Monday, 31 December 2007

State should allow DNA testing:

State should allow DNA testing:

The editorial "Nothing to lose" made a very clear case for DNA testing in criminal trials today, and for those convicted at a time when it was not available.

A refusal to have DNA testing done by a reputable and independent laboratory, especially for Death Row inmates, has nothing to do with being tough on crime or biased in favor of criminals, as many death-penalty proponents appear to suggest. For every innocent person convicted, there is a guilty one roaming free, protected from investigation by the governor and state officials.

So why do they refuse? Maybe it's just a symbolic response to crime from the Dark Ages; no one really cares whether the right man is executed, so long as someone is? Add to that a nagging, selfish fear that one might be shown to have made a mistake, or worse.

Surely, Alabama can do better than that.

Vendla Meyer

Bures-sur-Yvette, France

Sunday, 30 December 2007

Momentum against death penalty

Momentum against death penalty

The death penalty offers the false impression that life is sacred, by
taking it away.

Since the reinstatement of the death penalty in 1976, over 1,000 human
beings have been stripped of their lives. Proponents of capital punishment
claim that it brings closure to victims' families; it is cost effective
compared to life without parole, and that the Bible endorses a vengeful

These myths have misled the American public for nearly four centuries. As
of late, however, the Supreme Court has ruled favorably, numerous
governors have acted decisively, and the American public has altered its
perception on the effectiveness of capital punishment. Undoubtedly, the
penalty of death is on the brink of execution itself.

Capital punishment has been deeply woven into the fabric of our society.
Although crimes punishable by death have changed dramatically, one thing
remains the same. Namely, the death penalty continues to violate the
Eighth Amendment, which, in principle, protects Americans from "cruel and
unusual" punishment. In 1972, when the historic Furman decision was handed
down, public opinion toward capital punishment was at an all time low. The
need for vengeance and retribution had given way to compassion and

Similarly, recent findings of innocent men being sentenced to death have
altered public opinion as well.

To date, 126 men have been exonerated from death row -- 126 miscarriages
of justice. All too frequently, men and women have come too close to the
ultimate injustice, the state-sponsored murder of an innocent human being.
This has undoubtedly provoked religious communities, politicians, judges,
and the American public to reconsider the need for capital punishment.

A recent study in Wisconsin asked residents if they preferred the death
penalty over life without parole. Fifty-five percent choose life without
parole as the preferable method of punishment. The innocence movement has
undeniably become the leading tool toward abolition.

This month, the movement to abolish the death penalty has endured
unprecedented success. On Dec. 13, the New Jersey General Assembly passed
an abolition bill 44-36. The bill replaces the death penalty with life
imprisonment without the possibility of parole. New Jersey Gov. Jon S.
Corzine has signed the bill. The passage of this legislation marks the
beginning of the end -- the end of the penalty of death in this nation.

According to the Death Penalty Information Center, 36 states currently
have the death penalty as a legal form of punishment. However, Illinois
has a formal moratorium in place, New York has ruled the death penalty
unconstitutional, all states have effectively halted executions because of
lethal injection issues, and 10 other states recently introduced
legislation to abolish the death penalty. Out of the original 36 states
with capital punishment, none have the approval to proceed with

Boiling blood flows within the veins of each electric chair, reeking of
arrogant injustice and medieval barbarism. This same blood circulated
through the moral compass of Justice Thurgood Marshall's following attack
on the death penalty. In the Furman decision he states that the death
penalty "is excessive, unnecessary, and offensive to contemporary values."
The recent actions of numerous governors and decisions from countless
judges have certainly shown that contemporary values finally oppose
capital punishment. Not only will the lives of death row inmates be
spared; but soon, these condemned human beings will be integrated back
into the general prison population. This is when justice will finally be
served. In the end, compassion and redemption will overcome vengeance and

The abolition of capital punishment is inevitable.

Elliot R. Slosar----St. Charles

(source: Daily Herald)

Death watch

Dec. 30


Death watch

With its flaws becoming more and more apparent, no wonder the death
penalty is losing favor among many Americans.

It is the one punishment imposed by the legal system that once carried out
cannot be corrected with a turn of the key or an order from the
courthouse. When an execution has been conducted, the condemned person has
no more avenues of appeal.

A penalty like that must be flawless then, right? But consider: The use of
DNA evidence, a fairly recently development, has shown some people in
prison to be innocent. Some death row inmates have been exonerated. Most
such inmates of course are guilty of terrible crimes, but given that
wrongful convictions have occurred, it's not too much of a jump to
speculate that innocent people have been executed in this country.

Cases in North Carolina and other states -- where the constitutionality of
lethal injection as a method of killing someone convicted of a capital
crime has been challenged -- presumably will be settled by a Supreme Court
ruling on lethal injection protocols this summer. But the main focus of a
New York Times report carried in Wednesday's N&O was a shift in public
opinion on the death penalty.

Once it was an issue shamelessly exploited by politicians. A candidate for
statewide or national office who dared to announce firm opposition to the
death penalty could expect to see himself or herself portrayed in
opponents' commercials as someone ready to fling open the jailhouse doors,
a coddler of criminals with no sympathy for victims. There may be some of
that still, but it's clear that full-throated support for the death
penalty also might alienate a goodly number of voters who aren't quite so
sure that it's a really great idea for the state to kill people.

New Jersey, which had not executed anyone in over 40 years, recently
abolished its death penalty after a commission determined that the
punishment was not worth trying to retain. A couple of other states are
pondering similar action. Most of the remaining states with capital
punishment statutes have yet to reach that point, although there is a
reluctance on several counts about the death penalty. There even seems to
be a touch of hesitation now in Texas, where the legal system has been
pushed to accelerate the process from conviction to the death chamber and
where by far the most U.S. executions take place.

The questions and hesitations aren't just based on objections to the death
penalty on moral grounds, or on the premise that mistakes are made every
day in the judicial system but cannot afford to be made with the death
penalty. In addition to those concerns, some in the legal system believe
the long appeals process and the uncertain outcome of that process, often
with retrials and extensive publicity, cause the families of victims too
much pain. And the expense to the public typically is far greater than the
expense of locking someone up for life without parole.

If public support for the death penalty is waning, good. When the penalty
was in full-speed-ahead mode, the courts used to spend weeks, even months,
on the highest profile cases.

Now that life without parole is more often used, it has become acceptable
to some who once might have objected to it. And perhaps some people who
saw themselves as supporters of the death penalty have come around to
believing that it is a little too much like revenge instead of justice.
The latter is part of punishment. The former never should be.

(source: News & Observer)

A prosecutor defending the innocent


A prosecutor defending the innocent

Star-Telegram Staff Writer

Craig Watkins, Dallas County's district attorney, says he wants to make sure innocent people aren't wrongfully convicted by the criminal justice system.
Craig Watkins, Dallas County's district attorney, says he wants to make sure innocent people aren't wrongfully convicted by the criminal justice system.

Craig Watkins wants to expose the weaknesses of criminal justice, right the wrongs of Dallas County's justice system. He wants to be a voice speaking out for the wrongfully convicted.

And he is the district attorney of Dallas County.

Watkins has made waves since he took office. When he was elected in November 2006, he had never worked as a prosecutor. He was the first Democrat to head the DA's office in 20 years. And he is the first African-American district attorney in Texas.

Watkins, who just turned 40, turned even more heads in February, when he announced the DA's office would open courthouse files to the Innocence Project of Texas. A group of law students will comb through more than 400 criminal cases, looking for convictions that deserve a second look -- cases that, with DNA testing, might be overturned.

This is not the normal work of a district attorney. The announcement grabbed national headlines. Texas Monthly described it as being "like Richard Nixon inviting Woodward and Bernstein to the White House to go through some unreleased tapes." But Watkins, a Dallas native, has set out to change the way justice is delivered in Dallas County.

"I've seen the failures of the criminal justice system up close," Watkins says. "Being an African-American and an attorney, I got to see that."

Watkins hired Terri Moore as his second-in-command; Moore, a prosecutor and trial lawyer who made a name for herself in the Tarrant County DA's office, is the one who suggested DNA testing. And Watkins hired Fort Worth criminal defense attorney Mike Ware to head the new Conviction Integrity Unit, designed to investigate cases with DNA evidence.

Watkins, who believes in the death penalty, says he isn't against prosecuting the guilty. He just doesn't want to prosecute people who aren't guilty. To Watkins, the district attorney's job is not to prosecute indiscriminately but to get it right.

"A lot of people are surprised that a district attorney would be concerned with this whole thing of innocence," he says. "But I'm surprised that they think that. ... what we're doing is really what a DA should do."

Other counties are keeping an eye on Dallas County, watching to see whether this new approach makes a difference. Just this month, Houston's Harris County announced a partnership with the Innocence Project of Texas, examining 180 cases that have questionable crime lab work.

If Watkins' philosophy spreads, Texas justice may never be the same.

Saturday, 29 December 2007

Capital OpportunityDemocrats could safely champion death-penalty reform—why aren't they?

Capital OpportunityDemocrats could safely champion death-penalty reform—why aren't they?

Barack Obama. Click image to expand.

The 2008 presidential race represents a lot of firsts: the first viable female, black, and actively practicing Mormon candidates; the first new president since Sept. 11; the first race since 1928 without an incumbent running.* There's another first that's gone largely unnoticed: This is the first election in 20 years in which the death penalty isn't a go-to issue for conservatives. For a generation, Republican candidates wielded their fondness for executions like a weapon, and Democrats either summoned their own righteous bloodlust and embraced capital punishment, or avoided the subject altogether. But the Bush years have witnessed a steady shift in how Americans perceive the death penalty, and this time around, it's the last thing Republicans want to talk about. And yet, faced with an opportunity to seize the high ground in a debate they've been losing for decades, the Democrats can't summon the nerve. So, 2008 could go down in history as the year the Democrats had the chance to confront the death penalty—and didn't.

After Democrat Mike Dukakis nosedived in 1988 when he offered up an emotionless reaction to a death-penalty hypothetical in which his wife was murdered, Democrats spent the next decade trying to prove they weren't soft-on-crime wimps. Bill Clinton famously presided over the execution of a severely mentally handicapped man, as governor of Arkansas, during his first campaign. Running for re-election in 1996, Clinton bragged that he had "supported a crime bill that had 60 death penalties" during his first term. Reservations about the death penalty were an instant electoral liability. Like a professed or implied desire to raise taxes, they represented a big squishy target. When George W. Bush arrived in Washington, he made no apologies for presiding over 152 executions in Texas—more than any other governor in recent history.

As Bush leaves office, however, that dynamic has turned on its head. Consider Mike Huckabee's angst-ridden response to a question in last month's Republican debate, when he confessed that implementing the death penalty "was the toughest decision I ever made as a human being." Huh? Since when has whether to ice a wife murderer been a tough decision?

It's not just Huckabee, either—none of the Republicans have continued the warm embrace of lethal injection exhibited by Bush and his father before him. In a debate earlier this year, half of the second-tier Republican candidates expressed serious reservations about capital punishment. The front-runners have kept quiet, with only Mitt Romney mentioning it in a debate—and then merely as one item on a laundry list of conservative credentials. Even Fred Thompson, traditionally a death-penalty hardliner, admitted this summer that the death penalty must be carefully implemented to be fair.

Why are Republicans execution-shy? Because over the last decade, a good governance movement has offered the proverbial glimpse inside the sausage factory and shown us how the death penalty actually works. This exposure began in 2000, when Illinois Gov. George Ryan—a Republican—appointed a commission to investigate the death penalty after his state released 13 innocent inmates from death row. That year, a Columbia University study showed that 65 percent of death-penalty cases are overturned on appellate review—a revelation cited by Al Gore during the 2000 campaign as reason to rethink capital punishment.

Seventy percent of all DNA exonerations have occurred since 2000, supplying scientific leverage to shake public confidence in capital punishment. In 1985, 56 percent of Americans supported the death penalty for murder, while only 34 percent preferred life without parole; in 2006, these numbers were an almost even 47 percent and 48 percent, respectively. Over that same period, the percentage of Americans who think the death penalty deters crime has been cut almost by half.

The Illinois commission's final 2002 report foreshadowed the no-win situation that the death penalty would become for Republicans, concluding that a fair death penalty would "require a significant increase in public funding at virtually every level, ranging from investigation through trial and its aftermath." For conservatives, this leads to a tough bind: increase the size of the government to make the death penalty fair, roll back the death penalty and risk seeming soft, or stay the course and seem like monsters indifferent to the execution of the innocent.

The Republican compromise has been to incorporate DNA testing into support for capital punishment. When Mitt Romney tried to reinstate the death penalty as governor of Massachusetts, he was sure to include DNA testing in his bill so as to "remove [the] possibility of execut[ing] someone who is innocent." And Thompson admitted this summer that "science must be used even more and earlier in the criminal process to protect the innocent and convict the guilty."

On the campaign trail, this kind of equivocation, and the retreat it signals, would seem to present a major opportunity for Democrats. They have an opening to champion death-penalty reform in a way that they haven't had before. What's more, all the front-runners have a history of supporting such change: Hillary Clinton sponsored a 2003 bill to beef up DNA testing in the criminal justice system; Barack Obama called the death penalty "broken" and worked for reform as a community organizer in Chicago; and John Edwards pushed for fairer trials and DNA testing during his 2004 campaign. In elections past, the Dukakis-style critique of capital punishment turned on moral questions about which it's hard to change people's minds. Today, opposition to the death penalty can rest squarely on pragmatism: The statistics are in, and the system doesn't work.

Death-penalty skepticism is so widespread that Clinton, Obama, or Edwards would hardly be going out on a limb if they made it a platform. This year, executions reached a 13-year low, the Supreme Court geared up to examine lethal injection, and earlier this month New Jersey became the first state in 40 years to abolish the death penalty. And yet the candidates aren't biting. Part of the explanation is that Iraq and terrorism have become the new arena in which Democrats must prove their mettle. Another concern may be that so long as 47 percent of Americans support the death penalty, advocating reform is still too risky. But Democrats say that they represent moral leadership and a force for change. That doesn't square with staying quiet about the death penalty until it's universally loathed. And with the race in the primary so close, candidates should be eager to distinguish themselves from their opponents while playing to the base (Democrats are far more likely to oppose the death penalty than are Republicans).

Curiously, the best explanation for the Democrats' reticence on this issue may be the remarkable decrease in crime of recent decades. Only 3 percent of Americans think crime is one of the top two problems facing the nation today, and while that should make it an ideal time to do away with the death penalty—because scare tactics can't be easily exploited—it's actually having the opposite effect. Americans may know that the death penalty's not working. They just don't care enough to insist that something be done about it. And for all of their talk about new forms of leadership, the Democratic candidates aren't going to waste air time or political capital trying to change that. The stage is set for a Democratic candidate to do the right thing on the death penalty, but none of them has the nerve. They might just be wimps after all.

*Correction, Dec. 28, 2007: The original sentence referred to Mitt Romney as the first viable Mormon presidential candidate. In 1976, Congressman Mo Udall, a Mormon, ran a credible campaign for the Democratic nomination. (Return to the corrected sentence.)

Documents reveal secrets behind execution process in Ohio

12/29/2007 8:51:00 AM Email this articlePrint this article
Documents reveal secrets behind execution process in Ohio


Associated Press Writer

CLEVELAND (AP) — Ohio begins the process of executing its death row inmates with the subtle fastening of a warden’s jacket button.

The warden’s secret signal, which tells execution team members to begin administering the deadly drugs, is among the details of the state’s execution procedures revealed in 632 pages of documents, some never before released.

Lorain County Common Pleas Judge James Burge unsealed the documents Thursday.

The documents state that two members of the execution team are certified as emergency medical technicians, and at least one is nationally certified by a pathology board. But Jeffrey Gamso, an attorney with the American Civil Liberties Union, sees nothing to convince him that the state can carry out executions in a humane manner.

“For someone to be executed without being tortured in Ohio is dumb luck,” said Gamso, who represents two defendants challenging the lethal injection method.

The state has executed 26 inmates since it resumed putting prisoners to death in 1999. Difficulties with two executions over the last two years have critics challenging the lethal injection method as unconstitutionally cruel and unusual punishment.

The state, which carries out executions at the Southern Ohio Correctional Facility in Lucasville, stands by its procedures.

“We believe our execution team members are well-trained and able to carry out the responsibilities they have when it comes to that specific assignment,” Andrea Carson, spokeswoman for the Ohio Department of Rehabilitation and Correction, said Friday.

The state turned over the binder of documents two weeks ago to Burge, who will consider whether Ohio’s execution method is unconstitutional.

Ruben Rivera and Ronald McCloud are challenging the lethal injection method, saying the drugs don’t give the quick and painless deaths required by Ohio law. Each could receive death sentences if convicted in two separate Lorain County murders. A status conference on the lawsuit is scheduled for Jan. 8.

The documents, originally sealed by Burge at the request of the state, were released following a public records request from The (Elyria) Chronicle-Telegram and a letter from the newspaper’s attorney. Burge ordered county Prosecutor Dennis Will to redact the names of execution team members in the copies given to the newspaper.

The state has been reluctant to say anything about who serves on the 16-member execution team and, particularly, the medical training received by the three members who prepare an inmate’s veins and inject the drugs.

One document shows that a medical team member is certified by the American Society of Clinical Pathologists’ Board of Registry. Redacted from the document is the kind of expertise the team member is certified. The organization handles certifications for numerous jobs in pathology and laboratory work, including hematologists, phlebotomists and those who work in blood banks, according to the society’s Web site.

Another document shows that this year a team member attended 14 hours of “Comprehensive Intravenous Therapy for Nurses.”

The state has conducted two executions in the past two years in which the execution team struggled to find suitable veins in the inmates’ arms. One took nearly 90 minutes and the other two hours, taking so long the condemned killer was given a bathroom break.

Under correction department guidelines, medical team members are drawn from around the state and must be able, under Ohio law, to administer the intravenous drugs used in the lethal injection process.

Before they join the execution team, any would-be member must pass a rigorous screening process that includes a review of their record with the prison system, gain the approval of the warden and other prison officials and be confirmed by a vote of the current execution team members, according to the documents.

The team members practice once a week for four weeks before each execution, including preparation for handling inmates who physically resist.

Executioners train using an artificial arm that they inject with water, according to state documents.

Laurie Badzek, director of the American Nurses’ Association’s Center for Ethics and Human Rights, said nurses practice using artificial arms, but likely also would train on consenting patients.

If execution team members have enough training to avoid torturing an inmate with an IV they would be governed by medical ethics that rule out doing deliberate harm, said Dr. Jonathan I. Groner, professor of clinical surgery at the Ohio State University college of medicine and a critic of lethal injection.

“It’s hard to have it both ways,” he said by phone from New York City.

Groner discounted the value of using a mannequin to practice, especially for preparing to execute an inmate with a history of heroin abuse or one who is obese.

“Competence requires hands-on training using human beings in a supervised settings,” he said.

The team members — three of whom have participated in all 26 executions — undergo training at least four times a year, according to the documents.

In addition to regular and pre-execution training, personnel on the execution team must keep their certifications on injecting intravenous drugs current. The documents turned over by the state reveal several booklets on administering drugs, including finding suitable veins, and how to handle the equipment used in the process.

In one document dealing with the 2006 execution of Darrell Ferguson — a “volunteer” who chose not to appeal his sentence beyond legal requirements — the team planned how to respond if Ferguson changed his mind after the first drug, a sedative, had begun to put him to sleep.

Government shouldn't kill its own citizens

Government shouldn't kill its own citizens

LAST week New Jersey Gov. Jon Corzine signed legislation repealing the death penalty in his state. New Jersey hasn't executed anyone since 1963, so some are calling the action merely "symbolic."


It's the kind of symbolism the entire country should adopt.

Iowa abolished capital punishment in 1965, but 36 other states and the federal government allow it.

In a 21st-century United States of America, the government should not be executing criminals. It is barbaric. It is not a proven deterrent. It sends a message to the world that our "civilized" country thinks it acceptable to strap someone to a table, insert a catheter needle into his arm and administer a lethal dose of drugs.

Granted, the desire for revenge is understandable in especially heinous cases. It's difficult to argue some criminals deserve to live.

Among them is Jesse Timmendequas, a sex offender who murdered 7-year-old Megan Kanka in 1994 - a case that inspired Megan's Law, requiring public notification when sex offenders are living in communities. Corzine's action spared Timmendequas' life.

This murderer took the life of a child, so it is understandable to want to respond by taking his life. But it is also a primitive response. "Eye for an eye" retaliation has no place in a civilized society. The same way that a court would not order that a rapist be raped or a thief be robbed, governments should not be killing killers - an act that reduces our society to the level of its worst criminals.

And, of course, there's always the possibility the government will execute the wrong person.

Someone like Timmendequas deserves to spend the rest of his life staring at the walls of a prison. He isn't worthy of the additional media attention his execution would inevitably bring. He deserves to exist unnoticed in a cement cell.

Fortunately, it seems Americans may be finally starting to agree.

The Supreme Court has accepted a case in which it will consider whether lethal injections used to execute criminals violate a constitutional ban on cruel and unusual punishment.

About 40 people have been executed this year, down nearly 60 percent from 1999, when 98 inmates were executed, according to the Death Penalty Information Center, a group that opposes the practice.

According to the Bureau of Justice Statistics, 115 new inmates were received on death row in 2006 compared to 284 in 1999.

States have placed moratoriums on capital punishment, and some are considering abolishing it. This year, 40 states did not conduct any executions.

Change is in the air. Perhaps Americans have been paying attention when inmates who were wrongly convicted have been released from death row. Perhaps they understand there is something cruel and unusual about a public employee strapping criminals to tables for a lethal injection or shaving their heads to prep them for the electric chair or placing them in gas chambers while audiences watch them die.

New Jersey did the right thing. The rest of the country should follow. Government should not be in the business of murdering its people.

- The Des Moines (Iowa) Register

Judge unseals execution documents

ELYRIA (AP) — A judge unsealed a 632-page binder on how the state executes death row inmates, revealing everything from qualifications of execution team members to how the warden signals for the lethal injection drugs to be administered.

The state turned over the binder two weeks ago to Lorain County Common Pleas Judge James Burge, who on Jan. 8 will consider whether lethal injection is unconstitutionally cruel and unusual punishment.

Those documents, originally sealed by Burge at the request of the state, were released Thursday following a public records request from The (Elyria) Chronicle-Telegram and a letter from the newspaper's attorney.

The state has been reluctant to say anything about who serves on the 16-member execution team and, particularly, the medical training received by the three members who prepare an inmate's veins and inject the drugs.

The documents show that at least one medical team member is certified by the American Society of Clinical Pathologists' Board of Registry. That organization handles certifications for numerous jobs in pathology and laboratory work, including hematologists, phlebotomists and those who work in blood banks, according to the society's Web site.

The injection of the drugs begins after the warden of the Southern Ohio Correctional Facility buttons his jacket as he stands over the condemned inmate strapped to the execution table, the documents say.

Ruben Rivera and Ronald McCloud, who could receive death sentences if convicted in two separate Lorain County murders, are challenging the procedure, saying the drugs don't give the quick and painless deaths required by Ohio law.

The Innocence case of Frank Lee Smith - died innocent


A. The original trial proceedings.

On May 9, 1985, Frank Lee Smith was indicted for first-degree murder, sexual battery, and burglary in the Seventeenth Judicial Circuit, Broward County, Florida. Mr. Smith was tried in January 1986 and convicted on all three counts (R. 1252). The Florida Supreme Court has noted the jury in this case had some difficulty in reaching a guilty verdict:

Of the witness identifications presented at trial, that of [Chiquita] Lowe clearly was the most credible. After the jury had deliberated for five hours, it requested that it be permitted to rehear Lowe's testimony. The court declined. One hour later, the jury repeated its request. The court acceded. Two and one-half hours later, the jury rendered its verdict.

Smith v. Dugger, 565 So. 2d 1293, 1296 (Fla. 1990).

After a one-day penalty phase, the jury recommended a death sentence (R. 1364). On May 2, 1986, Circuit Judge Robert Tyson sentenced Mr. Smith to death (R. 1440). The Florida Supreme Court affirmed on direct appeal. Smith v. State, 515 So. 2d 182 (Fla. 1987). The United States Supreme Court denied certiorari. Smith v. State, 485 U.S. 971 (1988).

Mr. Smith was convicted based on the testimony of three "eyewitnesses" -- none of whom actually saw the crime occur. The victim's mother, Dorothy McGriff, saw a man outside her house just before she found her daughter. Chiquita Lowe testified that a man flagged down her car near the victim's house on the night of the crime and asked her for money. Gerald Davis was walking on the victim's street on the night of the crime when a man approached him and offered him drugs. There was absolutely no physical evidence linking Mr. Smith to the crime or the crime scene -- no hair, no fingerprints, no blood, no fibers matching Mr. Smith were found.

The Florida Supreme Court noted in 1990 that of the three eyewitnesses, Chiquita Lowe "clearly was the most credible." Smith, 565 So. 2d at 1296. The Court specifically noted that Dorothy McGriff "could not identify [the man's] face. She later identified Smith based only on his shoulders." Id. at 1295. Of Gerald Davis, the Court observed that "[he] could not remember `how the guy looked.' He testified that Smith looked like the man but he could not identify him positively." Id.

On April 14, 1985, eight-year-old Shandra Whitehead was raped and murdered in Ft. Lauderdale, Florida. The crime occurred between 10:30 or 10:40 p.m., when Shandra's aunt checked on her and her brother Reginald (R. 608), and 11:30 p.m., when Shandra's mother arrived home from work and found her daughter (R. 635). Ms. McGriff testified that as she pulled her car into the driveway that night, she saw a man at the side of the house reaching in through a window (R. 635-37). Ms. McGriff yelled at the man and then jumped out of the car, grabbed a slingblade, and chased the man away from the house (R. 638). The man ran from Ms. McGriff and jumped over a chain-link fence into the backyard (R. 639). Ms. McGriff then went into the house where she found her daughter (R. 641).

In addition to Ms. McGriff, the police found two witnesses whom they believed saw the man who raped and killed Shandra Whitehead -- Gerald Davis and Chiquita Lowe, two teenagers who lived in the victim's neighborhood. Mr. Davis testified that on the night of the murder he was out walking at about 9:30 or 10:00 p.m. when a man called to him from the empty field across the street from Shandra's house (R. 745-46). As Mr. Davis continued walking, Chiquita Lowe drove up to him and stopped to talk (R. 747). After Ms. Lowe drove away, the man ran to Mr. Davis; he told him that he had just moved from New York, offered him drugs, and made a sexual proposition (R. 748). Mr. Davis testified that he "paid him no mind because [he] didn't want to be bothered." (R. 749).

Chiquita Lowe testified that at about 10:30 p.m. she was driving down Shandra's street when a man came out of Shandra's yard and flagged her down; the man approached the car, leaned into the driver's side window, and asked for money (R. 668-69). The man left when Ms. Lowe told him that she had no money (R. 669). Ms. Lowe continued driving and stopped about a minute later to talk to Mr. Davis (R. 673).

On April 17th, Mr. Davis and Ms. Lowe assisted the police in the creation of a composite sketch of the suspect (R. 675, 752). Detective Amabile testified that Ms. McGriff did not participate in drawing the composite sketch because Ms. Lowe and Mr. Davis "had more of an eye for detail" and because Ms. McGriff was "emotionally distraught" and was "a simple woman and could not articulate what she was trying to tell us" (R. 886-87). Detective Scheff testified that Ms. McGriff did not participate in creating the composite because he was "fairly certain" that she had seen the same man as Lowe and Davis; he also agreed that Lowe and Davis "were much more articulate than she was." He explained that "[t]he ability to do a composite depends upon the witness' ability to visualize the person." (R. 969). Before the composite sketch was distributed in the neighborhood, it was shown to Ms. McGriff who, according to Detective Scheff, "gave . . . a very positive reaction." (R. 971).

Mr. Smith was arrested outside his home on April 18, 1985 (R. 855). Detective Scheff had received a call from Ms. Lowe regarding a man who had come to her house with a shopping cart trying to sell a television (R. 971). Detective Scheff testified at trial and in his deposition that Ms. Lowe spoke to the man with the television and immediately recognized him as the man she saw near the crime scene (R. 1031-33). Detective Scheff explained that Ms. Lowe believed that the man had used the television as a ruse to get to her because he somehow knew she was a witness in this case (R. 1033). However, Ms. Lowe testified that when the man came to her house with the television, she was asleep (R. 676). Her family members spoke to the man with the television, saw the composite sketch, and became convinced that he was the same man (R. 677-78). Ms. Lowe looked out a window and saw the man walking away through an alley across the street from her house (R. 677). Mr. Smith was arrested several hours later. He was never seen by the police with either a shopping cart or a television (R. 856).

The defense strategy at trial was to challenge the three witnesses' identifications of Mr. Smith and to suggest that the police had not properly eliminated other suspects. As the Florida Supreme Court noted, the testimony of Ms. McGriff and Mr. Davis identifying Mr. Smith was extremely weak: Ms. McGriff, though positive about her identification, admitted that she did not see the man's face, and Mr. Davis, who reluctantly identified Mr. Smith, repeatedly told the police he did not remember what the man looked like. Assistant State Attorney William Dimitrouleas' closing statement demonstrates that the State had only one strong witness who could identify Mr. Smith. Mr. Dimitrouleas told the jury:

I don't care how much Gerald Davis' testimony was attacked, how much his identification is attacked, there has never been any question as to the fact that there was a weird strange guy that was talking to Gerald Davis that evening and what he said was bizarre.

(R. 1156). Mr. Dimitrouleas then bolstered Mr. Davis' identification and encouraged the jury to overlook his inconsistent statements and hesitation by reassuring the jury that he and Ms. Lowe saw the same person (R. 1158). Mr. Dimitrouleas also reassured the jury that Ms. McGriff's identification of Mr. Smith based only on his shoulders is reliable because Mr. Smith has a "distinctive" upper body (R. 1160).

On April 15, 1985, Ms. McGriff gave the following description of the man to the police: "medium build, heavy in the chest, lower haircut, black man, dark skin with jeans, pair of brown suede shoes, orange T-Shirt with writing across the chest." (R. 650). Ms. McGriff testified that when she gave her first statement to the police she did not know what the man looked like (R. 651) and that she told the police she would not be able to recognize the man's face (R. 658, 663). At her deposition, Ms. McGriff testified that she could not describe the man's face (R. 655). Ms. McGriff testified that she only saw the man for a couple seconds (R. 651-52). She explained:

Q Isn't it true you weren't actually paying too much attention to the man itself? You were basically interested in getting him away from your window?

A That is true.

Q Isn't it true when the person turned his face around it was flashing so quickly you didn't get a good look to see whether he was wearing glasses or not?

A That's right.

(R. 653-54).

Ms. McGriff explained how she identified Mr. Smith from the photographic line-up:

Q (By Mr. Washor) You didn't get a good look at his face, isn't that correct?

A No.

Q Isn't it fair to say there was nothing about this person's face that stuck out in your mind at all because everything happened in a flash?

A Pardon me?

Q Nothing about this person stuck out in your mind because everything happened in a flash?

A Yes.

Q Isn't it also fair to say everything was dark from this person's head down to his shoulders?

A Yes.

Q But from his shoulders down, you can describe his clothing because the light was shining on the clothing; isn't that correct?

A Yes.

Q Wouldn't it be fair to say you picked that picture of Mr. Smith based upon his shoulders?

A Yes.

Q You couldn't identify his face, right?

A No.

Q If I showed you a picture of his face, you couldn't tell me whether that was the man or not; correct?

A Yes, from his shoulders.

Q Yes, I'm correct. If I show you a picture of the face of the man you couldn't tell me?

A No.

Q You could not, correct?

A No.

Q Isn't it true that you couldn't see the person's face at all, describe it, because it was just a flash that you saw?

A Yes.

(R. 655-56). Although Ms. McGriff testified that she identified Mr. Smith from his shoulders, his shoulders are not visible in the photo line-up which includes only Mr. Smith's face and neck.

Mr. Davis gave the following description to the police: "maybe six feet, a hundred and sixty, hundred seventy pounds, like muscular, chubby stomach, really couldn't tell, it was dark and he had a beard that was very tacky, like he did not keep it up and kinky hair." (R. 766). Mr. Davis testified that he was trying to avoid the man: "I didn't really want to be bothered with him because I did not know the guy. . . . I was like paid him no mind because I didn't want to be bothered." (R. 748-49; see also 750, 768, 770). Mr. Davis explained that he did not get a good look at the man because the streetlights were out (R. 773), he was ignoring the man and hoping he would go away (R. 777), he only looked at him for a few seconds (R. 778), and he "was never looking at him directly." (R. 776). Mr. Davis tried to explain his numerous inconsistent descriptions:

What I'm saying, I said it was dark. I was trying to avoid the guy. I don't remember exactly.

(R. 777). Mr. Davis told the police that nothing about the man stuck out in his mind and that he was unsure whether he would be able to recognize the man (R. 772, 778).

Mr. Davis could not identify Mr. Smith from the photo line-up that was shown to all three witnesses and insisted on seeing a live line-up before he would make an identification (R. 1051). Mr. Davis was uncomfortable with his identification of Mr. Smith from the live line-up because, as he told Detective Scheff, Mr. Smith did not look as large as the man he saw on the night of the crime; Mr. Davis explained that when he voiced his concern about Mr. Smith's size, the police "said to me that the reason it's like that because all the guys are between six one and six feet and that is why they all seem the same size." (R. 757). After being reassured by the police, Mr. Davis identified Mr. Smith.

Detective Scheff lied to Mr. Davis: the men in the live line-up were not all between six feet and six one. Detective Scheff tried to claim that the men were "[a]bout six feet tall, as close as we could get. I think one was six feet tall, all appeared to be the same." (R. 1048). However, on cross-examination, he was forced to admit that one man was five feet ten inches tall and another was only five feet nine inches tall (R. 1050). Mr. Smith stood between the two shortest men in the line-up (R. 1050). Detective Scheff refused to accept responsibility for the varied heights of the men in the line-up:

I want to say this to you, Mr. Washor, we did not measure these people. I'm basing the physical description on what they are telling me. If they are correct, if they know their height, then that is the correct height. If they are in error, then these figures are going to be in error.

(R. 1049). Detective Scheff claimed that he "tried to get as many people that physically resembled [Mr. Smith] as possible," but he was forced to admit that two men were obviously shorter than the others (R. 1049). Detective Scheff also admitted that none of the men in the line-up weighed more than one hundred and eighty pounds although the descriptions of the suspect in this case all indicated a weight heavier than that (R. 1050). Detective Scheff also agreed that three of the men in the line-up were substantially younger than Mr. Smith: by fourteen, seventeen, and thirteen years (R. 1050). Detective Amabile confirmed that Mr. Smith was the oldest and the tallest man in the line-up and that he was situated between the two shortest men (R. 942).

Mr. Davis also testified that the police pressured him to make an identification and used suggestive tactics. During Mr. Davis' first statement to the police, he said in response to their questions that the man did not have any scars on his face (R. 769). However, during his second statement, Mr. Davis said that the man had a scar on his cheek (R. 788). Mr. Davis explained why his description regarding this detail changed:

Q What, if any, recollection do you have regarding whether the fellow had any scars?

A I don't remember.

Q Do you recall having a conversation with the police or in a deposition later on about scars?

A Yes.

Q Do you recall what that conversation was?

A It was, did he have a scar. I said, I think so.

Q Would that have been based on something that you were remembering or something that the police had told you or do you know?

A Something that they were telling me.

Q You don't have any recollection of the scar?

A No, I don't remember a scar.

(R. 757-58). Between Mr. Davis' first and second statements, Mr. Smith was arrested. The police, noticing that Mr. Smith has a scar on one cheek, realized that they needed to alter Mr. Davis' description. As Mr. Davis explained, his revised description of the scar on the man's cheek was based "[o]n something that [the police] were telling me." (R. 758). Mr. Davis was clearly confused at the trial when he tried to explain his inconsistent statements regarding the scar: "I probably said scar at one time but I probably said he didn't have any scars. He didn't have any scars." (R. 769).

Detectives Scheff and Amabile were also forced to explain Mr. Davis' inconsistent statements regarding whether the man he saw on the night of the crime had a scar. Detective Amabile initially confirmed Mr. Davis' memory of his first statement to the police when he said that the man had no facial scars (R. 925). During redirect examination, Detective Amabile changed his testimony:

Q Did you all come out point blank and say, did the guy have any scars?

A No.

Q What exactly was Gerald Davis asked?

A He was asked if he had any scars, marks, tattoos, missing gold teeth. It was all one sentence that was asked.

Q What was his response to the whole line of things?

A No.

Q Now when he said no, did you catch that he was saying no to scars?

A No.

Q Had he previously told you about a scar?

A Prior to taking a taped statement is when he told us about the scar.

(R. 953).

On cross-examination, Detective Scheff clearly became defensive when Mr. Smith's attorney asked about Mr. Davis' description of the suspect regarding the scar:

Q I believe on your direct examination when you said when speaking to Davis during this first statement, that he stated that the man had a scar on his face?

A That's correct.

Q Are you positive about that?

A Absolutely.

Q Would you like to refresh your memory at all?

A No, sir.

Q Do you remember Mr. Davis saying anything contrary during your conversation with him, your taped conversation with him?

A Well, I know I believe I know what you are referring to.

Q What am I referring to?

A You're referring to the question in which he responds with a, no, to the question in reference to scars and he responds with a negative and says, no, but I believe that was my fault and not his.

Q Did he or did he not say that?

A If you want to refer to the question, I'll show you what I'm talking about. I know what you are talking about.

Q The first statement, page five, was there anything about him you remember, anything like missing teeth, anything that stands out in your mind, scars he might have had. And his answer, no.

A That's correct.

Q He did say no?

A Yes, but actually if you take a look at that question I have really asked him four questions and unfortunately if you are asking me why this happened, I can only --

Q I'm asking you what he said?

A He said no on the tape.

Q But it's your testimony that when he was off the tape he said, yes?

A That's correct.

(R. 1013-14). Mr. Davis said on tape that the man had no facial scars. Because this description is inconsistent with Mr. Smith's appearance, Detective Scheff claimed that off the tape Mr. Davis said the man did have a facial scar. Although Detective Scheff admitted that a facial scar would be "an important factor" to use in identifying a suspect, he did not think that Mr. Davis' untaped description of the scar was important enough to be included in his handwritten notes (R. 1014-15).

Mr. Davis testified at his deposition that the police were also giving him hints and speaking in a suggestive manner when they showed him the photo line-up (R. 786). When he viewed the live line-up, the police instructed him to pick out the person who "looks like" the man he saw near the crime scene; they did not tell him to pick only the man he actually saw (R. 789). In addition, Mr. Davis was shown a picture of Mr. Smith immediately before he viewed the live line-up (R. 789, 797-98). At his deposition, Mr. Davis testified that the police instructed him to pick out the man who looked most like the man in the picture he had just been shown (R. 790).

Mr. Davis admitted that he was unsure of his identification but that he felt compelled by the police to make an identification:

Q Isn't it true you can't honestly swear to me right now that the man you picked out in the live line-up is the same man you saw that night?

A No, I can't say he is exactly the same guy but he looks like the guy.

Q My question is: You can't honestly say that is the same man, can you?

A No.

Q But the police had you fill out a form, correct, to indicate that you picked out number five or whoever?

A Yes.

Q And didn't you keep on saying you weren't sure, only that he looks like the guy?

A Yes.

Q Isn't it true that if the guy came up to you right now you couldn't say whether it was the guy you saw on the street or not?

A No.

Q Why did you identify Mr. Smith?

A I identified him as the guy I picked out of the line-up and the guy I talked to but - which I have been saying from the beginning, I don't remember how the guy looked.

Q Didn't you feel compelled by the police in the live line-up to pick somebody out?

A Yes.

Q Isn't it true that the man you picked out in the live line-up, Frank Smith, was not as big as the guy you saw on the street?

A No.

Q That's true, isn't it?

A Yes.

Q Didn't you keep saying to the police, I don't know if this is the guy and didn't they keep saying to you, don't feel that you are going to send an innocent man to jail in an effort to get you to stick to your story?

A Yes.

Q Wasn't it apparent to you that the police wanted you to make an identification?

A Yes.

(R. 792-94)(emphasis added). Mr. Davis also testified that the police did not record his statements when he told them he was unsure of his identification; the only statement that was taped was his reluctant agreement with the detectives that Mr. Smith was the man he saw near the crime scene (R. 795).

Detective Scheff admitted that after choosing Mr. Smith from the line-up Mr. Davis "began to say that he wasn't sure that the person he had picked was the same person he had seen that night." (R. 991). Detective Scheff offered his own opinion about Mr. Davis' equivocation:

Well, it became clear that it was not the identification he was having a problem with but it was his testimony. The fact that he was going to have to appear in court, that he was reluctant to.

(R. 992). Despite Detective Scheff's opinion that Mr. Davis was a reluctant witness, his inconsistent statements and hesitation about the identification of Mr. Smith were caused by his doubts that Mr. Smith was the man he saw on the night of the murder.

Because of Mr. Davis’ hostility towards the State and allegations of police misconduct, Assistant State Attorney Dimitrouleas requested that Mr. Davis be called as a court witness:

Based on his changing his testimony from the sworn statement to the police to what he said on deposition. I can't vouch for his credibility. He's saying basically now, before he made the live line-up identification that the police showed him a photo line-up, again, which they emphatically deny. Contrary to what he said in the sworn statements he's positive he's now saying, all he can say is the guy looks like the guy.

(R. 742). Over defense objection, the court granted the State's request thereby allowing the State to challenge Mr. Davis’ claims of police misconduct in getting him to identify Frank Lee Smith.

Chiquita Lowe was the State's strongest identification witness at Mr. Smith's trial. She identified Mr. Smith as the man she saw on the victim's street on the night of the crime (R. 707). However, several aspects of Ms. Lowe's testimony reveal that, like Gerald Davis, she was manipulated by the police. Most telling, Ms. Lowe testified that the man she saw had a droopy eye "like it was weak. It needed glasses." (R. 683). Ms. Lowe and Mr. Davis testified that the man they saw was not wearing glasses (R. 696, 764). Ms. Lowe told the police about the droopy eye, and the composite sketch clearly indicates that both she and Mr. Davis observed this distinctive characteristic. This description presented two problems for the police after Mr. Smith's arrest: first, Mr. Smith does not have a droopy eye, and second, Mr. Smith is legally blind and cannot function without very thick glasses (See Dr. Hathaway testimony first proffered in 1991). Ms. Lowe was coached by the police to offer her inexpert opinion about the man needing glasses in an attempt to reconcile her identification of Mr. Smith with her testimony about the man's droopy eye and lack of glasses.

Ms. Lowe's testimony was also inconsistent regarding the clothing worn by the man she saw on the night of the crime. The police found a blue windbreaker in a truck across the street from the victim's house (R. 962). Apparently, the police wanted to link the windbreaker to the crime although it was of no evidentiary value. Ms. Lowe testified that the man she saw on the night of the crime was wearing a blue windbreaker (R. 682). However, in her initial statement to the police, Ms. Lowe said she was unsure what the man was wearing, but thought she may have seen a white shirt or a white shirt with red stripes (R. 690). Ms. Lowe never mentioned a blue windbreaker to the police (R. 698).

Ms. Lowe's trial testimony also omitted an important detail from her initial description of the man she saw. She told the police that the man had big arms and a big chest (R. 688). Ms. Lowe initially denied this statement because when she viewed Mr. Smith in court she realized that he did not match the description. Finally, Ms. Lowe, like Gerald Davis, told the police that the man she saw did not have any scars on his face (R. 706-07). Ms. Lowe admitted at Mr. Smith's trial that he has a scar on one cheek (R. 707).

In addition to challenging the three witnesses' identifications of Mr. Smith, defense counsel also suggested that the police had not sufficiently eliminated other suspects. Detective Scheff testified that he investigated two other men as suspects: Arcy Nealy Williams was eliminated because he had an alibi (R. 963-64), and James Freeman was eliminated because the witnesses did not choose him from a line-up (R. 965-66). Detective Scheff also testified that Edwin McGriff, Eddie Lee Mosley, "Gator Mouth," and "Big John" were suspects (R. 1022, 1024-25).

Detective Scheff testified that other than Freeman, no other suspects were ever shown to the witnesses in either a live or a photo line-up (R. 946, 1026). Detective Amabile's testimony is consistent that he showed the three witnesses two photo line-ups: one including James Freeman and the other including Frank Lee Smith (R. 881-82, 907). The two photo line-ups were offered into evidence by the State (State Exhibit 105, line-up of James Freeman at R. 880; State Exhibit 81, line-up of Frank Lee Smith at R.--- ). Detective Amabile testified that he and Scheff followed up on the names of all suspects who came to their attention and that they eliminated all other suspects to their satisfaction (R. 948-49). Detective Scheff explained that once a name is brought to his attention as a possible suspect, "I have an obligation to follow up certainly and eliminate them as potential suspects." (R. 1055). In regard to this investigation, he testified that he had eliminated all possible suspects (R. 1056).

Detective Scheff was specifically asked about Eddie Lee Mosley and about the victim's relatives:

Q Was Eddie Lee Mosley ever a suspect in this case?

A Eddie Lee Mosley was a suspect in this case along with Edwin McGriff. Initially when we first began investigating the case, really had no specific direction to go in.

(R. 1024). Detective Scheff attempted to downplay the significance of being a suspect in this case by explaining that "[a]t one point or another almost everybody in Fort Lauderdale was a suspect." (R. 1023).

During his deposition, Detective Scheff did not mention Eddie Lee Mosley at all despite Mr. Smith's attorney's exhaustive questioning regarding the four day investigation of this case. Detective Scheff detailed his activities for each day and each time was asked whether anything else was done:

Q Did that finish it for the 16th?

A Yeah, sure did.

(Scheff depo at 41).

Q Anything else happen on the 17th of any consequence?

A No.

(Sceff depo at 48).

Q Was anything else done on the 18th that we haven't discussed?

A No.

(Scheff depo at 69).

Q After the 4 a.m., April 19th meeting with the Irvings, Bertha and family, where did your investigation take you?

A Then, it took me home to bed.

(Scheff depo at 81). Detective Scheff repeatedly told Mr. Smith's attorney that nothing else had been done that was not discussed. He provided information about other suspects, including a tip regarding a possible suspect named "Gator Mouth" that was received after Mr. Smith's arrest (Scheff depo at 93-95), and discussed potential evidence that was determined to be unreliable and was not used in the case against Mr. Smith (Scheff depo at 91-92). The deposition concluded with the following question and answer:

Q Is there anything else that's happened in this case that we haven't discussed?

A I don't think so. Not that I can think of.

(Scheff depo at 97).

When specifically asked about relatives of the victim, Detective Scheff did not tell Mr. Smith's attorney that Eddie Lee Mosley, Dorothy McGriff’s cousin, was investigated as a suspect:

Q Did you have, at this point in time, anybody in mind?

A You mean, as a suspect?

Q Yes.

A Oh, no.

Q How about any relative of the deceased, uncles, cousins?

A We had booked an individual by the name of Edwin McGriff, who is a cousin to Dorothy [the victim's mother]. As I had indicated earlier, we checked with - on the first night, for similar crimes. And, at that point in time, we discovered that Edwin McGriff had been accused, I think, in 1982, of a sexual battery of a minor black female child, and subsequently, we sat Dorothy McGriff down and explored the possibility with her that it might have been her cousin. She was quite emphatic that the person she had seen was not her cousin and that she was being truthful. It was my feeling that she was.

(Scheff depo at 44). Detective Amabile also testified that Edwin McGriff was the only member of the victim's family who was investigated as a suspect (R. 946). However, in contrast to Detective Scheff's deposition testimony regarding his conversation with Ms. McGriff about Edwin McGriff, Dorothy McGriff testified that she did not know that her cousin Edwin McGriff was a suspect (R. 658).

Detective Scheff said nothing about Eddie Lee Mosley, another cousin of the victim's mother, being a suspect. He said nothing about checking Mosley's criminal history for similar crimes. He said nothing about eliminating Mosley through a comparison of his modus operandi and that of this crime. Detective Scheff said nothing about showing the three witnesses a line-up including a photo of Eddie Lee Mosley.

At trial, Detective Scheff also testified regarding a statement that Frank Lee Smith had supposedly made. Scheff testified that he and Detective Amabile interviewed Mr. Smith shortly after his arrest. Initially, Mr. Smith identified himself as Frank L. Israel, but then he signed a waiver form as Frank L. Smith (R. 978). Mr. Smith did not have on glasses at the time of the interview (Id). After telling Mr. Smith that Lowe, Davis, and Mrs. McGriff were eyewitnesses and receiving no response (R. 982), Detective Scheff lied to Mr. Smith, telling him that the victim's brother, who was asleep at the time of the offense, had seen the suspect (R. 983). According to Detective Scheff, Mr. Smith became upset and spontaneously said there was no way the boy could have seen him because it was too dark (R. 984).

Detective Scheff's testimony about this statement was inconsistent with a police report written by a Sergeant Carry. According to this report Detectives Scheff and Amabile were in fact the first officers to interview Mr. Smith after his arrest. This interview lasted approximately two and a half hours. Sgt. Carry's report indicates that Detectives Scheff and Amabile were unable to establish any rapport with Mr. Smith or to obtain any statements, so they requested that Sgt. Carry and another officer interview Mr. Smith, which they did at about 6:35 p.m. According to Sgt. Carry's report, it was during his interview with Mr. Smith that Mr. Smith purportedly made the statement. Clearly, this information contradicted Detective Scheff's testimony, casting doubt on whether the statement was made at all and certainly impeaching Detective Scheff's credibility. Trial counsel had this information, but failed to use it.

Bush 'inclined' to grant reprieve to killer facing execution

Bush 'inclined' to grant reprieve to killer facing execution

McGinn, 43, was sentenced to die by lethal injection for the 1993 rape and murder of his 12-year-old stepdaughter

May 31, 2000
Web posted at: 8:57 p.m. EDT (0057 GMT)

AUSTIN, Texas (CNN) -- Texas Gov. George W. Bush said he is "inclined" to grant his first ever 30-day reprieve to a death row inmate who was convicted of the 1993 rape and ax murder of his 12-year-old step-daughter.

Ricky Nolen McGinn, 43, a mechanic with an 11th grade education, is scheduled to die shortly after 6 p.m. (7 p.m. EDT) Thursday.

The Texas parole board voted 18-0 Wednesday to deny McGinn's request for commutation and voted 11-7 not to grant him a one-time 30-day reprieve.

The Texas governor may commute a death sentence only upon the recommendation of the state parole board, but he can go override their decision on the reprieve.

Asked Wednesday if he would grant such a reprieve, Bush told CNBC's "Hardball": "I'm inclined to because ... I want the man to have a full day in court. And if there is any doubt, any outstanding evidence that could exonerate him from the rape, we ought to look at it."

Bush said he would wait to make his decision until all appeals had been exhausted, but later told reporters he was "more than likely" to grant the reprieve if the decision comes to him.

The comments come just days after Bush advocated DNA testing to "erase any doubts" from some death penalty cases.

Riley won't order DNA testing

December 29, 2007

Riley won't order DNA testing

By Rick Harmon

Gov. Bob Riley said he will not order DNA testing for Alabama

death row inmate

Thomas Arthur because he does not have the power to do so.

"I simply do not have the authority to order post-conviction

DNA testing,"

Riley said during a telephone interview.

Last week six men who were exonerated by DNA testing

after being sentenced to

death sent a petition calling on Riley to order DNA

testing in Arthur's case.

The 65-year-old inmate was originally scheduled to be

executed Dec. 6 for the

1982 murder-for-hire slaying of Troy Wicker Jr.

of Muscle Shoals. But the U.S.

Supreme Court has effectively halted executions

nationwide until a Kentucky case

on the constitutionality of lethal injections is ruled on.

Riley said he supports post-conviction DNA testing,

and will support it again

when legislation making it mandatory is expected

to be introduced during

the upcoming legislative session.

But he said the way the law stands now, the power

to order and have the

state pay for such tests rests exclusively with the courts.

The governor's legal adviser, Ken Wallis, said he has

advised Riley that no

governor of Alabama has the power to order such tests

under the Alabama Constitution.

Wallis said although governors had extensive

powers 40 or 50 years ago,

the current constitution gives governors only two powers

relating to death penalty

cases: the power to grant a reprieve by reducing a

death sentence to

life without parole, and the power to temporarily

stay an execution.

"Certainly the governor doesn't have the power to

appropriate funds

for something that was never contemplated

under the budget," he said.

"The authority to do this lies with the court system,

and only the court system,

unless the Legislature passes a law changing that.

"In this case, Mr. Arthur has presented the request

to the court, been denied,

it has been appealed to a higher court, and it has been

denied on appeal.

In this case, all these things were addressed in motions

and in trial.

The evidence against him was overwhelming.

A co-conspirator pled guilty a

nd served time for this crime."

But Eric Ferrero, director of communications for The Innocence


which has helped coordinate the effort to have DNA testing

done in the case,

is skeptical both of Arthur's guilt and of the reasons for not

trying to prove

or disprove it conclusively through DNA testing.

Ferrero said while the constitution may not explicitly state

the governor

has such power, other governors, such as Florida's Jeb Bush a

nd President Bush,

when he was governor of Texas, have ordered DNA testing in

death row cases.

"Neither of them had an explicit law that said they could do that,

but they did.

They just felt they had the moral obligation to do that," Ferrero said.


have considerable leeway in cases like this.

"I think the real question to ask here is: 'Have they even tried?

Has anyone even challenged their authority to do it?'"

Ferrero said others involved with death penalty cases have long

been bemused

by how rare it is to hear governors say how powerless they are to

do things -- except

in death penalty cases.

"Before they said they wouldn't do it because we were trying to

use DNA tests as a

delaying tactic, but obviously that is not the case now because

it is already being

delayed," he said.

Ferrero believes a DNA test will exonerate Arthur. He said there

is now no reason

not to have the tests since DNA testing would take only about

a month and his

organization has agreed to pay for the testing. A DNA test for

such cases

usually costs in the thousands of dollars, according to Ferrero.

Attempts were made to interview Arthur's attorney, Suhana Han,

but she did

not return phone calls Thursday or Friday.

Judy Wicker, the murder victim's wife, initially told police that

a black man

had raped her and killed her husband.

She later confessed that she was having an affair with Arthur,

a work-release

inmate, and paid him $10,000 to kill her spouse so she

could collect $90,000

in life insurance.

Legal Wrangling Spared Inmates On Death Row

Legal Wrangling Spared Inmates On Death Row

Published: December 29, 2007

The state did not execute any death row inmates this year for the first time in 25 years, the result of legal and ethical challenges to lethal injection that temporarily have halted executions nationwide.

Florida was under a moratorium for the first six months of the year, after the botched execution of Angel Diaz in 2006 triggered a state commission's review of the lethal injection process.

Gov. Charlie Crist signed a death warrant in July, but the U.S. Supreme Court stopped the execution as part of a national de facto moratorium while it considers the appeals of two Kentucky inmates who are challenging the same lethal three-drug combination of drugs used in Florida.

Experts say the nation's attitudes have shifted away from using the death penalty, leading to the increased scrutiny of the lethal injection process. But support remains higher in Florida, which is expected to begin executions again once the Supreme Court rules on the matter.

There is little chance the nation's highest court will put an end to the death penalty altogether when it decides the Kentucky case next year. And the Florida Supreme Court already has ruled this year that the state's updated lethal injection protocol is constitutional, and not cruel and unusual punishment.

"Anybody who's gotten a stay is still on death row, and as soon as there's clearance there will be a date set," said Richard Dieter, executive director of the Death Penalty Information Center, a Washington, D.C.-based nonprofit group that tracks death penalty cases.

"At some time, you might see Florida set a whole bunch in one month," Dieter said.

There are three active death warrants in Florida, including one for Robert Trease, a man convicted of shooting and slashing the throat of a Sarasota man in 1995. At least two dozen death row inmates have exhausted their appeals and are eligible for a death warrant, according to the state's Commission on Capital Cases.

A spokesman for Crist said each death warrant is handled individually, and that it is irresponsible to speculate on what the governor would do after the U.S. Supreme Court's decision.

But Sen. Victor Crist, R-Tampa, who served on the state commission that studied lethal injection this year, said he and Gov. Crist share the same conservative values when it comes to protecting victims and thinks the governor would start "cranking them out" after a decision.

"Our protocols, our procedures, our checks and balances are contemporary and at the highest standards worldwide," said Sen. Crist, who is not related to Gov. Crist.

The Florida Supreme Court ruled this year that an updated process, including additional training for execution teams and installing closed-circuit monitoring to check on the inmate's face and IV access points, ensured prisoners are not subjected to needless pain and suffering during the procedure.

But signing many warrants all at once also could have political ramifications if voters think the governor has too much enthusiasm for executions, said Robert Batey, a professor at Stetson University College of Law. The most executions in one year in modern times were eight in 1984, and the state has averaged about 2.35 executions a year since 1983.

"I think there is some benefit to presenting the image of a measured, reasoned approach," Batey said.

Florida is not alone with death row problems: Lethal injections are on hold in other states and the U.S. Supreme Court halted three other executions.

The New Jersey governor ended the death penalty in that state this month and the enthusiasm for executions waned nationwide in 2007, with the fewest executions in a decade.

Those who track the death penalty said prosecutors are seeking the penalty less because jurors expect stronger evidence than in other cases.

The process had enough safeguards to ensure that prisoners are not subjected to needless pain and suffering during the procedure, the state Supreme Court ruled.

Even after the U.S. Supreme Court decision expected next year, death row inmates still can question whatever guidelines come down.

"There's going to be a challenge," Dieter said.


DEATH ROW: State records show 388 inmates are on Florida's death row, including 19 sent there in 2007. They face execution only after all their appeals have been exhausted and the governor signs a death warrant.

PROCEDURE USED: Florida's execution procedure is similar to the method used in 36 other states that use lethal injection. Inmates are injected with sodium pentothal to render them unconscious, followed by pancuronium bromide to paralyze the muscles. Potassium chloride then is injected to stop the heart.

THE MORATORIUM: Florida began the year with a seven-month moratorium on executions after the state's botched killing of Angel Diaz in December 2006. It took 34 minutes for Diaz to die - twice as long as normal - because the execution team pushed the needles through his veins. He grimaced and asked twice, "What's happening?"