[Deathpenalty]death penalty news----TEXAS, USA, ARIZ., PENN.
rhalperi at mail.smu.edu
Thu Mar 10 17:15:08 CST 2005
Family, prosecutors upset murderer may get new trial
A Waco man on death row may get a chance for another trial. He and 50
other Mexican nationals may not have been informed of their rights under
international law and now President Bush is ordering new hearings for all
That includes Ramiro Ibarra who was convicted of raping and murdering a
teenage girl in Waco back in 1987. For the victim's family, it's like the
crime is happening all over again.
Ramiro Ibarra and the others say their international rights were violated.
They're Mexican citizens but say they were never given an opportunity to
seek aid from Mexican authorities, which is their right under a treaty the
U.S. signed in the 1960s. Mexican authorities were never notified at the
time of Ibarra's arrest.
Ibarra raped and strangled 16-year-old girl Maria Zuniga back in 1987.
Justice took a long time for her family. An evidence technicality kept him
out of prison for 10 years.
For Zuniga's family, the news opens up old and very painful wounds.
Her sister, Consuelo Zuniga, says, "One person like him, they don't have
to receive another chance... If the law would let me kill him, I do,
because he hurt my sister a lot."
Many people will remember Ibarra's trial. He actually slit his throat, but
survived, after the guilty verdict. Ibarra also has a long and violent
Judge Ralph Strother, who prosecuted Ibarra back in 1997, says, "There was
DNA evidence that indisputably linked him to the crime. It was a brutal
killing. He was represented by two very competent and capable defense
It's not clear whether Ibarra will actually get a new hearing. The State
Attorney General says President Bush doesn't even have the authority to
tell Texas courts what to do.
But the Supreme Court will hear a similar case soon and that decision
would definitely be binding.
(source: KCEN News)
Thomas' childhood explored
The people who grew up with Andre Thomas told jurors Wednesday at Grayson
County Courthouse about his childhood.
The jury convicted Thomas earlier this week of capital murder in the death
of Leyha Marie Hughes. The 13-month-old child, her mother, Laura Boren
Thomas, and her half-brother, Andre Boren, were found stabbed to death in
Mrs. Thomas' apartment in Sherman last March.
Andre Thomas turned himself in to police the same day the bodies were
found and he admitted he had killed the 3.
Before the jurors heard from Thomas' brothers, they heard from a
psychologist who saw Thomas in 1999. Brent O'Banyon said he interviewed
Thomas when he was being considered for boot camp by local authorities as
part of a juvenile probation sentence.
O'Banyon said he spent several hours with Thomas doing tests. The tests
showed that Thomas had above average intelligence and showed the potential
to go to college and even graduate school. He also had a disregard for
authority. The tests also showed, O'Banyon said, that Thomas "needed a lot
of legal supervision and intensive supervision," and O'Banyon said such
supervision could have been found at a boot camp program or a state mental
O'Banyon said Thomas reported that his family was very poor and that "life
had dealt him a bad hand."
The counselor said Thomas seemed to have a hard time taking responsibility
for anything that had happened in his life, including his trouble with the
law. He blamed those problems, O'Banyon said, on the probation department.
Thomas was placed on probation as a juvenile for offenses including car
theft and curfew violations.
Defense attorney Bobbie Peterson pointed out that when Thomas told the
psychologist he wanted to be home with his girlfriend (Mrs. Thomas) when
she gave birth to their child (Andre Boren), he was taking responsibility.
He wanted to give the child something he had never had, Peterson said.
That something was a father who was around and cared.
"There was a glimmer there," O'Banyon said. However, he added that the
tone of voice and the way in which Thomas talked about the birth of his
son made O'Banyon think it was just an excuse to get out of going to boot
Peterson then pointed out that Thomas was found to be medically unfit for
boot camp. O'Banyon said he didn't know that. He only spoke to Thomas once
and didn't track the case after that.
Grayson County District Attorney Joe Brown asked O'Banyon about his theory
that Thomas would be likely to continue to get into trouble if he weren't
given intensive supervision. Brown pointed out that the prediction came
horribly true. Peterson then pointed out that Thomas was not given the
mental health help that he needed before the killings in March of 2004.
Brown rested his case Wednesday after calling Thomas' brother Eric Ross.
Brown likely called Ross in an attempt to derail the defense contention
that Thomas was neglected as a child and left alone to deal with the onset
of a mental illness. Peterson and R.J. Hagood have asked a number of
witnesses questions about the boys' mother, Rochelle Thomas, and her use
of religion and corporal punishment to keep the boys in line. She has
failed to testify in the trial despite being subpoenaed.
The prosecution seemed bent on pointing out that 2 of the 5 boys survived,
even thrived, in the Thomas home. To make the point, Brown called Ross to
the stand. The self-employed barber held down a job at a local fast food
chain store for 11 years before he opened his own business.
Ross testified that he and his brothers grew up in a Christian home in
which their mother worked hard to support the family she loved. He said
his mother's need to support the five growing boys meant she had to work a
lot. When she was gone, Ross said, it was up to him to make sure his
younger brothers got up and went to school. It was also up to him to make
sure they got home after school and did homework. When his mother was
working late, Ross said, he and his brother Danny, would make sure that
the younger boys were fed and put to bed.
Ross told Peterson that money was tight for the family and he went to work
at age 14 to help with finances. He said he left the house when Thomas was
12 years old. Ross said the family of brothers is close in that they
sometimes have dinners together and visit. However, he said they don't
discuss their personal lives with one another. He said the family tried to
tell him, in the months before the murder, about the changes that they
were seeing in Thomas, but he didn't want to believe them.
He said he had been surprised to hear, a few years earlier, that Thomas
had stabbed their brother Bryan during a fight. Ross said his brother
Bryan "goes on tantrums and causes problems," but Thomas didn't have a
reputation for that.
In ending his questioning of Ross, Brown pointed out that the boys all
grew up with the same support system of church elders and their mother,
and Eric had turned out fine.
Peterson pointed out that unlike Bryan and Andre, Eric had never suffered
from a mental illness.
The next brother to testify had already been before the jury once in the
trial. During the guilt/innocence section of the trial, Danny Ross
testified about talking to his brother the night before the killings and
about finding out about the tragedy.
On Wednesday, he testified about growing up in the Thomas home. He said he
and his older brother did shoulder a lot of responsibility growing up, but
added that the younger boys, "were good kids and were responsible, too."
He and Eric both testified that they still love Thomas.
Danny described a side of Thomas the jury hasn't really heard a lot about.
He said Thomas liked to please teachers in school by learning the things
his older brothers were doing in school and then showing off a little.
Danny said Thomas grew up with a love of drawing and cars. He said Thomas
also loved to read, "big thick books."
The older brother described how they would spend time together talking
about the cars they were going to own some day. Thomas wanted a Ferrari.
Danny said he often left his children with Thomas and had never seen a
violent side to his younger brother.
First Assistant Grayson County District Attorney Kerye Ashmore asked Danny
if he went driving around with Thomas, using drugs on the night before
Thomas killed his estranged wife and her 2 children.
"I was at home cooking," Danny said.
Ashmore said, if Thomas told someone that he had been with Danny the night
before, he would have been lying then? Danny repeated that he was at home
on the night in question.
Danny's wife, Wendy Ross, testified that she and Thomas are great friends.
She told the jury Thomas would work on her car, change her tires and watch
her children for her.
"He has done more things for me than most people would," Wendy said.
She said she was never afraid to leave Thomas with her children and didn't
see a violent side to him. She said Bryan Thomas, on the other hand, is
"kind of different." She agreed that he has been diagnosed with a mental
The final member of the family to take the stand Wednesday was Thomas'
aunt, Doris Gonzales. Gonzales said Thomas was a funny young man who loved
to kid around with her when she was visiting his father, Danny Thomas.
Danny Thomas is her brother. Gonzales said she was not around the children
on a daily basis when they were growing up and she mostly saw them when
they visited their father. She said at those times, the children seemed
happy and laughed a lot.
She also said Thomas was just different from the rest of the boys. He
liked to go off by himself in search of information about different things
and he liked to "get to the bottom of stuff." She said he also liked to do
things like dye his hair different colors.
Gonzales said she noticed a difference in Thomas in the first few months
of 2004. "He was very distraught and crying a lot." She said she tried to
talk to him about it, but he wouldn't open up to her. She testified that,
in the past, she has had to sign paper work to get Bryan Thomas committed
to a mental hospital. She said she hadn't discussed with the family the
issue of Andre Thomas' needing the same type of help, but she would have
done what she could for Thomas, had he asked.
As her final witness for the day, Peterson called Cpl. Rodger Braziel, a
jailer, to testify about Thomas' behavior in the Grayson County Jail since
he returned from the state mental hospital. Braziel said Thomas has not
had any discipline problems since that time, and has always been polite
and courteous when dealing with Braziel.
Prosecutors countered that testimony by reminding Braziel, and the jury,
that Thomas had told his father of a plan to overpower a guard and take
his weapon to commit suicide. That, Ashmore contended, would count as a
(source: Herald Democrat)
Analysis: World Court case should continue
The Bush administration's decision to withdraw from an international pact,
one allowing the World Court to rule on the cases of some foreign
nationals on U.S. death rows, is unlikely to affect argument later this
month in the Supreme Court on the fate of more than 50 Mexicans facing the
death penalty in this country.
The justices are set to hear argument March 28 on whether an order by the
International Court of Justice at The Hague -- "the principal judicial
organ of the United Nations" sometimes called the World Court -- is
binding on U.S. courts.
The withdrawal from the international agreement by the United States
conceivably could lead the Supreme Court to consider the case moot -- no
longer in dispute -- but that probably won't happen. The justices should
continue to weigh the case based on the law, both domestic and
international, as it existed at the time of the arrest of the death-row
inmates and the decision of the World Court.
Any final decision, however, would affect only those cases processed
before the United States withdrew from the international agreement. The
Washington Post said the withdrawal came in a Monday letter from the State
Department to the United Nations.
Nevertheless, the withdrawal is likely to sooth some uneasiness with
those, particularly in the Republican Party, who feel the Supreme Court is
leaning too far toward giving international agreements and courts equal
status with U.S. law and the Constitution.
Sen. John Cornyn, R-Texas, filed a friend-of-the-court brief with the
Supreme Court Monday in the World Court dispute, saying U.S. courts should
not be reversed by an international court, "and U.S. sovereignty should
not be subverted by international law."
Cornyn is a member of the Senate Judiciary Committee and former Texas
Supreme Court justice.
He argued that allowing the International Court of Justice to issue orders
to U.S. courts, particularly the Supreme Court, would undermine the
independence of the judiciary, and that a death row challenger's
"interpretation of the ICJ's authority under the Vienna Convention raises
grave constitutional questions and thus should not be adopted. ...
Allowing the ICJ to bind our courts would violate Article III of the
Constitution, which vests judicial power only in courts that are
subservient to the U.S. Supreme Court; violate Article II, which provides
that all principal officers of the U.S. -- including judges -- be
appointed by the president pursuant to the advice and consent of the
Senate; and violate Article I, which provides that Congress has the power
to establish such courts."
Cornyn isn't the only one to show distress at the thought of international
courts having an influence over U.S. law.
Earlier this month the Supreme Court, citing "evolving standards of
decency that mark the progress of a maturing society," ruled 5-4 that the
execution of those who killed before they were 18 is unconstitutional.
Justice Anthony Kennedy said in the majority opinion that the execution of
someone who committed murder before age 18 violated the Eighth Amendment's
ban on cruel and unusual punishments.
But though he did not rely on them to reach the decision, Kennedy also
cited international covenants and British law in his opinion, adding, "It
does not lessen our fidelity to the Constitution or our pride in its
origins to acknowledge that the express affirmation of certain fundamental
rights by other nations and peoples simply underscores the centrality of
those same rights within our heritage of freedom."
That brought a blistering dissent from the fiery Justice Antonin Scalia,
who said the court majority "proclaims itself the sole arbiter of our
nation's moral standards -- and in the course of discharging that awesome
responsibility purports to take guidance from the views of foreign courts
and legislatures. Because I do not believe that the meaning of our Eighth
Amendment, any more than the meaning of our Constitution, should be
determined by the subjective views of 5 members of this court and
like-minded foreigners, I dissent."
The United States was an eager proponent of the Vienna Convention on
Consular Relations when it was formulated in 1963, mainly because it
wanted to protect U.S. nationals overseas. Article 36 of the convention
allows consuls in foreign countries to protect the interests of their
nationals who are detained in those countries.
U.S. diplomats and those from 165 other nations signed the convention in
April 1963, and President Richard Nixon sent it to the Senate, where it
was finally and unanimously approved in 1969.
In fact, the United States proposed the optional protocol that allows the
World Court to review alleged violations of the convention. The United
States itself has brought 10 cases before the International Court of
Justice to enforce its protections.
But in 2003 Mexico asked the World Court to rule on alleged U.S.
convention violations. The International Court of Justice ruled for
Mexico, rejecting a 219-page U.S. counterclaim, in 2004.
Specifically, the international court ruled in the case of "Avena and
other Mexican nationals" that the United States had violated Article 36 of
the convention by failing to inform 51 Mexican nationals on U.S. death
rows that they had a right to tell the Mexican consular office of their
detentions at the time of their arrests.
Though the international court rejected Mexico's request that the
sentences of its nationals on U.S. death rows be annulled, it did order a
halt to the executions pending review in the U.S. courts of each of the
Mexican cases, regardless of any procedural obstacles.
The case of Jose Ernesto Medellin is one of the U.S. cases that would be
affected if the World Court's decision in Avena is given weight in this
Medellin was 18 when, while participating in an initiation for the "Black
and Whites" street gang in Houston, he was among those who raped and
killed 2 teenage girls in a particular heinous way, a jury found.
Medellin's court-appointed lawyers contend he told arresting officers he
was born in Laredo, Mexico, and was not a U.S. citizen. Nevertheless, the
International Court of Justice found, he was not told of his right to
contact the Mexican consul, who could have offered translation as well as
Convicted and sentenced to death, Medellin lost his state appeals and
asked for constitutional review of his case in the federal courts in
Houston. A federal judge and a federal appeals court rejected his initial
Medellin tried a 2nd time for review in the federal courts, using Vienna
Convention grounds, but his application was rejected. His attorneys then
successfully asked the Supreme Court for review.
Mexico has filed a brief supporting Medellin's claims before the high
court. So have the 25 countries in the European Union, joined by the
Council of Europe, Iceland, Liechtenstein, Norway and Switzerland.
Another support brief comes from former U.S. Ambassador Bruce Laingen, who
was the highest-ranking hostage during the Tehran crisis in 1979-81.
Laingen is joined in his brief by Billy Hayes, a filmmaker and writer who
spent 5 years in a Turkish prison during the 1970s and wrote the book
"Midnight Express," which was made into a film.
Laingen, Hayes and others are "U.S. citizens who have benefited from
consular assistance abroad or have suffered in its absence." They said
they take no position on the death penalty, only on the Vienna Convention.
"Every year, a significant number of United States citizens traveling or
living overseas find themselves ensnared in the criminal justice system of
a foreign government," their brief said. "Consular assistance provides a
vital service to these Americans, providing a desperately needed link to
the outside world, and helping them navigate and understand an unfamiliar,
and perhaps hostile, legal system."
In other words, consular notification is not just a speed bump in the
prosecution of U.S. law, it protects U.S. citizens overseas.
The Justice Department filed its own brief in support of Texas, saying a
decision by the International Court of Justice is not "privately
However, the department brief does acknowledge that the president, in the
"interests of international comity," has decided that the international
court's Avena decision is enforceable in state courts in regard to the
Mexican nationals on U.S. death rows.
"The ICJ decision is ambiguous on some key points," the department brief
said. "But the executive branch interprets the decision to place the
United States under an international obligation to choose a means for 51
individuals to receive review and reconsideration of their convictions and
sentences to determine whether the denial of the Article 36 rights
identified by the ICJ caused actual prejudice to the defense either at
trial or at sentencing."
The department said the president also has the right, as "the sole organ
of the federal government in the field of international relations," not to
comply with the international court's decisions "and direct a United
States veto of any proposed Security Council enforcement measure."
Meanwhile, attorneys for Medellin have said they have filed a motion to
delay the Supreme Court proceeding until a new hearing in a Texas state
court. That motion is not expected to be granted.
(source: World Peace Herald)
In the past 30 years, the United States Supreme Court has made and unmade
presidents - and shaped the fabric of American society. Now, with 2 rare
vacancies in its ranks, a battle for the nation's soul is under way.
Oral arguments are under way at the world's most influential court, but
you might be in the senior common room of an eminent university. The
protagonists in their black robes are taking a studied, rather
supercilious view of proceedings, one or other of them asking a pointed
question before relapsing into a contemplative and contented silence.
On the left sits Stephen Breyer, the most junior associate justice of the
United States Supreme Court, curled into his chair, a quizzical,
half-amused expression on his aquiline features. Next to him is Clarence
Thomas, the Court's only black justice. Then comes the benign figure of
Anthony Kennedy. In the middle, and presiding over proceedings for the
day, is Sandra Day O'Connor, her face framed in curly white hair, the
first woman appointed to the Court. Next across is the portly Antonin
Scalia, slumped in his chair, looking a bit bored and very brilliant
(which he is). Then David Souter, small, upright, impassive. At the far
right sits Ruth Bader Ginsburg, her greying hair in a ponytail, leaning
forward like a small, delicate bird of prey. Unlike most of her
colleagues, she peppers with questions the attorneys representing each
side in the case before the Court.
A tranquil, unchanging scene, you'd think. But you'd be wrong. This
placid, scholarly place - so powerful that it has made and unmade
presidents - is on the brink of upheaval. It is the focal point of a
battle that may dominate the rest of George Bush's second term and set the
contours of American society for years, even decades, to come.
The clue is in the chairs - the 2 empty black leather seats in the middle.
One belongs to William Rehnquist, the Chief Justice, 80 years old and
seriously ill with thyroid cancer, who was last seen in public when he
swore in Bush at his inauguration on 20 January. The other is that of John
Paul Stevens, rising 85, kept away by the cancellation of his flight from
Within months, one or both could be gone, setting the stage for ferocious
political battles over their replacements. The amazing thing, however, is
that this moment has been so long coming. The body language of the seven
justices present is that of old dons who have hung around together so long
they know each other inside out. And not without reason. Their average age
is 70; indeed Thomas, a stripling at 56, is the only one yet to reach the
normal age of retirement. They have served on the Court for an average of
19 years. Remarkably, they have been together for an unbroken 11 years,
the longest period without a change of personnel on the Court since the
early 1800s. But that is all about to change, and all Washington is
holding its breath.
America, famously, is the most litigious society on earth, law-driven to
the point of being law-obsessed. Its legal system may be seen as a giant
pyramid, capped by the US Constitution and the Bill of Rights, made up of
the first 10 amendments to the Constitution. Not surprisingly, lawyers,
the priestly caste which interprets these rules, are rewarded with much
wealth, power and status. But the highest priests of all are the nine
justices of the Supreme Court.
The Court is the judicial branch of the US government, independent and
co-equal with the executive and legislative branches, the Presidency and
Congress. It is as old as the Republic itself, the final arbiter of the
law and guardian of America's constitutional liberties. Other nations have
supreme courts, but none has the authority and aura of the one that
inspired them all.
"In terms of shaping social policy, the Court is more important than
Congress, and almost on a par with the President," says Bruce Fein, a
former Deputy Attorney General in the Reagan administration. "In a country
like this, where the Constitution has become sacred, when the Court
pronounces on an issue it can generate a cultural change even when the
ruling doesn't affect you personally."
Presidents and Congresses have fixed terms, but a seat on the Supreme
Court is for life. Through the justices they appoint, presidents can
achieve an influence beyond their terms, even their lives. It could be
argued, 31 years after he resigned, and a decade after his death, Richard
Nixon's enduring mark is the person of Rehnquist, whom he appointed in
December 1971, and who, 15 years later, was elevated by Ronald Reagan to
the post of Chief Justice.
If anything, moreover, the Court's importance is growing. Congress,
partisan and polarised, is a largely reactive body, reduced to approving
or rejecting policies that originate in the White House. In an age where
America's political conflicts are not economic but social and cultural -
"God, gays and guns" and, of course, abortion - the great issues tend to
be fought out in courts of law rather than on Capitol Hill.
Some regret that the Court, independent and supposedly supra partes, has
been dragged into these "political" struggles. In fact, the Court has
always been enmeshed in America's great political struggles. George
Washington himself made clear that anyone opposed to the new federal
structure of the US need not apply when he named the 1st justices in 1789.
A century and a half later, after a conservative Court struck down New
Deal legislation voted by Congress, Franklin Roosevelt tried to pack it
with sympathetic appointees.
In 1974, the enforcement of the Constitution became high political drama,
when the Supreme Court doomed Nixon by ordering him to release the
"smoking gun" Watergate tapes. But even this "politicisation" paled beside
December 2000, when by halting the Florida election vote recount, the
Court knowingly handed the presidency to George Bush. To all intents and
purposes, the justices' 5-4 ruling was a straight Republican/Democrat
Many - and not only aggrieved Al Gore supporters - predicted that the
Court's credibility would be damaged beyond repair. That has not happened.
Bush v Gore was the juridical equivalent of the Indian Ocean tsunami, a
once-in-a-century, maybe once-in-a-millennium, disaster. But the Court's
mystique, and its critical place among the checks and balances that are
the genius of the US Constitution, remain intact.
When he conceived the Court's present home, the architect Cass Gilbert
consciously designed the building as a temple of justice. It stands
directly behind the Capitol building, its white marble exuding might and
permanence. Three broad flights of steps lead up to an entrance guarded by
16 Corinthian pillars. The two main doors are of bronze, weighing 6.5 tons
apiece. Above them is an architrave with the inscription "Equal Justice
The Court Chamber itself is equally imposing, surrounded by columns and
dark red velvet drapes. A classical frieze depicts the great lawgivers of
antiquity. At the far end is the bench itself, and the justices' nine
black leather chairs. There, at oral arguments for six days each month
between October and April, when the justices release their opinions on
Monday mornings in May and June when the term ends, you may watch the
Court at work. The day I attended, 150 people queued with me in the bitter
Behind the scenes, the atmosphere is more homely. "It's like nine separate
law offices in the same building, whose principals get together every now
and then," says Rick Garnett, one of the Chief Justice's former clerks.
Despite its size, the place is rather intimate. "Only 200 people work
there. It's like a family: after a year you feel you know everyone." Each
justice has a surprisingly small staff of just seven: four clerks, two
secretaries and an administrator. Some are very old friends. Rehnquist and
O'Connor, classmates at Stanford Law School, have known each other for 60
But even the Supreme Court cannot confer immortality. The universal
assumption is that Rehnquist will step down, at the latest, in June, as
soon as the term ends. John Paul Stevens, who turns 85 in April, will
almost certainly follow him, while O'Connor, soon to be 75, may also leave
fairly soon. In other words, Bush will nominate at least two, perhaps as
many as 4, justices in his second term. Conceivably, he will reshape the
Court as no President since Roosevelt.
Right now, as Bush v Gore showed, the Court is roughly divided 5-4 between
"right" and "left". But as Kermit Roosevelt, a former clerk of Souter (and
a distant relative of FDR) points out, the justices' "high * * politics" -
that is, their views on the relationship between state and federal
government and other crucial constitutional issues - may not coincide with
their "low politics", their party alignment.
Indeed in Bush v Gore, both sides turned somersaults. The conservatives
who normally support states' rights insisted that the federal Supreme
Court had jurisdiction over the Florida state Supreme Court, which had
ordered the vote recount. Justices on the "left", normally keen to assert
federal power, vainly argued that the Florida court should have the last
word in a purely state matter, and that the US Supreme Court had no right
But the true key to the Court's influence is its power of "judicial
review", its authority to overturn state and federal laws and government
actions, as well as presidential orders, if it deems them
unconstitutional. That power, enshrined in the decision of the court in
the 1803 case of Marbury v Madison, involving such luminaries as John
Adams and Thomas Jefferson, made the Supreme Court the pivot of the
American system - the ultimate arbiter of disputes between the branches of
government, and between individuals and the state.
Some Court rulings are now part of US history. The 1954 decision in Brown
v Board of Education that banned racial segregation in public schools set
in motion the civil rights revolution of the 1950s and 1960s. The 1973
case of Roe v Wade ended state prohibitions of abortion, on the grounds
that the Constitution guaranteed women the right to choose an abortion, at
least during the early stages of a pregnancy.
In 1972, the Court suspended capital punishment, arguing that it violated
the Eighth Amendment's ban on "cruel and unusual punishment". Five years
later, after several states changed their methods of execution, it
rescinded that ban. Now it seems to be chipping away at the death penalty
again, limiting its use in the case of adolescents and the mentally
retarded. More recently still, it has re-endorsed affirmative action, and
struck down a Texas law that banned sodomy between gay couples.
Indeed the supposedly "conservative" Rehnquist Court has pleased liberals
at least as much as it has the right. In doing so, it has proved that the
Court, for all its powers, tends to follow public opinion rather than
shape it. The current Court has mostly favoured states' rights (though
conspicuously not in Bush v Gore). But the judicial activism of the Warren
Court of the 1950s and 1960s has gone. "Sometimes it's a little ahead of
public opinion," Garnett says, "but more often it just reflects it. If it
tries to get too far ahead, it can land in trouble and create a backlash."
At present the Court is tilted to the right, but only slightly. Scalia is
the intellectual leader of a conservative trio of himself, Rehnquist and
Thomas. As often as not they are joined by Paul Kennedy. Ginsburg, Breyer,
Souter and Stevens are often (but not always) at the more interventionist
end of the argument. The crucial swing vote belongs to O'Connor, almost
always with the majority when the justices split 5-4. Now the looming
vacancies give the President a chance to push the Court decisively
rightwards, buttressing his conservative agenda long after he leaves
office in January 2009. But an almighty, vicious struggle awaits.
All Supreme Court nominees are first grilled by the Senate Judiciary
Committee, which then makes a recommendation to the Senate as a whole. On
average, the Senate rejects one in five of all candidates to the high
court - and this time the Democrats have already served notice of their
intentions by blocking confirmation of a dozen Bush nominees to lower
federal judgeships whom they consider too conservative. The re-elected
President served notice of his intentions by renominating all 12 and
challenging the Democrats to do their worst.
For Court nominees, the stakes are even higher. It has long been obvious
that resignations loomed. In the presidential campaign, Bush spoke of the
Court as if a new French revolution awaited America if John Kerry won. The
Democratic candidate warned that a Bush victory would lead to a Court
dominated by rabid conservatives, bent on returning the US to the dark
Indeed, the President made no bones that he intended to send to the Court
"somebody who knows the difference between personal opinion and the strict
interpretation of the law". His favourite justices, he's made clear, are
Thomas and above all Scalia, celebrated for his adherence to the strict
wording of the Constitution.
"Bush won't flinch now," predicts Bruce Fein, who handled the review of
judicial candidates in the Reagan administration. "He has a clear popular
mandate, as well as four more Republicans in the Senate." But the
Democrats are equally unlikely to blink, Fein says, despite their losses
last November in the Senate and House, as well as for the White House.
"The nominations represent the Democrats' last foothold, and their people
who are leading the charge [such as Edward Kennedy of Massachusetts] are
blue-state Democrats who have nothing to lose." Although the Republicans
boosted their Senate strength to 55 in the November election, they are
still short of the 60 votes required to override a Democratic filibuster.
This would not be the first bloodletting over a Court nominee. In 1987,
activist groups combined with the then Democratic majority in the Senate
to wage a ferocious campaign to send Robert Bork, the last Supreme Court
candidate sent up by Ronald Reagan, to defeat. The affair gave a new word
to Washington's lexicon: to be "borked" means to have one's nomination
blocked by a campaign on Capitol Hill.
4 years later, the confirmation hearings for Clarence Thomas were an even
more squalid affair, focused on allegations that he had sexually harassed
a fellow lawyer, Anita Hill. The hearings produced tales of alleged
porn-video rentals and pubic hairs on Coca-Cola cans. The case set the
standard for Washington sleaze until the Clinton/Lewinsky affair. Thomas
was eventually confirmed in a 52-48 Senate vote, but not before he had
railed against the "hi-tech lynching of an uppity black".
However, Fein believes that the "titanic" confrontation ahead "will make
Bork look like a tea party". There is even giddy talk among Republicans of
the "nuclear option" of a procedural device to prevent the filibuster of
judicial nominees. If that happens, Democrats vow to block all Senate
business indefinitely. Maybe this is all talk, and the 2 sides are putting
out feelers about mutually acceptable nominees. But there's scant sign of
it. A few optimists reckon that for all the bluster, Democrats will keep
their powder dry - especially if Bush reaches outside the Court to replace
Rehnquist with another conservative who does not upset its existing
Alternatively, he could promote Scalia or Thomas, in which case there
would be not one, but two confirmation hearings - one for the new Chief
Justice, another for his replacement. Either might produce fireworks. And,
even if not then, the probable departures of Stevens and O'Connor await.
A stately calm may reign in the great court chamber across the street from
the Capitol. But outside, in a city whose ruling passions are politics,
power and the law, it is the calm before a colossal storm to come.
THE LANDMARK JUDGMENTS
1954 Brown v Board of Education
Three black children in Kansas had petitioned not to be segregated at
school. The Court's finding in effect banned racial segregation in public
schools across the country and set in motion the civil-rights revolution
of the 1950s and 1960s.
1973 Roe v Wade
Roe, a pregnant single mother, challenged Texas laws against abortion. The
Court found in her favour, so ending state prohibitions of abortion and
granting women the right to choose during the early stages of pregnancy.
1976 Gregg v Georgia
Court overturned its ruling of 1972 and upheld the constitutionality of
the death penalty.
2000 Bush v Gore
George Bush petitioned the halt of vote recounts in Florida: the Court
found in his favour, so handing Bush the presidency.
2005 Roper v Simmons
A ruling that the Constitution categorically bars capital punishment on
crimes committed before the age of 18 removes 72 people from death row in
(source: The Independent (UK)
Justice does not equal death
Last week's U.S. Supreme Court decision declaring the death penalty for
minors unconstitutional gives cause for both relief and anxiety. Over the
years, when the courts have acted to restrain execution, one observes a
surge in the popularity of death penalty advocacy among governmental
We hear extolled only the most violent responses to the crimes afflicting
our society. Candidates promise to bring criminals here and abroad to
justice -- yet none of us believes they are talking about justice in the
sense of the rule of law. They are threatening death. Too often we remain
indifferent to this equation of justice with death.
I will not remain indifferent. For when the state enters a case for the
death penalty, the state is no nameless, faceless entity. We are the
state. Indeed, long before a death warrant arrives at a governor's door,
if we have doubts about the adjudication of capital punishment laws, we
ought to speak out in support of a moratorium, not just on executing
teens, but on executing anyone.
I have serious doubts about execution as a response to brutal crimes in
society. Why? First, I am a rabbi and a teacher of religious tradition.
The texts of our tradition caution me to seek justice and fairness in a
range of ways. Judaism does not support simply causing more death and
killing in response to violence. Laying a human being, any human being,
down on a table and injecting death serum into him is affirmatively
causing his death. So Jewish opponents of the death penalty are often
motivated by religious conviction guiding our views.
In Jewish tradition, we do not distinguish between Jewish and non-Jewish
criminals when it comes to our general disdain for capital punishment. All
of us are at the mercy of God who is seen as dayan ha'emet, the ultimate
decider of life and death. God is the "judge and arbiter, counsel and
witness" when it comes to who lives and who dies.
So, though we try to imitate God in many parts of our modern lives, our
efforts to imitate God by taking life often fail. Indeed, as I see it, our
justice system has lost its perspective on the gravity of taking a human
life, even the life of a convicted criminal.
In states such as Virginia, Maryland, Texas, California and many others,
death chambers continue to be open for business to execute adult
offenders, convicted of capital crimes and often living in prison for the
remainder of their lives.
Ask yourself: What moral responsibilities do we bear to speak out
regarding our views? Do we actually believe that the death penalty acts as
a true deterrent to others contemplating brutal crimes? And how many of us
have scrutinized the array of troubling issues regarding the imposition of
the death penalty?
For instance, in Maryland, although the vast majority of the state's
murder victims are African American, death row is made up almost entirely
of those convicted of murdering whites. What does this say about the way
the state values the life of white citizens and African Americans?
This is only one of the troubling array of issues that ought to be
examined and corrected by us together with our leaders before we begin to
decide who lives and who dies.
Justifiably, there is incredible rage and hostility felt by many victims'
families, knowing that those convicted of capital crimes remain alive,
albeit incarcerated in prison, when their loved ones were brutally taken
from this world.
But acts of death on the part of a disturbed murderer are not, to my mind,
a permission slip to excuse us for promulgating a culture that extols only
the most violent and vengeful responses to crime. Our leaders can be
compassionate to victim families while also becoming informed by the whole
range of views among our fellow citizens.
In the Talmud, we read that a court imposing an execution once in seven
years is referred to as an evil or destructive court. A later tradition
amends the number to apply to a court that executes a criminal once in 70
Finally, Rabbi Tarfon and Rabbi Akiba taught: "Were we members of the
court, no person would ever be put to death." Clearly the values of this
text spoke to the diversity of views in society. Judaism allowed for the
possibility of the death penalty. Yet the brakes were put on the Sanhedrin
precisely to prevent imposing death as a means of securing vengeance.
Pursuing justice does not equal death. Nor does an execution always work
to heal the shattered hearts of those who are victimized.
Clearly, there are many other thoughtful views and values to share among
the Jewish community. So all of us would do well to study the way in which
our faith, our vengeance and our sense of God's ultimacy inform our views
on the death penalty.
Then we should not be afraid to speak out to our leaders and our
communities, sharing the diverse range of views concerning justice and
death, penitence and vengeance, fairness and equality in a society that
often kills in response to killing.
(source: Washington Jewish Week - Robert A. Nosanchuk is the rabbi at
Northern Virginia Hebrew Congregation in Reston, where he will be speaking
on "Judaism and the Death Penalty," Thursday, March 17, at 7:30 p.m.)
ARIZONA----new death sentence
Man gets death sentence for killing Tucson police officer
In Tucson, a New Mexico man was sentenced to death Thursday for the 2003
killing of a Tucson police officer.
A Pima County Superior Court jury deliberated for about 9 hours over 3
days before deciding on the sentence for John Montenegro Cruz. The same
jury took only 3 hours to find Cruz guilty on Feb. 26 in the shooting
death of Officer Patrick Hardesty.
Hardesty, 40, was killed on Memorial Day 2003 when he ran after Cruz, who
had been sought in a hit-and-run accident.
The jury had found that Cruz of Zuni, N.M., was eligible for the death
penalty because Hardesty was on duty at the time of his death.
Hardesty was the 1st Tucson Police Department officer to be killed in the
line of duty in 21 years.
Defense attorneys maintained that someone else shot Hardesty. Cruz made a
statement Tuesday but did not testify during his trial.
(source: Associated Press)
Pa. court upholds death sentence for city man
The Pennsylvania Supreme Court has upheld a Lancaster County jurys
decision to sentence a city man to death for raping and killing his
Tedor Davido, now 28, appealed the decision of the local court and jury
shortly after he was convicted of murdering 20-year-old Angelina Taylor.
The courts 20-page opinion, written by Chief Justice Ralph Cappy, was
handed down recently, more than a year after the justices were given the
case for review of attorneys arguments and trial court proceedings.
In the end, Cappy wrote that the decisions made by Lancaster County Judge
Joseph Madenspacher and the jurys decision to convict Davido of 1st-degree
murder and sentence him to death were appropriate.
"It is clear that the sentence imposed was not a product of passion,
prejudice, or any other arbitrary factor," Cappy wrote. "We further find
that the evidence was sufficient to establish the aggravating factor found
by the jury."
Under Pennsylvania law, aggravating circumstances must outweigh any
mitigating circumstances in order for the death penalty to be imposed.
In this case, the single aggravating circumstance was that Davido raped
Taylor and no mitigating circumstances were offered on his behalf.
City police were called to the Hager Street home Davido and Taylor shared
in the early morning hours of May 14, 2000, for a report of "a guy ...
beating up a girl."
When police arrived no one answered the door.
Policemen entered the home and found Taylors unconscious and nearly nude
body on the 3rd floor. She was taken to the hospital and pronounced dead a
short time later.
Davido had crawled out through upstairs window, according to testimony,
and gone to a friends house, telling others that he beat Taylor and then
had sex with her.
When the case came to trial in December 2001, Davido repeatedly refused to
be represented by attorneys or cooperate with them in presenting a legal
He continued to refuse the help of public defenders Merrill Spahn and
James Gratton by presenting any evidence that might have spared him the
death penalty. First Assistant District Attorney Heidi Eakin prosecuted
At the end of the trial, in January 2002, the jury convicted Davido of
1st-degree murder and rape, recommending the death penalty be imposed.
Many of Davidos appeals to the state Supreme Court stem from when he
should or should not have been forced to have an attorney represent him.
Cappy quoted several discussions between Madenspacher and Davido, in which
the judge repeatedly offered the defendant free legal representation.
Every time, Davido rejected the judges offer to give him legal help.
Davido also complained, unsuccessfully, that the police had no right to
enter his home without a warrant in response to the 911 call.
Although the state Supreme Court has affirmed the decision to put Davido
to death, there have been only three executions in Pennsylvania in the
past decade, 2 in 1995 and the last in 1999. All were by lethal injection.
In addition to Davido, others from Lancaster County on death row are:
Robert Zook, who killed a city typewriter repairman and his girlfriend in
1985; Orlando Baez, who raped and stabbed a woman to death in her city
home in 1987; Francis Harris, who murdered a witness in 1997 in a Manor
Township parking lot; and Landon May, who killed an Ephrata couple in
Mays father, Freeman May, formerly of Narvon, is also on death row for
murdering a young woman in Lebanon County in the 1980s, and Kevin Dowling,
formerly of East Petersburg, is on death row for murdering a witness in
York County in 1997.
(source: Lancaster New Era)
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