Florida Ousts Controversial Medical Examiner

The Florida Medical Examiners Commission met Saturday to fill the vacancy in Judicial District 14 in the Panhandle caused by their June removal of Charles Siebert due to honesty and integrity issues.

But although Siebert was the only candidate and was endorsed by a local search committee as well as Bay County state attorney Steve Meadows who had hired Siebert as an interim medical examiner after he was canned by the state, the commission rejected him unanimously, leaving Bay County and five other counties in northern Florida without a medical examiner.

Siebert had vacated his job Friday night as interim medical examiner. Under state law, Meadows could name a “competent physician” to serve until a new candidate is presented to the commission.

Four doctors had applied for the District 14 ME’s position but all eventually took other jobs which left Siebert as the sole candidate. Siebert has reportedly accepted a position in New Jersey.

The commission had voted in May not to recommend that Siebert’s appointment be renewed by Governor Charlie Crist when it expired on June 30.

Siebert conducted the first autopsy in the death of Martin Lee Anderson, the 14-year-old boy who died in January 2006 at the Bay County Boot Camp in Panama City. Siebert had made a determination that Anderson had died of complications from sickle cell trait which had not been previously diagnosed.

However, a second autopsy performed by Hillsborough medical examiner Vernard Adams following an exhumation indicated that the teen didn’t die from natural causes but rather as the result of suffocation at the hands of the boot camp guards when ammonia capsules were shoved up his nose.

The Florida Legislature approved and Crist signed a $5 million settlement for the Anderson family.

Seven guards and a nurse employed at the camp were charged with manslaughter but were acquitted at trial in October. The case is under investigation by the civil rights division of the U.S. Department of Justice.

Commission chairman Dr. Stephen Nelson said that their decision not to recommend Siebert to Crist for reappointment had nothing to do with the Anderson case but was because he hadn’t complied with a previous order to have an independent review of his work.

In August, the Florida Medical Examiners Commission reviewed the petition filed by Siebert appealing their June determination to remove him from his post in Bay County and five other Panhandle Counties and a probable cause panel’s decision that he had violated state law. The commission’s June removal order does not become final unless Siebert is unsuccessful in his appeal.

Siebert was named interim medical examiner by Meadows on June 19 and was formally served by the commission with the removal order on July 10 and filed his petition for a formal administrative hearing on July 24. The hearing has been set for Jan. 15but may be moot if Siebert is replaced prior to the hearing.

The commission had refused a request from officials of the judicial district to delay the appointment of a medical examiner until after Siebert’s January hearing.

Siebert has denied the allegations against him and says he conducted a proper autopsy in the Anderson case.

Last year, after then Attorney General Crist asked the commission to investigate autopsies conducted by Siebert that may have contained “fundamental flaws”, a three member probable cause panel of the commission ruled that Siebert had been negligent in performing at least 35 of the nearly 700 autopsies reviewed, finding that Siebert “failed to perform the duties required of a medical examiner”. Siebert has maintained that any errors that he committed were only minor and weren’t intentional.

The MEC filed a four count administrative complaint against Siebert on July 10, seeking his immediate removal from office, saying that he had lied about the work performed in the Anderson autopsy. The committee found that Siebert had made material misrepresentations in the Anderson autopsy regarding the thyroid gland and adrenal glands and levied negligence allegations against Siebert in regard to his examination of the groin area and subcutaneous hemorrhages on the thighs and right forearm of Anderson.

Siebert says he did remove and inspect thyroid gland and adrenal glands and found nothing remarkable. He says in regard to his examination of the groin area, he exercised is professional discretion to not dissect the prostate gland and testes because dissection was not necessary to allow him to establish a cause of death.

He argues that he didn’t flay Anderson’s skin because it was evidence from the video that bruising would be existent in those areas but not responsible for the cause of death and to limit damage to Anderson’s body pending his funeral. http://www.northcountrygazette.org/news/2007/06/13/siebert_ousted/ http://www.northcountrygazette.org/news/2007/08/17/me_appeals/

After the probable cause finding, last January, the commission voted to issue a Final Order stating Dr. Siebert would participate in a Quality Assurance Plan with direct and indirect supervision provided by Dr. Barbara C. Wolf for the duration of his tenure as the District 14 Medical Examiner. On Feb. 8, the Final Order was filed and became effective.

Dr. Wolf, a forensic pathologist is the deputy chief medical examiner in West Palm Beach County and former director of the New York State Police Medicolegal Investigation Unit.

At Dr. Nelson’s request, Dr. Wolf was present before the commission in June to report on the status of Dr. Siebert’s supervision. She reported that it was apparent that there were some areas in which Dr. Siebert needed guidance.

Dr. Nelson asked Dr. Wolf how many autopsies she had observed Dr. Siebert perform. She stated it had not worked out as well as she had hoped. Although she had seen him perform autopsies prior to the QAP, since the plan was implemented she had only observed Dr. Siebert perform two traffic accident autopsies. Both were before the Final Order was issued. Subsequent to the Final Order, she had not observed any of his autopsies.

Dr. Wolf informed the Commission of her ongoing request to observe a criminal case and her ability to be in District 14 on short notice. However, Dr. Siebert had yet to call her to observe a criminal case. She would still like to observe how Dr. Siebert handles evidence. Dr. Wolf also stated the District 14 office would likely be able to gain NAME accreditation with only an updating of the policy and procedure manual.

Polk County Sheriff Grady Judd, commission member, had asked Dr. Wolf if Dr. Siebert had resisted supervision. Dr. Wolf said at the beginning there was a, “difference in understanding” concerning what Dr. Siebert believed her role to be, and what she believed her role to be. Her understanding was acting as a supervisor and he thought she was there for routine quality assurance. Due to this “misunderstanding,” Dr. Wolf stated there was a lag in starting the supervision. http://www.fdle.state.fl.us/cjst/mec/June2007%20MEC%20Mtg/Min5-2007.pdf

Crist had asked the commission not to include in its review Siebert’s autopsy report of Anderson because he said that any investigation of the case might impede an ongoing criminal investigation being conducted by Hillsborough state attorney Mark Ober, a special prosecutor appointed by Gov. Jeb Bush following the removal of former FDLE commissioner Guy Tunnell’s removal from the case.

The Siebert autopsies reviewed dated back to August 2003, when Siebert left Pinellas County to become medical examiner in Bay County which is located in Florida’s Panhandle, including a 2004 autopsy report in which he said that a woman who died in Hurricane Ivan had “unremarkable testicles”. The commission said that Siebert used “canned” autopsy reports, seemingly using a template and the same terminology to detail conditions of organs and body parts instead of individualizing cases.


Siebert also conducted the autopsy of Shawn McMillen who died on Sept. 2, 2001 at age 26 of a gunshot from the gun of a state corrections officer. Tarpon Springs police labeled it a suicide, a determination supported by Siebert who was then Pinellas County medical examiner but Shawn’s mother, attorney Michaela Mahoney, says her son was murdered. www.copsliesandcoverups.com
http://www.northcountrygazette.org/articles/061506SpecialCircumstances.html

Siebert was also involved in the death of 18-year-old Michael Niesen. Niesen died on July 14, 1977, following an automobile accident in Clearwater. The official report of the Clearwater Police Department says that Niesen was ejected from his vehicle, was found unconscious at the accident scene on Memorial Causeway on July 13, 1977, at 9:50 p.m. by the first responding officer, Mark Cairns. Cairns’ report says that Niesen never regained consciousness and died of head injuries sustained in the accident.

http://www.northcountrygazette.org/articles/072906NiesenMurder1.html

Niesen’s family, his brother John and mother, Mary Riley say the teenager was killed as the result of a retaliatory beating administered by police after Clearwater police officer Ronald Mahoney was fatally injured in the accident after Mahoney initially stopped Niesen to issue him a traffic citation.

Siebert reviewed the Niesen case in 2001 at the request of Pinellas County state attorney Bernie McCabe on direction from the Governor’s office. John Niesen says that Siebert quashed the state investigation of his brother’s death, supporting the finding of the first autopsy that contained an admitted error. Siebert based his opinion on the original autopsy report which attributed the severe head injuries, one a four inch opening and the other a five inch open wound, to surgery. However, the hospital report indicates that Niesen had the head wounds upon his arrival at the Morton Plant emergency room and never underwent surgery. Although the Pinellas County medical examiner’s office later claimed that the statement contained in the original autopsy report is a typographical error, both former District Six medical examiner Joan Wood and current Pinellas ME Jon Thogmartin refused to correct the report. Niesen had filed a complaint against Siebert with the Florida Department of Health.

A third autopsy report, prepared by Dr. Gerald Gowitt, a forensic pathologist of Forensic Medicine Associates Inc. of Decatur, Georgia, says that the head injuries sustained by Michael Niesen likely did not occur as a result of the accident. 12-29-07

Getting out of the revenge business

By Tom Blackburn tom_blackburn@pbpost.com

Palm Beach Post Staff Writer

Monday, December 31, 2007

Finding a happy topic for the last day of 2007 was not easy. Housing is still in the doldrums and the dollar has joined it. Congressional Democrats blow money with earmarks like Republicans. The surge was proclaimed a success by those who count, even though the Iraqi government didn't notice. And when some of the "worst of the worst," as Vice President Cheney called them, are returned from Guantanamo to their own countries, their governments turn them loose after the briefest look at whatever pathetic evidence the Bush administration produced against them.

All of that has another year to run, and the lineup of wannabe change agents is not inspiring if you match the odds with the candidates.

But something good happened. Bear with me while I describe it because the good is at least as much in the how as in the what. New Jersey replaced its death penalty with mandatory life in prison.

By the numbers, that is not a huge thing. New Jersey had not executed anyone since 1963, and it had only eight people on death row. Other states, including Florida, have executions on hold while the Supreme Court prepares to once again consider death ponderously.

In January, the Supreme Court will hear an argument that lethal injection - the newest method of killing that Florida and other states managed to botch up - violates the Eighth Amendment ban on "cruel and unusual punishment." But that's the judicial branch, and capital punishment is really something that ought to be decided by the legislative branch.

The New Jersey Legislature began last January by creating a blue-ribbon commission of officials and private citizens to examine the death penalty. The panel interviewed, for just one example, a North Carolina rape victim who tried to memorize his features so she could identify her attacker but still misidentified a man who was imprisoned for 11 years until DNA tests unveiled the real rapist.

The panel issued a long report that should be a model for other states.

It came up with eight "findings." As other studies have found, the panel said it costs more to execute prisoners than hold them for life, but it added that the discrepancy cannot be measured with "any degree of precision." It also said the available data does not support a finding of "invidious race discrimination" as the penalty is carried out in New Jersey.

On a few points, then, the panel did not follow standard objections to capital punishment. But considering everything, the panel found that "there is no compelling evidence that the New Jersey death penalty rationally serves a legitimate penological intent."

Backed by a report that rational people have to credit, lawmakers were able to debate and pass a law substituting life without parole for the death penalty. Gov. Jon Corzine signed it.

Emotional arguments remain. We couch them now in terms of "closure" for the families of victims, but that is just a psychobabble word for revenge. The Mosaic Law replaced "death for an eye or a tooth" with "an eye for an eye and a tooth for a tooth." But that left death for a death, which leads to an endless cycle: I kill you because you killed my cousin, so then your brother has to kill me.

Capital punishment was another step forward. The state stepped in to say, We will take the life for the life, and that will stop the cycle.

Societies that still practice a death for a death, like Iraq's, will always be nearly impervious to American surges. But even in those societies some people are sophisticated. It is not impossible that even some of Mr. Cheney's "worst of the worst" are simply people handed over to the Americans for revenge by some dead man's brother pretending to be a snitch.

A step remains to be taken, and most civilized countries have taken it.

As the New Jersey commission said, "There is increasing evidence that the death penalty is inconsistent with evolving standards of decency."

Next year would be a good time for Florida to get out of the revenge business. As Sweeney Todd says in the ads, "Never forgive. Never forget." He who believes that should attend the story of Sweeney Todd.

In Texas, they're quick with the needle

The state of Texas apparently didn't get the same message that the rest of the country got. Most states put executions on hold temporarily after the U.S. Supreme Court agreed in September to hear a case challenging lethal injections. Not Texas. On the day that the Supreme Court made its announcement, a Texas Court of Criminal Appeals judge ordered the court clerk's office to close promptly at 5 p.m., denying a Death Row inmate a last-minute appeal to the High Court. The inmate was executed hours later.

Not a good example

This rush to the death chamber helps to explain why 60 percent of all U.S. executions this year were in Texas. It's an example no state should emulate -- and, in fact, most states are doing the opposite. A recent report by the Death Penalty Information Center, which opposes the death penalty, found that while Texas led the nation in executions this year with 26, executions in the United States were at a 13-year low.

The decline is attributed to a de facto moratorium by states that have decided to wait for the Supreme Court's decision in the appeal of two Kentucky Death Row inmates. The men say that lethal injections violate the Constitution's Eighth Amendment protection against cruel and unusual punishment. The court will hear arguments on Monday.

Of the 42 executions in the United States last year, almost all of them -- 90 percent -- were in the South, with Texas claiming the lion's share, the report said.

These numbers show either that there is growing unease with executions across the country or, at the very least, that most states are willing to wait until all legal issues are resolved before resuming state-sanctioned killing. This is a prudent course -- one that Texas should adopt -- especially considering the growing body of evidence showing that mistakes occur more often than many people realize.

Four years ago, former Illinois Gov. George Ryan commuted the sentences of more than 100 Death Row inmates. He cited DNA evidence that was used to exonerate 13 condemned prisoners across the country. Two weeks ago, New Jersey passed a law abolishing its death penalty, although this decision is seen as largely symbolic since there hasn't been an execution there since 1963.

Rush to judgment

Except for Texas, the trend is positive. Those who want quick executions after convictions argue for swift justice, for closure for victims and for the deterrent effect -- if there is any -- of a proximity between crime and punishment. These are valid concerns that promote justice. But inherent in justice is that it be fairly determined and correctly administered. Texas should join the rest of the country in slowing down the rush to judgment.

Records released in Barwick-Ruschak murder case

BY NASEEM S. MILLER
STAR-BANNER

SUMMARY
THE CASE
State of Florida v. Andrew Allred

THE CHARGES
First-degree murder of Tiffany Barwick and Michael Ruschak

THE LATEST
Prosecutors have released court records explaining what Allred did on Sept. 24, the day of the killings; summaries of 911 calls made that day; and statements from Allred's parents

OCALA - Andrew Allred lost his first love. But he wasn't willing to let go and move on.

Authorities say the reluctance led to fatal violence. Allred is accused of shooting and killing his ex-girlfriend, 19-year-old Tiffany Barwick, a native of Ocala and a West Port High School graduate, on Sept. 24. He also is accused of killing her friend, 22-year-old Michael Ruschak, on that same night.

Recently released court records provide more information about Allred, 21, who has pleaded not guilty and awaits trial in Seminole County, which is where the killings happened. Among other things, the records include statements from his parents, who say their son has no significant history of mental illness.

He received therapy and medication for Attention Deficit Hyperactivity Disorder (ADHD) from age of 5 or 6 until his early teens, according to rough estimates by his parents. Otherwise, he had no discipline or behavioral problems.

He had a few friends, but wasn't a loner. He did great at school. He shot rifles with his brothers on their parents' 10-acre property in Oviedo.

He didn't lead anyone to believe that he was capable of a double homicide.

In a statement made to Seminole prosecutors, Allred's father, David, said that Andrew's two brothers said "they don't know how he could have or why he would have done that ... It came out of nowhere. They were shocked, too."

Other documents in the case, including statements from Allred's employer and friends' summaries of 911 calls made the night of the killings, paint a dark picture.

Authorities say that, shortly before 10:30 p.m. on Sept. 24, Allred slammed his Dodge Ram pickup into Barwick's car, which was parked outside of Ruschak's rented house in Oviedo.

He broke in through the sliding glass door at the back of the house and shot Ruschak four time in chest and back, prosecutors allege.

Allred purchased a handgun on Sept. 1, less than a week after his birthday, when Barwick broke up with him, records showed.

Ruschak's roommate, Eric Roberts, tried to stop Allred on Sept. 24. Roberts grabbed Allred from behind and pulled him back toward the living room. Allred repeatedly told Roberts to let him go. He finally pointed the gun down and shot Roberts in the leg, prosecutors have alleged.

Police say Allred found Barwick hiding in one of the bathrooms. She was on the phone with a 911 dispatcher. She cried, pleaded and screamed while Allred pointed the handgun at her, according to a summary of the 911 call that authorities prepared. She said she didn't want to die.

Allred shot her at least seven times in chest, wrist and legs, prosecutors say. Her body was found on the bathroom floor with her feet extended over the edge of the bathtub.

Allred then called a friend and left a message for him, the records showed.

He called Barwick's mother and left a message.

He called 911.
Around the same time, another one of his friends called him to see if he wanted to get together for their usual Monday night gathering.

Barwick and Allred dated for close to a year. She moved in with him in June, in a space he had in the basement of his parents' house.

"August 2006 - August 2007 was the best year I've had in my entire life," Allred wrote to Barwick's parents from jail in a letter dated Nov. 15. "Tiffany is the entire reason it was the best year. She made me the happiest person in the world."

But on his birthday, Barwick broke up with him.

She called Allred's mother the next day to let her know she would be coming back to pack some of her belongings.

Documents don't show where Barwick lived after breaking up with Allred, but she signed a lease at an apartment complex in Oviedo on Sept. 18.

Allred became suspicious of Barwick's relationship with her friend, Ruschak, and he began sending harassing messages to her, authorities say. He hacked into her social networking sites and sent offensive messages to her friends as if they were coming from Barwick.

He sent an e-mail to her that featured her picture full of bullet holes. The title of the e-mail was "target," authorities say.

On the morning of Sept. 24, a Monday, Allred hacked into Barwick's Bank of America account and took money out of her checking and savings accounts and paid her credit card, law officers have alleged.

Authorities say Allred then sent an e-mail to everyone in her address book. The e-mail contained instant message conversations between Barwick and Ruschak. It is not clear whether the messages were original or fabricated.

Records showed that Barwick made 911 calls saying that Allred has access to her accounts and was being very threatening toward her via e-mail and instant messaging. "Victim is crying throughout the phone call," the 911 summary shows.

Barwick went to a Seminole County sheriff's deputy before noon Sept. 24 to report Allred.

"Andrew Allred purchased a hand gun very few days after the break up," she wrote in her report, putting two small stars at the beginning and end of the sentence. "More threatening e-mails have been received, wishing harm to me, my family and friends," she wrote.

Meanwhile, Allred took off from work for lunch on that day to go to Chili's and "get drunk," according to statements that his friend Michael Siler provided to Oviedo police.

He returned to work, and shortly afterwards, a customer reported him to his boss for being rude.

His employer took him to his office, spoke with him and eventually decided to give him the afternoon off so Allred could "cool off," according to the employer's account to police.

Allred quit right there. He sent a message to the company employees, saying "I'm out."

He later sent a text message to Siler saying, "jobless now."

He spoke with his father around 6 or 7 p.m., saying he was at a bar, getting drunk and hung up on him, the court records showed.

Then, around 8 p.m., he drove to Siler's house and together they went out for dinner. Allred ordered two pints of beer, but only drank one pint, according to Siler's statement to police.

Neither Siler nor anyone else knew of any plans Allred had for later that night.

That evening, Barwick, Ruschak and a few other friends gathered at Ruschak's place for barbecue. It was after 10:20 p.m. that Barwick warned everyone that Allred had said he was coming over, according to what the friends later told police.

She wanted to call the police, but while friends were debating what to do, they heard a loud bang.

That's when the 911 calls began from inside and outside the residence.

Allred was arrested by Oviedo police roughly an hour after the shooting.

A Seminole County grand jury indicted Allred in October and he faces a number of charges including two counts of first-degree murder. The state is seeking the death penalty.

"I wished you could have answered your phone that night," he wrote in a letter to Barwick's parents on Nov. 11. "I was calling because I didn't know what to do. I wanted you to tell me what the right thing to do was. I still don't know if I picked the correct one. I guess since you'll never get to or want to see or talk to me again, I'll never know."

Naseem Miller may be reached at naseem.miller@starbanner.com or 867-4140.

Ghost boat crew's kin spent a cheerless Christmas

The charter boat Joe Cool -- missing all four of its crew members -- is towed to the Coast Guard station in Miami in late September.

BY JAY WEAVER, LUISA YANEZ AND CURTIS MORGAN

For family and friends of the missing crew of the Joe Cool, the holidays brought no joy -- only tears for four lost loved ones and worries that a suspect's ''confession'' may not stand up in court.

While it warmed aching hearts to see 3-year-old Taylor Branam beam at a bike she got for Christmas, it was wrenching to hear the little girl make imaginary telephone calls to her mother, Kelley Branam, presumed shot aboard the Miami Beach charter boat and dumped into the dark Atlantic Ocean three months ago.

''It's heartbreaking to watch,'' said Leanne Van Laar, Taylor's grandmother and Kelley's mother.

Van Laar flew from St. Louis to spend Christmas with Taylor and her 7-month-old brother, Morgan, at the Branam family home. She said guests choked back tears over an ill-fated voyage that cost the lives of Kelley, 30; her husband, boat captain Jake Branam, 27; Jake's half brother, Scott Gamble, 35; and first-mate Samuel Kairy, 27, all of Miami Beach.

''Having the children made it easier, but we miss our family members very much,'' said Jeff Branam, Jake's uncle.

The two men charged with the cold-blooded slayings at sea -- Kirby Archer, 36, of Strawberry, Ark., and Guillermo Zarabozo, 20, of Hialeah -- remain in the Miami federal detention center in downtown Miami, awaiting a trial not expected to begin for several months.

They've told federal authorities that ''Cuban hijackers'' stormed the boat, shot the crew and later let them go free in a life raft. But prosecutors believe Archer and Zarabozo, who paid $4,000 for what was supposed to be a one-way charter to Bimini on Sept. 22, intended to take the boat to Cuba all along and killed the crew en route.

With no witnesses or weapons directly linking the murders to Archer or Zarabozo, prosecutors and relatives have hoped one of the men would crack. That hasn't happened. But according to a court document unsealed last week, Zarabozo has fingered Archer for pulling the trigger -- but to an inmate in an adjacent cell, not to federal authorities.

Prosecutors won't discuss the unidentified inmate's statement, but defense attorneys questioned how a convicted felon who has previously aided authorities wound up next to Zarabozo, according to court records.

''[T]he manner in which the former client came to be in any position to claim knowledge of Mr. Zarabozo's activities and statements is highly suspect and suggests that any alleged statements were obtained in violation of Mr. Zarabozo's [constitutional] rights,'' public defenders Anthony Natale and Faith Mesnekoff wrote in court papers.

CREDIBILITY ISSUES

Attorney Allan Kaiser, a former federal prosecutor who now represents Archer, said credibility issues make it uncertain whether the inmate will even be called as a witness.

According to the jailhouse snitch account: Both Zarabozo, a former Florida security guard, and Archer, an Arkansas fugitive wanted on charges of stealing $92,000 from a Wal-Mart, planned to take the boat to Cuba where Archer hoped to settle. Zarabozo claimed Archer -- using Zarabozo's firearm -- shot the crew after arguing with ''the driver of the boat'' about changing the destination. Zarabozo then agreed to throw the bodies overboard and clean up the scene.

After searching for shell casings and finding only one, the inmate claims Zarabozo told him, the men decided to deploy the boat's life, toss their guns in the sea and ''float to Cuba.'' Instead, the Coast Guard picked them up adrift in the raft, with their luggage aboard, about 30 miles north of Cuba.

Both Archer and Zarabozo entered not guilty pleas Dec. 18 to a 12-count indictment that includes several counts that make them eligible for the death penalty.

For relatives of the victims, the ''confession'' wasn't the signed one they hoped for, but it still rings of truth, with key elements that match Zarabozo's previous statements.

''I don't know if we're all just grasping at straws, but we pretty much believe it,'' said Amie Gamble, Scott Gamble's sister and Jake Branam's half-sister. ``I've been to the court hearings. I've watched their body language. I've watched their every movement. At least Zarabozo seems a little remorseful. I think Archer did the dirty work.''

Gamble said her family tried not to talk about details of the case over the holidays -- the emotional wounds run too deep.

''Everyone is on edge,'' she said. ``I sat there and watched my grandmother get up and go into the bedroom and cry and then my grandfather.''

Sammy Kairy's family, still too distraught to speak publicly, has issued a statement: ``We can't accept that such a brutality could occur in our society and even less in our own family. All that we ask now is for justice.''

Complicating the families' struggle of getting through the holidays is a continuing legal fight over the Branam's two children.

Two branches of the Branam family -- Jake's grandmother Jeannette Branam, 74, and uncle Jeff Branam, 51, of Star Island -- seek custody. So does the childrens' great-grandfather, Joseph Harry Branam, 76, of Venetian Isle. Van Laar, 51, of St. Louis, Mo., and her other daughter, Genny Van Laar, 33, of Michigan, also want to raise the kids.

Currently, the Branams share custody. A Miami-Dade judge may decide in the next 60 days with whom the children should live.

Jeff Branam said there are no ill-feelings between the family members, despite the legal battle. ``We all want what's best for the children.''

Like her granddaughter, Leanne Van Laar said she is not ready to accept that her daughter Kelley is gone. She has hired a company that specializes in long-short searches to look for traces on Bahamian islands in deep ocean waters, but the company has yet to contract a deep-dredge vessel.

`GLIMMER OF HOPE'

''I still have a glimmer of hope that she's somewhere out there, alive,'' Van Laar said.

Shirley Clow said she spent a dreary Christmas in bed, knowing she would get no calls or visit from her sons, Jake and Scott, or daughter-in-law, Kelley, but most days she tried to comfort herself with the belief that ``the kids are in a better place.''

''My faith has been strengthened. They died doing what they loved to do and I know my kids are happy where they are,'' said Clow, who raised the boys in Miami Lakes but moved to small-town Edinburg. Ill, four years ago.

``It's a tragedy, of course. I just hope they didn't feel any pain.''

No death penalty in boxer slaying

Troy Harden is seen in 2006 during a break from working out at University Boxing Gym in Melbourne. His accused killer has pleaded not guilty. Tim Shortt, 2006 FLORIDA TODAY file

BY KEYONNA SUMMERS
FLORIDA TODAY

Prosecutors will not seek the death penalty for a Cocoa man accused of killing local professional boxer Troy Harden earlier this year.

Assistant State Attorney Rob Parker said there is not enough evidence to pursue a punishment harsher than life for 24-year-old Sheldon Woodrow Gayle, charged with premeditated murder with a firearm in connection with the early morning Aug. 8 shooting death.

Gayle, who remains at the Brevard County jail without bond, has pleaded not guilty, records show.

"The state of Florida can't seek the death penalty unless it has a good faith basis to believe that the defendant committed certain acts that . . . would outweigh any mitigators in the case," Parker said. "As a consequence, after speaking with (State Attorney Norman) Wolfinger and Mr. Harden's family, we decided that the death penalty was not appropriate in this case."

According to investigators, Gayle fatally shot 22-year-old Harden around 5 a.m. as the boxer stood outside an acquaintance's home at the Hopkins Place Apartments on Monroe Street in Melbourne.

Friends at Harden's funeral said jealousy over a woman may have led to the incident.

Witnesses told police Harden was visiting acquaintance Nashida Gayle's home.

Authorities said Harden's knock on the front door was answered by the woman's estranged husband, Sheldon Gayle, who had sneaked into the home that morning. A verbal confrontation spilled out into the backyard, then gunshots rang out.

Gayle was arrested after a chase, and Harden's body was found about two blocks away, police said.

Gayle is due in court Jan. 7.

Contact Summers at 242-3642 or ksummers@floridatoday.com.

Inmate hopes DNA will free him

Samuel Jason Derrick has been on death row since his 1988 murder conviction.
New testing could exonerate a man who has spent half his life on death row for murder.

By JAMAL THALJI, Times Staff Writer
Published December 28, 2007

Since its birth in 1992, the Innocence Project has used DNA testing to exonerate and free 210 wrongfully convicted prisoners from death row.

Now the nonprofit legal clinic has helped Samuel Jason Derrick, who has spent half his life on Florida's death row, win the right to have evidence in his 1988 murder conviction tested for DNA.

Circuit Judge Stanley Mills granted the defense's motion for postconviction DNA testing just before Christmas.

Derrick, his family and his lawyers hope the latest advances in forensic technology will exonerate the 40-year-old Moon Lake man in the 1987 murder of storekeeper Rama Sharma.

"I'm just thankful that the truth is going to come to light," said Derrick's former wife, Cherie.

A bloody remnant of a white T-shirt, a partially eaten hot dog, blood found under a picnic table and scrapings from the victim's fingernails will all be tested, the judge ordered Dec. 19.

The defense's hope is that viable DNA can be recovered from the evidence that will implicate someone other than Derrick in the stabbing murder of Sharma.

Or it could implicate Derrick and someone else. That could affect his death sentence.

But Derrick has always maintained his innocence, said appellate lawyer Harry Brody, and pursued DNA testing without fear that it might confirm his guilt.

"We always say to people, if you don't want us to do this, we shouldn't proceed," Brody said. "We don't want to make the case any worse.

"And Mr. Derrick has never hesitated."

***

Sharma was an immigrant from India who taught English in England. In 1985 he bought the Moon Lake General Store. Two years later he was dead at age 55.

He was last seen alive closing his store June 24, 1987. The next morning he was found dead, slashed and stabbed 31 times - 20 times in the back. The outside of the store was covered in blood, and $360 was missing.

Derrick was 20 then, and here was the evidence against him at his trial: Pasco sheriff's detectives said he confessed, but didn't record his statements. Detectives also said Derrick made incriminating statements to a jailhouse snitch and a friend.

Detectives testified that Derrick told them he threw the knife into the woods and his bloody shirt and shoes into a pond. But that evidence was never found.

The prosecution told jurors Derrick knifed Sharma to silence him. Derrick broke down during an interview, the detectives said, and confessed: "All right, I did it."

***

The judge's order said the state "conceded" that the DNA testing should be done. The Pinellas-Pasco State Attorney's Office could not be reached for comment Thursday.

All that remains is for the state and the defense to agree on a Florida lab to do the testing. The Innocence Project is representing Derrick for free and will pay for the tests, which could cost thousands.

"In about 40 percent of these exonerations, the DNA testing doesn't just exonerate our client," said Innocence Project spokesman Eric Ferrero. "It also helps identify and apprehend the true perpetrator."

The defense has always bandied about names of others it says were responsible for Sharma's murder. Derrick, however, has never named anyone else.

"I'll just say Jason was very young at the time," Brody said. "We certainly have suspicions. We certainly wouldn't want to name anybody.

"We should just wait and see."

***

In a July 2007 statement, Derrick said he falsely confessed after detectives threatened to take his infant son from his wife and put him in foster care. Derrick said he himself was abused in foster care.

"So I did the only thing I could think of to save him," Derrick said in the statement, "which was to tell the detectives 'OK, yes, I did it.' "

The fingernail scrapings were tested in 2002 but gleaned no DNA profiles, the defense motion said. But they could still yield something to a more sensitive DNA test called Y-STR now available, according to the defense motion, that "targets genetic markers found on the Y-chromosome, which only males possess."

"It's really vital that we use Y-STR or one of the really cutting- edge tests that have been developed," said Alba Morales, Derrick's Innocence Project attorney. "Because it really improves the chance of getting a result from what is by now a fairly degraded sample."

***

Cherie Derrick, 39, said she met with her former husband recently at Union Correctional Institution in Raiford to discuss his case.

"I would say it was upbeat," she said.

Brody said this latest news has given his client reason to be upbeat.

"He's very happy," the lawyer said. "He's been in prison a very long time but he remains optimistic."

Jamal Thalji can be reached at thalji@sptimes.com or 727 869-6236.

FAST FACTS:

Pasco County's death row inmates

Carl Puiatti: Has spent 23 of his 45 years on death row for abducting Manatee County home economics teacher Sharilyn Ritchie from a Bradenton mall in 1983, robbing her and then gunning her down in a Dade City orange grove. Puiatti was convicted in 1984. In 2001 his co-conspirator, Robert Glock, became the 51st inmate put to death in Florida since 1979. He died of lethal injection at age 39.

John Ruthell Henry: First convicted and sentenced to die at age 36 for two 1985 murders: the stabbing of his 29-year-old wife, Suzanne, in Zephyrhills and his 5-year-old stepson, Eugene Christian, near Plant City hours later. After both were overturned, he was again sentenced to death in 1991 and 1992. Henry, who once served time for killing his first wife, is now 56.

Oscar Ray Bolin Jr.: The 45-year-old serial killer is the most infamous name on this list. He has been convicted of killing three woman and had six death sentences overturned. He abducted 26-year-old Teri Lynn Matthews from the Land O'Lakes post office and stabbed her to death in 1986. After two overturned convictions, Bolin was again convicted and sentenced to death in 2002. The Florida Supreme Court upheld his sentence in 2004. And this month in Hillsborough County he received his third death sentence for the 1986 murder of Stephanie Collins.

Dominick Occhicone: Sentenced to death in 1987 for killing the parents of his ex-fiancee because she ended their relationship. In 1986 he cut the phone lines at her parents' Holiday home, then fatally shot her father, Raymond Artzner, 66, once and her mother, Evelyn Artzner, 62, four times. Occhicone was 41 then. He's 62 now.

Samuel Jason Derrick: In 1988 he was convicted and sentenced to death for the murder a year earlier of Moon Lake General Store owner Rama Sharma, 55. Sharma had been stabbed 31 times and had $360 in receipts on him. Derrick was 20 at the time of the murder. He is now 40.

Alvin Leroy Morton: Has been sentenced to death twice for his role in Hudson's infamous 1992 "pinkie finger murders." Morton, then 20, and three friends shot 55-year-old John Bowers dead and nearly severed the head of his 75-year-old mother, Madeline Weisser. Bowers' right pinkie finger was cut off as a trophy. Morton, whose 1994 conviction was overturned but who was again convicted and sentenced in 1999, is now 35.

Michael Peter Fitzpatrick: In 1996, Laura Lynn Romines died at age 28, two weeks after she was found raped and stabbed in the neck on a Land O'Lakes road. Fitzpatrick was 38 when he was convicted and sentenced to death in 2001. Now 45, Fitzpatrick's sentence was upheld by the Florida Supreme Court in 2005.

Public Defender Jacobs dies at 62

Legal colleagues grieve for Lee veteran, friend

By Jason Wermers
jwermers@news-press.com
Originally posted on December 29, 2007


The death of Public Defender Robert R. Jacobs II is a great loss to Southwest Florida's legal community, prosecutors and defenders say.

"He was the kindest, most compassionate person I've ever known," said Deputy Public Defender Ken Garber. "Bob was a very dear and close friend, and I miss him a lot already."

Assistant Public Defender Kathleen Fitzgeorge said Jacobs, 62, died Thursday evening of complications from a stroke he suffered Dec. 11. Family members said through Fitzgeorge that they did not want to comment.

"This is so sad because we really did lose one of the good ones," said Fort Myers defense lawyer John Evans III, who said Jacobs gave him his first job. "He was a guy who led the way for criminal justice in Lee County for the past 30 years."

Jacobs had been public

defender for the 20th Judicial Circuit since 1998 and was last elected to a four-year term in 2006. He had started as an assistant public defender in 1973.

The circuit serves Lee, Collier, Charlotte, Hendry and Glades counties. The public defender's office represents criminal defendants who cannot afford to pay for their own lawyers.

"He was certainly a zealous advocate for people accused of committing crimes," said State Attorney Steve Russell, the top prosecutor in the 20th Circuit and Jacobs' counterpart. "He had a long history in the system of representing indigent defendants. He was tenacious, and he had a great sense of humor, which he used to his advantage in presenting cases."

One of Jacobs' most recent clients was Fred Cooper, 29, of Bonita Springs. Cooper is accused of killing Steven and Michelle Andrews in their Gateway home Dec. 27, 2005. Jacobs tried five times to get the trial moved out of Lee County, but each request was denied.

Garber and Assistant Public Defender Neil McLoughlin worked with Jacobs on the case. It could go to trial in 2008, and Jacobs' death is not expected to affect the timing.

Former State Attorney Joe D'Alessandro said he had spoken with Jacobs Dec. 10, and all seemed well then.

"It was just sort of, 'Hey, how are you doing, what's new, haven't seen you in a while,' " D'Alessandro said. "I am so sorry to hear that he is gone."

Assistant Public Defender Neil McLoughlin said that among Jacobs' talents, his best was keeping defendants off death row. A vast majority of the time, McLoughlin said, Jacobs was able to get a life sentence rather than the death penalty.

"Bob was an excellent attorney and a great administrator," McLoughlin said. "He was really admired, especially for his work in death penalty cases."

Jacobs was best known for representing Kevin Foster, leader of the Lords of Chaos, a group of east Lee County teens that went on a crime sprees in spring of 1996 that included the shooting death of a Riverdale High School band director.

The killing and subsequent trial made national news and was one of the most publicized crimes in Lee County history.

Foster was sentenced to die in 1998.

Foster, now on death row, did not heed Jacobs' strong suggestion that he accept a life-sentence plea agreement from the state.

"In the Lords of Chaos case, he always represented his client, but he did so fairly and as a gentleman," said Randy McGruther, chief assistant state attorney, who was a prosecutor in the Foster trial.

"We handled a lot of cases together, on opposite sides. He was always a gentleman, and he will be deeply missed in the legal community."

Jacobs also represented former Collier County sheriff's deputy Royle "Roy" Kipp, who killed his estranged wife and a friend and former fellow deputy, after catching the two snuggling in her North Naples apartment in May 2000. Kipp was sentenced to life in prison in 2002.

D'Alessandro was state attorney from 1969 to 2003. Jacobs was his counterpart as public defender from 1998 to 2003.

"I liked working with Bob Jacobs," D'Alessandro said. "He would discuss things reasonably and logically. He was a little like, 'This is what I think. When you get around to my way of thinking, let me know.'"

Senior Lee County Circuit Judge James R. Thompson counted Jacobs as a good friend. They had known each other since the 1970s, when Thompson was an assistant state attorney and Jacobs was an assistant public defender.

"He advocated for his clients, but he did it in such a way that he was very professional," Thompson said. "He didn't take cheap shots."

Rick Parker, president of the Florida Public Defenders Association, said Jacobs distinguished himself with nearly three decades of trial-lawyer experience before being elected public defender.

"He was an extra nice guy," said Parker, who is public defender in the Gainesville-based Eighth Judicial Circuit. "He was just about the nicest guy I know."

Gov. Charlie Crist will need to appoint an interim public defender. That person would serve until the next general election, which is scheduled for November. Parker said it is unclear whether that term would be two or four years.

While the timing of Crist's appointment is uncertain, "I'd expect to see something happen fairly quickly," Parker said.

According to a biography posted on the public defender's Web site, Jacobs was born in Tampa and received a bachelor's degree from University of South Florida, and a law degree from Florida State University.

He was a veteran of the U.S. Navy. He is survived by his wife, Mary Daley Jacobs, an attorney. They have a son, Robert III, who received his doctorate in psychology from Texas A&M University in August 2003. Robert R. Jacobs III is a staff psychologist at Vanderbilt University, the biography says.

A funeral Mass will be held 11 a.m. Monday at Church of the Resurrection of Our Lord, 8121 Cypress Lake Drive in south Fort Myers.

Florida jurors win right to ask questions of witnesses

By Paula McMahon South Florida Sun-Sentinel

December 26, 2007

John Wyllys is confident justice was served by the jury verdict when he voted to convict in a recent murder case. But he and other jurors wished they could have posed questions to witnesses during the trial, he said.

"You'd listen as the attorneys pursued a line of questioning and you'd think, wait, there's one more question they should have asked," said Wyllys, 58, a retired investment manager from Boca Raton.

Under new jury rules that go into effect on Jan. 1 in Florida, jurors will be allowed to ask questions of witnesses in criminal and civil trials. The ability to submit questions is the most controversial of several jury reforms recently approved by the Florida Supreme Court.

The things Wyllys and his fellow jurors wondered about were not "make it or break it" matters, Wyllys said, but if they could have inquired, it might have helped to clarify some points for them. He thinks it's a good idea the law is changing.

"The jury is charged with finding the truth and, if we have questions, I think we ought to be able to at least raise questions and then the judge can decide whether it's an appropriate question," Wyllys said.

That's precisely how the new process is set up. Jurors can't just blurt out questions, but once both sides have finished examining a witness, jurors may submit written questions to the trial judge who will decide if it's a legally proper query. The judge will put appropriate jury questions to the witness.

The changes are the result of years of research, discussion, criticism and legal arguments. The state's Supreme Court initiated the effort in a bid to improve the system.

Among the other reforms taking effect Jan. 1:

•Jurors will be allowed to take notes in all trials. Their notebooks will be destroyed after a verdict is reached.

•Jurors must be given written instructions to take into the jury room with them.

•New rules are being adopted to encourage the best use of juror time.

Many judges and attorneys are wary of some of the changes. They say they understand the reasons for the reforms but are concerned that jurors' questions could turn into a legal minefield.

Broward Circuit Judge Stanton Kaplan, in his 42nd year on the bench, said it's good to give jurors more information, but he anticipates "a lot of problems."

"I think it gives an advantage to the state because they have the burden of proof," Kaplan said. "I don't think either side should have any advantage."

He said he thinks the questions could slow trials. Also, he is concerned jurors will focus on issues that are irrelevant to the evidence presented in court.

A few weeks ago, a deliberating jury sent out a note to Kaplan asking why the prosecution had not given them any income tax forms filed by an accused drug dealer. The jury wanted to see his reported income. "It seems they thought that he would file an accurate income tax form, even if he was breaking the law by selling drugs," the judge joked.

Palm Beach County Judge Barry Cohen, who has been letting jurors ask questions in some trials for about five years, said he had no problems. Recently, though, after reading new appeals, he said he had second thoughts.

"I started doing it because a trial is a search for the truth, but it may mess up the attorneys' strategies," Cohen said.

Jurors with the best of intentions, he said, may ask a question such as, "Was the defendant in jail?" The law requires a judge to answer that the question is not legally relevant, regardless of whether the person was locked up.

"How do we then prevent the jury from inferring, 'The judge doesn't want us to know the suspect was in jail,'" Cohen said.

Milton Hirsch, a Miami defense attorney for 25 years, co-wrote the "Bench Guide," a reference book many judges use. He said the rule change will encourage jurors to abandon their traditionally neutral role.

"Jurors shouldn't cross over the line and question witnesses," Hirsch said. "It cheats the system when one party meddles in and takes over the role of another."

Some questions are fraught with unforeseen problems, even for lawyers trained to ask only questions to which they already know the answers. The reasoning is that attorneys can get ambushed if they make assumptions.

Brian Cavanagh, Broward County's chief homicide prosecutor, remembers asking a witness: "How long have you known the defendant?" He anticipated the answer would be that they grew up in the same neighborhood. The witness replied instead: "Even though we grew up in the same neighborhood, I really didn't know him until we were in prison together."

The judge glared at the prosecutor, as the response could have caused a mistrial because, legally, jurors should not be told that a defendant has ever been in prison.

Research shows that when questions are permitted, jurors generally don't ask a lot of them and typically stick to appropriate issues. Studies also indicate jurors report less stress and are more attentive when they are allowed to ask questions. About one-third of states and many federal courts allow the practice, and grand jurors and military court juries have long been permitted to ask questions.

Cavanagh said letting jurors ask questions is good in principle, but he also has concerns.

"The less confusion, the better. We want the jurors to know the whole truth," he said.

But jurors, he worries, may want to ask about issues that cannot be legally raised. For example, it could cause a mistrial if a prosecutor questioned a defendant's right to remain silent or a suspect's decision to hire a lawyer. If jurors ask questions that cannot legally be answered at trial, he is concerned the defense will argue that jurors are focusing on improper issues.

Cavanagh predicted: "It's going to open a whole new area of appellate opinions."

Paula McMahon can be reached at pmcmahon@sun-sentinel.com or 954-356-4533.

Toward justice

If Florida could follow New Jersey's lead . . .

Practicality. Justice. Morality. These three forces combined this week in New Jersey, when Gov. Jon Corzine signed that state's historic ban on the death penalty. It is the first state in the nation to legislatively abandon the death penalty as an antiquated, arbitrary and illogical penalty. It should not stand alone.

Unlike Florida, New Jersey hasn't conducted an execution since 1963 and seemed unlikely to do so any time soon. Yet the state -- like Florida -- has spent millions in death-penalty litigation, sending families of murder victims on a seemingly never-ending emotional roller coaster.

Even before he was elected, Corzine never made any secret of his opposition to capital punishment (a fact that undermines the belief that the public won't support anti-death-penalty candidates). But the state didn't leap into the debate over the death penalty blindly. Instead, the Legislature convened a study commission that looked at all angles of the death penalty and finally -- citing the weight of evidence against it -- recommended abolition. The commission's report included several conclusions:

· There's no evidence that executions serve "legitimate penological intent." Capital punishment doesn't serve as a deterrent to murder, especially when it's so arbitrarily applied.

· It costs more to administer the death penalty than it does to keep someone in prison for the rest of his or her life. The commission considered emotional as well as monetary costs in its calculation.

· The death penalty is increasingly out of step with "evolving standards of decency." Polls show public support slipping for capital punishment, especially when pollsters include the option of life in prison without the possibility of parole.

· Abolishing the death penalty could reduce inequities in sentencing. The commission didn't find persuasive evidence of racial bias, but did find that death sentences were often unrelated to the severity of the crime for which the condemned was executed. More likely predictors: Poverty and the quality of the accused's legal representation.

· Society's interest in executing convicted murderers is outweighed by the high probability of executing an innocent person. This statement was bolstered by the recent rash of sentences overturned by DNA evidence -- and the sure knowledge that many more cases might never be overturned because DNA wasn't preserved or never existed.

· Life in prison without the possibility of parole is just as effective in protecting the public.

The commission wasn't asked to address the horrific spectacle of botched executions, or the lingering doubts that lethal injection -- the execution method most commonly used in the United States -- could in fact be a torturous death for many prisoners.

These arguments should be just as persuasive in Florida, which has led the nation in overturned convictions and has more reason than most states to doubt the guilt of those on death row: 25 condemned men have been freed since 1973. Yet state leaders show little interest in following New Jersey's footsteps. What will it take for one Florida leader to find the courage to speak out against this ongoing injustice -- and to work to put an end to state-sanctioned killing?

Corzine gave a passionate speech before signing the historic legislation in which he quoted the Rev. Martin Luther King Jr.: "Man must evolve for all human conflict a method which rejects revenge, aggression and retaliation." Florida has yet to evolve. For the sake of justice, it should.

Murder suspect will get new trial because of judicial error

By Nancy L. Othón

South Florida Sun-Sentinel

December 20, 2007

An appeals court on Wednesday ordered a new trial for a man convicted of first-degree murder in the stabbing death of another man because the trial judge refused to sequester jurors in between deliberations.

Eulis Campbell, 28, is serving a life sentence after a jury found him guilty of killing Farook Baksh west of West Palm Beach in March 2003. Baksh, 45, had been stabbed and sliced 56 times and his body was found by firefighters responding to a fire set at his home. Prosecutors said Campbell and Baksh met at a West Palm Beach gay bar and returned to Baksh's home.

Campbell testified that he killed Baksh, who had been married for 20 years, in self-defense.

The jury opted to recommend a life sentence rather than the death penalty sought by prosecutors.

At the conclusion of the November 2006 trial, jurors deliberated several hours before going home for a long weekend. Circuit Judge Richard Wennet denied a defense motion for jury sequestration, saying there was nothing to indicate that jurors would violate an instruction not to read any published accounts of the trial.

He later denied a motion for a new trial based on the same issue, stating that no prejudice was shown as a result of a failure to sequester and that the case was not a death penalty case because the death penalty was not imposed.

But a three-judge panel from the 4th District Court of Appeal reversed the decision, citing two prior cases including one in which courts ruled that allowing jurors to go home for a weekend after they have begun deliberations, particularly in a capital case, raises serious questions about their ability to resume deliberations "completely free from outside influences," according to the opinion.

In an even more strongly worded opinion from a 1984 case, an appeals court ruled that juries must be sequestered in capital cases after deliberations have begun and that separating jurors after they have begun deliberating is grounds for a mistrial in a capital case.

The opinion will either be appealed or Campbell will be tried again, said Assistant State Attorney Craig Williams, who prosecuted the case. Campbell's attorney could not be reached for comment, despite a phone call to the Public Defender's Office.

Nancy Othón can be reached at nothon@sun-sentinel.com or 561-228-5502.

Florida stands firm amid death penalty debate

Despite ripples across the country, the state's support for execution is seen as unwavering.

By ABBIE VANSICKLE, Times Staff Writer
Published December 20, 2007


TAMPA - New Jersey ended its death penalty this week with the stroke of a governor's pen.

Whether that decision signals the beginning of the end for capital punishment elsewhere is a topic now being debated by legal experts and death penalty proponents and foes.

But this much, they say, is clear: While several states are considering ending their death penalty, Florida is not among them.

And that isn't likely to change.

"I doubt it will affect Florida," said Robert Batey, who teaches criminal law at the Stetson University College of Law. "New Jersey's decision may have an impact on states that rarely sentence people to death. There are a large number of American states that have the death penalty on the books but don't really use it."

New Jersey, which hasn't executed anyone since 1963, had only eight people on death row when Gov. Jon Corzine ended capital punishment, commuting the prisoners' sentences to life in prison without parole.

Florida, by contrast, has a death row population approaching 400. Hardly a year goes by without at least one execution. Since the death penalty's reinstatement in 1976, Florida has executed 64 people.

Earlier this year, a New Jersey commission created to examine the death penalty issued several findings.

Among them: The cost of the death penalty outweighed the costs of life in prison without parole; there was evidence the death penalty was at odds with standards of decency; and the risk of mistakenly executing an innocent person outweighs the benefit of executing the guilty.

Martin McClain, a veteran death row lawyer in Florida who has won several exonerations, said it's up to Florida's legislators to decide whether New Jersey's decision will have an impact here.

"Certainly it's a big step by the state of New Jersey," he said. "Whether it has an effect or not depends on whether anyone's listening."

***

Florida halted executions after the December 2006 execution of Angel Diaz took twice as long as is typical because the lethal mix of drugs went into his flesh instead of his bloodstream. Diaz murdered a Miami topless club manager.

After a commission formed by then-Gov. Jeb Bush studied Florida's lethal injection protocols, the state doubled the size of the death chamber and added video cameras as well as additional training.

Gov. Charlie Crist ended the moratorium in July by signing the death warrant for Mark Dean Schwab, convicted of kidnapping, raping and killing an 11-year-old Cocoa boy in 1991. His execution was stayed in November by the U.S. Supreme Court, which is reviewing whether execution by lethal injection violates the Constitution.

Sen. Frederica Wilson, D-Miami, who is on the Senate's Criminal Justice Committee, applauds New Jersey's decision. She said she sees similar problems with Florida's death penalty, including cost, racial disparity and wrongful convictions.

As of March, Florida led the nation with 22 exonerations from death row. The issue of wrongful convictions has gained ground with DNA testing.

A 2000 study by the Palm Beach Post reported the state could save $51-million a year by punishing murderers with life in prison without parole instead of the death penalty. The newspaper calculated that the state's cost per execution was about $24-million.

"How do we get all these mistakes? How many people have been released from Florida's death row?" Wilson said. "And the death penalty itself is sinful. It's murder and a civilized society should not be murdering people."

Sen. Victor Crist, R-Tampa, who served on the lethal injection commission, said that he thinks Florida's death penalty is much better than New Jersey's system, and that the majority of Florida's voters support the death penalty.

"The big difference between us is we are far more advanced in how we handle our capital cases," he said.

Florida's death penalty process has "set the standard for the world," he said, citing the quality of legal representation for the convicted.

The senators agreed that New Jersey's decision is unlikely to spur similar change in Florida.

"I'd be surprised," Crist said.

"I do not see that at all," Wilson said. "Florida's a part of the Old South."

***

Legal experts agree. The death penalty may be losing political support in a handful of states, but not here.

"Florida is so committed to the death penalty," said Laurie Levenson, professor of law at California's Loyola Law School. "I think that New Jersey may represent a trend, but not necessarily one that Florida's going to follow."

Throughout the country, though, jurors are less likely to give the death penalty now than in the past, she said. Achievements in science have made society more skeptical.

"I think that with DNA we've begun to realize how often we do make mistakes," she said. "There are constant stories of wrongful convictions. I think that's finally gotten into the public's conscious. ... I'll put it this way: It's more trouble than it's worth."

If Florida takes anything from New Jersey's decision, it should be the idea of a "morally refined death penalty," said Robert Blecker, a professor at New York Law School.

He urged New Jersey to keep the death penalty for the worst offenders. He believes the death penalty will remain a punishment in this society because the people want it.

"You can't subvert the popular will that long, not in this country," he said.

***

From his home in Dunnellon, Ron McAndrew closely watched the news unfolding in New Jersey.

McAndrew, 69, is a retired state prison warden who helped carry out three executions by electric chair. At first a staunch supporter of capital punishment, he came to oppose it.

If people had seen what he saw, he thinks Florida would follow New Jersey's path.

"I think it's the most wonderful step that any government has taken since 1965," McAndrew said. "And I think that New Jersey will shine like a brilliant star in the sky as the leading state in this age to abolish the death penalty nationally."

He said he had asked himself the same questions as the New Jersey commission.

"On the day of my first execution I remember standing there just seconds after we'd put this man to death and asking myself, 'What in the devil am I doing here, and why are we doing this?'" he recalled. "That question kept coming back in every execution I was involved with."

For Kent Scheidegger, legal director of California's Criminal Justice Legal Foundation, the answer for Floridians is simple:

"Justice is sometimes carried out," he said. "Sometimes executions are actually done. You do not have Ted Bundy grinning at you from a prison cell."

Times researcher John Martin contributed to this report. Abbie VanSickle can be reached at vansickle@sptimes.com or 813-226-3373.

Fast facts

Florida's death penalty

1976: Year the death penalty was reinstated

64: Number of executions since then

0: Number of executions in 2007

389: Number of people on death row

14 years: Average length of stay on death row

Findings of N.J.'s death penalty commission

-Costs of the death penalty outweigh the costs of life in prison without parole.

-Increasing evidence shows that the death penalty is inconsistent with evolving standards of decency.

-Executing a small number of guilty people in the interest of punishment is outweighed by the risk of executing an innocent person.

'God Was With Me,' Says Man Shot In Lake Wales Arson

By THOMAS W. KRAUSE of the Tampa Tribune and and JEFF PATTERSON of News Channel 8

Published: December 17, 2007

Photos News Channel 8 Video

LAKE WALES - He was just a neighbor trying to help.

On Thursday afternoon, Brandon Greisman looked through his window and saw smoke. Minutes after he walked outside to investigate, he was shot across the bridge of his nose. His 5-year-old and 10-year-old daughters witnessed the shooting. They thought he had been killed.

"If God hadn't made me turn my head," Greisman said this afternoon, "I'd be dead right now."

Still in pain and groggy from medication, Griesman wore a white bandage across his face but said he has no regrets.

"I would do it again if it happened again," he said. "I wish things didn't have to happen that way, but you know what? God was with me."

About 3:30 p.m. Thursday, a man walked in to Headley Nationwide Insurance and pulled a gun on Juanita "Jane" Luciano, 23, and Yvonne Bustamante, 26. He demanded money, then began to pour gasoline around the room. He set the business and the two women on fire.

Luciano was nearly six months pregnant at the time.

Lake Wales police arrested Leon Davis Jr. in the arson. Before the two women were rushed to the hospital, they were able to identify Davis as their assailant. Polk County sheriff's officials said Davis also is responsible for the execution-style killings of two men at a gas station this month. He has not yet been charged in those shootings.

Greisman said he left his home to investigate the smoke and immediately saw Luciano on fire.

"I tried to pat her out," he said. "I got burns on my stomach and chest."

Then, he heard a gunshot.

"There was no, 'If you don't get away from them' or anything," Greisman said. "He just shot me."

The shooter, who showed no emotion and had a "cold look in his eyes" just walked away, Greisman said.

Greisman's daughters screamed. His wife, who also had wandered outside, became hysterical. They thought he was dead, Greisman said,

Oddly, Greisman said he didn't realize he had been shot until his family reacted. Once he discovered he was bleeding, he put his hands to his face.

"I realized I didn't have a nose anymore," he said.

Panic set in. Greisman said he began to wonder whether the bullet entered his face. He wondered whether adrenaline was the only reason he hadn't collapsed. He wondered whether he would die.

Today, Greisman said, he is in a lot of pain. Loud noises make him jump and he suffers from nightmares. Doctors had to remove skin from his shoulder to use as a graft for a new nose.

Greisman, the father of six children ages 2 to 14, said he moved to Lake Wales after leaving Las Vegas and his native California. One of the reasons he came here was to get away from high-crime areas.

"This is probably the last place I thought this would happen," he said.

Greisman said he briefly had met the women at the insurance shop about four months earlier. He had never met Davis.

Some lawyers have suggested the Polk County State Attorney's Office will seek the death penalty for Davis. Greisman said he didn't know what to think of that.

"I just pray for his soul," he said.

Polk County sheriff's officials and a state attorney spokesman said they were in meetings today to discuss additional charges against Davis. An announcement is expected soon. Neither office wanted to comment further.

Luciano and Bustamante were still recovering today in an Orlando hospital. Luciano's son was delivered by Caesarean section. The boy died early Sunday morning.

Rita Peters, the chief of the sex crimes and child abuse division of the Hillsborough County State Attorney's Office, said Florida law allows murder charges for fetuses that die as a result of crimes against their mothers.

The law says someone can be charged with the unlawful killing of a fetus if he or she intended to kill a woman but her fetus died instead, Peters said.

"Basically, the baby takes the place of the mom," Peters said.

Polk prosecutors can seek the death penalty for the fetus' death, although it would be difficult, Peters said. They would have to prove that Davis intended to kill Luciano and his actions were the cause of the fetus' death.

Mike Benito, a former homicide prosecutor with the Hillsborough County State Attorney's Office, said he expects Polk prosecutors to first move forward on the attempted murder charges regarding Luciano and Bustamante. If they secure those convictions, he said, they could seek the death penalty in the killings of the two men at the gas station – Pravinkumar Patel and Dasharathbhai Patel.

Convictions on the attempted murder charges could be used against Davis and facilitate a death penalty sentence, Benito said.

With witnesses and ballistics linking Davis to the deaths, prosecution should not be problematic, Benito said. If Davis were to take an insanity defense, Benito said, he would face a tough fight.

To win a not guilty by insanity verdict, Davis would have to prove that he did not know right from wrong. When a criminal leaves the scene of a crime, that helps to show that he knew what he was doing was wrong, Benito said.

A plea deal, he said, seems unlikely in this case.

"If the evidence is there to present this case," Benito said, "I assume any prosecutor in Polk County is going to go after this full bore."


Reporter Thomas W. Krause can be reached at (813) 259-7698 or tkrause@tampatrib.com.

Some decry N.J. death penalty abolition

By TOM HESTER Jr. Associated Press Writer
Article Launched: 12/18/2007 12:23:20 AM PST


TRENTON, N.J.—The New Jersey Public Defender's Office said Tuesday it won't challenge Gov. Jon S. Corzine's decision to commute the death sentences of eight men now that the state's death penalty has been abolished.

The office had questioned whether Corzine had authority to do that because the penalty of life imprisonment without chance of parole didn't exist when the men committed their crimes. But spokesman Tom Rosenthal said legal research has shown that the governor does have the authority.

Corzine commuted the sentences Monday as he signed a law making New Jersey the first to abolish the death penalty in more than 40 years. Relatives of those killed by the eight had worried that if the commutations were overturned, it could open the door to at least some eventually getting released on parole.

Rosenthal said federal case law related to the 2003 decision by then-Illinois Gov. George Ryan to commute death sentences of all 167 inmates on that state's death row to life in prison indicated governors have authority to do so and Corzine's move would be upheld.

"We wouldn't prevail, so we won't be pursuing that," said Rosenthal, whose office represents the eight men. He said that means the men who sat on death row will spend the rest of their lives in prison.

Even without a court challenge, the action could still have political effects.

Marilyn Flax, whose husband was abducted and murdered in 1989, vowed to work against Corzine and the lawmakers who voted last week to abolish the death penalty.
"I will make sure my voice is used and they are not re-elected," she said.

John Martini Sr., the man who killed Flax's husband, is among the eight men whose sentences were commuted.

Another of the eight is Jesse Timmendequas, the sex offender who murdered 7-year-old Megan Kanka in 1994. The case inspired Megan's Law, which requires law enforcement agencies to notify the public about convicted sex offenders living in their communities.

Megan's father, Richard Kanka, is still hopeful the men won't see old age. "The only thing we can really hope for is somebody in jail will knock off these guys," he said.

The New Jersey Constitution gives the governor authority to "grant pardons and reprieves in all cases other than impeachment and treason."

New Jersey reinstated the death penalty in 1982—six years after the U.S. Supreme Court allowed states to resume executions—but hasn't executed anyone since 1963.

Corzine said he was moved by passionate views on both sides, but believes eliminating capital punishment "best captures our state's highest values and reflects our best efforts to search for true justice."

A recent Quinnipiac University poll showed New Jersey voters supported keeping the death penalty by 53 percent to 39 percent. The telephone poll of 1,085 voters was conducted from Dec. 5-9 and had a sampling error margin of plus or minus 3 percentage points.

The bill passed the legislature largely along party lines, with controlling Democrats supporting the abolition and Republicans opposed. Republicans unsuccessfully sought to retain the death penalty for those who murder law enforcement officials, terrorists and those who rape and murder children.

The nation's last execution was Sept. 25 in Texas. Since then, executions have been delayed pending a U.S. Supreme Court decision on whether execution by lethal injection violates the constitutional ban on cruel and unusual punishment.

———

On the Net:

Death Penalty Information Center: http://www.deathpenaltyinfo.org/

Pro-Death Penalty: http://www.prodeathpenalty.com/

Amnesty International USA: http://www.amnestyusa.org/

Number of Executions Falls to 13-Year Low

By Robert Barnes
Washington Post Staff Writer
Tuesday, December 18, 2007; 2:33 PM

The number of executions in the United States hit a 13-year low in 2007, mostly because of a de facto moratorium on the death penalty prompted by challenges to the use of lethal injection, according to a report by an anti-death-penalty information group.

There were 42 executions in 2007, down from 53 last year and the lowest number since 31 people were put to death in 1994, according to the Death Penalty Information Center.

The most immediate reason is the court challenges across the nation that focus on the constitutionality of the chemical used in lethal injections by all but one of the 36 states that have the death penalty.

There have been no executions since Sept. 25, the day the Supreme Court agreed to hear a challenge from two Kentucky death row inmates that the procedure is a violation of the Eighth Amendment's protection against cruel and unusual punishment. The report said that more than 40 executions across the country were stayed because of concerns the procedure can be more painful than once thought.

The Supreme Court is scheduled to hear arguments in the case Jan. 7.

Richard Dieter, the Death Penalty Information Center's executive director, said that while the lethal injection challenges were the immediate cause of the slowdown, "the pattern over the years is broader than that."

For instance, the group estimated at 110 the number of death sentences imposed in 2007, the fewest since the death penalty was reinstated in 1976. It is the latest in a series of what Dieter called "historic lows," since the number of death sentences peaked in 1999 at 277.

A reassessment of the efficiency of capital punishment also is underway across the country. This week, New Jersey became the first state to abolish the death penalty in more than 40 years. The eight men on death row saw their sentences commuted to life in prison without parole. There had not been an execution in the state since 1963.

Legislatures in five states, including Maryland, have looked closely at whether they should abandon capital punishment in favor of sentences of life without parole. New York's legislature has failed to reimpose the death penalty after its law was found unconstitutional.

The report showed that the death penalty has become a regional phenomenon. Nearly 9o percent of the executions this year were carried out in the South -- 26 of the 42 in Texas alone. But even some states that are among the leaders in capital punishment, such as Virginia and Florida, had no executions in 2007.

There are now about 3,350 death row inmates across the country, according to the Death Penalty Information Center's estimates. The largest number of executions since capital punishment was reinstated in 1976 was 98, in 1999.

Kent Scheidegger, a prominent death penalty proponent who is legal director of the Criminal Justice Legal Foundation, said the number of death sentences is falling because the number of murders is declining. But he acknowledged that such a proportional decline accounts for only part of the decrease.

Dieter said the slowdown in both executions and death sentences is not a "moral" choice but a "pragmatic analysis of the death penalty" by prosecutors and jurors.

Publicity about exonerations of death row inmates -- there were three in 2007, according to the report -- makes jurors more demanding about evidence, Dieter said. The Supreme Court has limited the application of the death penalty and required more painstaking reviews of capital sentences.

The average appeal of a death sentence takes more than 10 years, Dieter said, "and it's not getting any shorter."

'Megan's Law' killer escapes death under N.J. execution ban

'Megan's Law' killer escapes death under N.J. execution ban

Story Highlights

NEW: Child killer Jesse Timmendequas, 46, is now off New Jersey's death row

New Jersey governor signs state ban on executions

Governor: "Government cannot provide a fool-proof death penalty"

Legislation replaces death penalty with life in prison without parole

TRENTON, New Jersey (CNN) -- The man who raped and killed 7-year-old Megan Kanka -- the 1994 crime that inspired "Megan's Law" -- is one of eight men whose sentences were commuted to life in prison this week as part of New Jersey's new ban on execution.

The Garden State on Monday became the first state in more than three decades to abolish the death penalty after a commission ruled the punishment is "inconsistent with evolving standards of decency."

Gov. Jon Corzine the day before commuted the sentences of eight men sitting on the state's death row. They will now serve life in prison without parole, according to the governor's office.

Among the eight is Jesse Timmendequas, 46, who was sentenced to death in June 1997 for Megan's murder.

Prosecutors said Timmendequas lured Megan to his home by saying he wanted to show her a puppy. He then raped her, beat her and strangled her with a belt. A day later, he led police to her body.

"Megan's Law," introduced after her death, requires that authorities notify neighbors when a sex offender moves into an area. Timmendequas had twice been convicted of sex crimes -- on 5- and 7-year-olds -- before he murdered Megan.

In signing Monday's bill, Corzine called it a "momentous day" and made New Jersey the first state to ban capital punishment since the U.S. Supreme Court reinstated it in 1976.

"It's a day of progress for the state of New Jersey and for the millions of people across our nation and around the globe who reject the death penalty as a moral or practical response to the grievous, even heinous, crime of murder," Corzine said.

Society is not forgiving criminals, the Democratic governor insisted, but the law is necessary because "government cannot provide a fool-proof death penalty that precludes the possibility of executing the innocent." Watch Corzine sign the document »

"Society must ask," he continued, "is it not morally superior to imprison 100 people for life than it is to execute all 100 when it's probable we execute an innocent?"

The state Assembly approved the measure Thursday by a 44-36 vote after the Senate OK'd it 21-16.

New Jersey has not executed a prisoner since 1963.

The new legislation replaces the death penalty with life in prison without parole. The bill was introduced in November after a state commission concluded capital punishment was an ineffective deterrent to crime.

Since the Supreme Court's reinstatement of the death penalty, almost 1,100 people have been executed in 37 states. See the death penalty by state »

According to the Death Penalty Information Center, which opposes capital punishment, New Jersey joins 13 states and the District of Columbia that do not use execution as a means of punishment.

CNN's Bill Mears and Mythili Rao contributed to this report.

All AboutCapital Punishment • New Jersey








Find this article at:
http://www.cnn.com/2007/POLITICS/12/17/death.penalty

Q&A with Prison Health Services, Inc.

Company officials would not agree to a telephone interview, but Martha Harbin, PHS's liaison for Florida, responded to the following questions by e-mail.

Almost all news stories involving PHS are negative. Why do you think that is? And what positive stories are the media not writing about?

"It's important to keep in mind that we care for patients who are much sicker and have had much less access to health care than the general population. We are treating a major public health need in Ocala and all of the other communities across the country served by PHS.

"We hear from many former patients and their families who thank us for the care they received while incarcerated. For many, it is the first health care they have received in their adult lifetime. However, patient privacy laws and policies prevent us from sharing their stories with the media.

"We strive to inform the media when we have positive developments such as one of our client jails achieving accreditation from the American Correctional Association or the National Commission on Correctional Health Care at rates substantially higher than non-contracted facilities. Those achievements generally don't attract the attention of the media to nearly the same degree as sensational allegations against the company and corrections in general."



Do you think for a health care provider your size, the number of lawsuits is unusually high, or is it comparable to any other large private health care provider?
"The practice of medicine today is fraught with exposure to lawsuits, but correctional health care cannot be compared to non-correctional health care. We care for patients who are much sicker and have had much less access to health care than the general population with substance abuse rates far higher than the general population.

"We can tell you that over the course of a year, PHS cares for approximately a half a million patients through a conservative estimate of several million patient encounters, yet our rate of lawsuits is 50 percent less than the national average of all correctional health care providers. (Based on 2005 internal litigation statistics and "Prisoner Petitions Filed in U.S. District Courts, 2000, with Trends 1980-2000." Bureau of Justice Statistics, January 2002, available through the U.S. Department of Justice.)"



What are the major challenges of providing medical care at a jail? Is correctional health care comparable to health care outside the correctional institutions?
"The inmate population is much less healthy, with higher rates of chronic diseases like HIV/AIDS, diabetes and alcoholism and other substance addiction, not to mention the high percentage of mentally ill patients who are incarcerated.

"Inmates are also the only people in the United State with a Constitutional requirement to be provided with access to a community-based standard of health care."



How do you explain frequent allegations made by inmates that they are routinely denied legally-prescribed medications by PHS medical staff?
"Patients are not permitted to bring outside medications into the jail for health, safety and security reasons, which is common practice for most, if not all, correctional and non-correction health care facilities.

"We work quickly to verify a patient's prescriptions and once verified, continue to administer that prescription. For patients with life-threatening conditions, such as insulin-dependent diabetes, we continue providing the medication based upon the patient's report and do not wait for confirmation from the patient's outside medical provider. It is in everyone's interest that appropriate medications are provided on a timely and consistent basis since failure to do so may result in a deterioration of the patient's condition and the need for intensive and costly treatment."


Do you think there is adequate oversight regarding the medical care PHS provides in jails? What oversight is PHS subject to and does it vary by jail?
"PHS is subject to extensive contract monitoring, oversight and accountability requirements in all of our contracts. These measures vary by contract [but] may include staffing, operations, and clinical measures of performance as well as compliance with national and state accrediting agencies. For example, in Florida, the Florida Model Jail Standards impose extensive requirements that PHS has a history of meeting on a consistent basis."


Does the company have a high turnover rate among doctor and nursing staff? Is it difficult to recruit staff?
"On the contrary, we have a comparatively low turnover rate for the medical field. With the increased paperwork and approval demands imposed by managed care, it is increasingly easier to recruit extremely talented staff who desire to practice 'real' medicine as opposed to the fiscal constraints of managed care. In addition, our doctors are staff, as opposed to contractors, and in addition to a number of benefits, we provide medical malpractice insurance, which is very attractive to many doctors who find it increasingly difficult to operate a profitable private practice."


Can you give us an estimate of dollars the company spends on defending or settling lawsuits? Are lawsuits a big concern for the company?
"A greater concern for the company is holding down the amount we have to pay in medical malpractice insurance, which is one reason - in addition to the moral and ethical reasons - why PHS insists on providing the most appropriate care to our patients. PHS has refused to accept contracts in which we believed that the client had budgeted too little to provide adequate care."


Critics have said that private companies like PHS boost profits by "cutting corners" and providing less-than-adequate care to inmates. How do you respond?
"That's not true. Like all health care providers, including public and private hospital systems, PHS consistently works to improve efficiencies and manage costs to be good stewards of taxpayer dollars. However, providing less-than-adequate care would expose us to increased malpractice awards. We cannot control how many patients file suit but we can control our exposure to malpractice awards by providing health care that matches the community standard of care.

"Also, PHS is a subsidiary of ASGR, a publicly traded company. Unlike privately owned and non-profit health care providers, our executive compensation and corporate performance is available to the public through our SEC filings."


PHS FACTS
Prison Health Services, Inc. was established in 1978 in Delaware.

Today, it is a wholly-owned subsidiary of Brentwood, Tennessee-based America Service Group, Inc.

ASGR reported $6.8 million in net income for 2007 and an estimated $550 million in total revenue.

Today, the company is one of the largest private providers of correctional health care in the nation, serving 14 percent of outsourced correctional health care. The company served 23 percent of the outsourced market in 2005.

PHS has more than 4,700 employees at 69 institutions - city and county jails, and state prisons - covering close to 165,000 inmates.

Florida, where PHS has contracts with 23 correctional facilities, is PHS's third largest market. It serves 35 facilities in Pennsylvania and 32 in Alabama.

Source: www.prisonhealth.com; www.asgr.com