[Deathpenalty] death penalty news----CALIF., IND., ALA., S. DAK., MISS.

[Rick Halperin]

Sept. 30



CALIFORNIA:

Judge says lethal injection ruling due in Nov


The judge who effectively shut down California's death row in February
said on Friday his ruling on whether the state's use of lethal injection
is legal would hinge on evidence of how alert an inmate is as the toxic
drugs take effect.

U.S. District Judge Jeremy Fogel said he would issue his ruling in early
November -- a decision that could have national consequences, as 37 U.S.
states use lethal injection to carry out death sentences.

Fogel said at the end of a 3-1/2-day hearing on California's lethal
injection procedure that he was concerned only with the narrow question of
whether a modified three-drug cocktail that would be used to execute
condemned inmates violated the constitutional ban on cruel and unusual
punishment.

At issue in the court challenge is whether condemned inmates would fee
excruciating pain from the drugs if they were not fully unconscious.

Fogel stopped the execution of Michael Morales in February to take up
claims by lawyers that California's death row inmates faced the
possibility of painful executions by lethal injection, instead of a swift
death the state claimed.

"There are a lot of issues that swirl around this case -- how people feel
about the death penalty, the rights of victims, victims' families -- all
of which are important, but the court has a very specific job to do,"
Fogel said.

"The critical question that the court has to look at is what evidence is
there that there's a problem with consciousness," Fogel said, adding he
aimed to issue a decision as soon as possible after November 1.

CONSCIOUSNESS AN ISSUE

Dane Gillette, a senior assistant California attorney general, told the
hearing the state's use of a 3-drug combination to execute condemned
inmates would result in "swift, constitutional execution."

But lawyers for Morales, on death row for the 1981 rape and murder of a
17-year-old girl, criticized the training of California's execution team.

Attorney John Grele said San Quentin State Prison's maintenance man was
responsible for controlling the rate at which lethal drugs were
administered to condemned inmates and that no member of the prison's
execution team had read its capital punishment procedures.

Guards at the prison typically attach 2 intravenous lines to condemned
inmates, one as a backup to assure a continuous flow of chemicals to
anesthetize, paralyze and then kill. California has 655 people on its
condemned inmate list, some there since the late 1970s.

Anesthesiologist Robert Singler, an expert witness for the state,
testified there was a "possibility" inmate Robert Massie was not fully
unconscious during his March 2001 execution.

Other states have grappled with the lethal injection issue since U.S.
Supreme Court Justice Anthony Kennedy in January ordered a hearing into a
Florida inmate's claim the method was so painful it violated the
Constitution.

In August, South Dakota's governor postponed the state's 1st execution in
59 years, ordering prison officials to review the state's lethal injection
protocol.

Earlier this month, a federal judge in Missouri ruled officials there had
yet to convince the court the procedure was not cruel and unusual. Federal
courts in Arkansas, Delaware and Ohio have also postponed executions until
lethal injection procedures are reviewed.

(source: Reuters)

****************

ATTORNEY: EXECUTION TEAM DIDN'T READ LETHAL INJECTION GUIDE


The individual who sets the rate that the drugs in California's lethal
injection procedure drip into the condemned inmate's vein is the
maintenance man at San Quentin State Prison, the attorney for condemned
inmate Michael Morales said today.

Attorney John Grele made the statement during the cross-examination of Dr.
Robert Singler, a Napa anesthesiologist called as an expert witness by the
attorney for the state of California.

"Were you aware of the fact that it is the maintenance man at San Quentin
that sets the drip rate," Grele said.

Singler answered that he knew that a member of the execution team set the
drip rate but he did not know what that individual's job was at San
Quentin besides being on the execution team.

Grele also told Singler that the execution team has not read the state's
written guide describing the steps of the lethal injection procedure.

"No team member has read the protocol," Grele said.

Grele's cross-examination came on the final day of a 4-day hearing held in
San Jose this week before U.S. District Court Judge Jeremy Fogel. Fogel
must determine if California's proposed lethal injection procedure is
legal or if it is an unconstitutional example of "cruel and unusual
punishment" because of the possibility that the condemned inmates could
experience excruciating pain if they are not fully sedated when the lethal
drugs are injected into their veins.

In February, Fogel effectively halted Morales' execution only hours before
he was scheduled to be strapped onto the gurney by ordering a "qualified
individual" be present in the execution chamber to monitor Morales' level
of sedation. State officials approached Singler and another
anesthesiologist but the pair ultimately declined to be present at the
execution on ethical grounds.

Morales is on death row for the 1981 rape and murder of 17-year-old Lodi
resident Terri Winchell.

Celebrity attorney Gloria Allred is attending today's hearing with members
of Winchell's family.

(source: Bay City News)

***************

CALIFORNIA ELECTIONS----Crime a Key Issue in Race for Top Lawman; Brown
and Poochigian battle over criminal justice credentials as they campaign
for attorney general.


His brow furrowed in concentration, Mayor Jerry Brown sat before a police
computer, tracking a parolee by global positioning satellite. It was a
chance to appraise the latest law-and-order technology he helped bring to
this city  and bolster his crime-fighting credibility as the Democratic
candidate for state attorney general.

300 miles south, his Republican opponent, state Sen. Chuck Poochigian of
Fresno, vowed at a Los Angeles conference on DNA policing that as attorney
general he would boost "CSI"-style forensics. He also jabbed at Brown,
noting that Oakland police failed for a year to nab a child molester
identified by DNA, allowing him to molest again.

Crime might trail education and illegal immigration in surveys of what is
important to Californians, but it still commands center stage in the race
for top state lawman.

In television ads and on the stump, Brown and Poochigian are warring over
criminal justice credentials and crime-fighting philosophies. Brown calls
Poochigian, a 3-term legislator, an extremist on the conservative right.
Poochigian labels Brown, a 2-term former governor and 3-time presidential
contender, an extremist of the liberal left.

Brown has reinvented himself in Oakland as a mayor unafraid to live in a
high-crime neighborhood and eager to support the needs of local police. He
now has endorsements from the California Police Chiefs Assn. and, in a
television ad playing around the state, ridicules Poochigian for voting in
2004 against legislation banning .50-caliber sniper rifles.

Poochigian and his campaign team aren't buying the 68-year-old mayor's
criminal justice conversion.

They've dubbed the Democrat a "fictional crime fighter" and focused on his
"Gov. Moonbeam" past: Brown's veto of the death penalty in 1977, the
recall of state Supreme Court Justice Rose Bird after she helped block
more than 60 executions, his opposition to the state Victims' Bill of
Rights, and lefty pronouncements on talk radio in the mid-1990s.

The Republican also has highlighted a spike in Oakland crime this year.
The city of 300,000 was hit by 111 murders in 9 months, a pace that by
year's end could double the 60 homicides that occurred in 1999, Brown's
1st year in office.

"He's promising to inflict the same punishment on California that he has
on the good people of Oakland," Poochigian said.

Brown concedes that he is troubled by Oakland's violent crime, much of it
related to gangs and drugs. But he also believes a more accurate
assessment compares his whole eight-year tenure to that of previous
mayors. If the statistics are sliced that way, serious crime has fallen
30% more in the Brown years than under his Oakland predecessors.

Poochigian's criticism, Brown says, is political rhetoric.

"I don't think he's ever been in the position of dealing with a police
force in an operations sense," Brown said. "He doesn't know the
challenges. What has Chuck Poochigian ever done?"

Poochigian remains little known outside the statehouse; 4 of 5 voters in
an August poll  the most recent survey data available  had no opinion of
him. And his own campaign has focused largely on Brown.

A lawyer and former top aide to two Republican governors, Poochigian has
in his dozen years in the Legislature forged a reputation as an affable
conservative popular on both sides of the aisle. During his last years in
the state Senate, he was vice chairman of the Public Safety Committee.

Poochigian was principal co-author of a law signed by the governor last
week that will help keep sexual predators behind bars longer and increase
parole supervision. He is also co-chairman of the campaign for Proposition
83, which would restrict where sex offenders can live after their release.

This year, he pushed through a law requiring authorities to track identity
theft crimes. But he failed to win approval of bills to boost penalties
for identity theft and "phishing," the use of e-mail to deceive consumers
into releasing private information.

Poochigian also helped fight a ballot measure in 2004 that would have
weakened the state's three-strikes law, and earlier this year he battled
legislation that would have placed a moratorium on capital punishment.

Fighting gun control is "not part of any agenda of mine," Poochigian said,
noting that he voted this year to authorize civil penalties for anyone who
creates a nuisance by using assault weapons or large-caliber rifles.
Poochigian has also sponsored legislation to boost penalties for criminals
who use guns.

Though an opponent of prison reformers  he says they coddle criminals
Poochigian was one of the few Republicans to support Gov. Arnold
Schwarzenegger's unsuccessful plan this year to buff up rehabilitation
efforts in state penitentiaries. But more than anything, Poochigian
fashions himself as a champion of crime victims.

After his recent speech to the lunchtime gathering of the Fifth Annual DNA
Awareness Educational Forum at Cal State L.A., he talked about the parade
of shattered loved ones he has watched come to the statehouse seeking
legislative help.

"I want to be known as the A.G. who is aligned with their causes," he
said.

Mike Reynolds, father of the three-strikes law and one of California's
most recognizable victims'-rights advocates, supports Poochigian, who is a
friend.

"We know Chuck Poochigian is solid on crime," Reynolds said. "The question
is: Do you roll the dice and take Jerry at his word that he's a born-again
crime fighter?"

Brown has had his work cut out for him in a city long shackled by
California's highest per capita murder rate.

Brown helped champion several high-tech initiatives at the Oakland Police
Department, among them GPS monitoring of high-risk parolees and a
"shot-spotter" system that triangulates the sound of gunfire to speed the
response to shootings. The fancy equipment arrived, Oakland Police Cmdr.
Pete Sarna said, because of Brown's commitment "to spend the money to do
what it takes."

A few of the basics have been tougher to come by. The city has a chronic
shortage of street officers. And the department has been criticized, as
Poochigian said, for letting DNA cases slip through the cracks.

Out in a squad car for yet another ride-along, Brown got a look at the
department's latest weapon against crime. An infrared camera system
mounted on the cruiser records licenses plates as cars pass by, and within
seconds a computer spits out an alert for any stolen vehicle. In the first
10 days of its use, police arrested 20 suspected car thieves.

People might not associate Brown's past with criminal justice, but during
his governorship the state's inmate population jumped 40%, he said. Brown
also boasts about having signed the first measure mandating prison for the
use of a gun in a crime.

He admits mistakes. In 2003, Brown testified before a state watchdog group
that he regretted signing a sentencing law a quarter-century ago that
replaced the use of parole boards to judge an inmate's readiness for
release with determinate, or fixed, sentencing.

Today the prisons are a revolving door, with 120,000 inmates leaving each
year  three-quarters of them destined to return. Though prisons don't fall
under the attorney general's purview, Brown says he would use the bully
pulpit to push for better education and skills training for inmates,
beefed-up drug treatment and tougher supervision outside the walls.

Poochigian contends that his opponent is disguising a "radical ideology"
with a phony crime-fighter's cape. Over the course of the campaign, he has
noted that Brown as governor pardoned 7 1st-degree murderers and in 1976
vetoed a bill to provide bulletproof vests for local law officers.

He also has cited Brown's 1990 pronouncements on Bay Area talk radio.
Brown called the war on drugs a scam, opposed the execution of "freeway
killer" William Bonin, described lethal injection as a "Nazi-style" form
of sanitized execution and suggested that banning capital punishment would
elevate society to a "higher state of consciousness."

"That somehow he can divorce himself from all that and serve in a way
that's fair to victims of crime and tough to the perpetrators is hard to
accept," Poochigian said.

Such talk rankles Brown as he glides along in the police cruiser.

Ronald Reagan pardoned 40 1st-degree murderers during his 2 terms as
California governor, Brown noted, all of them men or women who had served
their time and went on to live law-abiding lives outside.

And he may have vetoed state financing of bulletproof vests for local
police, but as governor, Brown signed a bill to buy body armor for the
California Highway Patrol.

As for his radio years, Brown said, it is a case of the medium as much as
the message.

"I was doing a talk show," he said. "There is a huge entertainment factor
in that. I'm not going to stand behind every remark I made."

(source: Los Angeles Times)

**************

LETHAL INJECTION HEARING ----Prisoner possibly conscious at death;
Testimony done; ruling possible in November


A federal court hearing on the constitutionality of California's lethal
injection methods wrapped up Friday after a surprising concession by the
state's medical expert that a murderer from San Francisco might have been
conscious while he was put to death in 2001.

Dr. Robert Singler, a Napa anesthesiologist, spent two days on the witness
stand in San Jose defending the state's newly revised execution procedures
against claims by a condemned murderer that flaws in the drug sequence and
its implementation could lead to excruciating pain.

Singler said prison doctors were probably observing involuntary-reflex
actions when they reported that some inmates appeared to be inhaling and
exhaling long after a barbiturate should have stopped their breath at the
start of their executions.

But Singler took a step back Friday when U.S. District Judge Jeremy Fogel
asked him about one of those inmates, Robert Lee Massie, executed in 2001
for the 1979 murder of a San Francisco liquor store owner.

According to execution logs at San Quentin State Prison, Massie, 59, was
injected with the barbiturate sodium pentothal at 12:20 am. on March 27,
2001, and with the paralytic drug pancuronium bromide a minute later, but
appeared to be breathing until 12:25 a.m. After 2 subsequent injections of
the heart-stopping chemical potassium chloride, he was pronounced dead at
12:33 a.m.

When Fogel asked about another apparent notation in the record -- that
Massie's heart rate rose to 160 beats per minute after the pentothal
injection -- Singler said the figure, if accurate, "raises a question of
whether or not this inmate was awake. I don't dispute that.''

Singler did not appear to be conceding that Massie had been aware as the
pancuronium bromide took effect. According to Singler and other witnesses,
the drug would create a terrifying feeling of suffocation.

But his acknowledgement that Massie might have been conscious contrasted
with the state's position that there was no evidence that any of the 11
inmates put to death by lethal injection at San Quentin since 1996 had
felt pain or been conscious for a prolonged period.

Fogel presided over the four-day hearing after issuing a stay of execution
in February to Michael Morales of Stockton, convicted of raping and
fatally battering 17-year-old Terri Winchell of Lodi in 1981. That ruling,
which Fogel issued after the state tried unsuccessfully to recruit doctors
to monitor Morales' level of unconsciousness, has in effect put executions
in California on hold.

Winchell's mother, Barbara Christian, attended Friday's session and told
reporters afterward that she resented the proceedings.

"I'm very angry that they are concerned that for five to seven minutes ...
(Morales) might feel some pain,'' she said, adding that she was looking
forward to attending Morales' execution.

In closing the hearings, Fogel said he realized that "other issues swirl
about this case -- how people feel about the death penalty, about the
rights of victims and of victims' families -- all of which are very
important. But this court has a very specific job to do.''

The judge told lawyers to submit a final round of written arguments by
Oct. 27 and said he would try to rule by early November on whether the
state's methods violate the constitutional ban on cruel and unusual
punishment. If he finds the system unconstitutional, he could order
changes or leave those decisions to the state.

One issue Fogel is apparently considering is the claim by Morales' lawyers
that executions at San Quentin are carried out in chaotic conditions that
invite disaster.

Mark Heath, an anesthesiologist who was the plaintiff's medical expert,
testified earlier in the week that the execution team has little training,
is misinformed about the drugs, mixes and injects them from a dimly lit
and overcrowded antechamber, can't see the prisoner clearly and would be
unable to hear any sounds of distress from inside the sealed death
chamber.

During Friday's testimony by Singler, the state's expert, Fogel read from
a federal judge's ruling this month upholding lethal injections in
Virginia. In that state, the ruling said, the executioner and the staffers
who attach the syringes have specific training and watch the prisoner from
inside the chamber, through holes in a curtain.

Some of those, including the clearer view of the prisoner, could be
improvements on California's system, Singler said.

Fogel also asked Singler about conducting the execution solely with a
large dose of sodium pentothal or another barbiturate, which would
eliminate the possibility of a conscious inmate suffering the sensation of
suffocation from the pancuronium bromide and the burning pain of potassium
chloride.

The proposed change has 2 drawbacks, Singler said: Death would take 20 to
40 minutes, at least twice the current average, and a rare inmate might
survive even a heavy dose of the barbiturate.

He said the possibility of accidents would be lessened by new procedures
that the state announced in March, after Morales' stay of execution.

The initial dose of sodium pentothal would be diminished, a change
recommended to officials by Singler, who said the previous dose might be
causing shock that would interfere with the effects of the other drugs.
After that injection, sodium pentothal would be infused steadily into the
prisoner's other arm to keep him unconsciousness throughout the execution.

(source: San Francisco Chronicle)






INDIANA:

Killer ineligible for death penalty


Accused serial killer Eugene Victor Britt, already serving a life sentence
for the murder of an 8-year-old Portage girl, is mentally retarded and
therefore not eligible for the death penalty.

Lake Superior Court Judge Salvador Vasquez ruled Friday that Britt, 49, of
Gary, met the definitions of mental retardation and substantial impairment
of adaptive functioning and dismissed the death penalty charges filed in
connection with 6 1995 homicides.

The judge also ruled Britt would not be subject to a sentence of life
without parole under Indiana law.

Britt was ready earlier this year to plead guilty to the 6 homicides and 1
rape and be sentenced to 6 life terms without parole. Lake County
Prosecutor Bernard Carter said he never authorized a plea agreement, and
the document never materialized. Carter on Friday defended his decision
not to go forward with the plea agreement and said he and his top advisers
would evaluate their options in light of Vasquez's ruling.

"Britt is not retarded. You can ask anybody in the jail," Carter said,
noting he interacts normally with correctional officers and other inmates
and was moved from his cell after he was caught flirting with women
through the window.

As for the withdrawn plea agreement, Carter said: "Britt deserves to die."

Vasquez said he relied more heavily on the testimony of defense witness
Denis Keyes, an associate professor of special education at College of
Charleston in South Carolina. Keyes has done research in the area of
mental retardation and the death penalty and has been involved in about
100 death penalty cases.

Keyes testified last week he thought Britt met the two-pronged legal
definition of mental retardation and substantial impairment of adaptive
functioning that would spare him the death penalty. Adaptive functioning
refers to skills that allow a person to care for himself, manage money,
hold down a job and make plans for the future.

Vasquez also reviewed a transcript of the testimony of Raymond Horn, a
clinical psychologist appointed by Lake Superior Court Judge pro tem
Thomas Webber Sr., to conduct an independent evaluation. Horn found that
Britt did not meet the definition of mental retardation in state law and
that he was not putting forth his best effort during the evaluation.

Britt's jury trial is scheduled to begin Oct. 10 in connection with the
homicide of Nakita Moore, 14, of Gary.

In November 1995, Britt confessed to police investigators that he killed
8-year-old Sarah Paulsen of Portage, who was strangled, and that he'd
killed several other women and girls.

Defense attorneys Gojko Kasich and John Maksimovich argued that the
confession should be suppressed, but Vasquez ruled it could be used as
evidence during the trial.

(source: Gary Post-Tribune)






ALABAMA:

Court upholds death sentence in killing of police officer


A state appeals court upheld Friday the death sentence given to Vernon
Madison for the 1985 slaying of a Mobile police officer.

Madison was convicted and sentenced to death three times for the slaying
of Officer Julius Schulte, who was shot to death when he answered a call
concerning a domestic dispute between Madison and his former girlfriend on
April 18, 1985.

The Alabama Court of Criminal Appeals rejected Madison's appeal, which
raised a number of issues, including that Madison did not receive adequate
representation at trial from his attorney. Madison is on his 2nd round of
appeals through the courts.

In another death penalty case, the appeals court ruled that Jeremiah
Jackson can't be executed for the April 15, 1996 shooting death of Vickie
Sides Carroll, a clerk at a Centreville convenience store, because he is
retarded. The court cited a recent Supreme Court ruling that prohibits the
execution of mentally retarded defendants.

Prosecutors and attorneys for Jackson had agreed to stipulate that Jackson
was retarded and should not be executed. As part of the agreement, Jackson
agreed to drop further appeals and accept a sentence of life in prison
without parole. But a Bibb County judge refused to accept the agreement
and the case was appealed.

The appeals court ruled that Jackson is retarded and ordered the lower
court to set aside the death sentence.

*****************

Appeals court reverses Dothan triple killer's death sentence


Ruling Jerry Jerome Smith is mentally retarded, an Alabama appeals court
reversed the Dothan man's death sentence for a 1996 crack-house shooting
that left 3 people dead.

The Alabama Court of Criminal Appeals on Friday ruled that Smith will
serve a life without parole sentence instead of facing execution. Recent
federal law prohibits the execution of mentally retarded prisoners.

Smith was convicted in the slayings of Willie James Flournoy, 40, of
Dothan, Theresa Ann Helms, 26, of Wicksburg, and David Lee Bennett, 29, of
Midland City. They were slain at a residence police described as a crack
house.

The appeals court considered testimony from forensic psychologist Dr.
Michael D'Errico, who previously testified that Smith was "mildly mentally
deficient." But D'Errico later said that, when provided with more
information, he determined Smith was "high functioning mentally retarded."

Smith's attorney, Aaron Gartland, told The Dothan Eagle for a story
Saturday he was pleased with the reversal. He said there was overwhelming
evidence that Smith was mentally retarded.

Houston County District Attorney Doug Valeska disagreed.

"He killed 3 people, and now he gets the least amount of punishment he can
get? 3 lives are worth more," Valeska said.

Smith shot Flournoy with a .22 caliber rifle at the back door of his
residence over a $1,500 drug debt. He then went inside the home and shot
Helms in the head as she attempted to flee, and then shot Bennett seven
times.

Valeska had testimony in the penalty phase of the trial aimed at showing
Smith's behavior was far beyond that of a mentally retarded person.

He pointed to evidence that Smith ran an interstate drug enterprise, was
able to handle money, knew the thought process of being deceptive in order
to avoid arrest, and was believed to have made statements in jail awaiting
trial that he would "get off" based on his plea of not guilty due to
mental disease or defect.

(source for both: Associated Press)






SOUTH DAKOTA:

Condemned inmate: Governor picks, chooses death-penalty laws


A death-row inmate argues that he should get to challenge his sentence
because state officials are inconsistent in following state laws dealing
with capital punishment.

But the state attorney general said Friday that the inmate is "dead
wrong."

Convicted child murderer Donald Moeller says Gov. Mike Rounds ignored one
death-penalty law and favored another when he temporarily delayed last
month's planned execution of Elijah Page. Page, 24, wanted to be executed
for his part in the 2000 kidnapping, torture and slaying of Chester Allan
Poage, 19, of Spearfish.

Rounds stopped Page's execution hours before it was to happen, explaining
that he could not allow prison officials and executioners to violate a
state law that requires the use of two drugs to kill inmates. Prison
officials had planned to use three drugs on Page, a protocol that is
common in many states.

Rounds' reprieve is set to expire July 1, giving the 2007 Legislature time
to decide if it wants to keep the 2-drug method of lethal injection or
change the procedure.

But Moeller said that a state law (23A-27A-20) limits a governor's
reprieves to 90 days in death-penalty cases. That would mean Page's
execution could be delayed no longer than Nov. 25, or a full six weeks
before the next legislative session.

Moeller argues that the 10-month reprieve does not comply with state law.

"Such a reprieve is clearly for a period of time longer than that allowed
by statute, and in and of itself further evidence of the ad hoc manner in
which capital punishment is administered in South Dakota," Moeller's
court-appointed lawyer, Mark F. Marshall, wrote.

"The state has violated his (Moeller's) federally protected right to due
process of law by disregarding mandatory statutory language concerning the
administration of the death penalty," Marshall continued in a legal
document filed in Moeller's federal habeas corpus appeal.

Although the governor may not extend an execution beyond 90 days, the law
provides exceptions in instances where death-row inmates are pregnant or
mentally unfit, Moeller's lawyer added.

Larry Long, state attorney general, said Rounds issued the reprieve under
general authority of the state constitution, and the constitution does not
limit that authority.

"We specifically did not reference the statute in the reprieve document
because we weren't accessing that at all. The governor can access that
statute if he wants to, but he's got the general power under the
constitution to issue a reprieve whenever and however he feels like it,"
Long said.

There used to be many restrictions on the governor's constitutional
authority to grant clemency to convicted criminals, but voters struck that
language from the state constitution three decades ago on the
recommendation of a special commission that studied the issue, Long said.

Article 4, section 3 of the current constitution says: "The governor may,
except as to convictions on impeachment, grant pardons, commutations, and
reprieves."

"The governor's constitutional power to issue a reprieve is unlimited,"
Long said. "It's constitutionally based, and it's unlimited. He can issue
a reprieve for an hour or for a week or for a month. He can do what he
wants."

Moeller, 54, killed 9-year-old Becky O'Connell of Sioux Falls in 1990.

(source: Associated Press)






MISSISSIPPI:

State high court denies new trial----Conviction, death sentence upheld


A defense attorney's failure to put on testimony to debunk bite-mark
evidence against a death-row inmate was wrong, but the error wasn't bad
enough to support a new trial for Eddie Lee Howard Jr., says the
Mississippi Supreme Court.

Howard raised questions about his attorney's performance in a
post-conviction motion. Inmates use post-conviction motions to claim
they've found new evidence to justify a new trial.

On Thursday, the Supreme Court rejected all of Howard's arguments.

Howard was tried twice for the 1992 stabbing death and rape of 82-year-old
Georgia Kemp of Columbus. Part of the evidence against Howard were bite
marks on the woman's body that a dentist testified matched impressions of
Howard's teeth.

His 1994 capital-murder conviction and death sentence were thrown out by
the Supreme Court, which ruled prosecutors' reliance on the bite marks was
unsound.

Howard was retried in 2000 and again was sentenced to death. The Supreme
Court upheld his conviction in 2003.

In his post-conviction claim, Howard said his attorney should have hired
an expert to counter the testimony of Dr. Michael West. West, a forensic
odontologist, testified his examination of a cast of Howard's teeth could
not exclude Howard as the biter, and he could not state with any certainty
Howard was the biter.

Presiding Justice Bill Waller Jr., writing for the Supreme Court, said the
court record showed defense attorneys in both trials consulted with an
expert but decided not to call him as a witness amid concerns he might
agree with West.

Waller said the "failure to call an expert witness was deficient
performance."

However, Waller said Howard did not prove that his trial would have turned
out differently had an expert testified on his behalf.

Waller said Howard offered numerous expert affidavits and other documents
that attack West, West's testimony and bite-mark evidence in general.

Waller said Howard had nothing from an expert witness who rebutted West's
testimony.

"For example, the expert might opine that Kemp did not have any injuries
at the locations where Dr. West found bite marks, or that the marks Dr.
West found were not human bite marks, or that the expert has compared
Howard's teeth to the injuries and Howard could not have been the biter.

"These affidavits and other documents point out how many times Dr. West
has been proven wrong and they discuss how unscientific his methods are.
One affidavit even states that Dr. West made a misdiagnosis in Howard's
case, but, it does not go on and opine that Howard did not bite Kemp. Just
because Dr. West has been wrong a lot, does not mean, without something
more, that he was wrong here," Waller said.

Justice James E. Graves, in a dissent, said the affidavits should have
raised concerns about West's credibility and some skepticism about West's
testimony. Graves said the evidence should undermine any confidence in the
outcome of Howard's trial.

(source: Associated Press)