Post by Anja Nieser on Sept 11, 2006 3:28:48 GMT -5
DEATH PENALTY TRIAL
Hypnosis again key in a Ney defense
BY RON SYLVESTER
The Wichita Eagle
When North Dakota filed its first death penalty case in more than a century, it looked to Wichita to find a lawyer capable of putting up a defense.
No one in the Wichita legal community was surprised when Richard Ney got the call. Ney is known in legal circles as a skilled criminal defense lawyer -- and as the lawyer who won one of Wichita's more memorable murder cases.
In 1988, Ney helped persuade a jury to find Bill Butterworth not guilty of killing Philip f*ger and his two daughters.
This past week, one of Ney's arguments in the North Dakota trial of Alfonso Rodriguez Jr. brought back memories of the Butterworth trial.
Ney argued that a witness should not take the stand because her memory had been revived through hypnosis.
To the casual observer, that might seem a reversal of positions he argued 18 years ago. Ney, other lawyers and the U.S. Supreme Court say it's not.
State v. Butterworth
The Butterworth case shocked police and prosecutors.
It's credited with helping to oust Clark Owens as district attorney and put Nola Foulston in the office.
It solidified Ney's reputation as a defense attorney.
"There were a lot of homicides in my 26-year tenure, but certain ones stick in your mind," said former Wichita Police Chief Richard LaMunyon. "We felt we had a solid case and that the system failed, in my opinion."
Philip f*ger had been shot in the back and his two daughters, Kelli, 16, and Sherri, 9, drowned in the hot tub at their home near 13th and Woodlawn. Butterworth had installed the hot tub.
One of the key moments of that trial came when Ney persuaded a judge to allow a first in a Kansas courtroom -- that Butterworth testify on memories recovered through hypnosis.
Butterworth took the stand over the objections of prosecutors and told the jury that, under hypnosis, he remembered going to the home and finding Philip f*ger and one of his daughters already dead.
In a panic, Butterworth said, he left in the f*gers' car.
Prosecutors appealed the use of the testimony -- also a rare move. The Kansas Supreme Court upheld the testimony.
This past week in North Dakota, Ney argued a woman's testimony, "enhanced" by hypnosis, should be stricken in a case likely to leave a memorable mark across North Dakota.
U.S. v. Rodriguez
Rodriguez, 53, is facing death in a state that doesn't have a death penalty law.
Neither does neighboring Minnesota, where both Rodriguez and Dru Sjodin, whom he's convicted of killing, lived.
As a result, no lawyer in either state is qualified to defend in a death case.
But when Rodriguez was accused of kidnapping, raping, beating and stabbing the 22-year-old University of North Dakota student, prosecutors decided to make an exception.
The U.S. attorney's office charged Rodriguez in federal court so it could seek death.
Two weeks ago, the jury convicted Rodriguez of abducting Sjodin, of Pequot Lakes, Minn., from the parking lot of a Grand Forks, N.D., shopping mall on Nov. 22, 2003.
Investigators said that after tying her, raping her and slashing her throat, Rodriguez dumped her near his hometown of Crookston, Minn.
That's where the hypnosis testimony comes in.
Prosecutors want to show the jury that Rodriguez has made similar sexual assaults on women dating back to 1974.
Rodriguez had just been released from prison six months before Sjodin's death, after spending 23 years behind bars for assaulting a woman in 1980.
That woman could not identify Rodriguez as her attacker until after she underwent hypnosis.
The judge allowed the jury to consider the conviction, but the woman didn't take the stand.
Ney argued that Minnesota law prevents such testimony as unreliable.
But the courts distinguish between testimony from defendants and that of other witnesses.
The law
The year before Butterworth went to trial, the U.S. Supreme Court decided in an Arkansas case that a defendant's right to testify on his or her behalf outweighs laws that prohibit memories refreshed by hypnosis.
Rock v. Arkansas carved out an exception for defendants that has not been extended to other evidence, such as polygraph tests, or other witnesses.
"A defendant always has a right to testify in his own behalf -- you can't prevent them from doing that," Ney said. "Rock v. Arkansas was only about defendants. Across the board, both in federal and state courts, it's been held to not let (other) witnesses provide post-hypnotic testimony."
Lawyers who try capital cases say they are obligated to raise objections on any issue which might later come up on appeal.
"If you don't make a record and don't object to things like that, you run the risk of screwing up your case," said Jay Greeno, another experienced Wichita lawyer.
"You always hear the story of two defendants in a capital murder case," Greeno said. "One of the attorneys raised an objection when the law was clearly against him. And when it went up on appeal, the higher court reversed the earlier decision. Well, the defendant whose lawyer raised the objection got his case overturned. The other one didn't get to, because his lawyer didn't object."
This week, Ney begins arguing for Rodriguez's life.
The jury will decide whether Rodriguez faces death or life in prison.
Last week, the jury spent more time deliberating the death penalty than it did in determining his guilt.
When the case entered the sentencing phase on Thursday, three jurors wept.
Contributing: Associated Press.
Hypnosis again key in a Ney defense
BY RON SYLVESTER
The Wichita Eagle
When North Dakota filed its first death penalty case in more than a century, it looked to Wichita to find a lawyer capable of putting up a defense.
No one in the Wichita legal community was surprised when Richard Ney got the call. Ney is known in legal circles as a skilled criminal defense lawyer -- and as the lawyer who won one of Wichita's more memorable murder cases.
In 1988, Ney helped persuade a jury to find Bill Butterworth not guilty of killing Philip f*ger and his two daughters.
This past week, one of Ney's arguments in the North Dakota trial of Alfonso Rodriguez Jr. brought back memories of the Butterworth trial.
Ney argued that a witness should not take the stand because her memory had been revived through hypnosis.
To the casual observer, that might seem a reversal of positions he argued 18 years ago. Ney, other lawyers and the U.S. Supreme Court say it's not.
State v. Butterworth
The Butterworth case shocked police and prosecutors.
It's credited with helping to oust Clark Owens as district attorney and put Nola Foulston in the office.
It solidified Ney's reputation as a defense attorney.
"There were a lot of homicides in my 26-year tenure, but certain ones stick in your mind," said former Wichita Police Chief Richard LaMunyon. "We felt we had a solid case and that the system failed, in my opinion."
Philip f*ger had been shot in the back and his two daughters, Kelli, 16, and Sherri, 9, drowned in the hot tub at their home near 13th and Woodlawn. Butterworth had installed the hot tub.
One of the key moments of that trial came when Ney persuaded a judge to allow a first in a Kansas courtroom -- that Butterworth testify on memories recovered through hypnosis.
Butterworth took the stand over the objections of prosecutors and told the jury that, under hypnosis, he remembered going to the home and finding Philip f*ger and one of his daughters already dead.
In a panic, Butterworth said, he left in the f*gers' car.
Prosecutors appealed the use of the testimony -- also a rare move. The Kansas Supreme Court upheld the testimony.
This past week in North Dakota, Ney argued a woman's testimony, "enhanced" by hypnosis, should be stricken in a case likely to leave a memorable mark across North Dakota.
U.S. v. Rodriguez
Rodriguez, 53, is facing death in a state that doesn't have a death penalty law.
Neither does neighboring Minnesota, where both Rodriguez and Dru Sjodin, whom he's convicted of killing, lived.
As a result, no lawyer in either state is qualified to defend in a death case.
But when Rodriguez was accused of kidnapping, raping, beating and stabbing the 22-year-old University of North Dakota student, prosecutors decided to make an exception.
The U.S. attorney's office charged Rodriguez in federal court so it could seek death.
Two weeks ago, the jury convicted Rodriguez of abducting Sjodin, of Pequot Lakes, Minn., from the parking lot of a Grand Forks, N.D., shopping mall on Nov. 22, 2003.
Investigators said that after tying her, raping her and slashing her throat, Rodriguez dumped her near his hometown of Crookston, Minn.
That's where the hypnosis testimony comes in.
Prosecutors want to show the jury that Rodriguez has made similar sexual assaults on women dating back to 1974.
Rodriguez had just been released from prison six months before Sjodin's death, after spending 23 years behind bars for assaulting a woman in 1980.
That woman could not identify Rodriguez as her attacker until after she underwent hypnosis.
The judge allowed the jury to consider the conviction, but the woman didn't take the stand.
Ney argued that Minnesota law prevents such testimony as unreliable.
But the courts distinguish between testimony from defendants and that of other witnesses.
The law
The year before Butterworth went to trial, the U.S. Supreme Court decided in an Arkansas case that a defendant's right to testify on his or her behalf outweighs laws that prohibit memories refreshed by hypnosis.
Rock v. Arkansas carved out an exception for defendants that has not been extended to other evidence, such as polygraph tests, or other witnesses.
"A defendant always has a right to testify in his own behalf -- you can't prevent them from doing that," Ney said. "Rock v. Arkansas was only about defendants. Across the board, both in federal and state courts, it's been held to not let (other) witnesses provide post-hypnotic testimony."
Lawyers who try capital cases say they are obligated to raise objections on any issue which might later come up on appeal.
"If you don't make a record and don't object to things like that, you run the risk of screwing up your case," said Jay Greeno, another experienced Wichita lawyer.
"You always hear the story of two defendants in a capital murder case," Greeno said. "One of the attorneys raised an objection when the law was clearly against him. And when it went up on appeal, the higher court reversed the earlier decision. Well, the defendant whose lawyer raised the objection got his case overturned. The other one didn't get to, because his lawyer didn't object."
This week, Ney begins arguing for Rodriguez's life.
The jury will decide whether Rodriguez faces death or life in prison.
Last week, the jury spent more time deliberating the death penalty than it did in determining his guilt.
When the case entered the sentencing phase on Thursday, three jurors wept.
Contributing: Associated Press.