appeal

Howland woman condemned to death row asking for another appeal


 

COLUMBUS, Ohio – Lawyers for Ohio’s only condemned female killer have asked the U.S. Supreme Court to accept her appeal.

Death row inmate Donna Roberts was convicted of planning her ex-husband’s 2001 killing with a boyfriend in hopes of collecting insurance money.

Roberts’ death sentence was struck down in the past after the state Supreme Court said a prosecutor improperly helped prepare a sentencing motion in her case.

The court also said a judge hadn’t fully considered factors that could argue against a death sentence.

Earlier this year, the Ohio Supreme Court once again upheld the death sentence for the 73-year-old Roberts.

She was sentenced to death for the third time in 2014 but appealed that decision.

Watch: Testimony from Roberts’ appeal

Roberts was accused of planning her ex-husband’s murder with her boyfriend Nathaniel Jackson. The killing happened in the couple’s home in Howland.

Jackson was also sentenced to death.

In the past, the court said a prosecutor improperly helped prepare a sentencing motion in Roberts’ case and that a judge hadn’t fully considered factors that could argue against a death sentence.

Justice Terrence O’Donnell, writing for the majority, rejected arguments that allowing a new judge to sentence Roberts after the original judge died was unconstitutional.

Justice O’Donnell explained that Roberts helped Jackson plan Fingerhut’s murder in a series of letters and phone calls while Jackson was in prison on an unrelated charge. She actively participated with Jackson in the killing by purchasing a mask and gloves for him and allowing him into the home, evidencing prior calculation and design, O’Donnell said.

The court ruled 6-1.

The Court also pointed out that although Roberts expressed sadness for Fingerhut’s murder, she never accepted responsibility for it and denied her scheme to kill Fingerhut, “notwithstanding overwhelming evidence to the contrary.”

The Court concluded the death penalty was appropriate and proportionate to the death sentence imposed on Jackson.

The state is expected to oppose Roberts’ latest request.

 

Salvadoran Man on Texas Death Row Loses Supreme Court Appeal


December 11, 2017

The U.S. Supreme has refused to review an appeal from a 48-year-old Salvadoran man on Texas death row for the slayings of two Houston store clerks during an attempted robbery more than 17 years ago.

The U.S. Supreme has refused to review an appeal from a 48-year-old Salvadoran man on Texas death row for the slayings of two Houston store clerks during an attempted robbery more than 17 years ago.

The high court had no comment in its decision Monday in the case of Gilmar Guevara.

Attorneys for Guevara asked the justices to reverse lower courts’ rulings rejecting arguments that he’s mentally impaired and ineligible for the death penalty.

Guevara was convicted and sentenced to death for the fatal shootings of 48-year-old Tae Youk and 21-year-old Gerardo Yaxon. Youk was from South Korea and Yaxon from Guatemala.

Guevara, identified as the shooter, and two accomplices fled the scene in southwest Houston in June 2000 without any money.

He does not yet have an execution date.

Court to rehear appeal for Ariz. death row inmate – James Erin McKinney


March 14, 2014
PHOENIX (AP) — A federal appeals court is reconsidering an appeal filed on behalf of an Arizona Death Row inmate convicted of two killings during burglaries.

A three-judge panel of the 9th U.S. Circuit Court of Appeals last September upheld a trial judge’s denial of James Erin McKinney’s challenges to his murder convictions and death sentences.

However, the San Francisco-based appellate court now says a larger panel of its judges will consider McKinney’s appeal.

The three-judge panel’s ruling said it didn’t matter much that McKinney was seated so he faced the jury while on trial with a co-defendant before separate juries. And it rejected his other challenges in the appeal.

McKinney was convicted in the 1991 killings of Christene Mertens and Jim McClain during separate burglaries in Maricopa County.

FLORIDA – Convicted killer Emilia Carr’s lawyer argues appeal before Florida Supreme Court


february 3, 2014 (Ocala)

Counsel for a Marion County woman sentenced to death row argued for a sentence reversal before the Florida Supreme Court Monday morning, stating his client is less culpable in the crime than her co-defendant — who is serving life imprisonment for the same offense.

Standing before the panel in Tallahassee, Emilia Carr’s attorney, Christopher S. Quarles, argued the Supreme Court should rule on the issue instead of choosing another remedy: sending the case back to the trial court to deal with the sentence question, either in a separate hearing or through a post-conviction relief proceeding.

“I think the evidence is very clear Joshua Fulgham is more culpable,” argued Quarles, referring to Carr’s co-defendant. “He had the motive, he hatched the plan, he brought the victim to the scene of the crime, and it’s very unfair…he is serving a life sentence when she is sentenced to death.”

According to trial testimony, Fulgham, who was Carr’s lover, lured his estranged wife, Heather Strong, 26, to a trailer in Boardman, which is in north Marion County near McIntosh. There, the pair duct taped her to a chair, suffocated her and then buried the body.

The co-defendants were tried in separate trials, and the state sought the death penalty for both. They both were found guilty of first-degree murder and kidnapping.

In the first trial, a jury recommended death for Carr in a 7-5 vote in December 2010. The judge in that case followed the recommendation and put her on death row.

The jury in the second trial returned a recommendation of life imprisonment for Fulgham in April 2012. Again, the judge followed the recommendation.

“They had different judges, they had different juries, they had different legal teams,” said Quarles.

He argued that during each trial the state painted that defendant as the mastermind, even though evidence shows Fulgham had been manipulating both Strong and Carr in the time period leading up to the crime.

Justice Charles Canady pointed out that Carr, 29, has an IQ of 125, while Fulgham, 32, is intellectually challenged.

“In the actual commission of the crime Ms. Carr was heavily involved in what was going on,” countered Assistant Attorney General Sara Macks.

She pointed to several factors motivating Carr including the fact that Carr wanted to raise a family with Fulgham.

Carr gave birth to Fulgham’s child during her time inside the Marion County jail pending trial. Macks also pointed to threats Carr had made of hiring someone to kill Strong.

Justice Jorge Labarga wondered why the two trial court judges didn’t wait and sentence the co-defendants around the same time after receiving the respective jury recommendations.

As part of her explanation, Macks said Fulgham’s trial had been delayed more than one year when counsel from Miami had become involved.

She urged the high court to resolve the direct appeal before redirecting the case back to the trial court. Macks said if the issue is addressed at the trial court level during post-conviction relief, Carr’s defense would also be able to bring up any issues connected with mitigation.

“This is not a death case,” Quarles argued in rebuttal before the panel adjourned.

A ruling is expected at a later date.

Carr is currently housed at Lowell Correctional Institution with the other five women on Florida’s death row. Fulgham is currently housed at Florida State Prison in Raiford, according to state prison records.

In August, Fulgham sent a hand-written letter to the Marion County Jail through his mother intended for convicted murderer Michael Bargo. Inmates are not granted the same privacy as the general public and therefore their mail is public record except for medical records and legal correspondence.

In the letter, Fulgham offered Bargo advice about prison. “A lot of people will tell you a life sentence is the same as death row,” he wrote, adding that such advice is wrong.

“If you do end up in prison at all, it isn’t that bad,” Fulgham wrote, describing his access to an MP3 player, television and Playboy magazine.

KENTUCKY – Lone woman on Ky death row loses appeal – Virginia Susan Caudill


february 3, 2014 (wowktv,com)

LOUISVILLE, Ky. (AP) – A federal judge has rejected an appeal from the lone woman awaiting execution in Kentucky after concluding her attorney wasn’t deficient at trial.

U.S. District Judge Danny C. Reeves turned away claims by 53-year-old Virginia Susan Caudill that her lawyer committed numerous errors during her joint trial with a co-defendant, 53-year-old Johnathan Wayne Goforth.

Caudill and Goforth were convicted in 2000 in Lexington of robbing and killing 73-year-old Lonetta White by bludgeoning her to death with a hammer on March 15, 1998. White’s body was then put in the trunk of her own car, which was set ablaze.

Prosecutors say the pair fled to Florida and Mississippi in the months after the slaying. Police arrested Caudill in New Orleans about eight months after the killing.

TEXAS – Death row inmates loses appeal – Jerry Duane Martin


NOVEMBER 2, 2012 http://itemonline.com

The Texas Court of Criminal Appeals has upheld the conviction of an inmate sentenced to death for the murder of a Texas Department of Criminal Justice employee during an attempted escape from a Huntsville prison in 2007.

A jury found Jerry Duane Martin, 42, guilty of capital murder in 2009 for the death of correctional officer Susan Canfield. Martin used a stolen truck to ram a horse Canfield was riding while trying to prevent him and John Ray Falk Jr. from escaping from the Wynne Unit on Sept. 24, 2007.
Canfield was thrown from the horse and died as a result of head injuries she sustained when she struck the windshield of the truck and fell to the ground.
Jury selection is under way in Bryan for Falk’s capital murder trial for his role in Canfield’s murder. He is also facing the death penalty. Attorneys for the state and defense are interviewing potential jurors. More than 200 Brazos County residents were summoned and the process is expected to take a couple of more weeks.
The Court of Appeals on Wednesday rejected Martin’s appeals, which contained 20 points of error during his trial three years ago. Among those, Martin’s attorneys alleged jury misconduct and that Martin should have been granted a new trial.
The defense argued Martin was denied an impartial jury because one juror withheld information that her family member worked for TDCJ when her husband had been a correctional officer for 18 months and had been stabbed by an inmate. The juror testified during a motion for a new trial that this did not influence her because it happened 17 years ago and her husband had said that he did not think the incident was a “big deal.”
Martin’s attorneys also noted that two other jurors were admitted to the jury who had ties to the Texas prison system. One had formerly worked at the Limestone County Detention Center and the other had been married to a man who was a correctional officer for 20 years.
The appeals court did not see any reason to overturn the trial court’s ruling and issued this opinion: “After reviewing appellant’s 20 points of error, we find them to be without merit. Consequently, we affirm the trial court’s judgment and sentence of death.”
Walker County grand jury indictments
A grand jury handed down the following indictments last week:
• Joe A. Thomas, illegal dumping commercial weight/barrel or drum.
• Juvenal Pimentel, possession of a controlled substance point grade one less than one gram.
• Willie Ray Shelton, possession of a controlled substance point grade two more than or equal to four grams but less than 400 grams.
• Christopher Tyrone Cooper, possession of a controlled substance point grade one less than one gram.
• Jerry W. Williams, driving while intoxicated third or more.
• Robert Cartwright, indecency with a child sexual contact.
• Angela Lee Morris, possession of a controlled substance point grade one more than or equal to one gram but less than four grams.
• Christopher Fazio, fraud possession of a controlled substance/prescription schedule I/II.
• David Karl Schneider, possession of a controlled substance point grade one less than one gram.
• Anthony Lamont Person Jr., possession of marijuana more than four ounces but less than five pounds.
• Kourtnae White, driving while intoxicated third or more.
• Jacqualine Christine Hardy, two counts of driving while intoxicated third or more.
• Shelton Bernard Hightower, possession of a controlled substance point grade one less than one gram.
• Leah Taylor Yeley, credit card or debit card abuse.
• Michael Quinn Sykes, credit card or debit card abuse.
• Robert Lee Austin III, credit card or debit card abuse.
• Kristin Winfrey, driving while intoxicated third or more.
• Christopher Damon Stuart, burglary of a building

UTAH – Death row inmate loses appeal on Provo murder conviction – DOUGLAS CARTER


October 9, 2012 http://www.heraldextra.com

SALT LAKE CITY — A convicted killer who stabbed and shot a Provo woman in 1985 moved one step closer to death on Friday after the Utah Supreme Court denied his appeal.

In a 14-page ruling, the supreme court rejected Douglas Carter’s claim that he was ineffectively assisted by his attorneys. Carter was convicted of killing 57-year-old Eva Oleson in 1985.He was sentenced to death, and the court’s ruling means his sentence is affirmed.

According to the ruling, Carter has been appealing his conviction and sentence since the 1980s. Court documents state that in 1989 his conviction was upheld but his sentence was canceled due to an erroneous jury instruction. However, in 1992 Carter was again sentenced to death and in 1995 the supreme court upheld the sentence.

Carter continued his appeals through the 2000s. He made a series of different claims, but citing extensive case law the supreme court ruled that only his assertion of ineffective assistance of counsel could be reviewed. The claim means Carter believes his attorneys failed to adequately perform their duties.

According to the documents, Carter believes his post-conviction attorneys didn’t consult with investigators and experts. He also reportedly believes there is mitigating evidence in the case, but said his attorneys never examined that evidence. In addition, Carter has claimed that police and forensic reports “cast real doubt on his guilt.”

But according to the decision, Carter failed to demonstrate that his attorneys were inadequate. The supreme court further notes that merely claiming ineffective assistance of counsel isn’t enough to win an appeal.

The ruling means Carter will continue toward execution.

Carter appeared recently before a Provo judge in December. At a hearing, Teresa Oleson testified that her mother-in-law, Eva, was midway through knitting a sweater when Carter tied her up and killed her. Teresa said Carter stabbed Eva in the back, among other things. She also pleaded with the court to move forward with the case, saying her family has been unable to experience closure for more than two decades.

Attorneys working on the case did not return calls seeking comment on Monday.

Gore’s attorneys file appeal with state Supreme Court


update april 6, source : http://news.smh.com.au

Serial killer’s letters speed up execution

Serial killer David Alan Gore is set to be executed sooner than he expected, in part because he could not stop bragging about raping and murdering four teenagers and two women in Florida three decades ago.

An author published the inmate’s grotesque letters, and a newspaper columnist and editorial board brought the case to the attention of Florida Governor Rick Scott. The Republican promptly signed the death warrant, even though more than 40 other men have been on death row longer.

Gore is set to die on April 12.

“Those letters are so disturbing and so insightful into who this person is,” said Pete Earley, who recently published some of the letters in his book Serial Killer Whisperer. “Gore, actually, he talked his way into the death chamber.”

Tony Ciaglia wrote to Gore and other serial killers on a whim after suffering a severe head injury as teenager, in an effort to better understand them.

He began exchanging letters with Gore about five years ago and received about 200 pages in all. Most in the book are too graphic to quote. In one, Gore described step-by-step how he and his cousin abducted two 14-year-old friends and sexually assaulted them.

“I drug both bodies into the woods where I disposed of them. Oh and you can believe, I collected hair. It took a couple days to recover from that. It was a perfect experience,” Gore wrote.

In another letter, Gore described his uncontrollable desire to kill.

“It’s sort of along the lines as being horny. You start getting horny and it just keeps building until you have to get some relief,” Gore wrote. “That is the same with the URGE to kill. It usually starts out slow and builds and you will take whatever chances necessary to satisfy it. And believe me, you constantly think about getting caught, but the rush is worth the risk.”

Scripps Treasure Coast Newspapers columnist Russ Lemmon, who has written about the Gore case, published a column for a few Florida newspapers on the day the editorial board had an interview with the governor. They talked about the book.

The board asked Scott if he had considered signing Gore’s death warrant. The governor promised to look into it.

Meanwhile, letters poured into Scott’s office, many of them mentioning the prison correspondence.

“Pete Earley provides compelling evidence that David Gore relishes every detail of his heinous murders,” wrote Ralph Sexton, whose nephew was married to one of the women killed.

About a month after the editorial board meeting, Scott signed Gore’s death warrant.

Gore’s lawyers are now appealing, arguing in part that the governor’s decision to sign the warrant was unfairly influenced by the editorial board.

A spokeswoman for Scott said he had not read the book.

Ciaglia said Gore blamed him after the death warrant was signed. Ciaglia said he is opposed to the death penalty.

“I told him that I did not actively pursue it. That there’s a lot of people – because you did some really, really bad things – there’s a lot of people that hate you and they want to see you executed and they used these letters to get people’s attention as to the horrible crimes that you committed,” Ciaglia said.

“The only person you can blame is Gore himself,” Earley said. “His candour and his lack of compassion, empathy and remorse is stomach-churning.”

Update april 5, source : http://www.wptv.com

wptv_DAVID_ALLAN_GORE_20120228133951_JPG
If all goes as planned, Carl Elliott  and his extended family next Thursday will make a trip that has eluded them for nearly 30 years.

At 6 p.m., the 81-year-old plans to be sitting next to loved ones in a viewing area at Florida State Prison when a lethal cocktail is administered to the now 58-year-old serial killer who raped and killed Elliott’s 17-year-old daughter, Lynn, in Vero Beach in 1983. David Alan Gore, who picked up Lynn Elliott and a 14-year-old friend who were hitchhiking to the beach, later confessed to murdering five other women and received five life sentences.

“We’ve been patiently waiting for this after all these years. We miss her everyday,” Elliott said. “We’re ready to go up there and see it done.”

Whether Elliott and his family will finally see Gore die for murdering the teen now rests with the Florida Supreme Court.

And, thanks to a two-week-old U.S. Supreme Court decision, the options facing the state’s high court aren’t clear-cut. In arguments Wednesday, an attorney representing Gore urged justices not to make a snap judgment in his case.

“It effects not just Mr. Gore and not just Death Row inmates,” attorney Martin McClain said of the high court’s recent decision. It will impact hundreds of inmates who were convicted of far lesser crimes than murder, he said.

He urged the justices to stay Gore’s planned execution to give attorneys throughout the state the chance to weigh in on what one justice called a “troubling” ruling that allows inmates to return to court after their initial appeals to argue that their attorneys did a bad job. Since claims of ineffective assistance of counsel aren’t allowed until after a case goes through standard appeals, some claim the ruling could pave the way for court-appointed attorneys to represent prisoners after their initial appeals have been exhausted.

In Gore’s case, McClain argued, he had not just one bad attorney but two. Stuart attorney Robert Udell, who gained fame in Palm Beach County when he represented teacher-killer Nathaniel Brazill in 2001 and was subsequently disbarred for financial misdeeds, made numerous errors when he represented Gore in a 1992 resentencing hearing, McClain said. For instance, he failed to tell the jury about Gore’s alcohol, drug abuse and mental health problems or that chances were slim that he would ever be released if he received life in prison.

Another attorney, Andrew Graham, in 1999 argued that Udell’s incompetence caused a second jury to recommend Gore receive the death penalty instead of a life sentence. But Udell denied he was at fault. Udell blamed another attorney, Jerome Nickerson, who he claimed was the lead attorney during Gore’s resentencing. However, Graham never found Nickerson, who had moved out of state, which gave him little ammunition in the appeal that was rejected by the Florida Supreme Court in 2007.

As evidence of Graham’s incompetence, McClain said he was able to find Nickerson with a quick Google search. The discovery of Nickerson is new evidence that should, as a result of the U.S. Supreme Court decision, give Gore another basis for appeal, he said.

Justices appeared less than enamored with McClain’s efforts to use the recent decision to spare Gore.

Justice Barbara Pariente said the U.S. Supreme Court’s decision in the Arizona case involving convicted sex offender Luis Mariano Martinez is aimed at federal courts.

“It has everything to do with the nightmare that’s going to be created in the federal system,” she said of the opportunity for inmates to flood courts with appeals. “It has nothing to do with what states are forced to look at.”

Further, she said, McClain has had years to find Nickerson and lodge an appeal. McClain countered that, until the Martinez decision, he had no way to challenge Graham’s incompetence.

Justice Peggy Quince said “the language of Martinez is really troubling” and it appears the ruling is far-reaching.

Assistant Florida attorney general Celia Terenzio said there is no reason to delay Gore’s execution. Even if Udell or Graham didn’t represent Gore well, the Florida Supreme Court in 2007 said their actions didn’t spur the jury to recommend that he be sentenced to death. “There was no prejudice,” she said.

Further, she said, the Martinez decision is very narrow, applying to people whose appeals were blocked on procedural grounds. Gore has had numerous appeals since he was first sent to Death Row in 1984, including one for ineffective assistance of counsel, which was rejected. Also, she said, the high court didn’t say people have a constitutional right to be represented by an attorney in post-conviction appeals, only that in certain cases it may be necessary.

In death penalty cases, Florida always provides inmates with appellate lawyers for post-conviction appeals, she said.

Court-watchers said the decision facing the Florida Supreme Court’s is difficult.

“The Florida Supreme Court is going to have to look at this as a new ruling without any guidance for how it’s going

to be interpreted,” said attorney Michael Minerva, CEO of the Innocence Project of Florida. “The prudent thing to do would be to get additional time to figure out how it applies to Florida courts.”

Richard Dieter, executive director of the Washington, D.C.-based Death Penalty Information Center, agreed. “It wouldn’t be the first time an execution has been stayed because the Supreme Court surprises people with a decision.

Read more: click here

Update march 29  source :http://www.tcpalm.com

The state Supreme Court on Thursday granted a request by David Alan Gore to hold oral arguments Wednesday at 9 a.m. in the condemned man’s appeal of a court ruling that recently denied him a hearing.

Gore’s lawyers on Monday appealed to the Florida Supreme Court an order issued by Circuit Judge Dan L. Vaughn that denied the serial killer’s request for a hearing to present evidence related to legal claims raised in an effort to stop his April 12 execution.

Gore, 58, is under a death warrant Gov. Rick Scott signed Feb. 28 for the July 16, 1983, first-degree murder of Lynn Elliott, 17, of Vero Beach.

Gore’s legal claims center on allegations of having inadequate legal counsel during his post-conviction relief proceedings. He’s further claimed his execution should be stopped in part because the clemency process in his case was applied in an arbitrary and capricious manner in violation of his U.S. constitutional rights. Another claim alleged that because of the 28 years Gore has spent on death row, adding his execution to that punishment would constitute cruel and unusual punishment

Update march 28, source : http://www.tcpalm.c 

As gores’s execution nears, family of victim reflects on loss, changes

Mike and Nancy Byer left Florida in 1988 in search of a fresh start.

“I wanted to go where nobody knew me, and I didn’t know anybody,” Mike said.

Who could blame them?

Just five years earlier, their 14-year-old daughter, Barbara Ann, was killed by Fred Waterfield and David Alan Gore. Her friend, Angel LaVallee, also was killed.

Mike was the last person to see Barbie alive. She was standing outside a 7-Eleven in Orlando. (Mike was driving a service vehicle for his truck-repair business when he passed by the convenience store.)

Later, on the streets of Orlando, the teenage girls — who met while attending Howard Junior High School — would cross paths with Indian River County’s infamous serial killers.

“Gore and Waterfield were hunters,” Nancy said. “They went out for prey.”

Update march 21 source :http://www.tcpalm.com

Attorneys representing David Alan Gore on Wednesday filed papers with the state Supreme Court appealing a judge’s ruling denying the condemned serial killer a chance to present evidence in court in an effort to stop his execution April 12 at Florida State Prison.

Gore was condemned to death for the July 1983 shooting death of Vero Beach teenagerLynn Elliott. He also pleaded guilty in the murder of five other women in Indian River County between 1981 and 1983.

Appeal papers filed by defense attorneys John Abatecola and Linda McDermott ask the Florida Supreme Court to review Circuit Judge Dan L. Vaughn’s March 15 rulings, which rejected Gore’s request to hold an evidentiary hearing, and refused to set aside his sentence of death.

The Florida Supreme Court already has issued an expedited schedule in Gore’s case, setting a deadline of April 2 for legal briefs to be filed. Oral arguments, if required by the justices, will be held April 4 in Tallahassee.

read Gore’s case click here

MISSISSIPPI – Death row appeal rejected – Jeffrey Havard


march 13, 2012

Havard

Read his case (his own words) :http://www.mississippi-justice.com/Jeffrey_Havard.html

source :http://www.clarionledger.com

The state Supreme Court has unanimously denied an appeal from death row inmate Jeffrey Havard, moving him one step closer to execution.

Justices last week rejected the 33-year-old inmate’s appeal, writing, “There is no merit to Havard’s claim that newly discovered evidence exists that supports his innocence. This issue is procedurally barred by time.”

On Feb. 21, 2002, 6-month-old Chloe Britt died, and prosecutors say Havard sexually abused and killed her. Havard was convicted of capital murder. He admits accidentally dropping her but denies sexually abusing and killing her.

Chloe’s mother, Rebecca Britt, who is convinced of Havard’s guilt, expressed gratitude Monday. “There wasn’t any doubt in my mind that was going to happen,” she said.

One of Havard’s attorneys on appeal, Graham Carner of Jackson, said they may seek a rehearing. “We’re considering doing it,” he said.

Havard’s case is also before U.S. District Judge Keith Starrett, where Havard is challenging his conviction on constitutional grounds.

The case before Starrett was stayed, pending the final decision by the state Supreme Court.

In looking through the records of the case, Havard’s attorneys on appeal noticed a reference to a videotaped statement by Rebecca Britt.

After repeated requests, they finally obtained the tape and believed her initial statement to authorities differed in tone and substance from the testimony she gave at trial.

In her initial statement, she told authorities Havard “loved Chloe,” that Havard changed her diapers and gave her bottles, and didn’t seem surprised Havard gave her daughter a bath.

But during the trial, she testified Havard never changed Chloe’s diapers and never bathed the child.

Havard’s attorneys allege his trial counsel was ineffective because they failed to use the statement to challenge Rebecca’s credibility.

Justices disagreed, saying Havard failed to explain how the statement would support his defense. “There is no reasonable likelihood that Britt’s testimony, if false, affected the judgment of the jury,” they wrote. “Havard cannot demonstrate how he was prejudiced.”

When Chloe was brought to the emergency room at Natchez Community Hospital, she was blue, and her eyes were fixed and dilated, according to medical reports. A nurse noticed her anus was dilated to the size of a quarter, and law enforcement was contacted.

At trial, pathologist Dr. Steven Hayne, who performed the autopsy, testified the death was a homicide, consistent with shaken baby syndrome, and that an anal contusion was “consistent with penetration of the rectum with an object.”

But Hayne has since acknowledged to Havard’s attorneys the contusion was found in an area easily injured and a rectal thermometer like the one used in the emergency room to check Chloe’s temperature could cause such a contusion but that he did not think it was likely.

Hayne also said he could not exclude that possibility.

Hayne found no anal tearing and said dilated anal sphincters also may be seen on people without significant brain function and that the contusion was not sufficient to determine a sexual assault occurred. A rape kit conducted at the time found no evidence of semen.

At The Clarion-Ledger’s request, world-renowned pathologist Dr. Michael Baden examined Hayne’s autopsy report and photographs and concluded there was no evidence of sexual abuse – or even of a homicide.

The injuries described at autopsy were consistent with “the baby being accidentally dropped and striking her head on the toilet tank as the father described,” Baden said.

The anal abrasion described in the autopsy can be the result of common causes, such as constipation, diarrhea, toilet paper or even rubbing against a diaper, he said.

Justices agreed anal dilation alone does not suggest sexual abuse. “However, as the state points out, Chloe’s dilated anal sphincter was discovered while Chloe was in the emergency room and still alive.

The high court concluded the defense argument was procedurally barred, and even if it weren’t, “the issue is without merit.”

Jennifer Luttman, 30, of Pisgah, Ala., who dated Havard in 2001, is convinced Havard is innocent. “This is not in his demeanor to do something like this,” she said.

She praised his attentiveness to her son, Ryan, then less than a year old, even getting on the floor and playing.

Since Havard’s conviction, she has decided to pursue a career as a paralegal, she said. “My main reason for studying law is to help him.

my own comment :

rigor mortis—can often cause the anus to dilate after death.

Hayne testified at Havard’s trial that bruises, scratches, and cranial bleeding indicated a case of shaken baby syndrome. 

Rebecca Britt  changes her version of  statement.

if you read the trial, you realize that there are many contradictions

TEXAS – Appeal of Death Row Case Is More Than a Matter of Guilt or Innocence


No one saw Rob Will shoot and kill Harris County Deputy Sheriff Barrett Hill in the still-black morning hours in a Houston bayou on Dec. 4, 2000. No physical evidence linked him to the murder.

http://www.freerobwill.org/

Mr. Will, now on death row, said that he is innocent, but that he has been represented by ineffective lawyers. He has a new lawyer who faces the daunting challenge of representing Mr. Will at this late stage in his appeals.

Witnesses have testified that another man confessed to Deputy Hill’s murder. But in a January ruling, Judge Keith Ellison of United States District Court lamented that even though he was concerned Mr. Will could be innocent, he had to deny his motion for a new trial.

“The questions raised during post-judgment factual development about Will’s actual innocence create disturbing uncertainties,” he wrote. “Federal law does not recognize actual innocence as a mechanism to overturn an otherwise valid conviction.”

Mr. Will’s best chance for a new trial may lie with an Arizona case that the United States Supreme Court is soon expected to rule on. States across the country are anxiously awaiting the ruling, which could establish that defendants have a constitutional right to adequate appellate lawyers. For some states, that could require major spending on court-appointed lawyers for thousands of convicts.

full article

source : New York times.march 10,2012

Texas Tribune