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Monday, September 12, 2011

Teen’s life sentence unconstitutional, lawyer argues

Teen’s life sentence unconstitutional, lawyer argues
Posted on 08 September 2011
By John Lyon
Arkansas News Bureau

LITTLE ROCK — A lawyer for an Arkansas teenager serving a life sentence for
capital murder argued today before the Arkansas Supreme Court that the sentence
was unconstitutional because his client was only 16 at the time of the crime and
did not fire the fatal shot.

A lawyer for the state told the justices the sentence is consistent with federal
and state case law.

The high court heard oral arguments but did not immediately issue a ruling in an
appeal by Lemuel Session Whiteside, 19, who was convicted of capital murder and
aggravated robbery and sentenced to life in prison without possibility of parole
in the January 2009 shooting death of James London Sr., 30, in Little Rock.

Authorities never accused Whiteside of shooting London. Cambrin Sain Barnes
admitted to being the gunman and pleaded guilty to first-degree murder and
aggravated robbery in exchange for a 40-year sentence. But prosecutors said
Whiteside — who declined to plead guilty — gave the murder weapon to Barnes and
told him where to find London.

Tom Sullivan, attorney for Whiteside, told the justices today that in the case
Graham v. Florida, the U.S. Supreme Court said a sentence of life without parole
is too severe for a juvenile for any offense other than homicide. Such a
sentence violates the Eighth Amendment protection against cruel and unusual
punishment, the court said in that decision.

Sullivan said that as he interprets the decision, Whiteside should not have been
sentenced to life without parole because he did not kill London.

“In this case the defendant is not the shooter, and there has been no proof of
an intent to kill,” he said.

Justice Robert Brown asked Sullivan if he was asking the justices to expand the
Graham v. Florida decision. Sullivan said he was only asking them to interpret
how the decision should apply to a defendant who is convicted of murder but did
not kill anyone.

The decision “leaves open this middle ground,” Sullivan said.

Sullivan also argued that because the death penalty was not an option under
Graham v. Florida, the only option for Whiteside was life without parole, so the
jury was denied a say in the sentence.

Assistant Attorney General Vada Berger told the justices that in the case
Kuntrell Jackson v. Arkansas, the state Supreme Court ruled that a juvenile
could be tried on a charge of capital murder in criminal court rather than
juvenile court, which meant that the juvenile had to be sentenced to life
without parole.

In that case the juvenile maintained that he was a lookout and not the person
who fired the fatal shot during the robbery of a Blytheville video store.

Brown asked Berger if the jury should have had a say in Whiteside’s sentencing.
She said there is no right to be sentenced by a jury.

“The Legislature is the one who gets to decide if there is jury sentencing, and
the Legislature has said there’s no jury sentencing here,” she said.

Berger also said the state established that Whiteside was heavily involved in
the killing.

“This is not a case where there is low culpability,” she said.

In recognition of its 175th birthday, the court met in its former courtroom at
the state Capitol instead of its courtroom at the Justice Building. The change
of venue did not go off without a hitch.

Minutes into the hearing, the court reporter complained that she could not hear
what was being said. The room is not wired for audio or video recording, so the
justices used a pocket recorder to capture the rest of the proceedings.’s-life-sentence-unconstitutional-lawyer-\

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