[Deathpenalty]death penalty news----ARK., N.Y., PENN., N.C.

[Rick Halperin]

June 17


ARKANSAS----new execution date

Governor sets Newman's execution date


A July 26 execution date for Rickey Dale Newman has been set by Gov. Mike
Huckabee.

The governor signed the proclamation Thursday.

The proclamation says Newman's conviction and sentence have been reviewed
and affirmed by the state Supreme Court and that all stays of execution
for the convicted killer have been dissolved.

Newman has been on death row for the February 2001 stabbing death of Marie
Cholette, whose body was found under a makeshift tent in a wooded area
where transients camped in Crawford County.

Newman was to be put to death on Sept. 28, but the state Supreme Court
issued a temporary stay on Sept. 24, after lawyers filed a motion on
behalf of Newman's aunt.

Earlier this month, at Newman's request, the high court in a one-line
order lifted the stay.

Since his conviction, Newman has insisted he's ready to die and fired his
lawyers for trying to stop his execution.

The Supreme Court issued the temporary stay after lawyers submitted a
motion on behalf of Betty Moore, Newman's aunt. The justices said the
lawyers did not have standing to seek a stay, but they granted a temporary
stay after lawyers argued that Moore had standing as a "next friend" of
the convicted murderer.

In November, Newman apparently had a change of heart and decided to fight
his execution. He asked that a briefing schedule be vacated so attorneys
from the federal Public Defender's Office could raise whatever claims are
available to prove his innocence. However, in December he asked that the
briefing schedule be dismissed and that the stay of execution be lifted.

(source: Arkansas News)






NEW YORK:

N.Y. High Court Reaffirms Its Representation Test ---- Ineffective
assistance standard found higher than federal


The New York Court of Appeals left no question Tuesday about its
continuing preference for the state's standard for establishing
ineffective assistance of counsel over that used in federal courts.

"Our state standard ... offers greater protection than the federal test,"
Chief Judge Judith S. Kaye wrote for the unanimous court in People v.
Caban, 98.

The court's proclamation on effective representation standards came at the
tail end of a decision that dealt primarily with the admissibility of
hearsay statements of co-conspirators. But its comment was especially
timely in the light of recent federal court action.

On May 24, the 2nd U.S. Circuit Court of Appeals in Henry v. Poole,
03-CV-884, ordered a new trial for a defendant whose conviction the state
Court of Appeals had affirmed. The federal court concluded that the state
court's application of its representation standard to the facts of that
case was contrary to constitutional standards established by the U.S.
Supreme Court.

However, Eastern District of New York Judge Jack B. Weinstein, in Barclay
v. Spitzer, 02-CV-2184, recently articulated a continuing preference for
the New York standard, as opposed to the federal standard, when a defense
attorney admits negligence.

Tuesday, the Court of Appeals began its analysis with Strickland v.
Washington, 466 US 668, the 1984 case where the U.S. Supreme Court
established a two-part test for a defendant to prevail on a federal claim
of ineffective assistance. Under that standard, the defendant must show
that the attorney's performance was deficient and that the defendant was
prejudiced by poor lawyering.

Kaye said that New York's standard does not require a showing of
prejudice, although such a showing would be significant.

"Thus, under our State Constitution, even in the absence of a reasonable
probability of a different outcome, inadequacy of counsel will still
warrant reversal whenever a defendant is deprived of a fair trial," Kaye
wrote. She made clear that since New York has a higher standard, when that
standard is met -- as it was in People v. Caban -- the federal standard is
also met.

The case involved a man, Carlos Caban, who was found guilty of conspiracy
to commit the murder of a rival drug dealer. Caban was convicted largely
on the testimony of George Castro, who worked for the defendant dealing
drugs. Castro testified that he was packaging cocaine at Caban's house
when the defendant announced that a rival "needed ... to be killed" and
offered a $5,000 reward. The witness said that Caban's brother accepted
the challenge while another man offered to provide the gun.

Caban was convicted of 2nd-degree conspiracy and sentenced to 8-1/3 to 25
years in prison. On appeal, he challenged the admissibility of the hearsay
evidence and argued that the jury should have been charged that Castro was
an accomplice.

The Appellate Division, 1st Department, affirmed the conviction in a 3-2
decision with 4 separate opinions. One of the dissenters, Justice Richard
T. Andrias, granted leave, and the Court of Appeals yesterday affirmed.

"Defendant argues that hearsay statements of co-conspirators are
admissible only when a prima facie case of conspiracy is established
independent of the statements, and maintains that the People failed to
establish such a case here," Kaye wrote. "We reject that claim."

STANDARD NOT MET

The ineffective assistance argument stemmed from the fact that Caban's
trial attorney successfully requested an instruction that if the jury
found that Castro was an accomplice, then his statement would require
corroboration. However, the attorney did not ask the court to charge that
Castro, as a matter of law, was an accomplice. That, Caban argued on
appeal, constituted ineffective assistance. The Court of Appeals
unanimously disagreed.

"Because the evidence adduced at trial did not establish that Castro was
an accomplice as a matter of law, counsel's failure to request that the
jury be charged that he was did not constitute ineffective assistance,"
Kaye wrote.

The court, without making new law, reiterated that in New York to prevail
on an ineffective assistance claim a defendant must show that the attorney
failed to provide "meaningful representation"; that a single error can
constitute ineffective assistance, but only when the error "is
sufficiently egregious and prejudicial as to compromise a defendant's
right to a fair trial"; demonstrate the absence of any strategic
explanation for the attorney's performance; prove, when citing ineffective
assistance for failure to make a motion, that the motion had a reasonable
chance of succeeding.

Caban had sought relief on the ineffective assistance claim under both the
federal and state constitutions. But in finding that the state
Constitution is more protective, and that Caban could not meet the higher
state criteria, the court reasoned that the defendant necessarily could
not meet the lower federal standard.

Chief Appellate Attorney Peter D. Coddington of the Bronx District
Attorney's Office argued for the prosecution. Robert J. Boyle of Manhattan
appeared for the defendant.

(source: New York Law Journal)






PENNSYLVANIA:

Jailhouse rockers / The elderly 'lifers' proposal is worth considering


In Pennsylvania, life imprisonment means life. It's a policy with broad
support and it takes brave souls to suggest that the public desire for
unrelenting justice might not be sound policy as it applies to old or
infirm lifers. But some brave souls are suggesting just that.

They include some -- not all -- members of the Advisory Committee on
Geriatric and Seriously Ill Inmates. After two years' work, the 47-member
committee has prepared a draft report for a bipartisan legislative task
force created by the Joint State Government Commission. A 2002 Senate
resolution called for the study.

There is much to digest in the 255-page report and the final version is
not due until next Wednesday. But it is clear already that in some
quarters digestion of the report is going to cause dyspepsia. The advisory
committee could not itself agree unanimously on its recommendations.

The most controversial item -- one that some members of the committee even
thought was beyond its original mandate -- is the suggestion to amend
Pennsylvania's sentencing laws for those convicted of 1st-degree and
second-degree murder to allow a judge or jury to consider the option of a
sentence of life with the possibility of parole when the prisoner has
served 25 years and has reached the age of 50.

Of course, it is easy to say that these convicts did the crime, so let
them do the time. But eventually this becomes absurd -- and expensive.

The graying of the prison population is a growing problem. As the report
points out, the number of prisoners 50 years and older has increased from
370 in 1980 to 5,082 in 2004. Not all of these are lifers. A Department of
Corrections spokesperson said this week, that 1,100 of today's 4,100
lifers are 51 and over.

Older prisoners are more expensive. The report says it costs about $30,000
to accommodate a prisoner, but three times that when inmates are over 49.

Of course, it isn't all about economics. Victims' rights advocates made
the case forcefully to the committee that those criminals sentenced to
life sentences be kept behind bars no matter what their age or infirmity.
Those feelings demand respect, and at first blush we might agree that 50
is quite young for a serious felon to be paroled into society,
notwithstanding the consensus that criminals become much less a threat as
they grow older.

Something else gives us pause. The Post-Gazette, in its long opposition to
the death penalty, has often argued that because "life means life in
Pennsylvania" the ultimate penalty is not needed.

Yet logic and humanity animate these recommendations -- and so our
preference would be to toughen the suggestions, not throw them out
completely.

If we were talking about 75-year-old inmates who have served 50 years, the
case grows stronger for life sentences with parole because then vengeance
starts to seem unreasonable.

Eventually, it will be up to the General Assembly to decide such
questions. If lawmakers fear the perception of being soft on crime, they
still shouldn't be hard on common sense and dismiss this report out of
hand. There is something to be said for giving inmates an incentive,
however remote, to stay well behaved and not slip into despair and
spiritual death. And the problem isn't going away.

(source: Editorial, Pittsburg Post-Gazette)






NORTH CAROLINA:

N.C. legislators rework bill on death penalty moratorium


Jerry W. Conner shot a Gates County store clerk in the neck in 1990, then
he raped and killed the clerks 16-year-old daughter in the store. He
emptied the cash register and left his victims to die.

Wade L. Cole shot the mother of his 2 children and stabbed her more than
100 times in Camden County in 1988. When the woman's mother tried to break
up the fight, Cole fatally stabbed her in the chest.

Both men were convicted for the crimes and sentenced to die by lethal
injection. Both are on death row.

Conner is nearing the final stages of appeals and is expected to be put to
death this year or next year, District Attorney Frank Parrish said.

A bill in the North Carolina House of Representatives, though, could
freeze the process and possibly keep Conner and Cole, as well as the 174
other inmates on death row, alive longer.

Concerned that innocent people could be put to death, legislators are
considering a bill that would halt all executions for 2 years while a
commission studies the way the state sentences and executes people
convicted of capital murder. Trials, sentencings and convictions would not
be affected.

The bill's text takes up concerns about the quality of attorneys assigned
to capital cases, the possibility of some prosecutors being more inclined
than others to pursue the death penalty, the fairness of death sentences,
prosecutorial cheating and discrimination.

The bill is expected to come to a vote soon and has already divided the
120-member House in half.

Supporters say a moratorium and study are needed to ensure that the system
is fair, while detractors say the bill would delay justice and undermine
public confidence in the court system.

When the bills supporters saw they were just a few votes short of passing
the legislation on June 1, it was moved into a committee because it would
require state money to fund the study, said one of the bills sponsors,
state Rep. Joe Hackney, a Chapel Hill-area Democrat.

Legislators are now reworking the bill to appeal to those who would oppose
it, said Hackney, the Majority Leader.

The bill is expected to be up for a vote this week or next when the House
discusses the state budget, said Julie Robinson, a spokeswoman for House
Speaker James Black, D- Mecklenburg.

If the bill passes the House, it will be sent to the Senate, which
approved a similar moratorium in a 2003 bill that died in the House.

Black plans to launch a study of the death penalty regardless of whether
it passes, Robinson said.

Gov. Michael F. Easley supports the death penalty and does not see a need
for a moratorium, according to a statement from his office. Easley has not
announced whether he would veto such a bill.

The idea of stopping executions and studying the system apparently has
gained some public support in North Carolina. The North Carolina Coalition
for a Moratorium cites an April 2004 poll by Doble Research Associates
showing that 63 percent of North Carolinians support a moratorium while
the state studies its capital punishment system.

And local governments for 40 towns and counties have passed resolutions
for a moratorium, according to the coalition.

The coalition is a group of organizations, associations and citizens
across the state that supports the two-year suspension of executions while
a study is done. Its members include Democrats and Republicans, and
supporters and opponents of the death penalty.

Hackney said the bills supporters are particularly troubled by two
high-profile murder convictions that were recently overturned. Both men,
Darryl Hunt and Alan Gell, regularly attend House meetings on the
moratorium.

Hunt was convicted in Winston-Salem in 1985 for a rape and murder that DNA
evidence later proved he did not commit. After another inmate confessed to
the crime, Hunt was released and granted a formal pardon of innocence from
Easley in 2004.

He had spent 18 years in prison.

Gell was sentenced to death for a 1995 murder in Aulander that he did not
commit. He was released in 2003 after his 2nd trial, in which jurors
learned that witnesses had lied in Gells 1st trial and that evidence was
withheld from his defense attorneys.

"These things happened, and we want to know why," Hackney said. "It would
be disastrous to be executing people while we were reviewing what went
wrong."

Hackney said supporters are concerned about inmates who have been
sentenced to death before certain reforms, including improvements in
requirements for defense attorneys, mandatory opening of prosecution files
and a ban on executing people with mental retardation.

"We have 176 people on death row, and a lot of them were put on death row
before there were a number of reforms," he said.

Opponents of the moratorium, including Parrish, say the appeals process
adequately weeds out innocent people. They worry that a moratorium could
delay justice and erode public confidence in the court system, Parrish
said.

A moratorium "further delays justice for the families of homicide victims
who have waited many, many years in every instance," Parrish said.

Parrish said the average wait for an inmate to be executed is 8 to 15
years after conviction. Inmates can appeal their convictions, and 47
judges and the governor's office review all capital cases, he said. "There
has always been a moratorium in a practical manner in the imposition of
the sentence because of the length of time between when the sentence is
imposed in court and when it is carried out," Parrish said.

Parrish spoke against the bill on May 30 as president of the North
Carolina Conference of District Attorneys. Parrish welcomes a study of the
death penalty, but he does not want a moratorium.

Hackney said that even if the moratorium is approved, the death penalty is
not likely to ever be repealed.

"The public strongly supports the death penalty," he said.

The state executed 362 people from 1910 to 1961. There were no executions
in North Carolina from 1962 to 1983 while the state and federal government
adjusted the process. The state has executed 36 people since 1983.

(source: The Virginian-Pilot)