Oct. 29
TEXAS:
Lawyers reinstated for death row inmate Brandon Daniel
Brandon Daniel has apparently changed his mind about representing himself in an
attempt to expedite his execution.
The death row inmate, convicted in the 2012 killing of Austin police officer
Jaime Padron, has reinstated the Office of Capital Writs to defend him in his
appeals process.
The reasons remain unclear. The capital writs office declined to comment but
confirmed that they were now representing Daniel.
Travis County District Judge Brenda Kennedy in July found Daniel competent and
allowed him to dismiss his appellate lawyers, a request he initially filed in
March, saying he understood the weight of his actions.
The capital writs office appealed the decision, but in an opinion issued
Wednesday, the Texas Court of Criminal Appeals declared that appeal moot,
saying only that the office had been reinstated as counsel.
Standing in a faded jail jumpsuit in Kennedy's courtroom in July, Daniel
declined to make a statement. But in responses to Kennedy, he said he had given
plenty of thought to his decision.
The ruling had no bearing on the automatic direct appeal to his conviction -
given to all defendants sentenced to death - which will continue and could take
up to another year. But without appellate lawyers and representing himself,
Daniel then would have been able to waive all other appeals that could delay
his execution.
Lawyers Robert Romig and Jeremy Schepers, appointed to represent Daniel under
the Office of Capital Writs, told Kennedy that allowing Daniel to let go of his
counsel would be akin to state-assisted suicide.
Daniel, 27, first made his request to Kennedy through a letter he penned in
March. He understood the weight of his actions, he wrote, and was prepared for
the consequences.
Daniel said he wanted to spare his family and Padron's any more anguish. He
also said he wanted to limit his time in prison.
Daniel was sentenced in February 2014 to execution in the 1st death penalty
case Travis County had seen in nearly 3 years and the 1st in more than 3
decades to involve the slaying of an officer.
The former software engineer shot and killed Padron on April 6, 2012, as the 2
struggled on the floor of a Wal-Mart near Interstate 35 and Parmer Lane in
North Austin.
Padron, a Marine veteran and father of 2 young girls, had been responding to a
call about a possible shoplifter who was likely intoxicated.
(source: Austin American-Statesman)
************
Court Again Denies DNA Tests in Death Row Case
The Texas Court of Criminal Appeals for the 2nd time Wednesday reversed a state
district judge's order that would have allowed East Texas death row inmate
Larry Swearingen to test DNA from evidence in his murder case.
Swearingen, 44, was convicted of kidnapping, raping and killing 19-year-old
Melissa Trotter, then a Lone Star College student in 1998. He was sentenced to
death in 2000. His execution date has been set and stayed multiple times.
The death row inmate has argued that he couldn't have killed Trotter because he
was in jail when she was murdered, and DNA testing would prove that someone
else committed the crime. State District Judge Kelly Case twice granted
Swearingen's requests for evidence to be tested. Montgomery County prosecutors
appealed each time, and now, the state's highest criminal court has sided with
the state again.
Each time, the court ultimately has ruled that results from DNA testing would
not have overcome the "mountain of evidence" establishing Swearingen's guilt.
(source: Texas Tribune)
********************
Accused shooter in death penalty trial was "ready to kill"
The 1st witness in Johnathan Sanchez death penalty trial HCSO Clint Meyers
testify in Hon. Mark Kent Ellis' ceremonial courtroom on the 20th floor of the
criminal courthouse, Monday, Oct. 26, 2015, in Houston.
Criminal Defense Attorney Skip Cornelius and lawyer Rudy Duarte with defendant
Johnathan Sanchez during opening statements in Sanchez death penalty trial
inside the ceremonial courtroom on the 20th floor of the criminal courthouse,
Monday, Oct. 26, 2015, in Houston.
Johnathan "J Boi" Sanchez was expressionless when he walked out of a northwest
Houston apartment bathroom in 2013 and started shooting, a survivor testified
Wednesday.
"He just came out and started shooting," Luis Baez said as he testified in
Sanchez's death penalty trial. "No expression. Just ready to kill, I guess."
Prosecutors are seeking the death penalty against Sanchez, who is accused of
shooting 5 people, 3 fatally, at a drug den in the middle of the day on Nov.
20, 2013.
The 3 who died were Yosselyn Alfaro, 21, and Daniel Munoz and Veronica
Hernandez, both 17.
Baez, who testified wearing handcuffs and an orange jail uniform, is serving 15
years in prison for burglary. In his testimony, he outlined working with a web
of people who burglarized cars and homes to steal guns in Houston and across
the southern United States.
He said the 15-year plea bargain he made was a better deal that the 2 life
sentences he was facing for a string of burglaries.
On the day of the shooting, he said Sanchez, who was known to everyone at the
apartment, arrived and asked to use the bathroom. He came out shooting a 9mm
semiautomatic pistol, hitting Baez in the face and the chest. A bullet that
clipped his spinal cord and pierced his lung is still in his chest, he said. He
now walks with a cane.
Sanchez, in a blue shirt and meticulously combed black hair, listened to Baez
from the defense table. He cradled his chin on his fist as the story unfolded.
He did not react as Baez detailed the hail of gunfire and the ensuing chaos.
"He shot Nancy in the face," Baez said, referring to a woman who survived.
"Veronica got shot in the chest."
The trial, in state District Judge Mark Kent Ellis's court, could last as long
as 3 weeks.
(source: Houston Chronicle)
FLORIDA----impending execution
Orlando man who murdered 4 in 1985 will die by lethal injection----3 decades
after brutally stabbing to death 4 people, man will be killed by lethal
injection
If all goes according to the state of Florida's plan, Jerry Correll will be a
dead man around 6:15 p.m. Thursday.
3 decades after brutally stabbing to death his 5-year-old daughter, ex-wife and
her sister and mother, the 59-year-old Correll will receive a lethal injection
that will kill him.
It is the 1st in the nation using the controversial sedative midazolam since
the U.S. Supreme Court OK'd its use in June, despite several botched executions
in Oklahoma, Ohio and Arizona.
The state set Correll's execution in February, but it was delayed pending the
outcome of the U.S. Supreme Court case on midazolam brought by Oklahoma
prisoners.
The high court ruled that the inmates' attorneys did not prove the drug was
cruel and unusual punishment.
"People will be watching but they will be watching with concern because the
evidence has shown that executions that use midazolam are not fool-proof and
there have been botched executions using this drug," said Robert Dunham,
executive director of the non-profit Death Penalty Information Center.
While Florida has continued to use the drug, other states like Ohio have
stopped using it altogether.
Inmates have gasped, snorted and clenched their fist in the botched executions
which prolonged the deaths. In an Oklahoma case, Charles Warner said "my body
is on fire" before dying.
But the execution could not have come sooner for the family of victims:
Correll's ex-wife Susan Correll, their daughter Tuesday and Susan's mother Mary
Lou Hines, and sister, Marybeth Jones.
"30 years is much too long for this sentence to be carried out," said Judi
Duff, Hines' niece earlier this year.
Prosecutors said Correll killed his ex-wife because he was jealous that she was
dating. After stabbing Susan to death at their home in the Conway area, he had
sex with her body, prosecutors said.
Hines protected Tuesday before he stabbed both of them to death in Tuesday's
bedroom. Jones was not home at the time, and Correll awaited her to come home
before he killed her sometime after midnight on June 30, 1985.
At the trial, Correll's defense attorneys argued that he was with a woman at
Lake Toho getting high at the time of the slayings, but his alibi never checked
out. He was convicted of 4 counts of 1st-degree murder. A jury voted 10-2 to
sentence him to death.
In his appeals, his lawyers said he was abused by his alcoholic father and
became a drug addict. They also indicated the deaths were a drug hit, but never
offered any details.
There was appeal and after appeal in the case before running out last year.
Correll's execution, the 2nd in Florida this year, will take place at Florida
State Prison in Raiford, about 40 miles northeast of Gainesville.
(source: Orlando Sentinel)
************
Death penalty flaws in Florida
The state of Florida has an odd process for reaching decisions in death penalty
cases, one that the U.S. Supreme Court was asked to overturn in a case argued
this month.
Timothy Lee Hurst was convicted 15 years ago of robbing and murdering an
assistant manager of a fast-food restaurant where he worked, and was sentenced
to death. In Florida, as in all but 2 other states (Louisiana and Oregon), a
jury must decide unanimously whether the defendant is guilty. Like other
states, Florida also asks the jury to weigh aggravating and mitigating factors
in determining whether a person convicted of murder should be sentenced to
death.
But Florida juries only make a recommendation; the final decision on whether to
impose the death penalty is up to the judge and can be based on factors
determined by the judge alone. Hurst argues that violates the 6th Amendment
right to a trial by jury.
He may be right. But in this case the question of who ultimately decides is
actually less interesting to us than the question of how that decision is
reached.
Consider this, for instance: When a jury in Florida sends its life-or-death
recommendation to the judge, it weighs aggravating and mitigating
circumstances, but then it doesn't tell the judge which ones it found
significant. So as the judge considers whether the crime justifies a death
sentence, he or she must do so without knowing how the jury reached its
recommendation. Given the profoundly serious nature of the decision, and the
fact that the law calls for the judge to consider the jury's recommendation,
that lack of transparency is unacceptable.
Here's another problem with Florida's process: The jury is not required to
agree unanimously on its recommendation; a simple majority of seven votes is
enough to recommend death. In other words, it takes less agreement to recommend
death than to convict, even though the death penalty is irreversible. (Also
strange is the fact that those jurors don't have to base their votes on the
same aggravating factors, which means death can be recommended even if a
majority of the jurors cannot agree on why they're recommending it.)
On the surface, this case is about fine-tuning the death penalty process. But
viewed only slightly differently, it is about the random and indefensible
nature of our capital punishment laws.
The reality is that the death penalty is not moral; neither Florida nor any
other state has figured out how to carry it out in a fair, just or transparent
manner. A series of exonerations in recent years shows that the system is too
susceptible to manipulation to be trusted with life-or-death decisions.
Further, not only is the death penalty ineffective as a deterrent, it is
applied disproportionately to minorities and is often meted out arbitrarily
depending on the county in which a murder occurs. It's a fatally flawed system.
(source: Daily Commercial)
**************
Why convicted cop-killer Eriese Tisdale is not on death row yet
It's yet another day in court in the process for sending a convicted cop killer
to death row.
After a jury conviction and death penalty recommendation to get justice for the
murder of St. Lucie County Sheriff's Office Deputy Sgt. Gary Morales, this case
is far from over.
When The entire family of Sgt Gary Morales said they are united in wanting the
convicted shooter, Eriese Tisdale, to get the death penalty, they knew it was a
long road. After a hearing on Wednesday afternoon, there are still 2 more court
hearings away from sending the convicted murderer to death row.
Coming into court in shackles, there's no more suit and tie for the the
convicted murderer Eriese Tisdale, who today sports a red and white striped
jail jumpsuit.
A jury convicted and recommended the death penalty for Tisdale in a 6-week long
trial this summer that ran through October.
Tisdale shot and killed St Lucie County Sheriff's Deputy Gary Morales in his
patrol car at point blank range after a traffic stop in 2013. Sgt. Morales
never had a chance to get out of his vehicle before 7 shots were fired into his
patrol car.
Now prosecutors argue they need to have a psychiatric evaluation done, if the
defense plans to use a psychiatrist, before Tisdale has yet another hearing in
2 weeks.
At Tisdale's Spencer Hearing, on November 17, the defense will argue to only
the judge for a lesser sentence than the death penalty.
Once the Spencer hearing wraps up in 1 tor even 2 days in court, there's yet
another court date - post-conviction hearing #3 - where the judge will then
issue Tisdale's sentence.
"The judge has to give the jury's recommendation great weight but he has the
ultimate discretion and he could say he doesn't think this case warrants the
imposition of the death penalty," said Assistant State's Attorney explaining
the lengthy process after a death sentence is recommended, "if they are going
to offer mental mitigation in this case, the rules, the law, which controls
this case, allow for my experts to have an opportunity to examine him at the
Spencer Hearing."
The Morales family sat through countless hours of testimony and gruesome
autopsy pictures-- to get to a conviction--and now they will wait even longer
for Tisdale to be sent to prison..
"We all know this is the very early stages of this prosecution," Bakkedahl
said, "it took us 2 1/2 years to get this case to trial. That's ridiculous. It
took us this long as it did to try it and now all these years of appeals. It's
frustrating."
But the law is the law, and no one wants the verdict overturned on state and
then federal appeals that are still years away.
"We all know this is the very early stages of this prosecution. Quite frankly,
a lot of it is done to protect us from an ineffective assistance of counsel
argument on the back end as well. I want this to be final. We want to do it
right. We want to do it once," Bakkedahl said, "the appeals will go on for
years it goes to supreme court, then when they lose at the supreme court, it
will go to the federal court, and then once they've exhausted their federal
court appeals, they will start attacking the quality of their representation.
Then the whole process starts all over again. It's years."
If the judge approves the jury's recommended death sentence, when does Tisdale
go to death row?
November 17th is the next hearing. Then the judge has to sentence him at
another court date that could be as far out as December.
(source: CBS news)
LOUISIANA:
Louisiana Prosecutor Wants to "Cold Cock" Defense Attorneys
Temper, temper.
Dale Cox, one of the nation's most controversial prosecutors, seems to have
threatened bodily violence against 3 defense attorneys at a trial on Tuesday in
Caddo Parish, Louisiana. In case Cox's name isn't ringing any bells, he's the
Caddo Parish interim district attorney who has quoted the Bible to advocate the
death penalty, called for the death penalty to be used more widely, and is
single-handedly responsible for 1/3 of the capital defendants in Louisiana.
He's been the subject of lengthy profiles in the New Yorker and the New York
Times, and you can catch up on some of his recent exploits in Slate - or here
or here or, well, lots of places where the national conversation on race,
criminal justice, and the death penalty are taking place.
But Cox seems to have outdone himself this week in a hearing before Judge
Katherine C. Dorroh, in a capital murder case called Louisiana v. Eric
Mickelson. The 3 members of the defense had attempted to correct Cox's
assertion that the defendant had never had a job by pointing to materials in
the prosecutor's own file that noted the defendant had a job.
Cox responded to his colleagues at the prosecutors' table: "I want to kill
everyone in here. I want to cut their fucking throats. I'm just being honest,
and if any of them want to go outside we can do it right now." One of the
members of the defense team heard the comments and reported this to the court.
Defense counsel had already moved to recuse Cox from the case based upon his
well-publicized views on the death penalty. That motion was denied. The defense
had previously also moved for a change of venue based upon Cox's repeated media
interviews. Cox then blamed the trial defense team for the media attention and
security threats that Cox had received.
Cox then said, on the record to the court, as taken verbatim from the
transcript:
I would very much like to maintain some level of civility. I would have liked
that from the very beginning. I would have preferred if these 3 lawyers had not
signed a public pleading calling me unusually blood thirsty because I was doing
my job in advocating for a death penalty that I thought was called for by law.
...
I admit to everything he [defense counsel] said. I did want him to go outside.
I did want to cold cock him. I wanted to cold cock all 3 of them because that's
so outrageous that they could do the things they do without regard for the
consequences. I mean, they're not being threatened. Their families aren't being
threatened. They're not being protected by law enforcement. I am. And part of
the reason I am is for crazy lunatic crap like this that goes into public
filings and then out on the Internet everywhere. So if they would withdraw that
comment from those pleadings, I would be happy to stand mute and be as civil as
anyone they've ever seen in their lives. But until they do that, until they do
that, they better be careful what they say.
And that is what happened this week in Caddo Parish.
(source: Dahlia Lithwick, slate.com)
OHIO:
Judge sentences Kenan Ivery to life without parole in Akron officer Justin
Winebrenner's murder
A judge formally sentenced the man convicted of murdering Akron police officer
Justin Winebrenner to life in prison without the possibility of parole
Wednesday.
After an emotional speech, the judge handed Kenan Ivery the sentence for
aggravated murder plus 65 years for other crimes he committed.
"Justice demands that you will never breathe air again as a free man," Judge
Alison McCarty told Ivery. "You will die in prison."
Winebrenner's father, fiancee, and friends addressed the court and gave
emotional statements on how the officer's murder has impacted them.
Another poignant moment came when Winebrenner's partner, Officer Justin Morris,
spoke to Ivery.
"I'll miss my partner everyday, but APD has an officer in heaven looking over
us. That officer is Justin Winebrenner, ID 1301, you'll remember his name,"
Morris said.
After the hearing, Winebrenner's dad, Rob Winebrenner, said he was "satisfied"
with the sentence.
"I think sometimes it's been said death is too good for people. Death is too
good. Let them live everyday thinking about what happened," Rob Winebrenner
said.
Earlier this month, Ivery was found guilty on 14 of 15 counts, including
aggravated murder in Winebrenner's November 2014 shooting death at Papa Don's
Pub.
Last week, the jury recommended life in prison without parole for Ivery . The
death penalty was an option in the case up until that decision was made. By
law, a judge cannot hand down a harsher punishment than what is recommended by
the jury.
(source: newsnet5.com)
MISSOURI----impending execution
Federal judge denies attempts to halt execution for Columbia murders
A man condemned for a 1994 triple murder in Columbia waited too long to ask a
federal court to stop his Tuesday execution, and the case is unlikely to
succeed, a U.S. district judge wrote in denying attempts to halt the execution.
Greg Kays, a U.S. district judge for the Western District of Missouri, on
Tuesday denied a motion for preliminary injunction filed on behalf of Ernest L.
Johnson and dismissed a complaint seeking to halt the execution. Both sought to
stop Johnson's execution by saying Missouri's lethal injection drug,
pentobarbital, combined with Johnson's brain condition is likely to result in a
painful execution, a violation of the Eighth Amendment.
In siding with the state, Kays wrote in his 9-page order that Johnson's case is
unlikely to succeed on its merits in part because Johnson failed to establish
that there is "a better, available method of execution" as required in claiming
the possibility of a violation of the Eighth Amendment. Though Johnson's claim
of a painful execution favors an issuance of an injunction, Kays wrote, Johnson
has "failed to carry this heavy burden" of success on its merits, or of showing
he likely would win the case.
Kays agreed with 2 Missouri assistant attorneys general, who wrote last week in
their response that Johnson failed to state a claim for relief. Kays dismissed
the complaint without prejudice because the complaint did not "provide any
facts establishing an essential element of his claim: that there is a feasible
and readily implementable way to execute him."
Jeremy Weis, 1 of Johnson's attorneys, has filed a notice of appeal. Weis did
not respond to a message seeking comment.
Johnson was sentenced to death 3 times for the Feb. 12, 1994, beating deaths of
Mary Bratcher, 46, Mable Scruggs, 57, and Fred Jones, 58. The sentence was
overturned twice, but the 3rd sentence, a decision by a Pettis County jury in
2006, withstood a state Supreme Court review. As Bratcher, Scruggs and Jones
were closing a Casey's General Store on Ballenger Lane in Columbia, Johnson
entered, robbed the cash register and beat them to death with a hammer and
screwdriver.
Attorneys arguing against a stay of Johnson's execution also wrote Missouri has
carried out 18 successful and painless executions using pentobarbital and that
Johnson has known about his brain condition since 2008 and waited too long to
bring up the possibility that it could complicate the execution.
"And because Johnson appears to have sat on his rights for some time, any
impending harm remediable by injunction is at least somewhat of his own
creation," Kays wrote.
Johnson also has a pending case in Missouri's Supreme Court seeking to halt his
execution because his IQ is 67, making him mentally disabled.
Earlier on Tuesday, 5 people with Missourians for Alternatives to the Death
Penalty and the Mid-Missouri Fellowship of Reconciliation held signs protesting
Johnson's planned execution and handed out fliers to passers-by in front of
City Hall, 701 E. Broadway. Jeff Stack, one of the activists, said because of
Johnson's mental disability and abusive upbringing, he should be given
treatment and his sentence commuted to life in prison.
"There are some people who can't be on the streets," Stack said. "Ernest
Johnson is one of them. If we kill Ernest Johnson, it says as much or more
about our state and who we are as a people. We're so vindictive that we'll go
ahead and kill somebody who has the intellect of a 2nd- or 3rd-grader."
Another protester, Mary Hussmann, said she lived a on Dawn Ridge Road, a few
blocks from the convenience store. After Johnson killed the 3 employees, the
store shut down, she said. The crime "shook the whole neighborhood," she said.
"It's a terrible thing to happen, but I don't think violence on top of violence
is the solution," Hussmann said.
(source: Columbia Tribune)
**********************
Death-Row Inmate Says Hole in His Brain Means He Can't Be Executed
A Missouri death row inmate days away from execution is arguing that his life
should be spared because a brain tumor that left a hole in his head could cause
seizures during a lethal injection.
Ernest Johnson, 55, is scheduled to be put to death Nov. 3 for a gruesome
triple homicide. He used a claw hammer to fatally bludgeon shop workers Fred
Jones, Mary Bratcher and Mable Scruggs after a crack binge in 1994.
Some of the victims' families plan to attend the execution in Bonne Terre if
last-minute appeals don't hold it up.
"I don't have a whole lot of sympathy when someone beats their victims to death
with a hammer. He drove a screwdriver into her hand 10 times," said Rob
Bratcher, who was a high-school senior when his mother was killed.
"I don't want to sound inhumane, but if there's any pain, so be it."
Johnson's attorneys are pressing 2-prong appeals in an attempt to stop what
would be Missouri's 7th execution of the year.
A federal court petition argues that Johnson's brain defect - he has a small
hole in his skull, scar tissue and a blank space where part of a tumor was
removed in 2008 - could cause seizures during a lethal injection.
"Such violent and uncontrollable seizures will likely result in a severely
painful execution," his attorney wrote in a petition to stop the execution.
Because a recent U.S. Supreme Court ruling held that prisoners who object to
one form of execution must offer a feasible alternative, Johnson's legal team
suggested using lethal gas - although Missouri dismantled its gas chamber years
ago.
In a response, the state said Johnson waited too long to make his claim and had
no evidence that the drugs the prison uses to kill death-row inmates would
cause a problem.
"Missouri has conducted 18 rapid and painless executions since November of
2013," the Attorney General's office wrote in a brief.
A scan of Ernest John's brain showing a hole in his skull and brain missing,
from an affidavit of Dr. Joel Zivot.
A federal judge dismissed the appeal, but Johnson's lawyers have asked the 8th
U.S. Circuit Court of Appeals to step in.
The courts have stopped executions in some cases where the inmate claims they
have a unique medical condition that would make a lethal injection so painful
or protracted it would violate the constitutional protection against cruel and
unusual punishment.
Another Missouri inmate, Russell Bucklew, was hours away from execution last
year when the U.S. Supreme Court halted the process and ordered a lower court
to investigate whether masses in his head and neck would interfere with the
lethal injection.
But the high court declined to stop Missouri from executing Cecil Clayton, who
was missing a piece of his brain from a sawmill accident and claimed he was
mentally incompetent.
Johnson is also trying to stop his execution in state court, with a request
that a "special master" be appointed to determine whether he is mentally
retarded, which would make him ineligible for the death penalty.
An expert hired by his defense found he had an I.Q. of only 67, while the
average is about 100. But the state's expert testified that he was malingering
- purposely giving wrong answers to make it appear he was intellectually
disabled.
"He's not a weak, little, skinny mentally retarded kid in prison," the
prosecutor told the jury that condemned Johnson to die after hearing emotional
and grisly testimony about the crime.
"In this case, the science supporting Ernest's intellectual disability was
overwhelmed by the emotional response of the jury to the facts of the crime,"
said Jeremy Weis, one of Johnson's lawyers.
The state countered that Johnson is asking the court to "ignore the jury's
findings and appoint a special master so that Johnson can re-argue the
evidence."
Johnson has been sentenced to death 3 times. The 1st sentence was overturned
because his lawyer didn't call an expert witness to testify about his mental
ability, which could have been seen as a mitigating factor. The 2nd was set
aside after the U.S. Supreme Court ruled the mentally retarded are exempt from
executions.
Bratcher's daughter, Carley Schaffer, said the many turns the case has taken
were torture for the family.
"Each time, you have to rip the scab off, and you have to heal again," she
said.
She described her mother as "kind-hearted and forgiving" and said she had tried
to purge her anger at Johnson from her heart. 2 decades on, she wonders if the
death sentence prolonged her family's anguish.
"If I could go back, I would have wanted a life sentence, but it's not up to
me," she said.
Her brother said he believes that if his mother were still alive, "she would
fight to make sure that justice was served."
He ticked off the special moments that his mother, who raised three kids on her
own, had missed since 1994: his college graduation, his wedding, the birth of
grandchildren.
"His execution will never erase what he did from my mind and will never erase
the family scars of losing someone who was at the center of our universe," he
said.
"There is no peace in this for me personally, but there is some closure," he
added.
"I want to see it through."
(source: NBC news)
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