Oct. 17
KENTUCKY:
Mercer prosecutor seeks death penalty for man accused of killing ex-business
partner
Mercer County Commonwealth's Attorney Richie Bottoms has filed notice of his
intention to seek the death penalty in the case of a Lexington man accused of
shooting and killing his former business partner.
In a document filed Friday, Bottoms gave notice of his intention to seek the
death penalty among a range of other punishments against James M. Kelley, 54,
who is charged with murder in the shooting death of John "Bud" Dacci, 54, on
Dec. 21, 2010 in Mercer County.
"By giving this notice, it is the intent of the commonwealth to put the
defendant on notice that it reserves the right to seek all authorized
punishments as set forth in (state law) for a capital offense, including
death," life in prison without probation or parole, life in prison without
probation or parole for 25 years, life in prison, or 20 to 50 years, the notice
said.
State law requires an "aggravating circumstance" - an accompanying crime or
circumstance - to make homicide eligible for the death penalty.
In this case, the commonwealth asserts that it will prove that Kelley committed
murder while engaging in the robbery of Dacci and the burglary of Dacci's
house.
Court records say Kelley forced his way into Dacci's house on Ashley Camp Road
near Herrington Lake and shot Dacci. Maryann Dacci, John Dacci's wife, tried to
escape, but Kelley prevented her from doing so and then shot her, court records
say. When Kelley fled, Maryann Dacci called 911.
Dacci and Kelley had been business partners in Dacci Heating and Air
Conditioning in Lexington. Kelley was listed as the secretary of the business
until 2007, according to records in the Kentucky secretary of state's office.
The prosecution's notice to seek the death penalty follows the Kentucky Court
of Appeals' rejection Sept. 18 of an appeal by the public defender who
represents Kelley.
Kelley initially was found to be incompetent to stand trial, but after a later
evaluation, Mercer Circuit Judge Darren Peckler found that Kelley was competent
enough to participate. Public defender Susanne McCollough appealed that later
ruling and sought to prohibit Peckler from enforcing the order in which he
found Kelley competent to stand trial.
The appeals court ruled that "trial courts make the ultimate determination
regarding a defendant's competency to stand trial." Furthermore, the appeals
court ruled that Kelley, if convicted, may then appeal Peckler's determination
of competency. And if Kelley's condition deteriorates, he "may request a review
of his competency by the trial court at that time."
Kelley suffered a traumatic brain injury as a result of a self-inflicted
gunshot wound to the head on Dec. 22, the day after the Mercer County
shootings. Kelley had shot himself outside a Richmond hospital.
Maryann Dacci filed a wrongful-death lawsuit last year against Kelley in which
she said she is entitled to damages for pain and suffering, medical and funeral
expenses, destruction of her husband's earning capacity, and other damages.
That suit is pending in Mercer Circuit Court.Kelley also faces charges of
1st-degree robbery, 1st-degree assault and 1st-degree burglary. A trial date
has not been scheduled, but a status hearing in the case is scheduled for Nov.
13 in Harrodsburg.
(source: Herald-Leader)
***********************
New judge sought in death penalty case; Lawyer claims McDonald threat
An assistant public advocate has filed a motion to disqualify Senior Judge
Martin McDonald from hearing a death penalty case in which he threatened to
strangle the lawyer if he called again on the judge's cell phone and called the
lawyer's case "ridiculous," "disgusting" and a "huge waste of time."
David Barron filed a motion and affidavit Monday asking Chief Justice John D.
Minton Jr. to take McDonald off the case, in which death-row inmate Roger Dale
Epperson is seeking a new trial based on his claims that his trial lawyers were
ineffective.
"It is my opinion that throughout the proceeding, Judge McDonald expressed his
personal disgust and disdain for me and made clear he harbors a bias towards me
and my client," whom McDonald referred to as a "carcass."
Barron said that in a previous hearing, McDonald made a threatening gesture
toward him and said "in the old days we would just have pugil sticks and settle
the matter that way." A pugil stick is a padded polelike training weapon used
in military combat training.
McDonald said in an interview earlier this month that he was being facetious
when he threatened to strangle Barron, although leading national ethics experts
said his comments showed that he had appeared to prejudge the case.
The attorney general's office is reviewing the motion and hasn't decided
whether to oppose it, spokeswoman Allison Martin said.
Judges are rarely disqualified from sitting, although Minton did remove
McDonald from a civil case last month after allegations that he failed to
disclose a conflict of interest and demonstrated other bias.
(source: Courier-Journal)
SOUTH DAKOTA:
Debating state's death penalty
The following are reflections by members of the Argus Leader Opinion Advisory
Panel on this week's execution of Eric Robert and the upcoming execution of
Donald Moeller.
...When I opened the paper and looked into the eyes of Eric Robert and then at
the execution table, I have to admit I felt sick to my stomach. That man
brought immense suffering to a family; he took a life for absolutely no
justifiable reason and did so cruelly and inhumanely. Yet, thinking of
strapping a person to a table and filling his veins full of death fluid leaves
me looking upward and just wondering how we justify this.
On one hand, I want to wrap my arms around the Johnson family because the evil
that has pervaded our society has touched them far too closely. On the other
hand, Eric Robert is still a person, a person who believes he should die for
his actions and feels he could kill again. I know the Old Testament says, "An
eye for an eye," and on some level, I do get that. However, Christ was willing
to die on a cross to give us a new model for living. So, I end up thinking that
this poor family will never get their husband and father back, regardless. And,
I can only imagine somewhere there's a family, perhaps at the penitentiary
today, whose brother/son is going to die for taking that life, a brother/son
that they have loved very much.
There is no win here. There is just, for me, immense sadness that this is what
evil looks like in the world. And it makes me feel sick. I know it's strange,
but I had to put down a very sick cat a few years ago, and I remember what it
was like, feeling life leave her body. How do you watch that in a person? I
leave my questions to God and just hold up the people who are left behind, both
the victims and the perpetrators, whose pain is so great today and in the
upcoming weeks/months that there can be no right words.
Pam Oberembt, 52----High school language arts instructional coach----Brandon
----
I always want to be sure that when we as a state - or as a country - consider
the execution of someone, we never take it lightly. There's no way to change
our minds once we've done it. We must always be sure that when we end someone's
life, this person is 100 % guilty with no doubt whatsoever. That's a high bar
to cross.
I am absolutely for the death penalty, but only in the case of murder and only
when it has been proven that he or she has done the crime. Both of these men
have murdered another individual. It has been definitively proven. I have
sympathy for their souls, but I believe in this punishment and believe it is an
acceptable one for the crime they committed.
Doug White, 43----Software developer----Sioux Falls
----
These upcoming executions are a different experience for me, having moved here
from a state without the death penalty. The news of an execution was always on
the national news because the condemned was a notorious criminal and usually
because the courts did not issue a stay. All of this coverage on the news is
surreal to me.
I have mixed feelings on the death penalty in general. I'm generally not in
favor of the death penalty, except in certain circumstances. My mixed feelings
come from the fact that in this country, there are people who are convicted of
crimes they did not commit based upon flimsy cases and circumstantial evidence,
or perhaps the crime was committed long ago before the forensic technology we
have now was even invented. I am uneasy about the possibility of executing
someone who might be innocent. It's not like sending them to prison for life
without parole, because death is permanent and once the execution is carried
out, there are no do-overs.
I'm not suggesting that either of the condemned men were innocent, but it does
happen elsewhere in the country.
I can't be happy for anyone in these cases, not the victims' families, the
accused or even the families of the accused. I sincerely hope that the victims'
families finally find peace and closure after this is all done.
Kathy Kramer, 42----Freelance writer----Sioux Falls
----
If I told you that in the name of justice, we could use a tool that didn't
deter crime, caused needless expenditure of taxpayer resources and sometimes
led to innocent people being killed, what person thinking rationally would say
that's a good idea?
States that use the death penalty have higher rates of intentional homicide
than those that do not. The U.S. as a whole has higher rates of intentional
homicide than industrialized nations that don???t allow for the death penalty.
A recent University of Colorado study found that 88 % of criminologists believe
precisely what the data indicates; the death penalty provides no measurable
deterrence against violent crime. The countless appeals in death penalty cases
are legally justified and yet tie up scarce resources. At the same time, there
have been far too many instances of people released from death row because DNA
or other evidence collected subsequent to their conviction has exonerated them.
So other than to satisfy the emotional whims of a vengeful public, what's the
point? My opposition to the death penalty isn't on moral grounds but out of a
sense of pragmatism. If you can find me a world where judges, juries,
prosecutors and witnesses never make mistakes, I will gladly support the death
penalty.
Ryan Gruber, 35----Professional musician----Sioux Falls
----
Any time one takes a life, it is so sad.
Lynne Banks, 53----Adoption fraud investigator----Sioux Falls
----
Simply put, it's just sad all the way around. It's sad that the life of a
decent, dedicated family man and state worker was needlessly and viciously
taken, that another man's life reached such a low point that he actually
committed the act of taking another man's life and that this all came down to
proactively ending his life as well. Nobody wins.
Perhaps the upside includes subsequent increased safety for penitentiary
workers and some sort of closure for family and friends, which will never fully
mitigate the pain that has been inflicted. Possibly, some will take some sort
of solace in having control over the end of Eric Robert's life. I fortunately
haven't experienced what Mr. Johnson's family and friends have experienced and
can't begin to imagine it.
Dave Jones, 46----Business analysis manager----Brandon
----
2 executions scheduled within weeks, after only 1 local execution in 60-plus
years, has brought increased attention to what is a complex and polarizing
moral issue. Both sentences stemmed from high-profile murders.
The end result of an execution is a foregone conclusion. The news value of
turning it into such a public spectacle, with days of pre- and post-event
coverage as well as live tweeting and reporting as it happens, is open to
debate. Only time will tell, with a waiting list of death row inmates in South
Dakota, what can sustain the media's appetite for such extensive news coverage
or the public's attention to such matters.
But, for now, saddle up for the Moeller execution. After more than 20 years in
the court system, the final act could happen on the opening night of November
sweeps. Should make for some interesting reality TV.
Mark Millage, 49----President of Kilian Community College, retired
journalist----Sioux Falls
----
Executions do not happen very often, and, from a financial point of view, it is
cheaper to house convicted criminals behind bars for the rest of their natural
lives than begin the death penalty process.
It seems to be a more fitting punishment for these convicted criminals to sit
in jail with no hope of getting out.
But there is a need for the executions, and I'm willing to pay my share.
Scott Murray, 61----Corporate trainer----Sioux Falls
----
My thoughts as I write this a few hours before the 1st execution are with the
families of the victims. I hope they find peace in the final justice that will
be given out. My thoughts are also with the staff and warden in the prison
system who must carry this act out twice over the next few weeks.
It is one thing to take a life when the person's life you take is actively
trying to kill you. I have never been in this situation, but I think it is
something that could be worked through. What these people are going to have to
do is end the life of a healthy man who is not actively harming them in any
way. I am certain there are those who would say that is their job, that they
knew what they were getting in to when they got hired, and while that may be
true, I still don't know I could participate in the execution.
I do think the death penalty is necessary in cases, but at the same time think
it is used too often in other states. This is the 1 punishment there is no
going back on, and yet it seems Texas and other states are rushing from the
court room to the death chamber. Both of the men who are to be executed this
month have admitted the crimes and requested the appeals process stop. I am
glad the death penalty is an option in S.D. I only hope it is something that
remains rarely used.
Paul Lathrop, 43----Over-the-road truck driver----Sioux Falls
----
My thoughts about executions are all wrapped up in my Christian faith, and they
are complicated. Whether the person being executed has asked for the death
penalty, I somehow feel that an execution doesn't allow for redemption. I also
think about the executioner. We are asking a person to take the life of another
human being. Will that death weigh on the person's heart for the rest of his or
her life? This seems like the ending of a sad story with no winners.
Nancy Hallenbeck, 64----Retired public school teacher----Sioux Falls
----
Last night on the news, the newscaster was at the site where the execution was
to take place, and I couldn't watch. I am not sure how I feel about the death
penalty. "Thou shalt not kill": I can't find where the Bible lists exceptions
to this commandment. It is OK to use the death penalty and kill in a war we
should not be in, but it is not OK to murder or have an abortion. I wonder
whether God makes these distinctions? It saves the taxpayers money by not
having to feed the convicted person, but is that a reason to kill? It does not
bring the person who died back but does it provide closure to the victim's
family?
I am conflicted on this issue as I am on the commandment that says, "Thou shalt
not steal or bear false witness," yet we are in the middle of an election where
the truth is buried like a needle in a haystack, where people's rights to vote
are trying to be stolen and, all the while, everyone is proclaiming to be a
Christian.
Maybe I'll just join Daniel in the lion's den and pray I can find the answers.
Mary Jean Hendrie, 67----Retired from US West----Sioux Falls
(source: Editorial, Argus Leader)
**********************
Next Execution In SD 2 Weeks Away
The protesters who sang songs of peace and lit candles outside the state
penitentiary say they'll be back.
"The hope is that we don't continue what we're doing here in the next month,"
said Mark Sanderson.
"So, we will be having a vigil at each execution and we'll also continue to
write letters and make our voices heard to the governor," said Karl Kroger.
Donald Moeller who was found guilty of 1st degree murder and rape is set to be
executed on the week of Halloween.
If Moeller's punishment goes on as planned, it will be the 1st time since 1902
2 executions will happen in the same year in South Dakota.
If the execution happens before the 31st, it will be the 1st time 2 people have
been executed in the same month in the state.
Those opposed to the death penalty hope that policies are changed for Moeller
and the 3 others on death row.
While lighting candles didn't change Eric Robert's fate, opponents of capital
punishment hope their voices are heard before the next execution, only weeks
away.
(source: KDLT News)
*************************
Minnehaha State's Attorney Reacts To Execution
The Minnehaha County State's Attorney said the execution of Eric Robert was
done precisely to the letter of the law. Aaron McGowan was a witness to the
lethal injection. On the day Robert was set to die, McGowan was thinking about
life.
"Went home and spent a little time with my kids before I drove back to the
penitentiary," McGowan said.
Not only did he witness the lethal injection, the Minnehaha County States
Attorney said he saw a professional and meticulous process. He calls the 1-drug
method used for Robert effective, humane and done according to South Dakota
law.
"Whether that's a victory for the law, I don't know. According to the laws on
our books and the manner in which the process is to be fulfilled, it was done
with great, exact care and could not have gone any better," McGowan said.
McGowan felt obligated as the State's Attorney to observe this process from
beginning to end. He does not call it a pleasant experience, but wanted to
witness the ins and outs of this outcome, so he better understands it for other
cases that could result in the death penalty. 1 example includes the trial of
James McVay, who pleaded guilty to 1st-degree murder for cutting the throat of
75-year-old Maybelle Schein. However, one cannot easily determine if Robert's
execution and the 1-drug method for the lethal injection will affect other
cases.
"Everything is so fact specific in cases of this magnitude, it's hard to
imagine that this would have a specific impact on any future cases," McGowan
said.
According to McGowan, the important impact could be to other inmates who are
serving life sentences.
"Here we had defendants with nothing left to lose that committed a very heinous
crime as an attempt to escape. So, I think you have to send a message to
individuals who are serving a similar sentence that there are additional
consequences and yes, you do have something to lose," McGowan said.
(source: Keloland)
**********************
Our View: The Death Penalty And The Moral Fog
Deep down, it's hard for many of us to know what to think.
The execution Monday night of convicted murderer Eric Robert brought a quick
end to what is usually an interminable procession of appeals. Robert was
convicted, along with another prisoner, of killing prison guard Ronald Johnson
during an escape attempt from the South Dakota State Penitentiary just last
year. Robert never sought to avoid the fate that our system of justice said he
had coming to him, declaring he would kill again if he wasn't put to death. On
Monday night, he met that fate - an eye for an eye, according to Exodus 21:24,
not to mention state codified law.
But the morality of such matters is never so comfortably clear for some people.
That was demonstrated in vigils of protest such as one conducted in Yankton
Monday night while a lethal injection was swimming through Robert's veins in
Sioux Falls. The main counter-argument the protesters put forth was simple: One
of the Ten Commandments that our Christian society professes to revere
declares: Thou shall not kill. And yet, the state carried out a killing to
atone for a killing, as a judgment on another human being.
There is no question that Robert's crime was abhorrent. He deserved to be
punished for his action; no one argued otherwise. And Robert's willingness to
die was clear: In a letter he sent to Attorney General Marty Jackley earlier
this month, but not made public until Tuesday, Robert wrote, "... my actions
deserved the penalty of death." He added, "I do not want to or desire to die,
instead I deserve to die. ... The victim's family deserves their justice
swiftly to begin their healing." That's a powerful argument, albeit from a
flawed source.
But opponents of the death penalty say it is not the place of a government to
dictate life and death on such terms, and they viewed the state's execution of
Robert as assisting with his suicide. Also, the death penalty removes any hope
for atonement - not forgiveness, by any means, but an opportunity for a soul,
if you will, to turn itself around and reclaim some measure of lost goodness.
This is an extraordinary dialogue of conscience that will probably never settle
anything. There will be those people who will always believe that murderers
deserve to die. And if you do believe that, Robert certainly got what he
deserved. And there will always be people who will proclaim that the state must
not, as they see it, commit the very same crime that we condemn others for
doing.
It is a genuine dilemma for some people.
Meanwhile, we must also recognize that there are other problems with capital
punishment that lurk in the moral fog. The danger of executing an innocent
person is always a possibility. Thanks to improved DNA techniques, at least 15
people in this country who were condemned to death for crimes have been
exonerated since 1992. There have also been a handful of individuals who have
been executed and were later believed to have been innocent. That is
unforgivable - and uncorrectable.
Perhaps, then, what is important is that the dialogue of conscience continues
with each case, as it seems to do in South Dakota, where executions are rare.
The last thing we can afford to do is to take these matters for granted and
allow the use of the death penalty to become an ordinary thing, as opposed to
an extraordinary punishment.
The debate may indeed never be settled, at least in the U.S. - although 51 % of
the countries on the planet have settled it and abolished the practice,
according to the United Nations. But perhaps the debate can serve a purpose,
and it may one day change public opinion here on the subject.
Until then, we can only ask the questions - of our society and ourselves.
Because all things considered, it's truly hard to know what to think.
(source: Yankton Daily Press & Dakotan)
******************
Executed man asks S. Dakota to change law for swifter justice; Robert says
state court got in way with review
The man executed Monday night for the murder of a corrections officer wrote a
letter to South Dakota's Attorney General asking the state to clarify its death
penalty statutes and make it easier for swift executions to be carried out for
willing inmates.
The letter from Eric Robert, dated Oct. 8, was released Tuesday afternoon by
Attorney General Marty Jackley in response to media requests.
Robert had asked for and received a death sentence for the murder of Officer
Ronald "R.J." Johnson on April 12, 2011. He was put to death by lethal
injection Monday night at the South Dakota State Penitentiary.
In the letter, Robert commends Jackley on his conduct in prosecuting the case,
although he took issue with the presentation of prior criminal behavior
designed, he said, to wrap Robert in a "cloak of evil."
"However, we did agree on the main point; that in this case my actions deserved
the death penalty," Robert wrote.
Robert did not appeal his sentence, but the state Supreme Court delayed
Robert's initial May execution date to complete a mandatory sentence review.
Robert fought the delay through filings from his lawyer challenging the court's
authority to issue a stay in the absence of an appeal or an order for clemency
from the governor.
He also wrote a letter to Associated Press this summer, accusing the high court
of cowardice.
In his October letter to Jackley, he wrote that the language of the state's
death penalty statute makes a distinction between an appeal and a mandatory
review, but noting that the review and appeal are considered together if both
are submitted.
Rodney Berget, Robert's accomplice in the Johnson murder, submitted an appeal
to the Supreme Court along with the sentence review, and both issues were
covered in oral arguments earlier this month.
Robert says in the absence of an appeal, the law does not give the court the
authority to delay a death for a sentence review and require the inmate to
submit appeal briefs as though a challenge were taking place.
Justice in a capital case, he said, demands a swift sentence.
"In every other crime, the victim receives justice upon the convicted person's
incarceration," Robert wrote. "In death penalty cases, the justice only comes
with the execution. The victim's family deserves justice quickly to begin their
healing."
At the end of the letter, Robert encourages Jackley to consider proposing a
change to the language of the state's death penalty statutes to ensure sentence
reviews are completed in time to carry out the execution as originally
scheduled.
Rep. Roger Hunt, R-Brandon, is chairman of the House Judiciary Committee. Hunt
read Robert???s letter Tuesday but said the purpose of the sentence review in a
death penalty case is important enough to allow for delays.
The court must determine that a sentence is based on true facts and that the
procedural rules were followed to protect a person's constitutional rights. If
a delay is necessary for that reason, Hunt said, it amounts to a reasonable
delay.
"This is a matter of life," Hunt said. "I can appreciate Eric Robert's
situation and his wanting to move forward. I'm sure Officer Johnson's family
wanted it to move forward. But I think history shows us that it helps to take a
little more time in these matters."
Sen. David Lust, the majority leader from Rapid City, agreed, pointing out that
Robert's decision to avoid appeals altogether was incredibly unique.
"I've never been a proponent of making a law based on one example," Lust said.
"Unless you can show a compelling need for a law that would apply to all
citizens, we don't need one."
Lust concedes that Robert raises an interesting point about a lack of
specificity, however. Hunt said he trusts Jackley's team to review statutes for
necessary changes and would be open to clarifications as needed.
"This will be something for our Attorney General and future attorneys generals
to think about," Hunt said.
Jackley declined to comment further on the Robert letter, saying that it
"speaks for itself and is the thought process of Mr. Robert."
(source: Argus Leader)
_______________________________________________
DeathPenalty mailing list
[email protected]
http://lists.washlaw.edu/mailman/listinfo/deathpenalty
Search the Archives: http://www.mail-archive.com/[email protected]/
~~~~~~~~~~~~~~~~~~~~~~~~~~~
A free service of WashLaw
http://washlaw.edu
(785)670.1088
~~~~~~~~~~~~~~~~~~~~~~~~~~~
