June 16
TEXAS----impending execution
Death Watch: Shaken Science----Appeal rests on new research into Shaken Baby
Syndrome
To have his federal habeas attorneys tell it, Robert Roberson is "dim-witted"
and "mentally ill." The 49-year-old, sentenced to death in 2003 for the 2002
death of his 2-year-old daughter Nikki Curtis, was a "drug abusing petty
criminal with a long family history of serious mental health issues," attorneys
James Volberding and John Wright have said. But did that make him a ruthless
killer? No, Volberding and Wright argued in a Sept. 2010 application for habeas
relief made to the U.S. District Court of the Eastern District of Texas. Their
client "probably did contribute" to the death of his daughter: "Just not
knowingly or intentionally. Roberson is not the worst of the worst. Not even
close." The 2 attorneys suggested a modified conviction of manslaughter, and a
sentence of 20 years.
Much of the old argument hinged on the manner in which Nikki is believed to
have died, and the way Anderson County District Attorney Doug Lowe manipulated
the trial process to elevate the jury's belief in the ruthlessness of the
crime. According to Roberson, Nikki died during a night when he was left alone
with her and was high on drugs. Prosecutors said he shook her, hard, when he
was angry with her - hard enough that she slipped into a coma. When that
happened, they said, he put her in bed, and left her there for hours. Nikki was
only taken to a hospital after being checked on 5 hours later, at which point
it was discovered she was not breathing.
Roberson has maintained his innocence since the day he was arrested, saying
that Nikki died after landing on her head during a fall from her bed. Medical
professionals who testified at his trial quickly dismissed his claims as
unlikely.
An examination of Nikki's body by a nurse upon her arrival at the Palestine
Regional Medical Center revealed a "superficial tear to Nikki's anal cavity"
and a rate of dilation to the anal canal that was considered faster than usual,
suggesting what Roberson's attorneys described as "theoretical sexual
penetration." Dallas pediatrician Dr. Janet Squires found no evidence of any
sexual abuse, however - no deformities to her anal cavity, bruises, or markings
on her vagina. Squires testified at trial that she found no semen or traces of
sexually transmitted bacteria. She noted that the anal cavity usually dilates
in the comatose state due to the nervous system shutting down.
The notion that Roberson sexually abused his daughter that night ultimately
became irrelevant during trial. Lowe ultimately even attempted to have that
charge dismissed. (Capital murder indictments can be secured in cases in which
a murder occurs during a felony, is premeditated, or involves a victim who is
younger than 6, making Roberson a candidate under 2 circumstances.) In appeals,
Volberding and Wright argued that the notion of sexual abuse was only important
to Lowe at the beginning of the trial: By securing an indictment of sexual
assault from the grand jury, Lowe would have an easier time turning the jury
against Roberson, thus making a death sentence - a more appropriate penalty, he
considered, for the high-profile death of a small girl in a small town - a more
likely outcome. Roberson's trial attorneys John Vanmeter and Steve Evans used a
strategy that pointed to Roberson's longstanding mental illness, though they
never actually argued that their client was insane, which would have raised
questions of cruel and unusual punishment.
Since a final judgment was rendered in federal court in Sept. 2014, Roberson's
effort has shifted away from the mental illness angle and instead toward the
argument that "Shaken Baby Syndrome" (aka "Abusive Head Trauma") is a
phenomenon rooted in junk science. Much of that shift has been Roberson's
doing. In 2014, after learning of a Houston case involving a newfound
understanding of SBS, Roberson wrote a letter to the 5th Circuit Court of
Appeals asking that he be granted new counsel. That request eventually led to
the Texas Defender Service taking his case to the U.S. Supreme Court, where it
ultimately failed.
On June 8, 2 weeks before his pending execution, Gretchen Sween, an attorney
with the Office of Capital Writs, filed 2 applications for relief (1 in
Roberson's trial court and another with the Court of Criminal Appeals) as well
as a motion with the trial court for a stay of execution. In each application,
Sween argues that new forensic science could rebuke previous theorems of SBS,
and corroborate Roberson's claims that Nikki - who had a temperature of 104.5
degrees only 2 days before her death - did fall from her bed. Among the claims,
Sween has argued that Nikki's lack of any serious neck injuries indicates that
she was not in fact shaken, and that the science surrounding SBS has evolved
enough to change the course of Roberson's case.
"The prior medical understanding was that a specific set of symptoms could be
viewed together as categorical proof of SBS/AHT," Sween wrote. "More
specifically, in 2002-2003, when Robert was tried, the medical community
invited doctors to infer conclusively that a child had been violently shaken
from the presence of 3 symptoms: retinal hemorrhaging, subdural
hematoma/hemorrhaging, and edema or brain swelling."
Roberson is scheduled to be executed on Tuesday, June 21. As we go to press,
he's still awaiting a response from the trial court and CCA. Should his latest
efforts be denied, Roberson will be the 7th Texan executed this year and the
538th since Texas reinstated the death penalty in 1976.
(source: Austin Chronicle)
*****************
Texas is scheduled to execute this man in 6 days - but 4 experts say he was
convicted based on junk science
The scientific evidence was conclusive, doctors told a Texas jury in 2003:
capital murder defendant Robert Roberson had violently shaken his 2
1/2-year-old daughter to death.
13 years later - and just days before Roberson is scheduled to be executed - 4
medical experts are now claiming that the scientific theory used to convict him
has been thoroughly debunked.
Roberson, 49, is the next death row inmate in America scheduled to be executed,
and will go to the death chamber June 21. He was sentenced to death in 2003 for
the murder of his daughter, Nikki Curtis.
Last week, he filed an application for a writ of habeas corpus - essentially an
appeal to stay his execution and be given a new hearing - to the Texas Court of
Criminal Appeals, the highest criminal court in the state. A decision is
expected within days.
At the time of Roberson???s trial, doctors believed that certain symptoms in a
child could conclusively prove they were violently shaken or abused, based on a
theory known as Shaken Baby Syndrome. But in the last decade, the 4 experts who
submitted affidavits as part of his appeal say, there's been a sea change in
the scientific understanding of the issue.
Now his best last hope to postpone an execution and get a new hearing is Texas'
junk science law, which guarantees defendants a new trial if they can prove
they were convicted based on scientific evidence that has since been
discredited. It's seen as one of the most progressive laws in the country of
its kind.
Roberson, whose lawyers say suffers from "severe limitations in intellectual
functioning," was Nikki's biological father but essentially shared custody with
the parents of Nikki's mother, whom she had lived with for the 1st 2 years of
her life. He brought her home from her grandparents house in Palestine, Texas,
on the evening of January 30, 2002, and put her to bed. Early the next morning,
he was woken up by her crying, and found that she had fallen on the floor. She
seemed OK, he told investigators, so he put her back in her bed and went to
sleep. When he woke up again a few hours later, she was blue and barely
breathing. Roberson rushed her to the hospital, and she was declared dead the
next day.
Prosecutors dismissed Roberson's account, his lawyers say, and instead charged
him with murdering his daughter by shaking or beating her. At the time, most
doctors believed that they could determine that a child could be diagnosed with
Shaken Baby Syndrome based on 3 symptoms: retinal hemorrhaging, subdural
hematoma/hemorrhaging, and edema, or brain swelling. Roberson's jury was told
that because Nikki had signs of all 3, she must have been abused.
The defense didn't contest that explanation or call any medical experts. On
February 14, 2003, the jury convicted Roberson and sentenced him to death.
Now, however, a growing group of scientists disagree with this method of
diagnosing Shaken Baby Syndrome. Research has shown that the same symptoms can
be caused by other natural or accidental causes, the four experts who reviewed
Roberson's case write. They present a range of possible causes for Nikki's
death that were not explored during the trial: meningitis due to an ear
infection; an injury before Roberson arrived; a short fall like the one he
described or a congenital condition.
"The medical personnel in this case seemed to adopt the presumption that child
abuse was the root cause from the outset, a presumption that appears to have
imposed a cognitive bias that prevented them from investigating all reasonable
possible causes of death either before or after her death," wrote Dr. Harry
Bonnell, a forensic pathologist.
Notably, the experts - who also include 2 other doctors and a professor of
mechanical engineering - agreed that "it is impossible to shake a toddler to
death without causing serious neck injuries - and Nikki had none," the appeal
states.
Across the country, there are several hundred people in prison for murder
convictions based on Shaken Baby Syndrome, L.A. Weekly reported, even though
the latest scientific findings would undermine their cases. The American
Academy of Pediatrics now doesn't even use the term "shaken baby syndrome,"
based on an understanding that its effects are not only caused by shaking. (A
smaller contingent of doctors, however, still believe the kind of evidence used
to convict Roberson is conclusive.)
The prosecution in Roberson's case also originally charged him with sexually
assaulting Nikki, and several witnesses talked about that theory in front of
the jury. But no evidence was presented that any sexual assault took place, and
the prosecution dropped the charge at the last minute. Roberson's lawyers argue
that was highly prejudicial. "The State used this rank speculation to drive
home its view that Robert was not just a poor, mentally impaired father
struggling with sobriety, but a deviant - capable of raping and brutally
shaking his own daughter to death," they write.
Gretchen Swenn, Roberson's attorney, declined to comment while the case is
being considered by the court.
Last year, Roberson asked the U.S. Supreme Court to remove his previous
lawyers, James Volberding and Seth Kretzer, alleging that they had failed to
adequately represent him in his appeals. The justices declined to hear his
case.
That means that this appeal is most likely Roberson's last chance at a stay of
execution. He has an application for clemency pending at the Texas Board of
Pardons and Paroles, but clemency for Texas death row inmates is exceedingly
rare.
The state has not yet filed a response to Roberson's appeal. The Court of
Criminal Appeals is expected to rule on his case in the next few days.
"When the trial record is viewed through the lens of current science and
evidence-based medicine, it is clear that he is innocent of capital murder,"
Roberson's appeal states.
(source: fusion.net)
**********************
Executions under Greg Abbott, Jan. 21, 2015-present----19
Executions in Texas: Dec. 7, 1982----present-----537
Abbott#--------scheduled execution date-----name------------Tx. #
20---------June 21------------------Robert Roberson-------538
21---------July 14------------------Perry Williams--------539
22---------August 19----------------Ramiro Gonzales-------540
23---------August 23----------------Robert Pruett---------541
24---------August 31----------------Rolando Ruiz----------542
25---------September 14-------------Robert Jennings-------543
26---------October 19---------------Terry Edwards---------544
(sources: TDCJ & Rick Halperin)
**************
Texas Man Escapes Death Sentence in Police Chief's Murder
The killer of a small-town Texas police chief escaped the death penalty on
Wednesday after a jury could not reach agreement on his punishment.
David Risner, a 59-year-old former police officer, will automatically be
sentenced to life without the possibility of parole. He was convicted last
Monday in the 2014 shooting death of Little River-Academy Police Chief Lee
Dixon.
After hearing testimony for 5 days in the sentencing phase of Risner's trial, a
Bell County jury deliberated for more than four hours before announcing it
could not agree to sentence Risner to death.
"He's going to die in prison; we're going to take that home," Bell County
Assistant District Attorney Nelson Barnes said after the sentencing. "We only
hope he doesn't hurt someone in prison."
Almost 2 years ago, on June 19, 2014, Dixon arrived at Risner's house a little
after 5 p.m. to investigate a complaint. The 2 talked for a few minutes, but
when Dixon went to cite Risner for a class C misdemeanor, things escalated.
In a dashcam video played during the trial's closing arguments, the courtroom
heard Dixon call out to Risner in an increasingly frantic voice as Risner
brought a shotgun to the screen door: "David, show me your hands! Show me
them!"
A gunshot sounded, and the shouting ceased. Another shot rang out a few seconds
later.
Risner called 911 himself, and a sheriff's deputy arrived to find Dixon dead on
the front porch, according to an arrest affidavit. In court, prosecutors showed
an autopsy photo of Dixon, missing almost half of his face.
"What you did because you had a bad day was horrible, horrible," Lee Dixon's
wife, Mary, said through tears to Risner after the sentencing. "I'm sorry, I
just cannot forgive you."
In the 1990s and early 2000s, Risner served as a law enforcement officer in
several departments east of Dallas. He was active in his church and described
as a generous man.
Later, he took a contract job in Baghdad during wartime.
"David came back from Iraq a different man, a broken man," said Donna Risner,
his wife. "It was hard for him to concentrate. It was hard for him to sit
still. I heard him tell a doctor once it was like there were fire ants in his
brain."
Both prosecutors and defense attorneys agreed that Risner suffered from
post-traumatic stress disorder and a traumatic brain injury. Multiple
explosions rocked the compound where he worked as a security supervisor in
Iraq, at least once blowing out the windows of his room.
The defense argued those disorders were the cause of the shooting, and because
of that, Risner shouldn't receive the death penalty.
"He didn't choose to have these conditions," said Russ Hunt, Jr., Risner's
attorney. "These conditions are a result of him serving his community."
Prosecutors said Risner couldn't use PTSD or a brain injury as an excuse
because millions of people are affected by these conditions.
"A shotgun to the face is not the result of PTSD, and it is not the result of a
brain injury" Assistant District Attorney Shelley Strimple said. "There's no
excuse for blowing a man's face off."
Even with the lesser sentence, Risner will still die in prison, Hunt said. He
only asked that his client be spared from execution.
"We're not asking for a pass," he said. "David Risner needs to be punished for
what he's done."
Throughout the day Wednesday, David Risner smiled broadly at his wife and son
in the courtroom and wiped tears from his eyes during discussion of his friends
and family. When talk focused on Dixon, his face became still and unreadable.
Mary Dixon cried quietly and often. Several times, she left the room in tears.
In a plea to the jury to give her husband a life sentence over death, Donna
Risner said, "I want David any way I can have him."
"How bad do you think Mary Dixon wants Lee?" Barnes asked on cross-examination.
In his closing argument, he held Mary's hand as she sobbed and turned the jury.
"She would walk [Risner] out of this courtroom for just 5 minutes with Lee," he
said.
In a death penalty sentencing, jurors must unanimously agree that the defendant
will pose a future danger to society and that nothing in the defendant's
background or character warrants the lesser sentence.
The defense pointed to a doctor's evaluation of Risner that said he was
low-risk for future danger. Prosecutors said his multiple altercations with
Bell County jail staff show that isn't the case.
Since his arrest almost 2 years ago, Risner has been in altercations with jail
staff over his medication and his laundry, defense attorney Jeff Parker said.
He said jail staff was able to handle it easily both times, indicating the
prison system would be able to control Risner.
The prosecutors have also pointed to Risner's several run-ins with law
enforcement before Dixon's death but after Iraq as evidence that he should
receive the harshest punishment.
He fired a shot above an officer's head in 1 incident and told a dispatcher he
would kill the officer if he ever returned to his home. Years later, he became
argumentative with an officer after a traffic stop, and officers found a rifle
in his trunk.
"He's no different today than when he killed Lee Dixon," Barnes said. "He's
still going to hate cops, and he's still going to hate authority."
Hunt argued that Risner is only a danger when he has guns: "Is he going to have
any guns in prison? No."
The defense focused on Risner's behavior before Iraq to justify a life
sentence. Hunt pointed to several examples where Risner gave money or even the
title to his truck to strangers in need, and the Risners created a Sunday
school program at their community church. In 1992, he was named officer of the
year for the Van Zandt County Sheriff's Department.
"Underneath the David Risner that [killed Dixon] ... there is a good cop,"
Parker said. "You need to judge his whole life, not just the worst part of his
life."
The last death penalty trial in Bell County was in 2007, when Richard Tabler
was sent to death row, Barnes said. There have been 3 death sentences in Texas
this year.
(source: Texas Tribune)
******************
Judge on Top Texas Court Questions Death Penalty's Fairness
Texas' highest criminal court should consider whether the death penalty is
being fairly applied and should still be constitutional, one of the nine judges
on the all-Republican court wrote in a dissenting opinion issued Wednesday.
Judge Elsa Alcala, who was appointed to the Texas Court of Criminal Appeals in
2011 by then-Gov. Rick Perry, agreed with the court's decision to order a lower
court to consider overturning the conviction of Julius Murphy, who was
sentenced to death for the 1997 killing of 26-year-old Jason Erie. However, in
a dissenting opinion she challenged the court's decision to reject, without
elaboration, Murphy's lawyers' contention that "evolving standards of decency"
show the death penalty should be deemed unconstitutional.
"In my view, the Texas scheme has some serious deficiencies that have, in the
past, caused me great concern about this form of punishment as it exists in
Texas today," Alcala wrote.
She wrote that the court has been ignoring similar claims from other inmates as
a matter of routine without regard for "more current events," and said Murphy's
appeal "has presented arguments that are worthy of this court's substantive
review."
The court historically has shown little sympathy for condemned inmates,
although Alcala has been critical of some past rulings. It is the last state
judicial stop for condemned prisoners in Texas, which executes more prisoners
than any other state - 537 since 1982.
In Murphy's case, the appeals court ordered the trial court to resolve Murphy's
appeal and deliver its findings on challenges alleging that prosecutors
improperly withheld evidence showing that two key witnesses were pressured into
testifying against him and that one of the witnesses gave false testimony.
Murphy's attorneys argued that the U.S. executes fewer people than it used to,
that more states have decided to abolish or to not use the death penalty, and
that delays in carrying out death sentences mean prisoners are kept in solitary
confinement for excessive lengths of time, which amounts to cruel and unusual
punishment.
They also questioned whether race has resulted in a disproportionate number of
minority inmates on death row.
Murphy is black, like 44 percent of the 246 Texas death row inmates. As of Jan.
1, 1,227 of the country's 2,943 condemned prisoners were black, or 42 percent
of them. Hispanics, meanwhile, make up 27 percent of Texas' death row inmates
and 13 percent of the nation's.
"Given both state and federal case law and the history of racial discrimination
in this country, I have no doubt that race has been an improper consideration
in particular death-penalty cases, and it is therefore proper to permit
(Murphy) the opportunity to present evidence at a hearing about the specifics
in his case," Alcala wrote.
Murphy, 37, was convicted of killing Erie, who was attacked in September 1997
after his car broke down near his father's house in Texarkana. Murphy was
scheduled to die last November but the appeals court gave him a reprieve. The
same court stepped in to halt his scheduled lethal injection in 2006.
Alcala was elected to a full 6-year term on the criminal appeals court in 2012.
(source: Associated Press)
CONNECTICUT:
Convicted Killer Is 1st Death-Row Inmate Resentenced to Life
1 of 2 men sentenced to death for the slayings of a mother and her 2 daughters
during a 2007 home invasion in Connecticut has been resentenced to life in
prison.
Steven Hayes is the 1st of 11 death-row inmates to be resentenced since the
Connecticut Supreme Court ruled in August that their sentences violated the
state constitution's prohibition on cruel and unusual punishment.
State lawmakers abolished Connecticut's death penalty in 2012, except for those
already sentenced to death.
A judge on Wednesday imposed six consecutive life sentences on Hayes for the
murders of Jennifer Hawke-Petit and her daughters, 17-year-old Haley and
11-year-old Michaela, in Cheshire. Hawke-Petit's husband and the girls' father,
Dr. William Petit, was badly beaten but survived.
He didn't immediately respond to a message seeking comment Wednesday.
(source: Associated Press)
PENNSYLVANIA:
Johnstown judge allows death penalty option in retrial of 2004 Hollidaysburg
slaying
A federal judge in Johnstown has upheld a ruling allowing prosecutors to seek
the death penalty against a man accused killing a woman more than a decade ago.
U.S. District Judge Kim R. Gibson rejected a defense attorney's argument last
week that a lower court had wrongly ruled against Paul Aaron Ross, according to
an Altoona Mirror report. The judge also denied any further hearings at the
District Court level.
Ross is charged in the 2004 death of 26-year-old Tina Miller, whose body was
found partially submerged and bound with duct tape at Canoe Creek State Park in
Hollidaysburg.
Ross won a retrial after an appeals court ruled his attorney didn't have enough
time to fully prepare a defense.
Ross' death penalty attorney, Thomas Hooper, wasn't immediately available for
comment.
(source: Associated Press)
**************
Killer avoids death penalty for Craigslist car deal shooting
A Reading man avoided the possibility of being sentenced to death after he
admitted Wednesday to the fatal shooting of an Allentown businessman during a
Craigslist car deal.
Tyrell Young pleaded guilty to 3rd-degree murder, a person not to possess a
firearm and receiving stolen property in connection with the April 2014 killing
of 41-year-old Eric Ervin in East Allentown.
Prosecutors had said they would seek the death penalty against Young if he were
convicted of 1st-degree murder.
Under the deal, Young was instead sentenced to 30 to 60 years in state prison.
Young was on parole at the time of the murder for a Northampton County
carjacking, and will also have to serve the remaining nine years in that case.
Judge James Anthony recommended Young not be paroled at all, and serve the
entire 60 years in prison.
The sentence came after a handful of Ervin's family members, most carrying
photographs, tearfully described the gentle giant taken so suddenly from their
lives.
Richard Ervin has been counting the days since Eric, his first-born son, was
killed -- 657 days as of Wednesday. When the elder Ervin woke up on Wednesday,
he thanked God he wouldn't have to count anymore since Young would be pleading
guilty.
"Then I realized, I'll have to count till I'm gone," he sobbed. "I miss him so
much. I don't know how to go on."
Ervin's mother, Linda, wore a T-shirt from her son's business to court. She
spoke through sobs as she described the earlier death of her daughter, Crystal,
and then the stunning blow of Eric's murder.
Linda Ervin said she was able to say good-bye to her daughter, but never had
the chance with Eric.
"Why didn't you let my son go?" Linda Ervin asked Young. "Why you had to do
this, I don't understand. ... I hope you rot. ... You have devastated us. We're
destroyed."
Young apologized to the family, and said there was a confrontation before the
shooting but that he wasn't using that as an excuse.
Defense attorney Earl Supplee said Young suffers from paranoia, and brought a
gun to the car deal after Ervin insisted on Young paying cash.
Young "lost it" in the trailer and shot Ervin, Supplee said.
Prosecutors said Young shot Ervin the night of April 8, 2014, during a deal to
purchase Ervin's BMW. Ervin's body was found early the next morning at Aces
High Auto Detailing, his business in the 600 block of Nelson Street in
Allentown.
The Lehigh County Coroner's Office said Ervin died of a gunshot wound that
entered his shoulder and exited his neck, ruling his death a homicide.
Ervin's girlfriend reported him missing at 1 a.m. April 9, 2014; his body was
found in a trailer at his business and a shell casing was recovered at the
scene.
After Ervin's body was discovered, police put out an alert for a silver BMW.
The car was stopped in Reading and Young was driving, police said.
Young's defense attorneys said at trial they would have introduced evidence of
Young's mental health diagnosis: schizoid personality disorder, paranoia,
depressive personality traits.
Supplee said the plea deal was the appropriate resolution in the case.
(source: lehighvalley.com)
DELAWARE:
Judicial Override in Law Grad's Death-Penalty Appeal Eyed by High Court
During oral arguments Wednesday, Delaware's chief justice pressed a public
defender on his argument that the state's death-penalty statute is
unconstitutional because it allows judges to override juries' findings of fact
in the sentencing phase.
The statute, Section 4209 of the Delaware Code, had come under scrutiny after
the U.S. Supreme Court's January decision in Hurst v. Florida struck down a
capital-sentencing scheme in Florida, which gave judges the final say in
whether to impose a sentence of death.
In an 8-1 decision, the nation's high court ruled in Hurst that the "Sixth
Amendment requires a jury, not a judge, to find each fact necessary to impose a
sentence of death."
On Wednesday, Santino Ceccotti, an assistant public defender in the appellate
unit, told the state Supreme Court en banc in Dover that Delaware's statute
suffered from the same constitutional infirmities as the Florida law because it
allows a judge to independently weigh aggravating and mitigating factors after
the jury makes its own sentencing recommendation based the same findings.
The arguments came in a test case involving Benjamin Rauf, a Temple
University's Beasley School of Law graduate.
The Delaware case is captioned Rauf v. State.
Rauf, who graduated from law school in 2015, was charged in the Aug. 23, 2015,
killing of a classmate, Shazim Uppal, that took place in a parking lot in
Hockessin. Law enforcement officials have said the murder was the result of a
drug deal gone bad.
Prosecution of his case has been delayed under an order of Superior Court
President Judge Jan R. Jurden, who stayed all capital case trials in the First
State in the wake of the Hurst decision. Rauf is being held without bail, a
Department of Justice spokesman said.
Delaware's death-penalty law, Ceccotti argued, allows a judge to make factual
determinations that can enhance a sentence in capital cases and relegates the
jury's involvement to the kind of "advisory" role that was found to be
unconstitutional in Hurst.
"The most basic tenet of the Hurst decision is that fact-finding subjecting a
defendant to the death penalty must be made by a jury," he said. "That does not
occur in this state."
But Chief Justice Leo E. Strine Jr. led a barrage of questioning from the bench
challenging the idea that Delaware juries are deprived of the ability to make
the initial factual finding that makes a defendant death-eligible.
"Isn't the question ... who, constitutionally, has to make that judgment in the
1st instance," Strine asked, referring to the jury's weighing of aggravating
and mitigating factors.
The discussion sparked a follow-up from Justice Randy J. Holland, who indicated
that the jury's initial finding of at least 1 statutory aggravator constituted
the factual finding necessary for the court to proceed with a death sentence.
"As I understood your argument on Hurst, it was relying on anything that's
necessary prior to the imposition of death, and in Delaware, prior to the
imposition of a death sentence, you have to find the aggravators outweigh the
mitigators," the justice said.
Holland's statement aligned with the position of state prosecutors seeking to
uphold the statute, who in their briefs tried to differentiate Delaware's law
from Florida's sentencing scheme.
Deputy Attorney General Sean P. Lugg said Delaware's law is consistent with
Supreme Court precedent laying out the elements required to impose a death
sentence. The requisite "overt balancing and weighing process," he said, is not
required to be done solely by a jury.
"The element here that elevates the availability - and that's important - the
availability of the death penalty to a sentencing judge is the finding,
unanimously and beyond a reasonable doubt, of the existence of that statutory
aggravator," Lugg said.
"Thereafter, there is a legislative determination that a judge needs to be
involved."
A final ruling from the court is expected sometime within the next month to a
case that has sparked national interest since the state Supreme Court in late
January agreed to hear the case at the request of the Superior Court in the
wake of the Hurst decision.
Three amici groups have filed briefs in the case, all arguing that Delaware's
statute is unconstitutional. Meanwhile, all capital cases have been stayed, and
Delaware lawmakers have suspended an effort to repeal the death penalty, both
pending a decision from the high court.
(source: delawarelawweekly.com)
OHIO:
Prosecutors look into cellphone of Cleveland quintuple homicide suspect facing
death penalty
Forensic scientists will review cellphone data of the man facing a death
sentence in a 2014 quintuple homicide on Cleveland's East Side.
James Sparks-Henderson, 20, appeared in court Wednesday as attorneys settled
confusion over how his cellphone data would be preserved and copied.
Defense attorney Fernando Mack filed a motion to preserve the accused shooter's
cellphone as evidence. In order to extract the data necessary to study
Sparks-Henderson's activity leading up to the shooting incident, however,
forensic scientists will have to dismantle the phone.
After hearing testimony from JoAnn Gibb, a forensics expert with the Ohio
Bureau of Criminal Investigation, Mack agreed that a copy of the phone's data
chip would be sufficient, even though the phone itself may not be salvageable.
Prosecuting attorney Blaise Thomas told Cuyahoga Common Pleas Judge John P
O'Donnell that the state's forensics experts could deliver Sparks-Henderson's
defense team a copy of the cellphone data as soon as it is extracted.
Defense attorneys have retained their own forensic cellphone expert to review
the state's work.
Sparks-Henderson, of Shaker Heights, was indicted on capital murder charges in
April. He is accused of firing into a home on East 93rd Street on Nov. 21,
2014. The gunfire took the lives of four people inside, prosecutors say, along
with an unborn child.
The shooting led to the deaths of Lemon Bryant, 60, Shaylona Williams, 17,
Ja'rio Taylor, 18, and Sherita Johnson, 41. Johnson's unborn son, Juwan, was
also killed.
After a plea deal fails to materialize, Cuyahoga County Prosecutor Timothy
McGinty is now seeking the death penalty against a man accused of a quintuple
homicide in May 2014.
O'Donnell did not set a date for trial, although a September starting date was
discussed during the hearing. Another pretrial hearing was scheduled for June
23 at 11 a.m.
(source: cleveland.com)
_______________________________________________
A service courtesy of Washburn University School of Law www.washburnlaw.edu
DeathPenalty mailing list
DeathPenalty@lists.washlaw.edu
http://lists.washlaw.edu/mailman/listinfo/deathpenalty
Unsubscribe: http://lists.washlaw.edu/mailman/options/deathpenalty
