2017-07-06 12:43:13 UTC
State challenges COA ruling that suspended death penalty
An Indiana Court of Appeals decision that suspended executions in the state
violated the separation of powers and resulted in new, unintended burdens that
could lead to "dysfunction" in carrying out executions, the state argues in
seeking an appeal to the Indiana Supreme Court.
The state on Monday petitioned justices to review a Court of Appeals ruling
that held Indiana's lethal injection formulation that included an untried drug
was "void and without effect." The court ruled that the Department of
Correction was bound to enact new lethal-injection protocols under the state's
Administrative Rules and Procedures Act through rulemaking subject to public
review and comment, which it did not do.
"While the Court of Appeals opinion purports to effectuate the policy choices
of the legislature ... it eschewed that legislative judgment and substituted
its own," the state argues in its petition to transfer the case to the Indiana
Supreme Court. "This violation of the separation of powers has resulted in
confusion in how capital punishment should be administered, potentially
enlarged the role of the judiciary in supervising the administration of
prisons, and moved Indiana down the wrong path for ensuring a fair and
reasonable system of capital punishment."
"It appears the state is presenting the same arguments that were previously
rejected by the Court of Appeals. We intend to bring that to the attention of
the Supreme Court," said David Frank, a Fort Wayne attorney who represents Roy
Lee Ward. The case is Roy Lee Ward v. Robert E. Carter, Jr., Commissioner of
the Indiana Department of Correction, and Ron Neal, Superintendent of the
Indiana State Prison, in their official capacities, 46A03-1607-PL-1685.
"We think the Court of Appeals made a very persuasive, very sound decision on
the black-letter law, and we will ask the Supreme Court to deny transfer so we
can move forward on our case on the merits," Frank said.
A death row inmate, Ward successfully challenged the DOC's method of execution
that had been developed internally without public review. The formulation of a
3-drug lethal injection "cocktail" included a drug never tried in a state or
federal execution - methohexital (known by the brand name Brevital) - along
with pancuronium bromide and potassium chloride.
Ward was sentenced to death in 2007 for the 2001 rape and murder of 15-year-old
Stacy Payne in Spencer County. He is one of 12 people on Indiana???s death row
at the Indiana State Prison in Michigan City. Indiana currently has no
scheduled executions, and the Ward ruling leaves it without a legal means of
carrying out the death penalty.
The state argues the DOC has never been held to a public-review standard, even
though it has carried out 20 executions under the current death penalty
statutes. The state argues I.C. 35-38-6-1(d) says lawmakers wrote that the DOC
"may" adopt rules necessary to implement lethal injection. "The legislature's
choice of the permissive language was no accident, and is supported by
historical experience and sound public policy," the petition says.
The COA ruled that the General Assembly specifically exempted certain state
agencies from the requirements of rulemaking under ARPA, but it did not
specifically exempt the Department of Correction.
A rulemaking requirement would place Indiana closer to California, which the
state argues has gone for a decade without enacting a method of execution.
"During that time, the proposed rules have been [held] up in rulemaking or
judicial challenges by reluctant government officials, opponents of capital
punishment, and death row offenders," the state argues in its transfer
petition. "... Indiana's General Assembly has never indicated its preference
for such dysfunction in our state, and this Court should avoid unnecessarily
requiring such an active judicial role for management of the internal affairs
of the (DOC) and the Indiana State Prison."
The state notes in petitioning for transfer that along with California,
Kentucky is the only death penalty state whose courts have found a rulemaking
requirement for their methods of execution. Other states that have ruled on the
question - Arkansas, Florida, Georgia, Missouri, North Carolina, Tennessee,
Texas, Virginia, and Washington - have found execution protocols are exempt
from administrative rulemaking.
(source: Indiana Lawyer)
KENTUCKY----female may face death penalty
Ky. woman indicted for local murder
A Pike County Grand Jury has indicted a Turkey Creek, Ky., woman on murder
Jennifer Blankenship, 31, is accused of the homicide of Samuel Kimberlain, an
acquaintance of Blankenship and a Mingo County, West Virginia, resident.
Kimberlain's body was found in a shallow grave behind a trailer residence where
Blankenship was living at Turkey Creek.
On June 21, local law enforcement in both Mingo and Pike counties received a
report that Kimberlain was missing.
Kimberlain has been reported missing to the Mingo County Sheriff's Department.
Blankenship was later arrested and had been held in custody at the Pike County
Detention Center on a $500,000 cash bond.
Okey Lee Hinkle Jr., 33, of Delbarton, West Virginia, was also arrested as an
alleged accomplice in the crime. Hinkle has been held in custody on a $250,000
cash bond in Kentucky.
A Pike grand jury indicted both Blankenship and Hinkle for their alleged roles
in the death of Kimberlain. They are also charged in the theft of Kimberlain's
jewelry and the disposal of the body.
The indictment indicated the murder of Kimberlain occurred on June 17. His body
was located on Wednesday, June 21, by a Kentucky State Police team.
Blankenship was indicted on charges of capital murder, tampering with physical
evidence, abuse of a corpse, receiving stolen property and being a persistent
felony offender in the 2nd degree.
Hinkle was indicted on charges of tampering with physical evidence and abuse of
According to the Pike County, Ky. indictment, Blankenship received or retained
jewelry in an amount more than $500.
In the indictment, and under Kentucky Revised Statute 507.020, murder is
defined as a capital offense, which can be punished by the death penalty under
(source: Williamson Daily News)
Nevada death sentence over 1982 murder is thrown out
An inmate who has spent nearly 35 years on Nevada's death row for a 1982 murder
outside Reno had his sentence overturned on Wednesday by a federal appeals
The 9th U.S. Circuit Court of Appeals called it a "flagrant violation" of Tracy
Petrocelli's constitutional rights to a lawyer and against self-incrimination
when a psychiatrist who examined him at the behest of prosecutors was allowed
to testify during his trial's penalty phase.
By a 3-0 vote, the San Francisco-based court also upheld Petrocelli's
conviction for 1st-degree murder and robbery, rejecting his claim that
statements he made to detectives after his arrest were admitted improperly.
Petrocelli, 65, had been sentenced for the March 29, 1982 shooting death of
used car salesman James Wilson during a test drive of a Volkswagen pickup.
Wilson's body was found in a remote area about 35 miles (56 km) north of Reno.
The defendant first sought a federal writ of habeas corpus challenging his
detention in 1988, court records show. He had been one of Nevada's
longest-serving death row inmates.
A spokeswoman for Nevada Attorney General Adam Paul Laxalt, whose office
defended the death sentence, had no immediate comment. A. Richard Ellis, a
lawyer for Petrocelli, did not immediately respond to requests for comment.
The psychiatrist, Lynn Gerow, had testified that Petrocelli had a rare,
incurable "psychopathic" personality, suggesting he could have a "quite high"
propensity for further violence and would not learn from punishment.
But in Wednesday's decision, Circuit Judge William Fletcher noted that
Petrocelli already had a lawyer by the time Gerow interviewed him in jail,
three days after his arrest, to help prosecutors determine his competence to
He said the psychiatrist's testimony, combined with a jury instruction raising
the prospect of Petrocelli's eventual parole, "had a substantial and injurious
effect or influence in determining the jury's verdict," and therefore was not
The 9th Circuit returned the case to Nevada's state courts, which can
resentence Petrocelli or open a new penalty hearing.
The case is Petrocelli v. Baker, 9th U.S. Circuit Court of Appeals, No.
ARIZONA----female eligible for death penalty
Jury says Sammantha Allen eligible for death penalty in Ame Deal murder
Sammantha Allen should receive the death penalty for her role in the
suffocation death of her 10-year-old cousin, Ame Deal, a Maricopa County
Superior Court jury decided Wednesday.
For Allen to be eligible for the death penalty, jurors had to agree that there
were aggravating circumstances in Ame's death, meaning Allen's actions were
especially cruel and heinous.
It took jurors 15 hours of deliberation to come up with a unanimous decision.
The same jury had found Allen guilty of 1st-degree murder and 4 counts of child
abuse last month.
Allen's trial will enter the death-penalty phase beginning 10:30 a.m. July 10.
After the jury left the courtroom, defense attorney John Curry questioned the
judge as to whether all of the jurors agreed that Allen either killed or
actively participated in the slaying.
Allen could be sentenced to death only if the jury unanimously agreed that
Allen either killed Ame or was a major participant in abusing her and was
reckless and indifferent to the child's life.
Deputy County Attorney Jeanette Gallagher contended that Allen, now 28, met
both standards, whereas Curry said she was not involved with either.
"We don't know we have a total of 12," Curry said, his voice raised.
The judge, after having reconvened the jury, asked each juror whether he or she
agreed that Allen killed Ame or was a major participant in the murder.
All 12 said yes.
(source: Arizona Republic)
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