Supreme Court weighs Arkansas lethal injection rules

By: Associated Press – Texarkana Gazette -

Published: 10/09/2009

LITTLE ROCK—The Arkansas Supreme Court listened Thursday as lawyers argued whether a new law fulfills its aim by clarifying the state’s lethal injection procedures or puts death-row inmates at greater risk of suffering unconstitutional harm.

A federal public defender for death-row inmate Frank Williams Jr. claimed the new law puts additional mental stress on all condemned inmates, and public defender Josh Lee claimed it strips away regulations that required the state prison system to use a three-drug cocktail approved by the U.S. Supreme Court.

“Under the new statute, we have no way of knowing what procedure will be used,” Lee said. Without that oversight, he said the risk of botched executions grows. He mentioned a recent Ohio case where an inmate undergoing a failed lethal injection wept as executioners stuck him with needles as many as 18 times.

Nevertheless, the justices’ questioning appeared to give the state an edge.

Justin Allen, the state’s chief deputy attorney general, said there would be no repeat of the Ohio case in Arkansas. Allen said the new law passed by the Legislature this year made public the amount and kind of drugs used by executioners and that the state’s prison director couldn’t use “rat poison” or anything else to execute prisoners, as he would be subject immediately to a federal lawsuit.

“As a practical matter, Larry Norris or any other prison director would be out of his mind not to follow” the law, Allen said.

Justice Robert L. Brown said he agreed with Allen’s point, one of the few moments that indicated what the justices thought.

The justices gave no indication of when they might rule.

Federal public defenders representing Williams filed the lawsuit in 2008, as their client faced a scheduled execution. They argued the state prison system had altered its execution protocols without following a requirement that state agencies offer notifications and hold public hearings when they change administrative rules.

A lower court judge issued an injunction halting Williams’ execution and the case quickly made its way to the state’s highest court. While there, lawmakers passed a law freeing the state prison system from following the public notification and hearing rule when it came to execution

Arkansas Supreme Court reinstates felony conviction of former prosecutor

By John Lyon
Arkansas News Bureau

LITTLE ROCK — The state Supreme Court today reinstated the felony manslaughter convictions of a former prosecutor who killed an elderly couple in a head-on car crash in Perry County.

The state’s highest court overturned an Arkansas Court of Appeals ruling that threw out Vance Benton Rollins Jr.’s two felony manslaughter convictions in connection with a March 22, 2006, accident that killed Lawrence Humphries, 76, and his 69-year-old wife, Nina.

Rollins, a former Ouachita County deputy prosecutor and Camden city attorney, was sentenced to eight years in prison for the crash, but in February the Court of Appeals modified his conviction from two felony counts of manslaughter to two misdemeanor counts of negligent homicide and reduced his sentence to one year in jail.

The appeals court said prosecutors never proved their assertion that Rollins was impaired by drugs at the time of the crash, only that he was driving badly.

The state appealed, and in a 6-1 decision Thursday the Supreme Court reversed the appeals court and reinstated Rollins’ felony convictions and eight-year prison term.

In the majority opinion written by Justice Elana Cunningham Wills, the court said according to evidence presented at Rollins’ trial, hydrocodone and acetaminophen pills and pipes that tested positive for cocaine residue were found in Rollins’ vehicle after the crash. Also, blood tests detected small amounts of Zoloft and cocaine in Rollins’ system.

A forensic toxicologist testified at the trial that she could not be certain Rollins was impaired. Asked how long the drugs would have to be in a person’s system before blood tests could no longer detect them, the toxicologist said it would take over eight hours.

The jury could infer from the testimony that Rollins had taken drugs within eight hours of getting behind the wheel, the Supreme Court said. That inference, combined with witnesses’ statements that Rollins was driving erratically before the crash, could support a finding that Rollins recklessly caused the Humphries’ deaths, the court said.

“While no evidence was presented of Rollins’ level of impairment or intoxication from ingesting cocaine, we note that such evidence is not necessary to sustain a conviction for reckless manslaughter,” Wills wrote in the majority opinion. “Rather, the state needed only to prove that Rollins recklessly caused the death of another person.”

Chief Justice Jim Hannah wrote in a dissenting opinion that he believed the Court of Appeals’ ruling should be upheld.

Because the state did not establish that Rollins was intoxicated, the issue of driving under the influence was “a closed question,” and all that remained of the state’s case was evidence of bad driving, which falls under the legal definition of negligence, Hannah said in his dissent.

“The majority rewrites the statute and judicially creates criminal liability for manslaughter contrary to the elements of the crime set out in the statutes enacted by the General Assembly,” Hannah wrote.

North Carolina Judge’s Decision to Set Aside Guilty Verdict Upheld By Appeals Court

In November 2007, a Guilford County jury found Mary Elizabeth Roach guilty of felony child abuse inflicting serious bodily injury and first-degree murder.

Roach had been baby-sitting 3-year-old Hailey Rae Resch two years earlier when the child stopped breathing. Paramedics were unable to revive her.

An autopsy by the Office of the Chief Medical Examiner found an array of injuries: five subgaleal hematomas; bilateral ubdural neomembranes; contusions on the head, torso, and extremities; and bilateral retinal hemorrhages. Medical experts later testified that Hailey had experienced a subdural hematoma sometime in the weeks preceding her death.

Suspicion focused on Roach, who was indicted, prosecuted and convicted — at which point her attorneys asked the judge, John O. Craig III, to set aside the verdict.

Craig did exactly that, citing insufficient evidence to substantiate the jury’s verdict.

The unusual action stunned prosecutors, the victim’s family and courtroom observers.

The state appealed.

Yesterday, a three-judge panel of the N.C. Court of Appeals backed Craig’s decision in a unanimous ruling.

Read the entire story by Doug Clark by click here.

Pay Check Loans Constitutional?

Some have wondered if the wildly high interest rates charged for pay check loans violate constitutional usury limitations. Apparently not. Judge Barry Sims found the 1999 law to be constitutional. However, his decision will be appealed to the Arkansas Supreme Court…with 400 % interest.

More here.

Discredited Bullet Evidence May Overturn 1995 Conviction

The Washington Post and 60 Minutes have this story:

Former Baltimore police sergeant James A. Kulbicki stared silently from the defense table as the prosecutor held up his off-duty .38-caliber revolver and assured jurors that science proved the gun had been used to kill Kulbicki’s mistress.

“I wonder what it felt like, Mr. Kulbicki, to have taken this gun, pressed it to the skull of that young woman and pulled the trigger, that cold steel,” the prosecutor said during closing arguments.

Prosecutors had linked the weapon to Kulbicki through forensic science. Maryland’s top firearms expert said that the gun had been cleaned and that its bullets were consistent in size with the one that killed the victim. The state expert could not match the markings on the bullets to Kulbicki’s gun. But an FBI expert took the stand to say that a science that matches bullets by their lead content had linked the fatal bullet to Kulbicki.

The jurors were convinced, and in 1995 Kulbicki was convicted of first-degree murder in the death of his 22-year-old girlfriend. He was sentenced to life in prison without the possibility of parole.

For a dozen years, Kulbicki sat in state prison, saddled with the image of the calculating killer portrayed in the 1996 made-for-TV movie “Double Jeopardy.”

Then the scientific evidence unraveled.

Earlier this year, the state expert committed suicide, leaving a trail of false credentials, inaccurate testimony and lab notes that conflicted with what he had told jurors. Two years before, the FBI crime lab had discarded the bullet-matching science that it had used to link Kulbicki to the crime.

Now a judge in Baltimore County is weighing whether to overturn Kulbicki’s conviction in a legal challenge that could have ripple effects across Maryland. The case symbolizes growing national concerns about just how far forensic experts are willing to go to help prosecutors secure a conviction.

“If this could happen to my client, who was a cop who worked within this justice system, what does it say about defendants who know far less about the process and may have far fewer resources to uncover evidence of their innocence that may have been withheld by the prosecution or their scientific experts?” said Suzanne K. Drouet, a former Justice Department lawyer who took on Kulbicki’s case as a public defender.

Prosecutors are fighting to uphold Kulbicki’s conviction, arguing that there is still plenty of evidence that proves his guilt.

The entire story is at the Washington Post. (You have to register but it is free.)

Developers Sue City of Harrisburg

Two developers said they are out nearly $1 million after they built homes at the city of Harrisburg’s request, but the city hasn’t installed the water and sewer lines.

Tom Ford and Charles Dunham, who own Ford/Dunham Subdivision, are suing the city of Harrisburg, the mayor and the city council alleging breach of contract, fraud and intentional infliction of emotional distress. The developers are seeking nearly $8 million in damages in Poinsett County Circuit Court.

In 2006, city of Harrisburg officials asked Ford to build moderately priced homes in a section of Harrisburg, according to the lawsuit. In exchange, the city would install water and sewer lines to the homes.

After four homes were built, at a cost of $258,000, the city then backed out of supplying the utilities, the lawsuit said.

“The refusal of the Defendants to honor the agreement has made the constructed residence virtually unsellable and uninhabitable,” the lawsuit said.

Read the whole story at Arkansasbusiness.com.

Improper Proof of Prior DWI

The issue has arisen in a DWI 2nd trial where an Arkansas prosecutor attempted to prove the prior DWI with a certified print out from Driver Control showing the first DWI. Is this proper?  While the Supreme Court hasn’t addressed the issue, it presents two problems.

First, the certified print out from Driver Control is not the same as a court record or transcript so it would not be as accurate and would not show everything that happened at court.

Second, the printout, while certified, would not overcome a proper hearsay objection.

Thirdly, the Driver Control document would not show whether the accused had an attorney or had waived counsel at the previous DWI proceeding. Arkansas law requires that for a prior DWI to be admitted as evidence in a subsequent proceeding, the State must prove the accused was represented by counsel or that counsel was waived.

Johnson v. State overruled

Overturning a previous ruling and rewriting (clarifying?) Rules 6.1 and 7.1 of the Arkansas Rules of Criminal Procedure, the Arkansas Supreme Court issued this per curiam order.

Dismissal does not bar future prosecution

The dismissal of a charge against a person does not bar future prosecution of the same offense, the Arkansas Supreme Court ruled Thursday.

In reversing an Arkansas Court of Appeals decision, the high court said a Boone County circuit judge was correct to deny Christopher Branning’s motion to dismiss a second-degree stalking charge on double-jeopardy grounds.

Branning was convicted of the charge and several others in 2005 and sentenced to 10 years in prison.

The state, which initially decided not to prosecute, was free to bring charges later, the high court said in a unanimous decision.

Branning was arrested in 2003 and charged with harassing communications, terroristic threatening, carrying a weapon and second-degree assault, all misdemeanors.

In 2004, he pleaded guilty in Boone County District Court to carrying a weapon and second-degree assault. The other charges were dismissed.

In 2005, he was charged in circuit court with second-degree stalking, first-degree criminal mischief, criminal trespass and two counts of first-degree terroristic threatening, all felonies, and a misdemeanor violation of a protective order.

A jury later found him guilty and sentenced to 10 years in prison.

In his appeal, Branning argued that the charges that were dismissed in 2003 were used as the basis for the 2005 second-degree stalking charge.

The Court of Appeals agreed and reversed and dismissed the second-degree conviction.

The state appealed to the Supreme Court, arguing that the high court has ruled previously that the state could refile a charge that had been dismissed earlier.

The Supreme Court on Thursday agreed, and also upheld the circuit court’s denial of Branning’s motion to dismiss. He had argued that he did not get a speedy trial.

Link to original story.

Illinois Supreme Court Requires FRYE Hearing for HGN Test Admissibility

Read entire opinion here.