State v Demps - notes by Glenn M Larkin MD May 14^th, 2000

This whole argument is bases on of the civil rights act (42 USCA§ 1983. There is ample documentation against the infliction of corporal punishment of which capital punishment is a form. If the assault of Rodney King was a violation of King's Civil; Rights, then the execution of an innocent man is also.

Am argument can probably be worked up on attempt to kill Bennie Demps-- the governor has shown his intent, and with more that one person involved, the warden, the guards the executioner, etc, there is arguably a conspiracy already in progress -- that is if Bennie is de facto innocent.

I cannot research all these cases below, but have gotten them from a variety of sources, I will attempt to research as many as I can, but anyone can look them up on

FIND LAW--- US SUPREME COURT DECISIONS

No	Appellant/ Petitioner	Respondant	Citation	COMMENT
1	Preiser v	Rodreguez	411 US 475 (1972)	exhaustion
2	Haines v	Kerner	404 US 519 (1972)	"improper to dismiss pre se complaint, unless there is no basis in fact for claim"
3	Roberts v	Acre	495 F 2d 57 (7th cir 1974)	Suit must be filed against someone acting under color of state law
4	Gittlemacker v	Prasse	428 F 2d 1 3^rd cir 1970)	Claims against defendant must be specific
5	Pierson v	Ray	386 US 547 (1967)	Contra/ relative immunity if defendant believes that he is acting legally
6	Clark v	Caddy	358 F Supp 1156 (WD Wisc 1973)	Pierson (qv) does not protect against clear cut constitutional violations
7	Rozecki v	Gaughan	459 F 2 6 (1^st cir 1972)	Good faith believe is a defense against monetary relief. But not equitable relief
8	Monroe v	Pape	365 US 167 (1961)	§ 1983 is supplementary to state remedy, and latter should first no

If Bennie Demps is in fact innocent, he would be denied his civil right to life by the upcoming execution. By making this claim, he should be given the right to present briefs, and more likely than not, oral arguments and a hearing.

This argument has to be based on the fact (something I have not been able to research) that killing someone is an assault in this case. There is also probably a kidnapping charge since he has been "illegally restrained on death row for so many years", This is a weak argument, since even if gets relief from this sentence, he will still remain in prison for the previous murder.

By entering this suit, if accepted, because if the case comes to trial, and he wins it, he will have "bew evidence" unavailable previously because the results of this case would just come out at the time of this trial (if allowed).

Even the purists for the death penalty will have something to ponder: Speculating here..

If the sought civil trial determines that Demps is not responsible in the murder, by a preponderance of the evidence -- as is the standard in civil trials-- he will have met the Schlup v Delo standard in a new habeas corpus, which should be allowable since Townsend v Sain is still operative.

The ADEPA act of 1996 also has a clause that separates claims of de facto innocence from other claims. Add to this the upcoming debate on Senator Leahy's "Fair death Penalty Bill" in Congress, and the possibility that it will be passed, Demps should be stayed until that bill is either made law, or rejected: if made law, he gets a new chance to prove innocence, if rejected, he can fall back on the above,

9		Schlup v		Delo		513 US 297		Sets standard for habeas relief
10		Allen et al v		Butterworth and State of Florida		SC–00–112, SC–00–154, SC–00–410		Admonishes the lower courts for not delivering decisions as a source of delay
11		Townsend v		Sain		273 US 393 (1962)		Sets criteria where state MUST hold hearing
12		Murray v		Carrier		477 US 478 (1994(?))		Sets criteria for hebeas revies and procedural error
13		Matthews v		Ethridage		414 US 319		Due process requires the opportunity to be heard
14		Mills v		Danner Tramway		USC App (10^th cir 1946) , 155 E 2d 806		Appellate must use common sense with respect to facts not mentioned in transcript
15		United States v		Augers		427 US 97		If evidence not presented to jury would have resulted in reversal, must reverse...
16		Enmund v		Florida		488 US 782		Substantial part doctrine-- might apply to Demps if he cannot prove innocence
17		Price v		Johnson		384 US 366		"primary purpose of Habeas Corpus is to make certain that a man is not unjustly imprisoned"
18		Kyles v		Whitley		514 US ___		Defines materiality of evidence (new and old)
19	Flowers v		North Carolina		553-A-94 (NC Supreme Court		A similar case to Demps'
20		Johnson v		Florida		370 US 576		"mere presence [at scene] not sufficient to secure conviction"

I enclose a similar case as Benny's for your consideration. State v Flowers NC Supreme Court 553-A-94,. The similarities are clear-- Flowers, then serving a life sentence for a previous felony-murder, was charged with this murder in prison, of an inmate, based essentially on a 'confession" corroborated by other inmates-- those who actually did the murder, and by testifying against Wendell, were able to get a reduced sentence.

After the trial was over, the other inmates recanted their testimony, and stated to a man (all four of them) that Wendell was not even in the cell when the murder occurred. I quote from the NC Supreme Court decision denying Wendell's appeal, and affirming the death sentence.

However cooler heads prevailed, and Governor Jim Hunt after receiving a number of letters -- one of them by me -- commuted his sentence to Life without parole, because of the nagging question of doubt.

In a second North Carolina case State v Rich, Rich killed another inmate in the same prison, and confessed, exonerating several other inmates. He waived appeals, and was the last man to ever die in North Carolina's gas chamber. Because of leaking gas, and a gas related accident, the State Legislature ruled out the gas chamber as of 27 October 1998.

The "big" case involving a prison related death was Schlup v Delo cited above. Along with several other inmates. Schlup was convicted of killing another inmate. He strongly denied being involved, and had a TV monitor showing that he was at a different part of the prison when the murder went down. Missouri was not convinced, and his appeal went tot he US Supreme Court. As a result, a claim of actual innocence as part of a habeas corpus is given special handling, and does not require "clear and overwhelming" evidence as previous needed to get a reversal.

Schlup is is in prison, serving time for the original crime that got him there in the first place. These cases do underline the difficulty Benny has using the usual path, and I do feel that the direction suggested may cut some ice.

---The excerpt from Flowers follows: you will see the similarities.

The defendant and the victim, Rufus Watson, were inmates under the control of the North Carolina Department of Correction at the Piedmont Correctional Institute in Salisbury, North Carolina. In May of 1989, both the defendant and the victim resided on the fourth floor of the residence tower in Cell Block D. The defendant resided in cell 6, and the victim resided in cell 2. Piedmont Correctional Institute was built to house medium-custody inmates; however, in 1989 it housed only those inmates requiring the highest level of security. The only time inmates were locked into their individual cells was between 11:30 p.m. and 6:00 a.m. on weeknights and between 2:00 a.m. and 6:00 a.m. on weekends. Inmates were required to remain in their locked cell blocks every night between 9:30 p.m. and 6:00 a.m. The remainder of the time, the inmates were able to move throughout the facility without escort. To keep track of the inmates, the guards conducted a head count three times a day.

On 13 May 1989, Officer Bobby Ray Settle, a prison guard assigned to the fourth floor, conducted the morning head count shortly after 6:00 a.m. On that morning, Officer Settle found every inmate present and alive. Around 12:30 p.m. on 13 May 1989, Officer Settle participated in the second inmate head count of the day. The door to cell 2 was closed and locked, and paper was covering the cell window. After knocking and hearing no response, Officer Settle unlocked and entered the cell. Upon entering cell 2, Officer Settle discovered Rufus Watson lying face down on his bed, covered with a blanket. Upon receiving no response from Watson, Officer Settle raised the blanket and saw blood on the body.....

Consider whether this murder was actually committed by another person or persons and the defendant was only an accomplice in the murder and his participation in the murder was relatively minor. The distinguishing feature of an accomplice is that he is not the person who actually committed the murder.

You would find this mitigating circumstance if you find the victim was killed by another person and that the defendant was only an accomplice to the killing and that the defendant's conduct constituted relatively minor participation in the murder. If one or more of you finds by a preponderance of the evidence that the - - that this circumstance exists, you would so indicate by having your foreperson write "yes" in the space provided after this mitigating circumstance on the issues and recommendation form. If none of you finds this circumstance to exist, you would so indicate by having your foreperson write "no" in that appropriate space.

Number two mitigating circumstance, the second mitigating circumstance: Consider whether the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was impaired. . . .

. . . Further, for this mitigating circumstance to exist, the defendant's capacity to appreciate does not need to have been totally obliterated. It is enough that it has - - was lessened or diminished.

Finally, this mitigating circumstance would exist even if the defendant did appreciate the criminality of his conduct if his capacity to conform his conduct to the law was impaired, since a person may appreciate that his killing is wrong and still lack the capacity to refrain from doing it.

. . . You would find this mitigating circumstance if you find that the defendant had voluntarily consumed drugs or impairing substances and that this - - before the killing of Rufus Watson, and that this impaired his capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law.

The trial court then gave the jury the following instruction regarding the "catchall" mitigating circumstance:

Number three on your form, the third mitigating circumstance finally: You may consider any other circumstance or circumstances arising from the evidence which you deem to have mitigating value. If one or more of you so find by a preponderance of the evidence, you would so indicate by having your foreperson write "yes" in the space provided after this mitigating circumstance on the issues and recommendations form. If none of you finds any such circumstances to exist, you would so indicate by having your foreperson write "no" in that space.

The defendant specifically contends that the italicized portions of the second and fourth paragraphs of the trial court's general instructions failed to make a meaningful or readily understandable distinction between statutory and non statutory mitigating circumstances and do not clearly instruct the jury which circumstances the jury is free to deem with or without mitigating value.