[Deathpenalty]death penalty news----FLA., USA., VA., MO.
rhalperi at mail.smu.edu
Tue Mar 29 11:48:09 CST 2005
And justice for all----The flaw in lawmakers' calls to constrict death row
appeals was underscored last week when the state Supreme Court granted
James Floyd a new trial.
Everyone's liberty dies by inches whenever someone is denied a fair trial.
So it was a victory for the people, not a defeat, when the Florida Supreme
Court granted James Floyd a new trial last week.
Floyd, a black man, was caught forging checks that belonged to murder
victim Annie Anderson. That, and the word of a jailhouse snitch that he
had confessed to killing her, were enough to send him to death row more
than 20 years ago. But the state did not disclose to the defense or jury
two critical facts that undermine confidence in his conviction. A neighbor
told St. Petersburg police she had seen two white men entering Anderson's
home and leaving in suspicious haste. The snitch had written to
prosecutors offering to barter Floyd's freedom for his own.
Floyd might be guilty after all; he seemed to concede it in pleading for
mercy at a resentencing hearing 17 years ago. At such a moment, of course,
even an innocent man might say anything. Moreover, his original alibi that
he had found the checks at a dump was not inconsistent with the
possibility that the men the neighbor saw had stolen and discarded them.
Police might well have had plausible reasons for not pursuing those men,
but the defense was entitled to know about them.
It may never be known why there was not timely disclosure of the
neighbor's account. Bernie McCabe, who has since become the Pinellas-Pasco
state attorney, says such evidence would not be withheld now, and that is
good to know. But another troubling question remains: Why didn't Floyd get
a new trial immediately after the critical information came to light 11
Florida law does not open a criminal case file until the conviction has
been sustained on direct appeal. So it was 1994 before the lawyers in
Floyd's postconviction appeal found the documents through a public records
request. It took four more years to get them into court, because the state
objected that the appeal had been improperly filed.
On seeing what had been withheld from the defense, the attorney general's
office should have confessed error and agreed to a new trial. Richard
Luce, the circuit judge who had taken over the case, should have granted
one. But in 1999 he dismissed the appeal without even hearing evidence on
the substance of the neighbor's information. The Supreme Court ruled in
2002 that he should have held a hearing. He complied, but wound up denying
a new trial yet again. On March 24, the Supreme Court finally did what
Luce should have done six years earlier.
This troubling case history points to what the governor and some
legislators overlook in their hue and cry to constrict death row appeals.
The long delays are often the fault of trial judges who choose to let the
Supreme Court take the heat for ordering new trials. This appears to be an
inescapable result of the fact that circuit judges still have to worry
about potential opponents every six years. There is no ready cure for
this, which makes it all the more important that the Legislature not
undermine the Supreme Court's authority.
(source: Editorial, St. Petersburg Times)
Justices May Sidestep Death Row Decision -- A World Court ruling and a
surprise order by Bush complicate the cases of 51 Mexican nationals
sentenced to die in several states.
The Supreme Court said Monday that it might put off a decision on whether
51 Mexican nationals on death row in California, Texas and several other
states were entitled to reopen their cases because of a ruling by the
International Court of Justice in The Hague.
Instead, the justices said the state courts in Texas should take up the
matter first to deal with an unusual order by President Bush.
One month ago, Bush surprised lawyers on both sides of the dispute by
declaring that the state courts must consider whether to give the Mexican
defendants new trials or new sentencing hearings. The president said the
United States had a duty to "discharge its international obligations" by
complying with a clear ruling of the international court.
In the Vienna Convention of 1963, U.S. officials agreed that they must be
informed when Americans were arrested abroad. The same principle applied
to foreign nationals who were arrested and held in the United States.
2 years ago, Mexico sued the United States because it had not been
informed when Mexican nationals were arrested, tried and sentenced to
death. The suit was brought on behalf of 51 Mexican nationals on death
rows in California, Texas, Illinois, Nevada, Ohio, Oregon, Oklahoma,
Arizona and Arkansas.
The international court, also known as the World Court, ruled for Mexico
and said U.S. officials must "review and reconsider" the convictions and
sentences of the 51 Mexican nationals.
Until Bush's order, it was unclear how - or whether - the United States
would abide by the international order. No one had anticipated that Bush
would put himself in conflict with Texas state officials in a challenge to
the validity of more than a dozen death sentences in the Lone Star State.
California has 27 Mexican nationals on death row who could benefit from
Bush's order, lawyers said.
The surprise order also threw a wrench into the pending proceedings before
the Supreme Court in the case of Jose Medellin vs. Doug Dretke, who heads
the Texas prison system.
The justices already had agreed to decide in this case whether the World
Court's ruling gave the Mexican national a right to reopen his case in
But when the issue came up for argument Monday, several justices said it
might make more sense to send the dispute back to Texas.
"Isn't it true that the Texas proceeding could make this moot?" asked
Justice John Paul Stevens.
If the Texas courts decided they must follow Bush's order, it would allow
the court to "avoid the necessity of deciding a lot of difficult
Maybe the case should be "dismissed as improvidently granted," offered
Justice Sandra Day O'Connor, an action the court sometimes took to dispose
of a case that it regretted having taken up.
In this case, what has changed since the court agreed to hear the matter
is the position of the U.S. government.
If the justices follow the suggestion voiced by Stevens and O'Connor, they
may issue an order as early as next week that dismisses the pending case.
But that is by no means certain. Chief Justice William H. Rehnquist and
Justice Antonin Scalia said they would prefer a clear ruling that said
international treaties did not create rights for individuals.
Scalia said he did not believe a foreign court's interpretation of an
international treaty must be followed by the Supreme Court - even if the
president agreed with the foreign court.
"Are we bound by that?" he asked.
Justice Anthony M. Kennedy picked up on the same point. "Can the president
give an interpretation of a treaty that is binding on us?" he asked. "I
think that is ultimately for us to decide."
If Rehnquist, Scalia and Kennedy form a majority, they could rule that the
international treaty does not give inmates a right to reopen their cases
in federal court.
Even so, that would not dispose of Bush's order in the state courts.
(source: Los Angeles Times)
You Picked a Fine Time To Leave Me----President Bush ditches Texas in
front of the Supreme Court.
Let's start with the obvious: I'm not Dahlia Lithwick. To Dahlia's
devotees - and you are legion - who are thinking of me as Kirstie Alley on
Cheers, or the subbed-in Luke on the Dukes of Hazzard, well, sorry about
that. But think about it this way: It's not as if Slate has killed Dahlia
off. She'd just rather not give birth to her new baby in court. So, until
she comes back, skinnier if not well-rested, I'll be keeping an eye on her
9 other babies.
Jose Medellin's death-penalty appeal is before the justices this morning
because he didn't get to make a phone callnot the proverbial call to his
lawyer, but to someone who might have been even more helpful: his
consulate. When Texas police picked him up for participating in a gang
rape of 2 teenage girls, then helping to strangle one of them to death
with his shoelace (crimes to which he later confessed), the cops neglected
to mention that as a citizen of Mexico, he had a right under the Vienna
Convention to let his consulate know he was in trouble. With no consulate
around to muck things up, Texas took it upon itself to line up a lawyer
for Medellin. A really good one, who during the trial got himself
suspended from the bar for ethics violations involving another case, and
who didn't tell Medellin about his consulate or the consulate about
Medellin. Mexico found out about this case only after he'd been convicted,
sentenced to death, and had lost on appeal.
At that point, our neighbor to the south decided not to rely only on
American justice anymore. Mexico helped Medellin bring another appeal so
he could argue he was entitled to a new trial, this time with the help of
his consulate. But even before Medellin lost that appeal - both the state
and federal courts ruled that it was too late for him to start talking
about the Vienna Convention - Mexico also sued the United States before
the International Court of Justice on behalf of Medellin and 53 other
Mexican nationals who said they'd also been tried and convicted before
their consulate knew the first thing about them. Before a panel of ICJ
judges that included an American, Mexico won, 14 to 1.
As it happens, the United States had a big hand in drafting the Vienna
Convention in 1963, along with the "optional protocol" (countries decide
whether to sign on to this part separately; 46 have), which gives the ICJ
the power to hear disputes arising under the treaty. The idea, presumably,
was to make things a little bit safer for Americans who get themselves
arrested or detained while traveling abroad. The United States invoked the
optional protocol when it sued Iran over the hostage crisis.
But that was then and the Bush administration is now, and if there's one
thing that doesn't square with this administration's worldview, it's any
international tribunal with authority over American affairs. Last month,
Condoleezza Rice politely told the United Nations that from now on, the
ICJ can get lost. No more optional protocol for the United States. Future
gang-rapist murderers who are foreign nationals won't be able to complain
about being sent straight to the death chamber. And if Americans arrested
abroad have one fewer protection against being left to rot in some
godforsaken prison somewhere (anyone else remember Midnight Express?),
But if you may be out of luck, that doesn't mean Jose Medellin is. The
wrinkle in this case is that the Bush administration pulled out of the
optional protocol for the future, but it has also conceded that it's not a
good idea for the United States to go around bailing on international
commitments made by previous administrations (in this case Nixon's). In
the name of America's foreign-policy interests, Bush's lawyers in the
Justice Department are helping Medellin (even though they entered the case
on Texas' side). They want to give him what he's asked for and what the
ICJ ordered: review and reconsideration of his case in the Texas courts.
This time, the Bush lawyers say, the Texas courts can't bounce Medellin
for failing to bring his Vienna Convention claim earlier - because
President Bush says they can't. In other words, this case isn't just Texas
v. the World Court anymore. It's Texas v. the Executive, plus the World
That is good news for Jose Medellin. His only problem now is to get away
from the Supreme Court before they can screw things up for him. So, that's
what his lawyer, Donald Francis Donavan, tries to do this morning. What
Medellin wants is a nice neat little stay - a break in the action while
the Texas courts do his appeal over again. At first, the justices seem
flummoxed. "Has this court ever said, OK, you can just come back next
term?" Sandra Day O'Connor asks. "This is a very unusual request." Donavan
acknowledges that it is.
His real problem, though, isn't the proceduralists on the court. It's
Antonin Scalia, who naturally thinks the ICJ judgment is about as binding
on the U.S. courts as yesterday's lunch menu and who doesn't care to have
the president tell him otherwise. "Do you think the president could enter
into a treaty that provides that the commander in chief could be someone
other than the president?" he asks Donovan. The lawyer answers that no
treaty can amend the Constitution, which is basically Scalia's point. The
Constitution makes American judges the arbiters of American law. No treaty
should be allowed to replace them with an international tribunal. "You're
talking about a question of U.S. law," he says, referring to the issue of
whether Medellin blew his Vienna Convention claim when his first lawyer
failed to make it.
O'Connor tries to offer a way around Scalia's sovereignty sticking point.
Rather than treating the ICJ's ruling for Medellin as binding, she
suggests, the court could look at the Vienna Convention itself and decide
whether it gives Medellin the right he's asking for. But she doesn't get
far. Justice Kennedy picks up where Scalia left off. "Can the president
give an interpretation of a treaty that is binding on us?" he asks, chin
in hand. This is a really interesting question. It's also a question that
most of the other justices seem entirely disinclined to answer. Breyer has
been quiet; now he offers his colleagues an exit. "Are you saying that the
president's determination is binding, or that we might choose to show
deference to the president?" he asks Donovan. Ah, deference. You can feel
everyone breathing a bit easier - constitutional crisis averted.
The state of Texas, however, isn't ready to let the justices back out. R.
Ted Cruz, the state's solicitor general, wants to get rid of Medellin
rather than simply putting him on hiatus. "This case may launch a thousand
law review articles, but there's a simple statutory basis for resolving
it," Cruz says in his opening statement. Simple for him, maybe; pretty
technical for the rest of us. In 1996, Congress passed the Antiterrorism
and Effective Death Penalty Act*, which has been most effective in turning
habeas review - the traditional way to challenge a conviction that's been
upheld on appeal - into a bunch of dead ends. One of those dead ends in
the federal courts of appeal, which can't review a habeas claim on the
merits unless that claim is rooted in the Constitution. Cruz's argument is
that Medellin's claim on review isn't about the Constitution; it's about
the Vienna Convention. Pretty slick. Scalia loves it.
There's just one problem: Texas is making this argument for the 1st time
before the Supreme Court. Talk about late in the game. O'Connor wants to
know if the Supreme Court can just waive the whole AEDPA thing. Kennedy
wants to know what Cruz thinks about the president's recommendation that
the Texas courts reconsider Medellin's case. Not much. Cruz says that
Texas sees "significant constitutional problems with a unilateral
executive decision" that in his view displaces the state's criminal laws.
Which leads to the odd-bedfellows moment in which Breyer and Ginsburg
decide to back the president, in all his great wisdom. "Why doesn't he
have the authority to determine what this treaty means under these
circumstances?" Breyer asks. "And why isn't Texas bound by that
Ginsburg chimes in to say that it makes perfect sense to send the case
back to the Texas courts because they're the ones who made the decisions
that the ICJ said needed a 2nd look.
In fact, Medellin has already taken himself back to Texas. His lawyers
filed a new habeas petition there a few days ago. According to Cruz, the
state courts don't know whether to move ahead or to issue a stay, pending
the Supreme Court's decision following today's argument. Since none of the
justices seem inclined at this stage to do something crazy like decide
that an ICJ judgment has binding force in American courts or that the
president does or doesn't have the authority to rewrite the rules of
procedure, the Texas courts will probably get to hold onto Medellin for
the moment. But if they don't grant him a new trial, chances are he'll be
back here next year. In the meantime, some lucky professor can start in on
those 1,000 law-review articles.
(source: Emily Bazelon, The Slate)
Va.'s appeal rejected in Washington case
The U.S. Supreme Court yesterday refused an appeal from the Virginia
Attorney General's office stemming from a suit filed by former death-row
inmate Earl Washington Jr.
Though documents the Virginia State Police wanted kept secret had already
been released, the state pressed an appeal anyway, arguing that documents
used in criminal investigations need to be kept confidential to protect
But Eric M. Freedman, one of Washington's lawyers, contended yesterday
that "the entire episode was an egregious waste of taxpayer money that
would have been much better spent compensating Earl Washington."
Washington was sentenced to death for the 1982 rape and murder of a
Culpeper woman. He was pardoned after DNA tests in 2000 failed to find any
trace of him at the crime scene but turned up the DNA of a convicted
Washington filed a federal civil suit against those who investigated the
case and prosecuted him.
Last year, U.S. District Court Judge Norman K. Moon ordered 14
state-police documents filed in the case made public. The Richmond
Times-Dispatch and other news organizations were among the parties seeking
the documents' release.
The state appealed to the 4th U.S. Circuit Court of Appeals. The state
police argued that the documents were confidential and part of a criminal
investigation of the 1982 rape and capital murder.
The appeals court upheld Moon's decision to release 10 of the documents
and asked Moon to consider the release of the remaining 4 documents.
The state appealed the 4th Circuit decision and asked the U.S. Supreme
Court for an emergency stay blocking the release of the 10 documents. The
justices refused to grant the stay, and the documents were released.
(source: Richmond Times-Dispatch)
State Death Chamber Moving To New Prison
Missouri's execution chamber, in which state imposed death sentences are
carried out, is being moved from the Potosi Prison to the newer prison at
Bonne Terre. Since the reinstatement of capital punishment in Missouri,
all but one execution has been conducted at the prison in Potosi. The lone
exception was held at the now closed Jefferson City Penitentiary.
Department of Corrections Spokesman John Fougere says Bonne Terre, which
opened in 2003, was built to house executions. He adds the move will be
made in time for the next scheduled execution on April 27th.
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