Alabama
Ex-judges, others urge retrial for death row inmate
MONTGOMERY, Ala. (AP) — A number of former judges and prosecutors — including two previous Alabama chief justices and a state attorney general — have joined those seeking a new trial for a death row inmate amid questions about his conviction more than 20 years ago.
Former Alabama Attorney General Bill Baxley, former chief justices Sonny Hornsby and Drayton Nabers and several former judges and prosecutors have submitted briefs supporting a new trial for Toforest Johnson who was convicted of the 1995 murder of a deputy sheriff.
“The petition before the Court is an extraordinary and rare situation in which the evidence of constitutional violations and Mr. Johnson’s innocence is genuinely overwhelming,” wrote attorneys representing Nabers, former Alabama Supreme Court Justice Ralph Cook and others.
Johnson, 48, was convicted and sentenced to death for the murder of Jefferson County Deputy Sheriff William Hardy. Hardy was shot twice in the head while working off-duty security at a hotel in 1995. Johnson has maintained his innocence and said he was at a nightclub at the time of the shooting.
The key prosecution witness at the trial testified that, while eavesdropping on a phone call, she heard a man she believed was Johnson admitting to the crime. She was paid $5,000 for her testimony but the defense was not informed of the payment.
The former court officials are supporting Jefferson County District Attorney Danny Carr’s urging for a new trial. Carr wrote last year that he took no position on Johnson’s innocence or guilt but said there are concerns about his trial. He wrote those include that a key witness was paid a reward, a fact not mentioned at trial, and alibi witnesses place Johnson in another part of town at the time of the shooting.
Carr, who was elected in 2018, was not the district attorney during Johnson’s trial.
Baxley signed on to a separate brief arguing the court should grant the request for a new trial, and he wrote an opinion piece that appeared in The Washington Post on Wednesday urging action.
“I have never known anyone in Alabama’s courts or law enforcement who would knowingly go along with executing an innocent man. But unless Johnson is granted a new trial, we risk doing so. This would be an offense against all Alabamians — even those who, like me, believe in the death penalty,” wrote Baxley, who served as the state’s top prosecutor for much of the 1970s.
The Innocence Project also filed a brief urging a new trial. “If ever a case bore the hallmarks of a wrongful conviction, Toforest Johnson’s is it,” lawyers with the nonprofit legal organization wrote. It said: “Inconsistent prosecutorial theories, a prosecution that depends on a single ‘earwitness’ identification—and a compensated earwitness at that—and later-expressed prosecutorial doubt about the strength of the case. Toforest Johnson’s case checks all of these boxes.”
The briefs were filed with Jefferson County Circuit Judge Teresa T. Pulliam who last March denied Johnson’s request for a new trial on the grounds of withheld evidence. Pulliam found that Johnson’s attorneys had not established that the witness, Violet Ellison, was motivated by the financial reward or that prosecutors knew about it.
The Alabama attorney general’s office wrote in a January court filing that Pulliam’s March decision is before the Court of Criminal Appeals so arguments on the latest new trial request must wait until that is settled.
Washington
Mistrial declared in murder case
YAKIMA, Wash. (AP) — Anthony Gregory Mallory’s murder trial has ended in a mistrial, and prosecutors are preparing to take the case to court again.
Yakima County Superior Court Judge Gayle Harthcock declared the case a mistrial Tuesday after investigating reports that a juror had brought information obtained from outside the trial into jury deliberations, which began Monday afternoon, Yakima County Prosecuting Attorney Joe Brusic said.
Jurors are only allowed to use what they heard and saw in court in deliberations, and are prohibited from doing their own investigation and research on the case or the law, the Yakima Herald-Republic reported. Harthcock gave jurors this warning every day of the trial.
Mallory, 21, was charged with second-degree murder in the death of Michael Ochoa in August 2018. He’s accused of stabbing Ochoa, a 55-year-old handyman, in the neck in 2018. Ochoa was in the area looking for a trailer he had loaned to a family that had been evicted.
Brusic declined to discuss what happened with the jury, noting he did not want to jeopardize the ability to seat an impartial jury in the second trial.
“We are aggressively going to pursue the case, as we have done,” Brusic said. “We are moving in that direction.”
Kenneth Therrien, Mallory’s attorney, said his client was disappointed, as he wanted to have the case resolved, but he anticipates it will be rescheduled. He said the courts are working through a backlog of cases due to the pandemic, which could affect when a retrial takes place.
Therrien said having a juror ignore the court’s instructions is a “rare occurrence,” but said it demonstrates why the rules are in place to ensure a fair trial.
Wisconsin
Doctor to pay $110K to settle prescription case
MADISON, Wis. (AP) — A Madison doctor will pay $110,000 to settle federal allegations that he wrote prescriptions for controlled substances with no legitimate medical purpose.
The settlement agreement says Dr. David Eckerle has denied the allegations and his medical license remains active.
U.S. Attorney Timothy O’Shea brought the civil case against Eckerle and accused him of violating the Controlled Substances Act.
“The opioid epidemic has caused great harm and deep sadness to individuals, families, and communities here in Wisconsin,” O’Shea said. “In cases unrelated to this matter, this office has seen opiate addictions that begin with a doctor over-prescribing opiate pain pills and that end with the former patient overdosing on heroin or going to prison for drug-related crimes. Wisconsin physicians who increase risks of opiate addiction by irresponsibly prescribing opioids will be held accountable.”
Eckerle worked at Group Health Cooperative of South Central Wisconsin and did not treat patients during the federal investigation, officials said. Group Health said Eckerle is no longer an employee, the State Journal reported.
The government alleged that between May 2016 and January 2020, Eckerle wrote prescriptions for opioids and other controlled substances that had no legitimate medical purpose and were not issued in the usual course of professional practice, according to the settlement agreement.
Florida
15-year-old accused of killing real estate agent
FORT LAUDERDALE, Fla. (AP) — A 15-year-old boy is accused of forcing a South Florida real estate agent to drive to an ATM and withdraw cash before fatally shooting him last month.
The teen was arrested Friday while in custody on an unrelated case and charged with second-degree murder and robbery. The Broward State Attorney’s Office announced Tuesday they are charging him as an adult in the Feb. 1 killing of Stefano Barbosa, 37.
Stefano had just obtained signatures from a customer that afternoon when the teen approached him with a gun. Prosecutors said the teen forced Barbosa to drive to a Bank of America machine and make two withdrawals of $500.
The teen then shot him in the chest as he drove, news outlets reported. The car crashed through a fence and hit a tree. The teen fled.
The teen turned 15 in December. His criminal record shows he had already been arrested on charges of battery on a person 65 or older; battery on a law enforcement officer; aggravated battery on a school employee; interfering with school functions; threatening a public servant or family; criminal mischief involving religious articles in a church, synagogue or mosque; gambling for money; obstruction; and driving without a valid license.
“This young person’s issues are so significant that they require treatment, help, and services beyond what the juvenile justice system can provide at this time,” Broward State Attorney Harold F. Pryor said in a statement.
On Saturday, while making a first appearance before a judge in adult court, the teen appeared to have difficulty understanding what was happening, the South Florida SunSentinel reported.
“Uh, I don’t understand ... what the big words are,” he told Broward Judge John Murphy.
“I know it says you’re 15 years old, but you’ve been charged as an adult with a first count of murder while engaged in a (second count of) ... robbery with a firearm,” Murphy explained, adding that he would not be released on bond.
Fort Lauderdale police identified the teen through surveillance videos from the neighborhood and the bank. They showed the photos to people in the area, who recognized him.
According to police, the teen was a student at Cross Creek School in Pompano Beach, which is a school for children with severe emotional and behavioral disorders. Three staffers at the school also identified the teen from the photos.
Investigators learned his cellphone showed he was in the area where Barbosa was kidnapped on Feb. 1, and a search of his phone’s history showed that he accessed a news story about the killing on Feb. 2, the newspaper reported.
The teen now faces life in prison if convicted of murder. If he were to be convicted in juvenile court, he would be released after three years and could only be kept under supervision until he turns 21, the state attorney said.
Virginia
Lawsuit challenges new admissions policy at elite school
ALEXANDRIA, Va. (AP) — A conservative legal group is suing a northern Virginia school district for discriminating against Asian Americans by overhauling the admissions process at a selective public high school to recruit more Black and Hispanic students.
The Pacific Legal Foundation held a press conference Wednesday morning to discuss a lawsuit against Fairfax County Public Schools over the admissions policies at Thomas Jefferson High School for Science and Technology.
The school is frequently ranked as the best in the country, and families plan for years to try to help their children gain admission.
The student body is 70% Asian American, with miniscule numbers of Black and Hispanic students.
The Fairfax County school board voted last year to overhaul the admissions process and eliminate a standardized test that had been a key part of the evaluation process. Board members have said they hope the new process increases Black and Hispanic representation in the student body.
Opponents of the change argue that the new policy unfairly punishes Asian Americans for being successful academically. Similar debates have occurred at other elite public schools in New York city, San Francisco and elsewhere.
Oregon Youth climate activists try to bring back federal lawsuit
PORTLAND, Ore. (AP) — Youth climate activists are attempting to bring back their suit against the federal government.
They filed a motion Tuesday in federal court in Eugene to amend their lawsuit, Julianna v. United States, The Oregonian/OregonLive reported.
A three-member panel of the 9th U.S. Circuit Court of Appeals last year found a federal judge lacked the power to order or design a climate recovery plan in the high-profile climate change lawsuit. They noted that such a remedy should be made by the nation’s politicians or voters.
Twenty-one young people sued the government six years ago, arguing a constitutional right to a sustainable climate and asked the federal court to order the United States to prepare an energy plan that moves the country away from fossil fuels.
Now, their lawyers are asking a U.S. District Court judge to allow them to change their suit to seek a different ruling: that the nation’s fossil fuel-based energy system is unconstitutional.
Julia Olson, chief legal counsel for Our Children’s Trust, which represents the plaintiffs, said such a court finding would “hold current and future lawmakers accountable for protecting the rights of youth.” The plaintiffs are now ages 13 to 24.
If the fossil fuel energy system is declared unconstitutional, there will be an expectation that government officials would take steps to abide by the law, the lawyers argue.
