Jan. 21 TEXAS: DNA expert links defendant to McKinney quadruple murder scene A DNA expert linked the defendant in a 2004 quadruple murder to items found at the McKinney crime scene. Raul Cortez is a possible contributor to DNA found on pieces latex gloves caught on duct tape used to bind victim Rosa Barbosa, Dr. Rick Staub told the Collin County jury Wednesday. Cortez and Eddie Ray Williams, 26, are charged in the March 12, 2004, shooting deaths of Rosa Barbosa, 46; her nephew, Mark Barbosa, 25; and his friends Matthew Self, 17, and Austin York, 18. The killings occurred inside Rosa Barbosa's home. Both defendants are charged with 5 counts of capital murder 1 count for each of the 4 victims, and an additional charge for more than 1 murder occurring during the same incident. Williams told a Collin County jury on Tuesday how he and Cortez gunned down a McKinney woman during a botched robbery, then killed the 3 young men who walked in on the crime. Williams told the jury that Javier Cortez, Raul's brother, came up with the plan to rob Rosa Barbosa, who worked at a McKinney check-cashing business. Javier had been watching her and thought she took money home to "cash checks for Mexicans who don't have green cards," Williams testified. He told the jury that he agreed to participate in the robbery but that his accomplices "didn't say anything about killing her." Williams testified that on the night of the crime, he knocked on Rosa Barbosa's door and asked her if she'd seen his lost puppy. "Raul and Javier ran around me and pushed the woman to the ground," he told the jury. The Cortez brothers couldn't find any money in the home, so they forced the bound woman to give them the key and alarm code to the check-cashing business. "Then Raul disappeared and I heard a pop," Williams testified, describing how Rosa Barbosa was killed. About that time, the other 3 victims walked into the home. "When they came in, Raul just opened fire," Williams testified. The barrage of bullets didn't kill the youths, and one of the young men tried to run out the door but was caught by Raul Cortez, Williams testified. All 3 young men were herded into Mark Barbosa's bedroom. "Raul gave me the .25 and told me to shoot them," Williams testified. "I shot Mark once and the other one twice." He told the jury that Raul Cortez killed the 4th victim. (source: Dallas Morning News) ****************** URGENT ACTION APPEAL - From Amnesty International USA 21 January 2009 UA 17/09 - Death penalty / Legal concern USA (Texas) Larry Ray Swearingen (m), white, aged 37 Larry Swearingen is scheduled to be executed in Texas on 27 January. He was sentenced to death in 2000 for the murder of Melissa Trotter in 1998. He maintains his innocence of the murder. Several forensic experts have provided statements and testimony supportive of his claim. Melissa Trotter went missing on 8 December 1998. Larry Swearingen was arrested three days later, and has been incarcerated ever since. The body of Melissa Trotter was found in a forest on 2 January 1999. Larry Swearingen was tried for her murder, and sentenced to death. On 14 January 2009, Larry Swearingen's lawyers filed an appeal in the US Supreme Court to stay his execution on grounds of innocence. The petition argues that "the State's only theory of guilt, which was that Mr. Swearingen killed the victim and left her body in the forest on December 8, 1998, twenty-five (25) days before the corpse was recovered on January 2, 1999, is not just implausible, it is utterly impossible." The Supreme Court has not yet ruled on the motion for a stay of execution. In support of this innocence claim, the petition cites the opinions of three current or former Chief Medical Examiners and another forensic pathologist. One of these experts, Dr Joye Carter, is the former Chief Medical Examiner of Harris County in Texas who performed the autopsy of Melissa Trotter and testified at Larry Swearingen's trial. At the trial she had testified that in her opinion, Melissa Trotter's death had occurred 25 days before her body was found. In an affidavit signed in 2007, Dr Carter stated that she had looked again at the case and changed her opinion. She stated that she had reviewed the autopsy report and photographs and also "several pieces of forensically important information that, to the best of my recollection, were not made available to [me] during trial or pretrial proceedings." This information included video footage of the crime scene taken on the day Melissa Trotter was found, medical records giving Melissa Trotter's weight immediately prior to her disappearance, and the temperature data for the area in which she was found for the period 8 December 1998 to 2 January 1999. In her affidavit, Dr Carter concluded that Melissa Trotter's body had been left in the forest within two weeks of it being found. If accurate, this would mean that the body was dumped at a time when Larry Swearingen was already in custody. Another forensic pathologist, and former Chief Medical Examiner for Nueces County, Texas, Dr Lloyd White, has given a written statement that he supports Dr Carter's conclusions based on her 2007 re-evaluation of the evidence. He also agrees with Dr Gerald Larkin, another forensic expert, who concluded that "Ms Trotter's body was exposed in the wood for several days only, and not for two or three weeks". Dr White states that there is strong support for the conclusion that the body was left in the woods "at least one week after Mr. Swearingen was incarcerated on December 11, 1998, and probably more than two weeks after". The petition to the Supreme Court argues that the post-conviction expert evidence amounts to "uncontested forensic pathology showing that Mr. Swearingen could not possibly have been the person who killed the victim. The only way to convict would be for the jury to conclude that Mr. Swearingen had an accomplice who stored the body so it would not decompose and disposed of it later. That, however, is speculation so rank that the State has never even proposed it. Indeed, it collides with the States insistence at all stages of proceedings that no one but Mr. Swearingen killed the victim and threw her into the woods". Larry Swearingen has repeatedly sought full DNA testing of crime scene evidence. According to the appeal before the US Supreme Court, "the DNA analysis that the State has conducted so far is compelling evidence that Mr. Swearingen is innocent. State examiners found male blood under the victim's fingernails. Testing excluded Mr. Swearingen as the donor." The petition also notes that at an evidentiary hearing in 2008, a co-worker of Melissa Trotter had testified that, only weeks before her disappearance, another man had "made serious threats to rape and strangle the victim". BACKGROUND INFORMATION Texas continues to account for a large number of the USA's executions. Of the 1,138 people put to death nationwide since 1977 when executions resumed in the USA, 424 have been in Texas. There have been two executions in the USA so far this year: one in Texas, one in Alabama. Amnesty International opposes the death penalty in all cases, unconditionally. To end the death penalty is to abandon a destructive, diversionary and divisive public policy that is not consistent with widely held values. It not only runs the risk of irrevocable error, it is also costly, to the public purse as well as in social and psychological terms. It has not been proved to have a special deterrent effect. It tends to be applied in a discriminatory way, on grounds of race and class. It denies the possibility of reconciliation and rehabilitation. It promotes simplistic responses to complex human problems, rather than pursuing explanations that could inform positive strategies. It prolongs the suffering of the murder victims family, and extends that suffering to the loved ones of the condemned prisoner. It diverts resources that could be better used to work against violent crime and assist those affected by it. It is a symptom of a culture of violence, not a solution to it. It is an affront to human dignity. It should be abolished. Today, some 138 countries are abolitionist in law or practice. In 2007, the UN General Assembly called for a moratorium on executions worldwide and for retentionist countries to work towards abolition. RECOMMENDED ACTION: Please send appeals to arrive as quickly as possible (please include Larry Swearingen's prisoner number, #999361, in appeals): - expressing sympathy for the family and friends of Melissa Trotter and explaining that you are not seeking to condone the manner of her death or to downplay the suffering caused; - opposing the execution of Larry Swearingen; - noting that several forensic experts, including the former Harris Country Chief Medical Examiner, who performed the autopsy of Melissa Trotter and testified at the trial, have provided expert opinion supportive of Larry Swearingen's claim of innocence; - calling for Larry Swearingen's execution to be halted and his death sentence to be commuted; - at a minimum calling on the Governor to stop the execution and allow full DNA testing to be conducted. APPEALS TO: Rissie L. Owens Presiding Officer, Board of Pardons and Paroles Executive Clemency Section 8610 Shoal Creek Boulevard Austin, TX 78757 Fax: 1 512 467 0945 Salutation: Dear Ms. Owens Governor Rick Perry Office of the Governor P.O. Box 12428 Austin, Texas 78711-2428 Fax: 1 512 463 1849 Salutation: Dear Governor PLEASE SEND APPEALS IMMEDIATELY All appeals must arrive before 27 January, 2009 ---------------------------------- Tip of the Month: Use shortcuts: Do whatever is necessary to make your letter writing as quick and easy as possible. This way, letters will not be put off and they can be sent out sooner. Start by making a generic file for each type of concern; paragraphs on torture, the death penalty, disappearances, denial of medical care and so on, can be copied into your working file and edited as needed. ** POSTAGE RATES ** Within the United States: $0.27 - Postcards $0.42 - Letters and Cards (up to 1 oz.) To Mexico and Canada: $0.72 - Postcards $0.72 - Airmail Letters and Cards (up to 1 oz.) To all other destination countries: $0.94 - Postcards $0.94 - Airmail Letters and Cards (up to 1 oz.) Amnesty International is a worldwide grassroots movement that promotes and defends human rights. This Urgent Action may be reposted if kept intact, including contact information and stop action date (if applicable). Thank you for your help with this appeal. Urgent Action Network Amnesty International USA 600 Pennsylvania Ave SE 5th fl Washington DC 20003 Email: u...@aiusa.org http://www.amnestyusa.org/urgent/ Phone: 202.544.0200 Fax: 202.675.8566 ---------------------------------- END OF URGENT ACTION APPEAL ---------------------------------- VIRGINIA: Va Senate committee passes death penalty expansion A state Senate committee on Wednesday endorsed legislation to expand the death penalty, but the true test will be whether the bills can get enough support in the full Senate to override a veto by the governor. The Senate Courts Committee advanced one bill to expand the death penalty to those who assist in a murder but don't do the actual killing and another to allow it for those who kill a fire marshal or his assistant while on the job. For the past two years, Gov. Timothy M. Kaine has vetoed the expansion of Virginia's "triggerman rule," which reserves capital punishment for the person who actually does the killing. Virginia law already allows the death penalty for murder accomplices in the case of a murder for hire, terrorism and continuing criminal enterprise. The bill, sponsored by Republican Sen. Mark Obenshain of Harrisonburg, would allow the death penalty for any accomplice who shares the triggerman's intent to kill. Obenshain's bill passed the committee 8-6 with 1 absention. While the Republican-controlled House had enough votes to overturn the veto each year, the Democrat-led Senate came just shy of the 2/3 margin necessary to override Kaine. Kaine, a Democrat, has said he doesn't believe further expansion of capital punishment is necessary. His spokesman, Gordon Hickey, said Wednesday that Kaine's position has not changed. Sen. Steve Martin's bill would add fire marshals and assistant fire marshals to the long list of law enforcement officers for which killing them in their line of duty is punishable by death. It passed out of the committee on a 12-3 vote. Both bills passed without debate. Beth Panilaitis, executive director of Virginians for Alternatives to the Death Penalty, said rather than passing laws to expand the death penalty, legislators could better spend their time trying to fix the state's at least $3 billion budget shortfall that threatens to yank money from schools and health care for the poor. "We don't think that it's in the best interest of the citizens of the commonwealth, especially in a year when we have such a budget crisis," she said. Another bill to expand capital punishment to those who kill auxiliary police officers and deputy sheriffs has been filed but has not yet been heard by the committee. Virginia has executed more inmates than any state except Texas since capital punishment was reinstated in 1976. (source: Associated Press) NEW HAMPSHIRE: Death by firing squad lacks support in NH Only 6 crimes qualify as capital murder under New Hampshire law. State Rep Delmar Burridge wants to add one to that list, and instate a long abandoned method of execution. House Bill 37 proposes that someone could face the death penalty if they commit a murder with a firearm, while also committing a felony. For that crime, the execution would be carried out by a 5-person firing squad. "A firing squad is more humane, reliable and quick. And perfectly matches the crime with the punishment." But the proposal is constitutionally questionable at best and had no support at a public hearing Wednesday. I don't see any reason to add use of a firearm as the method of murder as considering that more heinous than any of the other ways that we can kill someone. "You pass this bill and the courts will throw it out quicker than you can say ready aim fire. "It provides for what we consider to be an unconstitutional cruel and unusual type of punishment. Even Burridge acknowledges the bill has little chance, but hopes the very idea will scare potential criminals: "I think that will thwart or frustrate or just get someone to pause, just for a minute. And that's sometimes all it takes." This bill is one of several on the death penalty that lawmakers will consider this session. It's a discussion that's gone on at the statehouse for years. But it's perhaps more relevant now than ever. Michael Addison is on death row for the 2006 murder of Manchester police officer Michael Briggs. He stands to be the 1st person executed in New Hampshire since 1939. "Now we have an example when we could be putting someone to death in a few years. . . so do we want to do that?" State Representative Jim Splane has repeatedly sponsored bills to abolish the death penalty. One passed in 2000 but was vetoed by then governor Jeanne Shaheen. This year, he wants to create a commission, of 17 people, who would have a couple of years to examine this issue, then report back to the legislature. (source: NECN) PENNSYLVANIA: Matricide trial won't be death penalty case A Cambria County man accused of strangling his 85-year-old mother and dumping her body in Westmoreland County will not face the death penalty. Frederick O. Phillips Jr., 51, of Upper Yoder, was arraigned Tuesday before Cambria Judge Norman A. Krumenacker on charges of 1st-degree murder and aggravated assault in the Oct. 8 slaying his mother, Anna. He remains in the county jail without bond. District Attorney Patrick Kiniry will seek a mandatory life imprisonment sentence when Phillips stands trial later this year. "After extensive review by my office, we determined that none of the aggravating circumstances outweighed the mitigating factors," Kiniry said. He declined to speak specifically on the issue, saying he did not want to risk tainting the jury pool. In Pennsylvania, prosecutors must prove that aggravating circumstances outweigh mitigating factors in order to impose a death sentence. Some of the 16 aggravating circumstances include killings that occur in the course of another crime, such as a robbery, and the defendant's prior criminal record. Kiniry said Anna Phillips' other family members did not influence his decision. "We've talked to the family extensively but we did not get into whether to seek the death penalty. That's a decision up to the district attorney," Kiniry said. Phillips answered, "Yes," and nodded affirmatively yesterday when Krumenacker asked if he understood the charges filed against him. His attorney, Patricia Moore, of the public defender's office, pleaded not guilty on Phillips' behalf. She declined to speak to reporters. During a Nov. 24 preliminary hearing, Upper Yoder police Chief Walter Howell testified police discovered Frederick Phillips was recuperating in Ruby Memorial Hospital in Morgantown, W.Va., . from a truck accident about 11 days after the killing. Authorities began searching Oct. 18 for Phillips, after family members and Anna Phillips' neighbors became concerned about her whereabouts. Phillips had been living with his mother for a few months, following his release from prison for an unrelated assault. In a bedside interview, Phillips told police he strangled his mother, Howell said. Phillips gave directions to where he buried the body, underneath a pile of brush and leaves in Fairfield, several miles from the victim's home along Route 271. The body was discovered in State Game Lands 42, about 800 feet inside Westmoreland County. Phillips told police he visited the makeshift grave several times before heading south in his pickup truck with more than $15,600 taken from his mother's house. Last month, Krumenacker rejected a request from Anna Phillips' other heirs, who wanted that money, confiscated from Frederick Phillips's truck in West Virginia on Oct. 16, to be returned to the estate. Krumenacker ruled that the currency can be used by prosecutors at trial before it is returned. Fred and Anna Phillips adopted Frederick shortly after his birth, according to officials. The late Fred Phillips was a Johnstown constable for many years. (source: Pittsburgh Tribune-Review) ************* Lebanon defendant can face death penalty, court rules The state superior court has ruled that James Hower can face the death penalty in the murder of David Kern 3 years ago. The case was on appeal by a ruling from Lebanon County Judge John Tylwalk that Hower would not qualify for the death penalty because preliminary evidence indicated that Hower didn't deal the fatal blow. His accomplice, Roberto Laboy, did. Hower, 23, and Laboy, 23, both of Lebanon, are accused of beating and fatally stabbing Kern about 2:40 a.m. Jan. 21, 2006, in an alley on Lebanon's north side while Kern and a companion, Tina Garcia, walked home from a bar where they had been drinking. An autopsy determined Kern died from a knife blow that penetrated his heart. In the Superior Court ruling, the judges noted that Hower's pants were strained with Kern's blood and Garcia testified that both assailants punched Kern in the face and the stomach. Evidence showed there was some evidence that "Hower was a principal in the attack that caused the death of Kern," the judges wrote. (source: Pennlive.com) LOUISIANA: Capital murder trial in stabbing of Gentilly restaurant owner Jose Vazquez starts Jury selection began today in the 2003 murder of Gentilly restaurant owner Jose Vazquez Jr., a case in which prosecutors are seeking the death penalty. Tyrone Wells, 37, is accused of stabbing Vazquez in July 2003 during an armed robbery of his business, Vazquez Seafood Restaurant on Franklin Avenue. The aging first-degree murder case has been stymied by problems with seating a jury able to render capital punishment, as well as Wells' decision last year to fire his attorney. Attorneys today will try yet again to select 12 jurors and 2 alternates. Jury selection could take days, as Orleans Criminal District Judge Arthur Hunter plans to interview prospective jurors one by one in his chambers, along with attorneys in the case. Orleans Parish hasn't sent a convict to death row since 1997. A guilty verdict on capital murder requires a unanimous vote by the 12 jurors, who then sit through a mini-trial in which the state asks them to sentence the defendant to die by lethal injection. Another unanimous vote is required to render a death sentence. In contrast, it only takes 10 of 12 jurors to render a guilty verdict for 2nd-degree murder in Louisiana. Police said they arrived at the Gentilly restaurant on July 11, 2003, to find Vazquez dead and his attacker, Tyrone Wells, bleeding on the floor. Wells allegedly came up behind Vazquez as he entered the front door and forced him into the building at gunpoint in search of the restaurant's safe, police said. Wells eventually recovered from stab wounds and has been in jail ever since awaiting trial. Last June, a jury was assembled, but the panel was sent home after Wells announced to the court that he had fired his attorney, Martin Regan. Wells said in court at the time that he wants to fight the charges by asserting his right to a trial by jury. A "gag" order is in place on the case. Vazquez, 37, had run the seafood restaurant with his family. (source: The Times-Picayune) _______________________________________________ DeathPenalty mailing list DeathPenalty@lists.washlaw.edu http://lists.washlaw.edu/mailman/listinfo/deathpenalty Search the Archives: http://www.mail-archive.com/deathpenalty@lists.washlaw.edu/ ~~~~~~~~~~~~~~~~~~~~~~~~~~~ A free service of WashLaw http://washlaw.edu (785)670.1088 ~~~~~~~~~~~~~~~~~~~~~~~~~~~
