Monday, 2 July 2007

Death-row reversals of fortune

July 1, 2007


Death-row reversals of fortune

In 7 years, 50 Pa. inmates awaiting execution were spared by the courts.

By Emilie Lounsberry, Philadelphia Inquirer(

(Former death-row inmates, from left, Harrison "Marty" Graham, Kenneth Ford
and Joseph Szuchon are now serving life sentences. On appeal: Mumia
Abu-Jamal. > More images)

Harrison "Marty" Graham was sent to death row in 1988 for strangling seven
women, whose corpses he kept beneath piles of trash in his North
Philadelphia apartment. In 2003, a state trial-court judge threw out the
sentence, and Graham now is serving life.

Kenneth Ford was condemned to die after a jury found him guilty in 1991 of
killing two women with a 10-inch Bowie knife in a West Philadelphia candy
store. In 2002, the Pennsylvania Supreme Court threw out the sentence, and
Ford now is serving life.

Joseph Szuchon lived with his girlfriend in the city until she broke up with
him and moved to Erie. In 1981, he fatally shot her there in a cornfield. In
2001, a federal appeals court threw out his death sentence, and Szuchon now
is serving life.

In just the last seven years in Pennsylvania, an estimated 50 inmates who
were facing execution have gotten new leases on life behind bars, as federal
and state judges overturn death sentences at a rate that is buoying
opponents of capital punishment and infuriating prosecutors.

Departures from Pennsylvania'

s death row - with 225 residents, the fourth
largest behind California, Florida and Texas - have roughly equaled arrivals
since 2000, and could soon eclipse them.

The appeals pipeline is clogged with condemned inmates fighting for life
without parole, at the very least. Also since 2000, about 75 of them have
scored significant interim victories - new sentencing hearings or retrials -
typically after courts found serious legal errors in the way their original
cases were tried.

Eyes around the world have been focused on one in particular: Mumia
Abu-Jamal, on death row for the 1981 murder of Philadelphia Police Officer
Daniel Faulkner.

A federal judge concluded in 2001 that Abu-Jamal should get a new sentencing
hearing, a decision that was quickly appealed. He awaits a ruling by the
U.S. Court of Appeals for the Third Circuit, where the case was argued in

Meanwhile, well out of the public spotlight, state and federal judges have
been ruling in favor of other Pennsylvania death-row inmates, including
three in just the last two weeks. A convicted murderer from Bucks County got
his death sentence changed to life in prison; one from Washington County was
granted a retrial; and one from Philadelphia won a new sentencing hearing.

The reversals since 2000 have come from a range of courts. The Pennsylvania
Supreme Court issued about 20 percent of them. About 50 percent were
overturned by state trial judges during the next level of review. And
federal judges handed down about 30 percent of the reversals.

Despite the size of Pennsylvania's death row, executions have been extremely
rare since the penalty was reinstated in 1978: three "volunteers" who gave
up their appeals and asked to die. Before them, the last execution was in
1962, when Elmo Smith was put to death for a Montgomery County rape and

Now, prosecutors are complaining, the wave of reversals has turned capital
punishment in the state into even more of an expensive charade.

"There is no death penalty in Pennsylvania," said Montgomery County District
Attorney Bruce L. Castor Jr. Four death sentences from the county have been
thrown out in the last seven years.

State Supreme Court Justice Ronald D. Castille, who often has voted to
uphold death sentences, joined his fellow jurists in overturning one just
this week. He said that the long appeals process and the reversals have
meant that the death-penalty statute is not enforced. "It's only on the
books," said the former Philadelphia district attorney.

Death row is all too real, countered Jules Epstein, a Widener University law
professor who represents inmates appealing their cases. "There clearly is a
death penalty in Pennsylvania," he said. "People get sentenced to death.
People sit on death row. And the real reason people haven't been executed
yet is because of tremendous problems within the system."

Courts nationwide are becoming more cautious in capital cases, according to
Richard Dieter, executive director of the Death Penalty Information Center,
a nonprofit research group in Washington. "They're starting to review cases
with a more realistic eye about what could be lurking underneath," he said.
In Texas, which has executed more prisoners than any other state, four death
sentences were reversed just this year by the U.S. Supreme Court.

In New Jersey, the state Supreme Court famously reversed death sentences
before a execution moratorium was declared in 2005; its death row is down to
eight inmates.

Some of the newfound caution, Dieter said, can be attributed to an attitude
shift about the death penalty, stemming largely from the exonerations of at
least 75 death-row inmates nationwide since 1993. In Pennsylvania, Nicholas
Yarris won his freedom in 2004 when DNA tests cleared him of a Delaware
County rape and murder - after 22 years on death row.

Most Americans still support the death penalty, according to a Pew Research
Center poll released this month, but that majority has shrunk from 78
percent to 64 percent since 1996. Increasingly, Dieter added, there is
support for life without parole as an alternative.

Some sentences have been thrown out because U.S. Supreme Court rulings
demand it. At least seven inmates on Pennsylvania's death row, including
Marty Graham, were spared when the justices barred the execution of the
mentally retarded in 2002. Several others who committed their crimes as
juveniles escaped the death penalty after the high court in 2005 abolished
it for offenders under 18.

However, the bulk of the reversals have turned on legal errors in the
original trials, and most of them were in Philadelphia cases dating to the
1980s and early 1990s. In Kenneth Ford's case, the flaw was "ineffective
assistance of counsel" - his lawyer acknowledged that he "dropped the ball"
in failing to present mental-illness evidence that might have led the jury
to opt for life. In Joseph Szuchon's, a prospective juror had been unfairly

Abu-Jamal has argued that African Americans were systematically excluded
from his jury, which was made up of 10 whites and two blacks. He also has
contended that the trial judge, Common Pleas Court Judge Alfred Sabo, was
biased against him and gave misleading jury instructions.

Sabo, who has since died, had a controversial record in capital cases,
presiding over trials that ended in 32 death sentences. So far, 24 have been

Philadelphia Common Pleas Court Judge Benjamin Lerner, who was chief
defender in Philadelphia from 1975 to 1990 and now presides over homicide
cases, said that city cases from the 1980s have been reversed for good

The court system, he said, "frequently trampled all over the rights of

Those facing the death penalty often got lawyers hand-picked by judges, who
frequently selected friends who didn't necessarily know much about
death-penalty law.

Lerner said there also were a few aggressive homicide prosecutors who were
not concerned about defendants' rights - just getting convictions.

The result: Defendants landed on death row.

Since then, more stringent training requirements have been put in place for
defense lawyers, Lerner said, and the quality of representation in capital
trials has improved. And he now gives high marks to homicide prosecutors.

"The court's a lot different, too," Lerner said. "By and large, the judges
who have been trying homicide cases for the last eight to 10 years . . . are
far more concerned about fair trials."

Changes in the law have made it harder for death sentences to survive
"hyper-technical" judicial scrutiny, said Deputy Philadelphia District
Attorney Ronald Eisenberg. He added that he also believes courts are
"uncomfortable" with the death penalty.

"The higher rate of reversal here," he said, "has to be the attitude of

A review of reversals in Pennsylvania cases shows they were ordered by
judges of varying social philosophies.

For example: Antuan Bronshtein was sent to death row in 1994 for the murder
of a Montgomery County jeweler. In 2005, a Third Circuit panel ordered a new
sentencing hearing; one of the members was Samuel A. Alito Jr., now part of
the conservative bloc on the U.S. Supreme Court.

Reversals by an ideological array of judges show that "the problems with the
death penalty in Pennsylvania are systemic, endemic and pervasive," said
Robert B. Dunham, a federal defender who is part of a special unit known
statewide for winning appeals for death-row inmates. By his count, judges
have granted new trials or sentencing hearings to 200 condemned prisoners in
the state since 1978, with the majority handed down just since 2000.

So will there ever be an execution in Pennsylvania?

Lawyers who follow capital cases say that Alfred K. Albrecht, convicted of
setting the 1979 fire that killed his wife, daughter and mother in Bucks
County, is at risk. The Third Circuit, one of the last appellate stops for
death-row inmates, ruled against him earlier this year.

If Abu-Jamal loses in the Third Circuit, he, too, will be in jeopardy.

But so far, said Castor, the Montgomery County district attorney, the courts
are sending a loud message to those on Pennsylvania's death row: "If you
hang in there long enough, you're eventually going to win."


Source : Philadelphia Inquirer(staff writer Emilie Lounsberry at
215-854-4828 or

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