Sunday, 30 August 2009

CONGO: Death penalty for 2 Norwegians

A military prosecutor in Congo asked a court to sentence to death 2
Norwegians accused of killing their driver in the lawless east of the
country in May this year.

The Norwegians, Joshua French, 27, and Tjostolv Moland, 28, were charged
with murder, attempted murder, espionage, conspiracy and armed robbery
after their driver was found dead with a gunshot wound to his head east of
the city of Kisangani.

"May it please the garrison military court to say that the accusations
against Tjostolv Moland and Joshua (French) are established and to
sentence them ... to the death penalty," prosecutor Major Jean Blaise Bwa
Mulundu said.

The Norwegians had previously served in Oslo's armed forces. Norwegian
diplomats say contacts between the accused and their country's military or
any other official organisation were discontinued in 2007.

It is not clear what the 2 accused were doing in the area. Ex-soldiers are
frequently taken on by private security companies who have stepped up
interest in the region due to oil discoveries under Lake Albert, which
lies on the border between Democratic Republic of Congo and Uganda.

Mulundu requested the death penalty for each of the 5 charges against the
2 defendants.

The verdict is expected to be handed down by the military court next week.

The men were travelling in Congo's northeastern Orientale province, which
is still unstable and plagued by armed groups 6 years after the country's
war officially ended.

But the region is starting to attract investors after the discovery of
billions of barrels of oil on the Ugandan side of the border by
London-listed Tullow Oil and Heritage Oil.


Tarnished justice

Misconduct trial of Judge Keller depicts a court of confusion.

Being Texas Court of Criminal Appeals Presiding Judge Sharon Keller apparently means never having to say you're sorry, even if your actions have brought worldwide scorn upon the state's highest criminal court.

At the core of a five-count complaint by the State Commission on Judicial Conduct is the charge that Keller violated established court procedure by refusing to keep the court clerk's office open past 5 p.m. on Sept. 25, 2007, to accept a last-minute stay of execution request by lawyers for death row inmate Michael Richard, a convicted rapist and murderer. As a result, he was executed as scheduled that evening in Huntsville.

A four-day trial conducted in San Antonio by a special master, District Judge David Berchelmann Jr., concluded last week. He will now recommend to the commission whether the charges should be dropped or the judge reprimanded or even removed from office. That process could take months or even years.

Elected to the court in 1994 and presiding judge for eight years, former prosecutor Keller has amassed a reputation for upholding sentences and outraging legal scholars. In one case she dismissed DNA evidence that appeared to exonerate a convicted rapist by arguing that he could have worn a condom. He was later released from prison and pardoned. However, the controversy and consequences surrounding her “nine to five” decision undoubtedly will make it her greatest career hit.

“I just don't think anybody did anything wrong,” testified Keller at the trial. In answer to a prosecutor's question, she said she wouldn't do anything differently.

Keller not only refused to keep the office open to take an appeal, but she failed to inform Richard's defense team or fellow judges about the situation. She did not tell the judge who was on call to take any last minute appeals, Cheryl Johnson, that the defense lawyers were trying to file such a motion. The unwritten court procedure required any communications involving the execution to be relayed to the on-call judge.

Johnson testified, “I was frustrated that the protocol had not been followed.”

Keller also didn't instruct subordinates to tell the lawyers that there was a judge staying at the court late for that purpose. As a result, no stay was filed, despite the fact that the U.S. Supreme Court had earlier in the day issued a ruling effectively halting lethal injection executions pending review of the technique's legality. Eventually, the high court decided lethal injection executions could resume.

Incredibly, Keller's defense at the San Antonio proceeding was that she was just enforcing office hours and not preventing the Richard appeal from being filed. After all, her attorney Chip Babcock argued, the lawyers could have contacted other court judges. In fact, no one outside the court knew there was a judge on call, and court policy requires lawyers with appeals to go through the court clerk rather than contacting judges. For Keller now to say that the issue was not a substantive life and death matter, but rather a question of office hours, is laughable on its face.

Even less believable was a claim by the court's former general counsel, Ed Marty, that he had told Judge Johnson about the defense lawyer's request for additional time. Judge Johnson flatly denied that and testified Marty had simply said no filing had come in. Why would Judge Johnson have stayed late at the court waiting for that appeal to be filed if she knew it had already been rebuffed?

As with many a defendant who has used technicalities to evade conviction, Judge Keller will likely get off with a hand slap. But she committed gross negligence of her duty to provide impartial justice to all, even convicted murderers. If she does run for re-election in 2012, voters should replace her with a jurist who takes seriously his or her oath of office.


Saturday, 29 August 2009

Keller is unsuited for top court job

Even in Texas, the execution of a convicted murderer is not a commonplace occurrence. When the state is prepared to administer the ultimate, irreversible sanction of justice, its officials must ensure that the judicial process has functioned with meticulous care. A human life is at stake.

Sharon Keller has demonstrated herself to be unfit to serve as the highest judge on Texas’ highest criminal appeals court. The state Commission on Judicial Conduct properly prosecuted Keller for judicial misconduct in the case of death row inmate Michael Richard.

On the day of Richard’s scheduled execution in 2007, the U.S. Supreme Court announced that it was going to consider a case that would determine whether execution by lethal injection amounted to unconstitutionally cruel and unusual punishment. Richard’s attorneys had contacted Keller, the presiding judge on the Texas Court of Criminal Appeals, indicating they were planning to file an appeal on that basis.

The Supreme Court case led to a seven-month moratorium on lethal injections. But not before Texas sent Richard to the death chamber. Despite the news from Washington, Keller refused to keep the court clerk’s office open past 5 p.m. to receive the appeal from Richard’s attorneys.

Keller’s defense is that Richard’s attorneys failed to knock on the right doors and weren’t persistent enough. But Richard’s attorneys don’t represent the power of the state and don’t have the same professional and ethical responsibilities as a judge on the Court of Criminal Appeals.

Keller’s actions are at issue, not those of Richard’s attorneys. The judge failed to follow standard procedure for after-hours appeals in death penalty cases. That’s why she faces five counts of official judicial misconduct. In the end, the Supreme Court ruled that lethal injections are constitutional. Richard, who had been on death row for two decades for the gruesome rape and murder of Marguerite Dixon, would have been executed anyway — without questions about the impartiality of Texas justice.

Keller’s irresponsible actions have brought disrepute on the Texas criminal justice system. Worse, they’ve unnecessarily shifted the focus away from the true victim in this case — Dixon.

One step toward restoring confidence in the system is to hold Keller accountable for the events that took place in 2007 and remove her as presiding judge of the Court of Criminal Appeals.


Senator Edward "Ted" Kennedy on Death Penalty Information Center

WATCH IT on youtube :

Human Rights News: 8/29

This week, a report by the CIA inspector general called for a full criminal investigation into post-9/11 detainee abuse by the Bush administration. US Attorney General Eric Holder announced on Tuesday his plans for a preliminary review of torture allegations.

The CIA report, analyzing detention and interrogation activities, was actually completed in April 2004 but was suppressed from publication, despite the Freedom of Information Act. Some sections still remain "top secret" and shielded from public eyes. The report covers the period from September 2001 to October 2003, detailing a range of CIA abuses that constitute torture under US and international law.

According to Rob Freer, Amnesty International's researcher on the USA, this investigation cannot come soon enough. "The USA needs to ensure that every case of torture is submitted for prosecution, whether or not perpetrators claim to have been following orders, and those who authorized or ordered the commission of torture or other criminal abuse of detainees must also be brought to justice." He also calls for the establishment of an independent commission of inquiry to probe detainee treatment throughout the "War on Terror". He maintains that the commission "must not be used to block or delay the prosecution of any individuals against whom there is already sufficient evidence of criminal wrongdoing," including senior officials who authorized or inspired the use of torture by lower-level CIA operatives.

The report includes descriptions of various abusive practices, such as exposing prisoners held in secret to mock executions, the brandishing of guns and electric drills, threats to kill other prisoners' children, waterboarding, and other forms of torture. According to Human Rights Watch, the US's track record for punishing these types of prisoner abuse has been "abysmal", despite plentiful evidence. No CIA operative has ever been held accountable, and only a few military personnel have been held to justice.


New Moratorium Hopes

An anti-death penalty group hopes new evidence that Texas may have executed an innocent man will finally put the death chamber on pause. The Chicago Tribune reports that an expert hired by the Texas Forensic Science Commission says the fire that killed Cameron Todd Willingham’s three daughters was accidental, not arson. Willingham was convicted, sentenced to death and executed in 2004 for setting that fatal fire. The Texas Moratorium Network’s Scott Cobb says that should change public and legislative opinion about a death penalty moratorium. “People of Texas and the policymakers take very seriously the possibility of an innocent person being executed and how that reflects on Texas.” This expert is not the first to come to the conclusion that the fatal fire was an accident and not arson.


Tuesday, 25 August 2009

Sharon Keller, Troy Davis, and the Duty of a Death Case Judge

That's the title of Steve Sheppard's FindLaw commentary, posted today. Sheppard is the Judge Enfield Professor of Law at the University of Arkansas School of Law. He's also the author of I Do Solemnly Swear: The Moral Obligations of Legal Officials. LINK

No obligation of a judge is more awful than to rule on who should live and who should die at the hands of the state. No process more defines the American legal system: We put our worst criminals to death, but we do so while protecting rights under the law. Though the jury's sentence is the fulcrum of every decision, no person may die without a legislative decree that their conduct deserves death, and without judicial approval of the conviction and the sentence.
Many judges grow weary and callous from the endless claims of America's three thousand death-row inmates, of whom a dozen are yet scheduled to die in 2009. In 1996, Congress, angry with the slow pace and high costs of execution, passed the Antiterrorism and Effective Death Penalty Act ("AEDPA"), creating new technical rules to speed the guilty on their way.
Yet the law, the judges, and especially the people in whose name all this is done, can never allow a single case to escape the most perfect scrutiny possible, or the law jeopardizes its deepest claims to authority and trust. We—officials and citizens—have a duty to ensure that the protections of the laws are secure, and that we execute only the person guilty of the crime accused. Otherwise we violate the American commitment to freedom, truth, and the rule of law.
Two cases last week illuminated the dangers of callousness, of technical limits to scrutiny, and of speed in itself. At the same time, their stories offer hope that the judicial duty of scrutiny and the commitment to truth and freedom persist in U.S. law.
The technical rules of law are not an end in themselves, but a means of assuring fairness between the parties and the substantive fairness of the law. Judges who rely on such rules to avoid the merits, and legislators who demand they do so, betray the judicial obligation to ensure justice.
In a death case, this obligation is put into high relief. The law ought not to allow a person to die because a brief is half an hour late, or because evidence is found after a first habeas petition is denied. Every juror who relied on the wrong evidence, every judge who signs an order, every citizen who obeys this system must have confidence that the person who dies deserves to die. There is no solace in killing the innocent by fair techniques.
Innocence in a death case must prevail over all technicalities. That Judge Keller must answer for her technical foul is right, even if she is not punished for it. That Davis will finally have his hearing is essential, even if the evidence is found insufficient.
What the technical problems in both cases suggest, though, is more significant. Justice Scalia is right: We have never read the Due Process of Law to guarantee that someone demonstrably innocent shall not be put to death. Yet that, at its heart, is what the law must demand.


Editorial: Judge Keller's disappointing testimony

It was impossible not to gasp last week when Texas Court of Criminal Appeals Presiding Judge Sharon Keller addressed the question of what she would do differently if she had a do-over in the execution of Michael Richard.

Nothing. That was the essence of Keller's answer at her misconduct trial. It is as disturbing now as it was when news broke of her infamous "we close at 5" directive to court personnel minutes before Richard's execution was scheduled to be carried out in September 2007.
Her defense is built on a thinly sliced interpretation of procedures that offend the expectation that Texas courts should be accessible and blindly fair.
Keller's supporters may ask what fairness Richard showed to 53-year-old Houston-area nurse Marguerite Lucille Dixon when he entered her home, raped her and shot her in the head. Answer: none. Nor have we seen evidence to question his guilt.
That's not the point. Instead, consider that the next person with a last-minute appeal might have compelling information about the miscarriage of justice. Anyone who is aware of Texas' record number of DNA exonerations should be mindful of that.
Keller asserts that Richard's attorneys should have known that her statement about closing pertained only to the courthouse doors and not to a duty judge who was working late. Appellate attorneys were having computer problems and were scrambling against the filing deadline. But it appears that even court personnel have had differing interpretations of the events of that evening.
No matter; as the presiding judge, she should have made sure there were no gray areas where life-and-death matters were concerned that night. Procedures guaranteeing last-minute access should be enunciated to any involved party as time runs out. The court must not assume general understanding and merely recite technicalities.
Revised court procedures in the wake of the Richard case suggested that the nine-member court knew change was due. Weeks later, the judges issued written guidelines including a new e-filing system for death appeals.
Despite those improvements made in her own court, Keller's testimony indicated no regrets about that night, amplifying her reputation as a pro-prosecution judge indifferent to fair play. Like it or not, she made herself the face of Texas courts in 2007. Unfortunately, her testimony last week did nothing to dispel the notion that ours is a callous system of justice.

My thanks to maligned Judge Keller

I'd like to express my gratitude to Texas Court of Criminal Appeals Presiding Judge Sharon Keller.
She has made Texas' supreme court for criminal matters into a better institution.
Unfortunately, she didn't do it by bringing organizational skills to a court that must deal more than any other state court in the nation with the pressures of last-minute appeals in death penalty cases.
But she did it.
The firestorm of criticism that followed her decision not to keep the clerk's office open for a late filing, based on a U.S. Supreme Court decision from earlier in the day, of a man scheduled to be executed an hour after closing time, has produced some improvements.
According to her own testimony and that of other court officials during this week's four-day trial, the court had a protocol for dealing with execution day filings, but it was something of a secret.
For one thing, it wasn't written.
For another, the court staff was not given any formal training on it.
Part of the procedure was the appointment, on a rotating basis, of a single judge to whom all communications regarding the pending execution would be directed. But the name of that judge was not to be disclosed to anyone outside the court, including lawyers for the condemned man.
In Keller's seven years as the court's chief judge, that was the state of things.
Now, due to the allegations that she violated that procedure by not referring the call seeking to file a late plea for a stay of execution to Judge Cheryl Johnson, the assigned judge for that execution day, everyone knows the procedures.
The court's judges, some of whom were waiting around in expectation of a filing and were angered to learn days later of Keller's actions, agreed to put the protocol in writing. And the protocol has been widely publicized in the controversy.
There is another improvement. Ed Marty, the general counsel who took the request to Keller rather than to Johnson (who testified she would have accepted late pleadings), retired.
His replacement, Sian Schilhab, said she contacts the appropriate attorneys days ahead of the prosecution to make sure they know she is available up until the execution takes place. She said she not only gives them her cell phone number, but forwards the office phone to her cell.
She also says all outside communications not only “clearly go to the assigned judge, but I try to communicate them to all the judges, or at least their staffs.”
She said that's not because of the recent controversies, but because “I believe in more communication rather than less.”
If Keller had instructed Marty to do that, we wouldn't have had this firestorm.
Keller's attorney argued this week that the defense lawyers had orchestrated media coverage creating the firestorm.
Truth in advertising
The coverage was not always fair and not always accurate, but I'd suggest that Keller herself made the ground fertile for belief that she would violate court policy to coldly reject the last-minute appeal.
When she first ran for the court in 1994 she wrote in the Dallas Morning News that she was “pro-prosecutor.” It was truthful advertising.
When DNA evidence showed a man imprisoned for raping a girl who was also murdered did not contribute the semen, she ruled against his appeal, saying he might have worn a condom.
When prosecutors put on an expert in another case who testified a convicted man was a threat to society and therefore should get the death penalty because he was Hispanic, she voted not to require a new sentencing proceeding. The U.S. Supreme Court disagreed.
When a district judge ruled that the evidence “unquestionably established” that a man had been pressured into falsely confessing to raping his stepdaughter, Keller voted with the minority against his release from prison.
I'll say this for her. She is hard working. In the midst of this week's trial, she voted not to hear an appeal in a death penalty case. Six of the nine members of the all-Republican court voted the other way.

Friday, 21 August 2009

Calif. Assembly balks at early release of inmates

California Assembly Speaker Karen Bass plans to strip the most controversial provisions from a Senate-approved plan that would have trimmed the state's prison population by 27,000 inmates.

The Assembly version would keep about 10,000 more inmates behind bars and leave the state with a new, nearly $200 million budget hole, Bass said early Friday.

Bass said the new plan — to be considered Monday — would do away with proposals by Gov. Arnold Schwarzenegger to allow home detention with electronic monitoring for inmates with less than 12 months to serve, who are over age 60 or who are medically incapacitated.

The Democrat-controlled Assembly will also reject the Republican governor's plan to lower sentences for certain property crimes to misdemeanors, making those offenders ineligible for prison. But the Assembly plan would let inmates earn up to four months of early release credits for completing educational, vocational and other rehabilitation programs, up from six weeks in a proposal narrowly approved Thursday in the state Senate.

Bass, a Democrat from Los Angeles, announced the new plan after she was unable to find enough Democratic votes to send the Senate plan to Schwarzenegger. Republicans remained adamantly against both versions of the package in both chambers.

"Some of my members thought it should have gone further, and others thought that it went too far," Bass told reporters after adjourning just before midnight. "You do have a lot of hysteria that was whipped up. We were going to release all these people, and that scares folks."

The Assembly's passage of an alternative plan would require the bill to go back to the Senate for its agreement next week.

Bass huddled with Schwarzenegger and Democratic Senate President Pro Tem Darrell Steinberg of Sacramento in the governor's office before she decided to alter the Senate plan.

The governor is "committed to working with the Legislature to pass a package that puts public safety first, avoids early release, and achieves the necessary budgetary savings," Schwarzenegger spokesman Matt David said after the meeting.

The administration previously said failure of the bill would force California to find other ways to release inmates, in part because federal judges this summer ordered the state to reduce its inmate population by 40,000 over two years.

Schwarzenegger had sought the changes as part of his plan to cut $1.2 billion from corrections spending. The Senate approved the plan 21-19, but the dynamics are different in the Assembly. For instance, three Democratic Assembly members are planning to run for state attorney general next year. They are reluctant to vote for any bill that might make them appear soft on crime.

Republicans offered angry denouncements as the debate unfolded earlier Thursday on the Senate floor. They said provisions to reduce some crimes to misdemeanors, release certain inmates before they have completed their sentences and ease conditions for parole would be a threat to public safety.

Sen. George Runner, R-Lancaster, promised a future ballot initiative to repeal the bill if it becomes law.

The debate over prison spending and California's chronic inmate overcrowding took on renewed urgency when more than 1,000 inmates rioted Aug. 8 at the California Institution for Men in Southern California. The prison was designed to hold about half as many inmates, although investigators say they don't know if crowding helped spark the racially charged riot.

Thursday's debate was a holdover from the budget-balancing deal lawmakers and Schwarzenegger struck a month ago. They said at the time that cutting $1.2 billion from the corrections budget was part of their plan to close a deficit then estimated at $26 billion, but they delayed debate on the details until they returned this week from their summer break.

Bass said the Assembly would also make minor changes to the Senate's plan to establish a commission to review California's sentencing guidelines. Opponents fear its primary mission would be to determine whether some sentences could be lessened as a way to take pressure off an overcrowded prison system.

The Assembly will reject including an ex-felon as a nonvoting member, and add other representatives from law enforcement and community groups that help ex-felons, Bass said.

The commission's guidelines would be due by July 2012. The changes would take effect automatically unless they were rejected by the governor and a majority vote in the Legislature.

Source(The Associated Press)

Former Ohio executioner: EMT experience can be an asset

COLUMBUS -- While others debate the death penalty and lethal injection, Ohio's longest-serving executioner provided a personal perspective on carrying out the unwanted job, saying his experience as an emergency medical technician helped him handle the stress.

Known as Team Member 18, the now-former executioner testified in March in an ongoing federal case brought by Ohio death-row inmates.

Separately, a state lawyer's legal opinion requested by the office that oversees EMTs said Wednesday that the state cannot stop emergency medical technicians from serving as members of Ohio's execution team.

"I have had to deal with death and dying on a daily basis as a paramedic," Team Member 18 testified.

He said the state never trained him in the use or makeup of the lethal drugs used in executions. Instead, he relied on his EMT experience when trying to figure out if the first drug had put a death row inmate to sleep.

"Thirty years of experience in monitoring patients," he said. "Watching for vital sign changes, watching for movement changes, just watching the person as I would if it was a person in my care."

He said he didn't keep a tally of executions and couldn't always remember individual cases.

"I don't keep that close a track on it," he said. "It's a job I do, and I just don't try to recall."

U.S. District Court Judge Gregory Frost allowed the executioner and three other execution team members to answer questions anonymously and to sit behind a blackboard. Frost later ruled that Ohio's lethal injection system was flawed but not unconstitutional.

Jonathan Groner, an Ohio State University surgeon and former member of the board that regulates EMTs, maintains they are breaking the law by administering drugs beyond what their certification allows.

But Wednesday's legal opinion found the State Emergency Medical Services Board has no jurisdiction to investigate the issue because the technicians are not acting as EMTs when putting people to death. Instead, the EMTs are included on the state execution team because they possess skills such as inserting intravenous needles, not because they are working as EMTs under medical direction, the opinion said.

The Department of Rehabilitation and Correction has two certified EMTs on its execution team. Team Member 18, who retired last month, was replaced by another EMT.

Team Member 18 said he agreed to join the execution team in 1993 out of a belief that executions should be done as professionally and humanely as possible.

"I just felt, at that time, and always have, that it needed to be handled in a professional, humane manner, and that it should be someone with training," he testified.

The executioner oversaw 27 of 29 executions since the state began putting people to death again in 1999.

Team Member 17, a backup executioner who also inserted IVs in condemned inmates' arms, also testified he wasn't trained in using the drugs.

Mark Heath, an anesthesiologist at Columbia University Medical Center who has studied lethal injection cases across the nation, testified in the same case that the executioner shouldn't administer the drugs because he lacks training and understanding of how they work.

The prison system maintains execution team members are qualified, and the agency has no qualms about their training.

In May, North Carolina's state Supreme Court ruled that physicians cannot be punished for participating in executions. The court said the North Carolina Medical Board overstepped its power with a threat to discipline doctors who participate in executions.


Research Links Historical Lynchings to Modern Murder Rates and Capital Punishment

Recent research has revealed a close correlation between the U.S. states that historically carried out the most lynchings and the states that today have the highest homicide rates and most death sentences. In a study led by sociologist Steven Messner of the State University of New York at Albany, county data from 10 southern states where historically reliable information on vigilante lynchings between 1882 and 1930 is available were examined (Alabama, Arkansas, Florida, Georgia, Kentucky, Louisiana, Mississippi, North Carolina, South Carolina, and Tennessee). The study then compared this information to more recent homicide data compiled from 1986 to 1995 by the FBI and National Center for Health Statistics. The comparison revealed that the counties with the most lynchings had the highest homicide rates, and the counties with fewer lynchings had comparatively fewer murders, even when researchers controlled for factors such as population, poverty, low levels of education, the percentage of young people in the population, the unemployment rate, and the percentage of single-parent households. Messner noted that "lynching seems to matter and is relevant to our understanding of contemporary lethal violence" in the South. The latest issue of the American Sociological Review contains more information about this study.

In a second study conducted by sociologists David Jacobs and Jason T. Carmichael of Ohio State University and Stephanie L. Kent of the University of Nevada, Las Vegas, research revealed that the number of death sentences for all criminals - black and white - was higher in states with a history of lynchings. The link was particularly strong when the researchers analyzed only death sentences for black defendants. The sociologists theorize that the death penalty became a legal replacement for the lynchings of the past, and that the number of death sentences in states with the most lynchings increased as the state's population of African Americans grew. The researchers noted that this trend suggests that "current racial threat and past vigilantism largely directed against newly freed slaves jointly contribute to current lethal but legal reactions to racial threat." This research will be published in an upcoming issue of the American Sociologial Review.

(Washington Post, September 25, 2005, Outlook section, p.B5). See Arbitrariness and Race.


EMT board ducks death-penalty flap

The Ohio EMS board has no authority over the emergency medical technicians who administer lethal drugs in state executions.

That's the opinion board lawyer Heather R. Frient made public yesterday during the board's meeting.

Board members asked Frient to determine whether these technicians were under their jurisdiction. Under state law, intermediate EMTs are not authorized to work with these drugs.

But these technicians are an exception, Frient said.

"They do not appear to be acting as EMTs in the performance of their execution duties," she wrote in the opinion.

The issue was first brought up by Dr. Jonathan Groner, a pediatric surgeon at Nationwide Children's Hospital and former board member.

Groner said his concern was prompted by the testimony of two intermediate EMTs in a federal case filed by an Ohio Death Row inmate challenging lethal injection.

The case, filed in 2004, is pending.

Frient said these technicians:

• Don't "represent themselves" as EMTs on the execution team.

• Don't wear clothes that identify them as emergency-medical workers.

• Don't work under a physician's direction.

But in court documents, the EMTs testified that they have certificates issued by the EMS division, take continuing education classes and keep up with all state requirements.

Groner said he was disappointed with the opinion.

"When you obtain medical-profession skills -- a doctor, nurse or EMT -- those skills you use to help people should never be used to harm people," said Groner, who opposes the death penalty.

The procedure that state officials follow during executions states that the lethal drugs should be given by a "person qualified under Ohio law to administer medications."

In Ohio, physicians, nurses and paramedics working under a doctor's order are allowed to administer these drugs.

State corrections officials have said they would not ask physicians or nurses to be involved in executions because it conflicts with their oaths to preserve lives.

"The EMS board is put in the position where it does not think EMTs are as professional as other medical professions," Groner said.

The governor is satisfied with the execution process.

"He believes the system established and carried out by (the Department of Corrections) is appropriate," said spokeswoman Allison Kolodziej.

Mark Burgess, EMS board chairman, said he agreed with the opinion because "there are times when we don't have jurisdiction."

He said hospitals often hire paramedics, teach them new skills and call them surgical technicians, for example.

"And we don't have jurisdiction over them," he said. "They're not functioning as a paramedic."

The board didn't challenge or disagree with the opinion, though one member said the discussion might not be over.

"I think it may be something we've got to look at closer," said William Quinn, who represents the Ohio Association of Professional Firefighters on the board.

"It appears to open a Pandora's box."


Ohio can't stop EMTs working as executioners

Ohio has no authority to stop certified emergency medical technicians from working as executioners in death penalty cases because they are not acting as EMTs when putting people to death, a state attorney ruled Wednesday.

The EMTs are included on the state execution team because they possess skills such as inserting IV needles, not because they are working as EMTs under medical direction, according to the legal opinion by Heather Frient, a lawyer with the Ohio Department of Public Safety.

The Department of Rehabilitation and Correction has two certified EMTs on its execution team. The state's chief executioner, who was an EMT, retired last month. He was replaced by another EMT, prisons spokeswoman Andrea Carson said.

The retired executioner and a current team member who is also an EMT explained their death penalty duties at a March hearing in federal court about Ohio's lethal injection system.

Jonathan Groner, a surgeon who studies lethal injection, maintains that the team members are violating Ohio law because they administer drugs that EMTs are not allowed to handle.

Frient's ruling didn't address this issue since it found only that the State Emergency Medical Services Board has no jurisdiction to investigate EMTs for such alleged violations.

"The individuals do not wear any EMT insignia or uniform, they do not refer to themselves as EMTs (nor does DRC refer to them as EMTs)," Frient wrote.

She added: "it does not appear, based on their testimony, that they think of themselves as EMTs during the execution process."

Groner said the ruling appears to set a lower ethical standard for EMTs than doctors or nurses.

"When you're in a car crash or your mother's having a heart attack, the first person on the scene are the EMTs, so why shouldn't EMTs have moral standards that are equal?" said Groner, a former member of the EMS board.

The board frequently looks at cases where EMTs are hired by hospitals because of their skills but not to work as EMTs, said Richard Rucker, the EMS board executive director.

"They're not holding themselves out as an EMT, so I don't see that as any different in this current situation working with Corrections," he said.

The state's former executioner was a longtime prison employee who had once worked as a prison EMT, although not recently.

The executioner, referred to in court as "Team Member 18," testified in March he volunteered for the execution team because he felt the job should be done right.

"I just felt, at that time, and always have, that it needed to be handled in a professional, humane manner, and that it should be someone with training," he said.


Take a direct approach to racial justice

State legislators and Gov. Bev Perdue should play it straight about the death penalty: Just put an end to it.

There are too many problems with implementation, too much inconsistency in application. Public opinion is slowly turning against it and juries are more reluctant to impose it. It’s time to replace capital punishment with life in prison without parole.

Creating the Racial Justice Act simply adds more confusion and inequity.

When Perdue signed the bill into law last week, she declared it ensures that when “our most heinous criminals” are given the death penalty — which she says she supports — the decision is based “on the facts and the law, not racial prejudice.”

That’s a fine objective, but the Racial Justice Act offers no such assurance.

There’s no question that “racial prejudice” has accounted for shameful injustices. But the answer to disparate treatment in the courts based on racial prejudice is not to require disparate treatment based on racial distinctions. That’s what this law does.

It allows a judge to prohibit a capital prosecution or overturn a death sentence if the defendant shows statistically that death sentences were sought or imposed “significantly more frequently” against persons of his race within the county, prosecutorial district, judicial division or state.

What is “significantly more frequently” is not defined.

What is clear is that the death penalty decision need not have anything to do with the defendant’s case. He may have committed the most horrifying, vicious, detestable murder imaginable, yet he will be able to present himself as a potential victim of racial discrimination if the death penalty has been imposed “significantly more frequently” against members of his race.

Black offenders make up 54 percent of the 163 men and women on North Carolina’s Death Row, far out of proportion to their numbers in the general population. That alone may be viewed as “proof” of racial discrimination.

Because of this law, everyone on Death Row is entitled to seek relief on the grounds that race was a “significant factor” in the imposition of the sentence.

Even some white offenders might have a case because the law also recognizes that there’s a correlation between death sentences and the race of the victim.

There is, when the victims are white. So even white Death Row inmates, if their victims were white, may claim racial injustice.

No wonder prosecutors opposed this bill. It’s going to set off a slew of time-consuming, costly and confusing legal actions and create several tiers of Death Row justice.

If you’re white and your victim was black, you’re probably staying on Death Row. Justice was done.

If you’re black and your victim was white, you’ll probably see your sentence commuted to life in prison. You were discriminated against.

If you’re black and your victim was black, or you’re white and your victim was white, you’re somewhere in the middle. As for other races, there’s probably not enough statistical evidence to determine the amount of racial discrimination you experienced in court.

Regarding new prosecutions, the Eve Carson case could be a test for the Racial Justice Act but for an unusual twist. The white UNC student was kidnapped, robbed and murdered in Chapel Hill last year. Two young black men are charged. One, Demario Atwater, is old enough to face the death penalty. The Orange County district attorney said he will seek a capital prosecution. The Racial Justice Act would give Atwater the chance to contend his prosecution was motivated by race, not the actual crimes.

Back in January, however, the U.S. Department of Justice announced it would seek the death penalty under federal law. It looks as if the federal case will proceed first, and the state’s Racial Justice Act will have no bearing on it.

It all leaves too much to chance and potential manipulation. The death penalty has never been administered evenhandedly and without error. It can’t be. And let’s not deceive ourselves. The state will never execute all 163 individuals living on Death Row today. Maybe a handful.

So what’s really going to be gained by having dozens of “racial justice” hearings at who-knows-what cost?

Here’s my suggestion. Gov. Perdue should commute the sentences of every last one of them, all 163, white, black, Hispanic, whatever, to life in prison without parole.

Now that’s the direct approach to racial justice.


Interview with Dean


Here's a good case for killing the death penalty

Opponents of the death penalty have reason for hope this week. Two high-profile cases are exposing the sick, barbaric folly of execution in America.

When the U.S. resumed executions in 1977, only 16 nations had abolished the death penalty; the number has since grown to 92. Five nations now carry out more than 90% of the world's executions: Iran, Pakistan, Saudi Arabia, China - and the United States.

We're in pretty grim company.

But this week, America took a step toward evolving in the direction of the civilized world.

In Georgia, a man on Death Row got an extremely rare ruling from the U.S. Supreme Court.

And in Texas, a high-ranking judge is herself on trial - prosecuted for misconduct after callously refusing to hear the eleventh-hour appeal of a prisoner who was about to be executed.

The latest development in the Georgia case of Troy Anthony Davis is awe-inspiring.

For the first time in 50 years, the justices ordered a federal court to reopen a state murder case - even after a long line of appeals - and hear newly discovered evidence that might exonerate Davis.

As I've written in columns since 2007, the evidence of Davis' innocence is overwhelming. He was convicted in 1991 of the point-blank shooting of a Savannah police officer in a case with scant evidence: There was no murder weapon found, no confession, no fingerprints or other physical evidence.

Davis was sent to Death Row on the strength of nine witnesses. Seven have since recanted in sworn statements, with many claiming police coercion. An eighth witness first told cops he didn't know who the killer was, then "remembered" it was Davis two years later.

And the ninth witness, who originally pointed the finger at Davis, may be the real killer. Three new witnesses now say he was the shooter. (Details about the case are at

It took marches, rallies, media coverage and an active international movement and appeals from well-known people - including former FBI Director Williams Sessions, ex-Rep. Bob Barr (R-Ga.), Desmond Tutu and Pope Benedict - to get the high court to act.

The Supreme Court ruling signals that actual innocence counts for something in a land where so many scream for blood.

Another encouraging scene is unfolding in Texas, where Sharon Keller, presiding judge of the Texas Criminal Court of Appeals, yesterday took the witness stand in her own defense.

Keller has been charged with misconduct by the Texas Commission on Judicial Conduct and could be kicked off the bench for her actions on the night in 2007 that the state executed Michael Wayne Richard, a rapist and murderer.

On the day Richard was scheduled to be killed, the U.S. Supreme Court ordered a halt to executions in Kentucky based on a claim that lethal injections might be painful and therefore an unconstitutionally cruel form of punishment.

Richard's lawyers, frantically attempting to stay his execution based on the ruling in the Kentucky case, called Keller's aides shortly before the court's closing time, begging them to keep the court open for 15 to 30 minutes - long enough to allow papers to be filed.

At 4:45 p.m., the request was passed to Keller, who presides over the very last stop for criminal defendants in the Lone Star State.

"We close at 5," she said. Richard was executed at 8:23 that evening. And on the stand yesterday, Keller said that, if faced with the same situation, she'd slam shut the doors of the courthouse again.

That stiff-necked indifference to fairness and justice make Keller - "Killer Keller" to her critics - a poster child, along with Davis, for why we must end the death penalty.

Executing John Marek for Senate

When I was looking for coverage of John Marek’s execution yet to see if there were any complications with the lethal injection, I ran across one of the more disgusting news stories I have ever seen.

Governor Charlie Crist, who is running for U.S. Senate against arch-conservative and hero of the far right Fmr. House Speaker Marco Rubio, allowed the AP into his office so we can all get a first hand look at what goes on in the 48 minutes leading up to an execution. Read it and gag:

Gov. Charlie Crist silently held two framed photos of Adela Marie Simmons as a voice came over his speaker phone Wednesday evening, telling him the next in a series of eight syringes was being injected into the arm of the man who killed her.Crist’s office was silent except the whir of the air conditioner as his chief of staff and three members of his legal team sat and listened with him for each update in the execution of John Richard Marek. After the last syringe was injected, the voice said, “Team leaders have a flatline” and a few seconds later, “The doctor has confirmed he is deceased. Time of death 6:33.”

The article goes on to detail, minute by minute, the process of finding out whether the appeals have all been denied and the gruesome intricacies of the actual execution.

I am imagining the moment when a young, intrepid PR person in the Executive Office of the Governor conceived this half-baked idea over a martini at Cafe Cabernet. When selling it to the Governor, they likely told him that this will appease the victim’s rights crowd, appear transparent, show the electorate some intrigue and suspense since they enjoy those cop dramas so much, and, most importantly, demonstrate to the hard right, the folks he needs to win the Senate primary, that he is tough enough to kill someone. But this really just fell flat, not just for folks who oppose the death penalty but likely for the majority of the electorate who already sees this Governor as an unprincipled politician who puts political expediency ahead of every thing else and, this case, common sense.

No one really thinks for a second that Charlie Crist or anyone in government gives a hoot about Adela Simmons or her family. Her pictures are nothing more than props in a movie scene where the Governor and his staff are the main characters and the AP is behind the camera yelling “ACTION!” His comments about her being a “beautiful lady” appear completely contrived. Would they be trying to get mileage off a photo opportunity if the victim was a busted, cracked out prostitute, yet heinously murdered? Well, you know the answer to that one.

There is no doubt that the death penalty is divisive issue and that no matter what a governor does, a subset of the electorate will always feel aggrieved by the decision whether or not to execute a capital inmate. But any sane person would recognize that this kind of macabre, kabuki theater unnecessarily politicizes and trivializes what is likely the most serious act a governor partakes in and, frankly, is beneath any governor, including Charlie Crist.


Wednesday, 19 August 2009

Scalia's Catholic Betrayal

The Supreme Court justice’s shocking remarks about capital punishment are not just a distortion of the Constitution, says Alan Dershowitz, they’re also an outrage against his church.

I never thought I would live to see the day when a justice of the Supreme Court would publish the following words:

“This court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent. Quite to the contrary, we have repeatedly left that question unresolved, while expressing considerable doubt that any claim based on alleged ‘actual innocence’ is constitutionally cognizable.”

Yet these words appeared in a dissenting opinion issued by Justices Antonin Scalia and Clarence Thomas on Monday. Let us be clear precisely what this means. If a defendant were convicted, after a constitutionally unflawed trial, of murdering his wife, and then came to the Supreme Court with his very much alive wife at his side, and sought a new trial based on newly discovered evidence (namely that his wife was alive), these two justices would tell him, in effect: “Look, your wife may be alive as a matter of fact, but as a matter of constitutional law, she’s dead, and as for you, Mr. Innocent Defendant, you’re dead, too, since there is no constitutional right not to be executed merely because you’re innocent.”

Paul Campos: Scalia's Death Row Lunacy It would be shocking enough for any justice of the Supreme Court to issue such a truly outrageous opinion, but it is particularly indefensible for Justices Scalia and Thomas, both of whom claim to be practicing Catholics, bound by the teaching of their church, to do moral justice. Justice Scalia has famously written, in the May 2002 issue of the conservative journal First Things, that if the Constitution compelled him to do something that was absolutely prohibited by mandatory Catholic rules, he would have no choice but to resign from the Supreme Court.

Unlike President Kennedy, who pledged to place his obligation to the Constitution above his commitment to his church, Scalia has insisted that in his view, “The choice for the judge who believes the death penalty to be immoral [according to the teachings of the Catholic Church] is resignation.” He put his point in “blunt terms”: “I could not take part in that process [of authorizing an execution] if I believed what was being done to be immoral.” He continued: “It is a matter of great consequence to me, therefore, whether the death penalty is morally acceptable. As a Roman Catholic—and being unable to jump out of my skin—I cannot discuss that issue without reference to Christian tradition and the church’s Magisterium.”

Surely it is among the worst sins, under Catholic teaching, to kill an innocent human being intentionally. Yet that is precisely what Scalia would authorize under his skewed view of the United States Constitution.

After reviewing the teachings of the church, he concluded that there is no conflict between his judicial role in affirming death-penalty sentences and the strict teachings of the Catholic Church, which counsel against the use of capital punishment but permit this extreme sanction in extraordinary cases, especially when there is no reasonable alternative. This is the way he put it:

“So I have given this new position thoughtful and careful consideration—and I disagree. That is not to say I favor the death penalty (I am judicially and judiciously neutral on that point); it is only to say that I do not find the death penalty immoral. I am happy to have reached that conclusion, because I like my job, and would rather not resign. And I am happy because I do not think it would be a good thing if American Catholics running for legislative office had to oppose the death penalty (most of them would not be elected); if American Catholics running for governor had to promise commutation of all death sentences (most of them would never reach the governor’s mansion); if American Catholics were ineligible to go on the bench in all jurisdictions imposing the death penalty; or if American Catholics were subject to recusal when called for jury duty in capital cases.”

But whatever the view of the church is on executing the guilty, surely it is among the worst sins, under Catholic teaching, to kill an innocent human being intentionally. Yet that is precisely what Scalia would authorize under his skewed view of the United States Constitution. How could he possibly consider that not immoral under Catholic teachings? If it is immoral to kill an innocent fetus, how could it not be immoral to execute an innocent person?


Monday, 17 August 2009

Supreme Court says Georgia man should get hearing

WASHINGTON -- The Supreme Court on Monday ordered a new hearing for death row inmate Troy Davis, whose supporters say is innocent and should be spared from execution for killing a police officer 20 years ago.

Davis has spent 18 years on death row for the 1989 slaying of Savannah, Ga., police officer Mark MacPhail. Davis' attorneys insist that he is innocent and deserves a new trial because several witnesses at his trial have recanted their testimony.

The high court ordered a federal judge in Georgia to determine whether there is evidence "that could not have been obtained at the time of trial (that) clearly establishes petitioner's innocence."

Defense lawyers had appealed to the Supreme Court after a federal court denied a new trial request in April.

"The substantial risk of putting an innocent man to death clearly provides an adequate justification for holding an evidentiary hearing," said Justice John Paul Stevens, writing for the court. Justices Ruth Bader Ginsburg and Stephen Breyer concurred with Stevens.

MacPhail was slain 20 years ago while working off-duty as a security guard at a bus station. He had rushed to help a homeless man who had been pistol-whipped at a nearby parking lot, and was shot twice when he approached Davis and two other men. Witnesses identified Davis as the shooter at his 1991 trial.

But Davis' lawyers say new evidence proves their client was a victim of mistaken identity. They say three people who did not testify at Davis' trial have said another man confessed to the killing.

The case has attracted worldwide attention, with calls to stop Davis' execution from former President Jimmy Carter, Pope Benedict XVI and Nobel Peace Prize-winner Desmond Tutu.

But state and federal courts have rejected Davis' request for a new trial, and state officials have rejected calls for clemency.

Davis was scheduled to be executed on Sept. 23, but it was postponed after the Supreme Court agreed to consider whether he should get a new trial.

Justices Antonin Scalia and Clarence Thomas dissented from the decision to order an evidentiary hearing, with Scalia saying that "every judicial and executive body that has examined petitioner's claim has been unpersuaded."

Davis' "claim is a sure loser," Scalia said. "Transferring his petition to the District Court is a confusing exercise that can serve no purpose except to delay the state's execution of its lawful criminal judgment."

Scalia said the Supreme Court was sending the District Court for the Southern District of Georgia "on a fool's errand."

"That court is directed to consider evidence of actual innocence which has been reviewed and rejected at least three times," he said.

Justice Sonia Sotomayor, who was just confirmed as a new justice earlier this month, did not take part in the consideration of Davis' motion, the court said.


Keller drags Texas through the mud

No matter the outcome of the hearing scheduled to begin today that could end in sanctions against embattled Texas Court of Criminal Appeals Chief Justice Sharon Keller, her already battered reputation will be pounded some more. While the judge's many detractors will find some satisfaction in that, the Texas way of administering criminal justice also will take a beating.

A politician's reputation is insignificant in the grand scheme of things, but if a society claims to be one based on law, then its justice system is only as good as the confidence in it.

Beyond the question of whether Keller's handling of a last-minute death row appeal was legally appropriate is the much larger question of whether criminal appeals in Texas are handled objectively and whether the state's court of last resort in criminal cases is in reality nothing more than a state agency dedicated to upholding convictions.

Texas has always relished its "tough on crime" reputation. Politicians who campaign against crime always find a friendly crowd, and Keller jumped on that and rode pro-prosecution rhetoric to a seat on what should be an objective forum for hearing appeals. But promising fairness is boring and doesn't get you on television.

Keller — and by extension, the state's justice system — has been the subject of hours of air time, gallons of ink and enough bytes of electronic information to operate a fleet of spaceships as a result of the case that has led to today's proceedings before the State Commission on Judicial Conduct.

A brief background: Lawyers for convicted killer Michael Richard tried to file a last-minute, after-hours appeal in 2007. According to Richard's lawyers, they were having computer problems and asked if they could file motions after 5 p.m. They said they were told "no."

Keller's lawyer disputes that now-famous reply. Furthermore, he claims that defense lawyers are to blame for Richard not getting a hearing.

Only two months after his release from a second prison term in 1986, Richard raped, shot and killed Marguerite Lucille Dixon, 53, a nurse and mother of seven, inside her Harris County home. Richard won a second trial after pleading that he was abused as a child and possessed an IQ well below average. Tried again, he was convicted again in 1995 and sentenced to death.

The last-minute appeal was based on the U.S. Supreme Court's announcement earlier that same day that it would hear a case arguing that death by injection violates the Constitution because it constitutes cruel and unusual punishment.

Keller's critics say closing the Texas Court of Criminal Appeals to the appeal was callous. The state's Commission on Judicial Conduct filed a list of more legal complaints against Keller in connection with the Richard case.

The he-said, she-said nature of the depositions doesn't hold much promise for shedding light on the situation but offers a rare glimpse into the court's inner workings. However repugnant some may find it, the hearing ought to be considered mandatory viewing.

Some commentators predict that the worst that will happen is that Keller will end up with a slap on the wrist once it's all said and done.

If so, that slap on the wrist will result in yet another black eye on a Texas justice system that is supposed to be blind.


Sunday, 16 August 2009

Demonstration before Trial of Judge Sharon Keller

Representatives of Peoples' Judicial Complaint Signed by About 1,900 Members of the Public to Participate in Demonstration at Trial of Sharon Keller

A group of people who signed a judicial complaint against Judge Sharon Keller will hold a demonstration at 8 AM in San Antonio at the Bexar County Courthouse before Keller's trial begins on August 17. The trial is expected to begin at 9:30 AM. The demonstration will be held near the entrance of the building in which the trial will take place in the courtroom of David Berchelmann jr, presiding judge of the 37th District Court, at 100 Dolorosa in San Antonio. The group will represent the approximately 1,900 people who signed a judicial complaint against Keller submitted by Texas Moratorium Network to the State Commission on Judicial Conduct in November 2007.

Why: "Keller has damaged the integrity of the Texas judiciary and violated the public trust placed in her by the people of Texas. She has violated several provisions of the Code of Judicial Conduct and denied Michael Richard his constitutional right not to be deprived of life without due process and denied his right to be heard in court. Because of her arbitrary decision not to stay open to accept the appeal of death row prisoner Michael Richard, which she made in violation of her own court's rules and without consulting the other judges on the Court, Keller should be removed from office", said Scott Cobb, president of Texas Moratorium Network.

From the judicial complaint filed by TMN: "It is clear from her actions that Judge Keller can no longer be expected to preside over death penalty cases with the requisite fair, bias-free and even-handed disposition so critical to such serious life and death matters. Justice was not done in the Richard case, and if it was not done because Keller dishonestly said "We close at 5", then there is no question that Keller is unfit to be a judge and should be removed from office".

Date: Monday, August 17, at 8 AM

Place: Outside Bexar County Courthouse
100 Doloroso
San Antonio, Texas

The demonstration is sponsored by Texas Moratorium Network, Texas Death Penalty Abolition Movement, Texas Students Against the Death Penalty and Campaign to End the Death Penalty - Austin.

A PDF of the judicial complaint filed in November 2006 is here:

A video of a copy of the judicial complaint being delivered for Sharon Keller to the clerk of the Texas Court of Criminal Appeals in November 2007 is on YouTube at The video contains a statement by the sister of Michael Richard outside the CCA.


Saturday, 15 August 2009

Savannah Talks Troy Anthony Davis No. 5: Race, Death, and Justice in America

Although not directed specifically at the case of Georgia death row inmate Troy Anthony Davis and slain policeman Mark Allen MacPhail, the state of North Carolina’s new Racial Justice Act, signed into law by Governor Beverly Perdue on August 11, 2009, shines a light on one of the major aspects of the Davis/MacAllen case: that of race and the death penalty.

When reviewing such elements as the lack of physical evidence linked directly to Davis, and the fact that seven out of nine testimonies initially filed against him have since been recanted, various observers have voiced concern over whether the only reason he has not yet been granted a second trial is because Davis is African American and Officer MacPhail was White American.

Significantly, Governor Perdue is in fact a supporter of the death penalty itself. However, she notes in the following statement an important distinction between employing capital punishment and achieving justice:

"I have always been a supporter of [the] death penalty, but I have always believed it must be carried out fairly. The Racial Justice Act ensures that when North Carolina hands down our state’s harshest punishment to our most heinous criminals – the decision is based on the facts and the law, not racial prejudice.”

Simply put, the new law will allow death-row inmates and pre-trial defendants to use statistical studies to challenge racial bias in the death penalty system. This would give prosecutors a chance “to rebut the claim that the statistical disparities indicate racial bias. If proven, a judge could overturn the death sentence or prevent prosecutors from seeking the death penalty.”

Looking at the Numbers

Like Georgia––where Savannah native Davis sits on death row in the Georgia Diagnostic and Classification State Prison––North Carolina is one 38 states that still employ capital punishment. According to the NAACP’s “Death Row U.S.A Winter 2009” report, and figures maintained by the Death Penalty Information Center, some 88 Blacks (53%) out of a total of 167 inmates currently occupy death row in North Carolina. In Georgia, Troy Anthony Davis represents 1 of 51 Blacks (47%) on death row out of a total of 109 inmates. The fact that African Americans have consistently made up a disproportionate percentage of inmates on death row nationwide in glaring contrast to the percentage of Blacks that make up the general American public––13.5%––has long disturbed social scientists, law makers, and critics of capital punishment n general.

To Quote Alex Haley

Rev. Dr. William J. Barber, II, of the NAACP, during the signing of the Racial Justice Act issued a statement in which he observed:

“Today on August 11th, Alex Haley, the author of Roots was born. One of his famous quotes was ‘either we deal with reality or reality will deal with us.’ This Racial Justice Act is not about trying to let criminals go as some have absurdly suggested. It does not open up old wounds for victims because both proponents and opponents support the Racial Justice Act as well as families who have been victims of horrendous murders. Anyone who uses this language to speak against the bill is wrongfully maligning a good piece of legislation which looks squarely at the reality and the empirical data which shows how race impacts the application of the death penalty.”

The signing of the Racial Justice Act comes only a week before the twentieth anniversary of the slaying of Officer MacPhail and a month before the U.S. Supreme Court is scheduled to reconvene; after which, at some point, it will decide whether or not Davis shall receive a new trial. Perhaps it is safe to say at this point that North Carolina just made the possibility of that trial a little stronger.

Thank you for reading this fifth installment of Savannah Talks Troy Davis, a series of articles examining the ongoing developments and implications of the Troy Anthony Davis/Mark Allen MacPhail case.


Friday, 14 August 2009

Judges’ Dissents for Death Row Inmates Are Rising

It took just 80 words for a federal appeals court to deny Kevin Cooper’s most recent plea to avoid execution. But attached to that order was a forceful 101-page dissent by a judge, all but pleading to spare Mr. Cooper’s life.

“The State of California may be about to execute an innocent man,” it began.

The judge who wrote the dissent, William A. Fletcher of the United States Court of Appeals for the Ninth Circuit, in San Francisco, argued that the police and prosecutors had withheld and tampered with evidence in the case for decades; Judge Fletcher even accused the district court of having sabotaged the case.

Compared with the dry, mannerly prose found in many opinions, Judge Fletcher’s passion in Cooper v. Brown is startling. But these kinds of fervent, lonely dissents, urging that a prisoner’s life be spared, have noticeably increased in the last decade, compared with previous years, according to a review of death penalty opinions by The New York Times, as confirmed by experts in the field.

In dozens of capital cases in recent years, appeals court judges, some of whom have ruled in favor of the death penalty many times, have complained that Congress and the Supreme Court have raised daunting barriers for death row prisoners to appeal their convictions, and in many cases the judges have taken on their colleagues.

“There is an increasing frustration among federal judges throughout the system,” said Eric M. Freedman, a critic of the death penalty who teaches on the subject at Hofstra Law School.

Mr. Freedman predicted that the level of dissatisfaction would increase. “Judges are likely to have less and less patience for being hogtied by legalistic mumbo-jumbo,” he said, “which prevents them from reaching fair results.”

The law that generates much of the judges’ ire is the Antiterrorism and Effective Death Penalty Act of 1996. Since its passage, the act has been cited in a half-dozen to two dozen dissents a year, often in language forceful enough to rival Judge Fletcher’s. The law, championed by legislators who believed prisoners were abusing the federal appeals process, restricts federal court review of state court decisions in death penalty cases and puts strong limits on the ability of condemned prisoners to file habeas corpus petitions to get their cases reconsidered.

In April, Judge Rosemary Barkett of the United States Court of Appeals for the 11th Circuit, in Atlanta, complained of the law’s “thicket of procedural brambles.” Dissenting from a decision by her colleagues, Judge Barkett noted that seven of the nine witnesses in the murder trial of Troy Davis, a death row inmate in Georgia, had recanted their testimony. To execute Mr. Davis without fully considering that evidence would be “unconscionable and unconstitutional,” wrote Judge Barkett, who has voted in more than 200 other cases to uphold the death penalty.

Judge Stephen Reinhardt of the Ninth Circuit, a critic of capital punishment, took on the constitutionality of the 1996 death penalty act itself in a dissent in the case of Andrew C. Crater, who had been convicted of taking part in a robbery and shooting spree that killed a Sacramento musician, James Pantages. Judge Reinhardt, appointed by President Jimmy Carter, wrote in 2007 that the act made “a mockery of the careful boundaries between Congress and the courts that our Constitution’s framers believed so essential to the prevention of tyranny.”

The dissents rarely have any practical effect in changing the outcome of the cases they address. But Howard J. Bashman, an appellate lawyer in Philadelphia, said such dissents were often directed toward audiences to come: the next appeals court, lawmakers and academics.

“You have to think that these judges do have some valid reason for putting all this effort into the exercise than just feeling better about it after they’re done,” Mr. Bashman said.

Judge Barkett, whom President Bill Clinton appointed, declined to discuss individual cases but agreed that a dissent tried to persuade many audiences — the first, in her case, being the other judges of her court, who circulate dissents among themselves as they are coming to a decision.

Judge Barkett said she did not see her opinions as “emotive,” adding that dissents were about policy, not feelings. But the feeling that motivates her to write them, she said, is “mostly frustration that I cannot make people see what I see.”

Judge Fletcher’s frustration was on display in the case of Mr. Cooper, who he concluded was “probably innocent” of the 1983 murders of Douglas and Peggy Ryen, their 10-year-old daughter Jessica and an 11-year-old houseguest, Christopher Hughes, who were hacked to death in the Ryens’ home.

Judge Fletcher argued that the evidence had been tainted by bumbling and misconduct and suggested that blood linking Mr. Cooper to the crime had been planted by overzealous investigators. And while the Ninth Circuit in 2004 ordered new DNA tests, Judge Fletcher wrote that the lower court had set conditions rendering the results useless. “There is no way to say this politely,” he wrote. “The district court failed to provide Cooper a fair hearing and flouted our direction to perform the two tests.”

Judge Fletcher, who declined to be interviewed, was appointed by Mr. Clinton.

Jesse H. Choper, a law professor at the University of California, Berkeley, said the judge was hardly a fierce opponent of capital punishment. “I don’t see him as someone who is unexceptionally opposed,” Mr. Choper said.

In the Cooper case, Chief Judge Alex Kozinski, appointed by President Ronald Reagan, was among 11 of the circuit’s 27 judges who joined dissents.

Elisabeth A. Semel, director of the Death Penalty Clinic at Berkeley, which trains lawyers to defend people facing the death penalty, said many jurists had been shaken by the rise of exonerations due to DNA evidence. “I think it’s been shattering to judges who had a fair amount of confidence in the system,” she said.

The next step in the Cooper case is a long-shot appeal to the Supreme Court, which Mr. Cooper’s lead lawyer, Norman C. Hile, said was likely to be filed this year.

Kent Scheidegger, the legal director of the Criminal Justice Legal Foundation, a group in Sacramento that favors the death penalty, said substantial claims of innocence in such appeals remained rare.

In Mr. Cooper’s case, Mr. Scheidegger said, the defendant has been given ample opportunity to exonerate himself. “It is high time to bring this case to a close,” Mr. Scheidegger said.

Judge Fletcher argued otherwise. “If he is innocent, the real killers have escaped,” he wrote. “They may kill again. They may already have done so.

“We owe it to the victims of this horrible crime, to Kevin Cooper, and to ourselves, to get this one right.”


Tuesday, 11 August 2009

New bill aims to remove race from death penalty equation

On July 15th the North Carolina House voted 61-54 to approve the Racial Justice Act, which, if signed into law, would allow death row prisoners in the state to appeal their sentences if racial prejudice played a role in their sentencing. Last night, the North Carolina Senate approved the legislation, which now goes to Governor Bev Perdue for her signature.

The Racial Justice Act could be a very significant step towards ensuring that race does not affect the fate of capital defendants in North Carolina--a state with a history of racial prejudice, where race has been a factor in death penalty cases in the past. A 2001 study conducted by Dr. Isaac Unah and Prof. Jack Boger from the University of North Carolina showed that the probability of a defendant receiving the death penalty in North Carolina is 3.5 time higher if the murder victim was white. In some parts of the state the findings were even more disturbing. For instance, in Durham County, prosecutors were 5 times less likely to seek the death penalty if both the defendant and the murder victim were black than if the defendant was black but the murder victim was white.

A review by the Winston Salem Journal found similar racial discrepancies in the application of North Carolina's death penalty. The Journal discovered that, although the majority of murder victims in North Carolina are black, only 18 percent of the state executions carried out between 1984 and the present were of prisoners whose victims were African-American. In contrast, four fifths of the executions were of prisoners whose victims were white.

Another way race has played a role in death penalty cases in North Carolina (as well as across the country) has been though jury selection. Although African-Americans constitute more than one fifth of North Carolina's total population, between 1977 and the present 35 defendants in the state have received death sentences from all-white juries.

In light of these discrepancies and the unequal application of capital punishment in North Carolina, passage of the Racial Justice Act is a milestone achievement. The legislation has gained the support of clergy and civil rights leaders who have described it as "a clear signal that we are serious about removing any vestiges of racial discrimination in the administration of the death penalty." In a joint statement published on the website of the North Carolina NAACP Chapter, the leaders went on to say that the Racial Justice Act has the potential to "make North Carolina a leader in the southeast on a matter of great importance to anyone who believes justice should be color blind."

All that is needed now is the Governor's signature.


Monday, 10 August 2009

A Documentary Film Screening Sponsored by the Innocence Project of Florida and Tallahassee Citizens Against the Death Penalty in opposition to the pen

“Juan Meléndez - 6446” tells the incredible, true story of Juan
Meléndez, who was sentenced to death for a crime he did not commit.
Puerto Rican migrant farmer raised in New York City, Meléndez was
accused of murder in the state of Florida. While claiming his innocence,
Juan Meléndez was convicted and put on death row for 17 years, 8 months
1 day. Told by Meléndez, his mother, lawyers and friends, this personal
drama illustrates the legal, political and public policy issues around the
application of the death penalty in the U.S. and Puerto Rico.

Film Screening of Juan Melendez - 6446
August 13 @ 7pm
30 minute discussion about the death penalty with Juan Melendez afterward
All Saints Cinema
918 1/2 Railroad Avenue
(located inside the Amtrak Rail Station)

Source (

Study: 88% of criminologists do not believe the death penalty is an effective deterrent

A recent study by Professor Michael Radelet and Traci Lacock of the University of Colorado found that 88% of the nation’s leading criminologists do not believe the death penalty is an effective deterrent to crime. The study, Do Executions Lower Homicide Rates? The Views of Leading Criminologists, published in the Journal of Criminal Law and Crimonology, concluded, “There is overwhelming consensus among America’s top criminologists that the empirical research conducted on the deterrence question fails to support the threat or use of the death penalty.” A previous study in 1996 had come to similar conclusions.

The criminologists surveyed included - 1) Fellows in the American Society of Criminology (ASC), (2) Winners of the ASC’s Sutherland Award, the highest award given by that organization for contributions to criminological theory, or (3) Presidents of the ASC between 1997 and the present. Those presidents before 1997 had been included in the prior survey. Respondents were asked to base their answers on existing empirical research, not their views on capital punishment.

Nearly 78% of those surveyed said that having the death penalty in a state does not lower the murder rate. In addition, 91% of respondents said politicians support the death penalty in order to appear tough on crime – and 75% said that it distracts legislatures on the state and national level from focusing on real solutions to crime problems. Over all, 94% agreed that there was little emperical evidence to support the deterrent effect of the death penalty. And 90% said the death penalty had little effect overall on the committing of murder. Additionally, 91.6% said that increasing the frequency of executions would not add a deterrent effect, and 87.6% said that speeding up executions wouldn't work either.

Public opinion also reflects these findings. In a 2006 Gallup Poll, only 34% of respondents agreed that “the death penalty acts as a deterrent to the commitment of murder, that it lowers the murder rate.” In 2004, 62% of people said the death penalty was not a deterrent. By contrast, in 1985, 62% believed the death penalty acted as a deterrent to murder.(Source: M. Radelet & T. Lacock, "Do Executions Lower Homicide Rates? The Views of Leading Criminologists," 99 Journal of Criminal Law & Crimonology 489, Northwestern University (2009)).

See DPIC's Deterrence page.