly at the first percentile," or below 99 % of
the population, Keyes said. He added that a background of "extreme
poverty" and lack of "a stable home life" could have contributed to
Johnsons low IQ.

"All these can be related," Keyes said.

But in his cross-examination of Keyes, Crane challenged Keyes
interpretation of the IQ test results obtained from psychologists since
1968. "No mental health professional diagnosed Mr. Johnson as being
mentally retarded until you, correct?" Crane asked.

"Not to my knowledge," Keyes said.

Crane later said that Johnson made the choice to go to Casey's on the
night of Feb. 12, 1994.

"He didn't take a soda pop and a frozen burrito, did he?" Crane said. "He
wanted the money."

Cisar and co-defense attorney Carlyle called to the stand members of
Johnson's family and expert witnesses who described Johnson as a mentally
retarded man who had been seeking help for his drug addiction in the days
leading up to the murders. In their joint closing statement, Johnson's
defense attorneys reiterated the description of his upbringing as a
difficult one that haunted him and his siblings later in life.

"It's not an excuse, its an explanation," Cisar said. "We plead that you
give Ernest Johnson life without parole."

Johnson was sentenced to death by lethal injection in 1995. The Missouri
Supreme Court granted him an appeal 3 years later after ruling that his
attorney failed to call an expert witness to testify about his mental
capacity. That sentencing re-trial ended with another death sentence.
Johnson was then granted an appeal by the state high court in 2003.

(source: Columbia Missourian)






INDIANA:

Death penalty may be avoided


Having spent 4 years on Indiana's death row, convicted killer Paul Michael
McManus may avoid the death penalty, now that a judge has ruled McManus
was mentally retarded at the time of his crimes, therefore legally
ineligible for execution.

The prosecutor is asking the judge's ruling be appealed, to reinstate
McManus' death sentence. On Wednesday, Senior Judge William J. Brune
granted McManus' petition for post-conviction relief. Brune's 83-page
decision found McManus fit the legal definition of mental retardation at
the time of the February 2001 slayings of McManus' estranged wife and 2
daughters. If that decision stands, it would rule out executing McManus.

"Clearly under Indiana law, if somebody is retarded, you cannot put them
to death," said defense attorney Glenn Grampp, who represented McManus at
his trial 4 years ago but not in his appeal. Grampp added that he and his
co-counsel had McManus evaluated before the 2002 trial. "There was no
evidence to suggest he was retarded," he said.

What happens next is unclear. Brune's ruling did not specifically state
whether McManus gets a new trial or simply a new sentencing hearing.
Nothing has been scheduled yet in Vanderburgh Circuit Court. Grampp
assumed it would be a resentencing.

Saying he was "disappointed" with the decision, Vanderburgh County
Prosecutor Stan Levco said he will ask Indiana Attorney General Steve
Carter to try to appeal the ruling to the Indiana Supreme Court and get
the death sentence reinstated.

On Feb. 26, 2001, McManus shot and killed his estranged wife, Melissa
McManus, 29, and daughters, Lindsey McManus, 8, and Shelby McManus, 23
months. He then climbed to the top of the Evansville-Henderson bridge and
jumped off. He was pulled out of the Ohio River by rescuers.

At his trial in May 2002, McManus pleaded not guilty by reason of
insanity. A jury found McManus guilty of 3 counts of murder and
recommended he receive the death penalty - a sentence that Judge Carl
Heldt ordered a month later. In 2004, the Indiana Supreme Court denied
McManus' appeal.

In March, Brune heard a week of testimony on McManus' petition for
post-conviction relief. Under the U.S. Constitution and Indiana law, the
mentally retarded cannot be executed. An IQ of approximately 70 or below
is 1 criteria for diagnosing mental retardation. And it was 1 of 12
grounds McManus' appellate defenders raised - and the only grounds on
which Brune agreed. In his ruling, Brune cited two defense experts:
forensic psychiatrist Dr. Rahn K. Bailey and Dr. Dennis Olvera, both of
whom recently re-evaluated the case and concluded McManus' IQ was in the
70s.

The ruling also noted testimony that McManus was in special-education
classes throughout his school career, that in 7th and 8th grades he could
read only 3-letter words, and he couldn't complete simple tasks such as
using a tape measure.

Brune ruled the defense had proved McManus met the legal definition of
mental retardation: "that before the age of 22, (he) was significantly
sub-average in intellectual functioning and that he was substantially
impaired in adaptive behavior." That would negate the death penalty for
McManus, short of a ruling from a higher court.

Levco recalled trial testimony that McManus had below-average intelligence
but did not meet the retardation definition.

Grampp recalled that before the original trial, examinations by
psychiatrists and psychologists showed McManus suffered from Attention
Deficit Hyperactivity Disorder, depression and anxiety disorders, but not
retardation. Before the slayings, McManus worked as a custodian, was
married and owned property, though Melissa McManus handled the finances,
Grampp said.

If McManus gets a resentencing hearing, the options would be life without
parole or straight prison time. Each murder count is punishable by 45 to
65 years in prison.

(source: Courier-Press)






NORTH CAROLINA:

DA says he won't seek death penalty


In Smithfield, Johnston County District Attorney Tom Lock told a judge he
wouldn't ask a jury to execute Lynn Paddock, a Smithfield woman charged
with killing her adopted son.

"In the absence of a specific intent to kill, justice will best be served
by pursuing this case non-capitally," Lock said in court.

Sheriff's deputies say Paddock, 45, punished her 4-year-old son Sean's
nighttime roaming by wrapping him in blankets. After 3 nights of being
bound, the Wake County boy suffocated to death, a medical examiner
determined. Bruises marred the 30-pound boy's backside, from his bottom to
his shoulder blade.

Lock is pursuing a conviction of first-degree murder, which carries a
penalty of life in prison. Such a punishment, Lock said, is warranted
because Paddock tortured the boy before his death.

Paddock, with long, graying hair, stared straight ahead Thursday as Lock
announced his intentions.

The mother of seven is also charged with felony child abuse in connection
with beatings that 2 older children suffered. Investigators say Paddock
whipped the children with plastic plumbing supply lines.

(source: News & Observer)






USA:

A call to abolish death penalty----National conference meets at Law School


The prophets of the "new abolitionism" met in Austin Hall over the
weekend, and one of them, Barry Scheck of the Innocence Project at the
Cardozo School of Law in New York, predicted "the end of the death penalty
within our lifetimes." Considering the unanimity of opinion on this one
main point - that capital punishment is a bad idea - the gathering was in
some ways more a revival meeting for activists than a debate. But, the
devil's in the details and so the conference didn't lack for pyrotechnics.

Scheck cited two "heartening" currents that he said were leading toward
the abolition of capital punishment in the United States: reversal of
convictions of the innocent through new DNA evidence, and the trend to
life sentences, as in the case of Zacarias Moussaoui, whom a federal jury
declined last week to sentence to death for his role in the 9/11 attacks.

"The lessons of Moussaoui should be ringing loudly," Scheck said.

The occasion was a national conference, "Race and the Death Penalty,"
convened to consider what Tufts philosopher Hugo Bedau, one of the
nation's leading opponents of capital punishment, called in his keynote
address, "the twin evils" of the current system: racial bias and the
conviction of the innocent.

"If we are to believe the friends of the death penalty," he said, "the
risk of these 2 evils must be borne patiently in the confidence that the
benefits of a death penalty system - even a flawed system such as ours -
outweigh the harms. Those of us who have looked with care at our death
penalty system may be excused if we are unpersuaded."

The conference convened Friday afternoon (May 5) just hours after another
bit of good news for death penalty opponents, the announcement of a
federal jury award of $2.25 million to Earl Washington Jr., a Virginia man
who at one point had come within nine days of being executed for rape and
murder on the basis of a confession fabricated by a police investigator.

Washington was pardoned in 2000 after sophisticated DNA testing proved his
innocence. His lawyers, who include Scheck and co-founder of the Innocence
Project Peter Neufeld, believe the jury award to be the largest ever in a
civil rights case in the history of Virginia.

The conference was the official launch of a new book, "From Lynch Mobs to
the Killing State: Race and the Death Penalty in America" (New York
University Press), edited by Charles J. Ogletree Jr., Jesse Climenko
Professor of Law and director of the new Charles Hamilton Houston
Institute for Race and Justice, and by Austin Sarat of Amherst College.
And filmmakers Rachel Lyon and Jim Lopes gave the conferees the first
glimpse anyone has had outside PBS of their new film, "Race to Execution,"
inspired by the work of Lyon's sister, Andrea Lyon, of DePaul University
College of Law, as a public defender.

Rubin "Hurricane" Carter, a former boxer who spent 20 years in New Jersey
state prison for 3 murders he didn't commit, was another keynote speaker.
He told of his ordeal and his new work with Innocence International, which
aims to expose cases of the wrongfully convicted and promote restorative
justice.

Ogletree, in his letter of welcome to the conference, said, "This
conference comes at a critical time. On one hand, public support for the
death penalty is waning, and the Supreme Court has restricted its use in
important ways. ... On the other hand, however, with so much attention
directed toward terrorism, the pendulum continues to swing further away
from protecting the rights of the accused."

Plenty of speakers found grounds for concern about the state of justice in
the United States. In his remarks, Stephen Bright, president of the
Southern Center for Human Rights in Atlanta, invoked the "unlikely heroes"
of the 1950s and '60s - white Southern judges on the federal bench who
moved the civil rights agenda forward - and then commented, "Today there
are no heroes. There are judges who march onto the battlefield and shoot
the wounded."

He lamented the fact that in the state court systems judges and
prosecutors are elected, not appointed. This, he suggested, leads to a
politicized buddy system in which it can be hard to keep prosecutors from
challenging African Americans off juries - even though the United State
Supreme Court has ruled, in the Batson case of 1986, that using peremptory
challenges on the basis of race was unconstitutional.

He also charged that by failing to fund public defenders adequately,
states have turned the guarantee of court-appointed counsel - as
established by the landmark Supreme Court case of Gideon v. Wainwright in
1963 - into "an illusory constitutional right."

George Kendall, a senior counsel at Holland & Knight LLP in New York,
insisted, though, "These are not problems without solutions. This is not
rocket science."

As a workable mechanism to enforce Batson's requirement of racial fairness
in the use of peremptory challenges of jurors, he suggested a system of
"inclusion": Once jurors were initially qualified, prosecution and defense
would each get to list the jurors they most want to serve, and the two
lists could be reconciled to empanel a jury.

He also called for a political action committee, or PAC, to support what
he called the "progressive justice agenda." Without a PAC, which would
enable opponents of the death penalty to support the election campaigns of
like-minded candidates for public office, he said, "we are nave to think
we can be effective, in Boston, Washington, or any other city."

(source: Harvard Gazette)

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

Single vote spared Moussaoui from death penalty, says report


The vote of 1 juror prevented confessed al-Qaeda conspirator Zacarias
Moussaoui from being sentenced to death, says a published report.

In an interview with the Washington Post, the foreman of the 12-person
jury said no one knew the identity of the dissenting juror because votes
were held by secret ballot.

The foreman, a math teacher from Virginia who contacted the paper on
condition of anonymity, said the jury voted 10-2, 10-2 and 11-1 in favour
of the death penalty on the 3 charges for which he was eligible for
execution.

A unanimous vote on any of the 3 would have meant a death sentence for
Moussaoui.

The foreman told the Post that on April 26, the 3rd day of deliberations,
the jury voted 11-1 several times on 1 charge.

"It was as if a heavy cloud of doom had fallen over the deliberation room,
and many of us realized that all our beliefs and our conclusions were
being vetoed by one person," she told the paper.

The foreman said she voted in favour of the death penalty becuse she felt
the government proved its case against Moussaoui.

U.S. prosecutors alleged Moussaoui had advance knowledge of the attacks
and could have saved lives if he warned American officials.

A French citizen of Moroccan descent, Moussaoui was sentenced on May 4 to
life in prison for conspiring with the Sept. 11 hijackers. He's the only
person charged in the U.S. in connection with the attacks that killed
close to 3,000 people.

During the trial, he claimed he was supposed to fly a 5th plane into the
White House. Days after his life sentence was handed down, he said those
statements were false.

His defence team argued he was mentally ill.

(source: CBC News)