death penalty news----TEXAS, PENN., VA., N.C., GA., FLA., ALA.
(too old to reply)
Rick Halperin
2017-07-22 14:58:09 UTC
July 22

TEXAS----impending execution

Texas Prepares for Execution of Taichin Preyor on July 27, 2017

Taichin "Box" Preyor's execution is scheduled to occur at 6 pm CDT, on
Thursday, July 27, 2017, at the Walls Unit of the Huntsville State Penitentiary
in Huntsville, Texas. Taichin was scheduled to be executed on Wednesday, July
20, 2016, however, that date was later removed from Texas' online execution
calendar, without comment. 46-year-old Taichin is convicted of the murder of
24-year-old Jami Tackett on February 26, 2004, in Bexar County, Texas. Taichin
has spent the last 12 years of his life on Texas' death row.

Prior to his arrest, Taichin worked as a truck driver and a laborer. He did not
graduate high school, dropping out after the 10th grade. In 1999, Taichin was
arrested and served time for a drug offense in Syracuse, New York. After being
released from prison, Taichin moved to San Antonio, Texas, where he was later
joined by his wife and children. Police had previously been called to the
residence for a "family violence call." Taichin's brother was one of the police
officers who responded to the call.

During the early morning hours of February 26, 2004, at approximately 4 am,
Taichin Preyor broke into the apartment of his ex-girlfriend, Jami Tackett, by
breaking down the door. Preyor went to Jami's bedroom, where he jumped on the
bed and began attacking her with a knife. He also stabbed Jami's new boyfriend,
Jason Garza, who fled the apartment, going to a neighbor and asking them to
call the police.

During the fight, Preyor lost his car keys, leaving him unable to flea the
scene. Preyor searched the apartment while Jami lay on the floor, struggling to
breathe. As he attempted to leave the building for a 2nd time, Preyor
encountered the police. The police were forced to use pepper spray to subdue
Preyor, who refused to comply with their demands. Preyor was covered in blood
when he was arrested.

Jami died from her injuries before paramedics arrived on the scene. Jason
survived his injury.

During his trial, Preyor attempted to argue that his actions that morning was
self defense. Prosecutors argued that the door being broken down indicates that
Preyor was the aggressor.

Please pray for peace and healing for the family of Jami Tackett and for Jason
Garza. Please pray for strength for the family of Taichin Preyor. Please pray
that if Taichin is innocent, lacks the competency to be executed, or should not
be executed for any other reason, that evidence will be presented prior to his
execution. Please pray that Taichin may come to find peace through a personal
relationship with Jesus Christ, if he has not already.

(source: theforgivenessfoundation.org)


Waco: Judge denies habeas corpus relief to convicted killer

A Waco district judge refused to grant habeas corpus relief to a man convicted
in the same courtroom 2 years ago of capital murder but did allow appeals
lawyers to submit briefs on 2 topics.

Judge Ralph Strother, in 19th District Court, said granting relief on the
habeas corpus issue would "be like trying this case all over again," as US
Carnell Petetan, dressed in jail clothing, sat silent and motionless at the
defense table.

Petetan was convicted in the same courtroom in 2014 and Strother, after the
jury's recommendation, sentenced him to death.

Bailiffs cleared the courtroom of visitors and attorneys while Petetan,
shackled at the wrists and ankles, was led in.

After he was seated the judge allowed everyone back in the courtroom.

Lawyers with the state Office of Capital and Forensic Writs, in Austin,
presented Strother with an 8-page application that listed 8 major issues at
trial and expanded on each one.

Strother, as presiding judge, was directed to determine if there were any
unresolved issues stemming from the trial, if so, identify them and finally
determine what action needed to be taken, Jeremy Schepers, 1 of the appellate
lawyers, said.

Schepers argued that Petetan was convicted by the jury who didn\'t have
knowledge of his behavioral deficiency and that deficiency, under state law,
means Petetan is ineligible for the death penalty.

But Assistant District Attorney Sterling Harmon reminded Strother that Petetan,
himself, testified at his own trial and the jury was able to see and hear him
for themselves.

As well, Schepers said, Petetan's lawyers at trial were ineffective and did not
properly represent him.

At the end of the 40-minute hearing Strother denied habeas corpus relief but
did direct appellate lawyers to prepare briefs on 2 issues: the 1st Petetan's
developmental disability and 2nd his claim of ineffective assistance of

Waco attorney Russ Hunt, Sr., represented Petetan at trial and Strother
directed that Hunt be given 120 days to respond to the appeals charge.

The briefs are due back to Strother and he will review them to decide if
further hearings are necessary.

If Strother finds merit in the appeals argument, he likely would set another
hearing on that specific issue.

Petetan was convicted of killing his estranged wife on Sept. 12, 2012 and was
sent to death row in 2014.

Kimberly Farr Petetan, 41, was gunned down at an apartment complex on Lake
Shore Drive and her daughter was abducted.

Police in Bryan arrested Petetan after they found him and the little girl

The Texas Court of Criminal Appeals already has upheld Petetan's conviction and
death sentence, rejecting an appeal in which his attorneys raised 30 points of
error from his trial, during which the defense maintained Petetan was mentally
impaired and thereby ineligible for the death penalty.

Friday's habeas corpus hearing is required by state law in all death penalty

(source: KWTX news)


Statements: Accused killer denies murder but tells troopers he watched man die

Justin Richard swore up and down in recorded statements he gave to state
troopers that he didn't kill Randy Sampsell but he did say he watched the man

Richard sparred verbally with Troopers Phil Davis and James Nizinski in his
initial police interview as part of the Sampsell murder investigation.

It was recorded on video June 28, 2012, and played Thursday in Union County
Court during a hearing on Richard's bid to quash statements he made to police
on 5 separate occasions.

Richard, 33, is charged with killing Sampsell, faces a capital murder trial and
could receive the death penalty if convicted.

"The dude didn't deserve to die. I'll tell you straight up, I watched him die,"
Richard told Davis and Nizinski in the recorded interview. "That wasn't part of
the plan. I do have a conscience."

Over and over, though, Richard insisted "I didn't do it" when asked who killed
Sampsell on June 12, 2012.

In the video and on an audio recording of a separate interview, Richard
appeared agitated and combative. He frequently spoke over investigators and
offered a slew of obscenities during the interviews.

Sampsell, 51, was shot dead during a home invasion. According to Richard's
statements to police, an unknown black male kicked open Sampsell's front door
and shot the man as he attempted to stand up from a recliner.

Police said Richard and Herbert Tiebout were among 4 men who targeted Sampsell
for a robbery. The robbers thought they'd make off with marijuana and money.
They fled with prescription pills. 2 of the men were never identified and
remain at large.

Scott Vonneida, of Millmont, was badly injured and lost vision in 1 eye from a
blow to the face by Richard in a robbery hours before the Sampsell murder,
police said. Vonneida was robbed of 10 guns, including a rifle used to kill

The statements Richard is not contesting were used as part of a plea deal. He
pleaded guilty to 3rd-degree murder and faced between 16 and 32 years for
testimony against Tiebout.

Richard twice recanted his statements, though - the 2nd time at the outset of
Tiebout's murder trial in September 2015. 2nd- and 3rd-degree murder charges
were dismissed against Tiebout and haven't been filed again.

A 1st-degree murder charge against Richard followed in December 2015 when
prosecution witness Amanda Kratzer modified previous police statements to
accuse Richard of twice confessing to shooting Sampsell himself.

Richard is fighting the murder case and related robbery accusations, aided in
his defense by attorneys Michael Dennehy and John McLaughlin.

Thursday's hearing was on motions by Richard's defense team to suppress the
police statements and dismiss the case for prosecutorial vindictiveness.

The hearing began at 9 a.m. with a lengthy behind-closed-doors meeting with
attorneys from both sides with Judge Michael Sholley. When it resumed at 10
a.m., Davis took the stand. Video from the June 28 interview was played,
followed by audio from an October 20, 2012, interview at the state prison in

"The whole thing was about weed," Richard told Davis on the audio recording.

"The man wasn't supposed to die. I live with that every day of my life. Now I'm
going to spend the rest of my life in prison because some idiot pulled the
trigger," Richard said later in the interview.

District Attorney Pete Johnson entered recordings, recording transcripts and
Miranda rights waivers signed by Richard into evidence in a move to support his
argument against the defense's assertions that the statements were involuntary
and under duress.

The hearing was scheduled for the morning only. A slow pace looked to push it
into the afternoon, conflicting with previously scheduled hearings.

Sholley abruptly adjourned the proceeding, offering no explanation from the
bench. He couldn't be reached for comment.

The prosecution and defense are each under a gag order, barring the attorneys
from discussing the case with media members.

An order on Richard's motions was not issued by Sholley by the end of Thursday
and the hearing was not added to court schedules for Friday or next week. It
remains unclear if and when the hearing will resume.

At the hearing's outset, Dennehy reiterated the defense's wish to continue the
hearing regarding the suppression motion.

"We're looking for a continuance to further develop the issue for court,"
Dennehy said of attempting to show Richard was in an adverse mental state when
he spoke with police.

(source: The Daily Item)


Gov. McAuliffe made an irreversible mistake

William Charles Morva was put to death because our legal system failed him.
When Virginia Gov. Terry McAuliffe (D) denied Morva clemency on July 6, he
apparently misunderstood the facts about Morva's mental illness and squandered
an opportunity for compassion.

When the governor refused to intervene, he missed a chance to exercise a solemn
constitutional duty to save Morva's life. In a case that cried out for mercy,
McAuliffe disregarded that the sentencing jurors never heard the compelling
evidence of Morva's long-standing, debilitating mental illness. Although
Morva's death is an irreversible mistake, he should not die in vain.

Death should be an extraordinary, rare punishment. U.S. and Virginia laws
reflect the centuries-old bedrock principles that a death sentence is
exceptional and that mercy alone is always reason enough to avoid the death

Jurors are not only allowed but also required to follow their individual moral
judgment in determining whether death is the appropriate punishment. The
governor, in wielding his awesome power to grant or deny clemency, carries that
same obligation. Virginia's constitution provides the governor the unrestricted
power to commute capital punishment to life in prison.

If McAuliffe had fully understood Morva's disease, he would have surely spared
Morva's life. In 2006, believing himself to be the target of a sprawling
conspiracy to kill him through abusive prison conditions, Morva escaped from a
jail where he awaited trial on felony charges and killed 2 public-safety
officers. If told little more than these facts, a jury might understandably
have little sympathy for Morva.

But what jurors never got to hear was testimony from a psychiatrist - placed on
the case in 2014 - that Morva suffered from a treatable, schizophrenia-like
illness with psychotic features and was mentally incompetent to participate in
his legal proceedings.

This psychiatrist could have related to jurors what scores of Morva's family
members and friends reported to her: They had watched Morva's mental health
precipitously decline in the years before the crimes and had seen his untreated
illness worsen for the remainder of his life. Morva's mother and others
reported how, for years, he refused to take visits or calls from her and his
lawyers, believing them all to be part of the grand conspiracy. Jurors also did
not hear that Morva believed his behavior was saving Native American tribes,
nor that he subsisted on a diet of raw meat and pine cones while living in the
woods barefoot in the winter. The experts at Morva's trial never learned, or
bothered to learn, about Morva's debilitating delusions.

Instead, jurors heard only that Morva's "odd beliefs" resulted from a
personality disorder that the prosecution asserted was untreatable and made him
likely to kill again. Given the sparse, inaccurate information before them, the
jurors unsurprisingly sentenced Morva to die.

The details of Morva's debilitating illness from his family, friends and
psychiatrist would have been powerful evidence - had the jurors ever heard it.

Faced with this new and clearly relevant evidence, the state chose to ignore
it, never seeking an expert to consider what witnesses said and to review the
psychiatrist's findings.

Oddly, the governor's statement denying clemency relied on the fact that the
psychiatrist's post-trial diagnosis conflicted with the testimony jurors heard
at trial. But that is precisely the point: Jurors never heard the observations
of severe symptoms that anyone who crossed Morva's path in the years before the
crime would have seen and the informed opinion of a qualified doctor. Rather,
the experts at trial relied on outdated information about Morva's childhood
long before his symptoms began.

In short, the trial evidence painted a grossly inaccurate picture of Morva's
life and true self. Before Morva's delusions began, friends, classmates and
family described acts of care and love toward them and others. The jurors never
got to hear of Morva - a young man, like others, of character and promise - as
McAuliffe did.

In denying clemency, the governor asked, "Does Morva deserve to live?" Instead,
he should have asked, "Do I, in my personal moral judgment, think the state
proved it has the right to take this life?" The right question would have led
McAuliffe to reach a different conclusion and to spare Morva's life.

Applying mercy to capital cases reaffirms our common beliefs in the rule of law
and in the dignity and value of every person regardless of what he or she has

(source: Opinion; By Gene Rossi and Edward J. Ungvarsky----Gene Rossi is a
retired Justice Department prosecutor. Edward J. Ungvarsky is a career public
defender based in Vienna who represents defendants prosecuted in Virginia on
capital murder charges----Washington Post)


Psychologist: Accused killer had been diagnosed with PTSD

The Texas man accused of robbing and killing a Granville County couple almost 3
years ago had been diagnosed as a child as suffering from post-traumatic stress
disorder because of repeated physical and emotional abuse by his father, a
psychologist testified Friday.

Eric Alexander Campbell, 24, of Alvin, Texas, is charged with 1st-degree
murder, 1st-degree burglary, 2nd-degree arson, robbery with a dangerous weapon,
larceny of a motor vehicle, financial card theft, identity theft and 2 counts
of cruelty to animals in the Dec. 31, 2014, deaths of Jerome Faulkner, 73, and
his wife, Dora Faulkner, 62.

If convicted, he could face the death penalty.

Authorities say Campbell and his father, Edward Watson Campbell, stormed into
the Faulkners' home in northern Granville County, robbed them, set fire to the
house and killed them before fleeing in both the couple's Chevrolet Silverado
and a stolen SUV.

Eric Campbell insisted during testimony Thursday that his father killed the
Faulkners and that he was outside their home in northern Granville County
during much of the attack.

Leigh Hagan, a Virginia-based psychologist hired by the defense, said several
psychologists have diagnosed Eric Campbell with chronic PTSD, starting at age
8. Hagan said his own examination found Campbell to be so afraid of his father
that he would never challenge or even question him, even during the brutal
attack on the Faulkners.

"The abuse relationship substantially accounts for Eric's conduct in the time
frame of this offense," Hagan testified. "Eric endured reasonable fear that he
would suffer immediate death or bodily injury if he didn't submit to his
father's will.

"Eric decided ... it would be better for his own protection to do what Daddy
says," Hagan later testified.

Edward Campbell killed himself in March 2015 in Raleigh's Central Prison, where
he was being held.

Earlier Friday, Eric Campbell faced about 3 hours of cross-examination by
prosecutors, who repeatedly pointed out inconsistencies between his testimony
Thursday and his statements to law enforcement officers shortly after his

Police in Lewisburg, W.Va., arrested the Campbells on Jan. 1, 2015, following a
shootout, and investigators found the Faulkners' bodies under a mattress in the
back of the pickup.

Eric Campbell gave West Virginia police a first-person account of the
Faulkners' slayings, but he testified that he based that on what his father had
told him.

"I'm just telling you what my dad told me what he did," Campbell told Granville
County District Attorney Mike Waters.

"I'm not asking what your dad said because you already told the jury you were
right there when it happened," Waters shot back.

"I wasn???t watching what my dad was doing. I was looking at a man on the
ground, dying," Campbell said.

Campbell said he thought his father planned to rob the Faulkners and was
shocked when he saw the carnage inside the house.

(source: WRAL news)


Justice delayed, denied ... for 40 years now

Attorneys for convicted "Stocking Strangler" Carlton Gary argued their case for
a new trial, based on what they claim is new evidence, back in January before
Muscogee Superior Court Judge Frank Jordan Jr.

As of Friday, there had still been no ruling.

Not that local and state legal officials - some of whom were literally children
when all this began - haven't been pushing for one. As reported by the
Ledger-Enquirer's Tim Chitwood, District Attorney Julia Slater and a group of
prosecutors, including 1 present and 1 former assistant state attorney general,
filed a motion June 27 calling on Jordan to make a decision.

So urgent was the prosecutors' insistence on moving this decades-long case
forward that their motion cites Georgia law setting a 90-day deadline for the
court to issue such a ruling "unless providentially hindered or unless counsel
for the plaintiff and the defendant agree in writing to extend the time." It
has now been more than 6 months, in case you weren't counting. (Under the same
state law, failure to comply "shall be grounds for impeachment and the penalty
therefore shall be [the judge's] removal from office.")

Whatever the judge's decision, Slater said, it won't be the end of the matter
anyway: "I anticipate that whatever the ruling is, 1 side will appeal."

The sad and ugly reality is that whether we're talking about 90 days or 6
months, it's a relative eye blink in time - though just the latest in what
seems an infinite series of them - in the long nightmare of a serial killer's
violent, terrifying crime spree and its seemingly endless aftermath.

It has been 40 years since the first of the rapes and stranglings of 7 older
Columbus women. Their families' wait for justice is well into its 3rd
generation now; it has been so long since these murders shook Columbus and the
whole Chattahoochee Valley area that some of the victims' loved ones have lived
out their lives, waiting futilely for justice, and passed on.

It has been more than 30 years since Carlton Gary, convicted in three of the
murders - the ones for which, in the pre-DNA forensic technology of 1986,
prosecutors had the strongest cases - was convicted and sentenced to death.
(Years later, DNA evidence from one of the murders for which he was not tried
matched Gary's; DNA evidence from 1 of the murders for which he was convicted
had been contaminated during comparison tests at the GBI crime lab.)

And it has been more than 7 years since that death sentence was last scheduled
to be carried out. At 66, Gary is now older than 3 of the victims when their
lives ended in violence, pain and terror.

Both the guilty verdict and the capital sentence imposed on Carlton Gary have
been upheld by every court to which the case has been appealed, including the
U.S. Supreme Court - twice. No judge in any appeals panel to which the case was
presented has offered a dissent. Life without the possibility of parole was not
a lawful sentence at the time of Gary's conviction, so commuting his death
sentence to life now could present legal complications - including possible (if
unlikely) parole, given the time Gary has already served.

A 1980 Georgia Supreme Court ruling requires that a new trial must be based on
genuinely new evidence (not just evidence the defense failed or neglected to
produce earlier), and that such evidence be so compelling that it would likely
have affected the verdict.

In any case, as Slater pointed out, whatever the eventual ruling from the
Superior Court, it likely just sets another appeals process in motion. To drag
this case out any longer than absolutely necessary, given the heinousness of
the crimes and the absurd span of time over which it has been dragged out
already, would be unconscionable.

(source: Opinion, Dusty Nix, Columbus Ledger-Enquirer)


Lawsuit Challenges State Use Of Solitary For Death Row

A federal lawsuit is challenging Florida's policy of isolating all death row
prison inmates in solitary confinement indefinitely.

The lawsuit was filed in Jacksonville federal court on behalf of 9 inmates who
have been held in solitary for between 4 and 30 years. It seeks to represent
all Florida death row prisoners, who totaled 363 on Thursday.

The Florida Department of Corrections policy violates the Constitution's
protection against cruel and unusual punishment and guarantee of due process,
according to the lawsuit. It asks a judge to prohibit the department from
keeping death row inmates in solitary except for limited periods and for
justified reasons.

Similar lawsuits have been filed in Louisiana, California, Arizona, New York
and New Jersey.

A corrections spokeswoman said the lawsuit would be reviewed.

(source: WGCU news)


St. Cloud father receives death sentence in infant murder

The same jury that last week found a St. Cloud guilty of 1st-degree murder for
killing his own son in a sleep-deprived state in 2013 sentenced him to the
death penalty Tuesday.

On July 13, the jury found that what Larry Perry, 33, did in killing his son,
Ayden, just 3 months old on Feb. 13, 2013, warranted being found guilty of
murder. It was more than the lesser charge of manslaughter that he plead guilty
to before the jury deliberated.

Then Tuesday, after hearing a day's worth of testimony from mental health
experts rating Perry's ability to intellectually process what he'd done, the
jury unanimously recommended the death penalty. Another hearing will be held on
Oct. 13, and unless there is added testimony, Ninth Circuit Judge Jon B. Morgan
will formally sentence him.

The trial was delayed for months as the state reassigned the case from
Orange-Osceola State Attorney Aramis Ayala, who said she would not pursue the
death penalty in any case, to Lake-Marion State Attorney Brad King, and while
the defense pursued a public defender qualified for death penalty cases.

During the trial, prosecutors played a chilling 911 call in which a baby is
moaning, and Perry is recorded saying, "I told them I couldn't do this any

A St. Cloud Fire Rescue official testified finding a bruised, swollen boy after
reporting to the home, and a police investigator said on the stand that Perry,
during interrogation, was calm and not upset that a child in his care had been
brutally beaten, recounting what he did while yawning.

He said the baby's mother had been arrested earlier in the month on a drug
charge, and she was the one who was able to keep the boy quiet, but he was
alone with the child that night.

After giving Ayden 3 bottles over the course of the evening, Perry said the boy
continued screaming and crying. He proceeded to slam him against a wall, threw
him on the bed, then put him on the floor and kicked him. Perry then called

"I thought he was dead at first," Perry told the investigators. "I know what I
did, I deserve whatever ... nobody helped me, I called 911 myself. I'm telling
you, I just can't do this (expletive) myself."

Perry buried his head into his arms at the table during most testimony in both
trial and sentencing stages. Afterward, defense attorney Frank Bankowitz
offered to plead guilty to a lesser charge of manslaughter, but argued the
murder charge should not stand because Perry, who chose not to testify in the
case, had not slept well after the child's mother was arrested and lacked the
capacity to know what he could do, or that he could take the baby to a nearby
fire station.

"This was not an act thought out," Bankowitz said, saying it lacked the
premeditation needed for a 1st-degree murder charge. "He just snapped."

But the jury did not agree and said he should die for his crime.

(source: aroundosceola.com)


Alleged murderer's competency called into question in Collier court

Collier County's most gruesome murder case is coming to a close. Accused mass
murderer, Mesac Damas, said he wants to plead guilty and be executed.

He's the man charged with the murders of his wife and 5 children.

It seemed like Damas had an agenda in court on Friday. He wouldn't answer the
judge's questions, and instead told the judge he wanted to plead guilty and get
it over with.

"I would like to represent myself. I would like these 2 gentlemen to be removed
from the case, and I would like to plead guilty now," Damas said in a court

He's asked multiple times to fire his attorneys and said he wants to face the
death penalty - but neither of those things happened in the courtroom.

After Damas refused to answer some of the questions that were asked of him, the
judge ordered another competency evaluation. He's unsure that Damas is
competent to represent himself.

2 more doctors will evaluate him - a process that's been done multiple times
since he was arrested in 2009.

We'll be back in the courtroom for this case on August 18 after a report has
been given by those doctors. That will determine if he's competent to represent

Linda Oberhaus with the Shelter for Abused Women and Children has been
following this case for 8 years.

"It seemed to me that he was just manipulating the court system the same way he
was manipulating his family when he had one," Oberhaus said.

In June, Damas told the judge he wanted to die. If the judge accepts Damas
guilty plea, Damas still has the opportunity to have a jury decide his sentence
or he can have the judge sentence him.

"If the judge finds he is competent to make those decisions and he makes those
decisions as announced, there is a path to sentence him to death without a jury
trial," attorney Josh Faett said.

Oberhaus says no matter what happens tomorrow; Guerline and her 5 children
Mizach, Marven, Maven, Megan, and Morgan will always be remembered. Each of
their throats was slit allegedly by the own father.

"It's really difficult to talk about justice when we talk about the fact that a
beautiful family has been lost. Whether he gets life or death, that will never
bring that family back."

(source: ABC news)


Did judicial override end in Alabama? Some say judges can still overrule jury
to impose death penalty

2 north Alabama defense attorneys are disputing a judge's ability to override a
jury vote and condemn a capital murder convict to death.

Although a change in state law earlier this year takes away judges' ability to
reverse a jury decision and sentence a capital murder convict to death,
judicial override might not be over.

The judicial override law bans judges from imposing the death penalty when a
jury votes to sentence a capital murder convict to life in prison without the
possibility of parole. The law became effective with Gov. Kay Ivey's signature
on April 11. But, the law appears to leave a question about the cases to which
it applies.

For people who were charged with but not convicted of capital murder prior to
April 11, prosecutors say judges still can impose the death penalty, even if a
jury votes for life without parole. Defense attorneys, on the other hand, say
their clients are protected from judicial override -- just like any suspect
charged after the April 11 signing date.

One case in question involves Richard Burgin, a man recently convicted of
capital murder in the notorious Huntsville church food pantry killings. His
lawyers argue Madison County Circuit Judge Karen Hall cannot sentence the
54-year-old to die for killing brothers Anthony and Terry Jackson in 2013.

Because a jury voted 8-4 to send Richard Burgin to prison for life without
parole, Judge Hall must impose the jury's recommendation, Huntsville lawyers
Larry Marsili and Chad Morgan said in a court filing. The lawyers argue
Alabama's recently-enacted Judicial Override law prohibits the judge from
reversing the jury's sentencing recommendation.

Final sentencing rests with Circuit Judge Laura Hall.

Burgin was convicted and sentenced in May -- a month after the law was signed
by the governor. But, prosecutors say the law doesn't protect Burgin because he
was charged with capital murder before the bill became law. Burgin was arrested
for capital murder in 2014. He was indicted the following year.

The only sentencing options in Alabama capital cases are life without parole or
death. Alabama had been the only state that allows a judge to override a jury's
recommendation when sentencing capital murder cases.

Judge Hall has not said whether she plans to sentence Burgin to death.

The judicial override law states, "This act shall apply to any defendant who is
charged with capital murder after the effective date of this act and shall not
apply retroactively to any defendant who has previously been convicted of
capital murder and sentenced to death prior to the effective date of this act."

"It leaves open the question of someone who has been charged but not
convicted," said retired Judge John Carroll, a professor at the Cumberland
School of Law. "It's not crystal clear."

Madison County Chief Trial Attorney Tim Gann disagrees.

"In the law, they made it real clear," Gann said. "It's not retroactive and it
doesn't apply in this case. It's a done deal. It's unambiguous. For us, this is
a dead issue."

Joy Patterson, a spokeswoman for the Alabama Attorney General's Office, said
the defendant would need to have been charged after April 11 to be protected
from judicial override.

Burgin's trial was conducted under the theory that the judge had the final say
in sentencing. The Madison County District Attorney's Office asked the jury to
sentence Burgin to death, and now prosecutors are requesting the same from the
judge. Sentencing is set for Aug. 22 at 1:30 p.m.

Because the defense lawyers argue the judge can't override the jury's
recommendation, they say a sentencing hearing is "unnecessary and
unauthorized," the court filing states.

"The newly enacted law makes no reference to the initial date of charging
concerning the applicability of the law, instead indicating that the law 'shall
apply to any defendant who is charged with capital murder after the effective
date of this act,' Burgin's lawyers said in the filing.

Defense lawyers Morgan and Marsili also argue that if the legislature intended
for the law not to apply in pending cases, like Burgin's, that lawmakers would
have specified that.

Alabama Sen. Dick Brewbaker, a Republican from Montgomery, drafted the Judicial
Override Bill.

"The intent of the legislature, and what we thought we were doing with passing
the bill, was that upon signature of the governor, it would end judicial
override in Alabama," Brewbaker told AL.com. "I think everyone in that chamber
who voted for the bill thought, going forward, the juries' wishes would be the
last word in all cases."

The Judicial Override Bill passed the House and Senate before being sent to the

Birmingham lawyer Richard Jaffe has handled several death penalty cases in his
career. He said at this point, the important question isn't whether judges can
still legally override a jury verdict, but rather, "Why would they?"

"Because of the new law and the tenuous nature of the override practice, it
would be perilous, and frankly, quite foolish for a judge to override," Jaffe
said. "It's not in anyone's best interest for a judge to override. It's not
fair to the victims' families or to the defendant. It would just be something
that's litigated for years to come."

Jaffe told AL.com even before the law changed in April, many judges said
override was so questionable that they wouldn't do it.

"You have to think about the constitutional implications," Jaffe said.

(source: al.com)
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