US judge's opinion sparks debate of Okla. practice

OKLAHOMA CITY (AP) -- A federal appeals court judge's stinging rebuke in an Oklahoma death penalty case has sparked renewed debate over the constitutionality of a common practice in state courts -- allowing murder victims' relatives recommend to jurors whether the death penalty should be imposed against the perpetrator.

But veteran Oklahoma prosecutors defend the practice. Jurors who must decide whether a defendant in a first-degree murder case is sentenced to death or life in prison should have all of the evidence and testimony they can legally hear, they said.

"Far too often, the victims are forgotten by the criminal justice system," said Oklahoma County First Assistant District Attorney Scott Rowland.

"The jury should be aware of the feelings of the victims in these cases," said District Attorney Greg Mashburn, whose district includes Cleveland, McClain and Garvin counties.

 In May, a three-judge panel of the 10th Circuit Court of Appeals upheld the death sentences of a man convicted of two counts of first-degree murder for the stabbing deaths of a wealthy LeFlore County couple. James Lewis DeRosa, 35, was convicted in the 2000 deaths of Curtis Plummer, 73, and Gloria Plummer, 70.

Among other things, DeRosa's defense attorneys complained that impact statements from the victims' relatives during the penalty phase of DeRosa's trial denied him a fair trial and amounted to a "hyper-emotional plea for revenge." During testimony, one family member told jurors: "My family pleads with you to give the death penalty."

DeRosa's attorneys renewed their objections in a request for a rehearing. On Tuesday, the request was denied, but Judge Carlos F. Lucero, one of two judges who voted to rehear DeRosa's appeal, handed down an eight-page dissenting opinion that takes Oklahoma prosecutors and courts to task for what Lucero says are repeated violations of defendants' constitutional rights in state death-penalty trials.

"I would halt the Oklahoma prosecutors' systematic abuse of the federal Constitution," Lucero's opinion states. "As I note herein, state prosecutors and courts have developed a pattern and practice of non-compliance with -- if not outright ignoring of -- United States Supreme Court precedent that specifically prohibits eliciting from a relative of the victim an opinion as to whether the death penalty should be imposed."

Lucero states that capital defendants in Oklahoma are not provided due process rights guaranteed by the Fourteenth Amendment "as a matter of state law and policy" and questions his own court's "toothless form" of analysis of the cases, which he states "focuses on the reprehensibility of the crime rather than the impact of the improper testimony."

By Lucero's count, the DeRosa decision is the sixth time in the past 10 years that the Denver-based appellate court has dismissed a claim of improper victim-impact testimony in an Oklahoma death penalty case as "harmless error."

"Much of the unconstitutional testimony in these cases is shockingly prejudicial," Lucero wrote. "...By excusing violation after violation in the face of a clearly established pattern of constitutional defiance, we validate Oklahoma courts' practice of flouting the Constitution in death penalty cases."

Federal courts have long scrutinized and criticized the practice of asking murder victims' relatives for sentencing recommendations in capital cases -- a decision that is solely the jury's. But state prosecutors said it's only fair that victim's families give their opinion since members of defendants' families routinely plead for jurors to spare his life.

"The question is, is it fair to let one side do it and not the other?" Rowland said. "They always call family members to plead for his life."

That was the case in 2010 when William Eugene Davis was found guilty and sentenced to death for the Sept. 4, 2007, shotgun slayings of three women, including two of his sisters and the mother-in-law of one of the women, in Norman. Jurors heard some victims' family members recommend Davis receive the death penalty and others recommend a life prison sentence.

Earlier this month, Davis was found dead inside his cell at the Oklahoma State Penitentiary. Prison officials said there were no signs of foul play on Davis, 55, but the cause of death has not been made public by the Office of the Chief Medical Examiner.

Mashburn, one of the prosecutors in the case, said he does not believe eliciting sentencing recommendations from victims' family members violates the defendant's rights.

Mashburn said a state law specifically authorizes victim impact evidence including "information about the financial, emotional, psychological and physical effects of a violent crime on each victim and members of their immediate family ... circumstances surrounding the crime, the manner in which it was perpetrated, and the victim's opinion of a recommended sentence."

"The law in the state of Oklahoma is absolutely, 100 percent that the victim's family

has the right to do this. That's what I plan on doing until the law changes or the courts decide otherwise," Mashburn said.

District Attorney Mike Fields, whose five-county district stretches from Canadian County west of Oklahoma City to Grant County on the Kansas state line, said victim impact testimony is an integral part of Oklahoma's capital punishment scheme.

"A prosecutor would be hard pressed to not allow a victim say that on the stand," Fields said. "We should let them weigh in."

Fields was part of a team of prosecutors who convicted Wendell Arden Grissom, 43, and Jessie Floyd Johns, 61, of first-degree murder for the Nov. 3, 2005, shooting death of a woman in Kingfisher -- a trial where victim's family members provided jurors with sentencing recommendations. Grissom was sentenced to death while Johns received a life prison sentence without parole.

Rowland, who has prosecuted several death penalty cases, said he does not ask for sentencing recommendations from victims' family members.

"That's just to be extra careful. I don't want any error in my case," Rowland said. "But I will not condemn other prosecutors for doing it. I don't think there is a clear U.S. Supreme Court decision prohibiting it."

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