2017-06-22 12:46:59 UTC
Death penalty is 'expressed intention' for Georgia inmates accused of killing
A Georgia judge said today the death penalty is the "expressed intention" for
inmates Donnie Russell Rowe and Ricky Dubose, who were on the run for over 48
hours after 1 of them shot and killed 2 correctional officers.
A Putnam County judge did not grant bond for the men. Their next court date was
set for Sept. 18.
Rowe and Dubose were on a transport bus on June 13 when they allegedly breached
a protective gate, reaching Baldwin State Prison officers Christopher Monica,
42, and Curtis Billue, 58, at the front of the bus. The inmates allegedly
disarmed and killed them both, officials said. It was unclear which inmate shot
and killed the 2 officers.
The prisoners, armed with the officers' weapons, then allegedly carjacked a
nearby vehicle and spent over 48 hours on the run.
They were captured in Tennessee on June 15 after leading police on a high-speed
Couple's dramatic 911 call after being held hostage by escaped Georgia inmates:
'Get the police out here'
Rowe and Dubose were cellmates and friends in prison, and may have planned
their escape; however, the bus ride on June 13 was unscheduled, officials said.
At the time of the shooting, 31 other inmates were on board the bus, which was
en route to a diagnostic facility when the escape took place. Those inmates
provided assistance to investigators, officials said.
Rowe was serving life without parole for armed robbery, the department of
corrections said, and Dubose was serving a 20-year sentence for armed robbery.
The Georgia Department of Corrections said in a statement that the slain
officers "were known for their unwavering commitment to their job and their
love of family."
Georgia Department of Corrections Commissioner Gregory Dozier said, "Our hearts
are heavy as we mourn the loss of 2 of our officers, who are our family."
With new death penalty rules on the books, judge vacates sentences in 2 old
2 men, long ago convicted of murder in separate cases in St. Johns County and
sentenced to death, have had their sentences vacated and been given an
opportunity to have the penalty portion of their trials heard again.
The recent orders from Circuit Court Judge Howard Maltz came in response to
motions filed on behalf of James Daniel Turner and Norman Blake McKenzie that
sought to have the sentences thrown out after the U.S. Supreme Court struck
down Florida's old sentencing scheme for death penalty cases.
Their convictions stand but each shall be granted a new penalty phase "if the
State still desires to seek the death penalty," the orders say.
A jury convicted Turner of 1st-degree murder in 2007 for the 2005 stabbing
death of Renee Boling Howard of Crescent Beach after he escaped from a South
Carolina prison. Then-Circuit Court Judge Wendy Berger sentenced him to death
in 2008 after a 10-2 jury recommendation for the sentence during the penalty
phase of his trial.
Berger, who now serves on the 5th District Court of Appeal, also handed down
two death sentences for McKenzie after two 10-2 recommendations from a jury in
2007. Months earlier, jurors had convicted him of 1st-degree murder for killing
Randy Wayne Peacock and Charles Frank Johnston with a hatchet. Peacock was also
It was those 10-2 juror recommendations that were at the heart of Maltz's
orders in response to what are now often referred to as "Hurst motions."
The name is a reference to the January 2016 U.S. Supreme Court decision in the
case Hurst v. Florida that found Florida's sentencing procedures were
The court found that the procedures violated the defendant???s right to a trial
by jury by allowing the judge to make the final decision after considering the
jury's recommendation. It also took issue with those recommendations having to
come from only a majority of jurors rather than a unanimous decision.
Legislators responded that same year by passing a new law that required a 10-2
vote from jurors for a death sentence, but that was quickly shot down by the
Florida Supreme Court, which found that the Hurst decision, and its predecessor
- a 2002 decision in Ring v. Arizona in which the U.S. Supreme Court examined
many of the same issues - meant that a unanimous decision from jurors was
needed for a death sentence.
Gov. Rick Scott signed a new law in March requiring just that.
Assistant State Attorney Jason Lewis told The Record on Wednesday that the new
law, in conjunction with the "guidance" from the Florida Supreme Court, means
that any death sentence that was made final after the Ring decision can be
Lewis said that in the 7th Judicial Circuit, which includes Volusia, Flagler,
St. Johns and Putnam counties, there are around 30 death penalty cases and
about 1/2 of them appear eligible for a challenge.
"From what we've looked at so far, we have about 15," he said, adding that,
right now, judges seem to be vacating only those sentences in cases in which
the jury recommendation was not unanimous.
For instance, Lewis said, the Florida Supreme Court recently upheld the death
sentence for Quentin Marcus Truehill that was based on a unanimous
recommendation, saying that what constitutes a "Hurst error" is rendered
"harmless" if all the jurors agreed when they sent their recommendation to the
A jury in 2014 convicted Truehill, a prison escapee from Louisiana, of murder
for killing Vincent Binder, a 29-year-old Florida State University graduate
student, and dumping his body in St. Johns County.
Maltz applied similar reasoning as the Florida Supreme Court in March when he
declined to vacate a death sentence for John Christopher Marquard, who, in 1993
was sentenced to death for 1st-degree murder.
Because the sentence predated the Ring decision, Maltz wrote, Marquard was not
"entitled to retroactive Hurst relief."
Even if he were to apply Hurst to the case, he added, Marquard still would not
be entitled to the relief "because the jury's unanimous recommendation of death
rendered any error harmless."
For the sentences that do get overturned, Lewis said he and his colleagues deal
with them on a case-by-case basis.
Prosecutors consult with the victims' families to see if there is still desire
to seek a death penalty and then make a decision as to how they will proceed,
That is what has been set in motion now with Monday's orders in the Turner and
"Once those orders come out we have 45 days," Lewis said.
(source: St. Augustine Record)
Nebraska inmate facing death penalty for allegedly killing cellmate files
motion contesting its constitutionality
A recent change in lethal injection procedure intended to enable Nebraska to
carry out executions has been challenged by an inmate facing a potential death
Concerns over the new drug protocol are among the 11 arguments in a motion
filed this week by attorneys for Patrick Schroeder, who seeks to have
Nebraska's death penalty law declared unconstitutional.
Schroeder, who is already serving a life sentence for murder, now faces the
death penalty for allegedly choking to death his cellmate, Terry Berry Jr., on
April 15 inside a special management unit cell at the Tecumseh State Prison.
He was scheduled to be arraigned Tuesday in Johnson County District Court and
enter a plea.
Instead, District Judge Vicky Johnson scheduled a July 28 hearing on
Schroeder's motion to overturn the death penalty.
"Our society can no longer kill to show that killing is wrong,' stated the
motion to quash, filed by defense attorneys Todd Lancaster and Sarah Newell
with the Nebraska Commission on Public Advocacy.
Johnson County Attorney Rick Smith, who is prosecuting the case with the
Nebraska Attorney General's Office, declined to comment.
"We will argue it at the hearing," he said.
Among issues raised by Schroeder in the 32-page motion:
-- The death penalty in Nebraska is racially discriminatory, considering that
only 1 of the 9 men sent to death row since the law was amended in 2002 is
white. 5 are Hispanic and 3 are black.
-- The death penalty is applied unevenly based upon geography. Since 2002, all
death penalty cases have originated in 4 of Nebraska's 93 counties: Douglas,
Madison, Scotts Bluff and Hall.
-- Nebraska's death penalty procedure requires juries to decide the
aggravating factors necessary to impose death, but it requires a 3-judge panel
to weigh the mitigating factors in a defendant's favor. Such a 2-step process
that limits the jury's role is similar to one used in Florida that was found
unconstitutional by the U.S. Supreme Court in 2016.
-- Evolving standards of decency in a "mature society" have made the carrying
out of executions increasingly rare in the U.S. Just 10 states are responsible
for 83 % of the 1,442 executions since 1976, the motion stated. Last year, the
20 total executions carried out were in 5 of the 31 states with capital
punishment. Nebraska has not executed an inmate since 1997, when the method was
the electric chair.
The highest courts in the states and the nation have previously banned the
execution of juveniles, the mentally ill and the developmentally disabled. They
also have prohibited methods once commonly used as cruel and unusual
"The rejection of the nooses, bullets, gas and electricity signaled not only
the discomfort with the method of execution, but with the death penalty
itself," the motion stated.
Though Schroeder has not been convicted of the prison homicide, let alone
sentenced, the motion was filed at this early stage to properly preserve the
issues for appeal.
The death penalty challenge comes several months after voters reinstated
capital punishment. More than 60 % of those who cast ballots in November voted
to reverse the Legislature's repeal of the death penalty in 2015.
In an effort to create a viable death penalty procedure in the wake of that
vote, the Nebraska Department of Correctional Services changed the lethal
injection protocol earlier this year. That change is under attack by Schroeder.
Under the former protocol, inmates were to be put to death with injections of
three substances in a specific order. But obtaining some of the drugs specified
in the protocol became increasingly difficult for prison officials.
The new protocol gives the prisons director wide latitude in deciding the types
and quantities of drugs to be used. He also may opt to use a single drug, as
long as it first causes the inmate to lose consciousness.
Schroeder's motion argues that the Legislature has unlawfully delegated its
lawmaking authority to the prisons director to decide what drugs to use.
The motion also challenges the death penalty statutes for giving too little
guidance as to when the penalty should be sought and applied. As a result,
individual county attorneys decide who will be put to death in a manner that is
"arbitrary and capricious" in violation of the U.S. Constitution.
"The decision to file aggravating circumstances can be affected by the legal
experience of the prosecutor, the size and resources of the particular county,
any prejudice or bias of the prosecutor, the political ambition of the
prosecutor or other political circumstances," the motion stated.
(source: Omaha World-Herald)
The Supreme Court's Mixed Year on Capital Punishment
The U.S. Supreme Court's latest term, which ended this week as the justices
began their summer recess, saw death-penalty opponents achieve some notable
victories even as the Court moved further away from abolishing capital
In one of those wins Monday, the justices vacated an Alabama death-row inmate's
sentence after ruling the state had not given him adequate professional
assistance to evaluate his mental health during his trial more than 3 decades
ago. The Court said the state's failure to provide James McWilliams with the
experts required under one of its 1985 rulings made his sentence
"Since Alabama's provision of mental-health assistance fell so dramatically
short of what Ake [v. Oklahoma] requires," Justice Stephen Breyer wrote for the
majority, "we must conclude that the Alabama court decision affirming
McWilliams's conviction and sentence was 'contrary to, or involved an
unreasonable application of, clearly established Federal law.'" He quoted from
a federal statute governing certain appeals from state courts.
In Ake, the Court ruled that states must provide impoverished defendants with
access to "sufficiently independent" mental-health experts for help during
trials. Shortly after that ruling came down, McWilliams was charged with the
rape and murder of a convenience-store clerk. The trial court appointed John
Goff, a neuropsychologist who worked for the state's Department of Mental
Health, to evaluate McWilliams as a neutral party. After he filed his report,
the court denied the defense's request for an independent expert to help them
understand the report and its implications.
The ruling fell along the traditional ideological divide, with Justice Anthony
Kennedy joining the Court's liberal wing. Justice Samuel Alito, writing for
himself and 3 conservative colleagues, sharply criticized the majority for
disregarding the question the justices had been asked to resolve when they took
the case. Instead of deciding whether Ake required a mental-health expert for
the defense, and not simply a neutral one for both sides, the majority held
that Alabama's assistance to McWilliams fell short of the Court's current
standards for indigent defendants with signs of mental-health issues.
"Neither Dr. Goff nor any other expert helped the defense evaluate Goff's
report or McWilliams' extensive medical records and translate these data into a
legal strategy," Breyer wrote. "Neither Dr. Goff nor any other expert helped
the defense prepare direct or cross-examination of any witnesses, or testified
at the judicial sentencing hearing himself."
Monday's ruling was the 3rd of 4 capital-punishment cases the Court heard this
term. Their ruling on one final case could come as soon as Thursday morning. In
February, the justices vacated the death sentence of Texas inmate Duane Buck in
a long-running racial-bias case. At the center of the dispute was testimony
from psychologist Walter Quijano, who was called to the stand by Buck's lawyer
during the sentencing phase of his trial in 1995. Quijano told the jury about
his statistical model for evaluating "future dangerousness," 1 of the
thresholds Texas uses to determine whether a defendant receives life
imprisonment without parole or a death sentence. 1 of the factors in Quijano's
model was race.
"It's a sad commentary that minorities, Hispanics, and black people, are
over-represented in the criminal-justice system," Quijano told jurors at one
point. When Buck appealed his sentence, Texas countered that the statements
were only a minor part of days of testimony. But Chief Justice John Roberts,
writing for the Court in a 6-2 majority, said it was enough to toss out the
sentence. "Some toxins are deadly in small doses," he wrote.
"What does this case tell us about a capital-punishment system that, in my
view, works in random, virtually arbitrary ways?"
Kennedy and the Court's liberal justices also sided with the inmate in Moore v.
Texas, an intellectual-disability case, in March. A Texas jury gave Bobby Moore
a death sentence in 1980 for killing a convenience-store clerk during an armed
robbery. After the Court banned the execution of people with intellectual
disabilities in 2002's Atkins v. Virginia, Moore appealed his sentence on those
grounds. A state court gathered a wealth of evidence from doctors and
psychologists, concluding Moore should receive life imprisonment without parole
and be retried.
But the Texas Court of Criminal Appeals rejected the lower court's decision and
instead relied upon an outdated set of seven factors from one of its earlier
cases to make its decision. The factors were not grounded in medical authority.
Instead, they focused on the subjective perceptions of laypersons and family
members to determine a defendant's mental disability. All 8 justices agreed the
factors were unacceptable for capital cases, but Roberts, Alito, and Clarence
Thomas dissented from the means by which the majority reached its decision.
The Court has yet to hand down a ruling in its fourth death-penalty case,
Davila v. Davis. At issue in that dispute is an arcane but important procedural
question about when a death-row inmate can claim his or her lawyer was
unconstitutionally ineffective during the appeals process. At oral arguments in
April, the justices appeared to be leaning toward a ruling in favor of the
Texas Department of Criminal Justice.
But this term the justices did not take up any cases on a question frequently
pushed by one of their colleagues: whether the death penalty itself violates
the Eighth Amendment's prohibition against cruel and unusual punishment. In
2015, Breyer dissented from a major case on botched lethal injections and said
it was time for the Court to reconsider the constitutionality of capital
punishment. His dissent, which was joined by Ruth Bader Ginsburg, reopened a
battle over the death penalty that had once faded from the court.
Some observers - myself included - speculated at the time that Breyer's dissent
signaled the justices could actually abolish the practice for a second and
likely final time. (The Court struck down all death-penalty statutes nationwide
in 1972, then approved a raft of revised state laws 4 years later.) Assuming
all four justices on the Court's liberal wing would agree to strike down the
death penalty, only the vote of Kennedy - an intermittent voice in reducing the
punishment's scope - and the proper case would be needed.
After 2 years, the Court has yet to consider the question despite multiple
petitions asking the justices to do so. Kennedy's opinions on capital
punishment have not noticeably changed in tone or tenor since Breyer's dissent
in the lethal-injection ruling. And Donald Trump's electoral victory in
November increased the likelihood that Kennedy or 1 of the 4 liberals could be
replaced by a conservative stalwart, which would likely foreclose abolition for
Breyer has still continued to urge his colleagues to take up the issue. When
Arkansas attempted to execute 8 inmates in 10 days in April, he sharply
criticized the state for putting them to death only because its
lethal-injection drug supply was about to expire. "In my view, that factor,
when considered as a determining factor separating those who live from those
who die, is close to random," he wrote when his colleagues denied a request
from 1 of the inmates for a stay of execution.
A few days later, when the Court rejected the petition of an Arizona prisoner
who had spent almost 4 decades in solitary confinement awaiting execution,
Breyer said it underscored the need for the Court to revisit the death penalty.
"What legitimate purpose does it serve to hold any human being in solitary
confinement for 40 years awaiting execution?" he asked. "What does this case
tell us about a capital-punishment system that, in my view, works in random,
virtually arbitrary ways?" None of his colleagues joined either of his
Rodriguez death penalty appeal: Defense experts say asphyxiation likely cause
of Sjodin's death
The defense presented 2 more witnesses Wednesday, June 21, in an evidentiary
hearing in the death penalty appeal of Alfonso Rodriguez Jr.
Testimony from Dr. Jonathan Arden, a forensic pathologist and owner of Arden
Forensics, and Dr. Ljubisa Dragovic, the chief medical examiner for Oakland
County, Mich., filled the 2nd day of the hearing in U.S. District Court, and
mirrored that of the 2 experts who testified Tuesday.
Rodriguez was convicted of the November 2003 kidnapping and murder of
University of North Dakota student Dru Sjodin.
As with Tuesday's testimony, the defense experts disagreed with the conclusions
of Dr. Michael McGee, the Ramsey County, Minn., medical examiner who autopsied
Sjodin's body after it was found in a ravine near Crookston, Minn., in April
McGee had said it appeared Sjodin's throat had been slashed and that she had
suffered a stab wound on her right side. He also said that while no semen had
been found, acid phosphatase levels found on Sjodin's body indicated she had
likely been sexually assaulted.
Attorneys from the Federal Community Defender Office contend that the testimony
of stabbing and sexual assault may have influenced the jury in the 2006 death
penalty phase of Rodriguez's trial.
Arden said he could find no evidence that a sharp knife or object had been used
to slash or stab Sjodin's neck or right side. He said decomposition and other
factors tied to the body having been left exposed to the elements for 5 months
left little tissue to be examined.
"There's no stab wounds" or anything else that "indicates the use of a knife at
all," Arden said.
Arden said other areas on Sjodin's body showed similar damage to that seen on
her right flank, but were not described as being caused by a knife. In
addition, there was no description of internal organ damage from a knife thrust
or hemorrhaging of blood that would result.
His original opinion was that Sjodin died of asphyxiation and strangulation
with a cord, though he revised that in 2016 to include possible force to the
neck after Rodriguez said in an interview that he pressed on the front of
Arden also said the acid phosphatase levels found on Sjodin's body are not
automatic indicators that she had been raped and that using them to say so "is
incorrect and inappropriate" and that he "strongly" disagreed with McGee's
conclusions. He said none of the testing done found evidence of semen or male
DNA on Sjodin's body.
Assistant U.S. Attorney Keith Reisenauer repeatedly tried to get Arden to agree
that a slash wound to the neck was possible.
"Is there a possibility? Sure. Is there any evidence for it? No," said Arden,
who added that the damage to Sjodin's right side could also have been caused by
a knife, "though that is not supported by the evidence."
Dragovic was part of a three-person panel who also looked at the autopsy
findings and test results.
Dragovic said the circumstances surrounding Sjodin's death indicate that a
sexual assault took place, but that it may not have involved sexual
He also disagreed with Dr. McGee's conclusions that Sjodin had been stabbed,
noting that there would have been blood on her clothes and body. He said she
likely died of asphyxiation due to force being applied to her neck. "That's the
only reasonable determination," he said.
Reisenauer reminded Dragovic that McGee had said Sjodin could have died of a
slash to her neck, choking with a cord, asphyxiation or from exposure.
Rodriguez has waived his right to be present at the hearing. The hearing
resumes at 9 a.m. Thursday, June 22.
(source: The Globe)
The Death Penalty and Mental Illness: An Evolving Standard?
The use of the death penalty in the Americas dates to the 15th century when
European settlers brought with them the practice of capital punishment. Because
nowhere in the US Constitution is capital punishment explicitly addressed, the
death penalty was imbued with intrinsic constitutionality by the Founding
Fathers. The Fifth Amendment, Eighth Amendment, and Fourteenth Amendment (due
process clause) of the Bill of Rights have attempted to provide guidelines on
how capital punishment should be handled. The Fifth Amendment states that "no
person shall be held to answer for a capital [crime], unless on a presentment
or indictment of a Grand Jury," while the Eighth Amendment states that "nor
cruel and unusual punishments [be] inflicted."
Although the death penalty was viewed as an acceptable form of punishment at
the time the US Constitution was created, it did not take long for various
states to begin to limit or even ban such practices. The 1st state to do so was
Michigan in 1846. Today, 31 states still permit capital punishment. Although
this number may represent a majority of the states, it may not represent the
true national mood regarding capital punishment because many of these states
have not had an execution in more than 10 years.
Over the years, the US Supreme Court has ruled on many cases that have
addressed the topic of evolving standards of decency in regards to the Eighth
Amendment. The 1910 Supreme Court case Weems v US helped define the notion of
evolving standards as a basis to view historically accepted punishments as no
longer acceptable in modern society. In the Weems case, a man was sentenced to
multiple years of "hard and painful labor [in chains]" for the crime of
Although the use of "irons" was common in the 1700s, the Court found that its
use was not appropriate for a sentence in the 1900s. The term "evolving
standards of decency" was coined by Chief Justice Earl Warren in Trop v Dulles
(1958) when he noted that, when determining what punishment the Eighth
Amendment prohibits, "evolving standards of decency . . . mark the progress of
a maturing society."1,2
The 1972 case of Furman v Georgia (1972) resulted in a brief national
moratorium on the death penalty because of a 5 to 4 ruling that "[the death
penalty] could not be imposed under sentencing procedures that created a
substantial risk that it would be inflicted in an arbitrary and capricious
manner."3 In an unusual scenario, each justice wrote his own opinion, with
Justices Brennan and Marshall citing evolving standards of decency to explain
why they believed the death penalty was unconstitutional.
The landmark cases of Atkins v Virginia (2002) and Roper v Simmons (2005)
determined that because of evolving standards of decency, certain definable
groups such as individuals with intellectual disability and minors could not be
sentenced to death.4,5 In both instances, the Court, within a relatively short
period, revisited the issue of an evolving standard after already having ruled
on the issue, ie, execution of people with intellectual deficiencies previously
addressed in Penry v Lynaugh (1989) and certain youths in Stanford v Kentucky
(1989).6,7 The majority opinion for Atkins v Virginia, written by Justice
Stevens, noted that the "consistency of the direction of change," but "not so
much the number of these States [prohibiting the execution of individuals with
intellectual disabilities]," was important in determining an evolving
The cases of Atkins v Virginia and Roper v Simmons are particularly interesting
because the opinions were based on legal as well as scientific and medical
principles. The legal principles that were discussed included whether the death
penalty had a deterrent effect for these populations and whether these
populations were at a fundamental disadvantage in defending themselves in the
court system against the ultimate irreversible punishment. In Atkins v
Virginia, Justice Stevens wrote, ". . . frequently [individuals with
intellectual disability] know the difference between right and wrong and are
competent to stand trial . . . [but] because of their impairments . . . by
definition they have diminished capacities to understand and process
information, to communicate, to abstract from mistakes and learn from
experience, to engage in logical reasoning, to control impulses, and to
understand the reactions of others."4
(source: Psychiatric Times)
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