[Deathpenalty]death penalty news----USA, PENN., CALIF., ARIZ.
rhalperi at mail.smu.edu
Sat Dec 4 11:50:53 CST 2004
Ashcroft's Legacy on Federal Death Penalty in Doubt----Will Gonzales
loosen office's grip on capital punishment decisions?
The controversial tenure of Attorney General John Ashcroft is already
being debated, even before he departs. But one aspect of his legacy is
very much in doubt.
Will his effort to federalize the death penalty be viewed as a success?
And will his presumed successor, Alberto Gonzales, carry on Ashcroft's
aggressive approach, overruling prosecutors' decisions not to seek capital
punishment 1/3 of the time?
This is not a subject the outgoing attorney general has touted among his
accomplishments. In a long list of "successes" linked to the farewell
letter posted on the Justice Department Web site, he never mentioned the
Yet the issue carries enormous emotional weight, and Ashcroft's actions
continue to spur debate. Just this month, two cases brought it to the
fore. One raised the possibility that Gonzales will be flooded with
requests to reconsider Ashcroft's death penalty decisions. The second
underscored his penchant for overruling local prosecutors, which sometimes
hamstrung their ability to negotiate cooperation agreements with
On Nov. 12, Nicholas Garaufis, a federal judge who sits in the Eastern
District of New York, criticized Ashcroft's decision to seek the death
penalty in the pending murder trial of mob boss Joseph Massino. Convicted
in July of 7 racketeering murders, Massino already faces a mandatory
sentence of life without parole.
"Mr. Ashcroft's choice to make such a sobering and potentially life-ending
decision now," Garaufis read from a prepared statement at a court hearing,
"after several delays, and only after tendering his resignation to the
President and announcing to the country that he no longer wishes to
preside over the Department of Justice, is deeply troubling to this
The judge acknowledged his responsibility to accept the decision, but
added that he hopes Gonzales, upon taking office, will "reach an
"Accordingly," Garaufis said, "at the appropriate time, I shall issue an
order directing the Government to resubmit the matter to the new Attorney
General for his consideration."
Four days later came the announcement that Ashcroft had rescinded an order
he issued in January 2003 demanding that prosecutors seek the death
penalty in the murder trial of Jairo Zapata. The earlier decision drew
immediate fire because lawyers from the U.S. Attorney's Office for the
Eastern District of New York had already signed a cooperation agreement
with Zapata. The attorney general's action was criticized for jeopardizing
John Nowacki, a spokesman for the Justice Department, declined to address
the criticism directly.
"We don't comment on the decision-making process in specific cases," he
said. "The process that's in place is one that ensures that each case is
carefully and thoroughly reviewed at several levels before coming to the
attorney general for his ultimate decision."
The goal is a system that delivers "fairness and consistency in its
application across the country," he said.
Not even Massino's lawyer, David Breitbart, knows whether Ashcroft
overruled Roslynn Mauskopf, the U.S. attorney for the Eastern District of
New York, when he decided to seek the death penalty. That information is
secret, said Breitbart, of counsel at New York's Mintz & Gold. He added
that he was "pleasantly surprised" by the judge's statement.
Robert Blecker, a professor at New York Law School who supports the death
penalty, though he has misgivings about the way it has been federalized,
had a different reaction.
"It's not for a federal judge to direct the executive branch to reconsider
its policies," said Blecker, who teaches a course on constitutional
history. "He can state his opinion." He can urge Gonzales to reconsider.
"But he has no authority to do it," Blecker said.
The judge declined to comment.
John Martin, who was a federal judge in the Southern District of New York
before he resigned in 2003, said he saw nothing inappropriate about the
judge expressing his opinion. He suggested that others might also seek to
have the new attorney general review Ashcroft's decisions.
"Any defense lawyer representing a defendant would want to take any avenue
they can to avoid the death penalty," Martin said.
Currently, 71 federal death penalty trials are pending nationwide,
according to Kevin McNally, a lawyer at the Federal Death Penalty Resource
Counsel Project, which assists capital defenders and functions as a
clearinghouse. In at least 15 of the pending cases Ashcroft overruled
local prosecutors, McNally said. All told he has overruled prosecutors on
at least 42 of 128 capital defendants (33 percent). He overruled
prosecutors the other way -- declining to request the death penalty -- on
eight defendants. Though disagreements between the Justice Department and
U.S. attorneys are not always disclosed, McNally said that his information
comes from defense lawyers and public records.
No one can know, of course, what Gonzales will do. His confirmation
hearing will not be held until January, at the earliest. Several close
observers did not expect changes. Ronald Tabak, who co-chairs the American
Bar Association's Death Penalty Committee, said an article in the Atlantic
"does not give one great hope that there will be greater attention devoted
to these cases."
"The Texas Clemency Memos," by Alan Berlow (July/August 2003), described
the way Gonzales briefed George W. Bush on death penalty cases when Bush,
then governor of Texas, considered clemency petitions. As Bush's legal
counsel, Gonzales wrote summaries that were "Bush's primary source of
information," Berlow wrote.
"Many have a clear prosecutorial bias," he concluded, and they "repeatedly
failed to apprise the governor of crucial issues in the cases at hand."
McNally found reason to hope that the new attorney general will overrule
local prosecutors less frequently. Ashcroft himself seems to have done so
sparingly over the past 6 months, McNally said. His colleague, David
Bruck, suggested Gonzales may be best positioned to bring about change,
"like Nixon going to China."
The landscape 1st changed not under Ashcroft but under Janet Reno, Bill
Clinton's attorney general. Between 1988, when the death penalty was
restored to the federal arsenal, and 1995, few of these cases were tried
in federal court. But the Federal Death Penalty Act of 1994 greatly
expanded the offenses for which it could be sought. Trying to impose a
measure of control, Reno began requiring prosecutors to clear decisions on
all death-eligible cases, which wasn't popular with all of them.
"I got the impression that they wanted to make the decision themselves,"
Reno recalled. "I thought it was important that there be some overarching
coordination of these cases."
Lawyers with very different views agreed that coordination is appropriate.
But many expressed reservations about the changes that Ashcroft
introduced. The most controversial was the requirement that U.S. attorneys
clear plea bargains with him, which he added to the protocol in 2001;
under Reno, they had autonomy. This was the most important change from
Reno's administration to Ashcroft's, according to Mary Jo White, who, as
the U.S. attorney for the Southern District of New York from 1993 to 2002,
served under both.
ZAPATA CASE A LIGHTNING ROD
To tackle the conspiracy cases so common in federal prosecution "you have
to be able to secure the cooperation of people who are, at least in
theory, death penalty-eligible," said White. "If you bog down in that
process, you can lose that ability." Delays change minds, which can
destroy cases against individuals "higher up on the culpability scale,"
In theory, it's possible to secure quick authorization for cooperation
agreements, she said. "But I've never seen any system work that
efficiently in Washington. Once you've got a committee in place," she
said, referring to the Justice Department committee that considers death
penalty cases and recommends action by the attorney general, "you're
already talking about time delays."
To many, the Zapata case illustrated the problem. Implicated in a 1993
murder, Zapata was in prison on a gun conviction when he was questioned in
1997. He confessed his involvement and implicated others, according to his
attorney, Peter Tomao, a solo practitioner in Garden City, N.Y.
It's unclear why nothing happened for years. It began as a state case and
was taken over by the feds, Tomao said. It should have been resolved under
Reno, when prosecutors still controlled their plea agreements, but the
indictment wasn't unsealed until 2002. A deal was worked out in December
of that year, only to be overruled by Ashcroft the following month.
"Overruling recommendations against the death penalty in cases where the
defendants have agreed to cooperate inevitably jeopardizes the ability of
U.S. Attorneys to conduct such investigations," U.S. District Judge John
Gleeson of the Eastern District of New York wrote last year in the
Virginia Law Review. 89 Va. L. Rev. 1697. "After Zapata, well-counseled
defendants are unlikely to consider cooperation."
One year after Gleeson's article was published, Ashcroft changed his mind
and a new plea was quickly worked out. Tomao doesn't know what caused the
change, but he'd filed motions in August to disqualify the prosecutor (so
that he could call her as a witness), and to unseal records showing that
Zapata's co-conspirators, who were involved in multiple homicides, were
not facing the death penalty.
George Stamboulidis, a long-time federal prosecutor who is now a partner
at Baker & Hostetler's New York office, expressed dismay at the Justice
"It breaks morale for prosecutors if they think their office has worked
well and come up with balanced opinions, and then all of a sudden they get
overruled by Washington for reasons they may not understand or agree
Rory Little, a professor at the University of California Hastings College
of the Law, said it's especially problematic to overrule the way Ashcroft
has. "People don't mind being told what they can't do," he said. "But they
really resent being told what they have to do. Lawyering is an art, and if
your heart's not in it, juries figure that out pretty quickly."
According to McNally, the three states in which Ashcroft has authorized
the most death penalties are Virginia, New York and California. He has
authorized a total of 40 trials. Half are pending. The others have
resulted in no death sentences.
The cost, said White, is not just in the money and resources expended. It
may also be reflected in cases not brought. Her office used to prosecute
eight or 10 large racketeering cases a year.
Had she sought the death penalty in each, she said, it could have been
reduced to 2. "And that would not be a good thing for the public."
(source: National Law Journal)
Torture and Death----Alberto Gonzales's record as assistant chief
executioner under George Bush in Texas
A front-page November 12 New York Times story by Elisabeth Bumiller and
Neal Lewis went deeper into the president's choice for attorney general
than I'd seen anywhere else. The master planner, Karl Rove, has decided
that by sending Alberto Gonzales to succeed John Ashcroft, in the event of
William Rehnquist's retirement, Bush "could then nominate a conservative
favored by his political base."
"It's a thank you to the right for the election," said one Republican
adviser to the White House quoted in the Times article, "and they think
they need to strike now in the post-election glow."
That having been done, Gonzales's "tenure as attorney general would allow
him to demonstrate his reliability to conservative leaders," so that he
could then eventually be nominated to the Supreme Court. (As a judge in
Texas, he was considered a moderate.)
During the presidential debates, while John Kerry proclaimed a litmus test
for his Supreme Court choices - the judicial nominee must support Roe v.
Wade - the president piously pledged no litmus test. Under the Rove plan,
however, no one gets on the Supreme Court during the next 4 years who
significantly alienates Bush's hardcore conservative base. This is a
litmus test that strips the Supreme Court of its independence under the
separation of powers. Franklin D. Roosevelt tried this crude
politicalization of the Court with his Court-packing plan to get more
justices behind the New Deal. He failed. Will Senate Democrats allow Bush
and Rove to succeed, starting with the Rove plan for Gonzales?
The auguries now are that while Alberto Gonzales will get some tough
questioning in January from Democrats on the Senate Judiciary Committee,
he will be confirmed by that body and will not be filibustered on the
floor of the Senate since the Democrats are still licking their wounds and
don't want to appear to be an "obstructionist" minority party so soon.
Nonetheless, the citizenry ought to know much more about Alberto Gonzales
as a possible member of the Supreme Court. The general descriptions of him
now are that he is "moderate" in his views and, as Sam Gwynne of the
independent Texas Monthly tells the Financial Times, "a very gentle, mild
person. . . . Everybody likes him."
Last week I detailed here how this gentle soul advised his close friend,
the president, to whom he is gratefully loyal, and other officials of the
administration on how to evade American and international law to permit
the torture of prisoners at Guantnamo and elsewhere.
But there is also another dimension to Gonzales's concept of justice that
Democrats on the Judiciary Committee should explore.
In the July/August 2003 Atlantic Monthly, Alan Berlow wrote a long,
carefully documented article, "The Texas Clemency Memos," which told of
the role of Gonzales, then legal counsel to Texas governor George W. Bush,
in deciding the fate of prisoners on death row, including the mentally
retarded. Even then, Berlow noted that Gonzales was "widely regarded as a
likely future Supreme Court nominee."
I expect that many Americans have forgotten that during his tenure,
Governor Bush was the chief executioner in the United States. As Alan
Berlow wrote: "During Bush's six years as governor 150 men and two women
were executed in Texasa record unmatched by any other governor in modern
American history. Each time a person was sentenced to death, Bush received
from his legal counsel a document summarizing the facts of the case,
usually on the morning of the day scheduled for the execution, and was
then briefed on those presumed facts by his counsel.
"Based on this information, Bush allowed the execution to proceed in all
cases but one." Berlow says the first 57 of these summaries were written
by Gonzales and were Bush's primary sources of information in deciding
whether someone would live or die. "Each is only 3 to 7 pages long. . . .
Although the summaries rarely make a recommendation for or against
execution, many have a clear prosecutorial bias, and all seem to assume
that if an appeals court rejected one or another of the defendant's
claims, there is no conceivable rationale for the governor to revisit that
As I and other journalists reported during Bush's governorship, the Texas
appeals courts notoriously championed, as they still do, the death
penalty. (This is particularly well documented in The New York Times,
November 16.) Gonzales, by his mechanical reliance on lethal decisions by
those courts, ignored, as Alan Berlow notes, "one of the most basic
reasons for clemency: the fact that the justice system makes mistakes."
The likely next attorney general did not want his tombstone summaries to
be made public, but Berlow obtained a ruling from the Texas attorney
general that they were not exempt from the state's Public Information Act.
Gonzales refused to be interviewed for the Atlantic Monthly article. I
would expect that a public official of conscience would have wanted to
reply to Berlow's conclusion that "in these documents, Gonzales repeatedly
failed to apprise the governor of crucial issues in the cases at hand:
ineffective counsel, conflict of interest, mitigating evidence, even
actual evidence of innocence." (Emphasis added.)
One of the cases in the article was that of "Terry Washington, a mentally
retarded 33-year-old man with the communication skills of a 7-year-old."
In his 3-page report on Terry Washington, Gonzales never mentioned that
Washington, as a child, along with his 10 siblings, was "regularly beaten
with whips, water hoses, extension cords, wire hangers, and fan belts."
And this was "never made known to the jury, although both the district
attorney and Washington's trial lawyer knew of this potentially mitigating
evidence." Just hours after Gonzales's brief report to Bush, Washington
In the July 20, 2003, Washington Post, Peter Carlson wrote, "It's hard not
to conclude that both Gonzales and Bush were rather callous, even
cavalier, about the most profound decision any government official can
make - the decision to kill another human being." And now Gonzales will be
our chief law enforcement officer.
(source: Nat Hentoff, The Village Voice)
Women on Death Row Suffer Harsher Conditions than Male Inmates
Women on death row endure more hardships than their male counterparts,
according to a report by the American Civil Liberties Union (ACLU). The
report, titled The Forgotten Population: A Look at Death Row in the United
States Through the Experiences of Women, studied 66 women, 10 of whom have
already been executed, and found that because there are so few women
living on death row, they are more likely to experience isolation, which
can bring about or exacerbate mental illness. They are also more likely to
experience sexual harassment from prison guards and staff who watch them
as they dress, wash, and go to the bathroom. 1 in 5 of the women studied
had been sexually assaulted while in prison.
Disturbingly, many of the women were sentenced to death for crimes that
generally do not result in the death penalty for men, according to the
ACLU study. The report also found many similarities between the women's
lives before they were incarcerated and the type of crimes they committed.
Over 1/2 the women had experienced ongoing abuse from either family
members or partners. Half of the women studied had at least 1 accomplice
in their crime and, in most of these cases, the accomplice received a
lesser sentence despite appearing to be equally culpable, the ACLU
reports. Additionally, nearly 2/3 of the women on death row were convicted
of killing people they knew, such as a family member.
"This gives further documentation to the intersections between state
violence and domestic violence," Andrea Bible, project coordinator for
Free Battered Women, told Women's eNews. "This report was done to bring to
light the conditions of women on death row and to note that abuse has been
a factor in most of the cases."
In addition to these problems, the women were also found to experience
many of the same difficulties that men on death row experience; for
example, inadequate defense attorneys and addiction to drugs or alcohol.
The study offered 13 recommendations, including creating programs to
provide defense attorneys with training to investigate prior domestic
abuse and introduce the issue at trial, altering prison staff policies to
prevent sexual harassment and assault, giving women prisoners who are
sexually abused access to the court, and integrating female death row
inmates into other women's prisons to prevent isolation.
DONATE to Ms. magazine's Women in Prison Program, which provides magazines
to women in prison across the country
(source: Feminist Daily News)
Cocktail for the condemned
When Michael Travaglia was on death row 7 years ago, his lawyer, Jerry
McDevitt, asked what chemicals the state hoped to inject into his client's
veins. This curiosity struck McDevitt as perfectly natural.
The Pennsylvania Department of Corrections saw it as a threat to
institutional security and refused to answer the question. Commonwealth
Court upheld their argument, notwithstanding the fact that every other
state that poisons its condemned has been happy enough to name the trio of
drugs it uses and their institutions seem quite secure.
"I think their arguments were basically a bunch of junk to be honest with
you," McDevitt said. "I just thought they didn't want anybody to know how
they did it."
So the letter of Nov. 24 from Randall N. Sears, deputy chief counsel for
the Department of Corrections, to Matthew C. Lawry, assistant federal
defender, duly entered in the case file of George Emil Banks, Inmate
AY-6066, came as a revelation. Lawry was part of a team that this week
kept Banks out of the death chamber, or "injection room," depending on
whether you are the one doing the dying or the injecting. Still protesting
the need for security, Sears nevertheless gave up details worthy of a
"We agree to inform you that the Department uses sodium pentothal,
pancuronium bromide and potassium chloride to execute capital prisoners,"
"Sodium pentothal? That's truth serum, right?" McDevitt asked when I
phoned him. "Odd thing to give somebody right before you kill them."
Sodium pentothal is a fast-acting barbiturate. Puts the inmate out. If
you've had back surgery, you've likely had a dose.
Pancuronium bromide -- trade name Pavulon -- is a paralyzing agent. Enough
of it stops a body from breathing. The potassium chloride scrambles the
electrical impulses hard-wired into a human heart. Many people don't know
that a human heart beats on its own and can do so even when the rest of
the body has shut down. Potassium chloride puts a stop to that sort of
The Nov. 24 letter gives a 13-part chronology of how the state's
executioners, all of whom must be trained as either nurses or paramedics
or "other health care professionals," go about killing the stranger on the
table. It discusses angiocaths, intravenous tube extensions, a 250 cc
saline drip, and the all-important "Y injection tube of the left arm" in
which the sodium pentothal is injected, followed by a saline flush to
clean the line, and then the Pavulon.
"If all the Sodium Pentothal has not been flushed from the line, mixture
with the Pavulon may create flocculation [solid particles] to block the
flow of the fluid through the angiocath. If blockage occurs, the remaining
injections must be made in the contingency line running from the right
arm," the letter notes. Then comes the potassium chloride followed by a
5-minute wait and the coroner.
The clinical detail, right down to the description of the fresh corpse as
"the Phase III inmate," might have been the best explanation for the
commonwealth's insistence on keeping secret the mundane details of how it
"It's kind of ghoulish when you think of the state writing a document like
that," McDevitt said.
The death penalty has been a special irritant to Jerry McDevitt since he
was a small boy, living with his grandfather, Andrew McDevitt, chief of
police in Johnstown. One day his grandfather came home pale, shaking and
"He said, 'I just saw the state execute a man. That's wrong. We used a man
to complete an electrical circuit. We should never do that,' " McDevitt
said. "I never forgot that."
The commonwealth's letter contains an appendix listing supplies in the
Stock on hand includes 102 catheters of various gauge, 4 surgical gowns,
15 pairs of surgical gloves, 4 boxes of Band-Aids, 8 bath towels, 6
sheets, 12 boxes of paper clips, a flashlight, a stethoscope, 3 boxes of
alcohol swabs and an item labeled "Shroud, Human Remains."
They use the alcohol swabs before putting in the needle. It prevents
(source: Pittsburg Post-Gazette)
Half Brother Testifies for Scott Peterson
Scott Peterson's half brother implored jurors to spare the life of his
younger sibling so he could still make a valuable contribution to society.
Joe Peterson testified Friday in the penalty phase of Peterson's murder
trial. The former fertilizer salesman was convicted Nov. 12 of killing his
pregnant wife, Laci, and the 8-month-old fetus she was carrying.
Peterson, 32, faces either the death penalty or life in prison without the
possibility of parole for the 2002 murders.
"Scott is a person you want to be around in any circumstances ... He's a
listener, a talker, someone that cares," Joe Peterson said. "He's just got
so much to share that there would definitely be a positive.
"And if he's allowed to live," he said, "my kids and our family will still
have some sort of relationship, however limited it is."
Joe Peterson said his younger brother took up fishing at the age of 5.
Defense attorney Pat Harris displayed a picture of a young Scott Peterson
holding a fishing rod.
"He always loved being around the water, being on the shoreline," Joe
Prosecutors claim Peterson smothered or strangled Laci in their Modesto
home on or around Christmas Eve 2002, then dumped her weighted body into
San Francisco Bay. The remains of Laci and the fetus were discovered about
four months later along a shoreline a few miles from where Peterson claims
to have been fishing alone the day his wife vanished.
Joe Peterson went on to tearfully describe how both he and his brother
always wanted "to please our parents ... wanting to do the best we can
do." Scott Peterson also wept.
Jurors listened with grim expressions. One sat impassively with his arms
crossed over his chest. Another appeared to be doodling in her notebook.
Asked whether he could imagine his brother having committed such a
horrible crime, Joe Peterson said, "Not my brother, absolutely not."
During 3 days of testimony, defense witnesses have talked about Peterson's
childhood and how a death sentence would affect his family members. The
prosecution presented its case in one day, on Tuesday.
Earlier, the mother of one of Scott Peterson's high school friends
described the convicted murderer as a "caring, sweet, loving boy ...
somebody that I was proud to have as my son's friend."
Conception "Coni" Fritz said Peterson was "a gentle man ... caring,
considerate. That's the Scott we know."
Peterson's lawyers told Judge Alfred A. Delucchi they planned to call
about 20 more witnesses. Delucchi told jurors to expect testimony into
Tuesday, possibly even Wednesday, before closing arguments.
(source: Associated Press)
Most death-row inmates lived lives nothing like Peterson's
They are waiting to die - 635 men, 15 women - all on California's death
row, the largest pool of condemned inmates in the nation.
One more will be added to the mix in the next few days, if jurors in
Redwood City decide that convicted murderer Scott Peterson is, as the
commentators keep saying, the "worst of the worst."
If he belongs with Richard Allen Davis. If he should live, for now,
alongside Charles Ng and Ramon Salcido and other condemned inmates whose
names are less known, but whose crimes were equally notorious.
This much is certain. If Scott Peterson is dealt a death sentence, the
32-year-old former fertilizer salesman - college-educated, employed, no
criminal past, the product of an apparent loving home - won't look a lot
like his death-row brethren.
At least, not on the surface.
"Scott Peterson would be out of his element, at least on the class issue,"
said Dan Macallair, executive director of the San Francisco-based Center
on Juvenile and Criminal Justice. "He wasn't in the California Youth
Authority, he wasn't in the child welfare system. There's no evidence of
physical, sexual or emotional abuse.
"That," he says, "is what makes him unique."
And it is this profile - or lack thereof - that confounds anyone who has
followed the case, from the disappearance of pregnant Laci Peterson in
late 2002 to the gruesome discovery the following April along San
Although Peterson appeared to have a healthy, loving upbringing - a
picture vividly painted this week by the defense - Macallair recounted his
legal work with a more typical California prisoner: death row inmate
Robert Lee Massie, executed in 2001.
Massie, who killed a San Francisco liquor store owner during a 1979
robbery, was abandoned by a teenage mother and shunted around orphanages
and institutions, where he was chronically abused.
Scott Peterson was well-educated, putting himself through Cuesta Community
College and then California Polytechnic State University at San Luis
Obispo. He earned decent money in Modesto.
By contrast, the inmate population in California has an average reading
level of 7th grade. Some 19 percent are "completely illiterate," according
to the California Department of Corrections, while 31 % reported being
unemployed a month before their arrest.
Richard Allen Davis, on death row in San Quentin for the 1993 kidnapping
and murder of 12-year-old Polly Klaas, was imprisoned so frequently he
held only the occasional odd job, from tire repairman to firewood
salesman. Eric Houston, a dropout sentenced to death for his 1992 shooting
rampage at Lindhurst High School, apparently blamed the school for his
But one aspect of the Peterson case that does fit a more typical
death-penalty scenario is the profile of the victim. Research has shown
that the death penalty is sought more frequently when the victim is white,
often a white woman of middle-or upper-middle-class means, said Stefanie
Faucher, program director of San Francisco-based Death Penalty Focus.
"The race of the victim generally has a stronger effect than the race of
the defendant," says Faucher, whose group opposes the death penalty.
"That's one of the reasons this case has attracted so much attention -
because they were this sort of upper-middle-class family, and nobody
really suspected this.
"Meanwhile, there's been a number of other heinous murders in California
that nobody has paid attention to."
The prospect that the death penalty is applied unevenly in California
recently prompted a delegation of attorneys statewide to urge the
California Legislature and Gov. Arnold Schwarzenegger to impose a 2-year
moratorium on executions. The Conference of Delegates of the California
Bar Associations wants an independent investigative committee to examine
race, the reliability of convictions and whether geography plays a role in
In San Mateo County, where Peterson awaits his fate, 16 have already been
sentenced to die. The most recent was a woman, Celeste Carrington,
sentenced to death in 1994 for killing two people during separate
robberies - asking one victim for his ATM card's PIN before shooting him.
Peterson will never get to meet Carrington, who's housed with the other
condemned women at the Central California Women's Facility in Chowchilla.
But in a matter of days, a jury in Redwood City will decide if he is in
(source: Sacramento Bee)
New DNA tests may mean second chance on Death Row
A death row inmate who has served 13 years behind bars for raping his
elderly neighbor and strangling her with her own oxygen tube is asking a
judge to exonerate him based on new DNA evidence.
Attorneys for Bobby Lee Tankersley, 52, argue that additional DNA testing
on preserved evidence exonerates their client, or at the very least,
creates reasonable doubt in his case.
"This new evidence drastically undermines the jury's verdict, mandating
reversal of Mr. Tankersley's convictions," his attorneys wrote in a
petition to Yuma Superior Court Judge Thomas Thode, the same judge that
sentenced Tankersley to death in 1993.
Tankersley was convicted largely using bite marks found on the victim's
body -- evidence defense attorneys argue is "junk science."
Thelma Younkin, 65, lived in the same Yuma motel as Tankersley when she
was found raped, bitten and strangled.
Younkin's grandson owed Tankersley drug money, and Tankersley threatened
the grandson, according to trial testimony.
Many of the DNA samples tested from the crime scene contain genetic
material from several people, making it hard to exclude Tankersley as the
source of the DNA left at the crime scene.
"Because you're dealing with mixtures, there is room for interpretation.
It's not cut and dry," Assistant Attorney General John Todd said.
However, he said the state believes that Tankersley's conviction will
"If we felt the evidence excluded him, we would certainly proceed
accordingly," Todd said.
Peter Neufeld, co-founder of the Innocence Project, a group that tries to
free wrongly convicted inmates through DNA evidence, said the case merits
"If the new evidence undermines the prosecution's theory of the case, then
that alone should be enough to vacate the case," he said. "That may not be
enough to warrant a dismissal."
Tankersley was convicted in 1993 by a jury and sentenced to death.
Thode, who is considering Tankersley's appeal, heard testimony from DNA
experts on Nov. 29 and will hear more testimony on Dec. 17.
The only piece of evidence tested for DNA in Tankersley's 1993 trial was a
hair found in Younkin's bathroom sink. Lab technicians could not exclude
Tankersley as the source of the hair.
Tankersley's attorneys argue that he knew the victim socially -- his
girlfriend would sometimes give her rides -- so a hair in her sink would
not be improbable.
Saliva from the bite marks has been tested by the Department of Public
Safety and an independent lab. Both have said he couldn't be excluded.
Tankersley's attorneys argue, however, that new tests on other items,
including fingernail clippings, the oxygen tube, cigarette butts and swabs
of saliva found on the body do exclude Tankersley.
He has maintained his innocence and says he can't remember specifics of
that night because he was an alcoholic who frequently blacked out.
Dan Maynard, one of Tankersley's court-appointed lawyers, said the justice
system failed his client in every way.
"You got an old mopey drunk no one cared about with a rush to judgment,"
(source: Associated Press)
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