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death penalty news----TEXAS, FLA., ALA., TENN., ARK., OKLA., COLO.
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Rick Halperin
2017-09-30 13:40:09 UTC
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Sept. 30




TEXAS:

Texas Set to Execute Man Despite DNA Evidence Excluding him from Murder



A Texas man on death row is scheduled to be executed on November 16, even
though DNA evidence excludes him from a 1998 murder for which he was convicted.

In 2000, Larry Swearingen was sentenced to the death penalty for the murder and
rape of 19-year-old Melissa Trotter.

Since then, Swearingen has maintained his innocence and fought for DNA testing
of evidence including Trotter's clothes, the murder weapon and a rape kit.

Texas courts have struck down his repeated requests.

But some DNA testing has been performed.

And it supports Swearingen's innocence, according to the Innocence Project.

Blood from beneath Trotter's fingernails excluded Swearingen and yielded the
profile of an unknown man.

To this day, Trotter's clothes have never been tested for DNA and the swabs in
the rape kit collected from her body were also never tested.

Cigarette butts found at the scene of Trotter's murder could have been swabbed
for saliva, which would reveal DNA.

But they never were.

Since Swearingen's conviction, Texas has made improvements with its
post-conviction DNA testing statute.

Swearingen was twice granted DNA testing.

But the state Court of Criminal Appeals struck down his request, ruling the
court should only consider whether the DNA evidence would exclude Swearingen
and should not be required to "rely on the ramifications of hypothetical
matches" to an unknown genetic profile.

"The notion that they're expressing - which is that we only consider
exclusionary results - has nothing to do with how DNA actually works," Bryce
Benjet, one of Swearingen's attorneys, told The Intercept.

"I don't know why they haven't figured that out, but the end result of that
error is that DNA testing is no longer available to most people in prison."

Under a 16-year statute, defendants have rights to testing only if several
conditions are met including the requirement to establish "by a preponderance
of the evidence" that "the person would not have been convicted if exculpatory
results had been obtained through DNA testing."

In 2011, legislators revised the statute to require unidentified DNA profiles
be uploaded to a government database.

The DNA found under Trotter's fingernails was not linked to a known offender,
which would bolster Swearingen's claim of innocence.

DNA matches to offenders in the government database occurred in roughly 42 % of
351 DNA exonerations to date, according to the Innocence Project.

(source: photographyisnotacrime.com)








FLORIDA----impending execution

Florida Supreme Court denies Death Row inmate's appeal. Execution scheduled
Thursday.



The Florida Supreme Court on Friday said it won't reconsider the case of a
longtime death row inmate who is scheduled to be put to death next week.

The ruling means the execution of convicted double-murderer Michael Lambrix
will, for now, take place as planned at 6 p.m. Oct. 5.

Lambrix had filed another challenge to his death sentences - his 8th successive
post-conviction motion, the court said - on the basis of recent changes to
Florida's death-penalty sentencing procedures, which were prompted by a U.S.
Supreme Court ruling in a case known as Hurst v. Florida.

That ruling in January 2016 demanded Florida fix its then-unconstitutional
procedures. The Legislature enacted changes this spring so now a unanimous jury
recommendation is required in all death penalty cases.

In his latest request for the Florida Supreme Court to rehear his case, Lambrix
argued that his death sentences are unconstitutional under Florida's new law
because they came from non-unanimous juries. He also argued the state Supreme
Court's decisions on how the Hurst opinion applied retroactively to previous
death sentences was a violation of equal protection rights.

Following Hurst, the Florida Supreme Court in December cemented death sentences
for nearly 200 prisoners - including Lambrix - whose sentences were finalized
before a June 2002 U.S. Supreme Court ruling referenced in the Hurst decision.

The justices cited their December decision and related rulings as their reasons
for denying Lambrix's request for a rehearing. The Supreme Court had also
previously ruled that Lambrix "is not entitled to relief based on Hurst"
because of when his sentences were finalized, which they emphasized again
Friday.

"While it is true that the jury non-unanimously recommended death for the 1983
murders of the 2 victims, Lambrix's sentences were final in 1986," the court
wrote in its majority opinion. "No rehearing will be entertained by this
court."

The decision was 5-1, with Justice Barbara Pariente dissenting. The court's 7th
justice, Peggy Quince, recused herself.

Pariente said she preferred to vacate Lambrix's death sentences and send the
case back to a lower court so Lambrix can be re-sentenced - the same process
that's affecting dozens of death cases finalized after June 2002.

Lambrix could still appeal to the U.S. Supreme Court.

A circuit court judge earlier this month first denied Lambrix's request for a
rehearing, and the justices wrote this week that they expedited his appeal "in
light of the pending execution date."

Gov. Rick Scott signed a new death warrant a few weeks ago that set Lambrix's
execution for Oct. 5.

Lambrix has been on death row since 1984 after he was convicted in 1983 of
murdering Aleisha Bryant and Clarence Moore Jr., following a night of drinking
in Glades County.

Scott's office described the crime as Lambrix having "lured Moore outside, and
viciously attacked him with a tire iron, repeatedly hitting him in the head and
fracturing his skull. Lambrix then called Bryant to come outside, where he
attacked her, kicking her in the head and strangling her."

But in an interview with the Herald/Times in 2016, Lambrix contended that Moore
strangled Bryant and that he used a tire iron to fatally batter Moore in
self-defense. He admitted that he and his girlfriend, Frances Smith, buried
both victims in a shallow grave and that he refused to call police because he
was a fugitive from a prison work detail.

Lambrix was previously set to die in February 2016, but his execution was
halted then amid the questions over the constitutionality of Florida's death
penalty law.

(source: miamiherald.com)

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

Luis Toledo: Death penalty remains on table for man accused of killing wife,
children



The death penalty will remain on the table for a 35-year-old Volusia County man
who is accused of killing his wife and her 2 children when his case goes to
trial Monday, a judge ruled Friday.

Attorneys for Luis Toledo tried to convince Volusia County Circuit Judge Raul
Zambrano to strike the death penalty, saying prosecutors failed to follow some
procedures. But their motion was denied.

Toledo's wife, Yessenia Suarez, 28, and her children, Thalia Otto, 9, and
Michael Otto, 8, disappeared from their Deltona home in October 2013. They have
not been found.

Investigators said Toledo confessed to killing Suarez but denied killing her
children.

Attorneys filed a motion to not allow jurors to hear police officers refer to
Toledo by his nickname "Semi" -- an allusion to Toledo's mixed-martial arts
training, which insinuates that he hits as hard as a tractor-trailer. But
Zambrano also denied that motion.

Attorneys filed a motion to have the jury sequestered, but Zambrano denied that
request.

"When (potential jurors) come in, they don't know why they are there, so they
don't know what case they're getting," defense attorney Jeff Deen told Channel
9. "They start hearing (about) it and look in the back of the room and see your
cameras there."

The defense also argued to keep other evidence out, including a fight the
couple had 6 days before Suarez disappeared.

"There was potentially even an attempt to try to stab her with this knife. We
don't want the jury to hear about that," said defense attorney Michael Nielsen.

The judge ruled it was relative to the case and should be used.

Toledo's case will be tried in St. Augustine because of the publicity it has
received.

(source: WFTV news)








ALABAMA----impending execution

Alabama has set 10.19.17 as an execution date for Torrey Twane McNabb



Please contact Governor Kay Ivey and ask her to stay this execution

THE HONORABLE GOVERNOR Kay Ivey

STATE CAPITOL N 104

600 Dexter Ave

MONTGOMERY, AL 36130 2751

PHONE 1-334-242-7100

FAX: 1-334-242-3282

Email: http://governor.alabama.gov/contact/

1) The 11th Circuit recognized that there are "serious questions" about the
constitutionality of Alabama's execution procedure which should put all
executions on hold.

2.Mr. McNabb has a pending case in Montgomery Circuit Court challenging the
legality of his death sentence after the Supreme Court's decision in Hurst v.
Florida...

3) . A Kentucky judge ruled that the death penalty is unconstitutional for
persons under the age of 21. The appeal is to be heard by the U.S. Supreme
Court. Mr. McNabb was 20 at the time of the crime of which he was found guilty.

4). Alabama ought to delay all executions to allow for a thorough study of its
capital punishment process and consider the serious objections raised as to how
it administers the death penalty.

(source: phadp.org)








TENNESSEE:

Holly Bobo's Parents Reveal Why They Agreed to Let Her Rapist and Murderer
Avoid the Death Penalty



Holly Bobo's parents say in a new interview that they agreed with prosecutors
to let her convicted killer be spared a possible death sentence so that they
could "hopefully" begin to recover from her murder more than 6 years ago.

Dana and Karen Bobo discussed the decision in a sit-down with ABC News' 20/20,
airing on Friday night and exclusively previewed above.

Asked why they chose to spare 33-year-old Zach Adams the possibility of an
execution, Karen says it was about their own peace: "So that we can hopefully
start doing a little bit of healing."

Adams was convicted on Sept. 22 of kidnapping, rape and 1st-degree murder in
connection with Holly's slaying. He was sentenced the next day to life in
prison without the possibility of parole, plus 50 years.

Holly, a 20-year-old nursing student, vanished from her home in Decatur County,
Tennessee, on April 13, 2011. Her remains were found 3 years later, in the
woods not far away.

Adams was the 1st of 3 suspects to go on trial in Holly's death. Jason Autry
and John Dylan Adams, Zach's brother, are also charged.

(source: people.com)








ARKANSAS:

Arkansas death-row inmate too 'psychotic' to kill, lawyers argue



In an attempt to stop his pending execution, lawyers for inmate Jack Greene on
Thursday filed more than 100 pages of records that they say paint the picture
of a delusional man who is unfit for the death penalty.

In addition to his bid in Jefferson County Circuit Court to be declared
incompetent, Greene also will seek clemency from the governor, the state
prisons department said Thursday.

Greene, convicted of killing a retired minister, is scheduled to die Nov. 9.
His attorneys from the federal public defender's office in Little Rock say
Greene has a "psychotic disorder" after spending more than a decade locked
behind a solid metal door in a one-man cell.

Greene's disorder causes him to stuff tissues in his nose and ears to the point
where he bleeds, according to a complaint brief filed Thursday. He also
frequently stands on his head to numb a sense of pain. Greene lashes out at his
attorneys, they wrote, and accuses them of being involved in a conspiracy
against him.

Greene's IQ has been measured at 76, or "within the range for intellectual
disability," his attorneys wrote.

Because the U.S. Supreme Court has ruled prisoners are unfit to be executed if
they cannot comprehend their own death sentence or the reason for it, Greene's
attorneys are asking the Jefferson County Circuit Court to order an independent
evaluation to determine Greene's competency.

The complaint filed against Department of Correction Director Wendy Kelley also
charges that the prison system's existing method for gauging a death row
inmate's mental fitness falls short of the U.S. Supreme Court's standards for a
"fair hearing" and is unconstitutional.

Attorney General Leslie Rutledge's office is representing the prisons
department. A spokesman for Rutledge said Thursday that she is reviewing the
complaint.

"The family of the victims deserve closure and the Attorney General will
continue to work on their behalf to see that justice is done," said the
spokesman, Judd Deere, in a text.

Greene, 62, is the oldest prisoner on Arkansas' death row at the Varner
SuperMax Prison. He was convicted in 1992 of killing Sidney Burnett inside his
Johnson County home the year before.

According to court records, Burnett and his wife, Edna, had for a time hired
and housed Greene. In 1991, three days after Greene had fled North Carolina
after killing his brother, he returned to the Burnetts' house and killed Sidney
Burnett. When he was arrested in Oklahoma, he was driving Sydney Burnett's
pickup.

Under an agreement signed with then-Gov. Bill Clinton, North Carolina
extradited Greene to Arkansas on the condition that he be returned if given any
sentence other than death. Greene's life sentence for killing his brother was
later thrown out because a North Carolina judge declined to hire an outside
psychiatrist to evaluate him.

The extradition agreement with North Carolina "would prove to be an unshakable
fixation of Greene's," wrote John C. Williams, one of his public defenders, in
the complaint filed Thursday. Greene believes that his attorneys are conspiring
to keep him from being extradited to North Carolina, where he believes he will
get better medical treatment, the complaint states.

Williams and Greene's other attorneys attached years of records documenting his
mental illness, childhood and writings to prison officials.M

According to the complaint, Greene eats his meals from the sink in his cell
after tossing the food from his tray, which he returns immediately to guards
because he believes their repeated opening of the slot in his door is causing
him hearing loss and concussions.

"Mr. Greene is a severely mentally ill man -- exactly the kind of person our
laws prohibit from execution," said another of Greene's federal public
defenders, Scott Braden, in a press release. "Decency requires that, at the
very least, Arkansas must hold a hearing, with a neutral decision-maker, to
examine Mr. Greene's competency to be executed."

Another death row inmate, Bruce Earl Ward, claimed to be mentally incompetent
ahead of his scheduled execution in April. The state Supreme Court stayed his
execution on related grounds. His case is ongoing.

A separate clemency hearing for Greene is set for Wednesday at the Varner
prison. Few condemned prisoners in Arkansas are granted such a reprieve.

Prior to the state's plans to execute 8 men in April, 6 sought clemency. Only 1
bid was viewed favorably by the Parole Board and later approved by Gov. Asa
Hutchinson. 4 men were executed.

Also Thursday, the Arkansas Supreme Court agreed to speed up its consideration
of a case in which a Little Rock attorney is seeking records about the state's
execution drugs. The justices on Wednesday stayed an order from a lower court
to produce the records this week, but they then issued a new schedule that
would allow them to decide the issue before Greene's execution.

(source: arkansasonline.com)








OKLAHOMA:

Not insane: Moore beheading defendant found guilty of 1st-degree murder and
assaulting 5 others----Penalty phase begins Monday, prosecutors seek death
penalty



His jury quickly rejected his insanity defense, reaching the guilty verdicts in
less than 2 hours.

Nolen, 33, of Moore, had no reaction as Cleveland County District Judge Lori
Walkley read the verdict. He sat with his head down, his eyes closed and his
fingers in his ears, as he has throughout the trial.

The jury returns Monday to begin the trial's penalty phase, which could last
all week or longer. Prosecutors are seeking the death penalty.

(source: Tulsa World)








COLORADO:

Rethink death penalty in light of widespread government misconduct



The post-conviction review court has made findings in the Sir Mario Owens case.
It is now established as fact that prosecutors deliberately and/or recklessly
allowed 2 key witnesses for the state to present false evidence to the jury
and, "with no legal justification," failed to correct those falsehoods.

It is also now established as fact that prosecutors failed to disclose
exculpatory evidence (i.e., evidence that points to a defendant's innocence or
impeaches the credibility of the witnesses against him) in more than 20
instances, concerning no fewer than 10 state witnesses. At the prosecution's
urging, the court found that these facts - somehow - do not merit relief.

We beg to differ and trust that the Colorado Supreme Court or the federal
courts will reach different conclusions. Facts matter. Justice depends on
getting basic principles right. When the government uses improper tactics to
distort the truth and to hide evidence, stark moral clarity is demanded.

An Arapahoe County District Court judge recently denied the death penalty
appeal of convicted killer Sir Mario Owens. Senior Judge Christopher Munch
ruled that Owens received a fair trial despite the fact that prosecutors
withheld some evidence that could have been favorable to his side.

Other courts have recognized that when prosecutors behave with disregard for
their constitutional obligations, it erodes public trust in our justice system,
and chips away at the foundational premises of the rule of law. When courts
acknowledge, yet forgive such transgressions, they invite their repetition.

Our criminal justice system becomes inherently vulnerable when prosecutors
present false evidence and hide exculpatory evidence. Systemic failings cause
innocent people to be wrongly convicted and executed.

Colorado's legislature established post-conviction review to ensure that if our
state is ever going to execute a citizen in its name, then the process needs to
be acutely trustworthy. The post-conviction court determines whether police and
prosecutors disclosed all of the evidence in the case. Government misconduct is
a primary cause of wrongful convictions and, once exposed, a leading factor in
exonerations.

In the overwhelming number of criminal cases, Colorado's district attorneys
practice an open file policy - meaning they open their entire file for defense
inspection. But the 18th Judicial District's office does not adhere to an open
file policy. A judge previously threw out the conviction of another capital
defendant because that office hid exculpatory evidence. The court has now
confirmed that the practice continued in Owens.

The post-conviction court has now found that both police and prosecutors hid
vast amounts of exculpatory evidence. Records showed that the DA's office
funneled thousands of dollars to their witnesses. Prosecutors worked secret
deals that enabled witnesses to avoid lengthy incarceration in exchange for
testimony. Prosecutors even promised 1 key witness a car bought by taxpayers.
The car was delivered after the trial. The DA's office allowed witnesses with
criminal convictions to abscond from probation or commit new crimes with no
consequences, so long as they testified in the prosecution's favor. This
information was not disclosed to the defense, the court, or the jury.

This case has been George Brauchler's responsibility for the past 5 years.
Brauchler not only has failed to take any responsibility for the egregious
misconduct, he has affirmatively continued the office's practice of hiding
evidence. For example, the case was delayed for a year and half while he forced
Colorado's Supreme Court to consider and later reject his efforts to hide
possibly exculpatory material concerning highly questionable conduct on the
part of a juror. It wasn't discovered until 2015 that Brauchler's office had
maintained secret files that contained still more favorable evidence showing
hidden payments to state's witnesses.

The pattern and practice exhibited by Brauchler's office and that of his
predecessor tarnish the well-deserved image of so many of Colorado's honest and
hardworking prosecutors who actually follow constitutional requirements and
take their responsibilities seriously. When prosecutors present false evidence
in the name of the people and hide exculpatory evidence, the state loses any
moral authority it might otherwise have to impose the ultimate punishment.

In the 43 years since Colorado reinstated the death penalty, our state has
spent between $100-$200 million on capital punishment. And yet, that massive
expenditure has yielded 1 execution.

The time has come for Colorado to seriously consider whether the death penalty
makes sense, given the financial burdens and misconduct that come with it.

(source: Guest Commentary; James Castle and Jonathan Reppucci are Denver
lawyers appointed by the court to represent Sir Mario Owens----Denver Post)

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