Legal complexities stall executions of Idaho killers | Local News ...

Paul Blomberg is a man of faith.

It is his Christian faith that kept him from drifting into despair after his 22-year-old daughter Samantha Maher was abducted, raped and killed by a stranger in 2000.

Blomberg?s faith allowed him to endure weeks of horrifying testimony during a jury trial and two sentencing hearings ? seven years apart ? for Darrell Payne, the man sentenced to death two separate times for his crimes.

What Blomberg does not have much faith in, however, is an Idaho legal system that does not execute Death Row prisoners.

Since the Idaho death penalty was reinstated in 1979, more Death Row inmates (three) have been freed than have been executed (one). More than half of the 40 people given the death penalty have had their sentences changed and are no longer candidates for execution.

That could change Friday. Convicted killer Paul Rhoades is scheduled to die at 8:10 a.m. His lawyers have challenged Idaho?s lethal injection protocol as unconstitutional and asked for a stay of execution; U.S. Magistrate Judge Ronald Bush is expected to rule Monday. On Thursday, Bush said he has some doubts the Idaho Department of Correction is ready to execute Rhoades.

If Rhoades? death proceeds as scheduled, he will be the first Death Row inmate executed against his will since 1957. Keith Wells, a convicted murderer, waived his appeals and was executed in 1994.

?It would be a positive thing for the justice system if it actually happens,? Blomberg said last week. ?Even then, why did it take (24) years for this to happen??

WHY HAVE A DEATH PENALTY?

Blomberg wouldn?t be surprised by another delay.

A year ago, he told the Statesman this story about a conversation he?d had a year before with Idaho Attorney General Lawrence Wasden.

?I sat across from Lawrence Wasden and asked him, point blank, if Idaho will ever execute anyone. He told me no,? Blomberg said.

?We believe the death penalty is just. We think it is appropriate (for Payne). But if the state of Idaho is going to have a death penalty and never enforce it ... why have one in the first place? Victims have no idea what they are in for.?

A spokesman for Wasden says the AG remembers the conversation differently and did not say no one will be ever be executed, but understands Blomberg?s frustration.

The biggest challenge Wasden?s staff says it faces in death penalty cases is getting them through the 9th Circuit Court of Appeals.

The AG?s office said the 9th U.S. Circuit Court of Appeals has the longest average decision time of any of the 13 circuits in the United States. The Los Angeles Times found it takes an average of 16.3 months for 9th Circuit panels to issue opinions, compared with an average of 11.7 months for all other circuits, citing data from the Administrative Office of the U.S. Courts (the number are for all appeals, not just death penalty cases, which can take longer).

If you ask defense attorneys and other experts, they say the answer is not that simple.

When the death sentence is at stake, legal issues are vetted with great care. Death penalty cases are scrutinized at such an intense level, these lawyers say, that finding errors is almost inevitable ? and some lawyers dispute the idea that the 9th Circuit is that much more of a roadblock.

?If somebody asked me why we haven?t had executions, the simple answer would be that these cases are just so very complex,? said Teresa Hampton, an Idaho federal public defender who represents several of Idaho?s Death Row inmates in federal court ? including Rhoades.

In fact, a three-judge panel from the 9th Circuit Court upheld Rhoades? Idaho death sentence in July 2010, paving the way for his Nov. 18 execution.

ON DEATH ROW SINCE 1988

Rhoades was sentenced to death in 1988 for the rape and murder of Idaho Falls teacher Susan Michelbacher, 34, and the kidnapping and murder of Blackfoot convenience store clerk Stacy Dawn Baldwin, 21.

Rhoades also is serving a life sentence for the shooting death of Nolan Haddon, 21, of Blackfoot at an Idaho Falls convenience store. The murders happened in February and March 1987.

Rhoades has been close to death before ? in 1991 and 1993 ? but his execution was stayed after appeals to U.S. Supreme Court and U.S. District Court. Now, however, all Rhoades? legal appeals have been heard and rejected.

If Bush rejects Rhoades? request for a stay Monday, Rhoades still can try to get the 9th Circuit Court of Appeals or the U.S. Supreme Court to consider his case.

Nolan Haddon?s brother recently told the Post-Register in Idaho Falls that his family wants to see Rhoades executed.

?He?s lived so long now I?m sick and tired of hearing about it,? Wes Haddon said. ?It keeps going on and on.?

APPEALS ARE AUTOMATIC

In Idaho, a death sentence is subject to an automatic review by the Idaho Supreme Court. If the court rejects the case, the conviction can be appealed to the U.S. District Court in Idaho, the 9th Circuit Court of Appeals and then the U.S. Supreme Court. Cases that get bounced back to the state courts can go through all those courts again.

Of the 40 inmates given the death penalty since 1979, eight have had their death sentences reversed by the Idaho Supreme Court, according the Idaho attorney general?s office. Ten cases are pending in the U.S. District Court in Idaho or the 9th Circuit Court of Appeals.

Three cases were reversed or settled by negotiation in the 9th Circuit Court of Appeals. The U.S. Supreme Court reversed the death sentence of convicted killer Bryan Lankford.

Three inmates have died while in prison.

Three inmates ? Donald Paradis, Thomas Gibson and Charles Fain ? have been freed because of new evidence.

The remainder are death sentences issued over the past decade ? including those for Payne, Azad Abdullah and Erick Hall (both 2005) ? all of which have appeals making their way through the state courts.

WHAT ROLE DOES THE 9TH CIRCUIT PLAY?

By all accounts, it is hard to get a death penalty case upheld by the 9th Circuit Court of Appeals.

Just this year, the court determined that Lacey Sivak ? on Idaho?s Death Row since 1981 ? needs a new sentencing hearing. The 9th Circuit ruled that while Sivak?s conviction on first-degree murder charges is appropriate, the outcome of his sentencing hearing might have been different if Ada County prosecutors hadn?t knowingly presented the testimony of an inmate who had perjured himself. That case is 30 years old.

Assessing the 9th Circuit?s role is ?complicated,? says Shaun P. Martin, a law professor at University of San Diego School of Law who studies the appeals court.

?But my strong view is that while the 9th Circuit makes it relatively difficult to execute people, it?s definitely still possible,? he said, ?and plenty of states in the 9th Circuit have successfully executed murderers at much higher rates than Idaho has been able to pull over.?

He does note that other circuits, such as the 4th (based in Virginia and including the Carolinas and Maryland) and the 5th in Texas (including Louisiana and Mississippi) ?are more pro-death penalty.? ?As a result,? Martin said, ?Virginia ends up executing around two-thirds of people who are sentenced to death and Texas executes around half. ... So it?s true that it?s harder to execute people in the 9th Circuit than in some other circuits.?

But Idaho has to share the blame, he said. States in the 9th Circuit have executed more inmates, such as Montana (three of 10) and Nevada (about 10 percent) since the late 1970s.

?It?s a fair piece higher than Idaho?s execution rates,? Martin said.

Idaho?s few executions could be a statistical anomaly, Martin said. Or, he said, ?Idaho prosecutors aren?t as good at arguing in the 9th Circuit and/or capital prosecutions in Idaho are relatively more flawed than in other states ? perhaps because those other states have more experience in capital prosecutions.?

Patrick Orr: 377-6219

Source: http://www.idahostatesman.com/2011/11/13/1876611/legal-complexities-stall-executions.html

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