[Deathpenalty]death penalty news----TEXAS, FLA.

[Rick Halperin]

Feb. 15


TEXAS:

JUDGE WITH AN AGENDA----Jurist's involvement in a death row case she
prosecuted raises questions of ethics and fairness.


For a state criminal district judge in Harris County to have started her
career as a prosecutor in the district attorney's office is the norm these
days.

After a decade of Republican dominance, 19 local criminal court judges are
ex-assistant district attorneys. Only 3 came from the defense attorney
ranks.

Once they don their black robes, however, jurists are expected to leave
their former allegiances behind and evenhandedly referee the legal process
pitting prosecutors enforcing the law against attorneys defending their
clients.

In order to overcome the assumption of bias toward the state, judges who
have served as prosecutors should make a special effort to project
impartiality.

That's why the recent intervention of District Judge Jan Krocker in a
federal case involving a death row inmate is troubling.

As reported by the Chronicle's Steve McVicker, when Krocker was a
prosecutor in 1987, she persuaded a jury to give the death penalty to
Martin Draughon for fatally shooting a man who was pursuing him after he
had robbed a fast food restaurant in Houston. Draughon appealed the
verdict in federal court, and his lawyer argued that he had not
intentionally shot the victim as portrayed by Krocker in the trial. After
a guilty verdict, Draughon's defense produced evidence that he had
actually fired a warning bullet in the air, and it had ricocheted and
struck the man. The defense also claimed Krocker had failed to provide
Draughon's attorneys with witness statements that might have helped the
defendant.

Although the Texas attorney general's staff argued against the appeal,
Krocker, who was elected judge of the 184th District Court in 1994,
decided to intervene with U.S. District Judge Lee Rosenthal. Krocker
sought permission to testify before Rosenthal and even present witnesses.
She claimed she had important information to reveal and was just trying to
get the case back on track.

Krocker also filed a motion stating she could suffer loss of her law
license and incur civil liability if Judge Rosenthal found the defense
claims of withholding evidence to be justified.

Even the representatives of the Texas attorney general protested Krocker's
action, calling it "improper and unnecessary."

Judge Rosenthal eventually allowed Krocker to file written statements from
herself and several witnesses to the court, but then granted a new trial
for Draughon. Rosenthal also rejected defense claims that Krocker had
withheld evidence in his trial.

While the ruling absolved Krocker of improprieties in the trial, her
intervention in the case raises serious issues concerning her
impartiality. The State Commission on Judicial Conduct's executive
director Seana Willing told McVicker such behavior makes a judge look like
an arm of the prosecution.

The commission should closely examine Krocker's actions, and take whatever
action may be called for. Defendants and their attorneys need to be
assured that when they enter Krocker's court, they aren't facing two
prosecutors, one of whom just happens to be wearing robes and sitting on
the bench.

(source: Editorial, Houston Chronicle)

***********************

Experts question judge's ethics----They say a line was crossed when she
intervened in an inmate's appeal


A Harris County state district judge may have violated the Texas Code of
Judicial Conduct last year when she took the extraordinary action of
interjecting herself into the appeal of an inmate whom she had sent to
death row while she was a prosecutor, according to legal ethics experts.

"It raises a question about the judge's ability to be impartial and
unbiased," said Seana Willing, executive director of the State Commission
on Judicial Conduct, speaking hypothetically. "These are things we expect,
and (that) are required, of our judicial officers, especially when they
have criminal jurisdictions."

Judge Jan Krocker, however, rejects the notion that she crossed any
ethical boundaries.

As a prosecutor for the Harris County District Attorney's Office, Krocker
won a death sentence in 1987 against Martin Draughon for the fatal
shooting of a man who was attempting to capture him after the robbery of a
Houston fast-food restaurant.

Draughon's appeal, in which his attorney challenged the death sentence on
several points, came before U.S. District Judge Lee Rosenthal last year.

Among other points, the lawyer argued that Draughon did not intentionally
shoot the victim, as Krocker had claimed at trial. Instead, the defense
said, Draughon had fired a shot in the air to frighten his pursuer, but
the bullet ricocheted and struck the victim.

The defense also claimed Krocker did not inform Draughon's trial attorneys
about witness statements that might have bolstered his defense.

Getting personal

In Texas, the Attorney General's Office oversees the defense of state
court convictions when they are appealed on the federal level. However,
after reviewing the attorney general's work in the Draughon case, Krocker
- who became a state district criminal court judge in 1995 - got
personally involved.

In February 2004, Krocker inserted herself into the legal fray by filing a
motion to intervene. Specifically, she sought permission to testify before
the court and to present her own witnesses in support of her original
prosecution of Draughon.

"I had important information, which the legal ethics code required me to
reveal," Krocker said in a written reply to the Houston Chronicle.

In her motion to Judge Rosenthal, she wrote: "Jan Krocker is merely
attempting to get this case back on track with judicial economy."

However, not all of Krocker's reasons for wanting to intervene pertained
strictly to a desire to make sure a convicted killer was put to death as
planned. She also had a personal reason.

In a motion filed in Rosenthal's court, Krocker stated that she "could
suffer loss of her law license and civil liability" if Rosenthal were to
agree with Draughon's contention that Krocker had withheld information
from the defense.

The Attorney General's Office responded by calling Krocker's request to
intervene "improper and unnecessary," adding that her testimony would
amount to "second-guessing and hindsight roundly rejected" by the federal
courts.

Draughon's attorneys also opposed Krocker's intervention, saying it forced
Draughon to deal with 2 prosecution teams - Krocker and the Attorney
General's Office.

A list of witnesses

2 weeks after Krocker's request, Rosenthal granted it in part. Although
she refused to let Krocker make her case in court, she allowed her to file
written statements from herself and several witnesses she had contacted.

In September, Rosenthal ruled that Draughon should get a new trial. She
based her decision on the fact that the jury did not hear testimony that
the bullet that killed the man who was chasing Draughon had ricocheted.
However, Rosenthal rejected the allegation that Krocker had withheld
evidence from the defense. The case is now before the 5th U.S. Circuit
Court of Appeals.

Among the witnesses from whom Krocker obtained statements were people who
could find themselves testifying in her court in the future. They included
the former Houston Police Department firearms examiner who did the
ballistics work in the Draughon case, a current HPD firearms examiner, an
employee of the Harris County District Clerk's Office, a lieutenant from
the Sheriff's Office, an HPD captain and a forensic analyst from the
county Medical Examiner's Office.

Code of conduct

According to Lillian B. Hardwick, a lawyer and author of a book on
judicial ethics, that is one of the areas where Krocker runs afoul of the
judicial conduct code. She points specifically to Canon 4 of the code.

"A judge shall conduct all of the judge's extrajudicial activities so that
they do not cast reasonable doubt on the judge's capacity to act
impartially as a judge or interfere with the proper performance of
judicial duties," reads the code.

It also states that "a judge shall not lend the prestige of judicial
office to advance the private interests of the judge or others ... "

"Any time a judge goes out of judicial bounds to make something happen, it
is as if that judge has taken on the view (of one side of the issue),"
Hardwick said. "And a judge is supposed to be neutral."

The State Commission on Judicial Conduct does not comment on ongoing
investigations or whether an ethics complaint has even been lodged.
However, Executive Director Willing says a situation such as Krocker's
hypothetically puts a criminal court judge in a position of being
perceived as a de facto arm of the prosecution.

Examining relationships

Critics of the Harris County criminal justice system have long complained
that the relationship between judges and prosecutors is too chummy. For
example, of the county's 22 criminal district court judges, 18 are former
prosecutors in the District Attorney's Office.

Even District Attorney Chuck Rosenthal occasionally tells the joke about a
local judge who, at the start of a trial, turns to the defense attorney
and asks, "Is the defense ready?"

The judge then turns to the prosecutor and asks, "Are we ready?"

"That's the kind of danger that this particular fact-finding is
illustrating," said Willing, who also has heard the joke.

The Attorney General's Office refused to comment. Jeff Keyes, one of
Draughon's attorneys, would only say that he found the judge's
intervention in the case highly unusual.

"I can say that I have never seen this type of situation in my 32 years of
practice," said Keyes, based in Minnesota.

Past cases in question

Troy McKinney, a past president of the Harris County Criminal Defense
Lawyers Association, said he is especially concerned about what he sees as
Krocker's influence - because she is a judge - over some of the witnesses
she contacted.

"If I were to call someone in the Medical Examiner's Office and ask them
to provide me with an affidavit, they'd tell me to go shove it," McKinney
said. "Judges just don't go around litigating cases. In fact, as a judge,
you are prohibited from doing so."

McKinney noted that he is not certain that Krocker violated the code of
judicial ethics.

"But it certainly calls into question her judicial independence," he said.

In the opinion of Jim Marcus, of the Texas Defenders Service, any
conviction obtained in Krocker's court during the time she was involved in
the Draughon appeal should now be suspect.

"All of those people may have a right to a new trial," said Marcus, who
specializes in appeals of death row inmates. "That would be a huge
impact."

He added that that would include the capital murder conviction of Edgardo
Rafael Cubas, who was condemned to death in May 2004 for the rape and
murder of a 15-year-old girl during a spree of killings, robberies and
sexual attacks in Houston's East End.

Despite the criticism, Krocker is steadfast that her actions were correct
and ethically proper. She notes she was allowed limited intervention in
the Draughon case by "a very experienced federal judge who is
well-acquainted with judicial ethics." But judicial ethics expert Hardwick
disagrees.

"Based on what I've seen," she said, "(this is) pretty bad."

--

RESOURCES

- Created: Independent agency created by an amendment to the Texas
Constitution in 1965.

- Duties: Responsible for investigating allegations of judicial misconduct
or disability and for disciplining judges.

- Composition: Consists of 11 commissioners, including five judges
appointed by the Texas Supreme Court, 2 attorneys who are appointed by the
State Bar of Texas and are not judges, and 4 citizens who are neither
judges nor attorneys, appointed by the governor.

- Terms: Commissioners serve six-year terms and receive no pay.

- Contact: 512-463-5533; fax 512-463-0511;
www.scjc.state.tx.us/contact.php

(Source: Commission on Judicial Conduct Web site)

(source: Houston Chronicle, Feb. 13)






FLORIDA----juvenile could face death penalty

Teen to be tried as adult in killing of Lauderdale doctor


A 17-year-old will stand trial as an adult in the strangulation death last
month of a Fort Lauderdale anesthesiologist.

A Broward Circuit Court grand jury indicted Scott Whisenant and his
friend, Joseph Fleischer, 18, on Thursday on first-degree murder and home
invasion robbery charges in Dr. Harry Grossman's Jan. 21 slaying.
Grossman, a physician at Weston Outpatient Surgical Center, was choked to
death with a leather dog leash, according to court records made available
Friday.

The Broward State Attorney's Office is still weighing whether to seek the
death penalty against Whisenant and Fleischer, said Assistant State
Attorney Brian Cavanagh. Both are in the Broward County Jail without bail.

Fort Lauderdale police said Whisenant and Fleischer entered Grossman's
Citrus Isles home through an unlocked sliding-glass door and surprised the
doctor as he walked from the bedroom into the living room. Grossman had
befriended Whisenant a couple years ago, letting the teen do odd jobs
around his waterfront home until the doctor began suspecting last year
that the boy was stealing from him.

The 2 would-be robbers beat, kicked and choked the doctor when he
confronted them, authorities said. The teens then are accused of stealing
$2,000 in cash and Grossman's wallet, taking off in the doctor's SUV.

Police arrested Whisenant and Fleischer on Jan. 26 after finding the
wallet and bloody sweatshirts in a garbage can on the beach, and the
abandoned SUV. Someone linked the clothes to Whisenant and Fleischer,
leading to their arrests.

Both teens confessed to participating in the bloody robbery and Fleischer
admitted to "restraining, kicking and striking Grossman in the head with a
pellet handgun," according to police documents.

Assistant Public Defender Bruce Raticoff, Whisenant's attorney, said
Friday he wasn't surprised that Whisenant was charged as an adult. The
defense attorney reiterated earlier comments he made to a juvenile court
judge that he's exploring allegations that Grossman had inappropriate
sexual contact with Whisenant.

That misconduct may have acted as the catalyst for Grossman's death,
Raticoff said.

Grossman's friends and family have called Raticoff's accusations
despicable, saying that there's no evidence to support the defense
attorney's claims and there will never be such evidence. Friends have
described Grossman as a gentle and giving man who doted on his loved ones
and his Akita.

*******************************

BSO sheriff says he accepts blame for crime statistics scandal


Broward Sheriff Ken Jenne says the buck stops with him.

"I'm the sheriff, I'm in charge and I'm responsible for what happens on my
watch," he said.

What's happening on the watch of the sheriff, one of Broward's most
influential politicians, is a crime statistics scandal and a State
Attorney's Officein investigation into allegations that deputies falsified
reports.

Jenne is a former state senator, trial lawyer and prosecutor. The
workaholic and detail-oriented perfectionist who built his career as a
tough, law- and- order Democrat, said he did not know that officers in his
agency were falsifying cases. He also said he never told anybody to "cook
the books."

"If the newest deputy did something wrong, it's the sheriff's fault,"
Jenne said Thursday. "I take that responsibility."

Critics and some law enforcement experts say it is unacceptable that the
sheriff claims ignorance of the problems that sparked the biggest and most
complex investigation ever undertaken by the public corruption unit of the
State Attorney's Office. Two deputies are charged with falsifying
confessions and more arrests are expected in the agency.

The department's crime clearance rates, which were 2 and 3 times the
national average, were analyzed by the sheriff and his command staff at
weekly accountability sessions known as POWERTRAC.

"As leader, you can be uninformed about many things. But issues like that,
you have to be informed about it," said Ken Harms, who was Miami's police
chief from 1978 to 1984. He has testified as a plaintiff's expert in a
number of civil cases against the Broward Sheriff's Office.

In sworn statements released last week by the State Attorney's Office,
deputies testified they were under pressurepressured by a culture of fear
to produce good numbers by blaming crimes on people without evidence.
Others testified that they were frequently pushed to log crimes such as
car burglaries as less serious incidents.

As the man in charge, Harms and other experts said, Jenne had a duty to
know what was going on, to set the tone and to ensure that his employees
were following the law. They say Jenne should resign or be removed.

"We have to look beyond what they [deputies] did to what caused them to do
it," said Barbara Heyer, a civil rights attorney who has filed several
civil lawsuits against the Sheriff's Office. "Whether Jenne knew of the
problem or ignored the problem, he is responsible and must be held
accountable."

The voices calling for Jenne's resignation, however, are relatively few.
While a number of local officials said they thought Jenne might have been
remiss in this case, they also said the improvements and quality of
service he has brought to the Sheriff's Office far outweigh the current
scandal.

Other than the voters, Gov. Jeb Bush is the only authority who could
remove Jenne. Bush said Friday that his office has not been asked to get
involved in the case.

"We've not been asked to look into any allegations, so I don't anticipate
doing so," Bush said. "That may change going forward, but right now
there's no indication that we would be involved in it."

Jenne's spokeswoman, Cheryl Stopnick, said the sheriff has no plans to
resign and it's "ridiculous" to suggest he should. He has taken steps to
correct the problem, she said.

He did not know that his deputies felt pressured to downgrade crime and
improperly clear cases, she said. The information should have "filtered
its way up the chain of command" to the sheriff, but it did not, she said.

"If he did [know], then he would have done something about it," Stopnick
said. "I think that he would have liked to have known so he could have
implemented the changes sooner."

Those who have known Jenne for years, including both former political
opponents and long-time allies, predict the controversy will stop short of
his desk.

County Commissioner John Rodstrom, who was defeated by Jenne in 1990 for
state Senate, said the sheriff's career will survive. "I don't see him
touched by this,." he said.

County Commissioner Ben Graber, who was a member of the Florida House when
Jenne was a senator, said the sheriff was always willing to quickly tackle
and solve problems in the Legislature.

"I am surprised Ken didn't put it down faster," Graber said of the
sheriff's problems. "After all, he''s a tough guy. He's not a lap dog.
He's always been a pit bull."

Graber said he thinks the agency was doctoring statistics long before
Jenne took office and that the sheriff had no idea how ingrained the
problem was in the agency.

Jenne certainly inherited problems when the late Gov. Lawton Chiles
appointed him Broward sheriff in 1998.

Previousior administrations at the Sheriff's Office were responsible for
the notorious cases of Frank Lee Smith and Jerry Frank Townsend, who were
both wrongly convicted of murders in the 1980s. In those cases, sheriff's
detectives claimed that the men had made self-incriminating statements.
Smith died of cancer on death row and Townsend, who is mentally retarded,
spent almost 22 years in prison, before DNA tests exonerated both men.

Jenne moved to set things straight when the mistakes of his predecessors
were exposed. He went to the jail to shake Townsend's hand and apologized
for the wrongdoing of the previous administrations, even though he knew a
civil law suit against his agency was inevitable. Heyer later filed one
and named Jenne a defendant.

So far during his tenure, Jenne has forced major changes at the agency,
such as requiring that all suspects' statements in serious crimes be
electronically recorded in their entirety. He also introduced many reforms
following the crime-reporting scandals.

Public Defender Howard Finkelstein, whose attorneys defend many of those
arrested by deputies, said the current problems are being overblown
compared to the improvements Jenne has made.

"You can't forget that he has made tremendous advancements in
professionalizing the Sheriff's Office," Finkelstein said.

But Jenne has also been criticized because he retained and promoted some
supervisors who were involved in the Smith and Townsend cases. Maj. Tony
Fantigrassi remained in charge of criminal investigations even though,
court documents show, he was involved in getting the false confessions
from Townsend.

In an interview with the South Florida Sun-Sentinel last November, Jenne
said his command staff repeatedly assured him that the agency's crime
statistics were reliable. Jenne acknowledged at that time they were not.

When he announced in January that he was accepting the retirements of 4 of
his command staff, including Carney, Lt. Col. Tom Brennan, and
Fantigrassi, he called them "honorable men." Each has been at the agency
for more than 25 years. They are still negotiating their retirement
packages and have not yet left.

Jenne also announced in November that he was scrapping the POWERTRAC
accountability system, which he said failed to identify or address the
statistics manipulation. Critics say POWERTRAC meetings, in whichwhere
Jenne and his staff would grill supervisors under a spotlight, created a
pressure-packed environment that caused some staff to cheat.

Bradford County Sheriff Bob Milner, president of the Florida Sheriffs
Association, said he "couldn't fathom" how an agency could think it was
consistently solving 40 to 50 % of property crimes without questioning
such abnormal results. State and national averages are 17 to 18 %.

But Milner did not criticize Jenne personally.

"Bottom line, I know Ken," he said. "I'd be very surprised that he or
anybody that reports to him had any semblance of knowledge [of
wrongdoing]."

While Jenne has announced several investigations of his agency since the
scandal first broke last year, they lacked teeth. An audit of the crime
statistics by the Florida Department of Law Enforcement and FBI failed to
find serious problems.

Several members of the agency's internal affairs unit, who have since been
moved to other positions, testified that their boss, retired Inspector
General Martin Rahinsky, stifled their investigations into improper
clearances and crime downgrading. Investigators told prosecutors that
Rahinsky said the 2nd in command, Col. Tom Carney, knew about his
decisions.

Retired Assistant Inspector General Roy Vrchota testified that on Dec. 16,
2002, Rahinsky told him Carney wanted internal- affairs investigators to
stop delving into improper clearances in Weston and let the Weston
district chief handle it. That was 10 months before prosecutors started
their investigation. Vrchota said he did not know whether Rahinsky was
telling the truth.

"I think it was sent back basically well, I hate to use the word "cover"
but I think that's exactly what happened to it," Vrchota said.

Capt. Stanley Hodgeman told prosecutors that Rahinsky wanted to limit an
internal affairs investigation into downgrading crime in the
unincorporated central Broward district in the summer of 2003. Rahinsky
denied that.

Hodgeman said Rahinsky later told him he "caught a lot of heat" because
the case had been turned over to the State Attorney's Office. That case
started the prosecutors' investigation.

Any "heat" about the case being sent to prosecutors "would have either had
to come from the sheriff or it had to come from Col. Carney," Hodgeman
said.

Carney told prosecutors last year that his conversations with Rahinsky
were limited and that the inspector general reported directly to Jenne.

John deGroot, who was executive assistant to Rahinsky, testified that he
suggested bringing in Rudolph Giuliani, the Republican former mayor of New
York City, to "bless" the Sheriff's Office numbers. But Jenne resisted,
deGroot said, saying he would bring in only someone he knew to do the job.

Jenne chose former state Attorney General Jim Smith, a Republican, to
lhead a review of the agency, which cost $102,400.

When the scandal refused to die and prosecutors and local newspapers
continued to aggressively pursue their own investigations, Jenne hired Tom
Panza, a lawyer, lobbyist and friend of 30 years, to do another review of
thousands of criminal cases handled by the agency. Panza is being paid
$250 an hour to investigate.

The agency has not released information about the total taxpayer cost of
all of the internal and external investigations.

Panza and his law firm also are defending Jenne and the Broward Sheriff's
Office in 2 civil lawsuits filed on behalf Townsend and Smith.

Despite all of the sheriff's efforts, critics say it's the State
Attorney's Office investigation that will carry the most weight.

"The sheriff should be forced to resign," said John Cochran, associate
chair of the criminology department at the University of South Florida in
Tampa who is familiar with the case.

"The detectives -- some should be prosecuted, some should be severely
demoted, and some of them should be fired. The public confidence and trust
is too important to let bygones be bygones and say, 'We'll fix it from
this point forward.'"

(source for both: South Florida Sun-Sentinel, Feb. 13)