Nov. 30
TEXAS:
Supreme Court Justice Makes Powerful Plea For The Disabled On Death Row
A narrow majority of justices at the U.S. Supreme Court appeared ready to side
with a Texas death row inmate and further refine the constitutional prohibition
on executing the mentally deficient.
The justices are charged with deciding whether the courts may use non-clinical
or outdated medical information in assessing whether a person is intellectually
disabled, and therefore protected from capital punishment.
The justices found that executing a mentally disabled person is an
unconstitutionally cruel and unusual punishment in 2002. They further developed
that ruling in Hall v. Florida in 2014, finding that courts may not use a rigid
threshold IQ test, but must rely on a range of clinical factors.
In this case, a death row convict named Bobby James Moore challenged the state
of Texas' use of components called the Briseno factors, which assist courts in
making findings concerning intellectual disability. These 7 factors are
derivative of Lennie Smalls, from Steinbeck's "Of Mice and Men." Moore was
sentenced to die for his role in the robbery of a grocery store which resulted
in the death of a clerk. He attempted to vacate his execution by proving he is
intellectually disabled, but failed in a state appeals court. The parties would
not contest that Moore is developmentally challenged (he could not add or
subtract until his teenage years, for example), but disagree as to his status
as intellectually disabled.
Though the Briseno factors are not the primary test the Texas courts use to
make findings of mental deficiency, they do help inform and shape such
findings. In this case, the lower court also relied on a 1992 edition of the
American Association on Mental Retardation, which is no longer current.
Clifford Sloan, Moore's attorney, characterized Texas' non-clinical factors as
"harmful and inappropriate lay stereotypes." Sloan said reliance on medical
frameworks is a "life and death question that goes to the human dignity of the
intellectually disabled."
Chief Justice John Roberts, sounding perturbed, repeatedly wondered if Moore's
lawyers were raising arguments and issues unrelated to the question the Court
granted review on. Roberts' concern seemed to draw sympathy from Justices
Anthony Kennedy and Samuel Alito. Elsewhere in the argument, Kennedy suggested
a conflict existed between Texas' practice and up to date medical standards. He
also was troubled by the possibility that a mentally deficint individual could
fail Briseno factors scrutiny and still be executed, as has happened on at
least 3 occasions, according to an American Bar Association amicus brief.
Justice Stephen Breyer, the Court's clarion death penalty opponent, made a
powerful intervention during Sloan's argument, asserting that national
standards could not possibly be set for assessing mental deficiency, given the
extreme subjectivity involved in such diagnoses. To his thinking, it follows
that disparate outcomes will result.
"There will be a bunch of easy cases. And then there are going to be cases like
your client who has been on death row for 36 years. And there will be
borderline cases ... what is the Court supposed to do? Are we supposed to have
all those hearings here? I mean, you've made very good arguments for your
client. There are probably several others in the country in different states
which may have different standards. And if you have some view that the law in
this area should be law, i.e., that it should be uniform across the country,
point me to something that will tell me how a district judge should go about
making this determination in borderline cases."
"And if you 23 want my true motive, I don't think there is a way to apply this
kind of standard uniformly across the country, and therefore, there will be
disparities, and uncertainties, and different people treated alike, and people
who are alike treated differently," he added.
Texas Solicitor General Scott Keller argued that the states were not bound to
strictly adhere to a particular organization's clinical definition of
intellectual disability. He also argued that the Briseno factors are merely a
secondary test the Texas courts use in addition to a constitutionally-valid 3
part test. He also aggressively rebuted the notion that the Briseno factors
were derived from Lennie Smalls.
"Lennie, and the character from "Of Mice and Men," was never part of the test,"
he said. "It's not part of the test. It was an aside in the opinion, and the
Court said it was not going to address that separate question and instead
adopted the clinical standards."
A decision is expected in the coming months.
(source: dailycaller.com)
PENNSYLVANIA:
Manuel Sepulveda is off death row
Convicted killer Manuel Sepulveda is off death row and now serving life in
prison without parole, following a new sentence imposed Tuesday as the result
of a Monroe County Court ruling on Sepulveda's challenge to his trial's penalty
phase.
A jury in 2002 convicted Sepulveda, 37, of Kunkletown, of 1st-degree murder and
conspiracy to murder in the 2001 deaths of John Mendez, 19, and Ricardo Lopez
Jr., 20, at the Polk Township home of Daniel Heleva, 55, who was convicted as
an accomplice and is serving life without parole. Ongoing arguments over stolen
drugs, money and guns led to Mendez and Lopez being shot and Mendez being
beaten with an axe and garroted with a bungee cord, according to trial
testimony.
After convicting Sepulveda in the trial phase of 1st-degree murder, the jury
had to decide in the penalty phase whether to sentence him to death or life
without parole, the only 2 penalties for 1st-degree murder convictions. The
jury chose death.
In 2006, several years after his conviction, Sepulveda filed a Post-Conviction
Relief Act motion, seeking ultimately a new trial, on grounds that mitigating
factors weren't available to or raised by his defense at trial. Mitigating
factors are circumstances that can be cited in a convicted defendant's argument
for a less severe sentence.
The mitigating factors Sepulveda cited in his PCRA motion include a traumatic
childhood leading to drug addiction, cognitive disabilities as an adult and
having no criminal record prior to the murders. His PCRA motion was denied in
Monroe County Court, appealed up to state Supreme Court and remanded back to
Monroe County for a hearing on grounds that Sepulveda was raising valid issues.
After the case was remanded back to this county, Sepulveda's defense attorney
at the time, who was different from the attorney who had represented him at
trial, became aware of an additional mitigating factor in testimony not
elicited from Heleva's wife, Robyn Otto, at trial. The defense then requested a
hearing to have Otto testify to what she hadn't been called to testify about at
trial.
Otto testified at the April 2015 hearing that Sepulveda was like an uncle to
her and Heleva's children, who were ages 7 and 5 at the time of the murders.
Her testimony indicated Sepulveda was protecting the children when killing
Lopez and Mendez, who had threatened to burn the house down with Otto and the
children inside.
After hearing this testimony, Mendez's angry relatives told news media Otto was
lying and that Mendez, not Sepulveda, was the one who looked out for the
children.
Sepulveda's defense argued the jury had been prejudiced in the trial's penalty
phase.
Had the jury been allowed to hear Otto's testimony at trial, there's a fair
chance at least 1 juror would have voted to sentence Sepulveda to life without
parole, as opposed to death, the defense said. And that 1 juror's dissenting
vote was all it would've taken to affect the jury's decision, which must be
unanimous.
Monroe County President Judge Margherita Patti-Worthington later issued a
ruling in favor of Sepulveda's PCRA motion, saying the jury had indeed been
prejudiced in the trial's penalty phase. In light of the judge's ruling,
Sepulveda's sentence was changed Tuesday from death to life without parole.
Sepulveda, who indicated he views this sentence as equally unjust, has the
right to appeal.
Mendez's family said the injustice is Sepulveda still getting to draw breath
while Mendez is dead.
"They've taken the death penalty away," Mendez's upset mother, Deborah Murphy,
told news media afterward. "(Sepulveda) should suffer for the pain he's caused
me and my family."
When led from the courtroom, Mendez told news media he's very sorry for what
Mendez's family has been through.
(source: poconorecord.com)
VIRGINIA----imending execution
For January execution of Ricky Gray, Virginia plans to use drug involved in 3
botched executions elsewhere
On Jan. 18, if all goes according to plan, Virginia will execute Ricky Gray for
killing a former Virginia Beach homecoming queen and her family in Richmond
more than a decade ago.
Gray, whose only other option is the electric chair, will likely die by lethal
injection. But the method the state uses to administer the deadly drugs is
raising concerns and prompting Gray's lawyers to consider their response,
including a potential court challenge.
The 3-drug combination that Virginia has chosen for the execution includes
Midazolam, a drug that the state has never used before and that has been
involved in botched executions elsewhere.
Furthermore, Virginia would become the 1st state in the country to use a
version of Midazolam manufactured by a "compounding pharmacy" - one whose
identity is not released to the public and which does not operate under the
same federal regulations as the large drug makers.
"It hasn't been done before anywhere, and the drug is new to Virginia
executions," said Rob Lee, one of Gray's lawyers and the executive director of
the Virginia Capital Representation Resource Center.
Midazolam would be the 1st of the 3 drugs administered in the execution. State
officials say other drugs previously used as the 1st in the process have become
very difficult to get.
"Florida has used this 3-drug protocol many times, starting with a lethal
injection on Oct. 15, 2013," said state Department of Corrections spokeswoman
Lisa Kinney.
But the Midazolam used there wasn\'t made in secret by a compound pharmacy,
said Megan McCracken, a lethal injection expert who works with the Death
Penalty Clinic at the UC Berkeley School of Law. The drug's use in executions
was upheld by the U.S. Supreme Court in June 2015.
"It brings 2 sets of concerns together," McCraken said. "It's 2 significant
changes that introduce risks of pain and suffering."
Gray was convicted of killing 49-year-old Bryan Harvey, 39-year-old Kathryn
Harvey and their daughters, 9-year-old Stella and 4-year-old Ruby, on New
Year's Day 2006. The family was bound and beaten and their throats cut in the
basement of their suburban Richmond home, which was then set on fire.
Bryan was a well-known musician, and Kathryn was a former Cox High School
homecoming queen who owned a toy store. In all, Gray and his nephew Ray Joseph
Dandridge are linked to the killings of 9 people.
Gray was arrested 7 days after the murders and confessed to them. He told
police he and Dandridge were looking for a house to rob and noticed the front
door was open. After the killings, they stole a computer, wedding ring and
basket of cookies.
Gray pleaded not guilty to the charges, arguing he should receive leniency
because of evidence of physical and sexual abuse during his childhood and
because he used PCP during the killings. He was found guilty in August 2006 and
sentenced to death that October.
Virginia has executed 111 people since 1982, but only 6 since 2010. Currently
there are 7 men, including Gray, on death row.
An execution date of March 16, 2016, was set in January but Gray was issued a
stay in federal court to allow the U.S. Supreme Court to consider 2 petitions.
The time for the Supreme Court to review those has now expired, and a circuit
court judge earlier this month set Jan. 18, 2017, as Gray's execution date.
It was questionable whether the state could have executed Gray in March anyway.
For years the drugs used in executions nationwide have been harder and harder
for states to obtain. Drug-makers do not want their names or their products
associated with executions and have refused to sell them to states for that
purpose.
That has led many states to turn to the compounding pharmacies, which make the
drugs and then provide them to states in secret. Until this year, Virginia did
not have a law allowing for the use of such drugs.
In February, during the legislative session, Corrections Department officials
claimed that they did not have enough pentobarbital - then used as the 1st drug
in the state's 3-drug cocktail - to execute Gray.
DOC officials had obtained 3 vials of pentobarbital from Texas last year, 1 of
which was used to execute convicted murderer Alfredo Prieto. Though they had 2
unexpired vials left, state officials claimed they didn't have enough.
The Virginia Death Penalty Coalition, which opposes the death penalty, released
a statement claiming that the state had the drugs it needed to kill Gray by
using lethal injection and that the department's claim otherwise was designed
to put pressure on state legislators to bring back the electric chair.
Inmates condemned to die in Virginia can choose between lethal injection and
the electric chair, but the state must use lethal injection if an inmate
refuses to make the choice. That meant that if the drugs weren't available,
Gray could have refused to choose a method of execution and the execution could
not move forward.
The General Assembly passed a bill allowing the state to choose the electric
chair as its method of execution. Rather than sign the bill, McAuliffe amended
it to allow state officials to obtain execution drugs made by compound
pharmacies in secret.
McAuliffe, a Democrat who supports capital punishment, said at the time that
his plan was essential to ensure that the death penalty continues without
resorting to the electric chair.
"These manufacturers will not do business in Virginia if their identities are
to be revealed," McAuliffe said at a news conference.
In addition to being the first using Midazolam obtained in secret, Gray's
execution would also be the 1st under the new law.
"The ongoing issue," said Robert Dunham, executive director of the Death
Penalty Information Center, "is how do you assure that the drug is as
advertised when you don't know the producer or what its safety record is? How
can a prisoner be offered an alternative way of being executed if he doesn't
know what the source of the drugs is and the state is the only one with that
information?"
Gray requested additional information about the execution process from the
state, which refused to provide it.
At a hearing Nov. 21, a judge declined to force the state to release more
information about its process.
Lee said he is considering appealing the ruling.
In a 3-drug protocol execution, the 1st drug is supposed to render the
condemned person unconscious, the 2nd to paralyze him and the 3rd to stop his
heart.
1 of the problems with using Midazolam is that it is not an anesthetic, but an
anti-anxiety drug, McCracken said.
In 2 of the botched executions using the drug - that of Joseph Wood in Arizona
in July 2014 and Dennis McGuire in Ohio in January 2015 - Midazolam was part of
a 2-drug cocktail. The botched execution of Clayton Lockett in April 2014, in
which there were problems inserting an IV to get the drugs into his
bloodstream, used 3 drugs.
In all 3 cases, the condemned man at first appeared to be unconscious, then
gasped for air or struggled in pain.
"It's not used to maintain anesthesia," McCracken said. "So with the 3 botched
executions using Midazolam, 1 of the similarities ... is the person initially
loses consciousness or appears to and then regains consciousness."
In all of those, the potency of the drug being used was known because it was
made by drug makers, not at a compound pharmacy, McCracken said. If Gray is
executed using a compound version of Midazolam in January, no one will know the
potency of the drug, she said.
"There is a lot of science out there that this is an inappropriate drug to
use," she said. "And in Virginia you have the related issue of the new statute
that makes so much information confidential. ... This is a unique situation."
(source: The Virginian-Pilot)
NORTH CAROLINA:
Death penalty sought for 3rd suspect in double homicide
Prosecutors will seek the death penalty against a 3rd suspect in the in the
death of 2 men whose bodies were found in a burned-out car in September.
District Attorney David Learner's office made the announcement on Tuesday in
Burke County Superior Court in the double homicide cases against Scott Devon
Hemphill.
Hemphill, 33, of 2320 Farmer St., Apt. B, Charlotte, is charged with 2 counts
of murder for the Sept. 17 deaths of Spencer Murray and Albert Austin, both
from Forest City, whose bodies were found in the trunk of the burned vehicle.
Nearly 2 weeks ago, prosecutors announced they also will seek the death penalty
against Icey Chennell Gooden, 26, of 4217 Sundown Road, Morganton, and Brian
Jerome Robinson, 33, of Connelly Springs, in the case.
Brandy Nicole Davis, 32, of 906 Jamestown Road, Apt. D3, Morganton, has been
charged with accessory after the fact to homicide in the case.
The bodies of Murray and Austin were discovered around 8 a.m. on Sept. 18 when
Burke County Sheriff's Office deputies were called to Canoe Creek Way in
Morganton. When they arrived, deputies found a burned Cadillac Deville with
human remains inside, according to previous reports.
With the assistance of an investigator with the North Carolina License and
Theft Bureau, investigators learned the Cadillac belonged to Austin, of 555
Poors Ford Road, Lot 5, in Forest City, and was registered to Murray, of 165
Astrid Lane, in Forest City, according to previous reports.
(source: Morganton News Herald))
SOUTH CAROLINA:
SC is paying for Todd Kohlhepp's defense
Though he purchased hundreds of thousands of dollars' worth of property and has
saved enough money to transfer some to a friend as part of investigators'
efforts to secure his cooperation, accused serial killer Todd Kohlhepp is being
represented at least temporarily by an attorney paid by the state of South
Carolina.
Shane Goranson, who notified the Spartanburg County magistrate Monday night
that Kohlhepp waived his right to appear at the arraignment for his most recent
charges, is a capital defender for the South Carolina Commission on Indigent
Defense, a group that provides legal representation to state residents who
cannot afford to hire attorneys.
Kohlhepp, 45, a registered sex offender and real-estate broker from Moore, is
facing 12 charges, including 7 counts of murder, according to warrants.
He's also under investigation in Arizona, where he "admitted to shooting
somebody," an investigator told the former wife of 1 of Kohlhepp's alleged
victims.
Kohlhepp could be put to death if found guilty.
Goranson has declined to discuss specifics of the case, but he said he's spoken
with Kohlhepp and Kohlhepp has welcomed his representation.
A judge will ultimately rule on whether Kohlhepp qualifies for state-provided
indigent defense throughout his trial, Goranson said.
"The reality is that the cost of a capital defense can be in the hundreds of
thousands of dollars, and most middle to low-income persons, even those who are
not indigent, cannot afford to retain a competent lawyer and pay for the
investigative and expert services that are critical to presenting an adequate
defense," said John Blume, a Cornell Law School professor and former executive
director of the South Carolina Death Penalty Resource Center, a nonprofit
organization since renamed Justice 360 that provides resources to lawyers in
death-penalty cases.
"If counsel is not appointed, then in many cases the person will run out of
money, the defense will be inadequate and there is a substantial risk that
counsel will be found ineffective - thus requiring a new trial all on the
taxpayers' dime," said Blume, who is not involved in the Kohlhepp case and
isn't privy to its particulars.
Money to pay for indigent defense comes from the state through the collection
of criminal fines, tickets and such, Blume said.
Kohlhepp, who's not married and isn't believed to have children, bought his
house on Windsong Way in Moore for $137,500 in January of 2007, records show.
He bought the 95-acre property near Woodruff - where the bodies of 3 people
were discovered after a woman was found chained inside a metal container on
Nov. 3 - for $305,632 in May of 2014, according to property records. He later
paid about $80,000 to erect a chain-link fence around the property.
After his arrest, in order to secure his cooperation in an investigation where
he'd already confessed to killing four people in an infamous cold case from
2003, Kohlhepp was allowed to transfer an undisclosed amount of money to a
friend to pay for a child's education, according to Spartanburg County Sheriff
Chuck Wright.
(source: thestate.com)
OHIO:
Prosecutor seeks death penalty against Delphos man in child's killing
Prosecutors are seeking the death penalty against a Delphos man who is charged
with aggravated murder in the death of a 15-month-old boy.
Christopher M. Peters, 26, also was indicted this week on murder, felonious
assault and endangering children. He is scheduled to appear at his arraignment
Wednesday where he will be asked to enter a plea.
The court did not make the indictment known to the public until Peters was
served a notice of the charges.
The aggravated murder charge includes a death penalty specification.
Few details of the crime that is blamed for the death of a 15-month-old boy
have been released. Police and others have not released the name of the child
yet. The child's mother found him unresponsive Nov. 15 inside an apartment at
24249 Lincoln Highway. She called 911 to make the report.
Another woman got on the phone and asked for police officers at the scene
saying it was clear the child was dead. The mother said she last checked on her
son the day before when he was sick and not eating.
Peters was not at the apartment when the child was found dead. He was arrested
in the days that followed in another county.
(source: limaohio.com)
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