Sept. 22
UTAH:
Man accused in girl's death to appear in court
A man accused of killing a 6-year-old girl 3 years ago is set to appear in
court Tuesday for the 1st time since the Utah Supreme Court cleared the way for
prosecutors to continue the case against him.
Terry Lee Black, 44, is accused of abducting Sierra Newbold from her home in
June 2012. Prosecutors say he beat, raped and choked the girl before throwing
her in a canal where she drowned. He has not yet entered a plea.
The case has been hold since his lawyers said the judge was biased and appealed
to the Utah Supreme Court for a new one.
A lawyer for Black told the high court that Judge Mark Kouris scolded defense
attorneys for 9 minutes after they asked for a delay to determine whether Black
was mentally competent to stand trial. Joan Watt said the judge ridiculed and
mocked them. Prosecutors, on the other hand, said Kouris had reason to be
exasperated when lawyers asked for the delay just before the preliminary
hearing was scheduled to begin, more than a year after the girl's death.
The Utah Supreme Court ruled in July that the issue is moot because Kouris has
already been transferred.
Black could face the death penalty if convicted on charges of aggravated
murder, child kidnapping and child rape.
He was arrested 3 days after the girl's death, accused of robbing a West Jordan
bank using a stolen car. Investigators said he attended the same congregation
as the Newbold family in the Church of Jesus Christ of Latter-day Saints and
his apartment was near the canal where she was found.
Police said they had home surveillance video of someone entering the Newbold
house through a sliding glass door, and they linked Black to the crime by
matching debris on his clothing to a fire-blackened field where Sierra's
clothing was found.
(source: Associated Press)
OREGON:
Brown seeks a narrow line on death penalty
Now that Gov. Kate Brown has made it official that she'll be a candidate in
2016 for the state's highest office, the pressure will be mounting on her to
address a question that her predecessor, John Kitzhaber, managed to duck: Where
will she stand if it comes time to enforce Oregon's death penalty?
A recent story in The Oregonian reminded us of one of Brown's earliest promises
when she assumed office in the wake of Kitzhaber's February resignation: She
said she would convene a small group of advisers to help her think through the
issue. The important thing, she said, was for voters to have a clear sense of
her position in the event she stood for election in 2016.
Well, now one of those shoes has officially dropped, although it didn't exactly
qualify as a surprise: Brown confirmed last week that she'll be running next
year.
So what's the status of the other shoe? Brown's office told The Oregonian that
it's just getting started on its study of the issue. Brown spokeswoman Kristen
Grainger told the newspaper that office attorney Ben Souede will lead an effort
to get "legal advice on the practical aspects related to capital punishment in
Oregon."
Sounds good so far. But here's the catch: Grainger said the goal is to have
recommendations in place before the fall of 2016 - which means those
recommendations could come after the election.
Which means voters may be casting ballots without any much of a sense where
Brown stands on the issue.
You'll recall that Kitzhaber imposed a moratorium on the death penalty in
Oregon in 2011, saying that he believed capital punishment had "devolved into
an unworkable system that fails to meet the basic standards of justice. ... I
am still convinced that we can find a better solution that holds offenders
accountable and keeps society safe, supports the victims of crime and their
families and reflects Oregon values."
Here's the problem with invoking Oregon values in this case: The last time
voters weighed in on the issue, they supported the death penalty. It's true
that 3 decades have passed since that vote, and it may be that voters' values
have changed since then. But we don't know for sure (a 2012 poll suggested that
57 % of Oregonians still support the death penalty), and neither Kitzhaber nor
Brown has seemed eager to push the issue.
Brown has said she personally opposes the death penalty. But she has declined
to rule out reinstating executions, as she tries to find a balance between her
views and the mandate she faces to enforce the laws of the state. She's raised
questions about the logistics of capital punishment, which suggests she may be
looking to find a safe harbor from which to maintain the state's moratorium.
She appears to have the luxury of time: None of the state's 35 death row
inmates is facing execution any time soon. But as she hits the campaign trail
next year, voters should press Brown to explain exactly how she intends to deal
with the death penalty, which, after all, remains the law of the state.
(source: Editorial, Albany Democrat Herald)
USA:
Elected judges more likely to affirm death sentences, analysis finds
When Ohio's Supreme Court last October backed the death penalty for Ashford
Thompson, the ruling was close. 3 of the 7 justices felt that Thompson,
convicted of killing a cop during a traffic stop, should have received life
without parole. One called the shooting a tragic misunderstanding.
2 of the 4 judges who voted to uphold the death penalty were also in the middle
of an election campaign to keep their seats. The same month the ruling was
published, television ads lauded 1 of them, Justice Judith French, for 1 of her
previous votes in favor of death.
Ohio is one of the states where high court judges are directly elected - and
that, a Reuters analysis found, makes a big difference in death penalty
appeals.
A review of 2,102 state supreme court rulings on death penalty appeals from the
37 states that heard such cases over the past 15 years found a strong
correlation between the results in those cases and the way each state chooses
its justices. In the 15 states where high court judges are directly elected,
justices rejected the death sentence in 11 percent of appeals, less than 1/2
the 26 % reversal rate in the 7 states where justices are appointed.
Justices who are initially appointed but then must appear on the ballot in
"retention" elections fell in the middle, reversing 15 % of death penalty
decisions in those 15 states, according to opinions retrieved from online legal
research service Westlaw, a unit of Thomson Reuters.
Some academic studies over the past 20 years have mirrored the Reuters
analysis, showing a relationship between the result in death penalty appeals
and how state supreme courts are selected. The U.S. Supreme Court has not
addressed these findings in its rulings.
Now, however, at least three current justices are sympathetic to the idea that
political pressure on judges is a factor that leads to arbitrary, and perhaps
unconstitutional, application of the death penalty.
The findings, several legal experts said, support the argument that the death
penalty is arbitrary and unconstitutional because politics - in addition to the
facts - influence the outcome of an appeal.
Courts have a responsibility to protect a defendant's constitutional rights
without political pressure, especially when the person's life is at stake, said
Stephen Bright, a Yale Law School lecturer who has worked on hundreds of death
defenses. "It's the difference between the rule of law and the rule of the
mob," Bright said.
In an interview, French said she and her colleagues cast their votes months
before the Thompson opinion was published.
Justice Sharon Kennedy, the other Ohio Supreme Court judge running for
re-election last year, said facing voters helps ensure that judges apply the
law regardless of personal views on the death penalty.
"If you're not answerable to the people, you have a wider slide to become what
I would call an activist," she said.
EXTERNAL FACTORS
State supreme courts automatically review every death penalty verdict. Apart
from examining whether any legal errors were made, judges must also weigh
different factors to decide whether the death sentence is an appropriate
punishment. Was it the defendant's first offense or do they have a history of
violent behavior? When a death sentence is reversed, the offender usually gets
life in prison instead.
But as the Reuters analysis suggests, external factors may come into play. The
election effect was a far stronger variable in determining outcomes of death
penalty cases than state politics and even race.
Justices in states that supported Democratic President Barack Obama in the 2012
election reversed death sentences at roughly the same rate as those that went
for Republican candidate Mitt Romney, at around 14 %.
African-American defendants had lower reversal rates in both elected and
appointed states. Nationally, death sentences were reversed 15 percent of the
time for whites, compared with 12 % for African-Americans, according to the
Reuters findings.
Reuters did not analyze the possible impact of the race of the victim on death
penalty appeals. The analysis also excluded a category of death penalty appeals
known as habeas challenges, because state supreme courts are not required to
hear them and overwhelmingly refuse to do so.
Thompson's attorneys are asking the U.S. Supreme Court to take up the case and
throw out the Ohio ruling, arguing that prosecutors improperly dismissed a
potential African-American juror. They also argue that it was "basically
impossible" for French to vote against capital punishment while she was being
praised during her election campaign for supporting death sentences.
Ohio prosecutors say Thompson only complained about political influence after
he lost.
The Supreme Court is scheduled to review Thompson's appeal at the end of
September. His arguments could meet a difficult audience.
A SKEPTICAL COURT
The U.S. Supreme Court suspended the death penalty in 1972, finding that the
punishment was often applied arbitrarily. After several states rewrote their
laws to codify specific guidelines that could lead to death, like a violent
criminal history, the Supreme Court in 1976 found those approaches
constitutional.
Since then, majorities on the high court have taken a skeptical view of data
used to argue that the death penalty is applied arbitrarily. In 1987, for
instance, the court voted 5-4 that an academic study that showed a "racially
disproportionate impact" of capital punishment in Georgia wasn't enough to
overturn a death sentence there.
In 2013, however, Justice Sonia Sotomayor cited a study showing that Alabama
judges are more likely to impose the death penalty in election years, part of a
failed effort to persuade her colleagues to review an Alabama capital case.
Last June, in Glossip vs. Gross, the high court voted 5-4 that the method of
execution in Oklahoma is constitutional. In dissent, Justices Stephen Breyer
and Ruth Bader Ginsburg cited studies showing capital punishment is arbitrary
because of racial bias, as well as political pressure, "including pressures on
judges who must stand for election."
Retired U.S. Supreme Court Justice John Paul Stevens, who has said he believes
the death penalty to be unconstitutional, said in an interview that the Reuters
findings "definitely lend support" to his side of the debate because they show
how arbitrary capital punishment can be.
Yet in the Glossip case, Justice Clarence Thomas wrote that arbitrariness was
"an imaginary constitutional rule." And Justice Antonin Scalia wrote that
Breyer and Ginsburg cited "abolitionist" academic studies "as though they have
discovered the lost folios of Shakespeare," despite the fact that the death
penalty is clearly constitutional.
Beyond the Supreme Court, capital punishment is under attack in several states.
Among the 31 states that have the death penalty, the punishment is on hold in
at least 9 due to legal challenges, according to the Death Penalty Information
Center. (The 37 states in the Reuters analysis included 7 that abolished the
death penalty during the 15-year period covered; Montana did not have any
direct appeals during the period, according to Westlaw.)
In Nebraska earlier this year, conservatives joined progressives to secure its
repeal, calling it inefficient, costly and morally wrong. The Connecticut
Supreme Court recently declared the punishment unconstitutional, citing a
determination by the state legislature that it is arbitrarily applied.
But other death penalty states are holding fast where public opinion favors it
as a valuable law enforcement tool. Ohio, which had an 8.7 percent reversal
rate in the Reuters analysis, has scheduled 11 executions for 2016. Ohio prison
officials, citing "victim sensitivity" and other issues, denied a request to
interview Thompson, who could have years of court appeals ahead of him.
In California, where Supreme Court justices run in retention elections, 56 % of
voters support the death penalty, a 2014 Field Poll showed. The court reversed
4.6 % of death penalties in the Reuters analysis.
In South Carolina, where justices never appear on the ballot, the state Supreme
Court reversed death sentences 20.7 % of the time. Justice Costa Pleicones, a
former defense lawyer who has voted to reverse several death sentences, said
judges' capital punishment voting records never come up in the legislature. "We
don't really fear public outcry or reaction," he said.
In 1996, Tennessee Supreme Court Justice Penny J. White became the first and
only Tennessee appellate judge to lose a retention election. The Tennessee
Conservative Union and the Republican Party put out ads urging voters to
support capital punishment by removing her.
White, now a professor at the University of Tennessee College of Law, said
people she knew refused to look at her or shake her hand during the campaign.
After the election, then-Tennessee Gov. Don Sundquist said: "Should a judge
look over his shoulder about whether they're going to be thrown out of office?
I hope so."
Last year, 3 Tennessee justices faced an organized campaign to oust them from
the court. In campaign ads, a Tennessee group backed by the pro-business
Republican State Leadership Committee called the court "liberal on crime,"
citing a death sentence it reversed.
The justices fought back with a television ad reminding voters that the bench
"affirmed nearly 90 %" of death sentences, a statistic which matches the
Reuters data. In an interview, Justice Gary Wade said his campaign conducted
polling showing that more than 70 % of Tennessee voters supported capital
punishment.
"Those who were employed to run the campaign believed that it was important for
this court to have a demonstrated record, or willingness, to impose the death
penalty," said Wade.
Wade and the 2 other Tennessee judges kept their seats. Wade retired in early
September.
The RSLC, which backs Republican candidates for state office, chooses which
judicial elections to get involved in based on "which ones we have an
opportunity to flip a court to Republican, or to help maintain a Republican
majority on a court," said Matt Walter, the group's president.
DEADLY ENCOUNTER
In the Ohio case that the U.S. Supreme Court will decide whether to review in
late September, there is no doubt that Ashford Thompson is a cop killer.
A little after midnight on July 13, 2008, Thompson and his girlfriend, Danielle
Roberson, went for a drink at the Rav's Creekside Tap & Grill in Twinsburg,
Ohio. The bartender served him a single Budweiser draft.
A witness who had been at the bar testified that he heard Thompson make angry
comments including, "I will kill any one f***r that threatens me," and,
"There's demons in me."
At about 1:55 a.m, Twinsburg police officer Joshua Miktarian called dispatch to
report a traffic stop. Thompson had pulled into his driveway, and Miktarian
pulled in behind him, according to Roberson. It's not clear why the officer
stopped Thompson, but a witness testified that Thompson's car was playing loud
music.
According to Roberson's testimony, Miktarian asked Thompson: "[W]hy are you
running through my city with all that boom, boom, boom. I ought to rip all this
s*** out of your car." Miktarian said he had been following Thompson for 2 1/2
miles and asked Thompson why he had not stopped, and whether he had been
drinking.
According to Roberson's testimony, the officer "slammed" Thompson onto the hood
of the cruiser and reached for his belt. Roberson said she then saw Thompson,
who had a license to carry a concealed firearm, turn and shoot Miktarian.
When other officers arrived at the scene, they found Miktarian dead, with four
gunshot wounds to the head. Thompson was arrested less than half an hour later,
the handcuffs marked with Miktarian's badge number still hanging off his right
wrist.
After a 5-day trial, a jury convicted Thompson of aggravated murder, escape,
resisting arrest, tampering with evidence and carrying a concealed weapon. He
was sentenced to death.
The Ohio Supreme Court heard Thompson's appeal on April 8, 2014, and French was
chosen to write the majority opinion affirming the death sentence.
As she was writing, French was in the midst of a hard-fought campaign to keep
her seat on the bench. In her campaign literature, French used the tagline
"Judge Judi" and touted her conservative credentials.
Introducing Ohio Gov. John Kasich at a campaign event, French described the
Ohio Supreme Court as a "backstop" for laws passed in the Republican-dominated
legislature. None of the votes, for governor, for state senator, would matter
if the Ohio Supreme Court didn't stay conservative, she said. "We are the ones
that will decide whether it is constitutional," she said.
That month, American Freedom Builders, a Washington-based nonprofit that
advocates for small government, bought about $600,000 in ads for French,
according to the Brennan Center for Justice at New York University School of
Law. An ad reminded voters that French is "tough" and upheld a death sentence
"for a murderer who shot his girlfriend in front of her three year old
daughter."
In the opinion on Thompson's appeal, French wrote that the death penalty was
appropriate compared to similar cases. "We have previously upheld death
sentences for killing a law-enforcement officer who is engaged in official
duties," she wrote.
1 of 3 dissenting judges, William O'Neill, wrote that the evidence depicted a
routine traffic stop gone tragically wrong. He said the majority did not
seriously take mitigating factors into account: Thompson went to college, was a
licensed practical nurse with a steady job who was involved in his community
and church, and was a law-abiding citizen. He carried a concealed weapon,
O'Neill wrote, for his own protection because he often treated patients who
lived in dangerous neighborhoods.
"The majority's failure to seriously engage in the weighing process provides
yet another reason why, in my opinion, Ohio's system of imposing and reviewing
death sentences is unconstitutional," he wrote.
Thompson's attorney said the problem is broader. "There are men all over the
U.S. who are going to die because of politics. That's a basic component of the
death penalty," said Tim Young, director of the Office of the Ohio Public
Defender.
The opinion in Thompson's case was issued on Oct. 29, 2014. 6 days later,
French was re-elected with 56 % of the vote, and Kennedy with 73 % of the vote.
(source: Yahoo news)
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