Sept. 3
INDIANA:
Judge to decide if Michael Overstreet is competent to be executed
Convicted killer Michael Dean Overstreet "is not competent" to be executed
under federal guidelines, a psychiatrist testified today during a hearing in
St. Joseph Superior Court.
Dr. Rahn Bailey was the 1st witness called by attorneys for Overstreet during a
4-day hearing that could determine whether Overstreet is the next person in
Indiana to be executed.
Overstreet was convicted of murder and sentenced to death in the 1997 in the
murder and rape of Kelly Eckart, 18, of Boggstown. The Indiana Supreme Court
last fall granted a request from Overstreet's attorneys for a hearing on
whether he is competent to be executed. Attorneys for the state had opposed the
request for the new hearing, and instead asked the court to set an execution
date.
In court documents, Overstreet's public defender Steve Schutte said mental
health professionals have determined the convicted killer "does not have, and
does not have the ability to produce, a rational understanding of why the State
of Indiana plans to execute him."
The Eighth Amendment prohibits the state from executing a person who is deemed
insane. Legal rulings addressing that threshold cite a person being "unaware of
the punishment they are about to suffer or why they are to suffer it" and
unable to understand the link between a crime and its punishment in a context
far removed from reality, the court order explains.
Testifying for the defense Tuesday, Bailey said he based his diagnosis and
determination that Overstreet is not competent for execution on 3 face-to-face
interviews with Overstreet in 2013 and by watching videos of interviews 2 other
mental health professionals conducted with the death row inmate in August at
the Michigan City Correctional Facility.
Bailey said he also had reviewed older mental health records from Overstreet's
time in prison and before his murder conviction.
Overstreet has schizophrenia with paranoia, Bailey said, and suffers from
delusions and hallucinations. The delusions include a belief that people are
not who they appear and that he is influenced by the devil or some other source
of evil.
Overstreet's most serious delusion - and the one most important to the hearing
- is that he is in a sort of coma, Bailey said, which Overstreet described as
"being already dead" and "like he is up in the air, looking down" on himself.
Overstreet thinks that after his execution, Bailey testified, that he will
still function in a realm of life similar to what is commonly understood as
living. Bailey called that "remarkably inconsistent" with the understanding of
the finality of an execution.
Bailey said Overstreet was not speaking metaphorically and repeated that same
position on numerous occasions.
Bailey said he does not believe Overstreet is attempting to fake symptoms and
noted the prisoner is on "mega doses" of medications. If Overstreet did not
have serious mental issues, Bailey said, those medications would physically
incapacitate him.
Overstreet sat quietly during the hearing, but did not seem intent on the
testimony being given by Bailey. Wearing a red jail suit with MCC X-Row printed
on the back, Overstreet rocked in his seat and bobbed and swayed his head
throughout the hearing.
During cross examination, deputy attorney general James Martin raised questions
about Bailey's work in other death penalty evaluations and his findings in
those cases. He also pointed out that much of the background Bailey had
reviewed regarding Overstreet was old and came from sources hired by the
defense.
The hearing, which was moved to St. Joseph County due to this illness of the
Johnson County judge who had presided over the case, opened with brief
statements by Schutte and Martin.
Schutte noted no mental health professional who has evaluated Overstreet has
not agreed that he has a psychotic illness, although some disagree over the
specific diagnosis and seriousness of that illness. The only question to be
answered, Schutte said, is whether Overstreet grasps his fate and the rational
connection between the crime he was convicted of and the punishment he now
faces.
Martin said the issue at hand is not to determine whether Overstreet is
mentally ill - a point the state is not disputing.
"The question," he said, "becomes whether that mental illness renders Mr.
Overstreet incapable of understanding" the sentence and its connection to his
criminal conviction.
Martin said the state's evidence will show that Overstreet is competent to face
execution under federal standards.
The hearing, which is scheduled to run through Friday, will include testimony
from additional doctors and mental health professionals, including state
witnesses expected to testify that Overstreet is competent to be executed.
(source: Indianapolis Star)
MISSOURI:
Missouri Swore It Wouldn't Use A Controversial Execution Drug. It Did.
In Ohio, the execution took 26 minutes, as the inmate gasped and snorted. In
Oklahoma, it took 43 minutes until a conscious inmate died of what the state
said was a heart attack. In Arizona, it took nearly 2 hours, with the inmate
"gulping like a fish on land."
The 3 worst botched executions this year had at least one thing in common: The
states all used a drug called Midazolam to sedate the inmate, with varying
levels of success.
Botched executions in other states led to questions in Missouri, a state as
secretive as the others. Top Missouri officials were asked about the state's
methods. They defended their own protocol each time, pointing out that Missouri
doesn't use the same drugs as those other states.
But an investigation by St. Louis Public Radio shows that wasn't entirely true.
According to documents we obtained, Missouri has used Midazolam in every
execution since November of last year. In all 9 executions since then,
Missouri's execution team has injected the condemned with significant amounts
of the sedative.
This is occurring in spite of the fact that Missouri's top corrections
officials testified Midazolam would never be used in a Missouri execution.
'We Will Not Use Those Drugs'
"Why will there be no use of [Midazolam] in an execution?" a lawyer asked
Missouri's Director of the Department of Corrections, George Lombardi during a
deposition in January.
"Because we have no intention to do that. We have Pentobarbital that we use,"
Lombardi responded.
"Well, I -- the subsection B says that if the Department Director -- which is
you, correct?"
"Right."
"Determines that a sufficient quantity of Pentobarbital is not available, then
Hydromorphone or Midazolam will be used. Are you saying that --"
"And I'm testifying right now to tell you that will not be the case. We will
not use those drugs," Lombardi said.
He was under oath.
That deposition took place in mid-January. By then, Missouri had already
carried out 2 executions in which the inmate received Midazolam, and has since
carried out seven more using the drug, according to records obtained by St.
Louis Public Radio.
In a separate deposition that also took place in January, Director of Adult
Institutions David Dormire originally said Missouri didn't even have Midazolam.
Later in the deposition, he changed his story.
"I was reminded that we had purchased those items as a back-up," he said.
But the documents show that the Midazolam was not just a back-up: It has in
fact been used in each execution since November. What's more, these 2 men who
offered assurances that the drug would not be used have signed off on its use
each execution.
"We had no idea," Cheryl Pilate, an attorney who has represented several death
row inmates said, after St. Louis Public Radio provided her with documents
showing the drug's use. "It's very disturbing that Midazolam hasn't been
disclosed. State law requires drugs in protocol to be disclosed."
"There may be a serious violation of state law going on."
The new documents raise several concerns. One is that the men carrying out
executions have been deceptive about the drugs they have used. Another is that
Midazolam has been one of the drugs used in a growing number of botched
executions throughout the United States. And finally, there are questions about
when the Midazolam is administered.
Lombardi acknowledges in a deposition that a drug called "Versed" could be
given as a sedative, but does not offer that Versed and Midazolam are the same
drug. He said the sedative is given either at the request of the inmate, at the
request of the state, or at the request of the state's execution team. Lombardi
also said the time that the drug is given varies, but is often a few hours
before the state's main execution drug: Pentobarbital.
If that is the case, Midazolam is being injected without the presence of state
and press witnesses. In other words: There is no one to provide oversight if
things go awry.
The Effects Of The Drug
Lombardi said the sedative was used to calm the inmate. However, the doses the
state has used would do much more than calm the inmate, according to medical
experts we spoke with.
"A typical sedative dose of Midazolam would be in the range of 0.5 to 2
milligrams, depending on the patient's size and their individual sensitivity or
resistance to the drug," said Dr. Mark Heath, an anesthesiologist who has
testified as an expert against several states' lethal injection protocols.
The amount of Midazolam Missouri has used varies quite a bit - from 2
milligrams to 6 milligrams - and the dosage has been consistently going up. In
addition, two inmates have been given Valium on top of the other drugs.
Missouri has previously maintained that Pentobarbital was the only drug in its
1-drug protocol.
Drugs used in Missouri's executions
Pentobarbital
A barbiturate that induces sleep, similar to sodium pentothal. In large enough
doses, it stops breathing. Missouri uses a compounded drug that is made to
imitate pentobarbital. It is injected.
Midazolam Also known as Versed, Midazolam is a benzodiazepine that sedates and
induces amnesia. A typical dose for sedation during surgery is .5 to 2
milligrams injected via an IV. A 6 milligram dose would put a patient into a
deep sleep to the point where breathing could be obstructed.
Valium
A benzodiazepine that is often used to treat anxiety. A 5 milligram tablet
would calm a patient.
Lidocaine A local anesthetic that numbs where it is injected. The drug is
usually short-acting. A typical dose depends on the procedure.
(source: KRCU news)
****************
Ministers ask Nixon to stop Missouri executions; Missouri set to execute man
for 1998 double murder in Columbia
Missouri is scheduled to execute another death row inmate in September, but a
group of Kansas City ministers has asked Gov. Jay Nixon to put a stop to
capital punishment in the state.
The ministers came to the governor's satellite office in downtown Kansas City
to request a meeting with Nixon, who was not there.
Earl Ringo Jr. is scheduled to be put to death next week, the 7th death row
inmate set to die since January. He was convicted of killing 2 employees of a
Ruby Tuesday restaurant in Columbia during a 1998 robbery.
The ministers wrote Nixon a letter, saying capital punishment contributes to a
culture of violence and vengeance. They are also concerned about the
possibility of a botched execution, which has happened in other states this
year.
"I would say we believe with God, nothing is impossible, to be really out there
about it," said the Rev. Jane Fisler-Hoffman. "That's what I believe. But we
also think the tide is turning in this country."
There is no word whether the ministers will get the meeting they're seeking.
During his time as Missouri attorney general and governor, Nixon has overseen
10 Missouri executions.
(source: KMBC news)
ARIZONA:
Lawyer: 'Why not' give Arias crime scene access?
It's been more than 6 years since Jodi Arias brutally murdered her
ex-boyfriend, Travis Alexander, inside his Mesa, Arizona, home.
The crime scene - especially the master bathroom featured so heavily in graphic
evidence photos - has been changed drastically since then, according to the new
owners who purchased the property in 2009.
Carpets have been replaced, walls repainted, fixtures updated and even new
shower doors installed. So what could Arias possibly gain by getting permission
from a judge to send her investigator back to "observe" the home?
The request is one of several Arias has made since being allowed the right to
represent herself during her upcoming retrial, scheduled for September 29. The
34-year-old was unanimously convicted in May 2013 of 1st-degree murder in
Alexander's death. The jury, however, could not come to an agreement on whether
to sentence her to the death penalty or life in prison. A new jury, tasked with
making a decision regarding sentencing alone, will be selected for Arias'
retrial.
Many have been questioning the judge's decision to allow someone from Arias'
team to visit the home. So we asked Monica Lindstrom, a criminal defense
attorney and former prosecutor, to help us understand why the judge might make
such a decision:
HLN: Is it common for a convicted murderer to be granted access to the crime
scene years after the fact? Do you think this is because of the unusual
circumstances of the case (a jury hung on sentencing, a penalty phase retrial,
Arias now representing herself, etc.)?
Lindstrom: "First let me say that there is nothing 'common' or 'typical' about
the case of State v. Jodi Arias. With that being said, it would not be uncommon
for a convicted murderer or their team to be granted access to the crime scene
years after the fact if the crime scene was a business or a location outside.
In that situation, there would be less people involved to coordinate or
disrupt.
The fact that the murder scene in this case is a residential home, occupied by
a family that is not involved in the case, increases the difficulty level. That
coupled with the fact that any physical evidence has been removed makes it
uncommon. There are ample pictures and descriptions that can be used by Jodi
Arias and her investigator to present her defense. It is highly unlikely Jodi
Arias will ever be granted access to the home; but Judge Stephens has ruled
that her investigator can visit the crime scene."
HLN: What kind of argument would a defendant have to make in order to be
granted access like this? Any speculation about what Arias might have said to
the judge?
Lindstrom: "A defendant would typically need to argue a real need for access to
the residential home - not a want but a need. A simple, 'I want to see it
again' or 'I want my investigator to see it' would be insufficient to convince
a court.
The fact that this is a death penalty case carries great weight and leverage
and could be enough to push the Court into approving the request, which it did
here. Remember, the ultimate penalty is at stake here, so Judge Stephens is
going to do all she can within the limits of the law to minimize appeal issues
and ensure Arias gets a 'fair trial.'
The better question we should ask is, 'Why not?' Why not allow the access? What
harm can it do? Yes, it will disrupt the family that lives there now for the
time of the visit. Yet, if the benefit is that the penalty phase would finally
go forward and Travis Alexander's family could gain certainty and finality,
then why not allow the access?"
HLN: What happens to the family who is living there now? Do they have a say in
this? Or do they just have to let Arias' investigator into their home?
Lindstrom: "The court has power and authority over all the parties to a case
and over witnesses - to a certain extent. For example, with witnesses, the
court can subpoena them to appear and testify.
The current owners of the home are not parties to a case and are not witnesses
in the traditional sense. If they were to refuse access, the court would likely
hold an evidentiary hearing as to why and subpoena the residents to come to
court.
Again, the better question is. 'Why not?' Granted the investigator would be a
stranger to them. However, Juan Martinez and his investigator would be present
and the residents are familiar with Martinez and have even indicated that they
like him. In some situations, like this one, it is better to look at the big
picture than get lost in the forest."
HLN: The new owners, who have spoken anonymously to the media, say the house
looked like it was vandalized when they moved in and they've indicated that
they've made several changes. What would Arias' investigator be looking for?
Lindstrom: "There is no doubt in my mind that Jodi Arias wants to, and is
planning to, retry her case in front of the new jury. She is not going to hold
back and is going to do everything in her power to bring up the abuse
allegations and her explanation of what happened that night.
There will not be any new collecting of physical evidence, since it does not
exist anymore. However, her investigator, with a fresh set of eyes, may see
something that everyone else did not. Perhaps there is something about the
height of the shelves or the location that give credence to Arias' side of the
story.
Her investigator will be looking for anything that confirms and substantiates
Arias' version of what happened. I doubt there will be anything new discovered,
but precluding the investigator from viewing the scene would cause more
problems than allowing it."
HLN: Anything else we should consider about the judge's decision?
Lindstrom: "State v. Jodi Arias has been going on for a very long time. The
players (maybe except for Arias), the families and the public are ready for it
to conclude. Everyone wants to see and hear what will happen, how the case will
end. Almost no one wants the case to come back on appeal and for a retrial to
take place.
As such, the best course of action is to give Arias the opportunities she
believes she needs to mount her defense. Let her investigator go back to the
scene, let her call her witnesses in the penalty phase, give her the 'fair
trial' she deserves under the law.
At the end of the day, she will still be convicted, she will still be in prison
for the rest of her life (since I doubt she would ever be given parole) and she
might even be put to death."
(source HLNTV.com)
USA:
Study examines racial bias in death-penalty decisions
A Latino defendant convicted of murder who is poor is more likely to be
sentenced to death by white jurors, a new study shows.
The study was conducted by UNL psychology and ethnic studies professor Cynthia
Willis-Esqueda and her colleague, Russ K.E. Espinoza of California State
University, Fullerton, who earned his doctorate at UNL.
More than 500 white and Latino people called for jury duty in a southern
California courthouse participated in the research, and they were asked how
they would decide a hypothetical murder case.
Based on an actual incident in which a man was sentenced to life in prison for
killing his wife and her friend, the circumstances of the case were altered by
researchers to create 8 different scenarios depending upon whether the
defendant was white or Latino; whether he was rich or poor; and whether
mitigation evidence was strong or weak. Each mock juror reviewed one
hypothetical situation.
Published online this week in the journal Cultural Diversity and Ethnic
Minority Psychology, the study found that white jurors were more likely to
impose the death penalty in cases where the defendant was Latino and poor. They
were most likely to impose it if a Latino defendant of low socio-economic
status had few mitigating circumstances.
"If the defendant was of low socio-economic status and Mexican-American, he
received the death penalty more often, compared to other conditions,"
Willis-Esqueda said. "We were really saddened by that. They could have chosen
an alternative sentence, such as life in prison without possibility of parole."
Latino mock jurors did not show the same strong correlation between ethnicity
and socio-economic status when they imposed the death penalty.
The researchers described their findings as a form of "aversive racism." That
is an indirect form of bias in which people realize it's offensive to judge
someone by their skin color and use other reasons to reach a biased decision.
The researchers said the study has important implications for the criminal
justice system. It makes it even more important for defense attorneys to submit
mitigating evidence on behalf of Latino defendants. It also raises questions
whether potential jurors should be educated about ethnic biases in
decision-making.
(source: phys.org)
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