Zanesville jury rejects death penalty and recommends LWOP in gruesome slaying

October 23, 2013

Wednesday, October 23, 2013

Good morning:

A jury rejected the death penalty and recommended life without parole for LaFonse Dixon, one of three defendants charged with the gruesome murder of 29-year-old Celeste Fronsman. She was found alongside a highway in Muskingum County, Ohio by a passing motorist. She had been beaten, burned and had a strap around her neck. She died two days later in a hospital.

Dixon’s two female codefendants, Katrina Culberson and Monica Washington, pled guilty and agreed to testify against him to avoid the death penalty. Defense counsel argued that the two women committed the murder and Dixon was innocent.

Hannah Sparling of the Zanesville Times covered Katrina Culberson’s testimony at the trial.

In the days leading up to the murder, Culberson said she and Dixon were angry at Fronsman for a couple of reasons. One, Fronsman owed her some money, Culberson said. Two, there had been a drug raid a couple of weeks before at one of Dixon’s drug houses, and they thought it was Fronsman who told police, Culberson said.

“Celeste was telling on a couple people. She was scared,” she said, adding that she and Dixon “kind of both talked about killing her and bringing her down to Zanesville.”

Fronsman laid low for a while, but eventually, Culberson and Washington tracked her down. They chased her to a Walmart parking lot, then Culberson sweet-talked Fronsman, she said, telling her it would be OK and she wasn’t going to hurt her.

She convinced her to get in the car with them, then they went to pick up Dixon.

Up until that point, there really wasn’t a plan, Culberson said, but when Dixon got into the vehicle, the two shared a look, Culberson said.

“We kind of looked at each other like, ‘It’s on. It’s about to happen,’” she said.

Then, Culberson started driving, and Dixon started punching Fronsman in the face, she said.

“She kind of screamed the first punch, but after that she didn’t really do anything,” she said.

They drove around Canton for 15 or 20 minutes before Culberson merged onto Interstate 77 south, she said. Throughout, Dixon and Washington were beating Fronsman, Culberson said. They used a belt and tape to bind her hands, then Dixon stuffed napkins in Fronsman’s mouth and Washington tied a shirt around her face, Culberson said.

At one point, Culberson climbed into the backseat and hit Fronsman several times with the handle of a screwdriver, she said. Then, she pushed her feet into Fronsman’s neck, and blood started gushing out her eye.

At another point, Dixon got a strap out of the back of the vehicle and wrapped it around Fronsman’s neck, strangling her, Culberson said.

Fronsman was slapping the seat and trying to get away, but “really, she couldn’t do much. Her face was turning blue,” Culberson said.

Once they reached the Tri-Valley recreation area, Dixon and Washington carried Fronsman to a patch of tall grass and laid her down, Culberson said. Then, Culberson got a gas tank out of the car and poured gasoline on Fronsman’s body. Dixon gave her a lighter, she said, and she lit the flame.

The three of them cleaned up what they could, then they drove away, Culberson said, leaving Fronsman behind.

The defense called two witnesses, an EMT who attended to Fronsman during the ride to the hospital and a DNA expert.

The EMT testified that Fronsman only mentioned Culberson.

The DNA expert disagreed with the prosecution expert who had testified that Dixon’s DNA profile matched a DNA profile that was obtained from masking tape used to bind the victim. She said the sample obtained from the masking tape was a mixed sample with multiple contributors and Dixon could not be excluded as a source of the mixed sample.

The defendant did not testify.

I suspect that, although the jury convicted Dixon of the murder, it was unable to agree on the death penalty due to lingering doubt. A lingering doubt is not a reasonable doubt. Nevertheless, it is a sufficient doubt to cause many jurors in death penalty cases to reject the death penalty in favor of a life without parole sentence.

As many death penalty lawyers have long suspected, including myself, most jurors require certainty to sentence a defendant to death. I think the LWOP verdict in Dixon’s case is another example of that principle.

The result in this case may be shocking to some, but it is consistent with the national trend in loss of support for the death penalty.


Death Penalty or Life Without Parole: Long And Slender Fingers at Easter

October 14, 2012

Some of you have asked questions about what it is like to do death penalty work. Here is an example.

James Mayfield was in a hell of a jam when I was appointed to represent him by Magistrate Judge John Weinberg of the United States District Court for the Western District of Washington. He was accused along with two others with the murders of a father and his three children on the Army base at Fort Lewis in Tacoma, WA. The father was a civilian married to a woman in the Army. They had been living on the base with their three children when she was ordered to Korea for a six-month tour. He remained behind in their house on the base with the children. The murders happened while she was in Korea.

James was a private in the Army stationed at Fort Lewis. He was a polite and beautiful young African American man from a deeply religious Southern Baptist family in Beaumont, TX. He had never been in trouble with the law before. I remember his dark eyes pooled with tears and his soft and long slender fingers when I shook his hand for the last time.

His two codefendants were civilian blood brothers from Los Angeles. They were gang members and they had moved to Tacoma to sell crack cocaine. This was during the early nineties when the LA gangs started expanding their drug distribution operations into other cities to open up new markets.

Several months after they arrived in Tacoma, officers from the Tacoma Police Department and the Pierce County Sheriff’s Department served a search warrant at their apartment seizing crack cocaine, drug paraphernalia, guns, and a substantial amount of cash. They arrested the brothers and booked them into the Pierce County Jail. Under Washington law at the time, the brothers were released 72 hours after they were booked into jail because no formal charges had yet been filed.

The brothers correctly surmised that one of their customers must have turned informant, probably after purchasing crack at their apartment. Unfortunately for the man, who was one of their customers, and his three children, the brothers concluded that he was the snitch.

I never found out how James, who was a regular church-goer at the time, hooked up with the two gangsters, but he did, and when they decided to pay the snitch a visit, they contacted James and asked him to help them get onto the base and locate the snitch’s house.

The crime scene was horrific and the bloodiest by far that I had ever seen. I will spare you the details other than to say that the brothers confessed to tying up the father in the living room and murdering each child one at a time in front of him with machetes. Then they finished him off. The feds had jurisdiction since the murders happened on the military base.

The brothers were mistaken about the father. He was not the snitch.

The case had death penalty written all over it, except no one in the U.S. Attorney’s Office and none of the federal judges in the district was pro death penalty. The Assistant U.S. Attorney assigned to the case was willing to drop the death penalty, but only if all three defendants were willing to plead guilty to all four murders.

The two brothers did not need to be persuaded to take the deal, but James balked and dug in his heels. He had no defense, but he could not bring himself to admit that he had committed such an awful crime and no amount of pleading on my part changed his mind. He had decided to go to his death proclaiming his innocence, rather than admit what he did and spend the rest of his life in prison. He did not care about the consequences of his decision on the brothers.

That left it to me to figure out a solution to save three lives, my conscience, and the consciences of the federal prosecutor and the United States District Court Judge to whom the case had been assigned.

With an extremely heavy heart, I boarded a flight to Houston by way of Minneapolis and when I arrived in Houston on Easter Sunday, I rented a car and drove to Beaumont to meet with James’s extended family.

I arrived about mid-afternoon after the family returned from church and finished their traditional Easter dinner. There were expecting me when I rang the doorbell. I was greeted by more than a dozen somber people still dressed in their Easter finery. I remember a sea of black faces young and old filled with tears, an occasional sob, and grace, incredible grace such as I had never seen before as I pulled out the investigation reports, crime scene and autopsy photographs, and the autopsy reports. The photographs of the toddler were the worst and as I finished my presentation of the evidence against James, I felt worse than I have ever felt before or since.

I convinced a loving family that their golden child had willingly participated in butchering four innocent people and he would be murdered for what he had done, unless they persuaded him to choose life over death. When I asked them, if they would be willing to help, their answers were unanimous.

“Yes.”

Two weeks later James Mayfield and the two brothers pled guilty to four homicides and were sentenced to life in prison without possibility of parole.

For the last time, I shook hands with the beautiful young man with soft long slender fingers whose life incomprehensibly went off the rails one night during a murderous rampage with those hands that neither he nor anyone else will likely ever understand.

My heart was empty and cold as he turned and walked away.

My God! What have I become? I wondered.


Holmes: Why the Prosecution is Waiting to Decide Whether to Seek the Death Penalty

August 4, 2012

James Eagan Holmes has been charged with 24 counts of Murder in the First Degree and 116 counts of attempted murder for killing 12 people and wounding 58 during a shooting spree inside a movie theater at the midnight showing of the new Batman film, Dark Knight Rising.

Facts are difficult to come by because the Court “has issued a gag order on lawyers and law enforcement, sealing the court file and barring the University of Colorado, Denver from releasing public records relating to Holmes’ year there as a neuroscience graduate student.”

I have written two articles about the case here and here reviewing the potential civil liability of the University of Colorado to the victims of the shooting spree for the alleged failure of its employees, psychiatrist Dr. Lynne Fenton and the members of the university’s threat assessment team to warn the police about a possible threat to harm people that Mr. Holmes may have expressed to Dr. Fenton on or about the day that he formally withdrew in early June as a student in a Ph.D. program in neuroscience.

Probably due to the Court’s gag order, the school has not yet disclosed the specifics of Mr. Holmes’s statement to Dr. Fenton. All that we know so far is that she attempted to convene the mental health clinic’s threat assessment team to review what he said, but the team declined to do so because he had withdrawn from the school.

As I explained in my two articles, given the restrictive and limiting language in the Colorado statute, I believe it is unlikely that the university will be held liable to the victims of the shooting for failing to warn the police about Mr. Holmes. We will have to wait and see what Mr. Holmes said to Dr. Fenton before we can definitively wrap up this discussion.

Now I want to discuss a different subject in the case; namely, the death penalty. The prosecution has charged Mr. Holmes with two murder counts per homicide victim. The two charges contain different elements and basically allege two different ways to commit the same offense. CBS News explains:

Holmes is facing two separate charges for each person killed or injured. The second charge for each alleges that in killing or injuring, Holmes evidenced “an attitude of universal malice manifesting extreme indifference to the value of human life generally.”

The prosecution announced shortly after filing charges against Mr. Holmes, that it has not yet decided whether it will seek the death penalty, if Mr. Holmes is convicted of murder.

Translated into the language we speak, that means it is waiting for the defense to complete its mitigation investigation and submit its report to the prosecution to consider in determining whether to file a notice that it will seek the death penalty.

Mitigation evidence is any evidence about the defendant or the crime he committed that in fairness or in mercy calls for a sentence of less than death.

Mr. Holmes appears to suffer from a serious mental illness, possibly a type of schizophrenia. The defense likely has assembled a team of mental health experts who are testing and evaluating his competency to stand trial and well as his mental functioning. No doubt they have been reaching far back into his life collecting all existing school, medical and mental health records.

Mitigation investigation has developed into an art form as well as a necessary and highly specialized skill over the course of the past 30 years. The most common reason for appellate court reversals of death sentences has been ineffective assistance of defense counsel for failing to conduct a thorough mitigation investigation.

A diagnosis of schizophrenia would be powerful mitigating evidence, even if it did not establish legal insanity, because schizophrenia is a debilitating mental disease over which a person has little or no control. Therefore, traditional arguments for the death penalty that are based on the idea of holding people accountable for their actions by sentencing them to death, lose power in the face of evidence that the person is delusional, not like others, and incapable of making responsible decisions on a regular basis. Most people recognize that there is something fundamentally unfair about sentencing someone to death who lacked the capacity to make rational decisions.

Mr. Holmes may also satisfy the test for legal insanity. That is, that he suffers from a mental disease or defect such that he cannot distinguish between right and wrong and conform his conduct to the requirements of law. Insanity is another mitigating factor.

Regardless of his mental condition, however, he committed horrific acts that required sufficient capacity to plan and carry out a moderately complicated scheme.

When the prosecution receives the defense mitigation report, it will submit it to its own panel of mental health experts for review and comment.

Eventually, both sides will meet and engage in serious discussions regarding whether a mentally ill man should be executed or spend the rest of his life in prison without possibility of parole.

Whether the prosecution ultimately decides to file the notice that it will seek the death penalty will depend on the outcome of those discussions and the thoroughness and quality of the defense mitigation report.


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