death penalty news----ALA., LA., OHIO, ARK.
(too old to reply)
Rick Halperin
2017-10-17 14:21:50 UTC
Oct. 17

ALABAMA----stay of impending execution

Execution stayed for Alabama man convicted of killing cop

A federal court granted a stay of execution for Alabama death row inmate Torrey
Twane McNabb, who was scheduled to die by lethal injection on Thursday.

The order was issued on Monday by Chief U.S. District Judge W. Keith Watkins of
the Middle District of Alabama Northern Division.

The state has appealed the stay.

The execution was scheduled for 6 p.m. Thursday at the Hollman Correctional
Facility in Atmore.

McNabb has spent the last 18 years on death row, after being convicted of
fatally shooting Montgomery police officer Anderson Gordon in September 1997.
McNabb was convicted on 2 capital murder counts -- 1 for killing Gordon while
he was on duty, and 1 for killing him as Gordon sat in his patrol car. McNabb
also was found guilty of 2 additional counts of attempted murder.

McNabb's attorney John Anthony Palombi, an assistant federal defender, filed an
emergency motion for stay of execution on Oct. 11. The defense claims the
"challenged method of execution presents a substantial risk of serious harm"
and that there's an alternative that can reduce the risk of severe pain.

A federal court of appeals stayed the execution of Jeffery Lynn Borden on Oct.
2 on similar grounds.

"Borden, in almost identical circumstances, received a stay of execution,"
Monday's order stated. "Defendants did not appeal, admittedly in part because
of the late litigation hour. The court, in equity and good conscience, cannot
treat McNabb differently than Borden when the stakes are this high. There is no
evidentiary justification for disparate treatment of McNabb."

(source: al.com)


John Thompson Received 18 Wrongful Years On Death Row, Yet Never Received
Justice----The activist and death row exoneree died without anyone being named
culpable for his wrongful imprisonment.

John Thompson was many things: death row exoneree, abolitionist, advocate for
prosecutorial accountability, spokesperson, founder of an exoneree-run re-entry
program, and mentor. Before the news cycle moves on from John, we are compelled
to acknowledge the way he most profoundly affected the world.

After his untimely death on October 3rd, the media described him as a man who
saw the world as it should be, as angry, and as a warrior. To those of us who
enjoyed the enormous privilege of knowing and loving John, he was so much more.

John survives as a symbol of the impunity with which prosecutors may disregard
the life and rights of a young black man. Yet he was a wonderfully regular man
with a sharp wit and irreverent humor. He loved his wife, family - especially
his grandchildren - and friends. He liked a strong coffee in the morning and a
beer in the evening. He went to church, and then cursed at the football game.
John didn't sugarcoat anything. He had 100 big ideas a week. He issued straight
line challenges - to his colleagues and to the world. Consequently, those who
truly knew and loved him maintained a more real, raw and rewarding relationship
with John Thompson, compared to others in their lives. He was our friend, and a
brilliant, honest, funny, smart, present, and - at times - difficult colleague.

John lived helping and questioning: helping fellow exonerees after release,
questioning institutions of criminal justice and challenging them to do better.

But mostly, John Thompson will go down in legal history for demanding the kind
of justice a white man would expect - and being told in 2011 he was not
entitled to it.

On May 10, 2003, the headline of the Times Picayune read:

Acquitted inmate a free man.

John Thompson, the New Orleans man acquitted this week of a 1984 murder that
had once placed him on death row, walked out of the parish prison Friday
afternoon after more than 18 years of incarceration.

Every exoneration story is horrifying and fascinating. John's is extraordinary
for many reasons, not least of which was a last-minute defense discovery that
saved him from execution and the 35 minutes a jury took to acquit him at his
2003 retrial for the murder he was nearly executed for 4 years previously. When
John walked out of prison, his story could have ended like a movie: a happy and
satisfying ending after a tough legal battle, dramatic twists, his swift
acquittal, release and subsequent marriage to his wife of now-14 years. But
John knew people should not console themselves with a happy ending.

John could have done anything he wanted after 18 years of wrongful
imprisonment. He chose to become a selfless, tireless advocate, social worker
and mentor for other returning prisoners, establishing the 1st exoneree-run
reentry program in the country. He was working there the day he died,
sustaining a network of support among the formerly incarcerated, reconnecting
them to the community, and providing education and counseling. He helped

All the while, he traveled the country questioning the status quo of criminal
justice, trying to prevent injustices like his. Although it was prosecutors who
nearly had him killed, to his great credit, he did not exclusively focus his
criticism there. Police, courts and public defenders also failed John and he
understood that the failing of those institutions too affected the lives of the
poor and people of color - particularly black people. John increasingly chose
to use his story as a galvanizing cry for racial justice in America. Until his
death, John remained a strong advocate for organizations fighting to bring
equal justice to an unjust system. He advocated for more judicial oversight,
robust public defense and for the urgent work of freeing innocent prisoners.

Famously, John sued the prosecutors who nearly killed him, arguing that
prosecutors??? offices need standards to prevent the kind of terrible injustice
he suffered. He believed he deserved compensation because the New Orleans
District Attorney did not care to have such standards, and consequently, John
was ripped from his 6 and 4-year old sons, thrown into solitary confinement for
14 years to await his execution for a murder he did not commit. John survived 7
execution dates (including the last - set for the day before his youngest son's
high school graduation) and lost 18 years of his life. John wanted the
prosecutors to help him rebuild his life and sanity. He asked for the justice
any of us would expect if we survived such torture.

A New Orleans judge and jury agreed John's life mattered, and the prosecutor's
office should pay. But we all know the ending. In 2011 in Connick v. Thompson,
5 justices of the Supreme Court took John's victory and validation away, saying
the law is not the way to hold prosecutors accountable and, if district
attorneys do not train their staff to avoid such injustices, they are not
liable. Those four white men and Clarence Thomas were mistaken and morally
wrong. To John, and many others, the Supreme Court said his black life did not
matter enough for the white prosecutors who nearly killed him to be

To date, not a single prosecutor from John Thompson's case has faced a single

He later wrote in the New York Times he didn't care about the money, he just
wanted to know why no prosecutor was disbarred or jailed. Swift consequences
befell prosecutors who committed misconduct in recent high-profile cases of
white defendants. Ted Stevens, the Duke Lacrosse players, Michael Morton: none
were nearly killed from prosecutorial misconduct, yet in each case when it was
revealed, the outrage was palpable and the penalty swift. To date, not a single
prosecutor from John Thompson's case has faced a single consequence. So he
filed a complaint with the Justice Department last year, asking for a civil
rights investigation into those prosecutors. But John Collin Thompson died with
little faith that Jefferson Beauregard Sessions' Justice Department was
actively concerned with his complaint.

Michelle Alexander's book, The New Jim Crow, identifies the U.S. as unique in
the world for the rate at which its prisoners so disproportionately correlate
with its racial minority: African Americans. Recently her work, and that of
other criminal justice reform advocates, has increased popular understanding
that the struggle for a smaller, fairer, more accurate and more accountable
criminal justice system is a seamless part of the struggle for civil rights and
racial justice in America. John's life-defining struggle to hold prosecutors to
account was firmly part of that struggle.

On June 7, 1892, three miles from where John Thompson was convicted and later
acquitted, Homer Plessy sat in a rail carriage reserved for white people and
was charged with violating the Louisiana law forbidding people of color and
white people from sitting in the same carriage. When Homer Plessy took his case
to the Supreme Court, in another sorry decision, it said, "If one race be
inferior to the other socially, the Constitution of the United States cannot
put them upon the same plane." It said that he had been "assigned by officers
of the company to the coach used for the race to which he belonged, but he
insisted upon going into a coach used by the race to which he did not belong."

So, too, John Thompson was assigned to be grateful with his acquittal and move
on. When the U.S. Supreme Court took away the jury's verdict that had
acknowledged the irreparable but avoidable damage to his life, it effectively
said: "John Thompson is insisting upon the kind of justice used by the race to
which he does not belong."

Today, Plessy v. Fergusson is a relic from a morally misguided time. Here in
New Orleans, the descendants of Homer Plessy and Judge Howard Ferguson - Keith
Plessy and Phoebe Ferguson - established the Plessy and Ferguson Foundation to
teach justice and equity and "connect communities to history in an effort to
bring a greater understanding, respect, and vision for who we are today and who
we can be tomorrow." They presented John's lawyers with an award at a dinner in
New Orleans in 2013.

When the Supreme Court overturned Plessy in 1955 with Brown v. Board of
Education, it prescribed that "separate" is inherently unequal. That decision
was part of a long social and political struggle for true equality that
continues today in criminal courts across America. To John, the Connick
decision said that his black life didn't matter and that, while we may not be
formally separate, we are still absolutely unequal. This energized thousands of
people who knew and loved John, and thousands who did not, to work harder for
true equality. Ironically, this gives John far more power and consequence in
history than the prosecutors who were at best indifferent to his guilt while
they tried to kill him in the name of their sorry careers.

In 1898, Homer Plessy was right and the Supreme Court was wrong. 123 years
later, John Thompson was right and the Supreme Court was wrong. We look forward
to the day that Connick is considered a relic from a morally misguided time.

There again is the power of John Thompson's story, showing us who we really

Some of us who have had the monumental privilege of knowing John take a
perverse satisfaction in seeing last week that the man who argued to reverse
his jury verdict in the Supreme Court was nominated to the Fifth Circuit Court
of Appeals. Because if John's legacy speeds all of America's realization that
its society - as reflected in its courts - does not value black lives as it
does white lives, he will continue to rest in the incredible power he had in
life. John died early of a heart attack that was undoubtedly caused by the
stress of what he had endured at the hands of the State of Louisiana. Days
before, Kyle Duncan, the man who had argued that the prosecutors need not be
liable for the terrible damage they caused him and his community, was elevated
to one of the highest positions in the law. There again is the power of John
Thompson's story, showing us who we really are.

John spent his life asking us all hard questions. He asked the hardest question
of the highest court in the country: does my life matter enough? He showed the
country the answer, and left us to do something about it. We just wish he was
still here to do it with us.

(source: Emily Maw, Contributor----Director, Innocence Project New Orleans;
Derwyn Bunton, Contributor, Chief Defender, Orleans Parish----Huffington Post)


A Tragedy of Errors----The corkscrew case of Rogers Lacaze.

In "Case in Point," Andrew Cohen examines a single case or character that sheds
light on the criminal justice system. An audio version of Case in Point is
broadcast with The Takeaway, a public radio show from WNYC, Public Radio
International, The New York Times, and WGBH-Boston Public Radio.

Pretend for a moment that you are an 18-year-old black man in Louisiana in 1995
and you've been charged with murdering a white police officer and 2 others, the
children of the owner of the restaurant where the crime took place. It's
sensational news in New Orleans in part because you have a co-defendant in the
case, herself a police officer, Antoinette Frank, who immediately implicates
you in the crime. Prosecutors seek the death penalty against you and your judge
sets your capital case for trial just over 4 months after the crime.

You have a defense attorney who has never tried a death-penalty case before and
who agrees to do so in exchange for your family's promise to give him a used
car. Unsurprisingly, the defense he offers on your behalf is feckless from the
start. He does not raise the question of prejudicial pretrial publicity or
challenge much of the evidence prosecutors seek to use. He does not move to
suppress statements you tell him were made only after the police beat you
during an interrogation. He tells the court he won't challenge the government's
eyewitness identification of you at trial, a critical concession. Nor does he
undertake any investigation into any mitigating factors that might spare your
life. (After trial, such an investigation shows your IQ is 71).

Things get worse from there. Your lawyer says he is getting death threats and
wants to get paid. Then, on the morning of your trial, your lawyer and the
judge get into an argument. Your lawyer compares the case with the O.J. Simpson
murder trial, then at its zenith, and the judge doesn't like it. So he holds
your attorney in contempt of court and gives him a 6-month jail sentence and a
$500 fine, with the sentence suspended until after the trial. Your lawyer asks
to withdraw from the case. The judge orders him to stay, and the trial begins.

Jury selection takes just a few hours. It is over in time for lunch on the
first day. Neither your attorney, nor an attorney assisting him, asks any of
the potential jurors questions about their views of the death penalty. Instead,
your attorney moves to have the trial judge, the one who held him in contempt,
recused from the case. That doesn't go so well, either. The judge stays and now
there is clearly tension between him and your lawyer.

The case against you is not compelling. The murder weapon was never found.
There is no physical evidence linking you to the crime scene. 2 surviving
witnesses to the shooting do not identify you as the shooter. Indeed, it
appears more likely that your co-defendant, that rogue cop, was the shooter.
None of this matters. You made 2 incriminating statements to the police while
in custody after detectives failed to read you your Miranda rights against
self-incrimination. At trial prosecutors don't appear to challenge your
lawyer's assertion that you were coerced, intimidated, and even beaten into
"confessing." To prosecutors, your co-defendant's pointed finger and your
incriminating statements are enough, even though you stopped short of
confessing to the crime.

The trial begins on July 17, 1995 and ends three days later with a guilty
verdict against you. Deliberations take precisely 1 hour and 36 minutes,
according to court records. 1 day after that, the same jury that so quickly
convicted you recommends you receive the death penalty.

Your name is Rogers Lacaze, the above narrative comes from the trial and
appellate record in the case, and just like that you are headed for Louisiana's
notorious death row. You also are headed for more than 2 decades of
head-twisting post-trial litigation, the latest twist earlier this month from
the U.S. Supreme Court.

What Lacaze and his trial lawyer did not know at the time of his conviction was
that the jury that so quickly convicted him and sentenced him to death included
at least 3 people with evident conflicts of interest that were not disclosed to
the judge or to any of the attorneys. Police and prosecutors, meanwhile, who
were in a position to know about some of these conflicts, remained silent as
well and then later defended the inclusions of these jurors in the case.

One juror, a man named David Settle, was employed by the Louisiana State Police
at the time of the trial. He had been a law enforcement officer for more than a
decade. Another juror, Lillian Garrett, had lost her 2 brothers to murder in
New Orleans. 1 of her brothers died the same way one of the victims in the
Lacaze case had died-- with a gunshot to the head. Remember, the trial on which
she was sitting in judgment involved the murder of 2 siblings.

\ A 3rd juror, a woman named Victoria Mushatt, was a police dispatcher with the
New Orleans Police Department, the very same department whose officer was both
a victim and a co-defendant in the Lacaze case. She was on duty in the dispatch
room when the 911 call came in for the murders on which the case was based.
Mushatt attended the funeral for the police victim in the case and was the wife
of another NOPD officer. She also knew the police witnesses who incriminated

Each of these 3 jurors was asked during jury selection to disclose any
connections they had to law enforcement or to the victims of crime. In Settle's
case, he remained silent even as other prospective jurors around him conceded
their connection to local police and left the panel. Mushatt originally did
disclose that she was a 911 dispatcher and was told by the judge to say so
again if she made it to individual questioning. But she did not do so. Garrett,
meanwhile, was asked three times if she had any connection to any crime
victims. 3 times she said nothing.

Lacaze's attorneys discovered most of this within 5 years of his conviction.
For the past 17 years they have been arguing that their client could not
possibly have received a fair trial from jurors who were unable or unwilling to
follow the trial judge's rules or disclose clear conflicts of interest. And for
the past 17 years the Louisiana Supreme Court has refused to acknowledge error
or grant relief to Lacaze. In 2015, for example, a trial judge ordered a new
trial based on this jury misconduct. The judge also set aside the death
sentence because Lacaze's attorney had failed to investigate any of those
"mitigating" factors that are evaluated in the sentencing phase of a capital
trial. Louisiana has given up on the idea of executing Lacaze (although he
remains on the state's death row). But the justices on the state's high court
overturned the grant of a new trial.

If these were the only major shortcoming in Lacaze's trial, they would be
enough for most courts to grant a new trial. But the problem with Lacaze's jury
is only the half of it. It took about 14 years for defense attorneys to figure
out another serious flaw in the trial and it is this flaw that ultimately may
force the Louisiana court to finally give Lacaze the new trial he seeks.

Orleans Parish Judge Frank Marullo, the same judge who had held Lacaze's lawyer
in contempt, and who had presided over the botched jury selection, was at the
time of the trial under investigation for his own role in providing the murder
weapon to Lacaze's co-defendant, the police officer Antoinette Frank. The judge
not only did not recuse himself but did not disclose the problem to defense
attorneys before or during the trial to allow them to seek his recusal. Worse,
he may have disclosed his conflict in a private meeting with prosecutors (a
meeting he also didn't disclose to the defense).

Marullo allegedly had signed an order authorizing the release of two weapons
from the New Orleans Police Department's property and evidence room. Those
guns, including the murder weapon, had found their way into the hands of
Officer Frank through another cop named David Talley, who evidently gave the
weapon to Frank as a favor. When Marullo was questioned about the order he
denied signing it, essentially accusing Talley of forging his signature.

Investigators tried before and during the trial to get handwriting samples from
him to compare with the signature on the order authorizing the release of the
guns. He refused, arguing that he could not do so because he was busy presiding
over the Lacaze case.

None of this convinced Louisiana's courts that Lacaze's trial was fatally
flawed. Last week, however, Lacaze got a measure of good news. His current
attorneys took the case to Washington in March, claiming that the Louisiana
courts had applied the wrong legal precedent to his claims. The U.S. Supreme
Court, without even hearing oral argument in the case, ordered the Louisiana
high court to reevaluate its prior rulings in the case. It wasn't the jury
misconduct that caught the attention of the justices. It was the judge's
alleged malfeasance.

In March, in a Nevada case, the justices had overturned a murder conviction and
death sentence in a case in which the judge was being investigated by
prosecutors as part of a federal bribery probe. "Under our precedents," the
justices wrote, "the Due Process Clause may sometimes demand recusal even when
a judge 'has no actual bias.' Recusal is required when, objectively speaking,
the probability of actual bias on the part of the judge or decisionmaker is too
high to be constitutionally tolerable."

Will the Louisiana Supreme Court concede that Lacaze got nothing close to a
fair trial? It may be another few years before we find out. The justices in
Washington did not order the state court to give Lacaze a new trial. So there
will likely be a new round of briefs, and a new round of hearings in New
Orleans, and a new round of judicial opinions as the curious case of Rogers
Lacaze rolls into its 3rd decade. No one I talked to about the case said they'd
be surprised if the case found its way back to Washington before it's finally

(source: themarshallproject.org)


Luis Toledo trial: Testimony continues

Testimony continued Monday for a 4th day in the murder trial of a 35-year-old
Deltona man who is accused of killing his wife and her 2 children.

Luis Toledo is accused of killing Yessenia Suarez, 28, and her children, Thalia
Otto, 9, and Michael Otto, 8, who disappeared from their Deltona home in
October 2013 and were never found.

Investigators said Toledo confessed to killing Suarez but denied killing her
children. Prosecutors are seeking the death penalty in the deaths of the

Tyshawn Jackson, who was 21 at the time, was Toledo's neighbor and friend. The
2 went to barber school together and would often carpool.

Jackson testified Monday about Oct. 23, 2013, the day of Suarez's
disappearance. He said Toledo knocked on his bedroom window early in the
morning, asking him to drop off Suarez's car at a Publix parking lot in
Seminole County.

Jackson said he saw Toledo wiping down the car down and they left in Toledo's
car to drop off cleaning products and trunk lining from Suarez's car at an
apartment complex dumpster.

Toledo admitted to killing his Suarez in self-defense, but he claimed Jackson
killed the children. Jackson denied that Monday.

Jackson said that while they were driving home from dropping off the car,
Toledo said he "snapped."

Toledo's brother testified Monday that Toledo visited his home early in the
morning and said that Suarez was cheating on him.

On Friday, jurors heard from 2 neighbors, who are sisters. One woman, who was
13 years old at the time, said she heard a woman yelling for help around
midnight on Oct. 23 at Toledo's home.

The woman testified that she found a large knife while walking home from school
the next day.

Prosecutors believe the knife belongs to Toledo and that he tossed it from his
car while police officers were following him.

(source: WFTV news)


A stain on conscience

As a concerned citizen, I am writing in regards to the scheduled execution of
Arkansas death row prisoner Jack Greene. I am shocked to hear that our state
would pursue the execution of a man as severely ill as Jack Greene. I agree
that carrying out such an execution would be a stain on the whole state's
conscience. After all, the death penalty serves no legitimate purpose if the
person being executed does not understand why he is being put to death.

At the very least, Arkansas should allow Jack Greene a hearing to examine his
competency to be executed. I hope those who still have the power to intervene
in Mr. Greene's case will do so and ensure that the state does not carry out
the execution of this mentally ill man in our names.


Hot Springs

(source: Letter to the Editor, nwaonline.com
A service courtesy of Washburn University School of Law www.washburnlaw.edu

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