death penalty news----FLA., MO., ARIZ.
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Rick Halperin
2017-08-15 12:47:06 UTC
August 15

FLORIDA----impending execution

Florida Supreme Court says yes to 1st execution in months

The Florida Supreme Court is refusing to block the state's 1st execution after
a hiatus of more than 18 months.

The court on Monday ruled 6-1 that the state can go ahead with the scheduled
Aug. 24 execution of Mark Asay.

Asay, 53, was originally scheduled to be executed in March 2016, for the 1987
murders of Robert Lee Booker and Robert McDowell in Jacksonville.

The execution was put on hold after the U.S. Supreme Court found the state's
death penalty sentencing law unconstitutional.

The Legislature has since twice changed the law, most recently this year when
it required a unanimous jury recommendation for the death penalty.

Justices rejected several arguments that Asay made to block his execution,
including his questioning of a new drug the state plans to use for lethal

(source: Associated Press)


Penalty phase begins in Sean Bush trial

Less than 2 weeks after convicting Sean Alonzo Bush of 1st-degree murder for
the 2011 killing of his estranged wife, Nicole Bush, jurors were back in a St.
Johns County courtroom Monday morning to begin the process of determining his

The 7th Circuit State Attorney's Office is seeking the death penalty in Bush's

Circuit Judge Howard Maltz told jurors they could expect to hear about 3 days
of testimony during the penalty phase of the trial.

This is the 1st death penalty case in the county since the state Legislature
earlier this year passed a new law in the wake of higher court decisions
requiring all 12 jurors to vote for a death sentence. Prior to a January 2016
decision from the U.S. Supreme Court, and subsequent rulings from the Florida
Supreme Court, judges could sentence a defendant to death with only a majority
of jurors voting for a recommendation of the death penalty.

Monday's proceedings got off to a fairly quick start with an opening statement
from Assistant State Attorney Mark Johnson, in which he told jurors there were
5 "aggravating circumstances" in the murder of the 35-year-old mother of 2.

Those factors, Johnson said, included that Sean Bush had been previously
convicted of aggravated assault for trying to kill a previous wife and Sean
Bush's murder of Nicole Bush was committed while in the commission of burglary,
done for financial gain, and was "especially heinous, atrocious and cruel."

"Our case today won't take very long," he said, promising he and Assistant
State Attorney Jennifer Dunton would be done presenting their case before

They made good on their promise.

Johnson said he would call no witnesses to reiterate testimony from the guilt
phase of the trial in which jurors learned Nicole Bush was shot 5 times in the
head and face, beaten with an aluminum baseball bat, and stabbed before being
left for dead in her Julington Creek townhome. He also told jurors their guilty
verdict on an associated burglary charge and the testimony they had already
heard about Nicole Bush's life insurance policies (totalling more than $800,000
with Sean Bush still listed as a beneficiary) should be sufficient to convince
them of the burglary and financial gain assertions.

But Johnson and Dunton did call the ex-wife, who testified that during a
"romantic evening" in April 2000, while relaxing in a hot tub, Sean Bush, after
asking her to close her eyes because he had a surprise for her, threw an
"electrically charged rod" into the tub of water. With sparks flying and her
back burning, the woman said, she jumped from the tub only to have Sean Bush
pin her against the wall and choke her. When the couple's 3-year-old daughter
pushed her way into the bathroom, the woman testified, she was eventually able
to get away and call police.

Prosecutors also called a girlfriend of Sean Bush's who testified more than a
year before Nicole Bush was killed, he expressed a desire to kill her and had
asked for help obtaining a gun, though it had been refused.

Dunton and Johnson finished the presentation of their case with tearful impact
statements from Nicole Bush's mom, sister and friend, who, in prepared
statements, each told jurors of the hurt and loss they have dealt with in the 6
years since her death.

With the state resting their case before lunch, jurors still had time to hear
the opening statement from defense counsel, Rosemarie Peoples, with the Public
Defender's Office, who told them that, with their guilty verdict, they had
already decided Sean Bush will spend the rest of his life in prison, but could
still spare him a death sentence.

After working her way through a series of objections from Johnson, who took
issue with what he perceived as Peoples arguing rather than previewing the
evidence the defense would present, Peoples told jurors they would hear Sean
Bush was negatively impacted by a childhood in which he was raised by a
mentally ill single mother on the streets of New Jersey.

"Sean grew up in an area where failure was a norm," she said.

The defense's 1st witness, Sean Bush's younger brother, testified the 2 boys
moved from apartments to abandoned houses, sometimes using shopping carts, and
sometimes slept in Newark's Penn Station. Growing up, he testified, the 2 dealt
with a mercurial mother who sometimes worked as a prostitute to support them
and seemed to battle drug problems.

During court's afternoon session, jurors heard from Sean Bush's oldest son -
born before his father met Nicole Bush - who spoke of a loving father who took
him and a younger sister to lunch outings and showered the 2 with gifts.

With the defense out of witnesses for the day following the son's testimony,
Maltz sent jurors home about an hour earlier than expected.

Court resumes this morning with more testimony from defense witnesses.

Maltz told jurors they can expect to begin deliberating by Thursday after each
side presents their closing argument.

(source: St. Augustine Record)

MISSOURI----impending execution

Attorney for Missouri death row inmate requests stay of execution over new DNA

A request for a stay of execution was filed Monday for a Missouri death row
inmate who's slated to die next week.

New tests show that Marcellus 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, according to Williams' attorney, Kent Gipson of
Kansas City.

Gipson said the DNA belongs to an unknown man. "We have 2 expert opinions based
on the data that the male DNA found on the knife does not match him. And there
are several points of dissimilarity. There's really no doubt about it," Gipson
told St. Louis Public Radio.

He added that they're looking for a new trial, or "at the very least reduce his
sentence from the death penalty to the life sentence."

If granted, it would be the 2nd stay of execution for Williams. The 1st was
granted in January 2015 by the state Supreme Court, which mandated the new DNA

It isn't clear when the court will make a decision. Williams is scheduled to be
executed on Aug. 22.

Attorney General Josh Hawley didn't immediately return a request for comment.

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

(source: stlpublicradio.org)


A Top Lawyer Asks Supreme Court To Hear A Major Death Penalty Case----In a new
filing, Neal Katyal is asking the high court to consider Arizona's death
penalty law - and whether the death penalty itself is unconstitutional

One of the country's top lawyers is asking the Supreme Court to take up a case
that could reshape - or even end - the death penalty in America.

The aggressive filing comes as the Supreme Court is already set to hear a
high-profile series of cases.

An Arizona death row inmate, Abel Daniel Hidalgo, has been arguing for the past
3 years that the state's death penalty law is unconstitutional because it
doesn't do enough to narrow who is eligible for the death penalty, among those
convicted of murder.

Earlier this year, Neal Katyal, best known these days for serving as the lead
lawyer for Hawaii's challenge to President Trump's travel ban, agreed to serve
as Hidalgo's lawyer at the Supreme Court.

Katyal, the former acting solicitor general in the Obama administration, asked
the justices in Monday's filing to hear Hidalgo's case and to strike down
Arizona's death penalty law.

The filing comes more than 2 years after Justice Stephen Breyer, joined by
Justice Ruth Bader Ginsburg, called for a wholesale review of the
constitutionality of the death penalty. Justice Sonia Sotomayor has also
expressed great concerns about the courts' handling of death penalty cases, as
well as some states' death penalty laws.

And Justice Anthony Kennedy has expressed concerns about the death penalty's
imposition, and has cast key votes excluding groups of people - like children
or the intellectually disabled - from being eligible for the death penalty. He
has not, however, given any specific indication that he is ready to join
Breyer's call to review the constitutionality of the death penalty overall -
and has allowed several executions to proceed since Breyer's call.

Katyal, however, joined by other lawyers at his firm, Hogan Lovells, as well as
the Office of the Legal Advocate in Arizona and Arizona attorney Garrett
Simpson, thinks the time is now - a move that could be tied to concerns by many
liberal lawyers about whether and when Kennedy, at 81, might retire from the

"I have spent the last few years with my team looking for cases that highlight
the gross problems with the death penalty in practice, and this case is a
perfect example of them," Katyal told BuzzFeed News on Monday evening. "We look
forward to the Supreme Court's review of Mr. Hidalgo's petition."

In 1972, the Supreme Court found the death penalty in America unconstitutional
as then implemented, the court, in Gregg v. Georgia. 4 years later, the court
brought it back - with new constraints - by approving several states' new laws.
In Monday's filing, Katyal wrote of that case, "[T]he Court acknowledged that
it might someday revisit the constitutionality of the death penalty in light of
'more convincing evidence.'"

He continued: "The evidence is in. The long experiment launched by Gregg - in
whether the death penalty can be administered within constitutional bounds -
has failed. It has failed both in Arizona in particular and in the Nation more

The brief points out that the court in Gregg found the new state death penalty
laws to be constitutional because they required the finding of "aggravating"
circumstances - a move that the court's controlling opinion concluded would
"direct and limit" who was eligible for execution "so as to minimize the risk
of wholly arbitrary and capricious action."

40 years later, Arizona's death penalty law is such that there are so many
aggravating circumstances that "every 1st degree murder case filed in Maricopa
County in 2010 and 2011 had at least 1 aggravating factor" making the person
eligible for the death penalty. Hidalgo pleaded guilty in 2015 to 2 January
2001 murders in a murder-for-hire scheme in Maricopa County, Arizona. He was
then sentenced to death by a jury.

"Arizona's scheme utterly fails," Katyal wrote, to "genuinely narrow the class
of persons eligible for the death penalty" as the court has required over the
time since Gregg.

For this reason alone, Hidalgo's legal team argues, the court should take the
case and strike down Arizona's death penalty law.

But, beyond that, the filing goes on, "A national consensus has emerged that
the death penalty is an unacceptable punishment in any circumstance." The brief
argues that the court should take the case and rule that the death penalty,
nationwide, is unconstitutional under the Eighth Amendment's guarantee against
cruel and unusual punishment.

This is so, the brief argues, because "the number of death sentences imposed
and carried out has plummeted."

The brief also points to 3 further key arguments in support of this larger aim:
First, states can't give guidance that ensures that only "the worst offenders"
are sentenced to death. Second, states can't enforce the death penalty without
"ensnaring and putting to death the innocent." And, finally, "the present
reality of capital punishment" - decades spent on death row with "the remote
but very real possibility of execution" - is its own possible constitutional

Hidalgo's is not the 1st death penalty case Katyal's team had considered taking
to the Supreme Court. In the fall of 2015, just months after Breyer and
Ginsburg's statement about reviewing the death penalty, Hogan Lovells took on
representation of Julius Murphy, on death row in Texas. The Texas courts,
however, put that execution on hold indefinitely before the Hogan Lovells team
had a reason to take the case to the US Supreme Court.

(source: BuzzFeed News)

A service courtesy of Washburn University School of Law www.washburnlaw.edu

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