Seeking an Absolute Pardon for Byron Case: Rejoinder #1

Sometimes a person posting anonymously will actually add a personal identifier such as Mike, Airborne Juror, or AnonXYZ. Sometimes not.

Anonymous has been commenting on my three part series Seeking an Absolute Pardon for Byron Case. Though he (for I suspect the commentor to be male) adds no unique identifier, I believe the same Anonymous added four comments to the last of my three posts in that series.

Anonymous argues that my first three (out of twelve) time-of-death indicators are factually wrong. Anonymous also questions my description of Kelly Moffett as an embittered ex-girlfriend. I will rejoin the comments via four posts: one post for each of the three time-of-death indicators being challenged and one post for my description of Kelly Moffett as an embittered ex-girlfriend.

As a quick refresher, I begin by re-posting my summary plot for the 12 time-of-death indicators.

Note that I am not attempting to determine a specific time-of-death. That would not have been possible even immediately after the body was discovered, even if the medical examiner investigator had performed his job properly. All that can be hoped for is to narrow the time-of-death window.

In the analysis I submitted to Governor Nixon, I attempted only to narrow the time-of-death window as being closer to sunset or closer to midnight. Kelly's story demands that Anastasia was murdered close to sunset. I'll leave you read to the original post to understand why that is so. In severe contradiction to Kelly's implicit timing of the murder, I believe that Anastasia was murdered close to midnight. I believe the twelve time-of-death indicators I've described support that belief. The time-of-death indicators are in fact the source and cause of my insistence that Anastasia died closer to midnight than closer to sunset.

An interesting twist to this time-of-death issue is that Byron happens to have an alibi near midnight. He was at his home talking to Kelly Moffett on the phone. Kelly Moffett, Byron's sole accuser, volunteered this information early in the investigation and never disputed it. Byron volunteered the same information, without realizing that the time-of-death might become an issue more than a decade later. Byron's utterly inept public defender did not recognize even a single time-of-death indicator, much less twelve, that falsified the claims of Byron's sole accuser.

In any case, if Anastasia was killed closer to midnight, then no one killed Anastasia around sunset as Kelly claims Byron did. Furthermore, Byron did not kill Anastasia near midnight because Byron was at home, as sworn to by Byron, by his mother, and by his sole accuser.

With the preliminaries now out of the way, I present the relevant comments from Anonymous, and my one response to them so far. I abbreviated the comments to isolate the discussion to time-of-death issues, but I did not alter them in any other fashion.

Anonymous Comment First

In your letter, you include statements and testimony of three people who placed Anastasia at the scene at about 9pm, which should be proof that Byron didn't kill her at the time claimed. Yet in your book you accept without question that these people were mistaken as to the time they saw them. Why use these to make a false claim? 

In your book you accept that they were wrong and that the time was closer to 7pm, and then in your letter say it was 9pm, as if they were absolutely correct. This seems to me an unwise strategy to offer evidence that can so easily be contradicted. If the Governor's Office actually reads everything you submitted, they will catch the contradiction, and it might harm the rest of your argument. 

Wouldn't it have been better to concentrate on your strongest arguments and leave such weaker links out?

My Response

I don't believe I accepted without question that three witnesses were mistaken about seeing Anastasia around 9 PM. The prosecutor certainly challenged their claim, and I had the fictional jury attempt to reconcile the witness claims with the prosecutor's challenge. ... 

I note that you criticize my style rather than the substance of my argument time-of-death argument. I'll acknowledge shortcomings in my approach until the cows come home. I maintain, however, that a dozen time-of-death indicators argue against Kelly's version of events, and none argue in her favor.

Anonymous Comment Second

I went back to the online transcript of the trial to be sure of this before writing, so I believe I'm now criticizing your substance. 

Byron Case told police in his first statement that they met Anastasia at the Dairy Queen at about 6pm. While he admitted to having a "horrible" memory, his other statements give weight to a much earlier time than 9pm. 

He testified that he thought he got Kelly to her home before 9pm. Kelly's mother testified that is was a little after 9pm, but still close to his statement. Byron testified it was about 30 minutes after leaving Anastasia that they got to Justin's condo, and that they spent 20-30 minutes playing video games at Justin's condo. They then visited a friend before they drove her home. That friend testified that they visited him about 8:30, which places them near the scene at 7:30 or earlier. 

Byron Case's website has a timeline of events which disagrees with his testimony, and places it even earlier. 

I believe that your first three pointers are wrong.

Anonymous Comment Third

Same person as before posting. I wanted to make clear that I'm not trying to start a fight, but that I am sincerely concerned about your first three time-of-death indicators. You offered these in your letter quite confidently. I have never dealt with this issue as directly as you are, but I did once help a friend prepare a petition on behalf of another to the Governor, and I have some understanding of the process. 

The Governor of Missouri is not the person who will initially read the petition. He will be advised by members of the Department of Corrections first, and they are not a sympathetic body, nor will they accept your statements without great skepticism. 

I think it would have been better to go with the best and hardest to challenge arguments, and not even include ones that might be challenged. I fear that if they find these first three easy to refute, they might use them as a cause to ignore or marginalize ALL of them.

Anonymous Comment Fourth

All that is great information, but is not really applicable to this particular case, and does not address the questions posted earlier. 

1. The first three time of death indicators that were presented can be proven false. Why were they used in the first place? 

2. What is the proof that Kelly Moffett was an "embittered" and "scorned" ex-girlfriend, when both her and Byron's testimony indicates that she broke up with him long before she accused him of murder? 

While the truth may set you free, I'm afraid that it will take PROOF in Byron's situation.

I now repost my original argument supporting the first time-of-death indicator. That time-of-death indicator consists of the recollection of Dawn Wright as preserved in her police statement and her trial testimony. Dawn Wright was a Dairy Queen employee who interacted with Anastasia well after sunset, well after the time when Kelly claimed Anastasia was killed.

My Summary To Governor Nixon Regarding Dawn Wright

Dawn Wright was working at the Dairy Queen while Anastasia sat there waiting for Justin, Byron, and Kelly to arrive. She gave an interview just two days later to Detective Gary Kilgore. In a commendable act of evidence preservation, Detective Kilgore recorded that conversation after informing Dawn Wright that he would be doing so. I offer the following segment from Detective Kilgore's transcription of his recording. Dawn Wright is speaking of Anastasia.

She kinda seemed nervous, a little bit upset. And I asked her what was wrong. She goes well ... I have plans with my boyfriend tonight, and ... I lost my ride over there. So I called him to see if he can come pick me up, and he said that he had already made plans with his best friend. She goes, now if that was you and he told you that, what would you do? I said well, I'd ask him what's more important, me or your friend? She goes, well I asked him that, and he said ... that his best friend didn't want me there. ... I said, well I think that you should tell him that he's an asshole and not call him for a couple days. ... I think it was about 9:00, I'm not for sure. It was about 9:00 or so and, uh, I seen her, she ran outside because three people had pulled up. There was two guys and a girl. ... I'm thinking [she arrived] anywhere between 8:00 to 9:00, cause she was here for about a half an hour before we closed, and we close at 10:00.

From Dawn Wright's trial testimony, I offer the following transcript segments.

It was in the 9 o'clock vicinity [that she left]. Whether it was 9 PM or 9:45 PM, I'm not sure. But it was in the 9 o'clock vicinity, because we was getting ready to close within an hour, and we start our closing procedures an hour early down there.

Dawn Wright unequivocally places Anastasia alive in the Dairy Queen well after sunset. Whatever events would then lead to Anastasia's death had not yet occurred. Dawn Wright's statement and testimony therefore places Anastasia's death more likely near midnight than near sunset. 

Furthermore, Dawn Wright's statement and testimony absolutely impeaches Kelly's testimony by placing Anastasia alive more than a hour after the end of civil twilight.

I informed Governor Nixon that Dawn Wright placed Anastasia Witbolsfeugen in the Dairy Queen near Mount Washington Cemetery between 9 and 9:30. Kelly Moffett, on the other hand, claimed she witnessed Byron shoot Anastasia with a shotgun near sunset that same day. I informed Governor Nixon that Dawn Wright made her claim both in her police statement soon after the shooting and in her trial testimony years after the shooting.

Anonymous claims that I am factually in error regarding this specific time-of-death indicator, and two others. While Anonymous points to other timeline events, which I will address in the next post, Anonymous does not present any evidence related to Dawn Wright's statement or testimony to show that I was wrong.

I have therefore reviewed, once again and many times previously, Dawn Wright's police statement and her trial testimony. After that review, I stand by my letter to Governor Nixon as written. I offer Dawn Wright's entire police interview below to further substantiate my summary.

I offer also the entire portion of Dawn Wright's trial testimony regarding the timing of the event. I note that Dawn Wright testified for the defense and that, significantly, the prosecutor did not challenge Dawn Wright's testimony that she interacted with Anastasia several hours after Kelly claims to have witnessed Anastasia murdered.

First, Dawn Wright's entire police statement, as recorded and transcribed by lead investigator Sgt. Gary Kilgore. The ellipses are in the original. It seems as if Sgt. Kilgore used them to indicate an interruption or a pause, rather than an exclusion. The ellipses do not indicate that I excluded anything from Dawn Wright's statement.

Dawn Wright's Police Statement

STATEMENT GIVEN BY: Dawn Wright   CASE NO.: 997-11829 

The following is an interview with Dawn Wright. The interview was conducted on 10/24/97 starting at approximately 1620. 

Q. State your name, please? 

A. Dawn Rene Wright. 

Q. Your date of birth, Ms. Wright? 

A. 2/4/77. 

Q. Your address? 

A. [Redacted] 

Q. Telephone number? 

A. [Redacted] 

Q. Ms. Wright, where are you employed? 

A. Dairy Queen. 

Q. And the address of that? 

A. 9338 Winner Road. 

Q. Were you working at Dairy Queen on Wednesday evening? 

A. Yes. 

Q. When I first contacted you, I showed you a photograph of a young lady and asked you if you did recognize her, and you responded by yes, you did. 

A. Yeah. 

Q. Where do you recognize this young lady from? 

A. She was down here Wednesday night. She was waiting for a ride. And she asked to use the restroom and then she come back out here and asked me for a feminine napkin, and I told her I didn't have one. So my husband brought down one. So I handed it to her and she started talking to me. And she had a . . . 

Q. Your husband brought down? 

A. A pad, a maxi-pad, a feminine napkin. 

Q. Okay, you contacted your husband, does he work here also? 

A.. No. 

Q. You called him a t home? 

A. Yeah. He never come in. He never even seen her. He just handed it to me. She had started her period and she didn't have anything, so I called my husband, I only live a couple of minutes away, so he brought one down. 

Q. Okay. You had never met her before, correct? 

A. No . No I haven't. Uh, she kinda seemed nervous a little bit upset. And I asked her what was wrong. She goes well, do you mind if I ask you a question? She said, this is really going to sound pretty weird. I said well, no, if you need somebody to talk to, let me know. I do it all the time to people, too. And she goes well, uh, I have plans with my boyfriend tonight, and I didn't, I lost my ride over there. So I called him to see if he can come pick me up, and he said t hat he had already made plans with his best friend. She goes, now if that was you and he told you that, what would you do? I said well, I 'd ask him what's more important, me or your friend. She goes, well I asked him that, and he said that he didn't, that his best friend didn't want me there. And I said well, you know, then I think you should tell him ... may I cuss? 

Q. Whatever. 

A. I said, well I think that you should tell him that he's an asshole and not call him for a couple days. And she said yeah, I think that might be a good idea. And uh she just you know, kinda sat there for a minute. She goes, one more thing. I said what's that? She goes, can I use your phone? I said well, it's not a public phone, so she went back out there and she used the phone again and I went outside to smoke a cigarette, and this, I think it was about 9; 00, I'm not f or sure. It was about 9: 00 or so and uh I seen her, she ran outside because three people had pulled up, there was two guys and a girl. 

Q. What kind of car? 

A. Uh, I didn't see the car. I just seen them walking by. It was a long car. I didn't see the color, it was dark outside. Uh, but she ran outside with them and I got ready to tell her bye, and she was walking with her hands in front of her like that with her head down and they just walked around the corner. That. was the last that I had seen of her. 

Q. Okay , was, did these people in the car get out? 

A. Yeah, they all three had started walking up to the door and she met them outside. Finally , in the middle of that window right there, in the middle. of that window. 

Q. You say you saw these three people? 

A. Yes. 

Q. Could you describe them for me? 

A. Uh, one was wearing a black long, it might have been dark green, but it was a trench coat, kinda had uh you know, hair to right here. I think. 

Q. About collar length? 

A. Yeah. And it was you know, just straight. And uh the girl I don't, I think she had dark hair, I think it was short, I 'm not for sure. And the other guy just had short hair and they were just all wearing dark clothes. 

Q. Was anyone of them wearing glasses? 

A. No, I don't remember. I, the one that did catch my attention was the guy that had the kinda long hair and that was wearing the trench coat. Because that's the one that she was talking to and they looked like, you know, they were arguing. I couldn't hear what they were saying, but they were arguing. And she was pretty upset with him when she did leave here. 

Q. And when you saw them talking out there, then where did they go? 

A. Back around the building. and over to this side and that's where the car was, it was right over here. 

Q. That would be in the front of the building? 

A. Yes. 

Q. And did you see t he car did you say? 

A. It was a long car. I couldn't see. 

Q. Okay, when you say a long car? 

A. Kinda like that, like an Impala long, an older. 

Q. Two doors? 

A. Four doors. I think it was four doors. I 'm not for sure. I am really not for sure. 

Q. Okay, if you're not for sure then . . . Light color, dark color? 

A. Mmm, I'm wanting to say blue, but I don't know, cause it was dark and the lights over here don't really work well. 

Q. And they all got back in the car? 

A. All I seen was just them walk over beside the building and uh I come in at that time and that was it. I don't know if they all had gotten in the car or, I'm pretty sure she did, because that was her ride, to wherever she was going. 

Q . Okay. Did you see which direction they went? 

A. No. 

Q. Had you ever seen this girl before? 

A. Yes, that was the girl that came in here Wednesday night. 

Q. No, I mean before Wednesday night. 

A . No. 

Q. That was the first time you ever talked to her? 

A. Yes. 

Q. Did you not think it a little unusual for her to ask for a feminine napkin? 

A. No. I didn't think i t was unusual because you know, it's just nature when you start your period, you know, you don't know when it's going to start. And I mean, I've done it, so I didn't find it unusual.

Q. Did she say anything else about her friends? 

A. No, just her boyfriend. 

Q. Just her boyfriend. Do you 'remember, did she call him by name? 

A. No. 

Q. Okay . And anything other than what you've already told me, can you remember now? 

A. Just she seemed really nervous like, you know, like jittery and you know, kinda like she was mad, but I can't explain it. You know, it was just like she was just sitting there doing things like that, I don't. 

Q . Did she give you any indication that anything bad was going to happen or she anticipated anything bad? 

A. She just seemed really, what's the word I 'm looking for? Just real nervous, jittery, you know, like uh when you get into an argument with somebody and you don't want to argue, and you're afraid of the outcome or what's going to happen, you know, whether they're going to leave you or you know, you get real nervous and real worried. That's how she was. Now I don't know if that's what she was thinking, but that 's, you know, that's the only thing I can relate the way she was acting to. 

Q. About what time did you say she got here? 

A. I'm thinking anywhere between 8:00 to 9:00, cause she was here for about A half an hour before we closed, and we close at 10:00. 

Q. And did she say anything about where they might be going? 

A. No. No, she didn't. 

Q. Anything else at all that you can remember? 

A. No. She went out and used the pay phone quite a few times. 

Q. About how many times? 

A. I 'd say about four. 

Q. Okay, did she make any comments on who she called? 

A. Uh, her ride, that's what she kept saying, And then when her boyfriend got there, you know, she said that her boyfriend was supposed to be coming picking her up. 

Q. She mention anybody other than her boyfriend that she was calling? 

A. No. 

Q. Anything else at all? 

A. That's the only thing. That's it. And I just. I can't believe it. 

Q. You are aware our conversation is being tape recorded? 

A. Yes, I am. 

Q. End of interview.

Dawn Wright's Trial Testimony
I won't post Dawn Wright's testimony in its entirety. I will post, however, the entirety of the sole segment in which she mentioned any time whatsoever, either during direct or cross examination. Recall that this testimony was offered on direct as a defense witness, and it was not challenged during cross-examination by the prosecution. In other words, no one disputed Dawn Wright's timing of her interaction with Anastasia.

Q. When her ride did finally show up, do you remember how many people were there that picked her up? 

A. I'm pretty sure there was three. 

Q. And three people. Do you remember guys, girls? 

A. Two guys and a girl. I remember they were all wearing dark clothing. They looked gothic, I guess you could say. 

Q. Do you remember, there were two guys and a girl? 

A. Yeah. 

Q. Can you remember about what time it was these people picked up the young lady? 

A. It was in the 9 o'clock vicinity. Whether it was 9 p.m. or 9:45 p.m. I'm not sure, but it was in the 9 o'clock vicinity, because we was getting ready to close within an hour, and we start our closing procedures an hour early down there.

And that, ladies and gentlemen is that.

If anyone can find any evidence in Dawn Wright's police statement or trial testimony that she did not claim to see Anastasia alive between 9 and 9:30 PM, please point that out.

If anyone can find any other Dawn Wright statement or testimony segment that shows Dawn Wright did not see Anastasia alive between 9 and 9:30 PM, please point that out.

Since Kelly's timing of events demands that the murder occurred around sunset (she even testified to that effect), the Dawn Wright's police statement and trial testimony contradicts Kelly's claims. Since a sequence of events had to take place after Anastasia left the Dairy Queen, Dawn Wright's police statement and trial testimony place Anastasia's time of death to be closer to midnight than to sunset.

To minimize confusion, I ask that comments be limited (for the time being) to the accuracy of my representation of Dawn Wright's police statement and trial testimony. I will invite comments regarding other Anonymous challenges to my time-of-death indicators as I rejoin each of them, one at a time.

The Compliant Juror: Part VI

In Part IV of this series, I defined a compliant juror as one who voted guilty though the State had not proven guilt beyond a reasonable doubt. Also in Part IV, I provided what I believe to be incontrovertible evidence that jurors tend to be compliant.

In Parts I, II, and III of this series, I suggested that jurors tend to be compliant because people (who tend to be the primary constituent of juries) are loath to disobey authority. I relied on the work of Stanley Milgram to show how far most people will go rather than disobey an authority figure.

(In Milgram's experiments, the majority of subjects were willing to apply lethal electric shocks to an individual rather than disobey the authority figure.)

In Part V of this series, I suggested that jurors tend to be compliant also because of confirmation bias. People believe most defendants are guilty, and people tend to believe their government would not willfully prosecute someone who was clearly innocent. Jurors therefore tend to give more weight to the State's evidence than to the defense evidence or rebuttal.

(I realize as I write this summary that my Confirmation Bias hypothesis cannot explain juror surveys in which jurors self report that they voted guilty even though the evidence favored the defendant. Confirmation bias cannot therefore be the sole reason for juror compliance.)

In this post, I offer a third possible source of juror compliance: Self Interest.

In 1776, a busy year for personal and economic freedom, Adam Smith first published An Inquiry into the Nature and Causes of the Wealth of Nations. Smith argued that a free-market economy is superior to a State-controlled economy. Though both categories of economic systems are flawed, particularly when taken to the limit, I believe history has clearly proven Adam Smith to be correct.

Adam Smith turned out to be correct because his preferred economic system embraced, rather than outlawed, each individual's pursuit of his or her own self-interest. In a free market, those who produce something of value are free to sell it to those who want it. The transaction takes place only when both parties mutually agree on a fair price. Neither party can be forced (directly or indirectly by the State) to engage in a transaction against their wish or self-interest.

Smith recognized that when left to their own devices, both the seller and the buyer will pursue their own self interest. The seller will attempt to extract as high a price as possible for his product or service. The buyer will attempt to pay as little as possible. The two will agree to a transaction only when the price is low enough to accommodate the buyer's penny-pinching but high enough to allow the seller to make a profit.  The buyer is always free to forego the product or seek a different seller. The seller is always free to stop manufacturing his product or seek a different buyer.

While we seem to be frequently repulsed by the idea that (other) individuals actually pursue their own self-interest, it is a mistake to presume that people will not do so.

I argue that jurors can have a substantial self-interest in their jury verdict. I argue this is particularly so in emotionally charged cases such as child molestation, rape, murder, and other violent crimes. Jurors clearly cannot be sanctioned by the State in any fashion for their verdict, and in most cases there will be no public approval or disapproval to worry about. Every juror, though, will have to live with the consequence of his or her vote. For some jurors whose moral compass always points to "Don't Care", it won't be an issue. But most jurors (i.e. people) do care. Most jurors want to do what is right. Most jurors don't want to inflict harm upon the innocent. So most people are biased to vote guilty.

To help you understand, I relinquish for a moment the foreperson chair I occupied in my last jury deliberation. The defendant is charged with child molestation.

I suspect you are aware of the common belief that child molesters never stop. If the defendant did molest those children and you find him not guilty, other children will certainly be molested. Can you live with that?

Is it more important that the State cross every "t" and dot every "i", or is it more important that more innocent children not be molested?

This is not an academic game, now that you are sitting in a juror's chair. This is as real as it gets. We're talking about a real defendant and real children. If you don't feel a pit in your stomach, I'm not making my point.

Are you really going to insist on proof beyond a reasonable doubt? Are you going to ignore the young victims who testified he did it? Why would they say such things if it didn't happen?

How are you going to feel if that person walks free because of you? If he molests again, as he is certain to do if he did it before, won't you be partially responsible?

Won't you?

Will it be sufficient comfort to you that you only followed your jury instructions, that you stood by your oath? The State presented some evidence of guilt, but they always present some evidence of guilt. Do you feel so strongly that evidence did not constitute proof beyond a reasonable doubt that you are willing to risk putting a child molester back on the street?

You say you feel that strongly about your oath. Sleep tightly, then. And make sure you never read the local papers. You might find a story you never want to know about.

I'll take possession of the foreperson chair once again. Thank you for the respite.

Some jury members, however, did talk about what would happen if he were acquitted. As foreperson, I attempted to limit that discussion. I reminded them that we were supposed to base our decision only on the facts of the case, nothing more. During one of our four trips back before the judge, I raised that very issue. 

Were we prohibited from discussing the possible consequences of conviction? Answer: yes.

Were we prohibited from discussing the possible consequences of acquittal? Answer: no.

I was dumbstruck, and I believe still that the judge was wrong in his ruling. I have no doubt, however, that jurors are more concerned (particularly in emotionally charged cases) about the consequences of releasing a guilty defendant than they are about depriving a defendant of his constitutional guarantees. The first mistake is palpable and stomach churning. The second is theoretical pie-in-the-sky.

The jurors have a self-interest in being able to live with their verdict, and that self-interest biases them towards a guilty verdict.

So here's a tip on how to use confirmation bias as a powerful emotion-coping tool. However you vote, you can maximize your self-interest by biasing the evidence to confirm your verdict.

The Impending Execution of Charles Lorraine

Charles Lorraine sits on death row awaiting execution by the people of Ohio on 18 January. It is unlikely he will survive the day.

I frequently summarize the factual details of an impending execution by quoting from an appellate decision. For this case, however, I rely on the recommendation report prepared by Ohio's Adult Parole Authority. I have excluded some of the administrative sections entirely, and I have replaced substantial blocks of text with ellipses. I have changed each instance of "Appellant" or "the Appellant" with "Lorraine".

You can view the report in its unaltered format here, or you can read my redacted version that follows immediately.

APPLICANT'S STATEMENT:

On November 29, 2011, an interview was conducted by eight (8) Board Members with [Charles] Lorraine via video conference from the Ohio State Penitentiary. Lorraine shared with the Board that he was sorry for what he had done, takes responsibility for his crime and that he is guilty of the charges against him. He went on to state that he does not know why he killed the Montgomerys and shared that he had known them since he was 12 years of age. When he was younger, Lorraine stated, he used to assist them by cutting their grass and shoveling the snow in their driveway. When Lorraine became a teenager, he started to help the Montgomerys inside of their home and described his relationship with them as friends. Lorraine stated that 25 years later he still has no idea why he killed this couple, commented that they would always give him money when he asked for it, and that he did not have to kill them to get money.

Lorraine also shared that while he was under the influence of drugs and alcohol when he committed the offense, he does not blame the fact that he was under the influence of drugs for his actions. He also shared that he acted completely alone when he killed the Montgomerys, and that there are many aspects to the crime that he cannot recall. He does recall going to the home of Bill Medve, where he stole gloves and a butcher knife. Bill Medve then drove him to the Montgomery home because Lorraine led him to believe that he was going to the home to get some money.

When Lorraine arrived at the home, Doris Montgomery waved from her bed which was located in the living room for him to come inside. When Lorraine was inside the home, he said that he needed to go upstairs and look for a necklace that he had left in their home. It was at this time that Raymond Montgomery followed Lorraine upstairs and assisted Lorraine in looking for the necklace. Lorraine then stated he walked behind Raymond Montgomery and stabbed him multiple times until he fell down on the floor. After this, Lorraine stated he went back downstairs, and Doris Montgomery asked him what had fallen while he was upstairs and then asked for her husband. It was at this time that Lorraine walked behind Doris Montgomery's bed and stabbed her in the throat. He then took a pillow and put it on top of her face. After this, he went outside and saw that Bill Medve was gone so he ran home.

Lorraine also admits to going to the Montgomery home on two occasions on the night of the instant offense. He did not recall when he stole the money and readily admitted that he was fully aware that Doris Montgomery kept her money beside the bed. He knew this because he had stolen from her before.

Additionally, Lorraine admitted that he had originally stolen the gloves and the knife prior to the crime because he knew that he was going to kill the Montgomerys when he went to their home. He also admitted that he had victimized many elderly victims in the past.

Lorraine also stated that he and his friend, Perry Postlewaite, went to the home of another elderly victim and stole her car. Lorraine is not clear if this burglary occurred before or after he had killed the Montgomerys. He does recall going back to the Montgomery home with Perry Postlewaite to take additional items, such as guns and jewelry. Together, they attempted to pawn the jewelry. He sold the guns to his uncle. Lastly, he recalls eating shrimp with his friend Perry.

During his interview, Lorraine stated to the Board that he deserves life without parole because he "is not a killer." He stated that he is asking for clemency and that he would take the execution if he had to. He also pointed out that he felt that he had a fair trial and that his attorneys did what they could to save his life. Lorraine pointed out that he was willing to plead guilty and that he never tried to deny the crime.

In closing, Lorraine stated that he has turned his life over to God and that his pastor and a woman he calls "Grandma Pat" are the most positive people he has in his life. He also indicated that his sister who has cancer is able to visit him once a month. He made it clear again that he was sorry for what he had done and apologized to the niece of the victim, as well as to his own family.

ARGUMENTS IN SUPPORT OF CLEMENCY:

Defense counsel presented video testimony of Attorney Ken Murray. Attorney Murray was one of three individuals that represented Lorraine at his trial in 1986. He stated that Lorraine's case was the first capital case he had ever tried, and that he has always been struck with many negative memories surrounding this trial. Prior to this case, Attorney Murray had only represented clients in two murder trials, neither of which was a capital case. Additionally, he never had any formal training in the area of capital crimes. ... In closing he shared that not a day goes by that he does not think of this case and is overwhelmed with guilt for the job that he failed to do. He blames himself and feels that if he had more knowledge, resources, and time that he could have made a very strong case for Lorraine's life to be spared.

Reverend James Donnan was presented next and appeared in person before the Board. ... Pastor Donnan believes that Lorraine's religious conversion is authentic and asked the Board to show mercy and grant him clemency so he can spend the rest of his life within the general population of the prison system. He shared that Lorraine is very sorry for what he did and is unable to explain his actions. However he is prepared to meet God face- to- face if the scheduled execution goes forward.

Ms. Pat Livingston also appeared before the Board in person to offer testimony in support of Lorraine. She has been visiting him for the last five years and sees him approximately every six weeks when Pastor Donnan visits. She shared that she has seen many positive changes that Lorraine has made in his life.

Video testimony by Kathy Brewer, Lorraine's sister, was presented to the Board. She indicated that she was unable to appear in person because she was supposed to have surgery. Ms. Brewer stated that she was the oldest sister and that she lived with her grandparents until she reached 11 years of age. Ms. Brewer said that her grandparents were very good to her and would often "pay" her parents money not to beat her. ... Ms. Brewer described her mother as an evil person who would beat her on a regular basis. Additionally, her mother would play bingo five to six nights per week. She could never recall a time where her dad was not drinking. Her father became addicted to pain pills and he would have Lorraine and his brothers do whatever it took to get him more pills. ...

Richard Lorraine, brother to Lorraine, also made a videotaped statement that was presented to the Board. He indicated that their parents never said that they loved them. His mom played bingo all the time, and his dad was addicted to pain killers and would allow him to skip school if he got him pain medication. ...

Richard also stated that their parents did not care if they committed crimes as long as they gave the parents a portion of the money they obtained. He also recalls that his brother abused drugs morning, noon and night and would prostitute himself out to get money. In closing, Richard Lorraine shared with the Board that he spent a lot of time with his brother and that executing his brother would have a great impact on him.

Dr. Jeffrey Madden who is a neuropsychologist with Ohio State University evaluated Lorraine with respect to the presence of brain injuries. ... Dr. Madden concluded that Lorraine has damage to his pre-frontal lobe and meets criteria to be diagnosed with an organic brain disorder. Additionally, he has a well-established history of borderline intellectual functioning and is not mentally retarded.

Dr. Madden discussed incidents in Lorraine's past that could have cause the acquired brain injury. Dr. Madden stated that at two years of age, Lorraine fell out of the family car and hit his head as his mother turned the comer. The car was going about five to ten miles per hour at the time. When Lorraine was between the ages of six to eight years of age, he fell out of a tree which was approximately 10 to 12 feet high and hit his head. It is not clear ifhe lost consciousness. Finally, Lorraine's brother Rick reported that about one year prior to his incarceration, Lorraine was badly beaten by several men at an apartment, causing his eyes to be blackened and leaving his face bloodied and swollen. Lorraine also self reported that he took many beatings about his head and face from his mother and father. ...

Clinical and Forensic Psychologist Dr. Aracelis Rivera appeared in front of the Board to discuss the presence of risk factors in Lorraine's upbringing that may help explain his later criminal and violent actions. She met personally with Lorraine in prison and also reviewed third party information. ... In conclusion to her presentation, Dr. Rivera pointed out that Lorraine displayed 22 of the 25 risk factors that exist, and that he has limitations in all five of the domains listed above. The larger the number of risk factors that one has equates to the greater the propensity toward violence. Charles Lorraine was exploited by those who were to protect him, he was treated as an object, and he had no protective factors. ...

ARGUMENTS IN OPPOSITION TO CLEMENCY:

Dennis Watkins, Trumbull County Prosecutor, presented arguments in opposition to clemency. Additionally, he prosecuted Lorraine at his trial in 1986. This was also the second case he prosecuted where he had the advantage of having an interrogation that was videotaped.

Prosecutor Watkins stated that the evidence in this case is overwhelming, and it all points to the fact that Lorraine acted alone when he murdered the victims. He shared that death penalty cases are reviewed by the courts more than any other types of cases. This case was proven beyond a reasonable doubt, and 12 jurors properly found Lorraine guilty. Prosecutor Watkins believes that this was a well-tried case and that Lorraine was represented by three qualified attorneys who were from the Trumbull County Public Defender's Office. ...

Prosecutor Watkins also stated that 90% of what the Board heard by the defense was already known at the time this case was tried. Charles Lorraine had 12 witnesses that testified at the mitigation phase of his trial, and all of the information that was heard today was presented to the jury. The only new information is that which was self reported by Lorraine himself, when he recently claimed that he was sexually abused by a teacher and his school principal. ...

The Prosecutor described Lorraine as a psychopathic killer who has no conscience and is a con artist from beginning to end. Out of the six children that Lorraine family raised, he is the only one that turned out to be evil. Prosecutor Watkins does not believe that Lorraine's life was as bad as he describes. He came from a father who worked hard and was employed for 17 years with Trumbull County Metropolitan Housing Authority. His dad also coached baseball. The prosecutor also stated that Lorraine was no longer welcomed to visit with his grandmother, Catherine Lovash, because he had stolen her social security money. Additionally, Lorraine's pregnant wife kicked him out of the home prior to the murders because he stole money from her. The money he stole was designated to be used to pay for the family's utilities and purchase food.

Prosecutor Watkins encouraged the Board not to believe Lorraine when he stated during his recent interview that he shot up on drugs for the first time on the day he killed the victims, Rather, the Board was asked to refer back to the testimony of Lorraine's own brother, stating that he had shot up many times before and used drugs morning, noon, and night. ...

Lastly, Prosecutor Watkins summarized the evidence by stating that armed with a butcher knife and gloves, Lorraine appeared at the Montgomery home and lured 76-year old Raymond Montgomery upstairs under the ruse of a lost necklace. He then stabbed him five times with a butcher knife that was 10 inches long. Next, he carne downstairs and stabbed bedridden Doris Montgomery nine times as she lay totally helpless in her bed. Doris Montgomery was 80 years old and weighed 85 pounds.

Following the murders, Lorraine was in the partying mood, bragged to several people that he killed two old people, went drinking at a bar, sold his bloody pants for $20, went back to the Montgomery home to take more items, pawned jewelry, and sold the guns he had taken from the home. He also broke into the home of another elderly victim with the codefendant, stealing her car. After all of this, he had breakfast with his friend Perry Postlethwaite. ...

VICTIM'S REPRESENTATIVE:

Ms. Linda Couch, the niece of the victims, appeared before the Board. She indicated that her life was changed forever when she walked into the home of her aunt and uncle, finding them dead. She knew the moment she walked into the home and saw her aunt on the bed with a pillow over her face that something was drastically wrong. The home was ransacked, and her aunt's feet were hanging over the side of the bed. Ms. Couch was familiar with the home in that she would go there three times a week to assist her aunt in getting a bath.

Ms. Couch believes that Lorraine knew exactly what he was doing, and it hurts her to know that it has taken so long for his sentence to be carried out. When questioned by the police as to who would harm her aunt and uncle, Ms. Couch immediately told them Charles Lorraine because he had stolen money from her aunt in the past. Ms. Couch stated that she knows the victims suffered and that she wants closure to this chapter in her life.

The Board also received a letter from Alison Aleman, the victim's granddaughter. In the letter, she spoke of the many good memories she had of her grandparents. Ms. Aleman is retired from the California Attorney General's Office and spent 26 of her 30 years there prosecuting murder cases. She stated that she well knows the toll that capital cases have on the prosecutors, victims, and surviving family members. She and her sister plan on coming to Ohio to attend Lorraine's execution.

The Board also received a letter from John Montgomery, the brother of Raymond Montgomery. He shared that Raymond Montgomery was a Corporal in the United States Army in the 69th Tank Battalion and was awarded three Bronze Stars in World War II. He also pointed out that Raymond Montgomery still has a brother and two sisters that are living, are in their nineties, and are "waiting for justice" in this case.

PAROLE BOARD'S POSITION AND CONCLUSION:

The Board reviewed and considered all information submitted both in support of and in opposition to clemency. After an exhaustive review of all materials, exhibits, and arguments presented by both parties, and extensive deliberation, the Board reached a unanimous decision to make an unfavorable recommendation to the Governor regarding Lorraine's request for Life Without Parole, after concluding the following:

• There has never been a question of Lorraine's guilt in these offenses. While the prosecutor's statements during parts of the trial may have constituted misconduct, it is hard to imagine that the outcome of the trial would have been different had those statements not been made. All reviewing courts have concluded that Charles Lorraine received a fair trial. It further appears that significant mitigation was presented.

• While evidence supports that Lorraine suffered from a difficult childhood which increased his likelihood of violence, he had five siblings who were able to overcome this difficult upbringing and lead relatively crime free lives.

• It is obvious from the facts of this case that Lorraine targeted this elderly couple because they were vulnerable. He gained their trust and then used this same trust as a means to enter their home, only to slaughter them and steal their valuables. He shared with the Board during his interview that he knew in advance that he was going to kill the victims. Unfortunately, to this day, he cannot explain why he committed these violent acts.

• Lorraine had a history of crimes against the elderly in both the juvenile and adult criminal justice systems, and was awaiting sentencing on other burglary and robbery offenses when he murdered the victims in this case.

• Testimony presented at trial and during the post conviction and appellate processes demonstrate that Lorraine does not suffer from mental retardation. Additional testimony presented at the clemency hearing as to his dysfunctional childhood and brain injury, do not outweigh the aggravating factors in this case. This was a brutal slaying of two vulnerable victims in their own home. A sentence short of the jury's finding of death and the court's imposed death sentence would demean the seriousness of this offense.

RECOMMENDATION:

The Ohio Parole Board with eight (8) members participating, by a vote of eight (8) to zero (0) recommends to the Honorable John R. Kasich, Governor of the State of Ohio, that executive clemency be DENIED in the case of Charles Lorraine AI94-013.

**** End of Excerpt ***

With respect to the propriety of executing Charles Lorraine, I stand mute.

The Probably Not Impending Execution of Kenneth Hairston

Kenneth Hairston sits on death row awaiting execution by the people of Pennsylvania. His execution is currently scheduled for 18 January. Though it is likely his execution will be stayed, I will nonetheless review his case in this post. I offer the following summary of facts from the adverse appeal in Commonwealth of Pennsylvania v. Kenneth Hairston. To improve the readability, I have excluded the legal references and I have changed all instances of Appellant to Hairston.

On May 20, 2000, Hairston's stepdaughter, Chetia Hurtt, and her boyfriend, Jeffrey Johnson, returned to Hurtt's apartment from a movie to discover several voicemail messages left by Hairston, questioning where Hurtt was and when she would be home. Hurtt, 21, had known Hairston since he married her mother when Hurtt was five years old, and had lived under the same roof as Hairston, her mother (Katherine Hairston), Hairston's autistic son (Sean Hairston), and her grandmother (Goldie Hurtt), until Hurtt moved out approximately one month earlier. During Hurtt's adolescence, her relationship with Hairston deteriorated. Hairston prohibited Hurtt from socializing with males and frequently threatened that he would kill her and the rest of her family. 

Bothered by the phone messages that May evening, Hurtt asked Johnson to spend the night. The following morning, May 21, 2000, Hairston arrived at Hurtt's apartment with a handgun, which he was not licensed to carry. After being let into the apartment, Hairston instructed Hurtt to tell Johnson to leave. When Hurtt did not comply, Hairston threatened to kill Hurtt, Johnson, and himself, and stated that he would not go to jail. Despite Hurtt's protests that Johnson should stay -- for fear of what might happen should he leave -- Johnson left the apartment. Hairston pointed the gun at Hurtt's face and said, "If you're going to be F'ing anybody, it's going to be me." Hurtt pleaded with Hairston not to hurt her, but he took her into the bedroom. Hairston removed his clothes and tried to remove Hurtt's clothes, but she resisted. 

Meanwhile, Johnson stopped Sergeant William Gorman of the Pittsburgh Police Department and explained what was occurring. The police went to the apartment and announced their presence. Hairston pulled the ammunition clip out of the gun, threw it behind the door, and slid the gun underneath the bed. Hurtt escaped through the front door of the apartment. The police found a half-naked Hairston in the apartment. He claimed that he lived in the apartment with his daughter and came home to find her with Johnson. A Bryco-Arms 0.380 semi-automatic pistol was recovered from the bedroom. Hairston, yelling, "I can't go to jail," broke away from police as they were bringing him out of the apartment building. Hairston then jumped headfirst off a small roof to the ground fifteen-to-twenty feet below. Hairston got back on his feet and again began yelling, "I can't go to jail. I'm not going to jail." As a result of these events, criminal charges were filed against Hairston. 

One year later, in the morning hours of June 11, 2001, Hairston called the dispatcher at the school bus company that transported Sean Hairston, who was autistic, to school and requested that the bus not pick up Sean. Hairston spoke separately with two neighbors outside of his home that morning, each of whom noticed that Hairston smelled of alcohol and was very agitated. Hairston told both neighbors that he was upset about his stepdaughter's accusations, telling one neighbor that he would not go back to jail and that if he had to go to jail he "would probably do [him]self in." 

Shortly thereafter, thick black smoke was seen coming out of Hairston's home. Firefighters who reported to the scene found both the front and back doors locked and barricaded. Finally, the firefighters gained entry. They discovered that the house was covered in garbage bags and debris. They retrieved Sean, who was lying underneath bags and debris, on the living room couch. His face and head were covered with a blanket. He was brought outside alive to paramedics. However, he died while being treated at the hospital after suffering two cardiac arrests. The injuries leading to his death were two or three incidents of blunt force trauma to his head.

Firefighters re-entered the house and found Hairston inside the kitchen, at the top of the basement stairwell. Hairston had several puncture wounds to his chest and a laceration on the right side of his neck. He was extremely combative with paramedics, and had to be restrained with handcuffs and stretcher straps, then ultimately paralytic drugs, before being transported to the hospital. 

Firefighters also found Katherine in the kitchen. She was found with a hole in the side of her head, and was dead weight upon being brought out of the house. Toxicology screening showed no evidence of carbon monoxide or cyanide in her blood stream. Goldie Hurtt, who had previously suffered three strokes and a heart attack, was found incapacitated in an upstairs bedroom and was removed safely from the house.

In the kitchen, police found a large amount of blood in front of the refrigerator. Two knives were found in the kitchen. Sheets and bedding materials were found on the floors and counters. Four days after the fire, the Hairston family dog was found covered by debris in the basement and tied to a pole.

Police interviewed Hairston at the hospital where, because he was wearing an oxygen mask, he could communicate only by indicating simple yes or no responses. Hairston indicated that he knew who started the fire, that he killed his wife, and that his motivation for the killing and the fire were the impending charges against him. Hairston also indicated that those charges against him were untrue.

On June 19, 2001, police again interviewed Hairston. He gave both an oral and a taped statement. He explained that he wrapped a ten-pound sledgehammer in a pillowcase and intentionally struck his wife with it from behind as she sat on their bed. He struck her a second time, then dragged her from their first-floor sleeping area into the kitchen. Hairston also confessed that, minutes later, he struck his son Sean with the sledgehammer twice. After hearing moans in the kitchen, he struck Katherine again with the weapon. Hairston stated that he left the house with the weapon, drove to a local bar, where he consumed two double-shots and two beers, then discarded the sledgehammer in a wooded area. Hairston then drove home and poured gasoline over the basement floor. According to Hairston, flames from the water heater ignited the gasoline before he was ready to ignite them. He then got a knife, stabbed himself twice in the chest, and then lay down next to his wife's body. Hairston went on to explain that he intentionally piled items throughout the house to ensure that the fire indeed killed everyone: "I just wanted to make sure that we were gone." Transcript of Hairston's taped interview, dated June 19, 2001, at 6. Hairston then revealed to police the location of the sledgehammer, which tested positive for blood.

Hairston was charged with two counts of criminal homicide. He was appointed counsel, and his jury trial began on April 15, 2002. On April 17, 2002, the jury convicted Hairston on both counts of first-degree murder. At the close of the penalty phase, Hairston was sentenced to death for each murder conviction. The trial court formally imposed sentence on July 11, 2002.

I find no one, not even Kenneth Hairston, claiming that he is factually innocent of the crimes. While I vehemently oppose the execution of someone who might reasonably be factually innocent of the crime for which they are to die, I neither oppose nor support executions in which the person clearly committed the crime. In the case of Kenneth Hairston, I therefore stand mute with respect the propriety of his execution.

The Probably Not Impending Execution of Ralph Birdsong

Ralph Birdsong sits on death row awaiting execution by the people of Pennsylvania. His execution is currently scheduled for 17 January. Though it is likely his execution will be stayed, I will nonetheless review his case in this post. I offer the following summary from the adverse appeal in Commonwealth of Pennsylvania v. Ralph Birdsong. To improve the readability, I have excluded the legal references and I have changed most instances of Appellant to Birdsong.

Appellant, Ralph Birdsong, was convicted of two counts of first degree murder, possession of an instrument of crime, six counts of aggravated assault, involuntary deviate sexual intercourse, rape, and criminal conspiracy on October 27, 1989, following a consolidated bench trial before the Honorable Juanita Kidd Stout. A separate penalty hearing was held, and the trial court found two aggravating circumstances: that Birdsong "ha[d] a significant history of felony convictions involving the use or threat of violence to the person" and that Birdsong "ha[d] been convicted of another murder, committed . . . at the time of the offense at issue." No mitigating circumstances were found, and ... the trial judge sentenced Birdsong to death for the first degree murder conviction. In addition, the trial judge sentenced Birdsong to a consecutive term of fifty-two and one-half (52½) to one hundred five (105) years of imprisonment for the other convictions stemming from the incident which occurred on July 17, 1988. Thereafter, the trial court heard and denied Birdsong's post-trial motions. 

Birdsong does not challenge the sufficiency of the evidence; however, we have independently reviewed the record to determine the sufficiency of the evidence supporting Birdsong's conviction consistent with our obligation in a case in which the death penalty has been imposed. ... The test for determining the sufficiency of the evidence is whether, viewing the evidence in the light most favorable to the Commonwealth as verdict winner and drawing all proper inferences favorable to the Commonwealth, the trier of fact could reasonably have determined all elements of the crime to have been established beyond a reasonable doubt. 

On July 17, 1988, Birdsong and his brother, Anthony Birdsong, went to a residence located at 5723 North 17th Street. Birdsong entered the residence while Anthony remained outside. The Commonwealth presented the testimony of several eyewitnesses who saw Birdsong commit the crimes on the day in question. 

Gregory Johnson, who lived at 5723 North 17th Street, testified that he was seated at the dining room table ingesting crack cocaine in the early morning hours of July 17, 1988. Hassan Holmes and Kim Glenn were also present. The doorbell rang, and Holmes arose and observed through a window that Birdsong, also known as "Hakeem," was at the front door. At that point, Johnson arose from the table to admit Birdsong, whom he had known for ten years. Birdsong then entered the house, walked by Johnson, turned around, and shot Johnson in the back of the head with a shotgun. Although the impact of the shotgun blast caused Johnson to fall to the floor, he was nevertheless able to get up and run out of the house. 

Hassan Holmes corroborated the testimony of Johnson by identifying Birdsong as the person who rang the doorbell on July 17, 1988. Holmes assumed that Birdsong wished to purchase drugs from Johnson, who was a dealer. After seeing Johnson shot, Holmes attempted to flee to the basement, but Birdsong intercepted him and shot him in the shoulder. Holmes then heard James Bagwell, who was sleeping on the living room couch, get off the couch and attempt to flee to the basement. However, Birdsong intercepted Bagwell and fatally wounded him as he ran down the stairs. Shortly thereafter, Holmes managed to flee from the house. 

Additionally, Andre Kinard testified that he saw Birdsong shoot Bagwell in the head as Bagwell was running down the basement stairs attempting to flee. Kinard then tried to flee, but Birdsong shot him as well. 

Kim Glenn also testified that Birdsong, whom she had known for one and one-half years, rang the doorbell that morning. Glenn was able to identify Birdsong because she had sold drugs for him in the past. Glenn hid under the dining room table as Birdsong proceeded to shoot Johnson, Holmes, and Bagwell. When Birdsong went upstairs, Glenn hid under a mattress in the front of the house. From there she heard a second man enter the house and warn Birdsong about the police. 

The Commonwealth presented the testimony of Monroe Clark, who testified that he was in the second floor bedroom with Gloria Pannell when Birdsong kicked in the bedroom door. Birdsong fired shots, but missed Clark. Birdsong's shots hit Pannell. After leaving the room for a brief instant, Birdsong reentered the room and fatally shot Pannell while standing over her as Clark hid in the bedroom closet.

Fifteen-year old Quinzell Pannell testified that he, his brother Albert, and his sister Yiana were in another bedroom when Birdsong entered and struck them repeatedly with the butt of his gun. After beating the children, Birdsong then directed them into another bedroom. On the way, Birdsong struck Quinzell in the back of the head causing Quinzell to fall to the floor. Next, Birdsong took Albert out of the room and shot him. Birdsong then returned, stated "I am going to rape you, bitch," and took Yiana out of the room. 

Yiana corroborated the testimony of Quinzell. She also testified that Birdsong forced her out of the house and across the street to a park where he proceeded to rape and sodomize her. By stipulation, the results of the rape kit taken at the hospital were admitted, showing the presence of sperm in Yiana's vagina and rectum. 

Albert Jones testified that Birdsong, whom he had known for sixteen years, showed up at Jones' apartment in the early morning hours of July 17, 1988, with blood on his hands and the back of his legs. Birdsong then requested a ride to pick up his car and Jones assented. When the two arrived at the driveway where Birdsong's truck was located, they were stopped by Detective Thomas Augustine. 

Detective Augustine testified that when he stopped Jones, the passenger in Jones' car, who was later identified as Birdsong, looked very nervous. Detective Augustine noticed a jacket under the passenger seat, picked it up, and felt a magazine from a gun. When Detective Augustine asked whose jacket it was, Birdsong admitted it was his, but fled the scene when Detective Augustine indicated that he would like the two men to come with him. Through continued questioning of the driver, Detective Augustine adduced that the passenger was Birdsong. Additionally, upon further investigation, the detective discerned that the jacket contained an empty magazine from a .45 caliber handgun. 

Birdsong disappeared from Philadelphia and was subsequently arrested in Fort Lauderdale, Florida, on November 14, 1988. 

The parties stipulated that the jacket recovered from Jones' automobile was stained with human blood. It was further stipulated that Gloria Pannell and James Bagwell died of multiple gunshot wounds. Finally, it was stipulated that Albert Pannell suffered a gunshot wound to the back of the head which rendered him permanently disabled and confined to a wheelchair. 

Clearly, the evidence introduced at trial, viewed in the light most favorable to the Commonwealth as verdict winner and drawing all proper inferences favorable to the Commonwealth, was sufficient for the trier of fact to reasonably have determined all elements of the crime beyond a reasonable doubt.

I find no one, not even Ralph Birdsong, claiming that he is factually innocent of the crimes. While I vehemently oppose the execution of someone who might reasonably be factually innocent of the crime for which they are to die, I neither oppose nor support executions in which the person clearly committed the crime. In the case of Ralph Birdsong, I therefore stand mute with respect the propriety of his execution.