Jan. 14
TEXAS:
Supreme Court to review Texas death penalty case----The U.S. Supreme Court said
Friday it would review the legal complexities in a Texas death penalty case,
where a man killed a 5-year-old and her grandmother.
The U.S. Supreme Court will review the death penalty case of a Fort Worth man
who shot and killed a 5-year-old girl and her grandmother at a children's
birthday party. The high court said Friday it would look into a legal
distinction between ineffective lawyering in the trial court and during state
appeals.
Erick Davila, 29, received the death penalty for the 2008 shooting deaths of
Annette Stevenson, 47, and her 5-year-old granddaughter, Queshawn, according to
Davila's brief filed to the U.S. Supreme Court. Davila, a gang member, drove up
to a house where he knew a rival gang member, Jerry Stevenson, was and shot
into the house and front porch. Instead of killing the man, Davila killed
Stevenson's daughter and mother.
During his trial, defense attorneys said Davila didn't intend to kill multiple
people, only Jerry Stevenson, which would make the case ineligible for a
capital murder conviction and the death penalty. To be convicted of capital
murder in this case, Davila must have knowingly and intentionally killed
multiple people.
In his brief to the high court, Texas Attorney General Ken Paxton said Davila
did intend to kill multiple people because he said after his arrest that he
wanted to shoot "the guys on the porch and ... [was] trying to get the fat
dude." Aside from Jerry Stevenson, only women and children were at the party,
the brief said.
The trial jury seemed to hesitate on the intent issue, submitting a question to
the court during deliberations asking: "Are you asking us did he intentionally
murder the specific victims, or are you asking us did he intend to murder a
person and in the process took the lives of 2 others."
The court sent legal definitions and included a charge that said Davila would
be responsible for a crime if the only difference between what happened and
what he wanted was that a different person was hurt, the brief said. The
defense objected, saying it was an improper jury instruction, but the court
overruled the objection. Within an hour, the jury came back with a capital
murder conviction, later sentencing Davila to death.
The crux of Davila's current legal argument rests on this jury instruction and
how his subsequent appellate lawyers dealt with it.
Davila's direct appeal began after his sentence, but his appellate lawyer
didn't raise improper jury instruction as an issue - a mistake Davila's current
lawyer says was "life-threatening."
"The judge gave a bad instruction. The lawyer on direct appeal did not raise
it," said Seth Kretzer, Davila's federal appellate attorney. "Had she attacked
it and won, he might have gotten a new trial, not death-eligible."
After his direct appeal, Davila's state habeas appeal, where one raises issues
outside of the trial, didn't argue that his lawyer in the direct appeal was
ineffective for not raising the jury issue - another mistake, Kretzer said.
Paxton said in Texas' brief that Davila's arguments are meritless, that a
federal district court looked into the jury instruction in question and found
no fault against it.
Death row inmates can also appeal their case in the federal courts system, but
it is generally ruled that issues that could be raised at the state level -
like the jury instruction - can't be reviewed at the federal level until they
have gone through the state courts. One exception to this rule is if the state
habeas lawyers failed to raise the issue of ineffective trial counsel.
Now, Kretzer is trying to argue that exception should also apply to state
habeas lawyers who fail to raise the issue of ineffective appellate counsel as
well. In that case, Davila could argue that because his state habeas lawyer
didn't fault his direct appeals' lawyer for not bringing up the jury
instruction, the federal courts can now hear it.
"The way the law works right now is if the trial counsel made a mistake, the
federal court could save the inmate's life, but if the appellate counsel made
the mistake, they would have to go ahead and execute," Kretzer said.
The Supreme Court has gotten involved because different federal appeals courts
have ruled differently on the distinction between ineffective trial counsel and
appellate counsel. In previous rulings, the 9th Circuit Court of Appeals has
said that there is no distinction between the 2, but the 5th Circuit, which
covers Texas, as well as the 6th, 7th, 8th and 10th circuit courts, all have
ruled that the 2 shouldn't be treated the same, the state's brief said.
"If the Court was willing to address a potential circuit split, Davila's case
is not an appropriate vehicle for doing so," Paxton wrote, re-emphasizing that
the federal district court rejected the case based on both procedure and merit.
The Supreme Court will review the case soon, however, according to Kretzer. He
said the court told him it wished to fast-track the merits review and hold oral
arguments as soon as April.
(source: Texas Tribune)
*****************
Erick Daniel Davila was convicted in 2009 of killing Annette Stevenson and her
5-year-old granddaughter, Queshawn Stevenson, at a 2008 birthday party in Fort
Worth, Texas.
Davila, a member of the Bloods gang, opened fire on guests who were on the
porch using a semiautomatic assault rifle.
He confessed to driving by and deciding to "shoot 'em up," saying he was
"trying to get the fat dude," whose name he did not know. Multiple children and
adults were shot, but only Stevenson and her granddaughter died from their
injuries.
Prosecutors introduced aggravating evidence at Davila's punishment phase,
claiming he tried to escape from jail and committed another murder just 2 days
before the birthday party shooting.
Unconvinced by the defense's mitigation arguments, the jury returned a sentence
of death. Davila's requests for a writ of habeas corpus were denied by the
trial court and the Texas Court of Criminal Appeals.
He then sought federal habeas corpus relief, arguing that his trial, appellate
and state habeas counsel were ineffective. The district court denied him habeas
relief and the Fifth Circuit denied him a certificate of appealability last
May.
Davila filed a petition for writ of certiorari with the Supreme Court in
September, arguing that the jury was improperly instructed on intent for
capital murder. His attorneys argued he only intended to shoot his rival, not
the grandmother and the little girl.
He argued the trial judge gave misleading jury instructions for intent, and his
appellate counsel did not raise the charge-error claim. He also says his state
habeas counsel did not raise the issue of ineffective appellate counsel.
Davila claims in his certiorari petition that a circuit split exists over
whether defaulted ineffective assistance of appellate counsel claims can be
considered in federal habeas court, based on two prior Supreme Court rulings -
Martinez v. Ryan and Trevino v. Thaler.
On Friday, the Supreme Court agreed to answer whether the rule established in
those cases - that ineffective state habeas counsel can overcome the procedural
default of an ineffective assistance of trial counsel claim - also applies to
procedurally defaulted ineffective assistance of appellate counsel claims.
Per its custom, the high court did not comment on its decision to take up
Davila's or McWilliams' cases.
(source: Courthouse News)
VIRGINIA----impending execution
Ricky Gray's final day looms; federal court denies stay of execution
The Fourth Circuit Court of Appeals late Friday afternoon denied an emergency
appeal for a stay of execution for convicted killer Ricky Gray.
Earlier this week Judge Henry Hudson denied a request from Gray's attorneys to
delay his execution. Gray's legal team argued the lethal injection that will be
used to execute Gray amounted to cruel and unusual punishment.
Gray's execution is scheduled for January 18.
He is a central figure in one of the most horrific crime sprees the Richmond
area has ever seen. Gray is on death row for the killings of Kathryn and Bryan
Harvey and their 2 young daughters, Ruby, age 4, and Stella, age 9. On New
Year's Day 2006, the Harveys were found bound, beaten, and stabbed inside the
basement of their Woodland Heights home.
The home was also set on fire.
Gray was also involved, though not convicted, in the murders of Ashley
Baskerville, 21; her mother, Mary Tucker, 47; and stepdad, Percyell Tucker, 55.
Several groups have petitioned Governor Terry McAuliffe for executive clemency
for Gray.
A video released recently by Virginians for Alternatives to the Death Penalty
shows Gray apologizing for the deaths of the Harvey family.
"It's never left my mind, because I understand exactly what I took from the
world by looking at my 2 sisters. I'm reminded each time I talk and see them
that this is what I took from the world. You know, the potential for greatness
in those kids."
The 18-minute video also examines the impact of the severe childhood sexual
abuse Gray suffered, and the group argued that the jury never heard testimony
detailing the abuse, nor did they hear about the drug use that ensued from said
abuse.
Gray's lawyers requested that Governor McAuliffe commute Gray's sentence to
life in prison without parole - the same sentence the Commonwealth agreed to
for Dandridge.
The ACLU also asked the governor for clemency.
In a letter to the governor, ACLU-VA Executive Director Claire Guthrie
Gastanaga referred to the civil rights organization's blanket opposition to the
death penalty, calling it "demonstrably ineffective and cruel and unusual
punishment that should not be imposed in a just society, particularly where the
penalty is applied arbitrarily and the procedure itself is inhumane." She
suggested Gray's sentence be commuted to life in prison.
*****************
Ricky Gray apologizes for Harvey murders as groups urge clemency
"I've stolen something from the world," says death row killer Ricky Gray, at
the start of a video created by attorneys seeking his clemency.
Earlier this week Judge Henry Hudson denied Gray's request to delay his
execution. Gray's legal team argued the lethal injection used to execute Gray
amounted to cruel and unusual punishment.
Gray's execution is scheduled for January 18, but it remains unclear if the
execution will take place on that date. His legal team has 30 days to file an
appeal after the recent court ruling by Judge Hudson.
Gray is a central figure in one of the most horrific crime sprees the Richmond
area has ever seen. He is on death row for the killings of Kathryn and Bryan
Harvey and their 2 young daughters, Ruby, age 4, and Stella, age 9. On New
Year's Day 2006, the Harveys were found bound, beaten, and stabbed inside the
basement of their Woodland Heights home.
The home was also set on fire.
Gray was also involved, though not convicted, in the murders of Ashley
Baskerville, 21; her mother, Mary Tucker, 47; and stepdad, Percyell Tucker, 55.
The video, released by Virginians for Alternatives to the Death Penalty, shows
Gray apologizing for the deaths of the Harvey family.
It's never left my mind, because I understand exactly what I took from the
world by looking at my 2 sisters. I'm reminded each time I talk and see them
that this is what I took from the world. You know, the potential for greatness
in those kids.
The 18-minute video also examines the impact of the severe childhood sexual
abuse Gray suffered.
In the video, Gray's family members and the experts who have met with him since
his trial describe and explain the evidence that jurors who sentenced Gray to
death did not hear. Gray became addicted to drugs as a child as a way to cope
with the horrific sexual and physical abuse he suffered for years at the hands
of his family members, they said. In addition, he was high on PCP and other
drugs at the time of his crimes with Ray Dandridge, they said in the video.
Gray became addicted to drugs as a child as a way to cope with the horrific
sexual and physical abuse he suffered for years at the hands of his family
members, according to the video. In addition, he was high on PCP and other
drugs at the time of his crimes with Ray Dandridge. Dandridge was convicted in
the Tucker-Baskerville murders and is serving a life-prison sentence.
The video was provided to Governor Terry McAuliffe by Gray's lawyers, along
with other materials, in support of a petition for executive clemency. Gray's
lawyers requested that Governor McAuliffe
Gray's lawyers requested that Governor McAuliffe commute Gray's sentence to
life in prison without parole - the same sentence the Commonwealth agreed to
for Dandridge.
(source for both: WTVR news)
*****************************
Urgent Action
MENTAL HEALTH EXPERTS SUPPORT CLEMENCY FOR VIRGINIA MAN FACING EXECUTION
Ricky Gray is scheduled to be executed in Virginia on 18 January. More than 50
mental health professionals have written to the state governor in support of
clemency in view of the prisoner's childhood of severe sexual and physical
abuse and its impact on him.
Write a letter, send an email, call, fax or tweet:
* Calling for Ricky Gray to be granted clemency and for his death sentence to
be commuted;
* Noting his childhood of physical and sexual abuse and his use of alcohol and
drugs from an early age;
* Noting that dozens of mental health professionals have called for clemency
for Ricky Gray;
* Explaining that you are not seeking to excuse violent crime or to downplay
the suffering caused.
Contact below official by 18 January, 2017:
Important note: Please do not forward this Urgent Action email directly to
these officials. Instead of forwarding this email that you have received,
please open up a new email message in which to write your appeals to each
official. This will help ensure that your emails are not rejected. Thank you
for your deeply valued activism!
Governor Terry McAuliffe
Common Ground for Virginia
PO Box 1475
Richmond, VA 23218
USA
Fax: +1 804-371-6531
Email (via website):
https://governor.virginia.gov/constituent-services/communicating-with-the-governors-office/
Salutation: Dear Governor
(source: Amnesty International)
GEORGIA:
Catholic Bishops calling to remove death penalty in case of murdered priest
3 Catholic bishops from Florida and Georgia are asking the district attorney to
reverse her decision to seek the death penalty in the case against Steven
Murray, accused priest killer.
They are holding an 11 a.m. joint news conference on Tuesday, Jan. 31, outside
the Richmond County Courthouse. That's when Bishop Felipe J. Estevez of the
Diocese of St. Augustine, Archbishop Wilton D. Gregory of the Archdiocese of
Atlanta and Bishop Gregory J. Hartmayer, OFM Conv. of the Diocese of Savannah,
will ask Ashley Wright, district attorney for the Augusta Judicial Circuit to
reverse her decision to seek the death penalty in the case against Steven
Murray in the Superior Court of Burke County.
Steven Murray was indicted on May 25, 2016 by a Burke County Grand Jury for the
April 11, 2016 killing of Father Rene Robert, a priest from St. Augustine,
Florida.
District Attorney Wright filed a notice of intent to seek the death penalty
citing four aggravating circumstances in the retired priest's murder including
that it was committed during the commission of a kidnapping with bodily injury
and that it was "outrageously or wantonly vile, horrible, or inhumane in that
it involved torture, depravity of mind, or an aggravated battery to the
victim."
On May 26, Bishop Estevez wrote to Wright explaining that Father Robert left a
signed and notarized 4-page "Declaration of Life" declaring that should he die
as a result of a violent crime, he does not want the person or persons found
guilty of homicide for his killing to be subject to or put in jeopardy of the
death penalty under any circumstances, no matter how heinous their crime or how
much he may have suffered.
Bishop Estevez says he did not receive a reply to his letter from Wright.
In December, Bishop Estevez says he received signatures from nearly 7,000
Catholics in his diocese asking that Father Rene's request in his "Declaration
of Life" be honored by the Georgia courts.
The collected signatures will be taken to Wright following the news conference.
(source: WRDW news)
FLORIDA:
Accused killer moves to strike death penalty
A man accused of killing 3 people has asked a judge to strike the death penalty
in his case.
Investigators say Derrick Thompson killed Steven and Debra Zachowski of Milton
and then murdered Allen Johnson in Bay County all within a week.
He's been charged with 1st degree murder and faces the death penalty.
However, the state Supreme Court recently required the legislature to clarify
the state's death penalty laws.
That could happen as soon as April.
However, the Supreme Court could ultimately decide the issue before then.
Even if a judge removes the death penalty from this case, Thompson is still
eligible for life in prison.
(source: WEAR TV news)
*******************************
Court stays trial of Kimberly Lucas in Jupiter tot's drowning
With myriad questions swirling around Florida's capital punishment law, the 4th
District Court of Appeal has stayed the upcoming trial of Kimberly Lucas, who
could be sentenced to death if convicted of drowning her former Jupiter
partner's 2-year-old daughter and trying to kill her 10-year-old son.
The Florida Attorney General's Office asked the appeals court to delay the Jan.
26 trial after Palm Beach County Circuit Judge Charles Burton said he would not
ask the jury to impose the death penalty against Lucas as state prosecutors
wanted.
But, Burton declined to take the death penalty off the table. If Lucas is
convicted and the legal issues are resolved, he said he would summon another
jury to decide if the 43-year-old Jupiter woman should die for the May 2014
drowning of toddler Elliana Lucas-Jamason and alleged drugging of Ethan
Lucas-Jamason.
In an appeal to the West Palm Beach-based appeals court, Assistant Attorney
General Leslie Campbell said Burton overstepped his powers.
"Such a ruling was an improper interference with the State Attorney's
discretion to try (Lucas's) case as a death penalty case," she wrote.
"Additionally, the trial court departed from the essential requirements of the
law by refusing to develop new jury instructions."
Noting that the Florida Supreme Court in October struck down a new state death
penalty law as constitutional, Burton said he couldn't simply write a new one.
Until a new law is passed, there is no way to sentence someone to death, he
said.
However, state judges elsewhere have taken different views.
The state's high court is considering 2 cases in which judges have decided to
fashion new ways to implement the death penalty. Florida's death penalty was
struck down by the U.S. Supreme Court in January 2016 because juries were only
asked to make recommendations. It was up to judges to decide if a person was
sentenced to death.
The Legislature then passed a new law, requiring that 10 out of 12 jurors agree
to impose death. The state Supreme Court rejected it, saying such decisions
must be unanimous.
In staying Lucas' trial, the appeals court gave attorneys until next week to
explain whether her trial should be delayed until the Florida Supreme Court
decides the pending cases. It could rule that Lucas' trial should be held as
planned.
Assistant State Attorney Terri Skiles said she is preparing for trial. On
Friday, she got the go-ahead to hire Dr. Wade Myers, a psychiatrist who is a
professor at Brown University, to evaluate Lucas. Her attorneys are planning an
insanity defense.
(source; mypalmbeachpost.com)
ALABAMA:
Death-Row Inmate Granted High Court Review
The Supreme Court said Friday it will decide the fate of a death-row inmate
whose case hinges on procedural questions about ineffective legal assistance
and court-appointed psychiatric experts.
James Edmund McWilliams Jr. challenges his death sentence for robbing, raping
and killing convenience store clerk Patricia Reynolds in Tuscaloosa, Ala., in
1984.
Months before he murdered Reynolds, McWilliams attended couple's therapy with
his pregnant wife and underwent psychological testing, which found that he is
"extremely disturbed" and "has much internal anxiety."
While e doctors nevertheless concluded he was competent to stand trial, his
defense counsel portrayed McWilliams during the penalty phase of his trial as
someone who grew up with significant psychological problems. McWilliams and his
mother testified that he sustained head injuries as a child and had a history
of blacking out and hallucinating.
An expert appointed by the trial judge reported his findings simultaneously to
the court, the prosecution and the defense 2 days before McWilliams' sentencing
hearing.
The expert diagnosed McWilliams with organic personality syndrome, but defense
counsel did not have a chance to discuss the findings with the expert or learn
what the diagnosis meant for the purposes of mitigation.
In July, McWilliams petitioned the U.S. Supreme Court for a writ of certiorari,
arguing he was "precluded from meaningfully participating in the judicial
sentencing hearing and did not receive a fair opportunity to rebut the state's
psychiatric experts."
"Defense counsel had no opportunity to consult with the expert or have him
review voluminous medical and psychological records that were not made
available to the defense until the start of the sentencing hearing," the
petition states.
The Supreme Court agreed Friday to decide whether an expert helping an indigent
defendant in his defense should be completely independent of the prosecution.
(source: Courthouse News)
***********************
Madison County DA's office seeking death penalty in 2 upcoming murder trials
The Madison County District Attorney's office will be seeking the death penalty
in 2 cases that are set for trial in the next few months.
Stephen Marc Stone is set to go on trial March 6 on capital murder charges in
the February 2013 killings of his wife, Krista Stone and their 7-year-old son,
Zachary.
Richard Burgin has a May 1 trial date in the May 2013 stabbing deaths of 2
elderly brothers, Terry and Louis Jackson. The 2 men were volunteering at a
church food bank when they were fatally stabbed.
Tim Gann, chief trial attorney for the Madison County DA's office, said the
state is seeking the death penalty for Stone because of the nature of the
offense.
"It happened in their home, the basic facts were he came home late one morning,
he and his wife Krista had words, and he strangled her in the living room,"
Gann said. "And then went into his son Zachary's bedroom, as he was sleeping,
and strangled and then drowned him in the bathtub."
The couple had no history of domestic violence, Gann said.
"As a parent you can't imagine doing this to any child, much less your own. So
we are ... we are definitely seeking the death penalty in this case," he said.
Stone is represented by court-appointed attorneys Brian Clark and Larry
Marsili. Gann said he expects the defense to use an insanity defense - that
Stone was suffering from a mental disease or defect that left him incapable of
telling right from wrong at the time of the offense.
Marsili said the defense is still working on its trial strategy. Stone appeared
disturbed at a hearing a year ago, rocking back and forth and paying little
attention to the proceedings.
Burgin's trial had been set for September, but has since been moved back to May
1.
Madison County Assistant DA Jay Town said the killing of the 2 brothers at West
Huntsville United Methodist Church on May 21, 2013 meets the state's definition
of "heinous, atrocious and cruel."
"It was operated by 2 brothers, Terry and Louis Jackson," Town said. "And Mr.
Burgin is accused of coming into that church early, prior to the kitchen
opening, and literally slaughtering these 2 brothers in a very heinous way.
Town said the manner of their deaths justifies seeking the death penalty for
Burgin.
"They did so slowly and with fear of impending death," he said.
Unlike in the Stone case, where he admitted the killings to investigators,
Burgin maintains his innocence.
Defense attorney Larry Marsili, who represents Burgin with co-counsel Chad
Morgan, said the defense is straightforward.
"Mr. Burgin has been very clear from the beginning that he didn't commit the
crime and that he denies that he had any involvement in it, and that's why
we're going to forward on trial with this," Marsili said.
(source: WHNT news)
OHIO:
Death penalty sought in Lorain homicide
Prosecutors are seeking the death penalty for a Lorain man accused of killing
Jimmie Holland Jr. during a burglary last year.
Elliott Kirkland, 27, had been facing aggravated murder, murder, aggravated
robbery, aggravated burglary and other charges in the killing, but Lorain
County Prosecutor Dennis Will said new information learned in the investigation
led to the decision to take the case back to a grand jury and seek a death
specification.
"We were able to identify him as the shooter," Will said.
Lorain police were called to Holland's Lexington Avenue apartment Aug. 29 by
Jasmine Schafer, who told officers she had gone to the apartment to braid
Holland's hair. She said when she arrived, she grabbed 2 cans of root beer out
of the fridge before she found Holland's body.
She told police she tried to given Holland CPR before she fled the scene and
called 911. Police have said the relationship between Holland and Schafer is
unclear.
Police have said Schafer was initially cooperative, but said their
investigation revealed she was lying about key parts of her story and was
involved in stealing from Holland's ransacked apartment.
Police recovered several missing items, including electronics and 2 cans of A&W
root beer, from the borrowed Jeep Liberty that Schafer and a second woman,
Latrice Thomas, were driving that night.
When officers confronted Schafer, she blamed Kirkland and Mark Sanchez for the
robbery. A witness reported seeing Kirkland, who told police he had been with
his girlfriend the entire night, enter the apartment armed with a handgun.
Will said because the robbery was planned, it elevated the killing to the level
where prosecutors could seek the death penalty.
Sanchez is facing similar charges to those Kirkland faces, although he doesn't
have a potential death specification attached to his case.
Schafer is facing aggravated robbery, aggravated burglary and obstructing
justice charges, while Thomas is charged with obstructing justice in the case.
(source: The Chronicle-Telegram)
************************
Ohio officials seek drug that reverses lethal injection process----Executions
have been on hold in Ohio since 2014; Death sentences decline sharply as public
attitudes shift
Ohio's prisons agency is trying to obtain a drug that could reverse the lethal
injection process if needed by stopping the effects of another drug previously
used in problematic executions.
The request to use the drug would come if executioners weren't confident the
first of three lethal drugs would render a prisoner unconscious, Gary Mohr,
director of the Department of Rehabilitation and Correction, said in federal
court testimony on Jan. 6.
Mohr said he would inform Republican Gov. John Kasich and ask for a reprieve at
that point. "Governor, I am not confident that we, in fact, can achieve a
successful execution. I want to reverse the effects of this," Mohr testified,
describing the language he would use in such a circumstance.
Mohr said that Ohio planned to order the drug, flumazenil, but didn't currently
have it.
(source: KRMG news)
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