2017-10-03 13:16:52 UTC
Indiana Supreme Court to hear death penalty arguments this week
The justices of the Indiana Supreme Court will consider the fate of the state's
death penalty protocol when it hears arguments this week in a case challenging
the legality of how the protocol was enacted.
The high court will hold oral arguments in the case of Roy Ward v. Robert
Carter, Jr., et al., 46S03-1709-PL-00569, on Thursday after unanimously
granting transfer to the challenge to Indiana's death penalty protocol last
month. The arguments come after the Indiana Court of Appeals determined the
Indiana Department of Correction's failure to enact new lethal-injection
protocols under the Administrative Rules and Procedure Act, subject to public
comment, made the death penalty protocol adopted in May 2014 "void and without
That protocol included a 3-drug cocktail that has not yet been used in any
state or federal execution. But before the Court of Appeals' ruling, that
cocktail was meant to be used in a lethal injection that would carry about Roy
Ward's death sentence. Ward was sentenced in 2007 after he was convicted in the
2001 rape and murder of 15-year-old Stacy Payne in Spencer County. He is 1 of
12 people on death row in Indiana.
In the aftermath of the Court of Appeals' opinion, legal experts said the
decision left the future of the death penalty in Indiana in limbo. Oral
arguments will begin at 9:45 a.m. Thursday in the Indiana Supreme Court
Prior to the Ward oral arguments, the justices will hear arguments on petition
to transfer in the case of Peter Dvorak v. State of Indiana,
53A01-1604-CR-00923, at 9 a.m. In that case, Peter Dvorak was charged with
felony offer or sale of an unregistered security and acting as an unregistered
agent. He moved to dismiss the charges on the basis that they were barred by
the statute of limitations.
The Monroe Circuit Court disagreed and denied the motion to dismiss, but the
Indiana Court of Appeals reversed in May, finding the 5-year statute of
limitations had expired because he committed his offenses in 2007, but was not
charged until 2015.
The state has petitioned the Supreme Court to accept jurisdiction over the
(source: The Indiana Lawyer)
The death penalty is rare. Could the Southport police shooting be different?
As Marion County Prosecutor Terry Curry stood at a podium Thursday to announce
his office's pursuit of the death penalty against Jason Dane Brown, he read
David Moore. Rod Bradway. Perry Renn.
And now Aaron Allan.
All 4 were police officers who have been killed during Curry's 7 years as the
At Thursday's press conference Curry said he was sending a message in seeking
the death penalty: Attacks against police officers will not be tolerated.
Recent history suggests that the death penalty case could result in a plea
agreement. That is what happened in the 2 other police shootings in which the
suspects were arrested.
Thomas Hardy, who pleaded guilty to Moore's 2011 murder, was sentenced to life
in prison without the possibility of parole.
Major Davis, who pleaded guilty to killing Renn in a 2014 gun battle, received
the same sentence.
In the Bradway shooting, the suspect was killed.
Curry said the Moore and Renn cases shouldn't portend what could happen in the
case against Brown.
"In any given case, we do not know what path it will take," Curry said
Moore's family wanted resolution, he said, leading to the agreement with Hardy.
As for Davis, Curry said there were "significant mental health issues" that
complicated the prospect of the death penalty.
To request the death penalty with murder charges in Indiana, prosecutors must
prove certain aggravating circumstances. One such circumstance is if the victim
is a police officer killed in the line of duty.
What could complicate seeking the death penalty against Brown is the apparent
lack of motive, said Jack Crawford, an Indianapolis defense attorney and former
Lake County prosecutor who has been involved in several death penalty cases.
Investigators are likely scouring Brown's social media and interviewing family
and friends, Crawford said, to learn why he would kill someone who was trying
to help him.
Allan, a Southport police lieutenant, was responding to a car crash when,
authorities say, Brown opened fire while still in the overturned vehicle.
Baggies of marijuana were found in the vehicle, but Curry said Thursday a
motive remains unclear.
"The prosecutor does not have to prove a motive. Still, juries want to know
what the defendant's motive was," Crawford said. "In this case, that's pretty
He also noted how death penalty cases can cost $1 million to $2 million, with
the county picking up half.
Costs can grow, Crawford said, if the judge approves Brown's request for a
change of venue to another county. Increased lodging and transportation costs
could add to the bill.
That is why death penalty cases in general are rare. Crawford knew of 6 that
were pending in Indiana.
Prior to Thursday's filing against Brown, the most recent case came out of
Boone County. On Sept. 20, Boone County Prosecutor Todd Meyer said his office
would seek the death penalty against a teenager accused of fatally stabbing a
73-year-old Lebanon man.
Prosecutors have leveraged the death penalty to push for plea bargains in the
past, Crawford said. 2 other recent Marion County cases resulted in such
Johanthan Cruz, 20, avoided the death penalty by pleading guilty to 3 killings
from 2016. He was sentenced to 3 consecutive life sentences without parole.
And Kenneth "Cody" Rackemann, who avoided the death penalty by agreeing to a
plea deal, received 4 consecutive life sentences for the murder of 4 people in
The prosecution's case against Brown could turn out differently because of the
public's support for officers who are protecting their communities, Crawford
"You can build a very strong emotional case that this kind of life-taking
deserves the maximum penalty," Crawford said.
Proof can be found on Indiana's death row.
1 of the 12 people on death row, according to the most recent Indiana
Department of Correction information, is Benjamin Ritchie, who killed Beech
Grove Police Officer William Toney during a 2000 police chase.
In October 2002, he was sentenced to death. Crawford represented Ritchie.
"In some cases, the death sentence is handed out by the judge and the jury,"
Crawford said. "It can happen."
(source: Indianapolis Star)
Lawyers: Condemned Arkansas Man Is Mentally Ill, Shouldn't Be Executed
Lawyers for an Arkansas man scheduled to be executed next month say his life
should be spared because he suffered sexual abuse as a child and comes from a
family with a long history of mental illness.
The Arkansas Parole Board will hold a hearing Wednesday for Jack Greene, who is
scheduled to die Nov. 9 for the 1991 killing of Sidney Jethro Burnett after
Burnett and his wife accused Greene of arson.
In papers filed Monday, Greene's lawyers say he is mentally ill and that his
execution would violate the U.S. Constitution and "bring shame on the state of
Lawyers for the state have said Burnett's family deserves justice.
(source: Associated Press)
Defendant in murder, assault case receives capital counsel
Timothy M. Brokes Jr. represented by capital counsel public defender, following
prosecutors' decision to puruse death penalty in case
Just weeks after prosecutors announced they would seek the death penalty
against the man charged with killing a Hannibal woman and severely injuring her
husband before injuring a police officer in separate January 2016 incidents, a
new capital counsel public defender appeared on his behalf Monday, Oct. 2.
Timothy M. Brokes Jr., of Hannibal, faces multiple felony charges in Marion and
Monroe Counties stemming from a crime spree, ending with the death of Brittany
Gauch and separate assaults of Aaron Gauch and Monroe City officer Travis Pugh.
Brokes did not appear for the Monday, Oct. 2 hearing due to his current
incarceration with the Missouri Department of Corrections. Capital Counsel
Public Defender Charles Hoskins represented the defendant. Marion County
Prosecuting Attorney David Clayton represented the state.
According to probable cause statements filed in the crimes, Brokes stole his
father's truck and went to a home just west of the Hannibal city limits, where
he shot and subsequently ran over Aaron Gauch. He then allegedly went to a home
on Summer St. in Hannibal and shot Brittany Gauch at close range with a rifle.
Brokes then fled the scene with June Smith. The pair was spotted in Monroe City
the next day. When officer Pugh engaged with Brokes, a shootout ensued,
resulting in injuries to both Pugh and Brokes.
(source: Hannibal Courier-Post)
Alton Nolen Sentenced To Life In Prison, Death Penalty Under Deliberation
A jury has returned their verdict for counts 2 through 6, including multiple
life sentences, in the murder trial of Alton Nolen.
Nolen has been sentenced to life in prison for count 2, assault and battery
with deadly weapon; 55 years on count 3; life in prison on count 4; life in
prison on count 5; and 75 years on count 6.
Nolen was convicted of assault and battery with a deadly weapon for the attack
on Traci Johnson; assault with a dangerous weapon for his attack on Mark
Vaughan; assault with a dangerous weapon for his attack on Gary Hazelrigg;
assault with a dangerous weapon for his attack on Bryan Aylor; and assault with
a dangerous weapon for his attack on Mark Vanderpool.
The jury will now deliberate on a possible death sentence for Nolen on count 1;
the 1st-degree murder and beheading of Colleen Hufford.
Nolen's defense trying to prove he is intellectually disabled
After a Cleveland County jury found Alton Nolen guilty of 1st-degree murder for
the 2014 beheading death of Colleen Hufford last week, he will at least serve
life in prison. Whether he will he be sentenced to death remains up in the air.
On Monday, the 12-person jury made up of 8 men and 4 women took less than 2
hours to come back with a sentencing recommendation for 5 assault with weapon
charges Nolen, 33, faces in connection with the Sept. 25, 2014, attack at
The recommendations for Nolen ranged from 55 years to life in prison.
The jury's sentence recommendation for the 1st-degree murder charge is still
undetermined and probably won't be decided until the end of the week.
Following the announcement by the jury, the court didn't waste any time
starting the process for the remaining capital crime.
One witness testified Monday, but it was clear what the defense's argument for
this stage would be - to show the jury Nolen is intellectually disabled and,
therefore, under Oklahoma law - disqualified from receiving the death penalty.
Because the jury rejected Nolen's insanity defense and found him guilty on all
counts, the burden shifts to the defense to persuade the jury Nolen is
To help prove the defense's argument, his attorneys called psychologist Jeanne
Russell to testify, 1 of 2 psychologists the defense called in the 1st stage of
the trial to aid in Nolen's insanity defense.
Russell said she conducted an IQ test, which revealed Nolen had an IQ of 69 - a
score that met the subaverage general intellectual functioning requirement in
determining whether Nolen is intellectually disabled.
However, state law requires Nolen also would have to display limitations in
adaptive functioning, and the onset of his disability would have to be
manifested before the age of 18, to qualify as intellectually disabled.
Russell said Nolen met all of the requirements.
If the jury decides Nolen is intellectually disabled, the most stringent
punishment he could receive is life in prison without the possibility of
If not, the death penalty is still on the table.
Anti-death penalty talks postponed
St. Joseph Sister Helen Prejean, foremost foe of the death penalty in the U.S.,
has postponed appearances slated for this month in Oregon. She is recovering
from unexpected back surgery and will not be on the road again until the start
of the year.
Her Oregon visit is planned for the spring. Sister Helen, who wrote the book
"Dead Man Walking," is still speaking out on Facebook and Twitter as she
(source: Catholic Sentinel)
What's Behind the Decline in the Death Penalty?----A new book explores the slow
demise of the ultimate punishment.
There are 4 men left on death row in Virginia, and only 31 people were
sentenced to death in the entire U.S. last year, compared with more than 300
per year in the mid-1990s. The numbers are stark, but if you ask the experts -
lawyers, scholars, activists, judges - why the death penalty has begun to fade
in the U.S., you get all sorts of answers, many of them frustratingly vague.
The crime rate dropped, so there have been fewer murders to punish. A few
states abolished the punishment outright. The cost of death penalty cases went
up, and prosecutors grew worried about their budgets. States passed laws making
life without parole an option for certain aggravated murders, meaning there was
a sufficiently harsh alternative to the death penalty. All those DNA
exonerations raised the specter of an innocent person being killed. In
elections for district attorney, voters in Houston and Philadelphia replaced
death-penalty champions with skeptics.
University of Virginia law professor Brandon Garrett's new book, "End of Its
Rope: How Killing the Death Penalty Can Revive Criminal Justice," represents a
major new effort to untangle these factors. He also analyzes the decline for
lessons that might be applied to the criminal justice system as a whole. We
discussed his findings by email, and his answers have been edited for length.
Let's start broad: Why has the death penalty declined?
No one expected this to happen. After all, the death penalty has long stood for
the ultimate in punishment, and it has been very popular for decades. I felt
that understanding the great death penalty decline might help to show us how we
can turn away harsh punishment more broadly.
At the county level, my colleagues and I observed a strong statistical
connection between murder rates and death sentences. But while declining murder
rates matter, it is not the only explanation. Death sentences fell far more
steeply than murders did. Unfortunately, while the decline in murders played an
important role, when Alex Jakubow, Ankur Desai and I analyzed the past 25 years
of death sentencing data, we found a strong county-level pattern of racial
bias. Counties with more black residents have more death sentences. And
counties with more white victims of murder have more death sentences. Call it a
"white lives matter" effect.
We also found a muscle memory effect. Counties impose far more death sentences
just as a function of having done so in the past. This inertia is powerful. And
yet today, when prosecutors seek the death penalty, they are more often failing
to convince jurors to impose it. That reverses the muscle memory in these
offices; to lose an expensive death penalty trial is no trivial matter. In 15
death penalty trials since 2015 in Texas, only 8 have resulted in death
sentences. In Virginia, prosecutors failed to get death sentences more than
half of the time in trials since 2005. Rural counties have fallen completely
off the death penalty map; just a handful of relatively populous counties still
have death sentences.
What I call a "defense lawyering effect" also played an important role in this
death penalty decline. The states that created offices for defense lawyers
experienced significantly more pronounced declines in their death sentences.
The states that continue to leave it to local judges or counties to decide who
handles death penalty cases have more death sentences.
What caused defense lawyering to improve? Supreme Court rulings? Culture?
Defendants on trial for their lives long received incompetent lawyers: lawyers
who fell asleep in court, showed up drunk, used racial slurs to refer to their
clients, and worse. In the 1980s, states all imposed cut-rate caps on defense
in death penalty cases. They stacked the deck for prosecutors.
In the decades since, states gradually created offices to handle capital
defense. They realized that they might risk constitutional challenges in the
courts if they continued to handicap the defense. But they also discovered that
defense offices can do the work far more cheaply than independent lawyers
appointed by judges.
Social workers hired on staff are much cheaper than lawyers paid by the hour.
And social workers, called mitigation investigators, know how to research a
person's medical, mental health, foster care and school records. They know how
to speak to victims of childhood abuse and to addiction counselors. In the
past, the jury never heard about the background of the person they convicted of
murder. They had no reason not to sentence a murderer to death. Now, even in
high-profile cases like the Aurora, Colorado, mass shooting, they hear mental
health evidence and often choose life.
The worst murders are often committed by people with serious mental health
problems. It takes minimally adequate resources to piece together a person's
social history. But in states that continue to deny the defense basic resources
needed, you see more death sentences. Later this fall, the Supreme Court will
hear a case, Ayestas v. Davis, about the courts' refusal to grant resources to
the defense for investigation.The Supreme Court has said that there is a
constitutional obligation to meaningfully investigate mitigation, or social
history evidence, in death penalty cases. But my research suggests that it
takes more than a judge willing to award fees case by case. It takes an office
to ensure that obligation is met.
We've looked in the past at how rising costs are leading prosecutors to not ask
for the death penalty. Does that relate in some way to the quality of the
People used to assume that executing someone would save money: You wouldn't
have to keep a murderer fed and housed in prison for all of those years. Now it
is common knowledge that, in fact, the death penalty is orders-of-magnitude
more expensive than imprisonment. Local government spends millions on just a
single death penalty trial, and states spend hundreds of millions, even
billions of dollars, on appeals, habeas and everything else involved in keeping
the death penalty on the books. Those costs are even more troubling, of course,
if the defense does a more effective job and prosecutors spend millions on a
trial at which the jury rejects the death penalty in the end. States have fewer
death sentences to show for the millions and billions they spend. Law
enforcement has started to push back and say that there are far better uses for
those vast sums of money.
Another common argument for why the death penalty is disappearing is that
jurors are responding to the high rate of exonerations - they don't want to be
wrong and send someone innocent to death. But you've shown that isn't quite
right. Can you explain?
20 innocent people have walked off of death row in this country after DNA tests
exonerated them, and over 100 more have been exonerated by other evidence.
These death row exonerations have forever changed the way we think about the
death penalty - and we do not even know how many innocent people have been
executed in this country.
Polling indicates that people are increasingly concerned about sending innocent
people to death row. That may play a role in declining public support for the
death penalty. However, people who oppose the death penalty outright cannot sit
as jurors in a death penalty trial. So, exonerations have so far not stopped
states like Florida, that have seen the most exonerations, from sentencing
comparatively more people to death. Death-row exonerations keep happening.
If the crime rate goes back up, do you think there will be more death
sentences, or have these standards of better lawyering changed the game enough
to survive big political shifts? What happens if there is a return to the
murder rates of the 1980s?
The American death penalty has always been more about political posturing than
a genuine attempt to make the punishment fit the crime. Meanwhile, crime
continues to decline. If murder rate trends do completely reverse, then there
could be pressure to take more tough-on-crime approaches. But I think people
have learned the lesson the hard way that you can't death-sentence or imprison
your way out of crime. We now know when jurors hear the whole story, even in
death penalty cases, they are reluctant to impose death sentences. Even if more
prosecutors suddenly started seeking the death penalty, the results would
likely not be good for them.
In your book, there is a tension about the future: On the one hand, the decline
of death sentences has shown how "mercy" among jurors can triumph given the
right conditions; on the other hand, the decline has led to a massive expansion
of life-without-parole sentences, which Pope Francis has called "hidden death
sentences." How do you resolve that tension? What do you think opponents of
long sentences should do going forward to bring more mercy into the system?
Only about 2,800 prisoners sit on death row today, but over 50,000 prisoners
are serving life without parole, and about 200,000 prisoners have life
sentences, according to a Sentencing Project report. I tell the story in my
book of Joseph Sledge, who received 2 life sentences, and since he did not get
a death sentence, he was not entitled to receive lawyers from the state once
his appeals ran out. For decades, he filed habeas petitions himself and wrote
letters. After almost 40 years in prison in North Carolina, a letter to an
innocence project led to DNA tests that proved his innocence.
We need to do something about the explosion of these life sentences in America.
We have replaced the death penalty with the "other death penalty." Even
juveniles can still get life-without-parole sentences, although the Supreme
Court has said it cannot be mandatory. To imprison people, sometimes very young
people, with no hope of release or redemption is inhumane.
(source: Brandon Garrett is the White Burkett Miller Professor of Law and
Public Affairs and Justice Thurgood Marshall Distinguished Professor of Law at
the University of Virginia School of Law----The Marshall Project)
A service courtesy of Washburn University School of Law www.washburnlaw.edu
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