[Deathpenalty]death penalty news----USA, MD., N.C., ALA.
rhalperi at mail.smu.edu
Wed Nov 23 15:58:53 CST 2005
Congress Moves to Limit Prisoner Habeas----AG, not appellate courts, would
review states' indigent defense work
Congress moved on several fronts last week to impose sweeping limits on
the ability of prisoners to challenge the legality of their convictions
and sentences in federal court.
Most of the Republican-led efforts occurred outside of the traditional
committee system, which includes public hearings and public "mark-up" of
proposed legislation and amendments.
Just hours before the Senate Judiciary Committee on Nov. 16 was scheduled
to hold its second hearing on the so-called Streamlined Procedures Act, S.
1088, which would make the most dramatic changes in federal habeas review
in nearly a decade, House and Senate members of a conference committee on
legislation to reauthorize the USA Patriot Act inserted a key and
controversial provision of S. 1088 into the Patriot Act legislation.
That provision takes away from federal appellate courts the responsibility
for determining whether states, through improvements in their indigent
defense systems, have met the requirements of the 1996 Antiterrorism and
Effective Death Penalty Act in order to "opt in" to the 1996 law's
expedited time frames for review of capital habeas petitions.
Under the provision, the U.S. attorney general would set the standards for
opt-in status and would decide whether a state complies. An appeal of the
attorney general's decision could be made only to the U.S. Circuit Court
for the District of Columbia.
During the judiciary committee hearing on S. 1088, former Solicitor
General Seth Waxman, now of Washington's Wilmer Cutler Pickering Hale and
Dorr, said it was "dismaying" to include the provision in legislation
dealing with terrorism. He also called it a "very grave mistake and an
unwarranted act" to remove an adjudicative function from the courts and to
give it "in the context of an adversarial criminal justice system" to a
But Senator Jon Kyl, R-Ariz., chief sponsor of S. 1088, noted that only
Arizona has qualified for opt-in status under the 1996 act. There is "no
resolution or reliance" if the decision is left to the courts, he
U.S. Senior District Judge Howard McKibben of Nevada, chairman of the
Judicial Conference Committee on Federal-State Jurisdiction, said
preliminary statistics show that "by and large, states have not made the
effort Arizona has to opt in. There is no empirical data to indicate the
courts have not properly determined opt-in requests."
McKibben and Waxman repeatedly urged the committee to gather data to
determine whether there is a systemic problem of delay in habeas review or
just isolated cases in certain circuits before approving the comprehensive
overhaul in S. 1088. However, the committee chairman, Senator Arlen
Specter, R-Pa., indicated that he and his Republican colleagues were ready
to send S. 1088 to the Senate floor despite widespread opposition from
state and federal judges, the organized bar and others. The bill is
supported by a number of state and local prosecutors and victims' groups.
The conference report on the USA Patriot Act reauthorization also was
heading for a final vote in both chambers at press time.
Earlier in the week, the Senate also approved an amendment to the National
Defense Authorization Act, which severely restricts the ability of
Guantnamo Bay detainees to challenge their detentions through federal
habeas petitions as permitted by a 2004 Supreme Court decision.
The amendment allows detainees designated as "enemy combatants" one appeal
of that designation, which would be made only to the D.C. Circuit, with
possible review by the Supreme Court. And any detainee sentenced by a
military tribunal to at least 10 years in prison would receive an
automatic appeal to the D.C. Circuit. The amendment appears to eliminate
habeas review for detainees not designated "enemy combatants."
Because the House version of the defense spending bill is silent on this
issue, House-Senate conferees will address it when they meet to resolve
differences between the two measures.
New limits on federal courts' habeas jurisdiction as well as new time
limits for disposal of habeas petitions are also proposed in four pending
bills: H.R. 3132, the Children's Safety Act of 2005 (already approved by
the House); H.R. 3860, Protecting Our Children Act of 2005; S. 1605,
Law-Enforcement Officers' Protection Act of 2005; and H.R. 2388,
Prevention and Deterrence of Crimes Against Children Act of 2005.
(source: The National Law Journal)
Baker denied stay of execution by appeals court----Inmate had cited study
reporting racial disparities in Md. death penalty
Maryland's highest court rejected a request today for a stay of execution
from Wesley E. Baker, who is scheduled to die the week of Dec. 5 for a
Baker's lawyers had argued he should get a new trial because of a state
study showing racial and geographic discrimination in the way capital
punishment is imposed in Maryland.
In a brief order, the Maryland Court of Appeals rejected his request for a
stay of execution and also denied him the right to file an appeal from a
Harford County court ruling that rejected his request for a new sentencing
The order did not give reasons for the ruling and did not say how the
seven members voted.
Baker was sentenced to die by lethal injection for killing Jane Tyson, 49,
in a Baltimore County shopping center parking lot as her grandchildren
Gary Christopher, a federal public defender currently representing Baker,
said he will file an appeal next week with the U.S. Supreme Court.
He also has filed a new appeal with the state Court of Appeals saying
Baker should get a new hearing because the lawyers who represented him
when he was sentenced to death did not present evidence about the abuse he
suffered as a child.
(source: Associated Press)
Attorneys try to halt execution of killer----Evidence was omitted about
With less than 2 weeks before death row inmate Wesley Eugene Baker could
be executed, his lawyers filed court papers yesterday saying that the
convicted killer's death sentence should be overturned because his
attorneys at sentencing did not offer evidence of a troubled and abusive
childhood that led Baker to drink vodka and use marijuana by age 10 and
shoot heroin by 14. Baker's lawyers argue that a sentencing judge might
have spared the man's life in 1992 had his trial attorneys called as
witnesses Baker's mother and a social worker who had compiled a family
history documenting Baker's birth to an unstable 13-year-old girl, the
domestic violence he witnessed as a child and his frequent attempts to run
The lawyers, however, decided not to call their mitigation witnesses. Told
just before the sentencing hearing about the family history his attorneys
planned to present, Baker forbade his lawyers from presenting any of it,
according to court papers. Additional investigation by Baker's defense
team revealed that he had been beaten and sexually abused as a child, the
court papers show.
"People will denigrate it as the abuse excuse, but it's not an excuse,"
said Gary W. Christopher, a federal public defender and one of Baker's
lawyers. "It's evidence of how a person fell into the cracks of society
and ended up on the fringes, doing all sorts of self-destructive things
that ended on the worst day of his life with murdering someone."
Baker, 47, is scheduled to be executed the week of Dec. 5 for the 1991
killing of Jane Tyson, a 49-year-old teacher's aide, in front of her
grandchildren in a Baltimore County mall parking lot.
A death row inmate in another Baltimore County case, Lawrence Michael
Borchardt Sr., was granted a new sentencing hearing in May after pressing
the argument that an attorney who defended him at a capital sentencing
hearing in 2000 provided ineffective counsel by not presenting mitigating
evidence that might have persuaded a jury to spare the convicted killer's
In another Baltimore County case, the U.S. Supreme Court in 2003 threw out
the death sentence of convicted murderer Kevin E. Wiggins, saying trial
lawyers in his 1989 case failed to present mitigating evidence about
horrific childhood abuses.
Prosecutors have said, however, that Baker's case differs in that his
lawyers had collected - but chose not to present - evidence of Baker's
In their petition to the Harford County Circuit Court, where Baker's case
was tried, defense attorneys Michael E. Lawlor and Gary E. Proctor wrote
that they "continue to be flabbergasted by the total abdication of trial
counsel's failure to present a case in mitigation, an omission
inexplicably exacerbated by appellate counsel's failure to raise it on
appeal and in collateral proceedings."
(source: Baltimore Sun)
North Carolinians Voice Support for Death Penalty
Many adults in the Tar Heel State believe capital punishment should be
allowed for specific crimes, according to a poll by Elon University. 61 %
of respondents in North Carolina think death is the most appropriate
punishment for 1st-degree murder.
Since 1976, 997 people have been put to death in the United States,
including 53 during 2005. More than 1/3 of all executions have taken place
in the state of Texas. 14 states and the District of Columbia do not
engage in capital punishment, and a moratorium on executions has been
issued in Illinois.
In the Tar Heel State, 38 persons have been executed since 1984 -
including four this year. The North Carolina Senate approved a 2-year
moratorium on executions in April 2003, citing the need to review flaws in
the system. The states House of Representatives never voted on the bill.
What do you think is the most appropriate punishment for 1st-degree
Life without parole----27%
(Source: Elon University)
Methodology: Interviews with 488 North Carolina adults, conducted from
Nov. 14 to Nov. 17, 2005. Margin of error is 4.5 %.
(source: Angus Reid Consultants)
Slaying in Monroeville will be subject of movie
An unsolved killing that haunted the hometown of "To Kill a Mockingbird"
author Harper Lee for 19 years is set to become the subject of a movie
produced by a Chicago-based independent film company at work on a
screenplay of Pete Earley's book "Circumstantial Evidence."
Earley and Ruckus Media Group announced this month that a deal to option
the rights to Earley's book was final, with work already under way on a
The book explores the killing of 18-year-old coed Ronda Morrison in 1986
and the struggles of a black man who spent 5 years on death row for a
crime he did not commit.
Morrison was shot in broad daylight in a dry cleaning store where she
worked on one of Monroeville's busiest streets.
Months later, officers arrested Walter "Johnny D" McMillian, a poor
logging worker with a scant criminal record.
Despite testimony from several witnesses that McMillian had been at home
that day at a fish fry and had been working on his truck, jurors believed
testimony of two whites who implicated McMillian. Both had cut deals,
agreeing to testify in exchange for lesser sentences in an unrelated crime
in a neighboring county.
Producer Ron Sapienza said he was intrigued by the story and found the
book compelling enough to support a feature film.
"First and foremost, we find it very difficult to walk away from a story
that so clearly entertains, educates and inspires one to 'reinvestigate'
what they think they truly believe," Sapienza stated in an e-mail.
"Circumstantial Evidence" won the Robert F. Kennedy Book Award and the
1995 Edgar Award for best crime fact book and was listed as a best seller
by the New York Times.
"As I read the book, I was struck that this story had all the intriguing
twists and turns of a James Patterson novel, along with vibrant and
memorable characters that could have stepped right out of a Tennessee
Williams play ... and the best part is it's all true," Sapienza wrote.
"I've always thought it was a very interesting case that spotlights
problems in the criminal justice system," said Bryan Stevenson, executive
director of the Equal Justice Initiative of Alabama. Stevenson, a
Harvard-trained attorney, worked in the late 1980s and early'90s to free
McMillian from death row following his wrongful conviction in the death of
Stevenson was able to prove that evidence was concealed and testimony
tainted in McMillian's case, winning an appeal of his death penalty trial.
With the state's case in shambles, District Attorney Tommy Chapman had the
charge against McMillian dropped, and he walked free from death row in
1993, 5 years after his wrongful conviction.
Race a factor?
Stevenson said racism played a role in McMillian's conviction. That factor
invites comparisons between the case and the fictional case of Tom
Robinson in "To Kill a Mockingbird."
In Lee's novel, Robinson, a black man, is falsely accused and convicted of
raping a white woman.
"Race was not the only factor," Stevenson said, "but I believe it was one
factor that made it easier to presume him guilty instead of innocent. His
relationship with a white woman also made him a target. There are issues
of poverty" and a botched investigation as well, he said.
"Everyone has a right to demand equal justice -- a fair and honest justice
system," Stevenson said. "This case should make a film that will spotlight
problems. What people ought to be outraged about is that someone got away
with murder, and Mr. McMillian, who had nothing to do with it, was gravely
Chapman, who was not the prosecutor at the time of the killing or initial
trial of McMillian, said he has never closed the case.
He goes back through the file regularly and checks on any new leads. He
said this week he's not happy about the prospect of a film. He said it can
only open old wounds between people who work in law enforcement. His own
staff can't agree about who is responsible for Morrison's death.
Monroe County Sheriff Tom Tate and some state investigators remained
convinced of McMillian's guilt, leading to a bitter rift between the
prosecutor and some in law enforcement that has only begun to heal in
'Killer is out there'
Chapman said at first he believed McMillian was guilty, but after an
interview on a news program, he took a detailed look at the transcript of
the trial and at the evidence. He said it was obvious McMillian was
"The killer is still out there," Chapman said. "But until we recover a
murder weapon or find someone with information we don't have now, an
arrest is not likely. The crime scene was so contaminated by passersby
that there was not a lot of physical evidence left to go on. There was a
tragic outcome for the Morrisons and for Johnny D. The ironic thing is, if
he hadn't been sentenced to death, there would have been no automatic
appeal, the case wouldn't have been overturned, and he'd still be in
Chapman said he has policies in place to avoid a repeat of the errors that
led to McMillian's flawed trial.
The news of the upcoming film was not greeted warmly by all residents in
the Monroe County seat where some residents said they felt people here did
not get a fair shake in the book. Some of the people involved in the case
said the book, in their opinion, is "fiction." Despite considerable
evidence to the contrary, some still believe McMillian is guilty. Some say
the debate about the case is best left in the past. Filmmakers don't
"Has anything of significance ever been achieved without controversy?"
asked Tom Gorham, screenwriter for the project. "I see this as more than
one town's story. This is about all of us, our system, the things that
work and the things that don't. Most of us like to believe that
individually we are fair and honest people, but the truth of the matter is
that oftentimes we find it easier to choose the path of least resistance,
to follow the crowd.
"It's that simple question of morality taken to its ultimate," Gorham
said, "a decision of life and death. To me, 'Circumstantial Evidence' is a
reflection of society as a whole and our strength or weakness as
individuals to find the moral fortitude to stand up and seek the truth."
Parents want truth
"I think this movie coming out will be about like the book," said Bertha
Morrison, the mother of the slain teenager. "We asked them not to publish
it, but there was nothing we could do to stop it."
Charles Morrison and his wife still grieve deeply over the death of their
only child. They say they want the truth about their daughter's killing,
all the while knowing they will likely never get it. They hang on tidbits
of information. Frustration and despair sit plainly on their faces.
They said their only hope is that the film might prompt someone to come
forward with new information. Nineteen years of gossip and wild rumors
have left them angry with investigators and the court system. They said
they heard the evidence and testimony at trial. They were convinced of
McMillian's guilt. Now, they said, they want to be sure their daughter's
name is not tarnished.
"We don't want an innocent man in jail," Bertha Morrison said. "We want
the right person convicted. This whole thing belongs to us. She was our
child and we just want the truth. We had a lot planned for our life, for
our daughter and we watched it all go down the drain. We'd like a little
Sapienza said the Morrisons have borne the crushing weight of losing their
child, and his hope is the film might lead to a break in the case.
Stevenson said McMillian has been battling health problems recently and is
living with a sister. He was unavailable for comment.
Pete Earley wrote on his Web site that he is "impressed not only with the
evolution of this (film) project but with the talented people behind it."
Sapienza said that if all goes according to plan, filming could begin as
early as June 2006.
(source: Mobile Register)
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