[Deathpenalty]death penalty news-----TEXAS, KAN., MD., LA., USA

[Rick Halperin]

June 6



TEXAS:

DA orders retesting in latest lab probe


Almost 2 years before the first public indication of the decaying
conditions and tainted work at the Houston Police Department crime
laboratory, Harris County District Attorney Chuck Rosenthal asked the
lab's supervisor about any problems that might jeopardize prosecutions.

"Given our duty to see that justice is done, doing anything less would put
criminal defendants at risk of an unjust disposition of their cases,"
Rosenthal wrote to Donald Krueger in January 2001, 2 weeks after first
being sworn in as district attorney.

"If a pattern of significant error emerges with respect to any particular
employee of your laboratory, this office may be compelled to disclose that
pattern to defense counsel ... to see that justice is done," he warned.

That task appears to be at hand - again.

In the wake of the most recent accusation of unreliable work by the crime
lab, Rosenthal confirms that he has ordered retesting of evidence in any
pending drug cases processed by HPD chemist Vipul Patel.

It is not clear how many cases will be retested, but police officials say
analysts routinely process evidence in as many as 140 cases per month.

Additionally, internal memos from the District Attorney's Office show that
the decisions not to prosecute a second analyst also accused of falsified
work were made by 2 top assistant DAs, one of whom now is a criminal court
judge.

The documents also indicate that several key figures in that office,
including then-District Attorney Johnny Holmes, were informed about the
allegations of falsified test results and the decisions not to prosecute.

Holmes denies that he knew about the cases.

'Drylabbing' allegations

Last week, a special investigator hired by the city of Houston to probe
the still-developing crime lab scandal issued a scathing report accusing
Patel and James E. Price, a former analyst from the lab's controlled
substances division, of "drylabbing."

The term refers to the fabrication of results without actually testing the
evidence.

The report accused the analysts of falsifying 2 reports each between 1998
and 2000.

It noted that lab supervisors discovered all 4 instances before the
evidence could be used in criminal trials.

The accusations follow a series of revelations that have emerged since a
November 2002 audit found numerous problems in the crime lab's DNA
division, forcing its closure and the retesting of evidence in almost 400
cases. Since then, problems also have been found in the serology,
ballistics and toxicology divisions.

The drylabbing allegations in the controlled substance division, which is
responsible for 75 percent of the crime lab's work, have only now been
made public as a result of the work of special investigator Michael
Bromwich.

The city hired Bromwich, a former U.S. Justice Department inspector
general, for an exhaustive review of the entire crime lab.

However, the latest development was not news to HPD and some members of
the District Attorney's Office who were notified about the problem several
years ago.

The police internal affairs division investigated the four drylabbing
accusations.

Although an HPD spokesman says all investigations of that nature are sent
to the District Attorney's Office, Bromwich's team has been able to
document only that results of the review of Price's work were sent.

Citing what they considered a lack of evidence, prosecutors declined to
pursue criminal charges such as tampering with or falsifying government
documents.

"Based on the facts contained in your report, I do not feel we have
sufficient credible evidence to substantiate criminal charges," Assistant
District Attorney Kaylynn Williford wrote in September 1998.

Williford criticized Price's work, however, as did then-prosecutor
Margaret Harris, now a criminal court judge.

"We hope that the declination of criminal charges will not serve as an
endorsement of this chemist's behavior, which we find very disturbing,"
Harris wrote to police officials in November 2000.

Defending their actions

Contacted last week, Williford and Harris stood by their decisions not to
seek charges against Price, who resigned. Harris also said that, at the
time of the investigation, she held the lab "in the highest esteem."

"So (the Price case) shocked me a little," she said.

According to Rosenthal, the Price file also contains internal memos about
the decision not to prosecute that went out to several high-ranking
members of the District Attorney's Office, including then-District
Attorney Johnny Holmes.

In an e-mail to the Houston Chronicle last week, Holmes said he did not
recall the cases.

"I was not aware of that, or if I was in the loop, I do not now recall it,
and surely I would have," Holmes wrote.

"The fact that things apparently turned to goo (at the crime lab) while I
was still in office does not give rise to the suggestion, in my mind, that
prosecutors knew of the alleged deficiencies."

However, First Assistant District Attorney Bert Graham acknowledged last
week that he had been informed of the decision not to prosecute Price.

He said he did not see the cases as indicators of greater problems at the
lab.

Since the crime lab troubles became public two and a half years ago,
defense attorneys and others have criticized Rosenthal for refusing to
recuse his office from grand jury probes of the lab, which they believe
should have been conducted by an outside investigator.

2 grand juries have investigated the lab. Neither returned an indictment.

Also, HPD Executive Assistant Chief Martha Montalvo said last week that,
after the discovery of Price's suspect work, the department undertook a
review of 574 cases he had processed. She said no more discrepancies were
uncovered.

However, she also acknowledged that, for reasons unknown, there had been
no such review of Patel's cases, although one will now be initiated.

It has not been announced whether the department, special investigator
Bromwich or both will conduct the review.

However, Bromwich has indicated he plans to examine the work of both
analysts as part of his overall investigation.

He also wants to make sure that defense attorneys are notified about
problems with the work of Patel and Price.

The president of the Harris County Criminal Lawyers Association says
defense attorneys should be notified of any involvement of Patel or Price
in any case, regardless of the disposition.

"There's this Hollywood portrayal of these people doing this super
science, when, in fact, what you've got going on is some lab technician
who knows what the police officer wants, and just goes along with it,"
said Wendell Odom.

Suspensions, resignations

Indeed, in one of the cases in which Bromwich reported that the evidence
was never tested, the special investigator's report noted: "The analyst's
'findings' supported the hunch of the submitting officer as reflected in
his paperwork."

The Chronicle has been unable to contact Patel and Price.

According to the Bromwich report, Price served a 4-day suspension before
resigning in 2001 as his superiors considered firing him.

Patel was suspended for three days after a highly critical employee
evaluation in March 2000, obtained by the Chronicle under Texas'
open-records law.

"Mr. Patel has demonstrated a pattern of inability to analyze evidence
according to forensic guidelines," a supervisor wrote.

"He has hidden, disposed, and rewrote work on cases that have been
questioned. He does not have an explanation why he reworked evidence
months after completion of the case. This employee is not meeting
acceptable job expectations," the supervisor added.

The evaluation also included remarks from Patel, who attempted to defend
himself.

"I do not agree," he wrote. "I did not hide or dispose of any work
products. I did not get enough training on (lab equipment). I did not get
opportunity to re-analyze case even if I caught mistakes and I get
punished for it."

Patel continues to work in the crime lab, although HPD emphasized last
week that his work is being monitored closely.

(source: Houston Chronicle)






KANSAS:

Legislature passed up opportunity to fix death penalty law


It was a short-term decision that seemed prudent at the time, but came
back to bite the people who made it.

The decision by legislators in 2002 was among the events that could
prevent the executions of seven men convicted of capital murder.

In December, the Kansas Supreme Court struck down the state's capital
punishment law in a 4-3 decision over a single provision on how juries
weigh evidence for and against imposing a death sentence.

The U.S. Supreme Court has agreed to review the decision, and its
intervention is the only way the men sentenced under the law will face
death by injection.

The flaw cited by the Kansas decision was well-known, having been
identified by the Kansas court two years before. Legislators could have
fixed it, but they didn't think it was necessary, based on their reading
of the court's opinion and advice from the attorney general.

Perhaps that's why many legislators and some relatives of capital murder
victims were upset about the Kansas court's decision in December. Now, of
course, it appears obvious that fixing the flaw in 2002 would have been
the wiser course.

"There was no crystal ball good enough in 2001 or 2002 to foresee that the
court was going to do a 180 only 2 years later," said Senate Majority
Leader Derek Schmidt, R-Independence.

The Kansas court's decision in December was over an appeal from Michael
Marsh II, sentenced to die for the June 1996 slayings of 21-year-old Marry
Ane Pusch and her 19-month-old daughter, Marry Elizabeth Pusch.

The court said the entire death penalty law was unconstitutional because
of a provision that says when the evidence for and against imposing a
death sentence appears equal, a jury must recommend death.

The issue strikes some victims' relatives as a technicality, given that
evidence hasn't seemed equal so far to Kansas juries recommending death.

"It's like they were hunting for a way to find something wrong with
Kansas' death penalty law," said Charles Hobson, an attorney with the
pro-death penalty Criminal Justice Legal Foundation in Sacramento, Calif.

But the Kansas court's majority said the provision violated defendants'
constitutional rights to due legal process and to be protected from cruel
and unusual punishment.

A tie, the majority said, must be resolved for the defendant and result in
a life sentence.

Legislators understood the issue because the court raised it late in 2001
when it ruled on the appeal of Gary W. Kleypas, sentenced to die for the
1996 killing of Carrie Williams, a 20-year-old Pittsburg State University
student.

While the court threw out Kleypas' death sentence and ordered a new
sentencing hearing, it kept most of the law intact and said the flaw could
be corrected through new instructions to juries in capital cases.

Its decision led legislators and then-Attorney General Carla Stovall to
conclude no change in the law would be necessary.

And the 2002 session was a contentious mess. Legislators faced closing a
huge budget shortfall by cutting programs, raising taxes or both.

They also had to redraw congressional and legislative districts, a task
that typically brings out the worst political tendencies in legislators.

Even without a capital punishment debate, the 2002 session lasted 107
days, making it the longest in state history.

And reopening a debate over capital punishment could have been tricky for
supporters of the death penalty law, anyway.

Kansas has a tradition of ambiguity toward capital punishment, with
legislators generally more reluctant to embrace it than their
constituents.

The state abolished its death penalty in 1907, then reinstated it after a
spate of bloody bank robberies. A 1972 U.S. Supreme Court decision struck
down all states' capital punishment laws, and it took death penalty
supporters more than two decades to pass a new, constitutional statute in
Kansas.

The state has executed only 24 convicted murderers in its 141-year
history. The last executions, by hanging, occurred in 1965.

And the 1994 capital punishment law is narrow, applying to only 7 capital
crimes, because a broader law likely wouldn't have passed.

So in 2002, legislators took what seemed to them a small gamble. They left
the law alone and relied on what they saw as a solid legal precedent.
Then, over the next 2 years, 4 new justices joined the 7-member court -
leading it to rethink its previous decision.

Now, whether convicted killers are executed depends on the U.S. Supreme
Court.

And prosecutors have new potential capital cases. They include the June
2002 beating and strangling of 19-year-old Ali Kemp in Leawood, the
shooting in January of Greenwood County Sheriff Matt Samuels and the
shooting in April of Harvey County Deputy Sheriff Kurt Ford.

The defendants can't face execution if the nation's highest court doesn't
resurrect the death penalty law.

Legislators considered repairing the flaw this year but decided to wait
for a U.S. Supreme Court decision. They believed a fix would have
discouraged the court from intervening.

The U.S. Supreme Court's decision to hear the case appeared to vindicate
their caution. But that decision, like the one in 2002, could come back to
bite them.

(source: Associated Press)






MARYLAND:

Md. death penalty----Lawyers using UM study that showed disparities

Lawyers for a death row inmate are to present this week the 1st oral
arguments before the state's high court using a state-sponsored study to
try to show that Maryland's application of the death penalty is racially
biased.

Wesley Eugene Baker's case is one of at least five in which the issue has
been raised since the University of Maryland study by Professor Raymond
Paternoster was released in January 2003 but is the 1st to earn a spot on
the docket of the Court of Appeals.

Baker's attorney is expected to argue a central theme tomorrow: that his
client, a black man convicted of killing a white woman in Baltimore County
14 years ago, was illegally sentenced to die under a system riddled with
racial and geographic disparities. At the least, his attorney contends,
Baker deserves a lower court hearing on the issue.

Nearly two decades after the U.S. Supreme Court knocked down a race-based
death penalty challenge that relied on a statistical analysis, the mere
granting of a hearing based on Paternoster's report is significant, said
David Baldus, a University of Iowa law professor who has written several
death penalty analyses, including one in Maryland in 2001.

Several states and organizations have commissioned similar studies, and
Kentucky officials passed legislation in 1998 that allowed defendants to
explore before trial whether race was a factor in the decision to seek the
death penalty. But challenges based on statistical analyses are usually
rebuffed before the courts ever reach the meat of the argument, Baldus
said.

"People say, the Supreme Court says there's no problem, so therefore,
there's no problem," Baldus said. "Getting to a hearing is a major
enterprise."

Ripe for review

But the time is ripe for the country's highest court to revisit that
decision, death penalty opponents say. The current justices have shown a
willingness to reverse course on capital punishment, they say, noting a
recent decision to end executions of defendants who were under 18 years
old when they committed their crimes.

"I think a lot of issues have been given closer scrutiny, ... and race is
ripe for that. It needs to be reviewed again," said Richard Dieter,
executive director of the Washington-based Death Penalty Information
Center.

But supporters of capital punishment say the 1987 Supreme Court ruling on
the death penalty and race is still valid today. In the Georgia case, the
court held that general statistics detailing racial disparities are not
enough to show that decision-makers abused the system, which relies on
their discretion, in individual cases.

Studies such as Paternoster's do not show that a defendant was singled out
for capital prosecution because of race but instead illustrate that some
communities are more likely than others to push for death, said Kent
Scheidegger, the legal director of the Criminal Justice Legal Foundation
in Sacramento, Calif.

The Maryland study found that Baltimore County homicides "dominate the
state's capital punishment data."

"The people in more conservative communities elect tougher-on-crime
district attorneys and they form tougher juries," Scheidegger said.
"That's not discrimination. That's local government."

While three other death row inmates have been granted future Circuit Court
hearings based on the Paternoster study, Baker's request was rebuffed by a
Harford County judge last year, a decision that set up his appeal.

"This is a terribly important case, and not just for the inmates under
sentence of death," said Baker's attorney, Gary W. Christopher. "It's
really less about the death penalty than about the integrity we expect
from our criminal processes."

The Paternoster report

There have been other studies that have looked, at least in part, at
racial influences on Maryland's death penalty. But lawyers for death row
inmates say the Paternoster report treads new ground, providing the most
complete statistical look at how the death penalty was applied from 1978
to 1999 and accounting for outside influences that could affect the
numbers.

The University of Maryland study looks not only at who was ultimately
prosecuted for capital murder and sentenced to die but at what happens
early on in the process, starting with a prosecutor's decision to seek the
death penalty, said Julie S. Dietrich, one of several Washington lawyers
representing death row inmate Vernon L. Evans Jr.

"This is the first thorough, comprehensive study that examines the
influence of race and geography in Maryland's death penalty system, and
[Paternoster] concluded there is a great impact," she said.

Evans, like Baker, raised the Paternoster report in a pleading and was
denied a Circuit Court hearing. His appeal was originally scheduled to be
heard with Baker's by the Court of Appeals but has been rescheduled.

Lawyers arguing the case for the state would not comment on the case, but
in a brief filed with the Court of Appeals, the state attorney general's
office argues that the report's findings do not warrant overturning
Baker's death sentence - or even granting him a Circuit Court hearing.

Paternoster never concluded that the race of the defendant matters in
death penalty decision-making, and though the professor found that
defendants accused of killing white victims in Maryland were statistically
most likely to face death penalty prosecutions, he also found that the
most significant factor in whether to seek the death sentence was where
the crime occurred, the state lawyers argue in their brief.

"In Baker's case, as in all capital prosecutions, the State's Attorney
considered a variety of factors in deciding to seek the death penalty,"
the lawyers wrote. "Baker has never asserted, as he cannot, that he was
singled out for prosecution based on his race or that the State's Attorney
displayed a discriminatory purpose in his case."

In Baltimore County, where prosecutors have a policy of seeking the death
penalty in any eligible case that does not rely solely on a co-defendant's
testimony and in which the victim's family is in agreement, prosecutors
have said that race has never been a factor in their decision-making.

Baker, 47, 1 of 8 people on Maryland's death row, was convicted in 1992 of
robbing and fatally shooting 49-year-old Jane Tyson in front of her
grandchildren in the Westview Mall parking lot.

Watching closely

With the Baker arguments pending last week, prosecutors and lawyers who
represent the state's death row inmates said they were watching the
proceedings closely.

3 other inmates have legal proceedings based on the study in the works,
although it was unclear whether Lawrence Borchardt Sr., who was recently
granted a new sentencing hearing, would pursue his.

Prosecutors in the Baltimore case of John Booth-El have asked the Circuit
Court to stay any proceedings related to the Paternoster study until the
high court rules, and Prince George's court officials will probably hold a
hearing this winter in the Heath William Burch case.

"We're clearly very interested to see how the Court of Appeals approaches
the issue," said William Kanwisher, who represents Burch. "In matters of
life and death, the Court of Appeals speaks strongly and loudly."

(source: Baltimore Sun)



LOUISIANA:

McCray deliberations to resume at 10 a.m. today


After 3 hours of closed-door deliberations, jurors told state District
Judge Bonnie Jackson at 12:40 a.m. today that they needed rest before
continuing to discuss whether James "Mitch" McCray should die by lethal
injection or receive a sentence of life in prison.

Jurors started their deliberations in the penalty phase of the 1st-degree
murder trial at 9:30 p.m. Sunday after spending most of the day listening
to witnesses about McCrays mental state. Jury deliberations will resume at
10 a.m. today. Jurors took only two hours Friday to convict McCray on two
counts of first-degree murder of Carlton Michael Pevey and Michael Floyd
Stevens at Mike's Hair Expressions on Hooper Road on June 13, 2001  after
the prosecution argued that McCray planned for days how to rob his
friend's business.

The jury found McCray guilty of killing Pevey, the barber shop owner,
during the robbery and Stevens, a customer, as he walked into the shop
while McCray was on his way out with $300 to $400 in stolen cash.

Family members of the two slain men testified on Saturday about a typical
day turned into a nightmare when they learned of the killings.

Mental health experts testified Saturday that McCray suffers from a mental
illness called schizoaffective disorder. People with the disorder suffer
from mood swings and experience other problems, but can live normal lives
when properly medicated, the experts testified.

Abusing alcohol and drugs can cause people with the disorder to exhibit
extreme antisocial behavior, they said.

McCray's sister Marilyn Hennessey of Walker testified that her family has
a long history of mental illness and substance abuse. She also testified
that her brother has exhibited mental problems for years.

Most of Sunday's testimony came from defense witnesses who described
McCray as a kind and generous man who began experiencing psychological
problems in 1999.

Robert LeBlanc of Covington, the stepfather of McCray's biological
daughter, testified that he, McCray, their wives and children would often
go boating and do other things together, without any problems.

That changed when McCray went to LeBlanc's house at 3 a.m. one summer
night in 1999. LeBlanc testified that a depressed McCray cried as he
talked about how he didn't know where his life was going. LeBlanc said
that after talking for 3 hours he suggested that McCray get professional
help.

"I was concerned about his mental state of mind at the time," LeBlanc
said. "I remember having a feeling he was in trouble."

LeBlanc said that was the last time he saw McCray. The next he heard was
that McCray had been arrested on the 2 counts of murder. LeBlanc said he
was shocked to hear that McCray could have done the shootings because he
never saw McCray act aggressively.

(source: The Advocate)






USA:

The Law and the Golden Rule


Imagine being arrested in a foreign country where you are unfamiliar with
the language, the culture, the legal system or your rights, and never
being allowed to contact a U.S. Consulate for help. That's a nightmare
that Americans overseas could face if the United States continues to be
lax in respecting the rights of foreign nationals arrested in this
country.

In the case of 51 Mexican nationals on death row here, the International
Court of Justice ruled that the United States did an abysmal job of
honoring its obligations under the Vienna Convention on Consular
Relations. The United States, along with 166 other nations, is a party to
the convention, which gives detained foreign nationals the right to access
their consulates. The ICJ, also known as the World Court, said that U.S.
courts must reconsider these cases to see whether the failure to inform
the Mexican nationals of their rights contributed to their convictions and
sentences.

Earlier this term, the U.S. Supreme Court decided to review the case of
Jose Medellin, a Mexican national sentenced to death in Texas, to
determine whether U.S. courts are indeed bound by the World Court's
ruling. While the Supreme Court was considering the case, President Bush
asked state courts to honor the international tribunal's ruling. Alas, the
president's action led the Supreme Court to dismiss the Medellin appeal.
The court felt that the states are allowed some deference to decide how
the president's request affects the treatment of the Mexican nationals'
cases, if at all.

It's unfortunate that the Supreme Court is relying on the good graces of
individual states - including California, which has the most Mexican
nationals on death row - to fulfill a U.S. treaty obligation.

Disappointingly, Texas officials have announced that they will challenge
the president's directive.

The states should follow the president's lead and comply with
international law instead of seeking technical excuses s to circumvent the
consular rights of foreign nationals. State courts should grant new trials
and sentencing hearings in those cases where the assistance of the Mexican
Consulate would have improved the quality of the defense, especially in
uncovering evidence that could have persuaded jurors to vote for life
instead of death.

Given the general lack of adequate resources for indigent capital
defendants in the U.S., and Mexico's commitment to protecting the rights
of its citizens facing the death penalty, consular assistance might have
made a difference in plenty of cases.

Equally important, prompt compliance with the World Court's ruling will
send a signal to the world that this country doesn't hold itself above
international law, and that could help Americans in distress overseas.

(source: Editorial, Los Angeles Times)