May 14
TEXAS:
Texas' use of hypnosis for death row hangs in balance
For many people, the word "hypnosis" evokes images of swinging pocket watches,
swirling vortexes and impressionable subjects mesmerized by movie villains.
They think of Get Out, The Manchurian Candidate, even Office Space.
But in the Lone Star State, it isn't a parlor trick or Hollywood ploy. Here,
hypnosis is a matter of life and death.
Texas has the most robust forensic hypnosis program in the country, training
police officers across the state to sharpen or recall crime witnesses' lost
memories. As more and more states ban the practice, law enforcement here turns
to it at least a dozen times a year.
Now, 2 Dallas-area death row inmates are arguing it's time to stop. Their
executions have been delayed as they fight their convictions, which they claim
were based on "junk science."
"Once you have, at a minimum, serious questions that a technique sent a man to
death row, you need to change the way you use that technique," Gregory Gardner,
an attorney who has defended both men, told The Dallas Morning News. Hypnosis
"does so much more harm to innocent people than getting guilty people behind
bars."
Is forensic hypnosis quackery that's sent innocent men to their deaths, or a
powerful law enforcement technique that can crack open cold cases? One of the
state's most controversial investigative tools is about to be tested.
Devotees and detractors
To understand hypnosis, readers must suspend their preconceptions.
Supporters and skeptics alike agree it's not a mind-control technique.
Professional hypnotists won't make you bark like a dog. They don't put people
to sleep. Subjects are alert and awake at all times. They don't employ swinging
watches or vortexes - usually. There is also agreement that hypnosis can be
valuable in therapy. Mental health professionals have used it to get patients
to kick addiction and as a relaxation tool to help heal trauma.
The real rift between devotees and detractors is over whether hypnosis can
sharpen or unlock lost memories. Law enforcement personnel who use "forensic
hypnosis" - employing the technique as a "relaxation tool" to get witnesses and
victims to recall what they saw - believe it can, and point to several cases as
proof.
In 1978, 15-year-old Mary Vincent was hitchhiking near Berkeley, Calif., when
she was picked up by a merchant seaman. The man raped her, cut off both her
arms and abandoned her in a ravine to die.
The teen survived but couldn't recall what her attacker looked like - until she
was hypnotized. Lawrence Singleton, "The Mad Chopper," was tracked down and
convicted.
Hypnosis helped recover 26 California schoolchildren kidnapped in 1978 and
helped convict serial killer Ted Bundy. In Texas, it was used to catch an
Amarillo bank robbery suspect in 2013 and led to the 2016 arrest of 2 men
accused of raping and stabbing a woman and leaving her unconscious and
partially clothed in a field.
The CIA has turned to it, and the Justice Department believes it can be helpful
"on rare occasions." The FBI requires its sketch artists to learn it.
But since its heyday in the 1970s and '80s, forensic hypnosis has not only
dwindled rapidly, but hypnotically induced evidence has been banned in some
places as unreliable.
"Use special caution before using hypnosis for age regression to help you
relive earlier events in your life," the Mayo Clinic warns. "It may cause
strong emotions and can alter your memories or lead to creation of false
memories."
Joseph Green, the 2-time past president of the American Psychological
Association's Society of Psychological Hypnosis, said movies have erroneously
conditioned Americans to believe it's a kind of "truth serum."
"It's pretty easy to have people change or modify memories, at least to some
extent, by the use of hypnosis," explained Green, a professor at Ohio State
University at Lima. This and other memory techniques like journaling or age
regression are "fraught with pitfalls and danger, leading questions and bias
from the interviewer."
Especially, criminal defense attorneys say, if that interviewer is a law
enforcement officer.
Hypnosis in Texas
According to a News analysis of the National Registry of Exonerations, at least
10 men have been freed after hypnosis helped put them behind bars.
This includes Clarence Moore, a New Jersey man who spent 20 years in prison for
rape before the courts determined he was wrongfully convicted. In his case,
among other issues, the victim's memory of the rapist's voice and appearance
changed after hypnosis. His case led the state to ban hypnotically enhanced
testimony in criminal cases.
"26 states limit the admissibility of post-hypnotic testimony," the New Jersey
Supreme Court wrote in 2006. "The cases from those states represent a
persuasive body of law, based on expert opinion, holding that hypnotically
refreshed testimony is not generally accepted science."
According to a 2012 study, 1/2 of U.S. states now have "per se inadmissibility
rules" barring hypnotically induced evidence in criminal cases. Not so in
Texas.
While it's is far less popular than it used to be - 152 law enforcement
officers were certified in 1999 compared with just 12 a decade ago - forensic
hypnosis is still seen as a handy tool in limited circumstances. There are
about 2 dozen forensic hypnotists in Texas at this time, the majority of whom
serve in the Harris County Sheriff's Office and Texas Rangers.
It's unclear how many times they have used the technique, but the Rangers
confirmed they conducted 24 hypnosis sessions in 2016 and 2017.
"Hypnosis is utilized in a very small percentage of cases and is conducted only
by specially trained forensic hypnotists," Texas Department of Public Safety
spokesman Tom Vinger told The News. "Any information gained through hypnosis
must be corroborated with other information/evidence during the course of a
criminal investigation."
Last year, the Rangers adopted "a new vetting process ... to determine if the
hypnotic interviewing technique is a sustainable option, before a session is
scheduled." The state has no reporting or monitoring requirements for local
police departments.
While there are currently no forensic hypnotists in local police departments in
North Texas, the tool played an important part in the arrests and convictions
of 2 Dallas-area death row inmates whose executions were recently put on hold.
Charles Don Flores, 48, was convicted in the 1998 slaying of Elizabeth "Betty"
Black after a neighbor was hypnotized to recall the features of 2 men she'd
seen going into the victim's Farmers Branch home the morning of the murder.
In 2007, Kosoul Chanthakoummane, now 37, was convicted of McKinney realtor
Sarah Walker's brutal stabbing death. The police found him after they released
a sketch elicited from a hypnotized witness who'd seen a young Asian man at the
scene.
Both men were sentenced to death. But both have successfully argued to delay
their executions, saying they deserve new trials because "junk science" put
them away.
Marx Howell, who helped design the state's forensic hypnosis program 30 years
ago, said law enforcement officials who want the certification are well-trained
officers taking on a new skill. The course touches on everything from religious
attitudes involving hypnosis and techniques for hypnotizing children to
"misconceptions, myths and possible dangers."
Officers must complete the program, as well as an exam, and renew their
certifications every three years. Anyone else caught conducting sessions is
subject to criminal penalty.
The court has also imposed 10 "best practices" on forensic hypnotists here.
Known as the Zani rules, after the 1989 case that spurred them, they include
taping the entire session, avoiding leading questions and prohibiting officers
working on the investigation from conducting the hypnosis.
Several of these rules were not followed in the Flores case. The hypnotist, a
local officer in Farmers Branch, was on the team conducting the investigation
and didn't tape the session from his 1st interaction with the witness. It was
also his 1st - and only - time using the tool.
Still, Howell said the officer did an "acceptable" job. Plus, there is other
evidence against Flores that Howell argued is strong enough to keep him behind
bars.
"Are there some cases out there where a police officer did a bad job on
hypnosis? Yes," Howell said. "But Texas has the most well-organized,
comprehensive program in the United States.
"The defense would have you believe that we can't remember what we did
yesterday."
Richard Lynn Childs, who confessed to the murder of Betty Black, has already
been paroled. Flores maintains his innocence, but received the death penalty.
His execution was blocked in 2016 and he is now waiting to hear whether a judge
will grant him a new trial.
Chanthakoummane, whose lethal injection date has been delayed not once but
twice, awaits a July hearing in McKinney. In a letter from prison, he said
standards have changed since his conviction.
"The chiefs [sic] evidence that were used to falsely convict me were not at the
time debunked as 'junk science,'" wrote Chanthakoummane, who was also convicted
using bite mark evidence. "We now know what has been either discredited
entirely or isn't up to the standards of the scientific community."
Gardner said he hopes these 2 cases encourage Texas to take another look at the
efficacy of forensic hypnosis, the way it has with blood spatter and bite mark
evidence. But the state forensic science commission has declined, saying
hypnosis is "not an analysis performed on physical evidence" and therefore not
subject to its oversight.
Howell is more sanguine about the future of forensic hypnotism.
"I'd be real surprised if they threw out the use of hypnosis in Texas," Howell
said. "I'm not really worried about it."
(source: Dallas Morning News)
GEORGIA:
Georgia death row case awaits review by U.S. Supreme Court----A petition
regarding a heinous double murder in Jackson County in 1997 is now pending
before the U.S. Supreme Court, and a respected blog that covers the court has
highlighted this death penalty case as one to watch.
The U.S. Supreme Court is considering whether to take up a Georgia death
penalty case. A respected blog that covers the court has observed the petition
may raise issues that warrant the court's review.
The convicted killer, now fighting to get off Georgia's death row, was charged
with beating the face of his former wife until she died, and shooting her
boyfriend at least twice with a shotgun after the killer had kicked down a door
to gain entry to the boyfriend's home, according to a 2002 ruling by the
Georgia Supreme Court.
The pending petition contends the attorney for Donnie Cleveland Lance failed to
mount a defense that included Lance's, "significant mental impairments" -
including being "borderline retarded," demented from alcohol abuse, and a
survivor of head wounds inflicted by a gun shot, fights, and car wrecks.
Had this history been offered, a jury may not have imposed the death penalty,
according to the petition. The trial court imposed a total of 2 death sentences
for 2 murders, 2 consecutive 20-year terms for burglary and 5 years for
possession of a firearm during the commission of a felony.
Justices have not yet considered the petition that asks the court to evaluate a
ruling against Lance that was issued Oct. 31, 2017 by the U.S. Court of Appeals
in Atlanta. Unless justices agree to take the case, there will not be a case to
watch.
Nevertheless, a co-founder of scotusblog.com observed that the petition filed
on behalf of Lance raises issues that may warrant the court's review.
Scotusblog.com reporter Aurora Barnes listed the Lance case as the "Petition of
the Day" on May 10. The case was selected by Tom Goldstein, who in 2002
co-founded the site with his wife, fellow attorney Amy Howe.
The website defines this designation as follows:
"'Petitions of the day' are those that Tom [Goldstein] has identified as
raising one or more questions that have a reasonable chance of being granted in
an appropriate case. We generally do not attempt to evaluate whether the case
presents an appropriate vehicle to decide the question, which is a critical
consideration in determining whether certiorari will be granted."
Scotus.blog won a Peabody Award in 2012. Judges observed:
"For filling a gap in Supreme Court coverage created by traditional media
outlets' staff cutbacks and, in fact, far exceeding it, SCOTUS.blog receives a
Peabody Award."
Goldstein's profile on his law firm's site portrays him as, "one of the
nation's most experienced Supreme Court practitioners," who also teaches
Supreme Court Litigation at Harvard Law School and, previously, at Stanford Law
School.
Howe recently stepped down as editor and reporter of scotusblog.com, according
to her profile. Howe was involved with more than 24 cases before the Supreme
Court, arguing 2 of them. Previously, she co-taught Supreme Court Litigation at
Stanford and Harvard law schools.
Lance's appeal to the Supreme Court was filed by 2 lawyers with King &
Spalding's Atlanta office - Joseph Loveland, as the counsel of record, and
James Boswell.
Eric Sellers, warden of the Georgia Diagnostic and Classification Prison, is
the respondent. The prison houses the state's execution chamber. Sellers is
represented by state Attorney General Chris Carr, state Solicitor General Sarah
Hawkins Warren, and 3 ranking state lawyers.
The jury in Lance's trial, in Jackson County, located northeast of Gwinnett
County, had no trouble convicting Lance of the double murder of Sabrina "Joy"
Lance and Dwight "Butch" Wood, Jr.
The jury imposed the death sentence for reasons including that the murders were
"outrageously or wantonly vile, horrible, or inhuman in that it involved
torture, depravity of mind, and an aggravated battery to the victim," according
to the 2002 Georgia Supreme Court ruling.
(source: saportareport.com)
NEBRASKA:
Nebraska Supreme Court proceeding responsibly on death penalty
Regardless of one's stand on the death penalty, it's important that the State
of Nebraska follow the letter of the law in all regards as the process
proceeds. The Nebraska Supreme Court has underscored that concept by ordering a
public legal office to represent death row inmate Carey Dean Moore as the state
seeks a warrant for his execution. It's an appropriate action.
(source: Editorial, Omaha World-Herald)
MONTANA:
GOP primary candidates in Montana's U.S. Senate race split on death
penalty----The Republican candidates vying to run against Sen. Jon Tester are
Matt Rosendale, Russ Fagg, Troy Downing and Al Olszewski.
As the primary in the U.S. Senate race moves closer, one of the deepest divides
between candidates has opened over the issue of the death penalty.
Russ Fagg, a former Billings judge, released a television ad last week saying
he supports the death penalty for those in the country illegally who commit
murder.
Fagg and Troy Downing, a Big Sky businessman, both said this week they support
the death penalty in heinous cases. State Auditor Matt Rosendale, who is the
subject of attack in Fagg's television ad, opposes the death penalty, as does
state legislator Al Olszewski.
The 4 men are seeking to run against Democrat U.S. Sen. Jon Tester in what's
expected to be a hard-fought and close election. As the June 5 primary nears,
Fagg has increased his jabs at Rosendale in ads and at forums around the state.
Rosendale is seen by some to be the front-runner, though Fagg's fundraising
totals for the 1st quarter of 2018 show him pulling closer, at least in the
money race. Absentee ballots were mailed out to voters statewide Friday.
A voiceover in Fagg's ad says Fagg has "made the tough decisions to protect our
families" and promotes Fagg's support of the death penalty. But text in the ad
and Fagg's record as a judge show he's never sentenced a person to the death
penalty, only life in prison.
In an interview this week, Fagg was less bombastic than the ad spot, saying he
was "glad I've never had to do a death penalty case, even though I believe in
the death penalty."
In Montana, a prosecutor must file with the district court within 60 days of a
defendant's arraignment if he or she will seek the death penalty.
Fagg said in his 22 years as a judge, he's never had that happen. A 2013 story
by The Billings Gazette reported that county attorneys there, where Fagg was
judge, had not sought the death penalty for nearly three decades, and the
office hasn't since then. County Attorney Scott Twito also said Friday he was
not aware of any death penalty cases before Fagg during Twito's 2 decades in
the office.
"I can't say I've ever had a case where I thought it should be recommended,"
Fagg said. "To me it would be something that's premeditated, involves torture
and then murder. To me those are probably the 3 scenarios that I think would
justify the death penalty."
That includes what Fagg calls the "toughest case I've ever dealt with" where a
17-year-old man robbed a convenience store in Billings and shot and killed the
clerk after Fagg said he could have just left the store.
"I gave him a life in prison sentence, which was one of the hardest things I've
ever done in my life," Fagg said.
The death penalty is appropriate, Fagg said, "when it's such a horrendous crime
that it is not right to let somebody continue to live because they've caused
such pain and agony for a person or a group of people. It should be used only
in extraordinary circumstances."
Downing, the other candidate who supports the death penalty, said in
particularly horrific crimes it is appropriate to put the person convicted to
death.
"I think sometimes there are things that are so bad it warrants it," Downing
said last week. However, Downing did not want to specifically say what those
situations would be, saying he didn't want to "speak the unspeakable."
"Obviously we're talking about something very serious, but sometimes humans do
the unthinkable on others, egregious acts in extreme situations that (call for)
the death penalty," Downing said.
Both Fagg and Downing, along with the other primary candidates, are
anti-abortion.
"In the death penalty we're not talking about taking an innocent life," Downing
said. "There's a big difference between protecting the innocent as in an
abortion and having justice for somebody who commits a heinous act on another."
Fagg agreed, saying "the difference is easy: it's an innocent life as opposed
to a person that's committed a horrendous crime against a fellow human being."
As a former judge, Fagg said he did have concerns about people being put to
death who could later be found not guilty of their crime.
"It's certainly not likely to happen, it's extremely unlikely, but of course
it's a concern," Fagg said. "But (to get a conviction), those are pretty high
standards to achieve."
Rosendale said last week that his opposition to the death penalty is rooted in
his religions beliefs. In forums statewide, he's said he's anti-abortion in all
situations.
"Beyond the purposes of self-defense or imminent danger, my Catholic faith
teaches me and millions of other Americans that we do not get to decide who
lives or who dies, only the good Lord does," Rosendale said.
Olszewski says he also would like to see the death penalty "kept as minimal as
possible or make it go away."
"I'm a physician. I'm a very strong pro-life candidate, and I believe in the
sanctity of life, which goes all the way from conception to natural death. My
belief is we should greatly restrict it or eliminate it, but I also do
understand there is going to be a situation where maybe there's a person who
should never leave prison, who should never get it out."
Olszewski, who is also Catholic, said while that's his personal belief, he
acknowledges the Republican Party platform supports capital punishment.
Polling by Gallup has found support for the death penalty strong among the GOP,
but waning among Democrats, who in 2016 added a call the party platform to
abolish the death penalty.
According to Gallup polling, from 2000-2010, 80 % of Republicans supported the
death penalty; that number dropped just 1 percentage point between 2011-2016.
The decrease in support among Democrats is more sharp, going from 55 % to 47 %.
The Montana Legislature has seen attempts to do away with the death penalty
during every session going back about 20 years. Prosecutors don't seek it often
because of the complicated nature of death penalty cases.
A legislative fiscal note from 2017 found attorney time spent both on appeals
and for the Office of the Public Defender to handle death penalty cases is
significantly higher than for other cases.
No state office tracks when prosecutors seek the death penalty, but a recent
list of cases includes Lloyd Barrus, who is accused of killing Broadwater
County sheriff's deputy Mason Moore. The Broadwater County attorney filed
notice last July that he plans to seek the death penalty.
A prosecutor in Richland County initially said he would seek the death penalty
for Michael Keith Spell and Lester Van Waters Jr., who killed Sidney teacher
Sherry Arnold in 2012. Both pleaded guilty, which took the death penalty off
the table for Waters. Spell later was found by state health officials to be
mentally disabled.
Flathead County prosecutors sought the death penalty for Tyler Miller, who
killed his ex-girlfriend and her daughter on Christmas Day in Kalispell in
2010, but Miller later pleaded guilty and avoided capital punishment.
Prosecutors also sought the death penalty for Laurence Jackson Jr., found
guilty of shooting and killing Blaine County Sheriff's Deputy Joshua Rutherford
in 2003. Jackson was convicted and sentenced to life in prison without the
possibility of parole.
The last inmate executed in Montana was David Dawson on Aug. 11, 2006. Dawson
kidnapped a Billings family and strangled the father, mother and 11-year-old
son; a 15-year-old daugther was rescued. Dawson was sentenced by Yellowstone
County District Court Judge Diane Barz.
Since 1973, there have been 13 people sentenced to death in Montana. 2 remain
on death row.
(source: Helena Independent Record)
HAWAII:
Freed death row inmate-turned-speaker is back behind bars
A man who was on death row in Delaware until being retried and found not guilty
of murder is back behind bars in Hawaii less than a year later.
Isaiah McCoy enjoyed the limelight that came with sharing his story after he
left Delaware's death row a free and exonerated man. He gave speeches to
innocence projects, anti-death penalty groups and lawyers associations.
Now, he's in a federal detention center in Honolulu, where prosecutors accuse
him of sex trafficking. They say McCoy forced young women into prostitution.
McCoy spoke to The Associated Press at the Honolulu Federal Detention Center.
He says he's again accused of a crime he didn't commit.
He says he'll use his knowledge of the criminal justice system to represent
himself at his upcoming trial.
(source: Associated Press)
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