June 26
OKLAHOMA:
Former Oklahoma County prosecutor suspended from practicing law for 180 days;
Oklahoma Supreme Court disciplined attorney Brad Miller for misconduct in
murder case
Former Oklahoma County prosecutor Brad Miller has been suspended from
practicing law for 180 days for "reprehensible" misconduct in a 1993 murder
case.
Miller, 52, also must pay $12,834.
The Oklahoma Supreme Court reviewed Miller's actions after a federal appeals
court in 2009 overturned the convictions of 2 gang members.
Miller, now a successful civil attorney, has denied any wrongdoing.
The Supreme Court imposed the discipline in a 5-2 decision Tuesday.
"Make no mistake, if this conduct were to happen today, the punishment would
have been much more severe," Justice Yvonne Kauger wrote for the majority.
2 justices wanted Miller disbarred.
In a dissenting opinion, Justice Steven Taylor wrote: "Whether it was 'decades
ago' or today, no attorney should ever commit the 'reprehensible' conduct in
death penalty (or any other) litigation as detailed in the majority
opinion....The actions of the respondent take us into the dark, unseen, ugly,
shocking nightmare vision of a prosecutor who loves victory more than he loves
justice."
The 2 gang members, Yancy L. Douglas and Paris Lapriest Powell, were on death
row for years after being convicted at separate trials in the fatal drive-by
shooting of a 14-year-old girl, Shauna Farrow.
The 10th U.S. Circuit Court of Appeals overturned their convictions because of
Miller's "egregious" conduct. The federal appeals court condemned the
prosecutor for his "knowing use of false testimony" from the only eyewitness.
The eyewitness, Derrick Smith, identified the two men as the shooters but later
said he was too drunk and high to identify anyone. The 2 men were freed in
October 2009 when new prosecutors opted not to retry them because of Smith's
conflicting versions of the shooting.
Prosecutors believe Smith, who is in a rival gang, was the target of the
drive-by attack. He was shot in the hip.
The Oklahoma Bar Association alleged Miller knew the eyewitness was unreliable
but had him testify anyway and tailored and bolstered his account.
Multiple irregularities
In the majority's opinion Tuesday, the Supreme Court found there was not clear
and convincing evidence that Miller elicited false testimony. Instead, the
Supreme Court disciplined Miller for failing to disclose evidence to the
defense and for other conduct prejudicial to the administration of justice.
Specifically, the Supreme Court agreed Miller failed to disclose to Powell's
attorneys the steps the prosecutor took to aid the eyewitness in his own
criminal cases.
Douglas was tried first in 1995, and Powell was tried in 1997. After testifying
in the first trial, Smith wrote a letter to Miller clearly indicating he would
not testify in the second trial "unless he received favorable benefits." That
letter was not turned over to defense attorneys.
The Supreme Court also pointed to "irregularities" in the way information was
obtained from three sisters who were witnesses in the case. Those
irregularities included the use of fake subpoenas. The sisters were 14, 12 and
9 at the time of the shooting. Justices also noted arrest warrants were issued
in an attempt to force them into cooperating with Miller.
"Instances of prosecutorial misconducts from previous decades, such as
withholding evidence, often were met with nothing more than a reprimand or a
short suspension," Kauger wrote.
"Reprehensible though Miller's conduct may have been, and even if such
misconduct is punished more harshly when it occurs now, Miller's actions took
place decades ago, and it would be unfair to hold him to a harsher standard
than he would have been subjected to when his actions took place."
Late DA Macy blamed
Kauger also wrote Miller acted under the policies of the late Bob Macy, the
longtime district attorney who put dozens of murderers on death row.
Appeals courts, though, came to criticize Macy's hard-nosed approach more and
more often.
Macy is partially responsible for Miller's conduct and trial tactics, Kauger
wrote.
Miller did not return a phone call seeking comment.
(source: The Oklahoman)
ARIZONA:
Arias attorneys seek to vacate death eligibility
Jodi Arias' attorneys have asked a judge to vacate the jury's decision in her
murder trial that the 2008 killing of her boyfriend was "especially cruel," a
finding that allowed the panel to consider the death penalty.
Defense attorneys argue in their motion that the definition of "especially
cruel" is too vague for jurors with no legal experience to determine what makes
1 killing more cruel or heinous than another.
The filing also appears to challenge a landmark 2002 U.S. Supreme Court ruling
that found a defendant has the right to have a jury, rather than a judge,
decide on the existence of an aggravating factor that makes the defendant
eligible for capital punishment.
The high court determined that allowing judges to make such findings violated a
defendant's constitutional right to a trial by jury.
"Given the apparent difficulties that judges faced (prior to the ruling) in
applying the statute in a uniform, consistent manner, juries are understandably
even less equipped to do so," defense attorney Kirk Nurmi wrote in the motion
filed late last week.
Arias was convicted of first-degree murder May 8 in the stabbing and shooting
death of Travis Alexander in his suburban Phoenix home. About 2 weeks later,
the same jury failed to reach a unanimous decision on whether to sentence Arias
to life in prison or death.
Nurmi argues the term "especially" when coupled with cruel, heinous or depraved
in a murder case, was first used when judges had the authority to determine
factors that could make a defendant eligible for the death penalty, before the
2002 Supreme Court ruling.
"By including the word 'especially', the statute was designed to be employed by
a judge, one presumed to have the depth and breadth of experience to identify
those 1st degree murders 'above the norm,'" he wrote.
Nurmi added that under current law, "layperson jurors" are left to "muddle
through" the definition, with a defendant's life in the balance.
Maricopa County Attorney Bill Montgomery called the motion a standard
procedural move.
"Those are defense attorneys doing their job advocating for their client,"
Montgomery said Wednesday. "Obviously, we disagree."
Arias' attorneys have not returned repeated calls from The Associated Press.
The defense motion was filed as prosecutors are preparing to pursue the
ultimate punishment again in a second penalty phase with a new jury. Arias'
murder conviction will stand. Prosecutors also have the option of taking the
death penalty off the table and avoiding another trial, meaning Arias would be
sentenced to life in prison.
Taxpayers footed the bill for Arias' court-appointed attorneys throughout her
nearly five-month trial at a cost so far of nearly $1.7 million, a price tag
that will only balloon if the case moves forward.
Montgomery has declined to publicly release the cost his office incurred
prosecuting the case, citing a court order that seals some, but not all,
materials involved in the trial. The county, meanwhile, has provided regular
updates on Arias' defense costs.
Regardless, Montgomery said the cost to taxpayers will play no role in whether
prosecutors decide to resolve the case without another trial, or move forward
with seating a new jury in an effort to secure a death sentence. That lengthy
process would involve retreading testimony and evidence to bring the fresh
panel up to speed.
The next hearing in the case is set for July 18.
(source: Associated Press)
COLORADO:
Sir Mario Owens: Attorneys decry secrecy in death penalty case
5 years after an Arapahoe County jury decided that that he should be executed
for murder, transcripts and other records in the case of Sir Mario Owens remain
sealed under a court order that prohibits journalists, death penalty activists
or even the defendant's family from viewing them -- an unprecedented level of
secrecy that his attorneys claim is depriving the public of vital information
about the case, including allegations of prosecution misconduct.
In a recently filed petition to the Colorado Supreme Court, urging the release
of unredacted records in the capital case, defense attorneys James Castle and
Jennifer Gedde claim that "Mr. Owens has a present and powerful need to publish
the facts and circumstances surrounding his case, which include many
demonstrable instances of government misconduct, including withholding much
favorable evidence, presenting false evidence, and destroying evidence."
In separate trials, Owens and codefendant Robert Ray were both sentenced to
death for the 2005 murders of Vivian Wolfe and her fiance, Javad
Marshall-Fields; Marshall-Fields had been expected to testify against the two
men in another homicide investigation. Their prosecution, one of several
death-penalty cases pursued by former Eighteenth Judicial District Attorney
Carol Chambers, was conducted in an atmosphere of exceptionally stringent
security, with attorneys subject to gag orders, many court motions filed under
seal, witness names purged from documents and transcripts denied to news
organizations -- all ostensibly to protect witnesses from possible intimidation
and reprisals.
At the time, many of the measures were supported by the defense teams, who
regarded the intense publicity surrounding the case as a hindrance to a fair
trial. But the restraints also had the effect of muffling controversies over
the defense's limited access to witnesses and evidence and some unusual moves
by Chambers's office, including donating a car to one prosecution witness to
aid in her relocation -- and then failing to disclose that arrangement to the
defense before trial.
The routine sealing and redacting of records was supposed to be a temporary
precaution, but it extended well into the post-conviction stage. Last year,
attorneys for Owens asked that the records be unsealed, arguing that the
continuing court order was "contrary to the public's interest and fundamentally
unfair." District Judge Gerald Rafferty refused, though, ruling that "witness
protection issues" outweighed the right to know.
Although news organizations have already published many witness names in press
coverage of the trial, attorneys are still required to redact them from every
pleading -- even the name of state representative Rhonda Fields, the mother of
Marshall-Fields and an outspoken advocate of the death penalty.
In their petition to the Supreme Court, Castle and Gedde point out that the
prosecution has been allowed to release names and transcripts when it suited
their purposes. Representative Fields and current District Attorney George
Brauchler have been highly visible in the recent legislative debate over the
death penalty and the furor over the reprieve Governor John Hickenlooper
granted to condemned killer Nathan Dunlap, but the Owens defense has been
unable to publicly air "many significant post-conviction claims that implicate
the fairness, reliability, and wholesomeness of the process by which he ended
up on Colorado's death row."
Still bound by a gag order in the case, Castle declined to comment on the
petition. Attorney David Lane, who still consults with the defense team on
Robert Ray's case, says the extreme secrecy raises not only fair trial but
First Amendment issues. "I think the Supreme Court should vacate any gag order
in this case," he says. "The government is trying to kill these two men in the
name of the public, and the public should be able to see exactly what's going
on."
(source: Westword.com)
NEVADA:
Nevada death row inmate again sentenced to death in 1986 Las Vegas kidnap, rape
and killing
A Nevada death row inmate who won several appeals since he was convicted in
1987 of abducting, raping and killing a woman in Las Vegas has again been
sentenced to death.
Richard Haberstroh was re-sentenced Monday by Clark County District Court Judge
Elissa Cadish.
A jury spent more than 2 weeks hearing penalty phase evidence before deciding
May 16 that Haberstroh should be executed.
Haberstroh is now 58. His sentence will be automatically appealed.
He twice represented himself at trial in the July 1986 kidnapping, rape and
strangulation of Donna Kitowski.
The 1st jury deadlocked 11-1 and a judge declared a mistrial. The 2nd jury
convicted Haberstroh.
Prosecutors say Kitowski was abducted from a grocery store parking lot and
taken to the desert where she was sexually assaulted and strangled.
(source: Associated Press)
IDAHO:
Plea of 'not guilty' entered in Greenbelt murder case
Prosecutors will have until October to decide whether to seek the death penalty
against Patrick Zacharias, 40, for a 1998 rape and murder.
Kay Lynn Jackson, 22, was killed on April 5, 1998, under the Americana
Boulevard Bridge while walking to church. In April 2013, a grand jury indicted
Zacharias for the crime.
A judge entered a plea of "not guilty" Tuesday morning on Zacharias' behalf as
the defendant chose to "stand silent" rather than enter a plea.
Prosecutors had 60 days from the plea entry to decide whether to seek the death
penalty. They asked Tuesday for more time, and will have 120 days total to make
that decision.
A trial for Zacharias is now set for February.
Zacharias has been in prison since February 2007, serving a life sentence for
lewd conduct with a girl under 11. DNA testing connected him to the Jackson
case.
(source: Idaho Statesman)
CALIFORNIA----new death sentece:
Man sentenced to death for 1998 rape-killing
A man convicted of raping, torturing and killing a woman 14 years ago, leaving
her naked body on a Long Beach freeway embankment, has received the death
sentence for a 2nd time.
City News Service says 36-year-old Kevin Darnell Pearson was sentenced
Wednesday. The California Supreme Court overturned his 1st sentence last year,
ruling that a judge improperly excused a potential juror over her death penalty
views.
Pearson and 2 other men were convicted of kidnapping, robbing, torturing,
raping and beating 43-year-old Penny Keptra. She was attacked in December 1998
as she walked to a store with $6 worth of food stamps in her pocket.
Coroner's officials counted 114 separate injuries, including some 25 fractures.
Jamelle Armstrong and Warren Hardy were also convicted and sentenced to death.
(source: Associated Press)
WASHINGTON:
Death-row inmate cites racial bias in petition for a retrial
An attorney for Jonathan Lee Gentry, Washington's longest-sitting death-row
inmate, asked the state Supreme Court on Tuesday for a new trial on the basis
of racially charged prosecutorial misconduct.
Gentry, 56, has been on death row since 1991, when he was convicted of killing
12-year-old Cassie Holden, of Pocatello, Idaho, who was visiting her mother in
Bremerton in June 1988. An autopsy found Holden had been beaten with a large
rock.
Witnesses had reported seeing a black man matching Gentry's description in the
area. Gentry, who had a long criminal history, was arrested in the knife-point
rape of another young woman in Kitsap County and was then linked to Holden's
death by hair and blood found on his shoelaces.
Tuesday marked the 3rd time the case has been brought before Washington's court
of last resort. In January 1995, the court upheld Gentry's death sentence in a
6-3 decision. Later that year, it denied Gentry's appeal to overturn his
conviction.
4 years later, the court again upheld Gentry's death sentence, in a 7-2
decision.
On Tuesday, Tim Ford, Gentry's attorney, asked the court to take another look,
focusing on then-Kitsap County Prosecutor Danny Clem's comment to Gentry's
African-American trial lawyer during a courtroom break: "Where'd you get your
ethics, in Harlem?"
The trial court found the remark to be "totally inappropriate" and "racially
offensive," but not grounds to halt the prosecution.
Ford relied on a 2-year-old standard set by the state Supreme Court, arguing
that Clem's remark displayed prejudice on the prosecution's part and
constituted grounds for the case to be retried.
"When somebody says something like that ... you can't assume that they're going
to act in an evenhanded manner when they're making a decision, particularly an
emotional and difficult decision such as the decision to seek the death
penalty," Ford told the justices. Furthermore, he said, witnesses for the
prosecution used epithets - including the N-word - that evoked racial bias in
the trial.
Ford urged the court to follow the new standard established in a case called
State v. Monday - a June 2011 ruling that held that the prosecution bears the
burden of proving that racially based prosecutorial misconduct didn't affect
the outcome of the case.
In that case, the Supreme Court reversed a King County murder conviction and
ordered a new trial because, it said, a prosecutor improperly cast doubt on the
credibility of the witnesses based on their race. The court said the
prosecution could not prove beyond a reasonable doubt that the impropriety
didn't affect the jury.
How the Supreme Court decides to interpret the State v. Monday ruling with
respect to Gentry's case will likely determine the outcome.
Ford said it should be retroactively applied to the 1991 case, and the burden
to prove that racially based prosecutorial misconduct didn't weigh on the
outcome should be shifted to the prosecution - especially because, in a
death-penalty sentence, the stakes are higher.
"Everybody talks about racial discrimination," Ford said. "But, in Monday, this
court did something about it. ... If you compare the approach that this court
took with this case in 1995 to the approach it took in Monday, it shows a
dramatic difference."
Kitsap County Deputy Prosecutor Randall Sutton said the Monday case ruling
shouldn't come into play. He made a point of condemning Clem's comments, but
argued that they hadn't tainted the trial in the way the misconduct had in the
Monday case.
"Despite the fact that [Gentry's attorney has] taken Mr. Clem's comments and
attempted to paint that brush all over this trial, Mr. Clem wasn't even the
trial prosecutor in this case," Sutton said in his rebuttal. "There's no
evidence whatsoever either of the trial prosecutors harbored any racial bias
toward Mr. Gentry or anyone else. There is no evidence."
Sutton admitted he'd never met Clem but had heard him described as a "hotheaded
jerk." Nevertheless, he argued, Clem's comments were made out of the presence
of the judge and the jury. Because they weren't directly part of the trial, he
said, they don't fall under the jurisdiction of the Monday ruling.
"I'm not in any way trying to justify his statement, because I don't believe it
is justifiable," he said. "But the fact is, Monday is about the fairness of the
trial and the perception and the effect on the jury. There is nothing in this
case that the jury heard or saw or was even motivated by the state to present
to the jury that suggests that racial bias was involved."
Sutton also said evidence in the defense's brief had been "grossly taken out of
context." He referenced testimony identifying Gentry as looking "out of place"
on the day of the murder and said it was based on what he was wearing - a suit
on a hot day - not on his race. He added that Gentry's race only came up in the
trial during a line of questioning that included other physical
characteristics, such as height, weight, eye color and clothing.
In response to questioning from the justices, Ford said the Monday precedent
ought to be retroactively applied to every criminal conviction, especially in
capital-punishment cases, since the stakes and the responsibility of review are
higher.
"I think most people would think that if there's a reasonable doubt the person
was sentenced to death because of their race, they shouldn't be put to death,"
Ford said in an interview after the hearing. "That seems like a pretty simple
proposition, but in court, sometimes it can get pretty complicated."
(source: Seattle Times)
********************
Racial charge in Washington death penalty appeal
A new appeal for an inmate sentenced to die for killing a girl in Bremerton in
1988 accuses the prosecutor of racial bias.
Attorney Tim Ford asked the state Supreme Court on Tuesday to take another look
at the murder conviction of Jonathan Lee Gentry. The 56-year-old has been on
Death Row since 1991 when he was sentenced to die for killing 12-year-old
Cassie Holden, a Pocatello, Idaho, girl who had been visiting her mother in
Bremerton.
Ford says the Kitsap County prosecutor at the time, Danny Clem, made a comment
to Gentry's African-American trial lawyer, asking, "Where'd you get your
ethics, in Harlem?"
Current Deputy Prosecutor Randall Sutton told The Seattle Times
(http://is.gd/NFoV5w ) the jury didn't hear the comment and it didn't affect
the trial.
(source: Associated Press)
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