Rick Halperin
2018-09-26 12:14:41 UTC
September 26
TEXAS----impending executions
Texas set to execute Troy Clark Wednesday, the 1st of 2 scheduled executions in
2 days----Clark was convicted in the Tyler murder of Christina Muse, whose body
was found stuffed in a cement-filled barrel months after her death. Death
penalty opponents say his conviction rests too heavily on a co-defendant's
testimony.
The 1st of 2 scheduled Texas executions this week is set to take place
Wednesday evening.
Troy Clark, 51, was convicted in the 1998 Tyler kidnapping and murder of
Christina Muse, and he has been accused of 2 other murders and a slew of other
crimes, according to court records. The prosecution said Clark beat and drowned
Muse before stuffing her body in a barrel with concrete and hiding it on his
landlord's property.
Though his attorneys hadn't filed any last-minute legal challenges as of
Tuesday, his conviction has been questioned by anti-death penalty advocates
since it was largely based on the testimony of his then girlfriend who also
faced a murder charge. And for years, his legal fight had focused on a lack of
evidence presented at trial that could have swayed the jury to opt for the
lesser sentence of life, like his suffering from fetal alcohol syndrome.
At the time of Muse's murder, Clark was living with his girlfriend, Tory Bush.
The 3 would do drugs together - court records show Clark used and dealt
methamphetamines - but Bush testified at trial that on May 19, 1998, Muse came
over and Clark tased her with a stun gun, taped her hands, ankles and mouth and
then put her in a closet. Several hours later, her took her to the bathroom,
beat her over the head with a wooden board and had Bush help him drown her in
the bathtub, according to Bush.
The barrel and Muse's decomposing body were found months later after Bush spoke
to police while under arrest on another charge.
In 2000, Bush said at Clark's trial that he was paranoid and thought Muse was
talking to the wrong people about his drug dealings. After he tased her, "He
told her, he said, 'You should have kept your mouth shut,'" Bush told the jury.
Others testified that they had helped Clark load a blue barrel on his truck the
day Muse disappeared. And the state also brought forth witnesses that indicated
he had killed 2 other people, including a man whose body was found in a septic
tank on the same property as Muse, according to federal court filings.
In an unsuccessful last-ditch petition to the Texas parole board asking for a
reduced sentence, Clark's attorney pointed out that Bush's testimony - which
played a large role at trial - had changed several times.
Previously, Bush said she thought the man found in the septic tank was to blame
for Muse's death, and then she gave a detailed statement saying she killed Muse
out of jealousy and that Clark wasn't even home at the time. In that statement,
she told police if Clark were implicated in the murder, he "would just cover up
for me."
At trial, attorneys briefly questioned Bush on her changing testimony, and she
said she had lied earlier because she was afraid of Clark and also loved him,
the trial record shows.
"He wanted me to change the whole story," Bush testified. "He wanted me to lay
the blame on 2 other people, and those 2 other people are dead."
She acknowledged on cross examination that she had been given a promise of a
30-year recommended sentence for her involvement in the murder if she
cooperated with the prosecution. Bush ultimately pleaded guilty to a 20-year
sentence and has since been released from prison.
"Clark's death sentence is the product of the largely uncorroborated testimony
of an incentivized co-defendant and a trial attorney whose performance was
abysmal," wrote David Dow, Clark's current attorney, in his plea to the parole
board.
The board voted unanimously against Clark's petition on Monday.
(source: Texas Tribune)
*************
Tyler man slated to be 1st of 2 Texas death row inmates executed in 2
nights----Troy Clark was convicted of an East Texas murder.
The East Texas man convicted of drowning a former housemate and stuffing her
body into a barrel of lime is slated to die Wednesday in the first of two
consecutive executions in the Lone Star State.
If both punishments go through as planned, it'll be the 1st time in just over 6
years that Texas has put to death 2 prisoners in 2 nights.
Both men say they're innocent, and the pair of impending executions - 1st of
Troy Clark, then of Daniel Acker - has attracted attention from actress Susan
Sarandon, author Mary Buser and renowned death penalty abolitionist Sister
Helen Prejean.
"Texas plans to execute Troy Clark on Wednesday but there are some serious
problems with his case," Prejean tweeted. "Troy has always maintained his
innocence. Someone else made a detailed confession and then completely changed
her story in exchange for a reduced sentence."
Clark was sentenced to die in 2000 for killing Christina Muse out of fear the
young mother would snitch on him for his drug use, according to court records.
He was convicted in part due to the testimony of his then-girlfriend Tory Bush,
who admitted to the crime then fingered Clark - even though there was no
physical evidence connecting him to the murder.
The May 1998 slaying came just after Muse moved out of the Smith County home
where Clark and Bush lived and sold meth.
One day when Muse stopped back at the home to visit, she and Clark started
talking and at some point in the conversation, according to court records, he
used a stun gun to take her down, then duct-taped her arms and legs and left
her in a closet for hours. Then, he moved her into the bathtub and ordered Bush
to get a board so he could beat the bound woman.
After drowning Muse, according to court records, Clark ordered his girlfriend
to go get lime. When she got back, he dumped the slain woman's body in a blue
barrel filled with lime, cement mix and water.
Later, according to the state's theory, Clark and some friends loaded the
barrel into a truck and ditched it in a remote spot on his landlord's property.
When authorities found the gruesome remains, they also discovered the body of
Tracy Mize decaying in a septic tank on the same property.
In trial, the jury also heard evidence that Clark allegedly killed 2 other
people and robbed others.
But Clark denied his involvement, saying he wasn't at home at the time of the
slaying, and that he was out delivering drugs. No physical evidence linked him
to the crime, defense lawyers pointed out.
In the years since he was sent to death row, Clark has argued that he suffered
bad lawyering, didn't get to show evidence rebutting claims he would be a
future danger to society, and that his girlfriend's testimony was self-serving
and unreliable - especially considering she once confessed to the crime
herself.
"Clark's death sentence is the product of the largely uncorroborated testimony
of an incentivized co-defendant and a trial attorney whose performance was
abysmal," attorneys David Dow and Jeff Newberry wrote in a clemency petition,
alleging the trial team failed to present evidence of Clark's traumatic
childhood and Fetal Alcohol Syndrome Disorder.
But the Board of Pardons and Paroles on Monday afternoon denied his request for
clemency. As of early Tuesday, he had no pending appeals, his attorneys said.
A day after Clark's scheduled date with death, Acker is slated for execution.
The Sulphur Springs man was sent to death row in 2001 after he was convicted of
strangling his girlfriend and pushing her from a moving car - though the state
abandoned the strangulation theory after trial.
The Lone Star State has already executed 8 men this year, and another 9 death
dates are on the calendar.
(source: Houston Chronicle)
*******************
Executions under Greg Abbott, Jan. 21, 2015-present----35
Executions in Texas: Dec. 7, 1982----present-----553
Abbott#--------scheduled execution date-----name------------Tx. #
36---------Sept. 26---------------Troy Clark--------------554
37---------Sept. 27---------------Daniel Acker------------555
38---------Oct. 10----------------Juan Segundo------------556
39---------Oct. 24----------------Kwame Rockwell-------557
40---------Nov. 7-----------------Emanuel Kemp, Jr.-----558
41---------Nov. 14---------------Robert Ramos-----------559
42---------Dec. 4-----------------Joseph Garcia-----------560
43---------Dec. 11----------------Alvin Braziel-----------561
44---------Jan. 15----------------Blaine Milam------------562
45---------Jan. 30----------------Robert Jennings---------563
(sources: TDCJ & Rick Halperin)
***********************
Prosecutors to seek death penalty against man accused of deadly home invasions
A suspect in 2 deadly home invasions could face the death penalty.
During a status hearing this morning, prosecutors announced they will seek the
death penalty against Ismael Castillo.
He's charged with capital murder and other charges in a double shooting at a
home on Coleman Avenue back on March 14. One of the victims, 19-year old
Deandre Mathis, later died.
Judge Missy Medary set Castillo's trial for Jan. 14.
Castillo is also charged with the April 2 home invasion, which left a couple
dead in their home on Balchuck Lane.
(source: KRIS TV news)
NORTH CAROLINA:
Forsyth County prosecutors pursue the death penalty against man accused of
stabbing and dismembering 75-year-old Winston-Salem man
Forsyth County prosecutors will seek the death penalty against a man they say
stabbed a 75-year-old man to death, dismembered him, stole his car and dumped a
part of his body in another county.
Adrion Demare Whorley, 32, of Rockingham was indicted Sept. 10 on charges of
1st-degree murder, armed robbery and concealing a death. He is accused of
killing and dismembering John Douglas Agnew sometime between April 7, 2017, and
April 10, 2017. Indictments also allege Whorley used a knife to take Agnew's
car.
Judge Michael Duncan of Forsyth Superior Court held what is known as a Rule 24
hearing, where prosecutors have to present at least 1 out of 11 aggravating
circumstances allowed in state law for pursuing the death penalty against a
defendant.
Chief Assistant District Attorney Jennifer Martin and Assistant District
Attorney Sara Loebner are prosecuting the case. Winston-Salem attorney Karen
Gerber is representing Whorley, who is being held without bond at the Forsyth
County Jail.
Martin argued that there were 3 aggravating circumstances in the case - that
Whorley was previously convicted of a violent crime, assault with a deadly
weapon with intent to kill, inflicting serious injury; that the killing was
committed for pecuniary gain in that Whorley is alleged to have taken items out
of Agnew's safe and stolen his car; and that the death was "especially heinous,
atrocious and cruel."
Duncan granted the request to declare the case capital. That means if Whorley
is convicted of 1st-degree murder at a trial, he could face the death penalty.
A separate sentencing hearing would have to be held in which Whorley has the
opportunity to present mitigating evidence. A jury would ultimately decide
whether Whorley faces a death sentence or life in prison without the
possibility of parole.
Gerber said after the hearing that prosecutors have not presented any evidence
in the case.
"This is not an evidentiary hearing," she said. "The state by statute has to
assert to the judge essentially what they would like to argue if they got to
the point of a capital sentencing hearing....The short of it is he is presumed
innocent and goes before the court in all future hearings as an innocent man."
Scene of violence
A day after John Agnew's daughter, Melanie Agnew Simpson, found a strange note
on her father's front door at his house on Timberline Drive, Winston-Salem
police found Agnew's head, lower legs and arms inside a large black duffel bag
that had a Walmart tag on the handle. The safe had been pried open from the
back. Simpson and other family members told police that the safe usually was
kept in an upstairs bedroom and contained Agnew's .45-caliber handgun.
At Agnew's house, Winston-Salem police found a hacksaw, covered in blood, hair
and body tissue, in the kitchen sink, visible boot or shoe prints in the floor
and fingerprint evidence that matched Whorley, according to the search warrant.
The upstairs bathroom shower curtain was missing.
Agnew's torso was found in a wooded area off Canter Road in Randleman and was
wrapped in a transparent shower curtain, the search warrant said.
"What they found ... was a scene of violence and complete disgust," Martin said
in court.
Martin said in court that Agnew's murder happened 4 months after Whorley had
been released from prison on his assault conviction. She said Whorley had been
inside Agnew's house and that he dismembered Agnew's body after assaulting
Agnew. Martin said police found not only a hacksaw but cleaning agents for what
she said was Whorley's attempt to cover up what he had done.
She said Whorley took Agnew's car and drove it toward Randolph County, where
Agnew's torso was found. She said at some point, the car ran out of gas.
Deputies with the Richmond County Sheriff’s Office later found Agnew's car.
Martin said Agnew had at least 3 stab wounds, including in his neck and to his
spinal cord. He also had a stab wound to his left lung. Several of his fingers
were amputated. She said it also appears that Agnew was decapitated at or near
the time of his death.
Dr. Anna Greene McDonald, a Forsyth County medical examiner, said in an autopsy
report that Agnew died from stab wounds in his neck and torso.
Now that the case has been declared capital, Whorley will be assigned a 2nd
attorney through the Capital Defender's Office.
No trial date has been set for the case. It usually takes at least a year or
longer before a murder case is ready for trial or a plea arrangement is worked
out.
(source: Winston-Salem Journal)
SOUTH CAROLINA:
Man who killed Orangeburg officer runs out of appeals, remains on death row
The man who murdered an off-duty Orangeburg officer in 2004 has run out of
appeals, according to a federal judge's order.
Mikal Deen Mahdi, 34, remains on death row.
U.S. District Judge Timothy M. Cain denied Mahdi's petition for post-conviction
relief on Monday. Also, if Mahdi wants to try to get his death sentence
reversed, he'll have to ask the court for permission to appeal.
Mahdi shot and killed Orangeburg Department of Public Safety Capt. James Myers
as part of a multi-state crime spree. Mahdi set the officer's body on fire at
Myers' property in northwestern Calhoun County.
"Mikal Mahdi is probably the most dangerous and violent person I've ever
prosecuted in 25 years," 1st Judicial Circuit Solicitor David Pascoe said.
"He's certainly the most dangerous because of his intelligence. He places no
value on human life and his history of violence speaks for itself and look what
has happened since his death sentence and what he's done," Pascoe added.
Pascoe said Mahdi, "nearly murdered a guard on death row."
2 months before his crime spree, Mahdi was released from a Virginia prison
where he had been serving a sentence for a 1998 assault. Authorities present at
his 1998 arrest testified that the then-15-year-old Mahdi pledged, "I'm going
to kill a cop before I die."
The spree began with Mahdi robbing a Winston-Salem, N.C. store of money and
beer. He killed the 29-year-old clerk, Christopher Boggs.
The morning of July 18, Mahdi carjacked a Ford Expedition from a driver in
Columbia.
He then drove to Calhoun County, where he shot Myers 9 times.
Mahdi fled in Myers' unmarked police truck, which was loaded with guns,
ammunition and body armor.
A manhunt for Mahdi spanned much of the Southeast and ended 3 days later with
his arrest in Satellite Beach, Florida, about 20 miles south of Cape Canaveral.
Federal court records state that Mahdi got out of the truck, pointed a
high-powered rifle at officers, then dropped the weapon and tried to run. 20
minutes later, officers captured him.
Mahdi pleaded guilty to Myer's death in 2006, just before his trial began.
In a 2009 opinion, then-S.C. Chief Supreme Court Justice Jean Toal wrote, "In
my time on this court, I have seen few cases where the extraordinary penalty of
death was so deserved."
(source: The Times and Democrat)
ALABAMA:
Argument preview: Justices to consider competency in capital cases
It has been over 33 years since Vernon Madison shot and killed Julius Schulte,
a police officer in Mobile, Alabama. Schulte had come to Madison's house to
protect Madison's former girlfriend and her daughter while they moved out;
Schulte was sitting in his car when Madison shot him twice in the back of the
head. Madison was convicted of capital murder and sentenced to death, but next
week the Supreme Court will hear oral argument on whether it would violate the
Constitution to execute Madison when he has no memory of his crime.
Madison, now in his late 60s, has been on death row for over 30 years. During
that time, he has had several strokes, which have left him with significant
brain damage. Madison suffers from dementia and long-term memory loss; he is
also legally blind and can no longer walk without assistance. Since Madison's
stroke, his lawyers tell the Supreme Court, Madison "has repeatedly asked for
his mother to come and visit him even though she has been dead for years."
Madison also cannot remember any of the details of the crime that put him on
death row, including Schulte's name, the events surrounding the crime, or his
trial. After his execution was scheduled for January of this year, Madison went
to state court to challenge his competency to be executed, armed with evidence
that a court-appointed expert who had evaluated him, and whose findings had
played a key role in earlier rulings that Madison was competent to be executed,
was abusing narcotics and was eventually suspended from practicing psychology.
The state court would have allowed Madison's execution to go forward, but the
Supreme Court stepped in and - over the objection of Justices Clarence Thomas,
Samuel Alito and Neil Gorsuch - put the execution on hold while it considered
Madison's request for review.
In his brief on the merits at the Supreme Court, Madison contends that
executing him would violate the Eighth Amendment's ban on cruel and unusual
punishment because he does not understand why he is being executed. To support
this argument, Madison points to 2 earlier decisions by the Supreme Court: Ford
v. Wainwright, in which the justices ruled that the Eighth Amendment bars the
execution of inmates who are mentally incompetent; and Panetti v. Quarterman,
in which the justices held that the lower courts should have considered an
inmate's claim that he suffered from "a severe, documented mental illness that
is the source of gross delusions preventing him from comprehending the meaning
and purpose of” his death sentence.
Taken together, he asserts, these cases "require that states refrain from
executing an individual," like Madison, "whose verifiable cognitive impairments
render him incompetent to rationally understand the circumstances surrounding a
scheduled execution." This is particularly true, Madison adds, because
executing an inmate who does not understand why he is being punished does not
serve the purposes of the death penalty: The execution would not deter future
crimes, nor would it punish Madison for his conduct.
For its part, Alabama casts doubt on whether, as a result of his health
problems, Madison cannot actually recall his crime: Madison, the state notes,
"first claimed that he could not remember murdering Officer Schulte in 1990,
long before he purportedly suffered from dementia-related amnesia." Moreover,
the state observes, Madison remembers many details of his life and criminal
history; his physicians reported that he can provide consent for medical
procedures and sometimes declines medications if he does not like the side
effects.
But in any event, the state continues, whether Madison remembers his crime is
irrelevant to whether he should be executed. Although the Constitution does
prohibit the execution of someone who is incompetent and cannot understand the
reasons for his execution, Madison does not fit that description: Even if he
doesn't remember killing Schulte, a court-appointed psychologist has concluded
that "Madison has a rational understanding that he is to be executed for
killing a police officer in 1985." The Eighth Amendment does not, the state
emphasizes, prevent Alabama from executing Madison simply because he says he
does not remember committing his crime.
When the justices consider Madison's case next week, it will be the 2nd time
that the Supreme Court has done so: In 2017, the court reversed (without
briefing on the merits or oral argument) a ruling by a federal appeals court
that would have vacated Madison's sentence. Discussing the high bar under
federal habeas law for a federal court to overturn a state court's ruling in a
criminal case, the court's unsigned opinion stressed that its decisions in Ford
and Panetti had not "clearly established that a prisoner is incompetent to be
executed because of a failure to remember his commission of the crime, as
distinct from a failure to rationally comprehend the concepts of crime and
punishment as applied in this case." Justice Ruth Bader Ginsburg wrote an
opinion in which she agreed with the court's disposition of Madison's case but
also noted that the question "whether a State may administer the death penalty
to a person whose disability leaves him without memory of his commission of a
capital offense is a substantial question not yet addressed by the Court."
During this round of proceedings at the Supreme Court, the justices will
consider the question of Madison's competency to be executed on the merits,
rather than under the higher standard created by federal habeas law. But it
also seems increasingly likely that only 8 justices will hear oral argument in
Madison's case. With Thomas, Alito and Gorsuch already having signaled that
they are likely to rule against him, Madison will almost certainly need the
votes of all imc4 of the court's more liberal justices and Chief Justice John
Roberts to prevail and stave off his execution - which could be a tall order.
We'll have a better sense of where the justices might be heading after next
week's oral argument.
(source: Amy Howe, scotusblog.com)
KENTUCKY:
Freed Death Row Inmate Brings Story to KY
Gary Drinkard, who was freed from prison in 2001 after 6 years on Alabama's
death row, admits he's still angry at the legal system.
So Drinkard is traveling across Kentucky this week, speaking at churches and
colleges about his wrongful conviction.
He is part of Witness to Innocence, an organization that gives a voice to those
freed from death row, which Drinkard says enables him to channel his resentment
into action.
"If I were to get away from it, I feel like I would be letting a lot of people
down, letting the attorneys down that fought for me, letting the people down
that are still innocent on death row, letting my family down," he explains. "I
mean, it destroyed my family."
Sentenced to death in 1995 for the robbery and murder of an automotive junk
dealer in Decatur, Alabama, Drinkard was granted a new trial by the Alabama
Supreme Court in 2000 because of prosecutorial misconduct. He was acquitted in
2001.
Like Alabama, Kentucky is among 32 states where the death penalty remains
legal.
Efforts in recent years to make life without parole the maximum sentence have
failed to pass the Kentucky General Assembly.
Drinkard maintains his message, that execution makes no sense because it is
immoral and too costly, resonates with those willing to listen.
"It helps a lot of people come to the mindset that it's not right," he
stresses.
Among the places Drinkard will talk while in Kentucky is at the University of
Louisville-Brandeis School of Law.
(source: publicnewsservice.org)
TENNESSEE----impending execution
Edmund Zagorski's Plea for Mercy----With an Oct. 11 execution looming, jurors
and prison staff support clemency for death row inmate
Edmund Zagorski's plea for mercy is short and simple.
“Dear Governor Haslam,” he writes. "Thank you for your time. I just wanted to
let you know that I regret everything that happened. I feel really bad for
victims' families and the vast impact it caused. I knew their lives would have
been so much better in so many ways and not a day has gone by I haven't thought
about it. If you spare me I will continue doing my best."
In 1984, Zagorski was convicted of murdering 2 men who were meeting him to buy
drugs. He was said to have shot the men, slit their throats and robbed them.
Now, 34 years later, the state of Tennessee plans to put him to death by lethal
injection on Oct. 11.
Zagorski’s short note to the governor is included in his application for
executive clemency - an official request for the governor to spare his life,
submitted by his attorneys at the end of August. Attorneys representing
Zagorski in his clemency effort shared the application with the Scene.
Specifically, they are asking Haslam to commute Zagorski's sentence to life
without parole.
The scheduled execution of Zagorski would be the state's 2nd execution this
year. Haslam denied a clemency request from Billy Ray Irick in August, allowing
his execution (to which this reporter was an official media witness) to proceed
despite Irick's history of mental illness and an ongoing legal fight over the
state's lethal injection protocol. Few observers expected Haslam to grant
clemency to Irick, if only because of the heinous nature of his crime - he was
convicted of the rape and murder of a 7-year-old girl. But advocates for
Zagorski believe he has a strong argument for clemency, from the circumstances
surrounding his conviction and sentencing to the life he has lived in prison
since.
Earlier this month, the Scene reported on court filings that argue that
Zagorski's case perfectly illustrates the arbitrary nature of Tennessee's death
penalty. Citing a report called "Tennessee's Death Penalty Lottery," authored
by attorneys Bradley MacLean and H.E. Miller Jr., Zagorski's attorneys
highlight the fact that of more than 2,500 people convicted of 1st-degree
murder in Tennessee over the past 40 years, only 86 received death sentences,
and only 6 were executed. Citing the report, they further note that while
Zagorski was sentenced to death for the drug-related killing of 2 men, other
people convicted of killing 4, 5 or even 6 people in drug-related homicides
have received life sentences instead of the death penalty. In Zagorski's
clemency application, attorney Robert Hutton makes a related argument about the
circumstances of Zagorski's sentencing. Today, every death penalty state has an
option for jurors of life without parole. But when Zagorski was sentenced in
1984, his jury did not have that option. They could sentence him to life with
the possibility of parole, or death. They chose death at the time. But 6 of the
jurors from his trial have since signed sworn declarations that they would have
voted for a life-without-parole sentence if it had been available to them. (4
jurors have died, and 1 declined to speak with the attorneys.) Their statements
are included in Zagorski's clemency application.
"We really did not want to give him the death penalty," says the foreman of the
jury from Zagorski's trial. "If life without parole would have been an option
the sentence would have been different."
Another juror says: "If life without parole had been an option at the time of
trial, I would have voted for life without parole instead of death."
And another: "I would like Mr. Zagorski's sentence of death to be changed to a
sentence of life imprisonment without a chance of parole. That would have been
my choice at the time of trial, and that is my preference today."
Hutton writes in the application: "Under all sentencing statutes in effect now,
a single juror wanting LWOP [life without parole] would preclude the jury from
imposing a sentence of death. If LWOP had been available in 1984 as it is now,
Ed would have received a sentence of life without possibility of parole."
Studies have shown that the predicament jurors in the Zagorski case found
themselves in is not an uncommon one. In an article published in December 2004
by the Tulane Law Review, Steven Mulroy of the University of Memphis law
faculty wrote about the concept of "death by default."
"The empirical evidence overwhelmingly shows that the lack of an LWOP option
skews the sentencing decision towards death sentences that would otherwise not
be imposed," Mulroy writes. "A substantial body of research shows that jurors
consistently overestimate the likelihood that defendants will be released on
parole, and that concern over a defendant's premature release, or any release
at all, is a major factor motivating jurors to vote for the death penalty."
Although it was not specifically part of his research, Mulroy tells the Scene
that on top of erroneous beliefs about how soon people sentenced to life in
prison would get out on parole, the lack of recent executions might also have
been a factor in the Zagorski jury’s deliberations.
"I think it's highly relevant that in the 1980s, when this capital-sentencing
jury had to deliberate, there hadn't been an execution in Tennessee for
decades," says Mulroy.
A footnote in Zagorski's clemency application notes that Marsha Dotson - wife
of Dale Dotson, one of the men Zagorski murdered - also does not oppose
clemency.
"Even though Zagorski ruined my life and those years have been hard," Dotson
says, according to the application, "it would be OK with me if he wasn't
executed and spent the rest of his life locked up in prison."
In fact, a significant part of Zagorski's argument for clemency rests on the
way he lives his life in prison. Hutton writes that "Ed has lived a truly
extraordinary life in prison" and notes that "Ed has not received a single
disciplinary write-up, not even a minor one, in the entire 34 years he has been
in custody."
Remarkably, a number of current and former prison staff members, including a
former warden, voiced their support for clemency in Zagorski's case, citing
their personal experiences with him on death row.
"I remember one time when a couple of inmates had gotten into a fight," says a
correctional officer in a statement included in the clemency application. "I
was the corporal in charge that day and was called to help break up this fight.
Ed was in the room, but he was not involved in the fight. One inmate had taken
the mop ringer [sic] off of the mop bucket and was going to use it as a weapon
to attack another inmate. I was able to get the ringer out of the inmate's hand
and hand it back to Ed. When I handed it to Ed, I did not have to say anything
to him about what to do. I trusted him to know to get the ringer from my hands
and take it out of the room so it would not be within reach of the 2 men
fighting, which is exactly what he did. He even removed the mop too, so it
could not be used as a weapon."
A counselor from the prison says Zagorski is "1 of only 3 men for which I would
support clemency." A supervisor from the Tennessee Rehabilitative Initiative in
Correction, which provides occupational and life-skills training for prisoners,
says, "Having people around like Ed made me not afraid to work there." Still
another correctional officer recalls Zagorski breaking up a bloody fight
between 2 inmates, and a former warden says, "Ed is a perfect example of how a
man can change for the better over the years."
With Zagorski's scheduled execution 2 weeks away, Haslam and his legal staff
are reviewing his request for clemency.
In the request, Hutton writes: "Governors possess clemency powers to prevent
miscarriages of justice, and to grant grace where merited. Ed Zagorski's life
should be spared."
(source: nashvillescene.com)
_______________________________________________
A service courtesy of Washburn University School of Law www.washburnlaw.edu
DeathPenalty mailing list
***@lists.washlaw.edu
http://lists.washlaw.edu/mailman/listinfo/deathpenalty
Unsubscribe: http://lists.washlaw.edu/mailman/options/d
TEXAS----impending executions
Texas set to execute Troy Clark Wednesday, the 1st of 2 scheduled executions in
2 days----Clark was convicted in the Tyler murder of Christina Muse, whose body
was found stuffed in a cement-filled barrel months after her death. Death
penalty opponents say his conviction rests too heavily on a co-defendant's
testimony.
The 1st of 2 scheduled Texas executions this week is set to take place
Wednesday evening.
Troy Clark, 51, was convicted in the 1998 Tyler kidnapping and murder of
Christina Muse, and he has been accused of 2 other murders and a slew of other
crimes, according to court records. The prosecution said Clark beat and drowned
Muse before stuffing her body in a barrel with concrete and hiding it on his
landlord's property.
Though his attorneys hadn't filed any last-minute legal challenges as of
Tuesday, his conviction has been questioned by anti-death penalty advocates
since it was largely based on the testimony of his then girlfriend who also
faced a murder charge. And for years, his legal fight had focused on a lack of
evidence presented at trial that could have swayed the jury to opt for the
lesser sentence of life, like his suffering from fetal alcohol syndrome.
At the time of Muse's murder, Clark was living with his girlfriend, Tory Bush.
The 3 would do drugs together - court records show Clark used and dealt
methamphetamines - but Bush testified at trial that on May 19, 1998, Muse came
over and Clark tased her with a stun gun, taped her hands, ankles and mouth and
then put her in a closet. Several hours later, her took her to the bathroom,
beat her over the head with a wooden board and had Bush help him drown her in
the bathtub, according to Bush.
The barrel and Muse's decomposing body were found months later after Bush spoke
to police while under arrest on another charge.
In 2000, Bush said at Clark's trial that he was paranoid and thought Muse was
talking to the wrong people about his drug dealings. After he tased her, "He
told her, he said, 'You should have kept your mouth shut,'" Bush told the jury.
Others testified that they had helped Clark load a blue barrel on his truck the
day Muse disappeared. And the state also brought forth witnesses that indicated
he had killed 2 other people, including a man whose body was found in a septic
tank on the same property as Muse, according to federal court filings.
In an unsuccessful last-ditch petition to the Texas parole board asking for a
reduced sentence, Clark's attorney pointed out that Bush's testimony - which
played a large role at trial - had changed several times.
Previously, Bush said she thought the man found in the septic tank was to blame
for Muse's death, and then she gave a detailed statement saying she killed Muse
out of jealousy and that Clark wasn't even home at the time. In that statement,
she told police if Clark were implicated in the murder, he "would just cover up
for me."
At trial, attorneys briefly questioned Bush on her changing testimony, and she
said she had lied earlier because she was afraid of Clark and also loved him,
the trial record shows.
"He wanted me to change the whole story," Bush testified. "He wanted me to lay
the blame on 2 other people, and those 2 other people are dead."
She acknowledged on cross examination that she had been given a promise of a
30-year recommended sentence for her involvement in the murder if she
cooperated with the prosecution. Bush ultimately pleaded guilty to a 20-year
sentence and has since been released from prison.
"Clark's death sentence is the product of the largely uncorroborated testimony
of an incentivized co-defendant and a trial attorney whose performance was
abysmal," wrote David Dow, Clark's current attorney, in his plea to the parole
board.
The board voted unanimously against Clark's petition on Monday.
(source: Texas Tribune)
*************
Tyler man slated to be 1st of 2 Texas death row inmates executed in 2
nights----Troy Clark was convicted of an East Texas murder.
The East Texas man convicted of drowning a former housemate and stuffing her
body into a barrel of lime is slated to die Wednesday in the first of two
consecutive executions in the Lone Star State.
If both punishments go through as planned, it'll be the 1st time in just over 6
years that Texas has put to death 2 prisoners in 2 nights.
Both men say they're innocent, and the pair of impending executions - 1st of
Troy Clark, then of Daniel Acker - has attracted attention from actress Susan
Sarandon, author Mary Buser and renowned death penalty abolitionist Sister
Helen Prejean.
"Texas plans to execute Troy Clark on Wednesday but there are some serious
problems with his case," Prejean tweeted. "Troy has always maintained his
innocence. Someone else made a detailed confession and then completely changed
her story in exchange for a reduced sentence."
Clark was sentenced to die in 2000 for killing Christina Muse out of fear the
young mother would snitch on him for his drug use, according to court records.
He was convicted in part due to the testimony of his then-girlfriend Tory Bush,
who admitted to the crime then fingered Clark - even though there was no
physical evidence connecting him to the murder.
The May 1998 slaying came just after Muse moved out of the Smith County home
where Clark and Bush lived and sold meth.
One day when Muse stopped back at the home to visit, she and Clark started
talking and at some point in the conversation, according to court records, he
used a stun gun to take her down, then duct-taped her arms and legs and left
her in a closet for hours. Then, he moved her into the bathtub and ordered Bush
to get a board so he could beat the bound woman.
After drowning Muse, according to court records, Clark ordered his girlfriend
to go get lime. When she got back, he dumped the slain woman's body in a blue
barrel filled with lime, cement mix and water.
Later, according to the state's theory, Clark and some friends loaded the
barrel into a truck and ditched it in a remote spot on his landlord's property.
When authorities found the gruesome remains, they also discovered the body of
Tracy Mize decaying in a septic tank on the same property.
In trial, the jury also heard evidence that Clark allegedly killed 2 other
people and robbed others.
But Clark denied his involvement, saying he wasn't at home at the time of the
slaying, and that he was out delivering drugs. No physical evidence linked him
to the crime, defense lawyers pointed out.
In the years since he was sent to death row, Clark has argued that he suffered
bad lawyering, didn't get to show evidence rebutting claims he would be a
future danger to society, and that his girlfriend's testimony was self-serving
and unreliable - especially considering she once confessed to the crime
herself.
"Clark's death sentence is the product of the largely uncorroborated testimony
of an incentivized co-defendant and a trial attorney whose performance was
abysmal," attorneys David Dow and Jeff Newberry wrote in a clemency petition,
alleging the trial team failed to present evidence of Clark's traumatic
childhood and Fetal Alcohol Syndrome Disorder.
But the Board of Pardons and Paroles on Monday afternoon denied his request for
clemency. As of early Tuesday, he had no pending appeals, his attorneys said.
A day after Clark's scheduled date with death, Acker is slated for execution.
The Sulphur Springs man was sent to death row in 2001 after he was convicted of
strangling his girlfriend and pushing her from a moving car - though the state
abandoned the strangulation theory after trial.
The Lone Star State has already executed 8 men this year, and another 9 death
dates are on the calendar.
(source: Houston Chronicle)
*******************
Executions under Greg Abbott, Jan. 21, 2015-present----35
Executions in Texas: Dec. 7, 1982----present-----553
Abbott#--------scheduled execution date-----name------------Tx. #
36---------Sept. 26---------------Troy Clark--------------554
37---------Sept. 27---------------Daniel Acker------------555
38---------Oct. 10----------------Juan Segundo------------556
39---------Oct. 24----------------Kwame Rockwell-------557
40---------Nov. 7-----------------Emanuel Kemp, Jr.-----558
41---------Nov. 14---------------Robert Ramos-----------559
42---------Dec. 4-----------------Joseph Garcia-----------560
43---------Dec. 11----------------Alvin Braziel-----------561
44---------Jan. 15----------------Blaine Milam------------562
45---------Jan. 30----------------Robert Jennings---------563
(sources: TDCJ & Rick Halperin)
***********************
Prosecutors to seek death penalty against man accused of deadly home invasions
A suspect in 2 deadly home invasions could face the death penalty.
During a status hearing this morning, prosecutors announced they will seek the
death penalty against Ismael Castillo.
He's charged with capital murder and other charges in a double shooting at a
home on Coleman Avenue back on March 14. One of the victims, 19-year old
Deandre Mathis, later died.
Judge Missy Medary set Castillo's trial for Jan. 14.
Castillo is also charged with the April 2 home invasion, which left a couple
dead in their home on Balchuck Lane.
(source: KRIS TV news)
NORTH CAROLINA:
Forsyth County prosecutors pursue the death penalty against man accused of
stabbing and dismembering 75-year-old Winston-Salem man
Forsyth County prosecutors will seek the death penalty against a man they say
stabbed a 75-year-old man to death, dismembered him, stole his car and dumped a
part of his body in another county.
Adrion Demare Whorley, 32, of Rockingham was indicted Sept. 10 on charges of
1st-degree murder, armed robbery and concealing a death. He is accused of
killing and dismembering John Douglas Agnew sometime between April 7, 2017, and
April 10, 2017. Indictments also allege Whorley used a knife to take Agnew's
car.
Judge Michael Duncan of Forsyth Superior Court held what is known as a Rule 24
hearing, where prosecutors have to present at least 1 out of 11 aggravating
circumstances allowed in state law for pursuing the death penalty against a
defendant.
Chief Assistant District Attorney Jennifer Martin and Assistant District
Attorney Sara Loebner are prosecuting the case. Winston-Salem attorney Karen
Gerber is representing Whorley, who is being held without bond at the Forsyth
County Jail.
Martin argued that there were 3 aggravating circumstances in the case - that
Whorley was previously convicted of a violent crime, assault with a deadly
weapon with intent to kill, inflicting serious injury; that the killing was
committed for pecuniary gain in that Whorley is alleged to have taken items out
of Agnew's safe and stolen his car; and that the death was "especially heinous,
atrocious and cruel."
Duncan granted the request to declare the case capital. That means if Whorley
is convicted of 1st-degree murder at a trial, he could face the death penalty.
A separate sentencing hearing would have to be held in which Whorley has the
opportunity to present mitigating evidence. A jury would ultimately decide
whether Whorley faces a death sentence or life in prison without the
possibility of parole.
Gerber said after the hearing that prosecutors have not presented any evidence
in the case.
"This is not an evidentiary hearing," she said. "The state by statute has to
assert to the judge essentially what they would like to argue if they got to
the point of a capital sentencing hearing....The short of it is he is presumed
innocent and goes before the court in all future hearings as an innocent man."
Scene of violence
A day after John Agnew's daughter, Melanie Agnew Simpson, found a strange note
on her father's front door at his house on Timberline Drive, Winston-Salem
police found Agnew's head, lower legs and arms inside a large black duffel bag
that had a Walmart tag on the handle. The safe had been pried open from the
back. Simpson and other family members told police that the safe usually was
kept in an upstairs bedroom and contained Agnew's .45-caliber handgun.
At Agnew's house, Winston-Salem police found a hacksaw, covered in blood, hair
and body tissue, in the kitchen sink, visible boot or shoe prints in the floor
and fingerprint evidence that matched Whorley, according to the search warrant.
The upstairs bathroom shower curtain was missing.
Agnew's torso was found in a wooded area off Canter Road in Randleman and was
wrapped in a transparent shower curtain, the search warrant said.
"What they found ... was a scene of violence and complete disgust," Martin said
in court.
Martin said in court that Agnew's murder happened 4 months after Whorley had
been released from prison on his assault conviction. She said Whorley had been
inside Agnew's house and that he dismembered Agnew's body after assaulting
Agnew. Martin said police found not only a hacksaw but cleaning agents for what
she said was Whorley's attempt to cover up what he had done.
She said Whorley took Agnew's car and drove it toward Randolph County, where
Agnew's torso was found. She said at some point, the car ran out of gas.
Deputies with the Richmond County Sheriff’s Office later found Agnew's car.
Martin said Agnew had at least 3 stab wounds, including in his neck and to his
spinal cord. He also had a stab wound to his left lung. Several of his fingers
were amputated. She said it also appears that Agnew was decapitated at or near
the time of his death.
Dr. Anna Greene McDonald, a Forsyth County medical examiner, said in an autopsy
report that Agnew died from stab wounds in his neck and torso.
Now that the case has been declared capital, Whorley will be assigned a 2nd
attorney through the Capital Defender's Office.
No trial date has been set for the case. It usually takes at least a year or
longer before a murder case is ready for trial or a plea arrangement is worked
out.
(source: Winston-Salem Journal)
SOUTH CAROLINA:
Man who killed Orangeburg officer runs out of appeals, remains on death row
The man who murdered an off-duty Orangeburg officer in 2004 has run out of
appeals, according to a federal judge's order.
Mikal Deen Mahdi, 34, remains on death row.
U.S. District Judge Timothy M. Cain denied Mahdi's petition for post-conviction
relief on Monday. Also, if Mahdi wants to try to get his death sentence
reversed, he'll have to ask the court for permission to appeal.
Mahdi shot and killed Orangeburg Department of Public Safety Capt. James Myers
as part of a multi-state crime spree. Mahdi set the officer's body on fire at
Myers' property in northwestern Calhoun County.
"Mikal Mahdi is probably the most dangerous and violent person I've ever
prosecuted in 25 years," 1st Judicial Circuit Solicitor David Pascoe said.
"He's certainly the most dangerous because of his intelligence. He places no
value on human life and his history of violence speaks for itself and look what
has happened since his death sentence and what he's done," Pascoe added.
Pascoe said Mahdi, "nearly murdered a guard on death row."
2 months before his crime spree, Mahdi was released from a Virginia prison
where he had been serving a sentence for a 1998 assault. Authorities present at
his 1998 arrest testified that the then-15-year-old Mahdi pledged, "I'm going
to kill a cop before I die."
The spree began with Mahdi robbing a Winston-Salem, N.C. store of money and
beer. He killed the 29-year-old clerk, Christopher Boggs.
The morning of July 18, Mahdi carjacked a Ford Expedition from a driver in
Columbia.
He then drove to Calhoun County, where he shot Myers 9 times.
Mahdi fled in Myers' unmarked police truck, which was loaded with guns,
ammunition and body armor.
A manhunt for Mahdi spanned much of the Southeast and ended 3 days later with
his arrest in Satellite Beach, Florida, about 20 miles south of Cape Canaveral.
Federal court records state that Mahdi got out of the truck, pointed a
high-powered rifle at officers, then dropped the weapon and tried to run. 20
minutes later, officers captured him.
Mahdi pleaded guilty to Myer's death in 2006, just before his trial began.
In a 2009 opinion, then-S.C. Chief Supreme Court Justice Jean Toal wrote, "In
my time on this court, I have seen few cases where the extraordinary penalty of
death was so deserved."
(source: The Times and Democrat)
ALABAMA:
Argument preview: Justices to consider competency in capital cases
It has been over 33 years since Vernon Madison shot and killed Julius Schulte,
a police officer in Mobile, Alabama. Schulte had come to Madison's house to
protect Madison's former girlfriend and her daughter while they moved out;
Schulte was sitting in his car when Madison shot him twice in the back of the
head. Madison was convicted of capital murder and sentenced to death, but next
week the Supreme Court will hear oral argument on whether it would violate the
Constitution to execute Madison when he has no memory of his crime.
Madison, now in his late 60s, has been on death row for over 30 years. During
that time, he has had several strokes, which have left him with significant
brain damage. Madison suffers from dementia and long-term memory loss; he is
also legally blind and can no longer walk without assistance. Since Madison's
stroke, his lawyers tell the Supreme Court, Madison "has repeatedly asked for
his mother to come and visit him even though she has been dead for years."
Madison also cannot remember any of the details of the crime that put him on
death row, including Schulte's name, the events surrounding the crime, or his
trial. After his execution was scheduled for January of this year, Madison went
to state court to challenge his competency to be executed, armed with evidence
that a court-appointed expert who had evaluated him, and whose findings had
played a key role in earlier rulings that Madison was competent to be executed,
was abusing narcotics and was eventually suspended from practicing psychology.
The state court would have allowed Madison's execution to go forward, but the
Supreme Court stepped in and - over the objection of Justices Clarence Thomas,
Samuel Alito and Neil Gorsuch - put the execution on hold while it considered
Madison's request for review.
In his brief on the merits at the Supreme Court, Madison contends that
executing him would violate the Eighth Amendment's ban on cruel and unusual
punishment because he does not understand why he is being executed. To support
this argument, Madison points to 2 earlier decisions by the Supreme Court: Ford
v. Wainwright, in which the justices ruled that the Eighth Amendment bars the
execution of inmates who are mentally incompetent; and Panetti v. Quarterman,
in which the justices held that the lower courts should have considered an
inmate's claim that he suffered from "a severe, documented mental illness that
is the source of gross delusions preventing him from comprehending the meaning
and purpose of” his death sentence.
Taken together, he asserts, these cases "require that states refrain from
executing an individual," like Madison, "whose verifiable cognitive impairments
render him incompetent to rationally understand the circumstances surrounding a
scheduled execution." This is particularly true, Madison adds, because
executing an inmate who does not understand why he is being punished does not
serve the purposes of the death penalty: The execution would not deter future
crimes, nor would it punish Madison for his conduct.
For its part, Alabama casts doubt on whether, as a result of his health
problems, Madison cannot actually recall his crime: Madison, the state notes,
"first claimed that he could not remember murdering Officer Schulte in 1990,
long before he purportedly suffered from dementia-related amnesia." Moreover,
the state observes, Madison remembers many details of his life and criminal
history; his physicians reported that he can provide consent for medical
procedures and sometimes declines medications if he does not like the side
effects.
But in any event, the state continues, whether Madison remembers his crime is
irrelevant to whether he should be executed. Although the Constitution does
prohibit the execution of someone who is incompetent and cannot understand the
reasons for his execution, Madison does not fit that description: Even if he
doesn't remember killing Schulte, a court-appointed psychologist has concluded
that "Madison has a rational understanding that he is to be executed for
killing a police officer in 1985." The Eighth Amendment does not, the state
emphasizes, prevent Alabama from executing Madison simply because he says he
does not remember committing his crime.
When the justices consider Madison's case next week, it will be the 2nd time
that the Supreme Court has done so: In 2017, the court reversed (without
briefing on the merits or oral argument) a ruling by a federal appeals court
that would have vacated Madison's sentence. Discussing the high bar under
federal habeas law for a federal court to overturn a state court's ruling in a
criminal case, the court's unsigned opinion stressed that its decisions in Ford
and Panetti had not "clearly established that a prisoner is incompetent to be
executed because of a failure to remember his commission of the crime, as
distinct from a failure to rationally comprehend the concepts of crime and
punishment as applied in this case." Justice Ruth Bader Ginsburg wrote an
opinion in which she agreed with the court's disposition of Madison's case but
also noted that the question "whether a State may administer the death penalty
to a person whose disability leaves him without memory of his commission of a
capital offense is a substantial question not yet addressed by the Court."
During this round of proceedings at the Supreme Court, the justices will
consider the question of Madison's competency to be executed on the merits,
rather than under the higher standard created by federal habeas law. But it
also seems increasingly likely that only 8 justices will hear oral argument in
Madison's case. With Thomas, Alito and Gorsuch already having signaled that
they are likely to rule against him, Madison will almost certainly need the
votes of all imc4 of the court's more liberal justices and Chief Justice John
Roberts to prevail and stave off his execution - which could be a tall order.
We'll have a better sense of where the justices might be heading after next
week's oral argument.
(source: Amy Howe, scotusblog.com)
KENTUCKY:
Freed Death Row Inmate Brings Story to KY
Gary Drinkard, who was freed from prison in 2001 after 6 years on Alabama's
death row, admits he's still angry at the legal system.
So Drinkard is traveling across Kentucky this week, speaking at churches and
colleges about his wrongful conviction.
He is part of Witness to Innocence, an organization that gives a voice to those
freed from death row, which Drinkard says enables him to channel his resentment
into action.
"If I were to get away from it, I feel like I would be letting a lot of people
down, letting the attorneys down that fought for me, letting the people down
that are still innocent on death row, letting my family down," he explains. "I
mean, it destroyed my family."
Sentenced to death in 1995 for the robbery and murder of an automotive junk
dealer in Decatur, Alabama, Drinkard was granted a new trial by the Alabama
Supreme Court in 2000 because of prosecutorial misconduct. He was acquitted in
2001.
Like Alabama, Kentucky is among 32 states where the death penalty remains
legal.
Efforts in recent years to make life without parole the maximum sentence have
failed to pass the Kentucky General Assembly.
Drinkard maintains his message, that execution makes no sense because it is
immoral and too costly, resonates with those willing to listen.
"It helps a lot of people come to the mindset that it's not right," he
stresses.
Among the places Drinkard will talk while in Kentucky is at the University of
Louisville-Brandeis School of Law.
(source: publicnewsservice.org)
TENNESSEE----impending execution
Edmund Zagorski's Plea for Mercy----With an Oct. 11 execution looming, jurors
and prison staff support clemency for death row inmate
Edmund Zagorski's plea for mercy is short and simple.
“Dear Governor Haslam,” he writes. "Thank you for your time. I just wanted to
let you know that I regret everything that happened. I feel really bad for
victims' families and the vast impact it caused. I knew their lives would have
been so much better in so many ways and not a day has gone by I haven't thought
about it. If you spare me I will continue doing my best."
In 1984, Zagorski was convicted of murdering 2 men who were meeting him to buy
drugs. He was said to have shot the men, slit their throats and robbed them.
Now, 34 years later, the state of Tennessee plans to put him to death by lethal
injection on Oct. 11.
Zagorski’s short note to the governor is included in his application for
executive clemency - an official request for the governor to spare his life,
submitted by his attorneys at the end of August. Attorneys representing
Zagorski in his clemency effort shared the application with the Scene.
Specifically, they are asking Haslam to commute Zagorski's sentence to life
without parole.
The scheduled execution of Zagorski would be the state's 2nd execution this
year. Haslam denied a clemency request from Billy Ray Irick in August, allowing
his execution (to which this reporter was an official media witness) to proceed
despite Irick's history of mental illness and an ongoing legal fight over the
state's lethal injection protocol. Few observers expected Haslam to grant
clemency to Irick, if only because of the heinous nature of his crime - he was
convicted of the rape and murder of a 7-year-old girl. But advocates for
Zagorski believe he has a strong argument for clemency, from the circumstances
surrounding his conviction and sentencing to the life he has lived in prison
since.
Earlier this month, the Scene reported on court filings that argue that
Zagorski's case perfectly illustrates the arbitrary nature of Tennessee's death
penalty. Citing a report called "Tennessee's Death Penalty Lottery," authored
by attorneys Bradley MacLean and H.E. Miller Jr., Zagorski's attorneys
highlight the fact that of more than 2,500 people convicted of 1st-degree
murder in Tennessee over the past 40 years, only 86 received death sentences,
and only 6 were executed. Citing the report, they further note that while
Zagorski was sentenced to death for the drug-related killing of 2 men, other
people convicted of killing 4, 5 or even 6 people in drug-related homicides
have received life sentences instead of the death penalty. In Zagorski's
clemency application, attorney Robert Hutton makes a related argument about the
circumstances of Zagorski's sentencing. Today, every death penalty state has an
option for jurors of life without parole. But when Zagorski was sentenced in
1984, his jury did not have that option. They could sentence him to life with
the possibility of parole, or death. They chose death at the time. But 6 of the
jurors from his trial have since signed sworn declarations that they would have
voted for a life-without-parole sentence if it had been available to them. (4
jurors have died, and 1 declined to speak with the attorneys.) Their statements
are included in Zagorski's clemency application.
"We really did not want to give him the death penalty," says the foreman of the
jury from Zagorski's trial. "If life without parole would have been an option
the sentence would have been different."
Another juror says: "If life without parole had been an option at the time of
trial, I would have voted for life without parole instead of death."
And another: "I would like Mr. Zagorski's sentence of death to be changed to a
sentence of life imprisonment without a chance of parole. That would have been
my choice at the time of trial, and that is my preference today."
Hutton writes in the application: "Under all sentencing statutes in effect now,
a single juror wanting LWOP [life without parole] would preclude the jury from
imposing a sentence of death. If LWOP had been available in 1984 as it is now,
Ed would have received a sentence of life without possibility of parole."
Studies have shown that the predicament jurors in the Zagorski case found
themselves in is not an uncommon one. In an article published in December 2004
by the Tulane Law Review, Steven Mulroy of the University of Memphis law
faculty wrote about the concept of "death by default."
"The empirical evidence overwhelmingly shows that the lack of an LWOP option
skews the sentencing decision towards death sentences that would otherwise not
be imposed," Mulroy writes. "A substantial body of research shows that jurors
consistently overestimate the likelihood that defendants will be released on
parole, and that concern over a defendant's premature release, or any release
at all, is a major factor motivating jurors to vote for the death penalty."
Although it was not specifically part of his research, Mulroy tells the Scene
that on top of erroneous beliefs about how soon people sentenced to life in
prison would get out on parole, the lack of recent executions might also have
been a factor in the Zagorski jury’s deliberations.
"I think it's highly relevant that in the 1980s, when this capital-sentencing
jury had to deliberate, there hadn't been an execution in Tennessee for
decades," says Mulroy.
A footnote in Zagorski's clemency application notes that Marsha Dotson - wife
of Dale Dotson, one of the men Zagorski murdered - also does not oppose
clemency.
"Even though Zagorski ruined my life and those years have been hard," Dotson
says, according to the application, "it would be OK with me if he wasn't
executed and spent the rest of his life locked up in prison."
In fact, a significant part of Zagorski's argument for clemency rests on the
way he lives his life in prison. Hutton writes that "Ed has lived a truly
extraordinary life in prison" and notes that "Ed has not received a single
disciplinary write-up, not even a minor one, in the entire 34 years he has been
in custody."
Remarkably, a number of current and former prison staff members, including a
former warden, voiced their support for clemency in Zagorski's case, citing
their personal experiences with him on death row.
"I remember one time when a couple of inmates had gotten into a fight," says a
correctional officer in a statement included in the clemency application. "I
was the corporal in charge that day and was called to help break up this fight.
Ed was in the room, but he was not involved in the fight. One inmate had taken
the mop ringer [sic] off of the mop bucket and was going to use it as a weapon
to attack another inmate. I was able to get the ringer out of the inmate's hand
and hand it back to Ed. When I handed it to Ed, I did not have to say anything
to him about what to do. I trusted him to know to get the ringer from my hands
and take it out of the room so it would not be within reach of the 2 men
fighting, which is exactly what he did. He even removed the mop too, so it
could not be used as a weapon."
A counselor from the prison says Zagorski is "1 of only 3 men for which I would
support clemency." A supervisor from the Tennessee Rehabilitative Initiative in
Correction, which provides occupational and life-skills training for prisoners,
says, "Having people around like Ed made me not afraid to work there." Still
another correctional officer recalls Zagorski breaking up a bloody fight
between 2 inmates, and a former warden says, "Ed is a perfect example of how a
man can change for the better over the years."
With Zagorski's scheduled execution 2 weeks away, Haslam and his legal staff
are reviewing his request for clemency.
In the request, Hutton writes: "Governors possess clemency powers to prevent
miscarriages of justice, and to grant grace where merited. Ed Zagorski's life
should be spared."
(source: nashvillescene.com)
_______________________________________________
A service courtesy of Washburn University School of Law www.washburnlaw.edu
DeathPenalty mailing list
***@lists.washlaw.edu
http://lists.washlaw.edu/mailman/listinfo/deathpenalty
Unsubscribe: http://lists.washlaw.edu/mailman/options/d