[Deathpenalty]death penalty news----CALIF., OHIO, CONN., N.C.
rhalperi at mail.smu.edu
Thu Mar 3 10:38:31 CST 2005
Is Justice Done in 2 Versions?----A California murder case in which 2
juries were told differing accounts of events raises concerns about
fairness, ethics and tactics.
Los Angeles prosecutor Steven J. Ipsen, arguing his first murder case in
1990, told a jury that Tauno Waidla had used a hatchet to inflict "the
death blow" that killed a woman in her North Hollywood living room. Waidla
was sentenced to die.
Several months later, the same prosecutor told a different jury that
Waidla's accomplice, Peter Sakarias, had "finally ended" the life of the
victim, Viivi Piirisild. Sakarias also was sentenced to die for the
The lethal blow could not have been inflicted by both men. Did the
prosecutor mislead the jury? If so, should the death sentences be thrown
More broadly, how far should prosecutors be allowed to go in presenting
conflicting facts to different juries?
Both the U.S. Supreme Court and the California Supreme Court are
considering that issue. In both cases, death sentences sit in the balance.
The California court could rule in the Piirisild murder cases as early as
The U.S. Supreme Court is reviewing an Ohio case involving 2 men who broke
into a home, killed a woman and wounded her husband.
In that case, in which the court is expected to rule later this year, a
prosecutor who argued that one of the defendants had fired the fatal shots
accepted a guilty plea from him. The man received the death penalty. In a
later trial, the prosecutor told a jury that the co-defendant had fired
the fatal shots. The co-defendant received a life sentence.
Courts and legal ethicists have split on the question of whether such
tactics are proper.
Prosecutors, as representatives of the government, are responsible for
more than just advocacy. Legal ethics say they must seek justice and
truth, not just victories.
Because of that, some courts and ethicists say prosecutors should not take
contradictory positions knowing that one must be false, particularly in a
death penalty trial. A prosecutor is more likely to win a death sentence
if he or she can show that the defendant was directly responsible for the
"The prosecutor cannot argue for an inference he knows is false," said
Stephen Gillers, a professor at New York University School of Law who
specializes in legal ethics.
"Defense lawyers can," Gillers said, but "the prosecutor has an obligation
to an accurate verdict. The defense lawyer's obligation is to win."
Others say that prosecutors should be free to make the most convincing
case possible using the available evidence.
"A prosecutor is entitled to ask different juries to draw different
inferences provided both arguments are made in good faith and not based on
any false evidence," California Deputy Atty. Gen. Michael C. Keller argued
before the California Supreme Court.
No one knows for certain how often prosecutors blame different defendants
for the same criminal act.
University of San Francisco law professor Steven Shatz, who has reviewed
cases of inconsistent arguments in California, found 14 trials during the
last couple of decades in which prosecutors made inconsistent arguments
about the roles played by co-defendants.
"I was quite surprised to find out how often it happens," Shatz said.
In some cases he reviewed, prosecutors presented substantially the same
evidence at both trials but argued that the juries should draw different
inferences. In others, prosecutors provided different evidence.
Such tactics appeared to bother several justices of the California Supreme
Court during a hearing in December on the Los Angeles cases.
"In each trial, there is a selective manipulation of the evidence - to
create a false impression that the case is a done deal," complained
Justice Joyce L. Kennard.
Other justices argued that it was the defense lawyer's job to police the
"What we have here is a horrendous murder - as bad as any I have seen -
and 2 defendants working in concert to accomplish that murder," Justice
Marvin R. Baxter said. Defense lawyers could have "put on a case" to
expose any inconsistent arguments, he said.
Defense lawyers, however, note that doing what Baxter suggested is not
always possible because of the rules that govern trials.
The trials for Piirisild's murder show how a prosecutor can create
different impressions using the same evidence.
The 1988 killing of Piirisild, 52, stunned Estonian immigrants in Los
Piirisild, an Estonian community activist, and her husband had met Waidla
and Sakarias through a group opposed to Soviet occupation of the Baltic
At first the couple warmly embraced the young men, who had defected from
the Soviet Army and escaped to West Germany.
The Piirisilds invited Waidla to live with them. For a year, he did jobs
around the house in return for room and board. Sakarias visited.
Eventually, the Piirisilds began to feel alarmed by Waidla's behavior,
court records say. Waidla demanded money for the work he had done and
threatened to report the couple for construction done without a permit.
The Piirisilds evicted him.
On a July morning when the Piirisilds were not at home, Waidla and
Sakarias, then 21, broke into the house. When Piirisild returned, the two
men attacked and killed her, stole some jewelry and credit cards, and
fled. They were arrested weeks later near the Canadian border.
The evidence, including the defendants' statements to police, indicated
that Waidla had attacked first, hitting Piirisild with a hatchet when she
entered the door. Sakarias then stabbed her with a knife. The men later
dragged Piirisild from the living room to her bedroom. Sakarias told
police he then hit her twice with the hatchet.
Dr. James K. Ribe, the deputy medical examiner who examined Piirisild's
body, said she died from a combination of her wounds.
But which wound was the fatal blow? The massive sharp-edged hatchet blow
and the stab wounds both were potentially fatal, Ribe said.
There also was an abrasion on Piirisild's back consistent with her having
been dragged. Ribe believed the abrasion occurred after death.
During the 1st trial, prosecutor Ipsen argued that Waidla had wielded the
hatchet - "the more devastating of the instruments." He suggested that
Waidla had delivered all of the sharp-edged hatchet blows, including "that
deathblow" that killed Piirisild in her living room, according to court
The deathblow was the "critical point" that jurors should consider in
deciding whether Waidla should live or die, the prosecutor went on. And he
reminded the jurors about the abrasion on the victim's back.
"We know she was dead in the front room of her home in her living room. We
know she did not live to see or be dragged back into her bedroom because
the coroner testified and told you that the burn mark on her back, as she
was dragged - was a postmortem, or an after-death wound," he told Waidla's
Moreover, he argued, Waidla was "the dominant person between himself and
Mr. Sakarias" - "the planner."
About 8 months later, Sakarias went to trial.
This time, Ipsen presented the evidence very differently: Piirisild was
still alive when she was dragged to the bedroom, he told the jury.
Sakarias, not Waidla, was responsible for all of the sharp-edged hatchet
wounds, which he inflicted in the bedroom, Ipsen said according to court
And, according to court records, he told jurors, "absolutely no evidence"
showed that Waidla was the dominant personality. "In every respect, Peter
Sakarias was a partner of Tauno Waidla," he said.
This time, Ipsen did not mention the abrasion on the victim's back. He
said he no longer believed that the abrasion was significant. Sakarias'
lawyer, Deputy Public Defender Daniel Blum, did not ask about it.
In an interview, Ipsen said his view of the evidence had changed between
the 2 trials.
"There were multiple fatal blows, any one of which could have killed her,"
said Ipsen, president of the Los Angeles Deputy District Attorneys Assn.,
a vice president of the State Bar of California and a board member of
Crime Victims United, a victims' rights group.
"They plotted the murder together. They were one," he said.
Ipsen also denied telling both juries that each defendant had inflicted
all the hatchet cuts, although the state attorney general's office, in its
court filings, has conceded that his arguments to the jury "suggested"
When the cases reached the California Supreme Court in a constitutional
challenge to the inmates' death penalties, defense lawyers contended that
Ipsen's arguments had violated the defendants' rights. The justices
appointed Los Angeles Superior Court Judge Thomas Willhite Jr. as a
special referee to determine what had happened at the trials.
Willhite decided that Ipsen had made "an intentional strategic decision -
to maximize the portrayal of each defendant's culpability."
At the time of the 2nd trial, Ipsen may not still have believed that
Piirisild died in the living room, but he had "strong reason" to believe
it and "the great weight of evidence" supported it, the judge found.
The judge presented his findings to the Supreme Court but did not make any
recommendation about how the cases should be resolved.
California Atty. Gen. Bill Lockyer and the Los Angeles district attorney's
office have urged the state high court to uphold the death sentences,
arguing that there was plenty of evidence supporting death verdicts even
without Ipsen's arguments.
Deputy Dist. Atty. Hyman Sisman, who is representing the district
attorney's office as a party in the litigation, said the sentences should
stand because Piirisild could have died from wounds inflicted by either
Sisman nevertheless said he personally would have argued the cases "a
Ipsen is a "much more flamboyant kind of guy," Sisman said. "I probably
would have said that it doesn't matter whether the cause of death was the
ax crushing the skull or the knife piercing the heart."
Lawyers for the 2 defendants contend that Ipsen's arguments amounted to
"The evidence cannot be accurate in both trials because the crime could
have only occurred in one way: either the scenario the prosecutor asserted
at Waidla's trial or the exact opposite scenario at Sakarias' trial,"
Waidla's lawyers told the Supreme Court.
Legal ethicists say prosecutors who are uncertain about who did what
during a crime should confess the ambiguity to a jury.
"There is no way you can believe two inconsistent things at once," said
Fordham University School of Law professor Bruce Green.
Based on Willhite's findings, the California Supreme Court could overturn
both death sentences or leave them intact. Or the court could order a
retrial on the sentence for Sakarias but permit Waidla's death penalty to
stand on the grounds that evidence indicates that Waidla probably
inflicted the killing blow.
That third possibility troubles some legal scholars.
"The D.A. knows better than anyone else, and if the D.A. can't pick the
truth, how is the appellate court in the position to do it?" asked the
University of San Francisco's Shatz.
Crime a Slippery Slope in Election----Hahn says numbers have fallen. Parks
cites a dip on his watch; Hertzberg points to some areas' increases. None
is wrong, just selective.
When the candidates vying to be Los Angeles' next mayor talk about crime,
they often seem to be describing different cities.
Mayor James K. Hahn describes steep declines in crime rates and a
resurgent police force. His opponents cite rising crime in some
neighborhoods and Hahn's failure to come even close to the 1,000
additional LAPD officers he promised voters 4 years ago.
Finding statistics to back their conflicting claims comes down to timing.
Hahn starts counting in 2002 - his 2nd year in office and the year he
forced Bernard C. Parks out as police chief.
Using that year as his baseline, Hahn touts double-digit drops in violent
crime and homicides. The improvements came from his "tough choices," he
Parks, now a city councilman who is running against Hahn, prefers to talk
about 1998 and 1999. In that period, under his watch, the city - and much
of the rest of the nation - posted the lowest crime rates in years. Crime
then was as low or lower in many categories as it is now, he says. He
doesn't mention that crime rates started rising before he lost his job.
Bob Hertzberg has taken a more microscopic approach, posting select
figures on an interactive map on his campaign website. His figures
emphasize increases in some crime categories even in neighborhoods where
overall crime is down.
Although none of the statements are untrue, all are incomplete. The
dueling numbers underscore how politicians, who understand the power of
public safety concerns to get out the vote, try to shape public
perceptions to their advantage.
Overall, serious crime citywide in 2004 was less than in 1998 - the best
year under Parks. Last year, 162,252 serious crimes - a category that
includes homicides, robberies and burglaries - were reported. In 1998, the
LAPD confronted 167,087 serious crimes.
Those who study crime trends caution that comparing numbers from year to
year can mislead. Meaningful change can be tracked only over longer
periods, they say. For example, in 2004, the number of homicides was flat
compared with 2003, although the number of shootings declined more than
"The problem is when the crime rate goes down, they like to claim too much
credit, and when the crime rate goes up, there is too much finger-pointing
and blame," said James Fox, professor of criminal justice at Northeastern
University in Boston.
What drives crime up or down has long been a matter of debate. Most
criminologists say police are only one factor among many, such as the
economy, joblessness and quality of education.
Politically, however, the police force is the factor for which voters are
most likely to hold elected officials accountable. Hahn has hung his
record as a crime-fighter - and much of his reelection chances - on his
selection of William J. Bratton to take over a demoralized LAPD tainted by
the Rampart Division corruption scandal.
Hahn's reliance on Bratton to boost his campaign is no accident. The chief
remains considerably more popular than the mayor. In a Times poll taken
Feb. 22-27, 63% of the registered voters surveyed said they approved of
how Bratton was handling his job; 20% disapproved.
When Hahn took office in June 2001, the LAPD was losing officers at an
At its largest, in 1998, the department had 9,777 officers. That number
was reached through an aggressive effort by then-Mayor Richard Riordan to
add 1,500 new officers (half of what he had promised when he first ran).
But by the time Hahn became mayor, the force had fallen to 9,018 sworn
officers, according to police officials. Police union officials and others
have said that Parks' unpopularity among officers was a factor. Officers
who left the department cited better work schedules in nearby
jurisdictions, a cumbersome LAPD disciplinary system and low morale.
On the day Parks left the job in May 2002, there were 8,867 sworn
As of Wednesday, the force was up to 9,131 officers. Arrests, which had
fallen, have risen by about 18% since 2002.
Though Hahn and Bratton can claim to have reversed the downward trends,
the overall gain is just slightly more than 100 officers since the day
Hahn became mayor, far less than the 1,000 additional officers he promised
during his campaign.
Bratton has argued that the city ultimately needs 12,000 officers to be
Politicians have struggled for years to get the political backing and
money to greatly expand the force. Currently, the public's approval of
Bratton has not translated into support for a goal that he and the mayor
have sought - increasing the city sales tax to pay for more officers.
In the Times poll, only 26% said the city needed to hire 1,200 more
officers and raise taxes to pay for them - the proposal Hahn tried to
place on the ballot this year. A majority, 52%, said the city needed more
police but could afford to meet that goal without the tax increase. An
additional 18% said more police were not needed.
Hahn's opponents agree that a new tax is not needed to expand the force
and have offered other strategies. They charge that the mayor has done too
little to find more money in the city's $5.3-billion budget to expand law
Hertzberg has said that he will squeeze more officers out of the existing
city budget, noting that revenue is expected to rise in coming years.
Councilman Antonio Villaraigosa says the city can expand the force through
budget savings and his plan to borrow against future tax refunds from the
state. He and Hahn have said they each would put 720 officers through the
Police Academy in the next year if elected. Police officials say that
number is about the academy's annual capacity.
Parks has focused his criticism on flexible work schedules approved by
Hahn. The changes, which the police union pushed hard for, allow officers
to work either three 12-hour shifts or four 10-hour shifts each week.
Parks says those schedules impede law enforcement.
Assistant Chief George Gascon, who runs daily operations, said the shifts
had not diluted his ability to keep officers on the streets. Ultimately,
he said, retaining officers who might otherwise take jobs elsewhere
outweighs other concerns.
"It's a huge retention factor, if you factor in how much it costs to hire
and train a police officer," Gascon said. "So, as an employer, we have to
find a balance between the realities of the marketplace and our needs to
(source for both: Los Angeles Times)
Lawyer barred from visiting death row inmate who tried to escape
An attorney stopped from taking items including black electrical tape onto
Ohio's death row the day before her one-time client tried to escape has
been barred from the prison, the state said Wednesday.
Margery Koosed will not be allowed to visit Richard Cooey as an attorney
beginning Wednesday, said Andrea Dean, spokeswoman for the Department of
Rehabilitation and Correction.
She could apply to be a normal inmate visitor if Cooey requested her, but
that would require her undergoing a different approval process, Dean said.
A federal appeals court removed Koosed from Cooey's case in the summer of
2003 and a new attorney was appointed to represent him. He was 12 hours
from execution in July 2003 when a federal judge granted his new attorney
more time to study the case.
But Dean said the prison system learned that Koosed was not Cooey's
attorney of record from an Associated Press story Tuesday.
Cooey and another inmate used black tape to help build a homemade ladder
as part of the escape attempt. The tape and a sewing kit the inmates were
found with were similar to items Koosed had with her when she tried to
visit Feb. 2, but they could not have been the same items since she was
prohibited from bringing them in, Dean said.
Koosed has said she didn't know anything about the escape. A message was
left seeking comment about the prison announcement.
Also Wednesday, Dean said prison officials have discussed moving death row
to the state's supermaximum security prison in suburban Youngstown.
She said there are no immediate plans for such a move, and it was
discussed before the Feb. 3 escape attempt.
Attorney General Jim Petro revealed the proposed move Wednesday when asked
about the escape. He said it's in the talking stages.
The supermax facility "is different in its construction, it's a state of
the art, supermaximum security prison," said Petro, a Republican running
for governor next year. "It's not a bad idea to examine that utilization
for the most dangerous of our convicted criminals."
The facility, called the Ohio State Penitentiary, opened in Youngstown in
1998. It holds about 465 inmates considered unmanageable in less secure
Cooey, 37, was sentenced to die for raping and killing two University of
Akron students in 1986.
His new attorney, public defender Gregory Meyers, questioned how prison
officials could not have known he was representing Cooey.
"They had to know," Meyers said Wednesday. "That's the only way I got in."
Meyers said Koosed worked with Cooey on issues still in the state court
during the summer of 2003, while Meyers handled the federal appeal. The
state case is now closed, Meyers said.
"The state litigation is over, so whether or not Marge has a reason to
claim an attorney-client relationship with Cooey is between Marge Cooey
and the prison," Meyers said.
Prison officials blamed "gross deficiencies in supervision" for the escape
attempt, and on Wednesday reprimanded Mansfield Correctional Institution's
top official, Warden Margaret Bradshaw. Death row is at the Mansfield
The letter of reprimand said there was "a notable lack of mid-management
supervisory presence in the entire death row unit."
"As a Warden it is necessary to have a system in place to ensure an
incident of this serious nature could not occur," the letter said.
"Additionally you are expected to lead by example, use good judgment,
properly supervise and enforce work rules."
Bradshaw declined to comment.
On the Net: Mansfield Correctional Institution:
State won't retry inmate in slaying
State prosecutors have dropped efforts to retry an Ohio prisoner on
potential death-penalty charges stemming from the slaying of a bartender
during a 1984 robbery.
At the state's request, Hamilton County Common Pleas Judge Richard Niehaus
on Monday dismissed aggravated murder charges against Derrick Jamison, 44.
His retrial in the death of Cincinnati bartender Gary Mitchell was to
begin this week.
A federal judge in 2000 ordered a new trial for Jamison, ruling that
Hamilton County prosecutors withheld eyewitness statements and other
evidence that could have been used to defend him. The 6th U.S. Circuit
Court of Appeals upheld the decision in 2002.
Several witnesses from the original 1985 trial have died, prosecutors
said. Jamison was convicted of aggravated murder, aggravated robbery,
robbery, receiving stolen property and carrying a concealed weapon.
He was sentenced to death on the aggravated murder conviction.
Charles Howell, a co-defendant who had initially identified Jamison as the
killer, was in court Monday and testified he couldn't remember anything
about the August 1984 robbery and slaying. Howell was convicted and has
served his sentence on charges from the robbery.
His comments left prosecutors with little to support the charges at a
retrial, defense lawyer Elizabeth Agar said Tuesday.
Jamison won't be leaving prison anytime soon. He was convicted of a series
of violent robberies in the early 1980s and is serving up to 105 years in
prison. Jamison has been in state prison since 1985 and isn't eligible for
parole for 10 years.
Niehaus said Tuesday that he still considers Jamison dangerous. He said he
plans to urge the state parole board to keep Jamison locked up for life.
(source for both: Associated Press)
Caucus aims to overturn death penalty
The uphill fight to repeal Connecticuts death penalty gained some momentum
Wednesday with new support from minority lawmakers and predictions that a
repeal bill will survive a key committee vote next week.
2 strong repeal advocates, state Reps. William R. Dyson, D-New Haven, and
Michael P. Lawlor, D-East Haven, said they now believe there will be
enough votes to get an anti-death penalty bill through the legislatures
Judiciary Committee. Lawlor is co-chairman of the panel.
Lawlor and Dyson, a member of the legislatures Black & Puerto Rican Caucus
which announced that groups support for repeal, said they believe
sentiment may be shifting in Connecticut and nationally against the death
"I still dont think the votes are there in both [House and Senate] to
repeal it, let alone override a veto," Lawlor warned. "But you never
Gov. M. Jodi Rell has refused to grant convicted serial Michael Ross a
reprieve from his death sentence and has warned she would veto any repeal
bill passed by the General Assembly.
Ross execution was originally set for Jan. 26 but has been repeatedly
postponed because of legal issues and he is now tentatively scheduled to
die by lethal injection May 11. Even lawmakers who strongly support the
death penalty have expressed mounting frustration about the apparently
endless legal delays in the case.
The U.S. Supreme Court this week ruled that executing people under the age
of 18 is unconstitutional, noting in its decision that the United States
is the only nation in the world that still sanctioned the execution of
minors. Connecticut does not allow the execution of minors.
Dyson and several other members of the Black & Puerto Rican Caucus said
their group opposes the death penalty because of moral, constitutional and
ethical issues. "Its been demonstrated across the country that we have had
people on death row who were not guilty," Dyson said.
State Rep. Juan Candelaria, D-New Haven, said one issue for the caucus was
the racial "disparities of the people sent to death row."
The ranking Republican on the judiciary committee, state Rep. Robert Farr
of West Hartford, said he agrees the panel will most likely vote out a
repeal bill next week.
(source: Bristol Press)
Lawyers claim prosecutors withheld information in death case
A man sentenced to die next week for a brutal 1991 killing should not be
executed while the courts consider whether prosecutors improperly withheld
information about a deal struck with one of their witnesses, defense
They also argued Wednesday that his crime does not rise to the level of
other capital punishment cases.
William Dillard Powell, 58, was sentenced to death in 1993 for killing
Shelby convenience store clerk Mary Gladden as he tried to rob her for
drug money. Powell was high on cocaine and beat Gladden to death in a
panic because she fought back, his lawyers said.
He is scheduled to be executed on March 11 in Raleigh. His lawyers want
the sentence reduced to life in prison.
On Wednesday, Cleveland County District Attorney Bill Young and 2 retired
Shelby police detectives visited with Gov. Mike Easley for about 30
minutes during a clemency hearing. Several people representing Powell then
met in Easley's office for about an hour.
The detectives said Gladden was beaten to death with a tool used to repair
tires. Detective Dale Ledbetter said it was a brutal attack.
"It was probably the most heinous crime I had ever investigated," said
Ledbetter, who worked on the force for 27 years.
Young, who prosecuted the case, declined to comment.
Gladden's family members met later with an attorney for Easley. They also
didn't want to talk with reporters.
Powell's lawyers said during an afternoon news conference that they plan
to argue that the courts haven't adequately considered a claim of
prosecutorial misconduct discovered last week.
Young failed to reveal a deal with Powell's girlfriend, Lori Yelton
Donohue, in exchange for her testimony at the 1993 trial. Prosecutors are
required to tell the defense about any promises made to witnesses.
"We think it's a big deal," Powell attorney David Teddy said. "The point
is (Powell's trial lawyer) was deprived of the opportunity to question
Lori Yelton (Donohue) on this question."
The alleged prosecutorial misconduct was discovered a week ago when Teddy
interviewed Donohue in preparation for Powell's clemency hearing. Donohue
told Teddy a felony larceny charge against her was dismissed three months
after she testified, according to her affidavit.
Last week, a judge refused to conduct a hearing about Donohue's alleged
deal. That ruling will be appealed to the state Supreme Court, lawyer Bill
The lawyers also intend to argue that Powell's case does not warrant a
death sentence by today's standards, though it probably would meet the
test for a "strong" 2nd-degree murder charge, Teddy said.
Peter Bearman, a former sociology professor at the University of North
Carolina at Chapel Hill, was hired by a lawyer in a separate North
Carolina murder case in the mid-1990s to analyze consistency in the state
Supreme Court's reviews of death penalty cases.
Bearman's review of more than 100 death sentences between 1978 and 1995
found that cases most like Powell's didn't result in the death penalty,
based on criteria such as age, drug use, and premeditation.
"Cases that look like Mr. Powell's case look like life cases, not death
cases," said Bearman, now director of the sociology department and
Institute for Social and Economic Policy at Columbia University.
Powell's attorneys also said the judge in his trial was convinced Powell
had not intended to commit murder, and that evidence was withheld from
The state Supreme Court upheld Powell's conviction and death sentence in
1996. The U.S. 4th Circuit Court of Appeals rejected his appeal in 2003.
(source: Associated Press)
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