Sept. 29 CALIFORNIA: Death penalty hearing ends A federal judge could rule by early November on challenges a Stockton man made to the states method of lethal injection, claiming it causes cruel and unusual punishment. U.S. District Judge Jeremy Fogel of San Jose conducted a hearing this week in the case of Michael Angelo Morales. Morales, 46, was sent to San Quentin State Prisons death row for hammering, stabbing and raping 17-year-old Terri Lynn Winchell in 1981. Morales came within steps of San Quentins execution chamber on Feb. 21 when his attorneys won a delay resulting in this week's 4-day hearing. In closing, Fogel expressed concern for the slain Winchell and her family, but added that he has a very specific job in deciding if Californias 3-drug lethal injection protocol might cause Morales an unconstitutional level of pain. One doctor testified that sodium thiopental the 1st of 3 drugs used in executions is quick acting and despite appearances doesn't keep the inmate unconscious even while painful drugs are injected to stop the heart and lungs. Fogel asked attorneys for Morales and for the state's Attorney General to file closing arguments by Oct. 27. "I'd like to get a decision out as soon as possible," he said. Fogel left open the possibility of more oral arguments, if necessary. "This is something I feel strongly about," Fogel said. "I don't want to rush into something so important." After this week's hearing, Fogel will consider hundreds of pages of evidence and the testimony of expert witnesses, included nationally renowned anesthesiologists, pharmaceutical researchers and veterinarians. (source: Stockton Record) ************ Doctor describes chaotic handling of executions ---- Anesthesiologist testifies that methods used on San Quentin's death row aren't conducive to prisoner's pain-free death A medical witness at a federal court hearing on California's execution procedures described a chaotic system Wednesday in which untrained employees inject unknown amounts of lethal drugs into the prisoner from a dimly lit and overcrowded chamber, with little monitoring of the chemicals' effects. Anesthesiologist Mark Heath's testimony was the centerpiece of a constitutional challenge by lawyers for condemned murderer Michael Morales to the state's lethal injection methods. U.S. District Judge Jeremy Fogel of San Jose has blocked Morales' execution, effectively halting all executions in California, while he considers whether the procedures contain flaws that pose significant risk of causing unnecessary and extreme pain. Morales, 46, of Stockton was convicted of raping and fatally battering 17-year-old Terri Winchell of Lodi in 1981. Courts have upheld his death sentence, but his scheduled Feb. 21 execution was stayed by Fogel when the state was unable to find anesthesiologists or other medically trained personnel to monitor his anesthesia, as ordered by the judge. Heath, a Columbia University physician who has testified against injection methods in other states, said the procedures used in California since 1996 ranked in the bottom quarter of the 37 states using lethal injection. He said evidence of a breakdown in the system appears in San Quentin State Prison's execution logs, in which doctors in more than half the executions reported that the prisoner appeared to be breathing after being given the sedative, which should have stopped his respiration. "When somebody's breathing like that, they're not in a deep state of anesthesia," Heath said. "They might not even be unconscious." If conscious, he said, the prisoner would be aware -- but paralyzed and unable to cry out or signal in any way -- as he was suffocated by a 2nd chemical. The prisoner then also would suffer excruciating pain and heart failure from the third drug, Heath said. Heath cited problems during December's execution of Stanley Tookie Williams, the former gang leader and multiple murderer who became an anti-gang crusader in prison. A staff member tried and failed to insert a backup syringe into Williams' left arm in case the syringe in his right arm was obstructed. Unable to insert the backup, the staff member finally used an intravenous tube that wasn't working as the backup. The warden nevertheless ordered the execution to proceed, and the team leader learned of the difficulty only after Williams was pronounced dead, Heath said. Williams was executed without any need for the backup syringe. "There was a total breakdown of communication of critical information," Heath said. On cross-examination, Senior Assistant Attorney General Dane Gillette sought to portray Heath as biased, based on his opposition to capital punishment, and got him to acknowledge that he had no concrete evidence of consciousness or pain during the 11 lethal injections performed at San Quentin. Gillette also suggested that the chest movements recorded by doctors as breathing may have been unconscious reflexive activity. But Heath said there was little reason to believe the state's assertions of pain-free executions in light of the numerous defects in the system: -- Members of the prison's execution team, when questioned about sodium pentothal, the sedative used to cause unconsciousness, gave wildly inconsistent answers about the number of syringes they used and the needed dosages and knew little about the effects of any of the drugs. "I don't study, I just do the job," said the prison nurse who formerly mixed the pentothal. She also said some of the solution remained in the bottle after injections -- evidence, Heath said, that the prisoner may not be getting enough of the anesthetic. -- The anteroom where the drugs are prepared and injected is deliberately kept dark, with only a faint red bulb, to conceal the executioners' identities. The room is also typically crowded with state officials who are observing the execution. One nurse testified that after preparing a syringe, she handed it to someone she couldn't see. -- The execution chamber, which was used as the gas chamber until a federal judge barred lethal gas executions in 1994, is airtight and virtually soundproof, making it impossible to hear any sounds of distress from the prisoner during execution. No one else is inside the chamber -- making medical monitoring of the anesthesia impossible -- and only a few members of the execution team can even see the prisoner, with none having a full view, Heath said. -- The prison's record-keeping system for the drugs is shoddy and an invitation to drug abuse. Heath said one execution team leader checked out a full execution's supply of sodium pentothal -- a barbiturate that can have intoxicating effects -- for rehearsals in which no drugs were actually used. Pentothal was also checked out by a team leader who was once suspended for bringing illegal drugs into the prison, he said. Heath also criticized state officials' conduct at a meeting supervised by Gov. Arnold Schwarzenegger's legal adviser in February, a week after Morales' execution was stayed. According to a participant's notes, displayed in court, a physician at the meeting suggested using a different barbiturate and adding an opiate like morphine to relieve pain, but Gillette, the state's death penalty coordinator, objected to changing drugs on the grounds that courts had approved the currently used chemicals. The state then announced revised procedures, including a continuous infusion of sodium pentothal, which Heath said would not remedy the problem. Rather than seeking to make executions more humane, "they're trying to meet a legal finish line," he said. Fogel questioned Heath extensively and appeared interested in the witness' suggestion that a lethal dose of sodium pentothal or some other barbiturate,perhaps preceded by morphine to calm the inmate, would minimize the risk of a painful execution. Barbiturates are commonly used to euthanize pets, and their owners are "very impressed by how peaceful it is," Heath said. (source: San Francisco Chronicle) PENNSYLVANIA: Yarris strikes back, seeks new probe in murder case An attorney representing exonerated former death-row inmate Nicholas Yarris has sent a letter to federal and state authorities demanding they re-open the investigation into the murder of Linda May Craig. In a tantalizing twist to the 25-year-old murder mystery, attorney John W. "Jack" Beavers claims he has "at least one witness wishing to provide leads relating to the actual identity of the rapist-killer" who abducted Craig and dumped her body in a snowy field in December 1981. Yarris, 45, formerly of Southwest Philadelphia and now living in England with his wife and daughter, was convicted of Craig's slaying in 1982 and was sentenced to death. After spending nearly half his life on Pennsylvania's death row, he was cleared through DNA tests and was released from prison in January 2004. While a Delaware County grand jury is reportedly re-examining the case, no arrests have been made and no progress has been reported. Beavers, in his letter dated Sept. 8 sent to the attorney generals of Pennsylvania, Delaware and the U.S., the FBI, and governors of Pennsylvania and Delaware, cited what he called the "interstate and multi-jurisdictional crimes involving kidnapping, murder, rape and attempted murder," which are not being investigated by any impartial investigators or investigators who would normally look into such crimes. He pointed out that Craig was apparently kidnapped as she left her job at the Tri-State Mall in Delaware and was transported over state lines to Pennsylvania. He said she was kidnapped and murdered either in Delaware or Pennsylvania. Only Delaware County officials are investigating the murder, "some of whom are named defendants in a civil rights suit, which I have filed on Mr. Yarris' behalf," Beavers wrote. He was referring to the grand jury and a federal civil rights lawsuit seeking $22 million in compensation for the 22 years Yarris spent on death row. Beavers informed authorities he was forwarding the details of an e-mail lead "regarding evidence about the true rapist-killer's possible identity on a separate sheet and will not release the same to any source other than you." He would not elaborate on that new witness in an interview Tuesday. Beavers said the Delaware State Police homicide unit is handling the "Delaware end of the Craig murder," and he has talked to them. The homicide unit sergeant he said he talked to couldn't be reached for comment. Beavers said he has received replies to his letter from the counsel for the Delaware governor's office and the Delaware Attorney General's office. The letter is still under review by Delaware Attorney General Carl Danberg and his staff and there has not yet been a response, a spokeswoman said Wednesday. Beavers said he had also spoken to Gov. Ed Rendell last week and he said "in essence, he's not going to allow anyone's rights to be trampled in Pennsylvania." Rendell spokeswoman Kate Philips said she "will not be able to comment on the specifics of the letter because it's in active litigation." She said the letter was in the office of general counsel and the Governor's Office hasn't reviewed it. The FBI in Philadelphia also couldn't be reached for comment despite a voicemail message left with a spokesperson. "As far as I'm concerned, everybody's responded but the FBI," Beavers said Tuesday. Beavers said he did not send the letter to the Delaware County District Attorney's office. Delaware County Deputy District Attorney Sheldon Kovach declined comment Wednesday. He referred to recent comments made by Assistant District Attorney Joseph Brielmann that the Craig murder case is an active investigation and all matters before the grand jury and its investigative process are confidential. The letter also contains claims familiar to those who have followed the case -- that various citizens and government officials "conspired to murder Nicholas Yarris by having him falsely convicted and executed for Linda Craig's murder." Beavers said Yarris' conviction resulted from the destruction of evidence, false testimony procured by government officials and false allegations that Yarris had confessed to the rape and murder of Linda Craig. He said the latter all "constitute crimes in their own right." Yarris and his attorney questioned why the FBI, state police in Delaware and Pennsylvania have not become involved in investigating "this multi-jurisdictional crime." On behalf of Yarris, Beavers demanded the following: - An immediate full investigation of Craig's kidnapping, rape and murder. - That investigations be undertaken and grand juries convened to investigate the attempted murder by public officials and private citizens who destroyed evidence and obtained and gave known false statements for the purpose of having Yarris executed. - That investigations be undertaken regarding violations of criminal statutes by public officials and private citizens, including perjury, subornation of perjury, obstruction of justice, destruction of evidence and criminal conspiracy. If no action is taken, Beavers said, he will file a motion against all the law enforcement agencies contacted seeking a mandatory injunctive court order compelling each agency to do its duty. "Mr. Yarris may not have the right to know the details of the investigations, but he has the right to know that the crimes committed against himself and Linda Craig are being reasonably investigated and existing leads in the case are being zealously pursued," Beavers said. (source: Delaware County Times) NEVADA: Judges grilled on courthouse security, capital punishment A Washoe District judge appointed to the bench in April told a lawyers group Thursday that she wants the chance to prove herself on the job, while her opponent in the November election said he is the most qualified for the post. Also featured at the Washoe County Bar Association candidate debate luncheon were the 2 lawyers seeking the job as Reno City Attorney: John Kadlic and Brett Kandt. Judge Bridget Robb Peck, 43, appointed to Department 7 by Gov. Kenny Guinn when Judge Peter Breen retired, told lawyers that she looks at her new position as a new career, and hopes to be on the bench for the next 20 years. But Reno lawyer Patrick Flanagan, 53, her opponent in the Nov. 7 election and 1 of 3 lawyers nominated by the Nevada Commission on Judicial Selection to replace Breen, said everyone who applied for Breen's seat knew he or she would face the election, and he believes he "is the best qualified candidate." "I want to allow the public to make the decision as to my qualifications as district judge," Flanagan said. The luncheon, attended by local lawyers and judges, including Judge Chuck Weller, who led the group in the Pledge of Allegiance, ran for about an hour, with questions coming anonymously from the lawyers. One asked Flanagan how he would handle capital cases, since he has been a vocal opponent of the death penalty. Flanagan said he has had 2 clients who were sentenced to death and executed, "and I understand the gravity of this." But he said judges must make sure that their personal opinions do not impact their rulings. "It is the duty of the judge to follow the law," he said, "and the death penalty is the law in the state of Nevada." Therefore, as a judge, he would follow the law, he said. Flanagan added that prosecutors decide to seek a death sentence, and juries are assigned the job of deciding whether a person should be executed, so judges play a small role in such cases. When asked her views of capital punishment, Peck said: "I do believe there are certain crimes that are so heinous that the death penalty is warranted," including crimes against the elderly, children, and first-responders trying to help those in need. She added that judges do not play a small role in how death penalty cases are handled, and noted that in the United States, it often has been used in cases involving the poor, and the uneducated, and by lawyers who sleep through the trial. "Those are the things a judge needs to take care of," she said. Security problems Both candidates were asked about courthouse security, both acknowledged there's a problem. But Flanagan said judges are not security experts, and said the sheriff's office has done audits on the security at the courts, and they are the ones who should be a part of any security changes. Peck said the current situation in the court puts all people at risk. The elevators are used by witnesses, jurors, judges, and criminal defendants alike, she said. And families of victims must wait in the same hallways as the families of defendants. Upgrading the security plans should be done to "keep everyone in the courthouse safe, not just the judges." Kadlic, 58, and Kandt, 39, are seeking the city attorney post vacated by Patricia Lynch, who is running for Reno Justice of the Peace. Kadlic, a former prosecutor and justice of the peace, said he plans to "attack graffiti" with a campaign he's calling "the night has a thousand eyes." He said "everybody needs to get involved and resolve the problem," and said the community needs to look at the underlying causes of the crime. Kandt, a former deputy attorney general and the head of the Prosecution Advisory Council at the Nevada Department of Justice, said a city attorney has three main responsibilities: to protect the community's tax dollars by giving timely and accurate legal advise; to protect community safety and to provide leadership. Kadlic, who served as a Reno Justice of the Peace for 16 years before losing the post in 1998, was asked if he was aware that he lost that race because one of his "shortcomings was how you treated people." Kadlic said he was going through a bitter divorce, "and it was a tough time in my life." "I've learned from that experience, and I would treat people with dignity and respect," he said, adding that he apologized to anyone he may have offended. (source: Reno Gazette-Journal) ALABAMA: Alabama's Justice Parker responds to O'Connor's criticism in WSJ Alabama Supreme Court Justice Tom Parker drew special mention - albeit decidedly negative - in a Wall Street Journal op-ed piece by retired U.S. Supreme Court Justice Sandra Day O'Connor. The article, published in Wednesday's edition, took note of the increasingly "venomous" tenor of criticism directed at the judiciary from a number of quarters. O'Connor warned that while criticism of judges enjoys a long tradition in the United States, "the breadth and intensity of rage currently being leveled at the judiciary may be unmatched in American history." She expressed concern that, in some instances, the intent of the critics is "judicial intimidation." O'Connor states that "attacks on the judiciary are now being launched by judges themselves," citing Parker as the example. The Alabama justice "excoriated his colleagues for faithfully applying the (U.S.) Supreme Court's precedent" in a case barring imposition of the death penalty for crimes committed by minors, she said. She writes in the Wall Street Journal article: "Justice Parker advised state judges to avoid following Supreme Court opinions 'simply because they are 'precedents'." O'Connor also quotes the Alabama justice as saying "the liberals on the U.S. Supreme Court ... look down on the pro-family policies, Southern heritage, evangelical Christianity, and other blessings of our great state." Parker issued a statement Wednesday afternoon in which he characterized O'Connor's criticism of his "originalist view of the constitution (as) completely wrongheaded." Parker's statement reads: "As Justice O'Connor neglected to inform the readers of the Wall Street Journal, I criticized the opinion ... not because I didn't like its outcome but because it was based in part on foreign legal fads and a U.N. treaty our Senate refused to ratify - neither of which has any place in interpreting the United States Constitution." Parker said, too, that the public outcry against judicial activism is "based on a real problem with the judiciary - and one that will only grow larger as long as the denial continues." O'Connor states in her article that criticism of the judiciary is "a healthy sign of democracy" but cautions that "we must be more vigilant in making sure that criticism does not cross over into intimidation." (source: Birmingham Business Journal) MISSISSIPPI: New trial deserved in case of slain officer Cory Maye's version of an incident 5 years ago sounds like a compelling argument for the Castle Doctrine, the controversial law that gives Mississippians broader authority to defend their homes and other property. Maye said he was home with his 18-month-old daughter when he fell asleep in a chair. He said he was awakened by what he believed were intruders and, like most people, wanted to protect his home and his family. He reached for a nearby handgun and shot Ron Jones as Jones entered Maye's duplex. Jones, as Maye now knows, was not a burglar. He was a Prentiss police officer participating in a raid of Maye's apartment. Maye was convicted of capital murder and sentenced to die by lethal injection. The sentence was overturned last week in Pearl River County Circuit Court, where a motion for a new trial is pending. While the Castle Doctrine, which became effective July 1, isn't applicable in this case, the glaring questions from Maye's trial suggest the scrutiny is appropriate. TRAGIC INCIDENT Jones' death was especially tragic, as is the case with any public servant who makes the ultimate sacrifice in the continuous battle to make our communities safe and drug free. Jones' service is appreciated and should be remembered. There also should be some accountability. The key question today is whether Maye received justice. Judge Michael Eubanks, in overturning Maye's death sentence, ruled Maye received inadequate representation during the sentencing phase of his 2004 trial. His attorney from that trial has said otherwise. Maye's new defense team, which includes lawyers from across the country, also has argued that Rhonda Cooper, Maye's attorney, was ineffective during the guilt phase. Cooper has raised some legitimate questions about Eubanks' sentence, noting that the sentencing phase proceeded immediately after the trial phase without adequate time to prepare. Other issues in this case appear more basic, including whether Maye knew Jones was a police officer. Officers, after raiding the unit next door, said they announced themselves at Maye's door and entered after hearing no answer. Maye testified that he didn't hear the officers announce themselves. NO CRIMINAL RECORD Maye had no criminal record, and officers found only traces of one marijuana cigarette inside the apartment. There also was testimony that the front of the officers' clothing was not marked with any law enforcement insignia. Why would someone with no criminal history and with nothing to hide inside his home do something that seems so out of character, like knowingly shoot a police officer? There also are questions about the validity of some information in the warrant to search Maye's apartment. When coupled with other elements, this doesn't sound like justice. Yes. Maye fatally wounded a police officer. But in giving Maye the benefit of the doubt about the officers' identities, a capital murder conviction and death penalty sounds extreme. What's clear is Maye deserves a new trial and a fresh look at the evidence. His life is at stake. And like everyone else, he is entitled to justice. (source: Clarion Ledger) OHIO: Test links inmate to murder----Defense attorney disputes DNA analysis in 1984 case Death-row inmate Anthony Apanovitch has proclaimed for more than 2 decades that he's innocent of the 1984 rape and murder of Mary Ann Flynn. Now, prosecutors say, there's even more proof of his guilt - enough to remove any doubt that Apanovitch killed Flynn at her West Side home. An independent California laboratory's new analysis of DNA from long-stored biological evidence removed from the 33-year-old victim's body shows conclusively that the sample came from Apanovitch's body, Cuyahoga County Prosecutor Bill Mason said Thursday. How conclusively? The analysis, Mason's office says, shows that only 1 person out of every 140 million could be matched to the crime-scene semen specimen. "He has the right to say he's innocent," Mason said. "But we have the right to prove he's not. And we feel that what we've done here proves he's a liar as well as a murderer." One of Apanovitch's lawyers said the test proves nothing reliably because the tested evidence and the state's handling of it over the years are both tainted. The testing lab could only analyze a fragment of DNA, rather than a full genetic blueprint, said federal Public Defender Dale Baich. Moreover, what was tested had been mixed with DNA from at least 3 other people - possibly another killer, or perhaps investigators who mishandled the sample that even prosecutors have acknowledged had been lost for years. "Their statement about conclusively proving is a gross overstatement," said Baich, a former Clevelander now in Phoenix. Even if the test did prove what Mason says it does, Baich added, it should have no bearing on Apanovitch's ongoing legal appeals. The current case before the 6th U.S. Circuit Court of Appeals in Cincinnati contends prosecutors unconstitutionally withheld evidence favorable to the defense at Apanovitch's 1984 trial. There's no legally justifiable place in the process for those appeals judges to look at new DNA evidence favorable to the state, Baich argued Thursday. If Apanovitch wins a new trial, Baich said, prosecutors could present the new DNA results to a jury. The last jury found Apanovitch, then 29, raped, beat and strangled Flynn at her Archwood Avenue home, which she had hired him to paint. Witnesses testified he intimidated and lusted after her, coaxed friends to fabricate alibis, and he gave police conflicting statements. He became a minor cause celebr among death-penalty foes with his repeated declarations of innocence. Among his complaints: Earlier, cruder DNA analysis couldn't conclusively link him to the attack. But Apanovitch had steadfastly refused to give a DNA sample for comparison to evidence until a 2003 law made it compulsory for all convicts. Martin Flynn of Shaker Heights is one of the victim's seven siblings. The family, he said, would never want an innocent man punished, but now that's even more improbable. "Based on what I have heard," he said, "it does not appear that the wrong guy got convicted." (source: Cleveland Plain Dealer)
[Deathpenalty] death penalty news----CALIF., PENN., NEV., ALA., MISS., OHIO
Rick Halperin Fri, 29 Sep 2006 23:46:19 -0500 (Central Daylight Time)
