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D.L. Jones (OK)     EXECUTED 
Feb. 1, 2001…10:00pm (EST) 

The U.S. Supreme Court made its final decision in the case of D.L. Jones, condemned to die more than 20 years ago for a 1979 murder at a local tavern in Lawton, Oklahoma. 

The details of the case are murky at best because Mr. Jones has absolutely no memory of the crime.  On the night of the murder he had been taking his prescription anxiety drug Ativan (a benzodiazapine closely related to Valium and Xanax) and he was drinking whiskey and beer.  The bartender at the tavern testified that she saw a gun in Mr. Jones’ boot and asked him to cover it up.  She then testified that he reached down, pulled the gun free and shot three people, one of which died. 

Mr.. Jones’ attorneys presented a temporary insanity defense based on the fact that Mr. Jones had no memory of the crime.  The result of Mr. Jones’ trial at best can be described as an insult to justice. 

Under the advice of his attorney Mr. Jones did not answer any questions pertaining to the case.  The jury was permitted to use this as a sign of guilt instead of his right under the 5th Amendment to the Constitution.  Secondly the defense was barred from any meaningful cross-examination of the bartender.  They were not allowed to ask her about gun charges she was facing or whether her testimony had been at all influenced by a deal with prosecutors. 

When the trial concluded at the most prosecutors proved that Mr. Jones committed manslaughter.  In order for someone to get the death penalty in Oklahoma, prosecutors must prove that the crime was committed in a heinous, atrocious, or cruel way.  The prosecutor told the jury in his closing argument this was satisfied because Mr. Jones stood over his victim laughing as she begged for her life.  The only problem is this was never mentioned at any point during the trial; in fact during closing arguments was the first time anyone had heard that.  Prosecutors went on to tell the jury if they didn’t not impose the death penalty Mr. Jones would be free in a short time walking the streets again. 

While this evidence of unfair and even illegal behavior by prosecutors may sound extreme, what the Supreme Court of Oklahoma and the U.S. District Court did was even more appalling.  They found that all of the alleged violations of Mr. Jones’ rights did occur — his counsel was ineffective, the jury charge was unconstitutional, and failure to allow Mr. Jones’ attorneys to cross-examine the witnesses violated his rights.  Then they ruled these things amounted to harmless error that would not have changed the verdict, and after 20 years of appeals the U.S. Supreme Court agreed! 

So on February 1, 2001 D.L. Jones will be executed by lethal injection in an Oklahoma Prison.  He will die for a crime that if there was justice in Oklahoma would have never even been eligible for the death penalty in the first place.  Please help by writing or calling Governor Frank Keating to ask him to grant clemency to D.L. Jones.  Even after 20 years it is still the right thing to do.  Write an Op-Ed piece and mail it to one of the Oklahoma newspapers listed below.  Do not let them do to D.L. Jones what they have done to his rights. 
 
 

Stanley Lingar (MO)     EXECUTED 
February 7, 2001…1:01am (EST) 

Stanley Lingar is scheduled to be executed in Missouri on February 7, 2001 for the January 5, 1985 murder of Thomas Scott Allen.  Lingar, who was 22-years-old at the time, and friend, 18-year-old David Smith, picked up Allen by the side of the road where he had run out of gas.  When Allen was later found dead, both Lingar and Smith were charged with first-degree murder.  They gave statements to the police.  The gun, car, and Allen’s body were ultimately recovered. 

During the trial, Smith testified that Lingar shot Allen three times, and subsequently attacked him with a tire iron and ran over the body because the shots did not kill him immediately.   For testifying against Lingar, the State of Missouri dropped the first-degree murder charge against Smith.  He pleaded guilty to second-degree murder and received a ten-year sentence. He is now free.  Smith’s testimony was not challenged despite the fact that it conflicts with the physical evidence found by the coroner, showing gunshot wounds and a facial abrasion on Allen’s body.  A pathologist confirmed the coroner’s report, stating that there was not an iota of medical evidence to support Smith’s account that the victim was repeatedly struck on the head and run over. The coroner also testified that the cause of death was the first bullet to the chest.  Furthermore, Smith’s testimony is suspect because he claimed that Lingar simultaneously drove the car and held the victim at gunpoint.  It is questionable who pulled the trigger because Smith and Lingar were the only people present at the time of Allen’s murder. 

During Lingar’s trial for the capital murder of Allen, the State called 16 witnesses to establish that Lingar was responsible for the murder.  The primary evidence of the events leading up to and including the murder came from Smith’s testimony as a part of his plea agreement with the State.  The defense called a single witness during the guilt phase, one of the hitchhikers, who testified that Lingar was “wasted” on the night of the killing.  Smith had previously testified that six to eight hours before the murder, Lingar drank thirty cans of beer, a quart of beer, and a half bottle of wine. On cross-examination of the hitchhiker, the prosecution attempted to convey that Lingar, not Smith, was in charge.  In closing, the State argued that because Lingar stopped the car to retrieve the gun and shot Allen multiple times, he had deliberated; thus, he committed first-degree murder. 

In defense, Lingar’s attorney stated that Lingar should be charged with second-degree murder, as he was too intoxicated to deliberate. His entire defense was based on this theory that Lingar was so intoxicated that he could not have formed the requisite intent necessary for a guilty verdict on the first-degree murder charge.  Without permission, Lingar’s attorney conceded that Lingar was guilty of a lesser charge, explicitly telling the jury, “…Lingar has committed the acts contained in the instruction for second-degree murder…”  Lingar’s attorney also attempted to use “voluntary intoxication” as a defense, despite the fact that Missouri law at the time specifically eliminated this as a defense to first degree murder.  Lingar’s attorney had no previous experience handling a first-degree murder trial or a capital murder trial. 
 During the penalty phase, Lingar’s attorney pointed out the existence of several mitigating circumstances – Lingar did not have a prior criminal history, his capacity to appreciate the wrongfulness of his conduct was impaired by alcohol, he was young when the murder occurred, and he had been helpful and loving towards his family before the crime.  However, Lingar’s attorney was apparently unaware that a capital defendant is entitled to introduce any relevant mitigating evidence to avoid a death sentence.  Therefore, he failed to introduce several key mitigating factors and actually erroneously informed the jury that it could only consider statutory mitigating factors (no additional factors were presented for them to consider anyway) . 

Although the trial brought forth information pertaining to the amount of alcohol Lingar consumed on the day of the murder, evidence of his history of alcohol abuse was not introduced. Lingar had been drinking heavily since the age of 16.   In addition, the jury did not learn of Lingar’s numerous psychological disorders.  Prison testing indicated that Lingar suffers from acute paranoid disorder (marked by delusions, hallucinations, and grossly disorganized behavior), anxiety disorder, Dysthymia disorder (chronic depression), and passive/dependent personality disorder (a long-term, chronic condition). 

Lingar was also physically abused by his alcoholic father and suffered sexual abuse at the hands of his cousin from the age of five into his teens. He has a history of and received treatment for blackouts, dizziness, and severe headaches since the age of eight.  Lingar’s potential to be rehabilitated through treatment was never brought up.  Similarly, his documented remorse for the crime was never introduced. 

Additionally, there are legitimate concerns regarding Lingar’s mental capacity because scores on intelligence tests indicate that he is borderline mentally retarded.  The state’s theory that Lingar masterminded the kidnaping and was the triggerman is undermined by the fact that he is borderline mentally retarded and has been diagnosed with passive/dependent personality disorder.  Smith is demonstrably more intelligent, and may have lied about his involvement to save himself. 

During the penalty phase, the prosecution attempted to incite the jury, which was drawn from a rural area, by calling Smith to testify about Lingar’s homosexual relationship with him.  Lingar’s attorney asked the court to prohibit the State from introducing any evidence of homosexuality because such evidence is irrelevant, immaterial, highly prejudicial, and inflammatory.  In response, the State claimed that this information was relevant because it showed one of the circumstances of the crime, an aspect of Lingar’s character, and a motive for the murder.  The defense continued to fight for the exclusion of this questionable information because there was absolutely no evidence to indicate that it was a motive.  Also, evidence concerning Lingar’s homosexuality was not presented during the guilt phase of the trial, despite the fact that it was critical to the State’s theory of motive for homicide.  Defense argued that admission of testimony regarding Lingar’s private, personal sexual preference would serve no purpose, aside from arousing the stereotypical image of the homosexual predator in the minds of the jurors.  The court overruled Lingar’s objection and he was sentenced to die. 

On appeal, the court did not find it unreasonable that Lingar’s attorney conceded guilt on the charge of second-degree murder.  The jury was never given a reason to spare Lingar’s life due to the incompetence of his trial attorney.  However, Lingar’s contention that counsel failed to conduct a reasonable investigation into his mental health, medical background, and intellectual functioning was also rejected.  These mitigating factors could have spared Lingar’s life, but because we cannot definitively say that the jury would have acquitted Lingar of first-degree murder or sentenced him to life in prison, his appeal on these grounds was rejected.  Similarly, the court ruled that even if the admission of the homosexuality evidence was unconstitutional, Lingar cannot prove that the error harmed him.  Despite these obvious uncertainties, Lingar will be executed. 

Oklahoma 

James Malicoat (OK)     STAY 
February 20, 2001…10:00pm (EST) 

James Malicoat was sentenced to death for the February 1997 killing of his thirteenth-month old daughter.  An execution date of February 20, 2001 was set last October when Malicoat said that he did not want to continue any of his appeals. 

However, last month Malicoat indicated that he did want his right to appeals back and he sought an appeal in the federal court.  He is currently waiting for the Oklahoma State Court to grant a stay of execution so that his Federal Habeas Corpus will be reviewed. 

Since he was a young child, James Malicoat had been exposed to widespread abuse from his mother and stepfather.  At the age of five, James received a “whooping” from his stepfather, Sonny Malicoat, for not weeding the garden correctly.  Sonny would frequently throw James in a chicken coop with fighting roosters to teach him not to be afraid of the roosters.  James’s screaming could be heard from over 100 feet away.  Sonny also frequently abused James with wrenches, pitchfork handles, and cattle prods.  In addition to the abuse from his stepfather, James’s mother Reta McCurley admitted to hitting James at least three times a month, in addition to choking and slapping him for raising his voice. 

In addition to the abuse directed at James, Sonny routinely threatened to kill Reta.  Reta initially left Sonny following a beating with a 2 x 4 board that James suffered at Sonny’s hands, after which she secured an emergency protective order.  Reta would repeatedly leave and return to Sonny following further ordeals, only to leave for the last time in June of 1989. 

During the trial defense expert Wanda Draper testified that James Malicoat was a product of his own upbringing.  The patterns of abuse he witnessed and experienced became ingrained into his basic nature.  Concerning the abuse that James’s daughter Tessa experienced, Dr. Draper testified that James did not understand why he abused her.  She said the acts of abuse towards Tessa were impulsive outbursts he had learned over time, not premeditated acts.  Concerning how James perceived his abuse towards Tessa, Dr. Draper remarked, “He didn’t understand.  He just impulsively acted.” 

The Prosecutor minimized Malicoat’s experience with abuse during his trial, claiming that Malicoat was attempting to “blame his family” and instead of taking the blame himself, he was trying to blame everybody around him. 
 During the jury selection of Malicoat’s trial, some prospective jurors initially indicated a belief that a person who intentionally killed someone deserved the same treatment as punishment.  These prospective jurors were not dismissed, even though jurors with strong opinions for or against the death penalty have been found to not equally weigh all evidence presented to them in a trial. 
 
 

Texas 

Adolpho Hernandez (TX)     EXECUTED 
February 8, 2001…7:00pm (EST) 

Adolpho Hernandez is set to die by lethal injection for a 1988 murder of Elizabeth Alvarado.  Adolpho was heavily intoxicated at the time and his attorney presented a defense of Temporay Insanity (or the black out defense).  This defense states that Mr. Hernandez was incapable of knowing or remembering what he was doing at the time of the crime.  A jury disregarded his defense and sentenced him to die in Huntsville’s notorious killing machine. 

Adolpho has to this day maintained that he did not have any idea what he was doing or have any recollection of any crime. 

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Questions? 
All questions, comments and ideas concerning the National Execution Alert should be directed to Jeff Lubbers. He can be reached by phone at (202) 387-3890 (ext.15) or by e-mail at [email protected] 

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