May 19 TEXAS: URGENT ACTION APPEAL 18 May 2007 UA 118/07 Death penalty / Legal concern USA (Texas) Cathy Lynn Henderson (f), white, aged 50 Cathy Henderson is scheduled to be executed in Texas on 13 June. She was sentenced to death in May 1995 for the murder of a three-and-a-half-month-old baby, Brandon Baugh, in January 1994. On the morning of 21 January 1994, Brandon Baugh's parents left him with Cathy Henderson, who was the daily caregiver, at her home in Pflugerville, near Austin, Texas. When the child's mother returned to collect him later in the day, both he and Cathy Henderson had disappeared. The FBI arrested Cathy Henderson in Kansas City, Missouri, on 1 February 1994. Cathy Henderson admitted that she had killed the child, but stated that it had been an accident, which she has maintained ever since. She said that she had dropped the baby and that he had struck his head on a concrete floor. She said that after her efforts to resuscitate him had been unsuccessful, she had panicked, buried the baby's body and fled to Missouri, her native state. After the body was located on 8 February, Cathy Henderson was charged with capital murder. Under the Texas penal code, the murder of a child under six years old is punishable by the death penalty. The jury heard expert opinion that the head injuries sustained by the baby could not have been the result of an accidental fall from the defendant's arms. Dr Roberto Bayardo, who conducted the autopsy, stated that the nature of the injuries ''proved'' that Cathy Henderson had deliberately murdered Brandon Baugh by a blow to the head. For example, he said that the baby would have to have fallen ''from a height higher than a two-storey building'', or to have been ''involved in a motor vehicle accident'' in order to have sustained the head injury in question. Dr Sparks Veasey suggested that the death had occurred as a result of ''the child's head impacting in an extremely forceful manner a blunt surface -- a floor, counter top, a desk top, a wall''. The prosecution provided no crime scene evidence to support such hypotheses offered by its experts. The analysis of the amount of ''force'' necessary to break or shatter an object, including a skull, requires expertise in the sciences of physics and engineering, rather than medicine, and this has led to the science of ''biomechanical'' analysis. Prior to the trial, the defense lawyers had sought funds to hire an expert to conduct a biomechanical investigation of Cathy Henderson's claim that the baby's death had been accidental. The request was denied. The jury convicted Cathy Henderson of capital child murder and after finding that she would pose a danger to society if allowed to live, voted for execution. In an appeal just filed in the Texas Court of Criminal Appeals, Cathy Henderson's current lawyers point out that the biomechanical analysis of infant head trauma has developed substantially in the dozen years since her trial. With accompanying reports from four experts, the appeal argues that the trial of Cathy Henderson would today be conducted against a fundamentally different scientific landscape than existed in 1995. For example, in his report, Dr Peter Stephens states that ''biomechanical consultation and testimony is essential to the understanding of any impact injury to the head, and is mandatory for any case proceeding to litigation, civil or criminal---- I would not contemplate assigning a cause and manner of death in any controversial case involving head injury without obtaining, or recommending consulting, a biomechanical evaluation.'' Dr John Plunkett, a forensic pathologist with an expertise in infant head trauma, states that while he agrees with the experts at trial that an impact injury caused Brandon Baugh's death, Dr Bayardo's conclusions were ''wrong'' and that he had ''strayed from his area of medical competence and expertise when he opined about the amount of 'force' sustained by Brandon Baugh, and opined that this 'force' could not have been sustained accidentally''. Dr Plunkett notes that the trial transcripts indicate that ''none of the medical witnesses in Ms Henderson's trial understood [the science of biomechanics]''. Dr Plunkett states that he has reviewed at least two cases of accidental falls of less than four and half feet involving infants that ''caused fractures virtually identical to Brandon's''. Dr Stephens concurs, stating that ''since 2000, physicians have increasingly recognized that lethal injury to the infant can, and does, occur from an accidental fall, even of a short distance It is simply incorrect to state that only a fall from a bunk bed, balcony, or upper story window can cause such an injury. Forensic pathologists, biomechanical scientists and many pediatricians now agree that such comparisons are without scientific merit and should not be made.'' In her report on the case, Dr Janice Ophoven notes: ''In the past, the characteristics of a fracture of the type seen in Brandon were assumed to denote an abusive injury. However, current scientific experience reflects a more conservative analytical approach to skull fracture evaluation. The nature of the fracture itself cannot be used to determine whether the injury is due to an accident or inflicted injury''. Fourthly, Dr Kenneth Monson, a leading biomechanics expert, states that the 'force' at which Brandon Baugh's skull would have hit the floor under Cathy Henderson's version of events was enough to cause the injury that killed him. The accidental death of Brandon Baugh, he states, ''cannot be ruled out given the current state of knowledge''. The large number of errors discovered in capital cases in the USA over recent years may have been one of the factors contributing to a lessening in public support for this irrevocable punishment. Science has played its part in revealing such errors. For example, in 15 of the 124 cases of prisoners released from death rows since 1973 on grounds of wrongful conviction, DNA testing played a substantial role in establishing the inmate's innocence. In each of these cases at the original trial, the prosecution had argued, and the jury or judge had found, that the defendant was guilty beyond a reasonable doubt. In some cases, the state had supported its theory of guilt with expert evidence. For example, in Texas, investigators concluded that a house fire that killed two people in 1986 was arson, and Ernest Willis was sentenced to death. Post-conviction investigations using modern methods concluded that there was no evidence of arson, and Willis was released after more than 15 years on death row. In Mississippi, Sabrina Butler was acquitted at a retrial in 1995, five years after she was sentenced to death for the murder of her nine-month-old child. It is now believed that the baby may have died either of cystic kidney disease or from sudden infant death syndrome. Since the USA resumed executions in 1977, 1,076 prisoners have been put to death, 11 of them women. There have been 393 executions in Texas, three of them of women. There have been 19 executions in 2007, 14 of them in Texas. Amnesty International opposes the death penalty unconditionally. Today, 129 countries are abolitionist in law or practice. The UN Safeguards Guaranteeing Protection of the Rights of those facing the Death Penalty state that ''capital punishment may be imposed only when the guilt of the person charged is based upon clear and convincing evidence leaving no room for an alternative explanation of the facts.'' RECOMMENDED ACTION: Please send appeals to arrive as quickly as possible, in your own words (please include Cathy Henderson's inmate number, #999148) - expressing sympathy for the parents of Brandon Baugh, and explaining that you are not seeking to downplay the suffering they will have endured as a result of their child's death; - opposing the execution of Cathy Henderson; - noting the recent conclusions from experts, including experts in biomechanical analysis, not heard at the trial, supportive of Cathy Henderson's claim that the baby's death was the result of an accidental fall; - noting that developments in science have been one of the reasons why numerous wrongful capital convictions have been uncovered in the USA in the past three decades; - calling for Cathy Henderson to be granted clemency. APPEALS TO: Rissie Owens Presiding Officer Board of Pardons and Paroles Executive Clemency Section 8610 Shoal Creek Boulevard Austin, TX 78757 Fax: 1 512 463 8120 Salutation: Dear Ms Owens Governor Rick Perry Office of the Governor P.O. Box 12428 Austin, Texas 78711-2428, USA Fax: 1 512 463 1849 Salutation: Dear Governor PLEASE SEND APPEALS IMMEDIATELY. Check with the AIUSA Urgent Action Office if sending appeals after 13 June 2007. 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: uan at aiusa.org http://www.amnestyusa.org/urgent/ Phone: 202.544.0200 Fax: 202.675.8566 ---------------------------------- END OF URGENT ACTION APPEAL ---------------------------------- NEW JERSEY: Bill to end death penalty shuffled off to committee In the New Jersey Legislature, life and death is a matter of dollars and cents. After being approved by the Senate Judiciary Committee, a bill to abolish the state's never-used death penalty law has been sent to the budget committee for an analysis of its impact on the state treasury. The move surprised both the bill's sponsor, Sen. Raymond Lesniak (D-Union), and the chairman of the judiciary committee, Sen. John Adler (D-Camden), who said immediately after his committee approved the bill on May 10 that it would go to the full Senate. The budget committee, Adler said with half a laugh, is "where bills go to die." Lesniak, who has been trying to repeal capital punishment for 3 years, called the budget committee review "another hurdle we have to overcome." "I wouldn't say it's ominous, but I would say it's not helpful," Lesniak added. Senate rules require any bill involving "an actual or potential appropriation or increased expenditure of $100,000 or more" to be sent to the Senate Budget Committee "for further fiscal study." Jim Manion, a spokesman for the Senate Democrats, said staffers in the nonpartisan Office of Legislative Services certified Lesniak's bill as requiring a fiscal analysis, thereby sending it to the budget committee "automatically." Opponents of the death penalty have used its cost as one of many arguments for repealing it. In 2005, New Jersey Policy Perspective, a liberal Trenton think tank, calculated that since the death penalty was reinstated in 1982, taxpayers had spent $253 million on capital trials and appeals that had executed no one. In January, a state study commission recommended abolishing capital punishment and replacing it with life without the possibility of parole. The commission also cited costs, along with evolving standards of decency, the emotional toll of endless appeals on victims' families and "the risk of making an irreversible mistake." "Although it is not possible to measure many of the cost savings that would result from eliminating the death penalty, these savings nonetheless exists," the commission said. It recommended using those savings to provide services to relatives of murder victims. But in a rebuttal prepared for Adler's committee, Robert Blecker, a professor at New York Law School, said the commission failed to consider that the death penalty provides an incentive for murderers to enter guilty pleas to avoid execution. "Each guilty plea saves the people hundreds of thousands of dollars" by eliminating the need for a trial, Blecker said. Lesniak said he did not see how further study would produce useful information. "I just find it incomprehensible," Lesniak said. "I don't think anyone is voting on this bill because it saves money." (source: Star Ledger) MARYLAND: Defense seeks to stymie death penalty Lawyers for a state prison inmate charged with murdering a correctional officer plan to argue at a hearing next week that prosecutors cannot legally seek the death penalty because Maryland has no approved execution instructions, a defense attorney said yesterday. The motion challenging the state's intent to seek the death penalty for Brandon T. Morris marks at least the 2nd such effort by defense lawyers in capital murder cases to gain leverage from a December Maryland Court of Appeals ruling that effectively put a moratorium on executions. The pretrial hearing is set for May 25 in Ellicott City, where the case was moved on a change of venue. Jury selection for Morris' trial is scheduled to start May 31, with opening statements expected June 11. Morris, 21, is charged with 1st-degree murder and other offenses in the slaying of Jeffery A. Wroten, 44, of Martinsburg, W.Va. Mr. Wroten, who worked at Roxbury Correctional Institution, was shot with his own gun while guarding Morris' room at Washington County Hospital in Hagerstown on Jan. 26, 2006. Morris had been admitted after having a sewing needle surgically removed from his right side. In March 2006, Washington County prosecutors filed a notice of intent to execute Morris if he is convicted. 3 months earlier, the state's highest court had ruled that parts of the written manual for Maryland's lethal-injection procedure hadn't been properly adopted and couldn't be used until the state's protocol for the procedure is either approved by a joint legislative committee or exempted by law from such a review. A bill that would have exempted the state from the review was voted down in a House committee this year. Morris' lawyers filed a motion May 2 to strike the state's notice of intent to seek the death penalty. They claimed that the December ruling had rendered the death penalty an illegal sentence. Washington County prosecutors countered in a filing that the Court of Appeals had invalidated only the protocols for administering a death sentence but did not strike down the death penalty. Defense attorney Arcangelo M. Tuminelli, of Baltimore, said the defense filed its motion after reading that the issue had been raised last month in the Harford County case of Kevin G. Johns, a prison inmate accused of strangling another inmate aboard a Division of Correction bus. Circuit Judge Emory A. Plitt has given lawyers until July 9 to file written arguments in that case. "No matter what, it's going to wind up being an appellate issue in any case in which someone might get the death sentence," Mr. Tuminelli said. Washington County Deputy State's Attorney Joseph Michael said that in light of the December ruling, "a motion of this form should be expected in every capital case." (source: Washington Times) NORTH CAROLINA: Hearing will be allowed on death-penalty protocol A Superior Court judge decided yesterday to allow an administrative hearing that will analyze whether the Council of State appropriately approved a new method for carrying out the death penalty. Attorneys representing several death-row inmates have questioned whether the Council of State - made up of Gov. Mike Easley and nine statewide elected officials - followed the appropriate process in approving the execution protocol in February. The new protocol says that a doctor would only observe the execution and later sign a death certificate. But attorneys for the Council of State tried to stop the administrative hearing, saying that Administrative Law Judge Fred Morrison doesnt hold jurisdiction over the matter. Judge Donald Stephens of Wake Superior Court said yesterday that the hearing can go forward, so long as he doesn't have to hear the same matters when either side appeals to his court. He also stipulated that defense attorneys cannot call any member of the Council of State to testify in the administrative matter. "I think that would be highly inappropriate," Stephens said. He has placed 5 scheduled executions on hold as state leaders try to figure out how to execute inmates while appeasing both a federal judge who has demanded that a doctor oversee the process and the N.C. Medical Board, which has said it could punish doctors who participate in an execution. (source: Associated Press)
[Deathpenalty] death penalty news----TEXAS, N.J., MD., N.C.
Rick Halperin Sat, 19 May 2007 02:51:16 -0500 (Central Daylight Time)
