2017-07-13 14:16:37 UTC
State fails to stop execution-drug suit----Judge studies jurisdiction question
A lawsuit claiming that Arkansas prison officials duped a medical supplier into
selling them medication used to execute four convicted killers survived another
court challenge on Wednesday.
After a 2-hour hearing Wednesday, Pulaski County Circuit Judge Alice Gray
rejected a motion from the attorney general's office to dismiss the suit filed
by McKesson Medical-Surgical Inc.
But the judge said she needs more time to consider whether she has any further
jurisdiction over the proceedings. At issue is whether state attorneys can move
the proceedings to another judge in another county under a new statute that has
never been court-tested.
Gray promised a decision on the jurisdiction issue as soon as possible.
McKesson wants the judge to make Arkansas return the supply of vecuronium
bromide the company sold to the prison department last year. The company is
accusing Department of Correction officials of tricking its salesman into
selling them the paralytic, then reneging on a promise to return the drugs when
McKesson refunded the state's payment.
The bromide is 1/3 of the drug combination Arkansas uses for lethal injections.
The state carried out 4 of 8 planned executions in April before the supply of
another drug it uses passed its use-by date.
Arkansas does not have enough of the necessary drugs to conduct further
executions, and none have been scheduled.
State attorneys deny that Arkansas officials did anything wrong, calling the
litigation a case of "seller's remorse" brought on by the public disclosure of
McKesson's role in providing the paralytic, a disclosure that could open
McKesson to government sanctions in Europe and from the bromide's manufacturer.
State Attorney General Leslie Rutledge has been pressing for the lawsuit by
McKesson Medical-Surgical Inc. to be transferred to Faulkner County Circuit
Court since the litigation began in April. But Rutledge will not say why she
prefers that court.
Wednesday marked 3 months since the lawsuit was filed, and Rutledge's spokesman
continued to decline to answer questions about the attorney general's
insistence on moving the lawsuit out of Little Rock, the usual venue for civil
actions against the state.
Senior Assistant Attorney General Jennifer Merritt told the judge the state has
an "absolute right" to change courts under the new law, Act 967 of 2017,
arguing that the statute requires Gray give up jurisdiction to Rutledge's
choice of Faulkner County.
The law, which was passed and went into effect about a week and a half before
the lawsuit was filed, allows the government to have any suit brought against
it moved to any circuit court of its choosing if the plaintiff is not an
Attorney Michael Heister, representing McKesson, told the judge that the
company is sufficiently established in Arkansas, through a distribution center
in Little Rock, to meet the standard for residence.
He said the state attorneys are trying to get Gray to apply a different
standard, state citizenship, as the test for whether the litigation remains in
"Our point is, the venue statute doesn't talk about [citizenship]; it talks
about residence," Heister told the judge. "We are a resident of the state under
the statute. We pay taxes."
The company, an arm of the international health care giant McKesson Corp., sued
to block the state from using the vecuronium bromide the company had sold to
the Department of Correction last year.
The drug is a general anesthesia recognized internationally as an essential
medication, but McKesson and the drug's manufacturer, Pfizer, don't want it to
be used for executions.
The company has also asked for the drug to be returned.
2 Pulaski County circuit judges, acting in separate proceedings, sided with the
company and ordered the prison department not to use the paralytic.
But the Arkansas Supreme Court overturned those orders on emergency appeals by
Rutledge, so the state was able to use the drug in the four executions that
About 30 minutes of Wednesday's proceeding involved Merritt trying to convince
an obviously skeptical Gray that the judge still had jurisdiction over the
case, even though the attorney general's office has appealed the judge's April
ruling to the Arkansas Supreme Court.
Gray had ordered the Department of Correction not to use McKesson's bromide,
which would have halted the executions. But the high court suspended Gray's
order while the justices consider whether Arkansas' sovereign immunity shields
it from the McKesson suit.
Gray ruled in April that the state isn't immune from the McKesson suit. The
attorney general's appeal has lodged the immunity question with the superior
court, Gray said. So how could she also take up the same question again until
the Supreme Court makes its decision? Gray asked.
"That concerns me," the judge said. "I don't want to run afoul of an appellate
court's right to decide an issue."
Merritt argued that Gray still had the authority to rule on the immunity
question. The attorney said she expected Gray to again reject the immunity
But that second rejection, which Gray presented on Wednesday, would allow the
state to bring a fully decided appeal to the high court as opposed to the
partial appeal that got underway in April, Merritt said. One appeal instead of
two will save both courts time and effort, she said.
Otherwise, with the Supreme Court now on its summer vacation, the state would
have to go through 2 appeals before the immunity issue was resolved, a process
that could take at least 8 months, Merritt told the judge.
Merritt said the vitality of the McKesson medications is also at stake.
Arkansas has already lost 1 of its 3 death-penalty drugs, the sedative
midazolam, because the medication expired in May.
"Meanwhile, the clock is ticking on the expiration date of these drugs," she
Defense for double murder suspect adds attorney with death penalty experience
A man charged with 2 counts of murder for the deaths of a Kentucky couple faced
a judge on Wednesday.
Craig Pennington appeared in Washington Circuit Court for a hearing.
During the hearing, the defense revealed they would being adding counsel to the
team in Mid-August. The new attorney has extensive experience in capital cases.
Family members of Bobby Jones and Crystal Warner were inside the courtroom on
Wednesday. Jones and Warner went missing on July 3, 2016. Police say Pennington
murdered the couple who was renting a home to him in Washington County. It
would be months before police found the bodies of the pair; Jones in Clark
County and Warner in Bath County.
During the hearing, the defense said the prosecution had not provided them with
everything entered as evidence in the case.
A judge set the next hearing for the case for September 20 next; he will likely
set a trial date at that time.
(source: WKYT news)
Anthony Garcia's Omaha attorney temporarily suspended from practicing law in
Typically a murder case is focused on the alleged conduct of the defendant, not
on the attorneys representing him.
The Anthony Garcia case is anything but typical.
Garcia's lead local attorney, Jeremy Jorgenson, has been suspended from
practicing law in Nebraska until he shows proof that he has taken several
continuing legal education courses, The World-Herald learned on Wednesday.
The suspension likely is short-lived. Under Nebraska court rules, attorneys
must complete 10 hours of education, including 2 hours focused on ethical
requirements. Jorgenson said Wednesday he already had completed the required
courses but failed to show proof of it. Jorgenson has applied for reinstatement
and expects to get his license restored within a week or 2.
"It's not newsworthy," he said.
The suspension is just the latest news made by Garcia's defense team -
primarily made up of Jorgenson, Robert Motta Jr., Robert Motta Sr. and, for a
while, Alison Motta.
And it has only added to the twists for Garcia, the former Creighton University
medical resident convicted in the revenge-fueled serial killings of 4 Omahans.
The Mottas, who are from Chicago, had been practicing in Nebraska on what
amounts to a guest pass provided by Jorgenson, his former law partner David
Reed and another Omaha attorney, James Owen. (Jorgenson took the lead among the
local attorneys - and the other 2 attorneys' involvement has been virtually
nonexistent in recent months.)
Now, with Jorgenson suspended, it's unclear whether the Mottas can continue to
represent Garcia in the death penalty phase of Garcia's case. Bob Motta Jr. did
not return a phone call Wednesday.
Garcia faces the possibility of the death penalty after a jury found him guilty
of killing 11-year-old Thomas Hunter and 57-year-old Shirlee Sherman in March
2008 and Dr. Roger Brumback and his wife, Mary, both 65, in May 2013.
In April, Judge Gary Randall appointed the Nebraska Commission on Public
Advocacy to help represent Garcia in the sentencing phase.
That led Jorgenson and Garcia to object and to file an appeal contending that
the judge's appointment of additional attorneys interfered with Garcia's right
to choose his own attorney.
"You are my choice for lawyer," Garcia wrote to Jorgenson on May 1. "The
Nebraska Commission on Public Advocacy ... Randall and Kleine are all part of a
conspiracy against me and you," he wrote, referring to County Attorney Don
That appeal has fallen on deaf ears so far. The Nebraska Supreme Court ruled
Wednesday that Garcia's appeal cannot be heard until after he is sentenced.
That leaves Judge Randall with a decision.
With Jorgenson temporarily suspended, will the judge allow the Mottas to
represent Garcia? Or will he remove the Mottas and allow the commission to
represent Garcia alone?
Neither set of attorneys wants to combine forces to represent Garcia. One
reason: If they join ranks, the commission would be unable to raise issues of
whether Motta and Jorgenson were effective at trial.
Jeff Pickens, chief counsel of the Nebraska Commission on Public Advocacy, said
his office is awaiting a decision and stands ready to use its experience trying
death penalty cases.
"We're eager to represent Dr. Garcia and provide him the best defense possible
at no cost to Douglas County taxpayers," Pickens said.
Jorgenson said he also is eager to see Garcia's case through.
Jorgenson and the Mottas have made news for other actions in the past 2 years -
including a case in which Alison Motta received a rare rebuke just 2 months
Alison was kicked off of the Garcia case in April 2016 after she, on the eve of
his originally scheduled trial, said that DNA tests exonerated Garcia and
implicated another man in the death of Sherman. (The DNA tests didn't.)
Judge Randall's subsequent denial of Alison's application to practice law in
Nebraska meant that she had to watch Garcia's trial from the courtroom gallery.
In May, Alison Motta was suspended for 3 months from an Illinois federal court
system for trial antics that included rolling her eyes at a judge's ruling and
calling it "(expletive) bull(expletive)."
"These instances of disruptive conduct occurred even after multiple warnings
from the trial judge," Chief Judge Ruben Castillo of the Illinois district
wrote in her reprimand.
In October, Jorgenson failed to show up for oral arguments on behalf of a
client before the U.S. 8th Circuit Court of Appeals - oral arguments that were
occurring while Bob Motta was delivering closing arguments in Garcia's case.
Jorgenson then blew a deadline to explain why he failed to show. That led the
8th Circuit to bar him from practicing in front of the federal appellate court
and to recommend that he face disciplinary actions in Nebraska.
Early this year, he moved to the Chicago area to join the Mottas' law office.
Before either was suspended, Alison Motta and Jorgenson successfully defended a
case in federal court in southern Illinois.
Jorgenson said Wednesday he has since returned to Omaha for personal reasons.
He said he will return to Chicago to help the Mottas with a few cases but plans
to primarily practice law here.
The suspension has put at least a momentary hiccup in his ability to do so.
Jorgenson said he received notice of the law-license suspension this past week.
He said the month delay in discovering his suspension likely occurred because
he didn't update his office address and the Supreme Court notice went to a
"I can't do anything until I'm reinstated," Jorgenson said. "Which I'm hoping
will be soon."
(source: Omaha World-Herald)
Deal offered for man facing death penalty, but he wants to fire lawyers
Prosecutors offered to withdraw the death penalty and agree to a sentence of 32
years to life in prison for Benjamin Frazier, who is accused of killing a man
at the former Drai's nightclub and shooting 2 security guards.
Instead, Frazier told a judge Wednesday that he wants to fire the defense
attorneys who negotiated the deal.
In a short, somewhat disjointed speech, Frazier told District Judge Douglas
Herndon that he did not trust Randall Pike and Jeremy Storms, with the Special
Public Defenders office. The 45-year-old jailed defendant, who is being held
without bail, suggested his lawyers had done nothing for him and complained
about access to writing utensils and lack of medical attention from doctors
outside the Clark County Detention Center. He said he had suffered seizures and
injured his head in his cell.
"I've been lied to, and I've been manipulated numerous times," Frazier said. "I
wasn't even in a condition to work on my case, and I believe they didn't give a
damn. This has been hell. This has been hell."
Pike, who worked directly with the county's top prosecutor, Steve Wolfson, on
hammering out a deal in which Frazier could plead guilty but mentally ill
through what's known as the Alford decision. That means he would not admit
guilt, but acknowledge that prosecutors have enough evidence to prove the
charges against him.
Video surveillance from Oct. 21, 2013, inside Bally's, at 3645 Las Vegas Blvd.
South, where the club was previously located, shows Frazier repeatedly firing a
.38-caliber revolver, wounding two men, and fatally shooting 40-year-old
Kenneth Brown, who police said was a "Good Samaritan" and tried to subdue
A quarrel started after Frazier asked club security whether he could preview
the crowd before paying an entrance fee, authorities said. He decided to pay
the cover and walked inside, but left soon after, demanding a refund because
the club wasn't full.
The defense attorneys had hired a neuropsychiatrist, 2 counselors, another
doctor to generate documents for the plea, retained and consulted with other
experts, coordinated with mitigation specialists for a possible penalty, and
worked with investigators, Pike said.
Chief Deputy District Attorney Giancarlo Pesci said the offer would remain open
"for the sake of these attorneys" until Frazier's next court appearance in
"I really want to vent my spleen because they're going out of their way for
him, so this concept that somehow they're falling down is rather repugnant to
me," the prosecutor said. "At some point, it has to end."
The judge rejected Frazier's request, and set a trial date for April, should he
decline the offer.
Negotiation in Drai's shooting
Prosecutors for the 1st time Wednesday made public the details of an offer
extended to Benjamin Frazier, who is accused of fatally shooting a man and
injuring 2 others at the former Drai's nightclub. Frazier would plead guilty to
1st-degree murder and 2 counts of attempted murder and be sentenced to 32 years
to life in prison, according to the deal.
District Judge Douglas Herndon refused to kick Frazier's attorneys off the case
at his request.
"There is always going to be a rub between what you think needs to be done, and
what they have the wisdom to know needs to be done," the judge said. "And there
comes a time where if they feel like a case has a certain value to it, they've
got an obligation to try and secure for you the best resolution they can."
(source: Las Vegas Review-Journal)
Death penalty retrial projected for 2019
A retrial for a Kingman man facing the death penalty in the stabbing death of a
Kingman woman won't take place until 2019.
Darrell Bryant Ketchner, 59, is charged with 1st-degree murder and burglary.
Prosecutors are seeking the death penalty, 1 of 2 capital cases in Mohave
County. 2 qualified defense attorneys are required in a death penalty case.
The Arizona Supreme Court overturned Ketchner's murder conviction and death
sentence in December 2014. The high court upheld his conviction and prison
sentence for attempted murder, 3 counts of aggravated assault and a weapons
Ketchner, whose case is being heard before Superior Court Judge Rick Williams
in Bullhead City, was back in court Tuesday morning with the judge allowing the
prosecutor until Aug. 31 to respond to a defense motion. No trial date has been
set, but the attorneys said they expected to be ready by the spring of 2019.
Jennifer Allison sat at her kitchen table on the night of July 4, 2009, with
her 18-year-old daughter, Ariel Allison, at their Kingman home. Ketchner chased
Jennifer Allison outside and shot her in the head as she lay in the driveway.
Ketchner went back inside and allegedly stabbed Ariel Allison 8 times in her
mother's bedroom, where she later died. Several other children escaped through
a window. Jennifer Allison survived her wounds.
Justin James Rector, 29, is the county's other death penalty trial. He is
accused of kidnapping and killing 8-year-old Isabella Grogan-Cannella on Sept.
2, 2014, in Bullhead City.
(source: Mohave Valley Daily News)
Hearings provide new details in crime spree, killing of woman
In the days following the death of Kaylee Sawyer in Bend last summer, suspected
killer Edwin Lara confessed his involvement in her death to virtually everyone
he encountered, according to a prosecutor, at one point saying he had an "urge
That's according to testimony given by a number of witnesses in court Monday.
It was the 1st of 5 days of scheduled hearings to discuss the admissibility of
evidence, specifically Lara's apparent confession and the evidence that
resulted from it.
Lara, 32, is charged with 4 counts of aggravated murder in the death of Sawyer,
23, on July 24. Deschutes County District Attorney John Hummel is seeking the
Monday's hearing centered on Lara's alleged California crime spree after the
death of Sawyer.
Still to be discussed is an apparent confession he gave to Bend police
officers, and whether he was read his Miranda rights beforehand, or was denied
an attorney after asking for one.
As with nearly all hearings in the case, a number of Sawyer's friends and
family were present in the courtroom Monday. A group huddled across the
courtroom's pewlike benches and prayed in anticipation of graphic testimony,
which included a 15-minute 911 recording where Lara discussed Sawyer's death.
Sawyer disappeared in the early morning hours of July 24 after a night in
downtown Bend. After getting in an argument with her boyfriend during the ride
home, Sawyer walked off from her house near Central Oregon Community College.
Friends and family never saw her again.
At Monday's hearing, Deschutes County Chief Deputy District Attorney Steve
Gunnels said in his opening statement that Lara was at work that night as a
security officer for the college. Gunnels said the scene of the killing was
parking lot B12, a gravel lot high up on the hilly campus surrounded by juniper
Investigators from the Central Oregon Major Crimes Team - made up of officers
from various law enforcement agencies - found drag marks and blood in the
parking lot, Gunnels said. The drag marks led up the hill to a location in the
brush where a significant amount of blood was found.
However, this is not where Sawyer's body was found. Police believe Lara put
Sawyer in the trunk of his car - where blood also was found - and transported
her body to the location on Highway 126 where it was found two days later.
Police found it after Lara alerted them to a note he left in a car he abandoned
The note 3 times had the number 18700, though there was no context. Police used
the Deschutes County property information database to run the number, which
turned up an address on Highway 126 between Sisters and Redmond.
Bend Lt. Brian Kindel testified that the body was dumped just off the side of
the road and wasn't covered with rocks or brush. He said a person could see
Sawyer's shoulder from the road side of the guardrail.
Lara fled to Salem after his then-wife, Isabel Ponce-Lara, confronted him the
day after the killing, accusing him of acting weird.
(source: The (Bend) Bulletin)
Why the U.S. could see more executions this year
The death penalty is in decline. In each of the past 7 years, the United States
has seen the number of executions fall or remain flat. This shift is part of an
overall trend that, since the turn of the century, has seen the death penalty
dwindle nationwide, although this year might see an increase in the number of
Capital punishment was at its modern peak in 1999, when there were 98
executions in the U.S.. During the mid-1990s, more than 300 people were
sentenced to death in 3 consecutive years. The issuance of death sentences
became increasingly rare, falling from 315 such penalties in 1996 to 31 in
2016, according to the Death Penalty Information Center, a Washington-based
nonprofit that tracks capital punishment activity. Executions similarly
plummeted, declining to 20 last year, the fewest in a quarter-century.
States are also moving away from capital punishment. There are 19 states
without the death penalty, and 7 of them abolished it or had courts strike down
the practice since 2007; several other states have official moratoriums on
executions or, lacking the ability to procure lethal injection drugs, are
simply unable to carry them out.
This year, it appears the country will see more executions than the year before
for the 1st time since 2009. There have been 14 executions so far in 2017,
equal to the number at this point in 2016. In a report issued this week, the
Death Penalty Information Center said it expects there will be "a slight
increase" in executions from the 20 carried out last year. Even with the
expected uptick in executions, the report noted, 2017 would still see fewer
executions than most years since 1990.
Part of the explanation for this potential increase rests with Ohio, one of the
more active death penalty states this century but a state that has, in recent
years, been unable to carry out executions. Ohio had been a consistent
executioner, carrying out at least one death penalty each year between 2001 and
2014. (During the same span, only Texas and Oklahoma had at least one execution
each year.) Ohio's last execution, in 2014, lasted nearly half an hour, 1 of 3
lethal injections that took an unusually long time that year.
Executions have been on hold in Ohio since. Ohio has postponed its planned
executions multiple times while changing the drugs it hoped to use to carry
them out, delaying planned lethal injections multiple times during the past few
years. Ohio was among many states that have had to scramble their lethal
injection protocols due to an ongoing drug shortage, and state officials had
said that they needed delay the executions due to the time it would take to
find new drugs.
"Ohio's executions have been delayed for years as Ohio struggled to obtain
execution drugs," the state said in a court filing earlier this year.
The state announced last year that it adopted a new lethal injection procedure
involving different drugs. With that in hand, Ohio said it intended to move
forward with the execution of Ronald Phillips, who was convicted of raping and
killing his girlfriend's 3-year-old daughter in 1993, as well as other
executions to follow. Phillips and other inmates challenged Ohio's execution
protocol, and a federal judge stayed their executions, prompting Ohio Gov. John
Kasich (R) to once again postpone executions in the state.
In June, a divided federal appeals court reversed that judge's stay,
potentially clearing the way for Ohio to resume executions later this month.
When Ohio changed its lethal injection protocol again last year, it said it
would use three drugs, which is roughly the same procedure in place in Florida,
Oklahoma and other states. (3-drug lethal injections used to be common in the
United States, but the drug shortage - spurred in part by drug companies'
objections to capital punishment - has forced some states away from that.) 1 of
those drugs, midazolam, has been repeatedly questioned for its utility in
lethal injections, an issue that has arisen after bungled, unusually long or
otherwise controversial executions in Ohio, Oklahoma, Arizona, Alabama and,
earlier this year, Arkansas.
The U.S. Court of Appeals for the 6th Circuit dismissed claims made by Phillips
- along with 2 other inmates scheduled to be executed this fall - that the new
Ohio execution protocol would cause them unconstitutional pain. Allen Bohnert,
one of the attorneys representing the death-row inmates, criticized the
decision and vowed to challenge it at the U.S. Supreme Court.
In one of the dissents, Judge Jane B. Stranch highlighted declining public
support for capital punishment. A Pew Research Center survey last year found
that American support for the death penalty fell below 50 %, its lowest level
since the 1970s. A Gallup poll showed support remained at 60 %. Both polls
ultimately showed support is far below where it was in the 1990s, when 4 out of
5 Americans backed the practice. In Ohio, though, a 2015 poll showed higher
support for executions than in the rest of the country.
Phillips's execution is scheduled for July 26, more than 3 1/2 years after
Ohio's last lethal injection. Three executions are set to take place in
September, October and November. If those executions are carried out, along
with five planned in Texas by the end of the year, they will push this year's
total executions nationwide ahead of last year. Other executions could be added
to the calendar, and it is possible not all of those scheduled will take place,
as executions are routinely postponed. Even Texas, long the country's leader in
capital punishment, is not immune to delays and has seen a handful of
executions delayed or execution dates changed for various reasons recently.
In Ohio, state officials say they are moving ahead with preparations for
Phillips's execution. Under Ohio's execution protocol, by this point officials
must have had medical staff evaluate Phillips to look for potential problems in
placing the IV (which was blamed as the issue behind a bungled Oklahoma
execution in 2014). 2 weeks before the scheduled execution - Wednesday -
officials also are directed to make sure the state has enough lethal-injection
drugs to carry out the procedure.
In a court filing in Phillips's case, Ohio officials said they "ensured that it
could obtain all 3 drugs" before changing the execution protocol. A spokeswoman
declined to answer questions about Ohio's supply of the drugs.
"To date all steps of Ohio's execution protocol have been complied with in
preparation of the execution scheduled later this month," JoEllen Smith, the
spokeswoman for the Ohio Department of Rehabilitation and Correction, said in a
(source: Washington Post)
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