I Oppose the Execution of Richard Leavitt

This one is lengthier than most. Grab some chips and a cool beverage, and strap yourself in.

Richard Leavitt sits on death row awaiting execution by the people of Idaho on Tuesday, 12 June. I suspect he will not survive the day.

I will tell the story via two appellate decisions, a motion for testing of DNA material, and a response to that motion. My analysis will follow.

From the Majority Opinion in State v. Leavitt (1989)

Sometime about July 18, 1984, the victim was brutally attacked in her bed. She suffered up to fifteen separate slash and stab wounds, some of which proved fatal. Her body had been further brutalized by the slashing removal of her sexual organs. The body of the victim was not discovered until three or four days following the killing. It is clear that the killing took place on the victim's waterbed which was punctured and torn by the attacker's knife. The combination of the body decomposition, together with the mixture of body fluids and the waterbed liquid, made impossible any determination of rape as a motive for the killing.

The defendant and the victim were both residents of the city of Blackfoot and knew each other. The victim had reported a prowling incident on the night of July 16, 1984, in which she advised the police that the prowler, thought to be the defendant, had tried to enter her home. During the incident the intruder had cut a window screen on the victim's home.

During the interim between the murder and its discovery, the defendant had contacted friends of the victim and also the police, expressing curiosity as to the victim's whereabouts. He claimed that co-workers and the employer of the victim had called him after she failed to appear at work. No such callers were ever located. 

After the murder and before the body was discovered, the Blackfoot police received two telephone calls stating facts thought to be capable of being only known to the murderer. The caller gave the name "Mike Jenkins" but no person by the name has ever been located. The prosecution asserts that logically the defendant was the only person who could have made the calls because of his detailed knowledge.

On July 21 the defendant  obtained permission from the victim's parents to enter the home which had been locked and apparently unattended. With the help of the Blackfoot police, entry was made into the house and the body discovered.

The evidence pointing to the defendant as the murderer was largely circumstantial in nature. The defendant sustained a serious incise wound to his left index finger, and on the night of July 18, 1984, he was treated for that wound at the emergency room of the Bingham Memorial Hospital. 

Blood samples were gathered from the scene of the crime, and serology tests showed that two distinct blood types were present. The victim's blood was type A, and tests of the blood samples from the crime scene reveal that type O blood had been deposited contemporaneously with that of the victim's type A blood. The blood of sixteen suspects was tested and it was the serologist's opinion that the defendant was the only likely source of the type O blood.

The defendant initially denied that his blood could be in the victim's bedroom, but later changed his story to admit he had been in the victim's bedroom and suffered a nosebleed, but contended the incident had happened one week prior to the murder. No explanation could be offered as to how his blood became mixed with that of the victim. The defendant asserted that he had cut his finger while in his own home attempting to upright a toppled fan. Laboratory tests of the Leavitt fan concluded that it lacked any blood residue or any indication it had been recently cleaned, and furthermore tests conducted with the fan were unable to duplicate the type of wound on Leavitt's finger. 

That "fan explanation" was abandoned by the defendant for the first time at trial wherein he admitted that he and his wife had perjured themselves and stated that the injury in fact had been sustained while he was attempting to prevent his wife from attempting suicide.

While confined in jail, the defendant wrote a letter to his wife containing specific instructions involving her future testimony. That letter was discovered and confiscated during a routine inspection of the jail. At trial the court ruled that the letter had been properly seized and it was used for impeachment purposes during the testimony of the defendant's wife, and further used to impeach defendant's testimony as inconsistent statements.

At trial two witnesses testified to events offered to show the defendant's alleged morbid sexual curiosity, and his frequent possession and use of knives. The defendant's former wife testified that Leavitt had been observed excising and then playing with the female sexual organs of a deer. It was noted that the killer of the victim here had similarly mutilated the body by removing sexual organs from it during the fatal attack. The former mistress of the defendant testified that the defendant displayed a hunting knife prior to their engaging in sexual intercourse, which testimony suggested that the defendant used knives to increase his satisfaction during sexual intercourse.

From the Dissenting Opinion in State v. Leavitt (1989)

Along the same lines of unnecessary prejudice was the admission of the testimony of the defendant's former wife regarding the defendant's activities while field-dressing game animals. While it may have contained some kernel of relevance concerning the specific type of mutilation of the victim's body in this case, for certain the testimony was highly prejudicial. It allowed the prosecution to portray the defendant as a grotesque deviant, which in the mind of the average juror would lead to the conclusion that defendant was a bad person, and therefore he likely was the person who committed the murder.

The majority's statement that the prejudicial effect of this evidence was inconsequential because almost all evidence in a criminal trial is prejudicial to a defendant misses the point. Evidence to obtain a conviction is and is intended to be prejudicial. That is a given. But it should be evidence relating to the crime committed.

As one delves into the record it becomes apparent that the district court was overly kind in allowing the prosecutor to have admitted virtually any evidence which it presented. The defendant's wife was allowed to testify as to the defendant's obsession with knives. Actual knives were allowed to be introduced into evidence, not withstanding that there was no contention that such were murder weapons. These were knives which the defendant happened to own. 

These knives had absolutely no relevance to the case. Other evidence, on a par with photographs of the victim admitted into evidence included photographs of an anatomically correct life-sized female doll which was graphically altered to demonstrate the victim's wounds. The jury entered upon its deliberation in a jury room reeking of the unfair prejudice from evidence which the prosecution did not need to show that the victim had been murdered, and the defendant may have been the perpetrator.

From the Adverse Opinion in Leavitt v. Arave (2004)

In the small town of Blackfoot, Idaho, on July 17, 1984, the victim of this brutal crime, Danette Elg, was viciously attacked in her own bedroom by a knife-wielding assailant. The relentless and merciless assault took place on her waterbed and with such implacable force that the bed itself was punctured and torn, while the victim sustained numerous cuts and slashes as she fought for her life. She was also stabbed multiple times: One thrust caused the knife to enter her right lung, another the right side of her heart, still another her left lung, and others penetrated her stomach, her chest cavity, and her neck. One even went through her eye and into her brain. Another exceedingly peculiar and unique wound inflicted during this attack was a cut made by the attacker through which he then removed her sexual organs. He did that in a manner that showed that he had some knowledge of female anatomy, for it was done in a manner that is difficult to accomplish.

The evidence pointing to Leavitt was powerful, if circumstantial -- he was not caught red-handed, nor did he confess. Unfortunately, the victim's body was not found for several days which caused the destruction of some evidentiary markers, but gave rise to others.

On the night of July 16, the victim had been severely frightened and shaken when a prowler tried to enter her home. She called the emergency 911 number and the police came, but they found nothing other than signs of attempted entry and a petrified young lady, who thought that Leavitt was the culprit. They then searched the area and the town but, alas, failed to find Leavitt. 

Strangely enough, during the period between the murder and the discovery of the body with Leavitt's help, he became exceedingly "interested" in the victim's whereabouts. He finally obtained permission to enter the house with the police and discovered the body. Another strange aspect of the case was that a person supposedly named Mike Jenkins also called the police a couple of times during that period and showed knowledge of details of the crime that only the killer himself would know. Mike Jenkins was not known in Blackfoot and was not heard of thereafter. Leavitt, however, is adept at disguising his voice on the telephone, and could even fool his own wife when he did so.

What else? On the very night of the killing, Leavitt suffered a severe cut to his finger, for which he was treated in an emergency room. The killer was also wounded and left behind his blood -- Type O -- which was mixed with the blood of his hapless victim -- Type A. Of all the possible suspects, the only likely source of the Type O blood was Leavitt himself.

How could that damning connection be explained? Well, said Leavitt, he had somehow cut his hand on a fan at home -- a story that was shown to be a lie. At trial he changed that to a story that he had really sustained the cut while preventing his wife from committing suicide. And the crime scene blood? Leavitt could not, at first, imagine how his blood could have been found there, but he had an epiphany by the time of trial. At trial, he managed to recall that a week before the killing he had a nosebleed in the victim's bedroom. That, supposedly, resulted in his blood being mixed with hers when she was killed on her bed a week later. It also supposedly explained how his blood was elsewhere in her room -- on the walls and at the window, and even on her underclothes -- he wiped his nose on them -- as well as on shorts that she had worn between the date of the "nosebleed" and the date of her death. Along the way, Leavitt also tried to send his wife a letter from jail in which he sought to have her memorize a story he had concocted, which would, not surprisingly, tend to exculpate him.

Neither the jury, nor any court which has since reviewed the evidence in this case, has been impressed with Leavitt's stories. The jury found him guilty, and an Idaho judge sentenced him to death.

...

Of the same ilk are Leavitt's ululations about the prosecutor's comment on the fact that a wholly new blood story surfaced at trial. When speaking to the police, Leavitt indicated that he had no idea how his blood could have been found at the murder scene, but by trial he had developed a wholly inconsistent explanation of its presence -- the nosebleed scenario. His jeremiad about the prosecutor's exploration of his revenant  memory avails him nothing. [A jeremiad is a prolonged lamentation. A revenant memory is one that returns after a long time.] That surely was proper impeachment. ... It underscored his lies as well as his actual lack of cooperation. Then there was the cut on Leavitt's finger where, again, his trial explanation differed radically from his pretrial explanation. Again, his hope that he could misdirect the police investigation and claim cooperation at the same time must die aborning.

...

Leavitt demurs [objects] to the fact that his ex-wife testified that once, while hunting, she came upon him as he carefully and rather surreptitiously was cutting at the female sexual organs of a deer. He then removed those organs, examined them, and played with them because, he said, he wanted to see how they worked. It will be recalled that the victim in this case (or her body if she was then deceased) was subjected to a highly unusual removal of her female organs. Other evidence showed that it would be difficult to accomplish that in the way it was done and that it would help to have knowledge of anatomy when doing it.

...

The same can be said about the episode testified to by Leavitt's girlfriend to the effect that he showed her a knife, which was never produced, at a rather peculiar point during a sexual encounter with her. Leavitt's failure to produce that particular knife for the police officers went to the question of his alleged cooperation with them. Because that, of all knives, was missing, some inference was also possible that it was the murder weapon itself or the knife that was used to cut Elg's screen. ... Still and all, the connection was pretty thin. Thinner still is the relevance of other knives, which were admitted into evidence. True, they could have been weapons used by the unknown intruder or the murderer, but nothing tended to show that they were; the missing knife was probably a better candidate for that.

...

The doomed victim of this crime had, as we have already noted, been severely frightened on the night before her death by a prowler, who tried to break into her home. In a great state of agitation, she called the police and spoke to dispatchers and to police officers. [From a footnote: "When speaking with the dispatcher she was crying, while breathing quickly and heavily, and when speaking to the police officers both her voice and her hands were shaking."] Among other things, she said that she thought the prowler was Leavitt, because he had tried to talk himself into her home earlier that day, but she had refused him entry. [From a footnote: "She told the officers that Leavitt asserted that the cops were after him. That was a lie; they were not."] 

Leavitt claims that the admission of the hearsay testimony violated his rights under the Confrontation Clause of the Sixth Amendment to the United States Constitution. Of course, one cannot confront a hearsay declarant, but not all uses of hearsay violate the Confrontation Clause. ... We have considered the circumstances and have no doubt that the victim was speaking while under the baleful influence of an exceedingly stressful event -- the attempt by an intruder to break into her home. Nor do we doubt that she lacked the time or the incentive to reflect upon and confabulate a story. Thus, the evidence properly came in as an excited utterance. There was no violation of Leavitt's constitutional rights.

...

That mysterious phantom, Mike Jenkins, looms large in an objection by Leavitt regarding an alleged Brady violation by the prosecutor. Jenkins, who evidenced detailed knowledge of the murder, called and spoke to two different police dispatchers -- Lisa Pugmire and Theta Duchscher. He first spoke with Pugmire, who never gave out her first name, and later spoke with Duchscher to whom he mentioned Pugmire's first name. Leavitt and Pugmire had a friendly relationship and had often spoken to each other before. Both dispatchers testified.Pugmire testified that she could not say that Jenkins had Leavitt's voice. Duchscher was not asked, and did not say, whether she recognized his voice. At a later time, however, it was revealed that a police investigation had asked Duchscher whether she could make a connection between the voices, and she had said no. Later on, she had said that the voice could have been Leavitt's. Those facts were not disclosed to Leavitt and that, he says, constitutes the violation.

Even if there were some error, it was entirely harmless; it simply is not reasonably probable that the result of the proceeding would have been any different if Leavitt had obtained the information in question. The Leavitt-Jenkins connection was not based on voice recognition, but rather on Mike Jenkins's use of Pugmire's first name and on Mike Jenkins's response, when queried, that his address was near Leavitt's address.

...

The other evidence of which Leavitt deems himself improperly deprived was blood samples from the murder scene, which he could have subjected to further testing. But no more usable samples existed after the state serologists had performed their tests. Because it is undisputed that no bad faith was involved in the destruction of the possibly helpful blood samples, Leavitt simply cannot prevail on this claim.

...

Leavitt testified that he was home watching TV, but his testimony was uncorroborated. He had to be treated for a bad cut on his finger on the night of Elg's murder. He was severely impeached on both accounts. And his blood was mixed with Elg's in her room. It is inconceivable that any reasonable juror would have bought his alibi in these circumstances. Besides, the evidence overall was overwhelming.

From Leavitt's Motion for DNA Testing of Evidence:

On Wednesday, May 23, 2012, counsel for the Respondent, Mr. Lamont Anderson, sent to me by fax a report from Idaho State Police Forensic Services ... These reports apparently document testing performed at the request of the Blackfoot Police Department between April 17, 2001 and April 23, 2001 on evidentiary items related to this case. The testing indicates that a number of items were tested for the presence of semen, which was negative. The report also recites that blood was found on certain items, and this sentence follows: “[p]lease consult the laboratory if DNA testing is required on these items.” ... It is therefore apparent that DNA testing was not performed on the blood found on these items. 

On Wednesday, May 23, 2012, I also visited Mr. Leavitt ... At the time I met with Mr. Leavitt I was accompanied by Charles R. Honts, Ph.D., a psychology professor at Boise State University with an expertise in polygraphy. Dr. Honts accompanied me pursuant to this Court’s Order granting Petitioner’s Emergency Motion for Access to Petitioner by Expert, and for the purpose of administering a polygraph examination to Mr. Leavitt. ...

Dr. Honts is perhaps the foremost polygrapher in the United States. ... Dr. Honts reports that he posed three questions to Mr. Leavitt: Did you stab Danette Elg? Did you remove Danette Elg’s internal genitals? Were you present when Danette Elg was stabbed? To each of these questions Mr. Leavitt answered, “no.” ...

Dr. Honts concluded that Mr. Leavitt’s answer to each question was truthful, with a probability of truthfulness of 0.927, meaning a statistical likelihood of 927 out of 1000.

From the State's Response to Leavitt's Motion for DNA Testing:

On May 21, 2012, at approximately 5:14 p.m., Leavitt filed the instant motion asking this Court for an Order directing the Blackfoot Police Department to forward to Sorenson Forensics, the following items “for forensic testing”: (1) shirt; (2) sex crime kit; (3) tan corduroy shorts; (4) pale lavender panties; (5) locking mechanism; and (6) “R. Leavitt blood reference.” 

Leavitt’s motion is presumably based upon the alleged need to “prepare the commutation or clemency petition.” ...

In fact, until yesterday, Leavitt had not sought this kind of discovery in any fashion, even in habeas. Rather, Leavitt has now embarked upon a strategy of waiting until the eve of his execution to seek “forensic testing” of the items and then casting blame at the state’s doorstep ... This simply does not constitute good cause for release of the evidence, but is nothing more than a fishing expedition and tactic to delay Leavitt’s scheduled execution.

My Analysis

Much of the evidence against Leavitt is pathetic. A phone call from someone who doesn't sound like Leavitt is not evidence that Leavitt made the call, even if his ex-wife claims Leavitt can disguise his voice. I presume the caller did not sound like me either, but that is not evidence I'm guilty of the murder.

The Type O blood is the most common type of blood, found in around 40% of the population. To suggest that Leavitt was the person most likely to contribute that blood was merely introducing a desired outcome as evidence. It is up to the jury to decide is the person most likely to have contributed by that blood. It is up to the prosecution to prove beyond a reasonable doubt that the Type O blood belonged to Leavitt rather than the other 120,000,000 people in the U.S. who have Type O blood.

Since the color photos of the victim's mutilated and decaying body in no way implicated Leavitt, they were probably shown to inflame the jury against him in lieu of actual evidence. Even more so, the mutilated doll could not have implicated Leavitt. It too was meant to inflame. Assuming they were somehow justified so that the jurors could properly understand the nature of the crime, both of them could not have been necessary.

Leavitt's pre-discovery concern about the victim's welfare is also not evidence of his guilt. I recall other cases in with the defendant's lack of concern about the victim's welfare was presented as evidence of guilt.

The evidence that Leavitt tried to talk his way into the victim's house soon before the murder, and her expressed fear of him, is (I believe) legitimate, meaningful, and incriminating evidence. By itself, it would not have been insufficient to prove to me beyond a reasonable doubt that Leavitt was guilty, but it would have helped.

As far as I am concerned, the cut on Leavitt's finger is the most compelling evidence of his guilt, particularly in light of his multiple, unconvincing explanations of how he managed to cut himself on the very night she may have been murdered. 

Unintentional self-inflicted cuts during stabbings are certainly not unheard of. Ask OJ. And, if you are the State of Texas, ask Hank Skinner. Hank Skinner suffered a severe cut to his hand during or soon after the murders of his common-wife and her two grown sons. In Skinner's case, however, there is substantial evidence that Hank Skinner was in a drunken stupor while another person, possibly the wife's uncle, committed the murders. Though Skinner was actually present during the murders, he surprisingly has the better alibi.  (I cut my blogging teeth by writing a ten-part series on Hank Skinner, beginning here.) 

What Leavitt does have going in his favor is the polygraph test he recently passed. Though I realize that polygraph tests are far from completely reliable, I realize as well that they are not completely without merit. Leavitt's passing of a well-controlled polygraph test administered by an renowned polygrapher willing to put his reputation on the line gives me pause.

Leavitt and Skinner are similar in more ways than having received cuts to their hands near the time of the murder for which they are sentenced to die. Both Leavitt and Skinner want access to DNA evidence to prove their innocence. Skinner has been asking for that testing for a very long time, while Leavitt just asked for the evidence recently. Skinner's request therefore seems more sincere. 

(I cut my blogging teeth by writing a ten-part series on Hank Skinner, beginning here.)

Skinner has an advantage also that recent events seem to insure that the DNA evidence in his case will be finally be tested. It seems as if the DNA evidence in Leavitt's case will remain untested as we pump a lethal cocktail into Leavitt's blood.

Despite my belief that Leavitt is probably guilty, I nonetheless oppose his execution. I think we should not execute anyone without completely satisfying ourselves that the person to be executed is in fact guilty. We should never execute anyone while leaving potentially probative DNA evidence untested.

In both the Leavitt and Skinner cases, I support testing of the DNA evidence. In the case of Hank Skinner, I think (but do not know) the testing will exonerate him. In the case of Richard Leavitt, I think (but do not know) the testing would not exonerate him.

With respect to Skinner, we may soon know.

With respect to Leavitt, we will probably never know.

I therefore oppose the execution of Richard Leavitt.

ADDENDUM:
Richard Leavitt was executed by the people of Idaho on 12 June 2012, at 10:25 AM.

The Case of Preston Hughes III: Right Tool for the Job

For more than two decades, the knife used to murder Shandra Charles and Marcell Taylor has been misidentified as the hunting knife found in Preston Hughes' closet. We now know that the murder weapon did not look like this:

Preston's knife

Instead, the murder weapon looked more like this.

Or this:

The double-edged knives shown above are known as daggers. Wikipedia relies on a Missouri court case and a California penal code to define a dagger as "a fighting knife with a sharp point designed or capable of being used as a thrusting or stabbing weapon."

Wikipedia then continues, as it is apt to do:

[O]ver the last hundred years or so, authorities have recognized that the dagger, in its contemporary or mature form, has come to incorporate certain definable characteristics, including a short blade with a sharply-tapered point, a central spine or fuller, and usually two cutting edges sharpened the full length of the blade, or nearly so. Most daggers also feature a full crossguard to keep the hand from riding forwards onto the sharpened blade edges. Another distinctive feature of the modern dagger is that it is designed to position the blade horizontally when using a conventional grip, enabling the user to slash right or left as well as thrust the blade between an opponent's ribs. The full-length edges enable the user to make broad slashes (cuts) using either a forehand or backhand arm movement, while the sharp, acutely-pointed tip makes the knife an effective thrusting or stabbing weapon.

Daggers are far less common than single-edged knives, for daggers have some significant disadvantages.

The first and most obvious disadvantage of a dagger is its double-edged blade. The lack of any blunt edge prevents the user from using palm, finger, or thumb to increase the cutting edge pressure. The lack of a blunt edge also complicates folding designs, making the dagger less convenient to carry and or conceal.

Another disadvantage is that a two-edged blade is less robust than is a single-edge blade. For a given blade width and maximum thickness, two sharp edges demands that more material be removed. On average, a double edge blade simply consists of less steel than does a single-edge blade. The problem becomes particularly acute near the sharpened tip. The tip is more likely to break if it hits an unexpectedly hard target, such as a shoulder blade.

Finally, daggers are not nearly as good as single-edged knives for slashing. That is because the dagger blades must thicken from nothing to maximum thickness in just one-half of the blade width. Their wedge angle is nominally twice that of a single edge blade.

A dagger, on the other hand, will penetrate much more easily than will a single-edge knife. Also, and significantly, its tip lies along the centerline of the blade. This alignment permits considerably more precision as one attempts to stab an opponent in a critical body part, such as a carotid artery.

Consider now the dagger-like agricultural tool below.

Though it has many characteristics of a dagger, it is called a sticking knife, at least according to Lehman's online store. You can find it under Home > Kitchen > Home Butchering > Butchering Supplies > Old Hickory Sticking Knife.

From Wikipedia:

A sticking knife is primarily an agricultural tool. Sticking knives resemble daggers in shape and function, but are made for the utilitarian purpose of "sticking" or bleeding out livestock in home butchering. In some cases the animal would die directly from blood loss, where in others the animal would be killed beforehand and hung by the hind legs to bleed out. 

A sticking knife usually consists of a double-edge pointed blade approximately six inches long. Blades are traditionally made of high carbon steel (such as 1095). Handles are simple, consisting usually of two hardwood scales riveted through the full, flat blade tang. Sticking knives generally lack any kind of guard. 

Few companies continue to produce sticking knives. Firearms have generally replaced the sticking knife in home livestock processing. Most slaughterhouses use humane killers, which project a steel rod through the skull of the animal. ... The Ontario cutlery company continues to produce traditional sticking knives in their "old hickory" knife line.

For a long time, when people needed to cut the carotid arteries of livestock, they relied on a double-edged sticking knife virtually indistinguishable from a dagger.

Always use the right tool for the job.

I suspect Shandra Charles was not killed during a spur-of-the-moment, out-of-control attack. I suspect instead that her killing was premeditated and well executed.

I don't believe it is a coincidence that her carotid artery and jugular vein, and those of her three-year-old cousin, were transected by a double-edge knife.

I suggest that whomever killed Shandra Charles and Marcell Taylor knew enough about killing that they simply brought the right tool for the job.

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The Impending Execution of Michael Brawner

Jan Michael Brawner, Jr. sits on death row awaiting execution by the people of Mississippi on 12 June. I present the following summary of his crime from the appellate decision in Brawner v. State (2006).

In December 1997, Brawner married Barbara Craft, and in March 1998, their daughter, Paige, was born. Brawner and Barbara divorced in March 2001, she was awarded custody of Paige, and they lived with Barbara's parents, Carl and Jane Craft, at their home in Tate County. Brawner also lived with the Crafts off and on during his marriage to Barbara. 

At the time of the murders, Brawner was living with his girlfriend June Fillyaw, in an apartment in Southaven. According to Brawner, they were having financial difficulties, and on top of that, he had also been told by Barbara that she did not want him around Paige. He testified that pressure on him was building because nothing was going right. 

On the day before the murders, Brawner left his apartment in Southaven at 3:00 a.m. and headed toward the Crafts' house, about an hour away. He testified that he thought he might be able to borrow money from Carl, although in a prior statement he said he had planned to rob Carl. While waiting on the Craft's front steps from approximately 4:00 a.m. until 7:00 a.m., he took a 7-mm Ruger rifle out of Carl's truck and emptied the bullets from it, because "he didn't want to get shot." A dog started barking, and Brawner hid until Carl went back inside, then ran away, thinking Carl might be getting a gun. He then drove back to his apartment. 

Around noon the following day, April 25, 2001, Brawner again drove to the Crafts' house, and knocked on the door, but no one was home. He then put on rubber gloves that he had purchased earlier that day, "took the slats out of the back door," entered the house, and took a .22 rifle. He then went to Carl's workplace and asked him if it would be OK to go out to the house to wait for Barbara and Paige so that he could see his daughter, to which Carl agreed. 

Since Barbara and Paige did not return, Brawner decided to leave, and as he was doing so, Barbara, Paige, and Jane pulled into the drive. After a brief conversation with Jane and Barbara, Brawner became agitated and went to the truck and brought back the rifle that he had taken from the Crafts' house earlier that day. Just as he told Barbara that she was not going to take Paige away from him, he saw Jane walking toward the bedroom and shot her with the rifle. He said he then shot Barbara as she was coming toward him, and went to where Jane had fallen and "put her out of her misery." After this, he shot Barbara again and took Paige, who had witnessed the murders, to her bedroom and told her to watch TV. After Brawner determined that Paige would be able to identify him, and in his words, he "was just bent on killing," he went back into the bedroom and shot his daughter twice, killing her. He then waited in the house until Carl came home from work, and when Carl walked through the door, Brawner shot and killed him. 

Brawner stole approximately $300 from Carl's wallet, Jane's wedding ring, and food stamps out of Barbara's purse. He took Windex from the kitchen and attempted to wipe away any fingerprints he may have left. Brawner then returned to his apartment in Southaven, where he gave the stolen wedding ring to Fillyaw, asked her to marry him, and told her that he bought the ring at a pawn shop. 

Brawner was suspected of the murders and detained by the police. While he was being held at the Tate County jail, Brawner admitted to the shootings in a statement made to the Chief Deputy of the Tate County Sheriff's Department. Brawner also testified on his own behalf at trial and gave essentially the same account of the events as described above. 

Brawner raised the insanity defense at trial, although he testified that he knew at the time of the shootings that his actions were wrong. The trial judge found Brawner competent based on information furnished by the Mississippi State Hospital, which certified Brawner competent to stand trial, and mentally responsible for the acts at the time they were committed. Additionally, a court-appointed psychiatrist, chosen by defense counsel, reported that Brawner was neither insane nor incompetent to stand trial.

Amnesty International argues that Brawner should not be executed because he was, for all practical purposes, defended by an inexperienced attorney who had been admitted to practice the very day Brawner's trial began. I decline to engage in such debates. I defend (by word and deed) only those who did not commit or participate in the crime for which they are being punished.

I oppose any execution in which the person to be executed may actually be innocent. In all other cases, including cases of possible ineffective counsel, I stand mute.

In the case of Michael Brawner, I stand mute.

ADDENDUM:
Michael Brawner was executed by the people of Mississippi on 12 June 2012 at 6:18 PM.

The Case of Preston Hughes III: Shime-Waza

From Principles of Judo Choking Techniques: "Different Chokes for Different Folks"

Shime means constriction and waza means technique so this group of techniques are all those involving constriction. ... Compression of the carotid arteries is desirable because it requires the least force, is the quickest acting of the choking techniques, is the most universally effective against all opponents, and it is most in keeping with the efficiency principle of Judo, "maximum effect with minimum effort." ... A good strangulation hold should render the opponent unconsciousness without injury or significant pain in a matter of seconds regardless of whom the opponent is.

From Deaths Allegedly Caused by the Use of "Choke Holds" (Shime-Waza) 

The "choke holds" known as shime-waza used in the sport of judo have been taught and used by law enforcement officers to subdue violent suspects. ... If the carotid artery hold is properly applied, unconsciousness occurs in approximately 10 seconds (8-14 seconds). ... [T]he amount of pressure directed to the superior carotid triangle needs to be no more than 300 mm Hg to cause unconsciousness in an adult. A female can, if the choke is properly performed, without great strength "choke out" a male twice her size. The state of unconsciousness ... is caused by a temporary hypoxic condition of the cerebral cortex. ... It has been confirmed that complete obstruction of blood flow to the brain ... will result in irreversible damage to the body which often results in death. While unconsciousness (ochi) caused by choking (shime) in judo is a temporary reaction which incapacitates the opponent for a short while, its execution is quite harmless.

Judo has been around for 130 years. From more than a century, judoka (those who practice judo) have known that a human can be rapidly rendered unconscious by preventing blood flow to the brain via the carotid arteries. If both common carotids are constricted, unconsciousness occurs within 8 to 14 seconds.

In Silence of the Lambs, I presented experimental evidence that a sheep's brain becomes unresponsive in 14 seconds if both carotid arteries and both jugular veins are severed. That's remarkably close to the 8-14 second time-of-consciousness for humans after properly applied shime-waza.

In Where's Willis, I presented evidence that sheep and humans have nearly identical blood volumes and cardiac outputs. Based on this post and the two just referenced, it is clear that sheep provide a good analogue for studies of time-of-consciousness after restriction (or diversion) of cardiac arterial flow. When sheep have their carotid and jugular severed on one side only, as did Shandra Charles, then sheep lose brain function in 70 seconds, on average.

There is no reasonable chance that Shandra Charles remained conscious more than 90 seconds after her left common carotid artery was "transected" (completely severed) by a double-edge blade. It is therefore impossible that Shandra Charles provided a dying declaration to Sgt Hamilton who arrived on the seen no more quickly than 10 minutes after the attack.


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The Impending Execution of Abdul Awkal

Abdul Awkal sits on death row awaiting execution by the people of Ohio on 6 June. I present a summary of his crime from the appellate decision in Awkal v. Mitchell (2009).

On January 7, 1992, appellant, Abdul Hamin Awkal, shot and killed his estranged wife, Latife Awkal, and his brother-in-law, Mahmoud Abdul-Aziz, at the Family Conciliation Services Department of the Cuyahoga Domestic Relations Court. Appellant was captured in the courthouse basement not far from where the shooting took place. 

Awkal arrived in the United States from Lebanon about 1984, when he was twenty-four. He lived with family members in Detroit, Michigan, and worked as a dishwasher and gas station attendant. In 1985, Awkal suffered a mental breakdown at the gas station after he believed he had been accused of theft by his employer. He became hysterical, cursing and breaking things, vomited and then collapsed. He was taken to Detroit Medical Center in a straitjacket. Awkal was apparently released into his brother's custody later that same day, but disregarded instructions to follow up with a psychiatrist. 

Later, Awkal began working at a General Motors factory in Michigan. He was eventually transferred to the Chevrolet plant in Parma, Ohio. He had difficulty sleeping during this period, and was prescribed medication to help him sleep. 

Awkal's family arranged for him to meet his wife, Latife, after his arrival in Cleveland. This type of arranged marriage was common in his Islamic faith. Awkal's need for sleeping pills diminished after he met his wife. Awkal and Latife were married under Islamic law in March 1989 and under Ohio law in April 1989. Later in 1989, Awkal went to Cleveland Metropolitan General Hospital complaining of numbness down his side. Although Awkal was again told to talk to a psychiatrist, he never did so. Awkal and Latife had a daughter, Zaynab, born in September 1990. 

On their honeymoon, Latife told Awkal she did not love him, but that she understood that love would follow. He unsuccessfully attempted to improve their relationship by opening a bank account for her, teaching her to drive, encouraging her to attend school, and helping her parents with various household tasks. 

Latife and her brothers felt that Awkal was not a good Muslim. Awkal did not spend sufficient time in daily prayer and he enjoyed music and celebrating Christian holidays, such as Christmas. Latife and her brothers did not listen to music, or celebrate Christian holidays, and prayed five or six times a day. Latife's brother, Mahmoud Abdul-Aziz, tried to teach Awkal the tenets of their family's Islamic faith, but Awkal viewed Mahmoud's actions as interference with his freedom, and believed that he was harassed and threatened by Mahmoud because of his religious beliefs. 

Awkal's marital life was dissolving. Latife spent many nights away from Awkal and eventually asked for an Islamic divorce. According to Awkal, a Muslim husband may divorce his wife merely by telling her, "I divorce you, I divorce you, I divorce you." Awkal granted her request on October 13, 1991, but then Latife agreed to remarry him under Islamic law. Latife felt that she had been shamed and that her baby had been made illegitimate by the divorce. 

On October 16, 1991, Latife found out that she had contracted a venereal disease from Awkal. The next day, Latife moved out of the marital home, moved in with Mahmoud, and started divorce proceedings. A divorce complaint and motions for spousal support, child support, visitation and restraining orders were filed in October 1991. Latife talked of returning to Lebanon with the baby. 

Awkal was hurt by his family problems and sought counseling, but declined medication. Awkal had counseling sessions four times in November 1991, because he was depressed and suicidal. These feelings were brought on by the divorce and Awkal's belief that Latife's brothers and their religion had interfered with his life and his marriage. Awkal's psychological records reflect that he was very angry with Latife and her brothers because of the divorce. 

On November 8, 1991, Awkal bought a nine-millimeter semi-automatic pistol, allegedly to defend himself from Latife's brothers. The evening of that same day and the morning of the next, Awkal called Latife and her brother, Omar Abdul-Aziz, threatening to kill her and her entire family if the divorce was not dismissed. Latife reported the call to her divorce attorney, who sent a letter to Awkal's attorney regarding the threats. 

Awkal attended hearings in his divorce case on December 10, 17, and 19, 1991, without incident. During this period, Awkal and Latife agreed to a child visitation schedule and temporary child and spousal support. At Latife's insistence, the visitation order prohibited Awkal from participating in any Christmas-related activities with the baby during his visitation. Awkal also agreed that the family checking accounts, containing approximately $4,800, which had been frozen by the domestic relations court, were to be equally divided between Latife and Awkal. 

A meeting was scheduled for 2:00 p.m. on January 7, 1992, at the Family Conciliation Services Department, Room 52, located in the basement of the old Cleveland courthouse. Latife came early to the meeting with her brother, Mahmoud, and her baby. They waited in the hall outside for Awkal to arrive. 

Awkal arrived at the courthouse parking garage at 1:48 p.m. from Michigan, where he had spent the weekend with relatives. On his person were copies of the baby's medical records, which had been checked out from the treating HMO over a month earlier, and numerous childcare supplies, including diapers, baby food, and clothing. Prior to the meeting, Awkal wrote a check to his brother for nearly the entire contents of the frozen checking accounts, and changed his address at the post office to his brother's house in Michigan. 

Awkal confronted Mahmoud and Latife in the hallway at approximately 2:00 p.m. No harsh words or raised voices were heard from the hall before the shooting. However, "panicky" voices were heard immediately before the three entered Room 52. Awkal chased Latife and Mahmoud into the room, where he shot his wife and her brother at close range. Five shell casings were found inside the room; one shell casing was found in the hall outside the room. 

Awkal then picked up the baby from the bench outside the room and walked quickly through the basement halls of the courthouse with her in his arms. Several armed deputies confronted Awkal in the hallway. Awkal pointed his gun at his head and then at his daughter's head, threatening to kill her and then himself. Awkal vowed that nobody was going to take his baby. 

When a deputy tried to grab Awkal's gun, Awkal backed further down the hall with the baby. While proceeding down the hall, Awkal was confronted by another deputy, who attempted to disarm Awkal. Awkal evaded this attempt, but was shot in the back while trying to escape. 

When Awkal was taken into custody, his pistol was cocked, ready to fire, and contained six live rounds (one in the chamber; five in the magazine). Awkal also had another magazine containing thirteen rounds of live ammunition in his coat pocket. The bullets retrieved from Mahmoud's body and from Room 52 were fired from Awkal's gun. 

At the hospital the next day, Awkal, after being advised of his Miranda rights, told police that he had confronted Mahmoud in the hallway and demanded that Mahmoud "profess that Allah was the only God." When Mahmoud did not do so, Awkal shot the victims. Awkal stated that he thought that he had shot himself. 

Awkal was indicted on two counts of aggravated murder with prior calculation and design, including the multiple-murder death penalty specification. He was also indicted on two counts of felonious assault, including a firearm specification. Awkal pled "not guilty" and "not guilty by reason of insanity" to the charges against him. 

While awaiting evaluation by a court-appointed psychiatrist to determine whether he was sane and competent to stand trial, Awkal reportedly had hallucinations involving his wife, who spoke to him and told him to join her. Two psychiatrists had examined Awkal at the county jail and found him to be depressed and angry. Awkal was prescribed anti-depressant and anti-anxiety drugs. These drugs did not stop him from having the hallucinations, and he was prescribed different anti-psychotic and anti-depressant medications. 

Awkal was found sane at the time of the murders in the preliminary sanity report. However, the severity of his depression rendered him incapable of aiding with his defense, and the trial court found Awkal not competent to stand trial. He was ordered to the Dayton Mental Health Center, Forensic Unit, for treatment and further evaluation. During his stay in Dayton, Awkal continued to receive anti-psychotic medication, but at greater levels. He was also placed on anti-depressant and anti-anxiety medications. On September 3, 1992, the trial court found Awkal competent to stand trial, but returned him to Dayton for further treatment until the trial started. 

In October 1992, a jury was impaneled. During the trial, defense counsel complained to the court that Awkal's condition had deteriorated and suggested that a new competency evaluation be undertaken. The trial court refused to have Awkal reevaluated, but stated that it would watch Awkal closely to see that he was paying attention to the trial and helping with his own defense. After the state closed its case in chief, the trial court dismissed one of the felonious assault charges. 

Several witnesses testified on Awkal's behalf during the guilt phase. Dr. Paul E. Hewitt, a psychologist, was called to give an opinion on the issue of prior calculation and design. However, when the court learned that Dr. Hewitt was not a licensed psychologist in Ohio, his testimony was stricken from the record. Dr. Magdi S. Rizk, the psychiatrist who conducted Awkal's pretrial sanity and competency evaluations, testified that Awkal was sane at the time of the murders. Finally, Dr. Eileen S. McGee, a psychiatrist awaiting board certification, testified that Awkal was insane at the time of the shooting, that he did not know what he did was wrong, and that Latife and Mahmoud had provoked the incident. 

Awkal testified on his own behalf. He stated that Mahmoud and Latife's other brothers were religious fanatics, and had harassed him and interfered in his life. Awkal testified that he purchased the gun to protect himself from Latife's brothers, who had threatened him and, on one occasion, forced him to kneel down before them, swearing allegiance to their religious sect. He denied threatening Latife or her brother. 

Awkal stated that on the morning in question he met Latife in the hallway of the courthouse, and asked her to come back to him. She refused, and he went back to his car to get his gun, intending to kill himself in front of Latife to make her regret her decision to divorce him. When Awkal returned he asked Latife if he could hug his daughter one last time. Latife agreed, but Mahmoud confronted Awkal, stating that the baby was not Awkal's, and that Awkal would never see her again. Awkal testified that Mahmoud's face "turn[ed] into that of a monster" and that the walls then collapsed. The next thing Awkal knew, he awoke in the hospital. 

On rebuttal, the prosecution presented Dr. Edward Dutton, a forensic psychiatrist, who testified that Awkal was malingering, that he understood what he had done was wrong, and that he had acted out of anger. 

The jury found Awkal guilty as charged on the aggravated murder charges, but not guilty on the remaining felonious assault charge. 

Several witnesses, including Drs. Paul Hewitt, Eileen McGee, and Salah Samy, testified on Awkal's behalf during the penalty phase. Dr. Hewitt testified that Awkal's problems were part of a life-long anxiety problem, and believed that Mahmoud's threats and religious fanaticism were extremely strong provocation and had facilitated the shooting. Dr. Hewitt believed that Awkal's reaction was spontaneous and that he did not have the ability to conform his conduct to the requirements of Ohio law when he committed the murders. 

Dr. McGee testified that the religious interference of Mahmoud and his brothers was a strong provoking force in the murders. Dr. McGee also testified that Awkal's reaction was triggered by Mahmoud's provocation, and that Awkal did not have the ability to conform his conduct to the requirements of the law of Ohio when the murders occurred. 

Dr. Samy, Awkal's treating psychiatrist in Dayton, testified that Awkal was not malingering, and that he lost his judgment and control and awareness of what he was doing just prior to the murders. Dr. Samy testified that Awkal was not sane at the time of the murders. Dr. Samy also believed that Latife and Mahmoud facilitated the incident. 

Awkal gave an unsworn statement, in which he explained his childhood situation, his religious problems with his brothers-in-law, and how these religious problems caused his marital problems. He also talked about how after Mahmoud's face became that of a monster, the walls collapsed down upon him. The next thing Awkal knew, he woke up in the hospital. 

The prosecution rebutted this testimony with Dr. Edward Dutton, who believed that Awkal was malingering. 

The jury found Awkal guilty of the aggravated murder charges and recommended death. The trial court agreed and imposed the death penalty. The court of appeals affirmed the decision of the trial court.

There is no question that Adbul Awkal shot and killed his wife, Latife Awkal, and her brother, Mahmoud Abdul-Aziz. The argument centers on whether Awkal was sane at the time he committed the murders and sane now as the people of Ohio prepare to execute him. That is a debate in which I decline to become involved.

I oppose any and all executions in which the person to be executed may not have actually committed or participated in the crime for which they are to be executed. In all other cases, including cases of mental disability, I stand mute.

In the case of Abdul Hamin Awkal, I stand mute.