2017-08-16 13:53:49 UTC
Rejecting arguments about a new lethal-injection procedure, the Florida Supreme
Court on Monday refused to block the scheduled Aug. 24 execution of death row
inmate Mark James Asay.
The court's majority said Asay had not shown that the introduction of the drug
etomidate into the execution process put him at risk of suffering, in violation
of the U.S. Constitution. Corrections officials plan to use etomidate as a
substitute for a previous drug, midazolam, as the 1st drug in a 3-step process.
It would be the 1st time etomidate, a sedative, has been used in an execution.
In its decision, the Supreme Court upheld a ruling by a Duval County circuit
judge who held a hearing on the lethal-injection drug issue.
"Based on the testimony heard during the evidentiary hearing and the record
before this (Supreme) Court, Asay has not demonstrated that he is at
substantial risk of serious harm," the majority opinion said. "Indeed, the
record before this court demonstrates that Asay is at a small risk of mild to
The majority opinion by Chief Justice Jorge Labarga and justices Peggy Quince,
Ricky Polston and Alan Lawson, also said Asay had not "identified a known and
available alternative method of execution that entails a significantly less
severe risk of pain."
Justices R. Fred Lewis and Charles Canady concurred with the majority opinion
but did not fully sign on to it.
Justice Barbara Pariente dissented on a series of grounds, including that Asay
was wrongly denied access to documents about the new lethal-injection process.
Pariente said the Florida Department of Corrections delayed providing
information and has not provided some details, such as the reasons for adopting
the new process and the identity of the manufacturer of etomidate.
(source: News Service of Florida)
In a first, Miami jurors asked to be unanimous in death-penalty sentencing
If jurors want to deliver the death sentence against 2-time convicted killer
Kendrick Silver, they'll have to agree unanimously - something that up until
now, no Miami jury has ever been required to do.
Against that legal backdrop, those 12 jurors heard starkly different
descriptions of Silver.
For prosecutors, he was a callous criminal who murdered 2 men in separate
robberies. Silver is being sentenced for his 1st victim, a restaurant security
guard shot dead at point-blank. The 2nd victim was Coral Gables jogger Jose
Marchese-Berrios, shot by Silver in the chest in May 2007.
"Mr. Marchese's lungs filled with his own blood, causing him to drown to death
in the arms of his 15-year-old son," Assistant State Attorney Tammy Pitiriciu
Defense attorneys, hoping jurors will spare his life, depicted the 29-year-old
Silver as the product of a troubled childhood and a mother who repeatedly
abused and neglected him.
"This was a life that was scarred by circumstances that were outside of his
control," Assistant Public Defender Annemarie Block told the jury.
Silver's sentencing marks the first time in Miami-Dade County that jurors have
been asked to be unanimous in considering the death sentence.
For decades in Florida, prosecutors only needed at least a majority 7 votes for
a death-penalty recommendation, with the judge ultimately meting out the
Then in January 2016, the U.S. Supreme Court ruled that Florida's sentencing
scheme was unconstitutional because defendants have a right to a trial by jury.
State lawmakers rewrote the law, replacing the judge's override and requiring a
vote of at least 10 of 12 jurors to sentence someone to death.
Death-penalty litigation ground to a halt as the Florida Supreme Court then
ruled that the new law was unconstitutional because jury verdicts need to be
unanimous. Finally in March, the Legislature passed a new law requiring jurors
to unanimously agree on a death sentence.
Since then, a handful of killers formerly on death row have been re-sentenced
to life in prison under plea deals. Not so in one high-profile case in Orlando,
where a jury unanimously sentenced Juan Rosario to death for murdering an
As for Silver, he is being sentenced for the December 2006 murder of
62-year-old Solmeus Accimeus, a security guard shot dead as he sat in his car
at closing time outside Esther's Restaurant in North Miami-Dade. Intending to
rob the guard, Silver walked up to the car and fired at the guard, penetrating
the man's aorta, spraying blood all over the gunman, prosecutors said. Moments
later, as he fled, Silver threw away the ski mask, which had Accimeus' blood on
the outside, and Silver's DNA on the inside, prosecutors told jurors. The
12-person jury, in June, convicted Silver of 1st-degree murder. The group
reconvened on Tuesday, hearing for the 1st time that Silver was already
convicted of another murder, the killing of Marchese-Berrios, which took place
5 months after Accimeus was gunned down.
Prosecutors recounted the killing, saying Silver wanted the jogger's flip-top
phone. Silver took the phone, stepped back and fired 1 shot directly into his
chest, prosecutor Pitiriciu said.
Mortally wounded, Marchese-Berrios somehow walked back to the small Coral
Gables apartment he shared with his wife and teenage son, also named Jose
"As I was dressing, I heard my dad come inside the house screaming my mom's
name. He was saying he just got shot. My mother started panicking and I just
grabbed my dad. I saw his gunshot and I grabbed a towel or whatever I could
find to cover it," his son, now 25, testified to jurors on Tuesday.
Miami-Dade detectives later traced the phone back to Silver, who gave it to his
girlfriend and confessed he shot the jogger. Pitiriciu told jurors Silver
deserved the death penalty for claiming "2 lives in cold blood."
But defense lawyers say Silver should be spared because his childhood was
marked by abuse and a mother who was a "damaged, unstable person." Since he has
been in jail, Silver has also been been entrusted to help corrections officer
doing chores, handing out food - and even speaking to troubled kids who visit
the jail, Block said.
"The most stability and structure Kendrick ever had was in jail," Block said,
adding: "This is not the kind of case that the death penalty was designed for."
The sentencing continues Wednesday before Miami-Dade Circuit Judge Marisa
State Attorney's Office seeks death penalty in 2 high-profile murder cases
The State Attorney's Office announced that it's seeking the death penalty in
2-high profile murder cases. It made the announcement on Tuesday.
In a statement, State Attorney Melissa Nelson said she's seeking the death
penalty for Phillip Smith and Scott Rolnick, referring to their cases as "the
most brutal our office has encountered this year."
Smith is accused of killing his aunt, 74-year-old Janice Fulton, and
transporting her body to Locust Grove, Georgia. He was arrested during a
traffic stop and Fulton's body was found in the back seat.
Rolnick is accused of stabbing and strangling his mother, 76-year-old Mary Anne
Rolnick, after he broke into her house. Police reports state he stole her car
while still covered in blood and was arrested at a Jacksonville gas station. He
was also charged with armed burglary with assault or battery and grand theft
"Elderly victims can be among the most vulnerable in our community and our
office will use every legal tool available to pursue justice for these
victims," Nelson said in a statement.
(source: First Coast News)
Defense isn't ready----Lawyers request trial delay after lead attorney dies
Defense attorneys for Kevin Daigle, who is accused of fatally shooting trooper
Steven Vincent in 2015 and is slated to go to trial on Sept. 18, have asked for
a continuance because Daigle's lead attorney has died and the defense said it
needs more time to prepare its case.
David Price died July 27 after suffering a heart attack shortly after
undergoing surgery for cancer. After working many years for the public
defender's office in Baton Rouge, Price formed the Baton Rouge Capital Conflict
Office, dedicated to defending indigent individuals facing the death penalty.
State district court Judge Guy Bradberry on Monday heard testimony from both
the defense and the prosecution along with witnesses for the defense regarding
the request for a continuance.
If granted, it would be the 3rd continuance in the case.
Christopher Murrell, executive director of the Louisiana Capital Appeals
Project, in arguing for the continuance, said that Kyla Romanach, another
attorney for Daigle "could possibly be lead counsel but she needs time to work
on this case as lead counsel and to move from associate counsel to lead
counsel. It takes time."
Jim Boren, affiliated with the Louisiana Capital Defense Project, was called on
as a witness for the defense, with Boren saying, "I've handled about 25-30
capital cases and I've also testified as an expert in capital cases." Murrell
said, "Mr. Boren, I asked you to review this case and whether Mr. Daigle could
be defended at this time by Ms. Romanach."
He said he did not believe that was a viable plan.
"I do not believe the case is ready to go to trial in September," Boren said.
"I have a great deal of respect for Ms. Romanach. But this case has not been
prepared and I do not see any way to do it in this amount of time. Nobody could
do it. It's a very complicated case. There's a checklist which guides you in
your defense in cases like this and I was shocked to see that only about half
of the checklist has been done in this case."
Boren said, "Death cases are different; you have one chance to get it right."
Prosecutor Rick Bryant argued strongly against a continuance, saying, "Here we
have yet another motion for a continuance. The defense says that Kyla Romanach
has never been a lead counsel but here are cases we've found in other parishes
where she was indeed a lead counsel for many other cases."
Bryant said in the Daigle case, "A tremendous amount of work has already been
done by the defense and they can't put this trial off in perpetuity. We've
tried to be cooperative, we've provided documents, and even the court has tried
He said it was a "a terrible thing that Mr. Price has lost his life but I don't
think anyone could come forward and say that those attorneys didn't do a damn
good job preparing for trial. We object to a continuance and ask that this
trial move forward."
Bradberry said he recognizes the "urgency" in the matter of a continuance since
the trial is slated for just a month from now.
A decision will be handed down by Bradberry this week regarding whether there
will be another delay in the start of the trial.
Missouri Supreme Court denies request for stay of execution
The Missouri Supreme Court will not stop next week's scheduled execution of
Marcellus Williams, it said Tuesday.
The court said it will not review the new evidence that Marcellus Williams'
attorney submitted Monday, but gave no explanation why. Kent Gipson had argued
that said a new test proved Williams' DNA was not found on the knife that was
used in the 1998 killing of former St. Louis Post-Dispatch reporter Felicia
Gayle in University City.
Gipson said he plans to appeal to the U.S. Supreme Court and will ask Gov. Eric
Greitens to intervene, too. He also said he was surprised with the speed in
which the high court denied the stay.
"Certainly something involving a claim of innocence that is this substantial,
you would think they would at least write an opinion or at least a short
opinion giving the reasons why they denied it, because that makes it more
difficult to take it up to a higher court because they don't know exactly on
what basis the ruling was made," Gipson said.
Attorney General Josh Hawley's spokeswoman told The Associated Press that his
office was confident Williams is guilty based on other evidence.
Gov. Eric Greitens spokesman Parker Briden said in a statement that the
governor is "in the process of reviewing the case with our legal team."
Williams' 1st execution was postponed in January 2015. The 48-year-old is
scheduled to be executed on Aug. 22.
Department of Corrections spokesman David Owen recently said in an email that
the agency is "prepared to carry out the ... execution in accordance to the
lethal injection protocol established in 2013." The state uses 1 drug, the
sedative pentobarbital, in executions, and has refused to disclose the
Suspect in 1997 UNT student homicide faces death penalty in Oklahoma slaying
A Texas convict who led authorities to the body of a University of North Texas
student last seen in 1997 faces the death penalty at his upcoming murder trial
in another case in Oklahoma, according to an Oklahoma newspaper report.
In a hearing earlier this month in Oklahoma City, William Reece, 58, of
Houston, was notified that he faces the death penalty if convicted in the 1997
killing of Tiffany Johnston in Bethany, Okla., The Oklahoman reported.
The trial is scheduled for Oct. 18 in Oklahoma City.
Reece is a suspect in some of Texas' oldest cold cases including that of of UNT
honor student Kelli Cox of Farmers Branch. He's also a suspect in 2 other Texas
killings in 1997.
He's been in a Texas prison since 1998 on an aggravated kidnapping charge.
In April 2016, Reece directed authorities to skeletal remains buried at a site
in Brazoria County, in a pasture off Texas 288 near Rosharon.
Dental records confirmed that the bones were those of Cox.
Denton police said Tuesday a murder charge has not been filed against Reece in
the Cox slaying.
Earlier this month in a hearing, an Oklahoma County prosecutor presented a
legal document on justifications for a death sentence. They included the fact
that Reece had been convicted in the past of a violent felony, he killed to
avoid arrest, he was a "continuing threat to society," and Johnston's "murder
was especially heinous, atrocious or cruel," according to the newspaper.
Reece is accused of strangling Johnston, 19, and a newlywed, after abducting
her on July 26, 1997 from a car wash in Bethany, according to The Oklahoman.
Her partially nude body was found the next day in tall weeds in Yukon, just
south of Interstate 40.
He was charged in September 2015 after DNA evidence linked him to the case.
In the Denton case, Cox disappeared July 15, 1997, after taking a tour of the
Denton Jail with her UNT criminology class. She called her boyfriend about noon
and when he arrived to meet her, he found only her car.
Cox had a 19-month-old daughter, who was a student at UNT last year.
Reece also is a suspect in the killings of Jessica Cain, 17, of La Marque and
Laura Smither, 12, of Friendswood, Texas prosecutors have said.
Cain went missing in August 1997 after attending a cast party where she had
celebrated her performance in a high school musical. Her dad's pickup was found
on the route to her Tiki Island home.
In early 2016, Reece guided authorities to locations near Houston. Prosecutors
told Reece they would not seek the death penalty if Jessica Cain were found. He
led them to a pasture in Brazoria County where human remains were found March
18. Medical examiners later identified the remains as those of Cain.
Reece is also a suspect in Smither's killing in April 1997.
Smither disappeared while jogging, and her body was found a month later in
Shortly after the slayings in 1997, Reece was sentenced to 60 years in prison
in 1998 for an aggravated kidnapping in Harris County, according to Texas
Department of Criminal Justice records. While in prison, he was also sentenced
to 3 years for theft in Brazoria County.
Last year, Reece waived extradition and was taken to Oklahoma to stand trial in
the Johnston slaying.
Reece was in the Oklahoma County Jail Tuesday in Oklahoma City with no bond.
Oklahoma attorney general to seek rehearing in murder case involving tribal
The Oklahoma Attorney General's Office will ask an appellate court to
reconsider its ruling last week in a death penalty case, saying the ruling has
the potential, if it stands, to impact the state's criminal, civil and
The U.S. 10th Circuit Court of Appeals in Denver on Tuesday granted a request
by the state of Oklahoma for additional time to file its petition for rehearing
in a lawsuit involving convicted murderer Patrick Dwayne Murphy.
A 3-judge panel of the appellate court ruled Aug. 8 that Murphy, who was
sentenced to death, should have been tried in federal court for the 1999 murder
and genital mutilation of another man in McIntosh County because Murphy was
Native American and the death occurred in "Indian country."
The Oklahoma Attorney General's Office will request a rehearing before the
entire 10th Circuit Court of Appeals, agency spokeswoman Terri Watkins said.
The appellate court granted the attorney general's Monday request that it be
given until Sept. 21 to file the rehearing petition.
While George Jacobs Sr., 49, died in 1999 along a McIntosh County road, the
appellate court determined the location was within the Muscogee (Creek)
Nation's boundaries, a region that spans 11 counties and includes most of the
city of Tulsa. The court determined that the Creek Nation reservation
boundaries had never been diminished or disestablished by Congress.
In requesting more time to file a rehearing petition, the Attorney General's
Office notes that it will take considerable time to review the 126-page opinion
and the relevant case law "to formulate the best concise presentation for
"It is anticipated that the petition for rehearing will be based both on
arguments related to the Antiterrorism and Effective Death Penalty Act of 1996
and on the merits of the reservation question, both of which are quite
complex," a request signed by Assistant Attorney General Jennifer Crabb states.
The Attorney General's Office, in its request, also notes that the ruling
presents an important question beyond the validity of Murphy's conviction and
"If this court's opinion stands, other criminal defendants in Oklahoma (past,
present and future) may argue that the state lacks jurisdiction to prosecute
criminal cases over areas that are home to over a million Oklahoma citizens,"
according to the court filing. "There also exists the potential for changes in
the state's civil and regulatory authority."
1 defendant in a criminal case has already cited the ruling in his case.
An attorney for former Tulsa Police Officer Shannon Kepler on Friday filed a
motion in state court, asking that his 3-year-old murder case be dismissed,
citing Kepler's Creek Nation citizenship and the Murphy appellate court ruling.
Experts have said the ruling could have far-reaching effects on both Oklahoma
criminal and civil law if it is allowed to stand.
Meanwhile, the Creek Nation hailed the ruling, saying it affirms "the right of
the Nation and all other Indian Nations to make and enforce their own laws
within their own boundaries."
Rehearings before the entire 10th Circuit are "often requested, but seldom
granted," according to a procedural guide published on the court's website.
(source: Tulsa World)
A service courtesy of Washburn University School of Law www.washburnlaw.edu
DeathPenalty mailing list