death penalty news----ARK., CALIF.
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Rick Halperin
2017-08-27 11:20:46 UTC
August 27


Analysis: Arkansas returns to center of execution debate

Gov. Asa Hutchinson's decision to schedule a convicted murderer's execution
this fall puts Arkansas back at the center of the death penalty debate months
after the state resumed executions following a nearly 12-year lull. But his
announcement that he will spare the life of a murderer the state had planned to
execute earlier this year offers some hope to death penalty opponents that he
can be swayed in some cases.

Hutchinson's announcement that convicted murderer Jack Greene would be put to
death on Nov. 9 came a little over a week after the state said it found a new
supply of the controversial sedative that prompted its initial unprecedented
plan to execute eight inmates over an 11-day period. The state only conducted
half of those executions before its supply of midazolam expired at the end of
April. It now has enough of the drug to conduct 2 more lethal injections,
clearing the way for Greene's date to be set.

Less than 2 hours after setting Jack Greene's execution date, Hutchinson said
he intended to commute the sentence of death row inmate Jason McGehee to life
without parole. McGehee was among four inmates scheduled for execution in April
who were at least temporarily spared by the courts.

Scheduling Greene's execution opens the door for a renewed legal fight over the
death penalty in Arkansas, though not as hectic as the flurry of challenges
that accompanied the state's marathon schedule of lethal injections in April.
Greene's attorneys have argued that the convicted killer is severely mentally
ill and should be spared from execution.

They say he suffers from a fixed delusion that prison officials and his
attorneys are conspiring to cover up injuries he believes corrections officers
have inflicted on him. The delusions cause Greene to twist his body and stuff
his ear and nose with toilet paper to cope with pain, his attorneys said.

"In the coming weeks, it's imperative that the appropriate decision makers
consider whether the state should execute a man in such a feeble mental state,"
Scott Braden, an assistant federal public defender representing Greene, said
after Hutchinson set the execution date.

But another question is how his case will fit in the larger fight playing out
nationally over midazolam, the sedative Arkansas uses in its lethal injection
protocol that has been linked to problematic executions nationwide. Death
penalty opponents say the drug is incapable of inducing unconsciousness or
preventing serious pain.

The pending execution could prompt renewed questions about whether the sedative
worked in 1 of Arkansas' executions in April. Kenneth Williams, who was put to
death on April 27, lurched and convulsed 20 times during his execution.
Williams' attorneys at the time called the witness accounts of the execution
"horrifying" and death penalty opponents called for an outside investigation.
Hutchinson said he didn't see the need for an anything beyond a routine review
of the state's execution procedures, saying he didn't believe there were any
indications of pain by the inmate.

The state's execution secrecy laws could also draw more scrutiny. The source of
Arkansas' new supply of midazolam is unknown, but documents show the state paid
$250 in cash for enough of the drug to conduct two executions. An expert has
said the purchase suggests Arkansas has found a reliable supplier.

The clemency granted McGehee, meanwhile, offers some hope to death penalty
opponents and even to Greene. Hutchinson cited the Parole Board's
recommendation for McGehee's commutation, as well as the disparity in sentence
given to McGehee compared to other co-defendants in the death of John Melbourne

"Jason's case offers a prime example of why clemency is a necessary part of
capital sentencing," said John C. Williams, an assistant public defender
representing McGehee.

Greene, too, will have a chance to ask for mercy.

(source: Associated Press)


Executions could resume after California Supreme Court leaves most of
Proposition 66 intact

The California Supreme Court largely upheld a measure Thursday passed by voters
to speed up executions but severely diluted a key provision aimed at ending a
backlog of appeals.

The majority decision, signed by 5 of the 7 justices, is likely to have the
biggest effect on more than 15 death row inmates who have exhausted their

Backers of Proposition 66, sponsored by prosecutors and passed with 51% of the
vote in November, predicted executions would resume in months unless Gov. Jerry
Brown decides to commute death sentences.

There has not been an execution in California in more than 10 years, primarily
because of court challenges.

"This is going to put some heat on Jerry Brown, whether he allows the law to be
enforced or gets in there to try to change things," said Michael Rushford,
president of the pro-death penalty Criminal Justice Legal Foundation, which
helped write the ballot measure. "Is the governor going to step up on his way
out the door and commute these guys' sentences as the governor of Illinois did
some years ago?"

As state attorney general, Brown enforced the death penalty. As governor, he
did not take a public position on Proposition 66 or on measures to end capital

His office did not comment on Thursday's ruling.

A federal court order blocking executions remains in force, but Rushford said
the state's new proposed single-drug protocol for lethal injection renders the
federal challenge moot.

Once the California Supreme Court decision is final, in 30 days, prosecutors
around the state will go to judges to obtain execution dates, he said.

Should California execute these 747 death row inmates?

Challengers tried to persuade the court to throw out all of Proposition 66,
which was intended to remove several hurdles to restarting the death chamber at
San Quentin.

Instead, the ruling upended only one provision, a requirement that all state
death penalty appeals be decided within 5 years.

The court construed the deadline as a mere "directive," not a requirement.

That deadline is only "an exhortation to the parties and the courts to handle
cases as expeditiously as is consistent with the fair and principled
administration of justice," Justice Carol A. Corrigan wrote for the majority.

Because of a huge backlog of appeals, the California Supreme Court would have
to spend 90% of its time on death penalty cases for at least the next 5 years
to meet the 5-year deadlines, legal analysts said.

But without a strict timetable, appeals can take decades to resolve.

6 of the justices agreed that the measure's time limits on resolving appeals
have no legal force and that judicial leaders need not devise new rules to
implement them.

Rushford said inmates who have exhausted their appeals "don't have much time

"I think months is a reasonable estimate" of when the next execution will
occur, he said.

Kent Scheidegger, legal counsel for Rushford???s group and an author of
Proposition 66, said that if the court decides appeals more quickly, "we should
see a very substantial speedup."

But Christina Von der Ahe Rayburn, who represented the challengers, said
federal courts could still delay the resumption of executions.

"Nobody is going to be executed tomorrow, thank goodness," she said. "But it
does make executions more possible in the short term."

She disagreed with Rushford that the federal case that has blocked executions
could be resolved within months.

Thursday's ruling surprised and disappointed her, she said, though she was
heartened by language in the decision that indicated the justices "won't make
much effort to honor the deadlines."

UC Berkeley law professor Elisabeth Semel, who runs a clinic for defending
death row inmates, said Thursday's decision does not help those who have
exhausted their appeals, but called it a "major victory" for hundreds of other
death row inmates with appeals pending in the state system.

By interpreting the deadline on deciding appeals to be flexible, those inmates
may be many years away from the execution chamber.

Santa Clara University law professor Gerald Uelmen, who ran a state commission
several years that examined the state's death penalty system, said several of
the measure's provisions may actually increase delays.

"It is just going to boggle up the system even more," Uelmen said.

Corrigan, writing for the majority, said "it remains to be seen" how effective
Proposition 66 will be in expediting death penalty appeals. Much will depend on
whether the Legislature provides more funds for the courts, she said.

"The time limits reflect the voters' will, which we respect," Corrigan wrote.
"However, they were presented to the voters by the proponents of Proposition 66
without the benefit of hearings or research exploring their feasibility or
their impact on the rest of the courts??? work."

Opponents of Proposition 66 challenged the measure the day after the November
election, contending the initiative usurped the authority of the courts.

The court put the new law on hold while considering the challenge.

The court's decision left in place several contentious requirements of the new
death penalty law.

Criminal defense lawyers who have done appeals will be required to take death
row cases if they want to continue to receive appointments from the courts to
represent indigent defendants.

There has been a shortage of qualified lawyers willing to handle death penalty
appeals because many attorneys consider the pay inadequate and the emotional
toll high.

Thursday's decision also did not overturn a part of the measure that transfers
review of habeas corpus capital challenges to the lower courts.

In the past, only the California Supreme Court reviewed those challenges in the
state system.

Proposition 66 further ended public review of execution methods, a requirement
under the old law that was blamed for the dearth of executions. The ruling left
that provision in place.

California law gives each person convicted of the death penalty an automatic
appeal and a separate habeas corpus challenge to the California Supreme Court.

It now can take a decade or longer for the California Supreme Court to rule on
an automatic appeal.

Afterward, the court considers the inmate's habeas challenge. That is based on
events that were not reflected in the trial transcript, such as newly
discovered evidence of juror misconduct.

Once state courts have completed their reviews, death row inmates can challenge
their verdicts and sentences in federal court. Proposition 66 did not affect
federal courts.

Chief Justice Tani Cantil-Sakauye and Justice Ming W. Chin did not participate
in the Proposition 66 case because they serve on the Judicial Council, the
policymaking body of the courts and a defendant in the lawsuit.

They were replaced by 2 members of the Courts of Appeal: Santa Ana-based
Justice Raymond J. Ikola, an appointee of Gov. Gray Davis, and Sacramento-based
Justice Andrea L. Hoch, an appointee of Gov. Arnold Schwarzenegger.

Corrigan, a conservative, was joined in the majority ruling by Justice Kathryn
Mickle Werdegar - a Republican appointee who has voted frequently with the
liberals - Hoch and Justices Goodwin Liu and Leondra Kruger, both appointees of
Gov. Jerry Brown.

Liu wrote separately to stress that the deadlines set in Proposition 66 need
not be enforced. Hoch, Kruger and Werdegar joined him.

"The 5-year limit, construed as directive or simply unconstitutional, has no
binding effect and provides no guidance for responsible actors charged with the
fair and efficient administration of justice," Liu wrote.

Corrigan and Kruger face voters next year in a routine retention election.

Justices have been ousted at the ballot only once. Voters rejected the late
Chief Justice Rose Bird and her liberal colleagues after a campaign that
accused them of refusing to enforce the death penalty.

Justice Mariano-Florentino Cuellar, in a dissent joined by Ikola, said the
majority should simply have struck down the deadline for deciding appeals as
unconstitutional rather than engage in a "novel reinterpretation" and
"neutering" of the initiative.

The majority's decision to simply construe the deadlines as flexible was "at
odds - entirely - with what the initiative says, how it was designed to work,
and how it was sold," wrote Cuellar, a Brown appointee.

"Courts do not have the power to disregard a clear statement that a judicial
deadline is mandatory, nor to construe a mandatory deadline to be something
other than what it is," Cuellar said.

Cuellar and Ikola also would have struck down a provision in the measure that
shifted review of habeas corpus challenges to the lower courts.

California has more than 740 inmates on death row, the most of any state.

(source: Los Angeles Times)


18 inmates to get execution dates after California Supreme Court ruling

The clock is ticking again on executions in California.

The state Supreme Court's ruling Thursday, upholding much of a
prosecution-backed initiative seeking to speed up the death penalty process,
cleared the way for the prison system to approve new rules for lethal
injections for the 1st time in more than a decade. If a federal judge finds the
procedures constitutional, execution dates could be set within a year for 18
prisoners, including 4 from the Bay Area, whose final appeals of their death
sentences have been rejected.

California, which has nearly 750 inmates on the nation's largest death row,
last performed an execution in January 2006. Shortly afterward, U.S. District
Judge Jeremy Fogel of San Jose halted further executions until the state fixed
problems in injection procedures and staff training that, he said, created a
serious risk of a botched and agonizing execution in violation of
constitutional standards.

Fogel later left the bench to run the Federal Judicial Center and the case was
reassigned to U.S. District Judge Richard Seeborg of San Francisco, who has
stayed all pending executions. Meanwhile, state prison officials rewrote the
injection procedures, were rejected by a state judge for failing to hold public
hearings, and were then sued by murder victims' families for allegedly dragging
their feet on the regulations.

Gov. Jerry Brown's administration settled the suit and agreed to draft new
procedures for executions with a single lethal barbiturate, replacing the
now-unavailable 3-drug combination the state had used since 1996. The rules
drew thousands of public comments, mostly critical - but officials now can
disregard those objections and make the procedures final under a provision of
Proposition 66, the November ballot measure that the state's high court upheld

When prosecutors seek their 1st new execution date, Seeborg will decide whether
the new procedures contain adequate safeguards, considering defense lawyers'
objections that the drugs on California's approved list are untested in

But Kent Scheidegger, legal director of the Criminal Justice Legal Foundation
and an author of Prop. 66, noted that the U.S. Supreme Court, whose rulings
Seeborg must follow, has given states considerable leeway in execution
procedures. In 2015, the court allowed Oklahoma to use a drug that had appeared
to cause prolonged suffering at a previous execution, with Justice Samuel Alito
saying it was up to inmates to propose a less-painful method.

Here is a look at the cases of the Bay Area inmates who are now in Seeborg's

--Anthony "Jack" Sully, a former Millbrae police officer, was convicted of 6
murders related to drugs and prostitution during a 6-month period in 1983,
while he was running an electrical contracting business in a Burlingame

A federal appeals court said that Sully, while addicted to cocaine, invested in
an "escort service" that employed prostitutes and that he brutally murdered
some of the women. 4 of his victims were prostitutes, another was a man who may
have been a pimp, and the 6th was a woman who offered to sell Sully cocaine,
the court said. Sully denied committing the murders, and his lawyer argued,
unsuccessfully, that Sully's trial attorney failed to investigate evidence that
Sully was mentally ill.

???Robert Fairbank pleaded guilty to torturing and murdering a San Francisco
State University student, Wendy Cheek, 24, whose charred body was found in
December 1985 near a reservoir in San Mateo.

4 days before the murder, a San Francisco judge had released Fairbank without
bail after his arrest on a rape charge.

The federal appeals court that upheld his death sentence rejected a defense
claim that Fairbank's trial lawyer had represented him incompetently by not
looking into evidence of possible brain damage and by making critical comments
about him to the jury.

--David Raley was a security guard in 1985 when he took 2 teenage girls on a
tour of a deserted Hillsborough mansion, then raped and stabbed them, tied them
up and threw them down a ravine, killing 1 of them, 16-year-old Jeanine
Grinsell of San Mateo.

The jury that convicted him of murder deadlocked 7-5 in favor of a death
sentence, but prosecutors won a unanimous death verdict from a new jury at a
penalty retrial. The appeals court rejected a defense argument that Raley's
lawyers should have presented psychiatric testimony and noted that jurors had
heard evidence about physical and emotional abuse by Raley's alcoholic mother.

--Harvey Heishman of San Leandro was convicted of the 1979 murder of an Oakland
woman who was about to testify that he had sexually assaulted her. Heishman, a
previously convicted rapist, had been arrested after Nancy Lugassy, 28, told
police he had raped her, and then released on bail. She was planning to testify
against him at an upcoming hearing when she was shot to death in her front

One witness who said she was involved in Heishman's murder plot was exposed as
a congenital liar during courtroom questioning, but the appeals court found
adequate evidence to support the jury's guilty verdict. The court also rejected
defense arguments that Heishman's trial lawyers failed to look fully into the
abuse he had suffered as a child.

(source: San Francisco Chronicle)


Prosecutors seek hearing delay in Fairfield cold-case homicide

Prosecutors are seeking to postpone a probable cause hearing in the cold-case
kidnapping and killing of 3-year-old Toshiro "Clark" Handa in 1984.

The hearing for Michael A. Fejarang, 56, is currently set to begin Sept. 5.
However the prosecutor overseeing the case is set to begin another murder trial
next week in Vallejo.

Fejarang, who has pleaded not guilty, faces charges that include special
circumstances that make him eligible for the death penalty.

Fejarang was serving a long prison sentence for a 2001 Fairfield child sexual
assault when he was arrested in April 2016 in connection with Handa's death.
Handa's body has not been recovered.

Fejarang, who has a history of sexually assaulting children that dates back
more than 30 years, was a 23-year-old friend of the Handa family when the boy
was abducted Aug. 22, 1984, from his bedroom in his Magellan Street home in

Fejarang was ordered to return to court Sept. 1 when new dates for his probable
cause hearing may be scheduled.

(source: Fairfield Daily Republic)
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