death penalty news----USA, PENN., CALIF., ILL., IDAHO
rhalperi at mail.smu.edu
Wed Nov 17 17:09:49 CST 2004
A Matter of Death
The horrific life of Joe Elton Nixon, briefly referenced last week during
a narrow procedural hearing before the U.S. Supreme Court, is at the heart
of a capital murder case that Eric M. Freedman predicts will be studied in
law schools for years to come.
Freedman, part of a team of New York attorneys in the cause of winning
Nixon a new trial in Florida, is a professor of constitutional law at
Hofstra University School of Law.
The Nixon case, he said, "illustrates all the elements that typify death
penalty cases, and the people who wind up getting sentenced to death.
Race, lousy counsel -- all the fundamental problems.
"We certainly hope the justices look at it in that context," Freedman said
of Florida v. Nixon, 03-931, in which he is joined by 5 pro bono lawyers
from Coudert Brothers. "The lower courts," he added, "should be persuaded
against going off and killing a guy who's never had his story told."
An immediate question before the high court is whether Nixon's trial
lawyer in July 1985 was rendered ineffective by conceding guilt without
the explicit consent of his client. According to court papers,
Tallahassee, Fla., defense attorney Michael Corin took that tack in an
unsuccessful effort to win life imprisonment in lieu of death by
The now 34-year-old defendant -- a mentally retarded black man who grew up
as a victim of poverty, incestual rape, sexual humiliation, forced labor
in tobacco fields and near-daily beatings at home, on the job, or in
juvenile institutions -- was tried in absentia and sent to Florida's death
row for lashing a white woman to a tree with car jumper cables and setting
her on fire, leaving her to die in a secluded woods while he pawned her
The grisly homicide stunned the people and the press of Leon County, Fla.,
and dominated the final years of Jonathan Lang, a Manhattan real estate
attorney who failed in numerous post-conviction proceedings on Nixon's
In December 2002, Lang was suffering brain metastases associated with lung
cancer, a disease he contracted despite never having smoked. But Lang
rallied himself for victory in the Supreme Court of Florida in the matter
of Nixon v. Florida, SC01-2486, which vacated Nixon's conviction and
ordered a new trial. Lawyers for the state of Florida appealed to the U.S.
Supreme Court. Lang died at age 51 in March.
For several years in representing Nixon, however, Lang was aided by Edwin
S. Matthews Jr., of counsel at Coudert, along with Coudert partner Edward
H. Tillinghast III and associates Damion K.L. Stodola, Shirin Keen and
Annie C. Tsai. In fact, a Coudert office -- cluttered with scores of
document boxes but still befitting a senior partner -- has long been
maintained for the firm's pro bono commitment to the Nixon case, which was
further aided by several classes of summer associates.
Last week, Tillinghast and Stodola went to Washington, D.C. Tillinghast,
who heads Coudert's global financial restructuring and insolvency group
and who was once a prosecutor in the Suffolk County District Attorney's
Office, argued for Nixon before the U.S. Supreme Court. As a prosecutor,
said Tillinghast, "I would have had Joe Nixon examined by competent
psychiatric doctors. That should have been put into the equation from a
prosecution side, and from a defense side.
"But the only exam came during a 45-minute lunch break during his trial,"
he added. "There was a psychologist in the courthouse for something else.
He wasn't trained in the criminal context. The judge asked him to talk to
Nixon for awhile."
Stodola, a Canadian who opposes capital punishment, jumped at the chance
to assist in the Nixon case, in which he said he has worked "hundreds of
hours a year" for nearly 3 years.
"As a young lawyer working at a large corporate firm, this is a remarkable
opportunity, backed up by the dedicated support of partners. It provides
soul to a law firm," said Stodola, 31, a graduate of McGill Faculty of Law
in Montreal. "I'm grateful to be able to give voice to my belief that the
[death penalty] is just wrong."
On the narrow issue before the Supreme Court, he and Tillinghast
explained, the Nixon case claims violation of the defendant's right to
effective counsel under the Sixth Amendment and the due process clause of
the 14th Amendment. Nixon's trial lawyer, Corin, could not be located for
comment. Attorneys for the state of Florida declined to comment.
But the U.S. Justice Department filed an amicus brief in support of Corin
and Florida's official determination to execute Nixon.
"As a number of courts have held," wrote then-Solicitor General Theodore
B. Olson in the amicus brief, "when counsel concedes a defendant's guilt
as a 'tactical decision, designed to lead the jury towards leniency ...
such a 'tactical retreat' is 'deemed to be effective assistance.'" [U.S.
v. Tabares, 951 F.2d 405, 409, and U.S. v. Holman, 314 F.3d 837, 840.]
The Justice Department brief noted Corin's closing remarks at trial.
"Corin argued that [Nixon] should be spared a sentence of death because he
has 'never been' and 'never will be' an 'intact human being,'" the brief
stated. "He ended by stating, 'It's rare when we have the opportunity to
give or take life. And you have that opportunity to give life. And I'm
going to ask you to do that.'"
According to court papers, Corin said Nixon gave silent consent to the
tactic of pleading guilty. But in an early brief on behalf of Nixon -- a
306-page document filed in 1993 with the Circuit Court for the Second
Judicial District of Florida -- Lang recounted the defendant's objection
to such a tactic by way of refusing to appear in court under such
condition, and his repeated demands for new counsel.
"This was an egregious assault on Nixon's rights," said Stodola. "He never
affirmatively assented to that [guilty] plea."
Without explicit consent, Freedman said, a defense lawyer has no right to
interject his own wisdom for the wishes of the client. "A trial should
give you a high quality outcome, rather than what's happening in the death
penalty system," Freedman added. Contrary to American Bar Association
guidelines on capital defense procedure, he said, "As it is now, the trial
merely gives us a rough draft, which is then polished through layers of
post-conviction review in the hope of eventually achieving what should
have been put forward in the first place."
Namely, in the case of Nixon, the mitigating circumstances of lifelong
physical and emotional abuse should have been brought out at trial, said
Freedman, as well as the client's relationship with his older brother,
John Nixon. According to Lang's 1993 brief, John Nixon routinely taunted
his younger brother by parading him through the streets in girl's
clothing, and telling Joe Elton Nixon's friends that he was regularly
raped by an uncle and aunt. John Nixon, a paid informant for the Leon
County Sheriff's Department, was the principal prosecution witness against
his brother at the 1985 trial.
Joan E. Bertin, Lang's widow, said her husband headed the civil rights
committee of the Association of the Bar of the City of New York when he
took on the Nixon case. At the time, she said, the case was "radioactive."
For his years of work in the Nixon matter and other death penalty defense
work, Lang was given posthumous honor in September by the National
Coalition to Abolish the Death Penalty.
Of the Nixon case, said Bertin, an attorney and executive director of the
National Coalition Against Censorship, Lang "became convinced that there
was more than met the eye. It took him a long time to get [Nixon] to come
out of his cell. But he built trust over the years.
"Joe was paranoid -- with good reason," she said. "In fairness to [Corin],
he was asked to an incredibly difficult job in an incredibly hostile
Yet now, 19 years after trial, the state of Florida insists that both the
prosecution and defense of Nixon was properly conducted, and that the
jury's death sentence is appropriate.
In last week's Supreme Court hearing, justices issued a barrage of
skeptical questions about the position advanced by Nixon's team.
"You said his lawyer acted without consent ... but he said nothing," said
Justice Ruth Bader Ginsburg in an exchange with Tillinghast, according to
the Associated Press. "Where a client doesn't say yes and doesn't say no,
mustn't a lawyer do what he thinks is best to do?"
Justice Antonin Scalia agreed: "According to the lower courts, [conceding
guilt] was a good strategy. I don't know why you want counsel, when a
client doesn't answer, to take a course that gets him executed."
Stodola suggested a lesson in the exchange.
"At this level, you become very divorced from the facts," he said. "The
nuances in legal theory is what lawyers have to cling to in order to
remain at peace with themselves."
And Freedman suggested a high court decision on the matter, which he
expects to be handed down early next year, is not the most important
detail in the ongoing Nixon case.
"If we win in the Supreme Court, there will be a new trial and a real
test," he said. With reference to ineffective counsel claims under the
Strickland standard, set in 1984 by Strickland v. Washington, 466 U.S.
688, Freedman added, "If we lose, then left on remand is Strickland.
Either way, we expect and intend that eventually all of Jon Lang's digging
and getting to know the client will come out as the basis of a just
Lang never revealed his mental illness to Nixon. In a recent letter from
jail, Nixon said of his lawyer, "When Jon died like a part on me inside
died also, he was alot more than my attorney we were best friends and
family who cherish our time ... I am familyless."
(source: New York Law Journal)
Original Justice----Scalia defends his legal theory
Students and residents packed inside Rackham Auditorium yesterday gave
thunderous applause while student protestors clamored outside, as U.S.
Supreme Court Justice Antonin Scalia delivered a lecture on constitutional
The famously conservative judge, who has served on the court since 1986,
came to give the Law Schools DeRoy lecture, which regularly attracts
noteworthy figures in law. Scalias lecture concentrated on his view that
the Constitution should be interpreted according to its meaning when it
was originally written.
"The real fault line in constitutional interpretation nowadays is not
between conservatives and liberals. It is the philosophy of originalism,
which gives the Constitution the meaning it had when it was adopted,"
Scalia said to a crowd of more than a thousand people. "This is not some
weird new philosophy. It is indeed a minority view now, but it used to be
orthodox." The justice expressed distaste for the popular contemporary
"living Constitution" which views the Constitution as a document that
should be modified over time to meet the changing needs of American
people. Scalia said despite public opinion, the originalism system is very
flexible. "If you want to change something, you should persuade your
fellow citizens and pass a law in your state. The state laws can be
changed; Supreme Court rulings cant be changed."
Scalia said items not mentioned in the Constitution, such as abortion,
should not be ruled on by the court, saying instead that the states should
decide on these issues individually.
"People shouldn't think that a living Constitution always leads to greater
freedom. We can take away rights as well as create them," Scalia said,
warning the audience of the dangers of a living Constitution.
During the lecture, Scalia was interrupted by a group of protestors who
silently carried signs through the auditorium. The audience responded to
the protestors with a combination of applause and jeers, and Scalia joked,
"Is this an accepted form of free speech? Can I expect another parade
after this one?"
Erin Schwartz, a graduate student in the School of Social Work, commented
on the march through the auditorium. "We came in silently and anonymously,
and we brought in signs to demonstrate the injustices of Scalias work in
the court system."
Scalia continued his lecture and addressed several arguments against
originalism, including that figuring out what the founding fathers meant
when writing the Constitution is for historians and not lawyers.
"Originalism is not perfect, and some cases can be hard to figure out.
However, under originalism the most controversial cases are a piece of
cake," he said.
Scalia cited the death penalty, saying that when the Constitution was
written it was the only punishment for felonies, so the death penalty must
be constitutional. "Every question is difficult if youre not an
originalist. (Originalism) gives you an awful lot of answers," he said.
Although Scalia is a vocal opponent of affirmative action and opposed the
University in its admissions lawsuit last year, he did not address the
issue during his speech. But during a question-and-answer session
following the lecture, Scalia was asked how he could oppose race-conscious
admissions and consider it acceptable for him to attend Harvard law
"I did not attend Harvard because I am an Italian-American, I attended
because I met the intellectual standards of the school," he said. "Theres
a good deal of evidence which has found that it harms people to push them
into an academic environment they are not prepared for."
Scalia ended his lecture by encouraging the audience to go back to an
originalist view of the Constitution by voting for judges who share this
ideology. "Otherwise the majority will decide the Constitutions meaning,
and thats not what the Constitution is for," he said.
Protestors from the Stonewall Democrats, College Democrats and Students
for Choice held signs and chanted outside after the lecture.
"We think that Scalia has made a lot of decisions that severely limit, or
he has said he would like to make decisions, that would severely limit
womens choices," said Music School junior Ashwini Hardikar, a board member
of Students for Choice. "He has voted to uphold sodomy laws and
'Don't-ask, Don't-tell policies, and to strike down the University of
Michigans affirmative action admissions policies. All of these things
together and right-wing ideology in general is what brings us here."
(source: Michigan Daily)
Serial killer nurse pleads guilty to six more deaths in Pennsylvania,
bringing total to 23
The nurse who admitted killing up to 40 patients in New Jersey and
Pennsylvania pleaded guilty Wednesday to 6 murders and 3 attempted
Charles Cullen appeared in a Lehigh County courtroom to enter the plea,
which was announced last month.
With his latest admission, Cullen has now pleaded guilty to giving fatal
medication overdoses to 23 people and nonlethal overdoses to five others
during his 16-year career.
The Lehigh County charges involved 5 people who died at St. Luke's
Hospital in Fountain Hill, where Cullen worked between 2000 and 2002, and
one at Lehigh Valley Hospital in Salisbury Township, where Cullen worked
from 1998 to 2000.
Two more St. Luke's patients at the hospital got sick when Cullen gave
them a medication overdose, and later died, but prosecutors said their
deaths may have been from other causes. At Lehigh Valley Hospital, a
patient received an overdose that was not fatal.
All of Cullen's victims were seriously ill, but not all were expected to
die soon when he delivered his poison, prosecutors said.
Additional deaths are still under investigation and Cullen may face
further charges in New Jersey.
Cullen has claimed to have killed 30 to 40 people. He agreed to help
investigators identify his victims in exchange for a promise that they
would not seek the death penalty.
(source: Associated Press)
Dear Friends and Allies,
For the first time in more than five years, the Commonwealth of
Pennsylvania will very likely carry out the state-sponsored killing of a
We call on all people of conscience to join together to stop the scheduled
December 2 execution of George Banks, a man with severe mental illness who
has been on death row for nearly two decades. Barring unforeseen
intervention by the courts or Gov. Rendell, Banks will be the fourth
person to be killed by the state since Pennsylvania reinstated the death
penalty. Unlike Keith Zettlemoyer and Leon Moser (both executed in 1995)
and Gary Heidnik (executed in 1999), Banks has NOT waived his appeals.
Therefore, he would be the first person executed against his will in
Pennsylvania in more than 40 years.
YOU can help stop this execution, which, if carried out, would be at a
minimum an immoral and barbaric act in violation of any civilized
standards of human decency. Clearly, the execution of George Banks, now
62 years old, will provide nothing for the citizens of Pennsylvania; his
killing will be an empty act of state-sponsored murder and revenge,
disguised as justice. Banks' case is yet another example of the deadly
problems that infect our state's broken death penalty system.
A major grassroots organizing effort has been launched across Pennsylvania
- and beyond - to activate citizens to stop the execution. A massive
letter-writing campaign to Governor Rendell is under way, demanding that
he immediately rescind the death warrant for George Banks. There also
will be several days of intensive phone calling to the governor's office
- these are scheduled for Tuesday, Nov. 23; Tuesday, Nov. 30 and again on
Thursday, Dec. 2 if the execution has not been stayed. Finally, on Dec.
2, coordinated demonstrations will be held throughout Pennsylvania in an
assertive display of vocal and visible resistance to the scheduled 7 p.m.
Please take a few moments to read about the Banks case (see below). TAKE
ACTION to help stop the execution, and encourage family members, friends
and colleagues to join you in these efforts. Watch closely for developments
in his case and in our campaign to stop the execution.
Thank you for your commitment to helping stop the execution of George
Banks, and to ending state-sponsored killing in Pennsylvania.
Pennsylvania Abolitionists United Against the Death Penalty
STOP THE DECEMBER 2
EXECUTION OF GEORGE BANKS!
George Banks has been on death row since 1985, having been convicted of
killing 13 people in Wilkes-Barre, Pa., in 1982. Banks, one of four
illegitimate children of a bi-racial couple, grew up in an all-white
neighborhood in Wilkes-Barre, where he was subjected to racial prejudice
from both whites and blacks.
White neighbors called him "black trash" and "half breed" and referred to
his white mother as "nigger lover," while blacks labeled him "zebra" and
called his mother "white trash."
Plagued by insecurity, persecution and anger, Banks felt rejected by both
whites and blacks, and viewed himself as "a man without a race." His mental
health worsened as his persecution complex grew, and he became obsessed with
paranoid delusions. He became convinced that a war between the races was
While working as a state prison guard in 1981, he wrote in a journal, "I
have the impulse to take the shotgun out on the catwalk [of the watchtower]
and kill some inmates."
THE BREAKING POINT
On the morning of Sept. 25, 1982, Banks lost complete control. Using a
military-style automatic rifle he had acquired for the race war he
predicted, he killed 13 people. Seven of them were children, including
five of his own, and four of them were his girlfriends.
There were serious questions about Banks' competency to stand trial. One
psychiatrist who examined him called Banks "terminally paranoid," saying
he had "lost touch with reality on a great many things." Banks claimed
that a white police detective had shot and mutilated his deceased family
members, moved the bodies and changed their clothes, and put extra
bullets in them. He sought to have the bodies exhumed in order to prove
there was a racially motivated conspiracy to fabricate and destroy
evidence. Banks' trial degenerated into a tragic farce, as the court
allowed Banks and his lawyers to present inconsistent defenses.
Banks was sentenced to death according to jury instructions that were later
declared unconstitutional. Jury instructions may have prevented the jury
from fully considering mitigating evidence for Banks, including evidence
of his mental illness. The U.S. Supreme Court, however, ruled in a 5-4
decision last June that a 1988 decision on jury instructions could not be
applied retroactively to Banks' case.
Since 1984, Banks has been sent to a state prison psychiatric hospital six
times and has been prescribed at least 15 different psychotropic
He has attempted suicide at least six times and has gone on prolonged hunger
strikes/religious fasts, bringing his weight down to nearly 100 pounds (he
is 5-11) and requiring that he be force-fed. Banks remains delusional and
psychotic. He contends that Jesus Christ is in Washington, D.C., and has
written to Jesus in Washington for advice on whether or not to continue
fasting. He maintains the delusional belief that "all of my sentences
have been vacated [by God] and I am being held here illegally." Banks
believes prison guards have tried to poison him, and that television
evangelists are sending messages to him.
A CALL TO RESISTANCE
We call on all concerned citizens to take action TODAY by writing to
Governor Rendell and asking him to immediately rescind the death warrant
for George Banks based on evidence of Banks' severe mental illness that
made him incompetent to stand trial. In addition, the five-person
Pennsylvania Board of Pardons, which could hear Banks' case and grant
clemency, is required to include a psychologist or psychiatrist. That
seat is currently vacant, which raises serious concerns about the
fairness of Pennsylvania's clemency process and would likely make it very
difficult for Banks to get a fair hearing. Please take a few minutes
and write to Governor Rendell today expressing your grave concerns based
on these issues. And watch closely for developments in his case and on
our campaign to stop the execution. Please pass this information on to
family members, friends, colleagues, etc.
Governor Edward G. Rendell
225 Main Capitol Building
Harrisburg, PA 17120
Call/fax the Governor's office on Tuesday, Nov. 23; Tuesday, Nov. 30 and
Thursday, Dec. 2:
Attend a demonstration from 5-7 p.m. on Thursday, Dec. 2 (if the execution
has not been stayed):
Philadelphia: 200 South Broad Street (near Broad and Walnut).
Pittsburgh: 300 Liberty Avenue. Information: 412-241-8154.
Harrisburg: Governor's Residence, 2nd and Maclay Streets. Information:
Erie: Location TBA. Information: 814-453-4955, ext. 228.
Lehigh Valley: Location TBA. Information: 610-691-8730.
Geragos faces complaint over boat
An attorney with a penchant for attention-getting litigation has filed a
complaint against Scott Peterson's lawyer for apparently parking a replica
of his client's fishing boat 2 blocks from the courthouse last week.
In a complaint filed Friday with the California Bar Association, attorney
John B. Thompson accuses Mark Geragos of trying to "engage in nonverbal
communication" with jurors deliberating Peterson's guilt.
"I believe (Geragos) violated the bar rules," said Thompson, a Florida
attorney who has filed complaints against radio "shock jocks," graphic rap
music and violent video games.
Under a court-imposed gag order, Geragos is prevented from speaking about
any aspect of the Peterson case.
The open boat, which contained homemade concrete anchors and a dummy, was
set in a parking lot after the trial judge decided not to allow jurors see
a videotaped experiment performed by the defense during which the craft
apparently filled with water. The tape could have bolstered the defense's
argument that it would have been nearly impossible for Peterson to heave
his wife overboard, as prosecutors contended, without tipping.
Thompson said the boat display was an unethical way to embarrass the judge
and attempt to influence the jury.
An analyst at the California Bar Association will examine the complaint
and then refer it to an attorney to decide whether to pursue an
investigation, which could lead to disciplinary action, spokesman E.J.
On Friday, the jury convicted Peterson of murdering his pregnant wife,
Laci, and her fetus. The penalty phase is set to start Monday to determine
whether Peterson will be executed or face life in prison.
(source: Associated Press)
Cops Taking 5th in Chicago Police Lawsuit
More than 2 dozen current and former police officials and homicide
detectives have taken the 5th Amendment when questioned in a civil lawsuit
alleging that Chicago police used torture when interrogating suspects,
attorneys said Tuesday.
Attorneys for 2 former death row inmates told U.S. Magistrate Judge
Geraldine Soat Brown that the former detectives and officials have refused
to testify because they are covering up the use of torture by police.
"Twenty-eight former deputy superintendents and other officials in the
police department have all taken the 5th Amendment," attorney G. Flint
Taylor told the court.
The disclosure came at a hearing in a suit filed by former inmate Madison
Hobley. He claims he was tortured into confessing to a murder he didn't
commit and is seeking millions of dollars in damages.
The judge agreed with attorneys for the former officers who sought to bar
lawyers for Hobley and another former inmate, Aaron Patterson, from making
public transcripts and videotapes of depositions at which the detectives
and officials took the 5th Amendment.
She issued a ruling barring such disclosures.
Hobley attorney Kurt H. Feuer argued that reporters should be able to have
the transcripts and videotapes: "This is something that the public has a
right to know."
James Sotos, who represents a number of former officers who are defendants
or potential witnesses, said the primary aim of providing the tapes to the
media was to embarrass the officers involved.
Among his clients is Jon Burge, the former commander of a homicide unit
where much of the torture allegedly took place.
The 2 former prisoners say Burge and detectives under him tortured them
into confessing to murders they didn't commit. Both men were among four
death row inmates pardoned by former Gov. George Ryan just before he left
Attorneys for Burge, who was fired by the police department following an
internal investigation, have denied he was ever involved in torture. But
inmates say they were beaten, dunked in water and questioned with a
plastic typewriter cover over their heads, among other things. Taylor says
electric shock devices may have been used.
The controversy has dragged on for years.
A special prosecutor is currently conducting an investigation with the
potential of bringing criminal charges.
Sotos said in a telephone interview that his clients "would jump at the
chance to testify" if not for the special prosecutor's investigation. It's
possible, he said, that anyone who testifies they may be charged by the
special prosecutor with taking part in a cover-up conspiracy.
"They would love to testify," he said. "It's killing them that they
(source: Associated Press)
Prosecutor drops death penalty option in McMillan slaying
In Moscow, prosecutors will not seek the death penalty against the 3 men
charged in the September slaying of University of Idaho football player
Latah County Prosecutor William Thompson said the case lacks the kind of
aggravating circumstances required by state law to justify a death
sentence on conviction of 1st-degree murder.
Brothers Matthew R. Wells II, 27, and James M. Wells, 25, both of Seattle,
and their nephew, Thomas J. Riggins, 23, of Kent, Wash., would face life
in prison without possibility of parole if convicted in the shooting death
of the 19-year-old starting cornerback for the Vandal football team.
All three were arrested in Washington. Matthew Wells has waived
extradition and is being held in the Latah County Jail. His arraignment on
the 1st-degree murder charge is set for Nov. 29.
His brother remained in the Whitman County Jail awaiting extradition on a
first-degree murder charge, and his nephew was jailed in Kent and also
awaiting extradition to Idaho on a charge of being a principal to murder.
The grand jury that indicted the 3 continues to sit, and Thompson said
others could still be charged.
McMillan died after being shot in the chest, apparently just inside his
apartment after answering a knock on the door, according to investigators,
who said he managed to seek help from a neighbor. McMillan died at the
local hospital about 11 hours later.
Authorities have offered no motive in the case but have confirmed that
they are investigating reports that McMillan might have been involved,
possibly as a peacemaker, in an altercation at a downtown Moscow nightclub
the night before he was shot.
The indictment against Riggins alleges that he solicited his 2 uncles to
come to Moscow to shoot McMillan.
(source: Associated Press)
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