[Deathpenalty]death penalty news-----CALIF., VA., N.Y.

[Rick Halperin]

Nov. 28


CALIFORNIA:

Peterson Jurors Face Wrenching Choice


If the experience of those involved in past death penalty cases is any
guide, the jurors in Scott Peterson's murder trial will have to grapple
with raw and deep religious, moral and legal issues as they decide whether
he lives or dies.

Arguments in the penalty phase are scheduled to begin Tuesday, but experts
say many of the jurors may already have made up their minds about what
punishment the 32-year-old former fertilizer salesman deserves.

In 2001, a California jury faced a case that holds some similarities to
the Peterson trial. Todd Garton was a philandering husband convicted of
the shocking murder of his young and very pregnant wife. Jurors said he
deserved to die.

"I signed the document that the jury found for death and I think about
that a lot," said Fred Castagna, who served as jury foreman. "It was
emotional during deliberations, but I don't lose sleep over it."

Jurors who have sent people to death row say even though they were
overwhelmingly convinced of their guilt, settling on the death penalty was
one of the toughest decisions of their lives.

"I have strong religious beliefs and this wasn't like I had to decide what
kind of ice cream to buy," said Brian Bianco, who served as foreman of the
jury that convicted Richard Allen Davis of kidnapping and killing
12-year-old Polly Klaas.

Nevertheless, like Castagna, Bianco said he has never doubted that he made
the right decision in sending Davis to death row after 4 agonizing days of
deliberations.

It took a jury just 70 minutes to condemn Garton, who was convicted of
hiring a hit man to kill his 29-year-old pregnant wife.

"There wasn't any real reason to mull it over," Castagna said. "It was
pretty clear that this guy was evil, that he had concocted this scheme to
get his wife killed."

Garton, convicted of 2 1st-degree murder charges, is 1 of 3 men in
California sentenced to die because a fetus perished during a slaying.
Peterson could be the 4th.

Castagna said the 5 months of sometimes graphic testimony during the guilt
phase of the trial "pretty much drove" the death verdict.

"You can't help but consider the fact that you'll have to decide
punishment if you find him guilty," Castagna said. "That's always in the
back of your mind, but you try not to let it influence you."

Determining punishment before deliberations in the penalty phase is a
common experience for many death penalty jurors, according to an ongoing
study by the Capital Jury Project at Northeastern University. About 1/2
the 1,300 capital case jurors questioned for the study said they had made
their sentencing decisions during the guilt phase of the trial, according
to chief investigator William Bowers.

"That's perhaps the most profound thing we found," said Bowers, who
sometimes serves as an expert witness for those facing the death penalty.
"That's a major departure of how it's supposed to work. You're supposed to
wait for instructions."

What's more, Bowers said that many jurors vote for death because they fear
the killer will someday be set free, even if a sentence of life without
parole is an option, as it is in the Peterson case.

"There's a pervasive anxiety that the defendant will be back on the
streets," Bowers said.

That anxiety played a major role in the 1988 death sentence of William
Dennis, who was convicted of the Halloween night machete slashing of his
ex-wife and her 8-month-old fetus as the victim's 4-year-old daughter
cowered behind a couch.

"What it came down to for us was that we were not convinced that life
without the possibility of parole meant that," said jury foreman Forrester
Sinclair. "We decided we had to have him removed from society forever."

Peterson faces death or life in prison without parole for the murders of
his wife Laci and the fetus she carried. His lawyer has asked the
California Supreme Court for a new jury and a change of venue for the
trial's penalty phase. An appeals court turned down the request last week.

On the Net: Capital Jury Project: http://www.cjp.neu.edu/

(source: Associated Press)






VIRGINIA:

Public Defense Offenses


In the struggle to make the right to counsel a reality in Virginia, public
defenders' offices are supposed to be part of the solution. These
governmental offices are set up to provide competent counsel to poor
people. Their ability to concentrate expertise and professionalism makes
them clearly preferable to the alternative -- the private, court-appointed
lawyers who represent the bulk of indigent defendants in the commonwealth.
Yet between January 2003 and September 2004, the Virginia Court of Appeals
dismissed at least 60 criminal appeals because of missed filing deadlines
by public defenders' offices. In fiscal 2004, 7 % of the appellate
caseload in public defenders' offices was thrown out because of purported
errors. This is unacceptable in a society whose constitution guarantees
the right to effective assistance of counsel.

The public defenders' performance is actually somewhat better than the
dismal showing of Virginia lawyers generally before the appeals court,
especially because not all of the defaulted cases appear to be the fault
of the offices held responsible for them. Moreover, the performance of
public defenders around the state varied widely. An analysis of court
records found no blown appeals from the offices in Alexandria,
Fredricksburg or Lynchburg during the 21-month study period. By contrast,
Virginia Beach's office saw 12 cases dismissed over filing errors; in 6 of
them a single assistant public defender, Aleasa D. Leonard, is listed as
counsel of record. The offices in Norfolk and Portsmouth, which handle an
unusual number of appeals, each had seven cases dismissed.

Even the statewide appellate defender's office, which handles nothing but
appeals from around the state, is not immune. S. Jane Chittom, who heads
the office, was listed as counsel of record in three defaulted cases,
though she says she did not personally default them. In the case of Jamel
Thomas Coleman, about whom we wrote yesterday, a former lawyer in her
office was at fault, Ms. Chittom says. In another, she says, the local
public defender's office in Portsmouth, which referred the case to her,
failed to file one of the trial transcripts promptly. A third case, that
of Jason M. Jones, she describes as "a mystery," noting that while her
office is handling a related appeal for Mr. Jones, it has no record of the
dismissed case. Mr. Jones, in an interview, said he never authorized its
being dropped.

The problems that lead to errors by public defenders are somewhat
different from those in the private bar. Public defenders work under
immense pressure and carry outrageous caseloads over which they have
little control. The state has not given them modern computer equipment or
support staff. It takes first-rate management under these circumstances to
prevent deadlines from sliding -- and, as some public defenders candidly
admit, that management has not always been there. Joanmarie Davoli, who
recently took over the public defender's office in Fairfax County,
describes finding "no oversight" at the office, where she worked as an
assistant public defender some years before, and an "overall failure to
have protocols in place to handle appeals. . . . It's like 21 private
attorneys practicing law on their own." David R. Rosenfeld, who is
auditing procedures at the different offices for the Indigent Defense
Commission, told commissioners at their initial meeting that some offices
had excellent systems while others had none at all.

Richard C. Goemann, executive director of the commission -- which oversees
public defenders' offices -- says that not all the missed appeals result
from errors by public defenders. He notes that in some cases courts were
at fault, while in others, defendants wished to drop their appeals and
attorneys did not follow the proper procedure for doing so. In at least
one, he says, the public defenders' office was appointed immediately
before a key deadline, leaving little time to act. The majority of cases,
however, appear to be simply the result of a pressure-induced lapse.

To some degree, the problem can be corrected with better management and
oversight. Richmond public defender David J. Johnson expressed shock at
the four defaults we identified in his office, calling them "completely
unacceptable" and insisting that "we're going to fix it." Ms. Davoli says
she has moved to improve oversight of case management in her first weeks
on the job in Fairfax County. "In the absence of technology," she said,
"we're using a chart." The members of the Indigent Defense Commission, at
their initial meeting, seemed eager to play a more aggressive role in
overseeing the offices generally. One place to start would be with lawyers
who have blown more than one appeal; in 2/3 of the cases we identified,
counsel of record was also counsel in at least 1 other defaulted case as
well.

But management reforms, while essential, will not be enough. The problem
will persist as long as attorneys are forced to carry caseloads
dramatically in excess of national standards. And this is a problem the
public defenders cannot realistically address on their own. The commission
needs to move swiftly to impose limits consistent with competent
representation for all defendants, and the General Assembly needs to
provide the considerable amount of money it will take to make that a
reality. Leadership from Gov. Mark R. Warner (D) and Attorney General
Jerry W. Kilgore (R) could make a world of difference. Both should be
embarrassed to preside over a public-defense system that fails its clients
so often.

(source: Editorial, Washington Post)






NEW YORK:

Death penalty change may get an airing


The desire to get a workable death penalty law back on the books and the
political need to at least appear to support procedural reforms have
collided in New York, leaving citizens to wonder whether efficiency or
democracy should be the paramount value.

The Assembly won't consider a bill that would revive the death-penalty
statute before holding hearings on the idea over the next 2 months,
Speaker Sheldon Silver, D-Manhattan, said.

While that on its face looks like a reasonable idea, holding hearings does
vary from the normal way of doing business at the Capitol, where the
general rule is, the more important the bill, the less time is spent
debating it in public, much less getting input from citizens.

A spokeswoman for Gov. George Pataki immediately denounced the plan to
hold public hearings as "obstructionist behavior."

New York hasn't executed anyone since 1963, and the state's old
death-penalty statute was thrown out by the U.S. Supreme Court in 1972.
But in 1995, Pataki and lawmakers approved a measure calling for certain
murderers to be executed by lethal injection.

7 men were sentenced to death under the new statute, but none have been
executed.

In June, the state's highest court invalidated the law. The judges ruled
that a provision of the statute that allowed a judge to give a murderer a
chance at being paroled if the jury couldn't decide between a death
sentence and life without parole created a bias toward the death penalty.
The reasoning was a juror who surely didn't want the murderer ever back on
the streets but also didn't want him executed would opt for lethal
injection rather than take the risk he would be paroled eventually.

Pataki and the Republican-controlled Senate quickly agreed to a bill to
rewrite how jury deadlocks could be handled, but so far the Democrat-run
Assembly has balked.

Support for the measure has always been dicey in the Assembly, which is
dominated by lawmakers from New York City, which is also where most people
in state prisons formerly resided. Minority lawmakers have long complained
that their constituents are more likely to be sentenced to die than white
murderers.

The political climate regarding the penalty has also changed dramatically
since 1995. Violent crime in New York City especially but also in the rest
of the state and in the nation has dropped sharply in the last 9 years.

And the findings of an investigation in Illinois a few years ago that
several men on death row in that state were actually innocent has given
people pause about how fair the whole system is.

Reformed-minded

The latest complication is all the talk at the Capitol about the need to
improve the way the state government does business, particularly in making
its operations more transparent and giving citizens a greater chance to
participate.

Holding hearings on such an important measure would be virtually automatic
in most states. But in New York, the Senate passed the bill in August not
only without any hearings but also without even waiting the normal three
days after it was printed to vote on it. Pataki gave the Senate a "message
of necessity" to pass it less than a day after it was introduced -- a
common procedure for potentially controversial measures that politicians
want to dispose of quickly. The exact nature of the "necessity" was, as
usual, not disclosed.

But since August (and the Nov. 2 elections where voters expressed some
support for reform-minded candidates) almost everyone in the Legislature
has gotten religion on "reform."

That either provides Silver with a) a convenient political cover to delay
a vote on the death penalty measure while he assesses how the issue plays
(the Republican version) or b) a chance to hear what the public has to say
about an important policy question (what the Democrats say).

Will the hearings be shams? Maybe. But these days it's hard to be against
the public speaking out.

(source: Gannett News Service)