[Deathpenalty]death penalty news-----USA, ILL., FLA.

[Rick Halperin]

Sept. 13


USA:

Democrats Seek Papers to Define Whys of Roberts


In opening statements on Monday kicking off the Supreme Court confirmation
hearings for Judge John G. Roberts Jr. and in a follow-up letter to
President Bush, Democratic senators continued their calls for the release
of documents from Judge Roberts's years as a senior lawyer in the 1st Bush
administration.

The documents, said Senator Patrick J. Leahy, the senior Democrat on the
Judiciary Committee, could help illuminate the nominee's views in 3 areas:
civil rights, privacy and access to justice. While the 1st 2 areas have
garnered attention from interest groups and the news organizations, the
third category - access to justice - has received relatively little
scrutiny.

Most of these cases did not concern issues of great public moment, but a
theme runs through them. They involved people who claimed to have suffered
serious and sometimes terrible harms, including sexual abuse and torture.
In response, briefs signed by Judge Roberts often accepted, at least for
argument's sake, the truth of what was alleged but opposed the lawsuits
under various legal doctrines that can limit plaintiffs' access to the
federal courts.

Analyzed one way, his arguments reflect a cramped view of the role of the
courts, exalting technicalities over justice. Viewed another way, they
represent exacting fidelity to the law and a keen awareness of the limited
power of the federal courts to right every wrong.

"Federal courts are courts of limited jurisdiction," he told the Supreme
Court in an oral argument in one of the 16 cases on the Democrats' list.
"The presumption is that they are without jurisdiction, and the plaintiff
must affirmatively prove that he has standing to invoke the power of the
court."

In 1992, he signed a brief arguing that federal courts could not consider
newly discovered evidence that was put forward by a death row inmate,
Leonel Herrera, because he had raised the issue too late. It added that
fears that innocent inmates had or would be executed were overblown.

The only forum in which Mr. Herrera could now make his case, the brief
said, was in a clemency application to the governor of Texas. The Supreme
Court ruled against Mr. Herrera but left open the possibility that an
inmate with "truly persuasive" evidence of innocence could get a court
hearing notwithstanding court deadlines. Mr. Herrera was executed in 1993.

In 1992, Mr. Roberts signed a brief in a case brought by an American who
said he had been falsely arrested and tortured while employed by a Saudi
Arabian hospital. The brief argued that the hospital was immune from a
suit because it was owned by the Saudi government. "Allegations of
inhumane treatment," the brief said, "should not obscure the legal issue
in this case."

Though there is an exception to foreign sovereign immunity for a
government's commercial activities, the brief argued that the mistreatment
of the plaintiff, Scott Nelson, was not based on commercial activities
like his recruitment and employment but on purely governmental conduct.
The Supreme Court agreed.

In 1991, another Roberts brief made a subtle distinction. The case
involved a Georgia student who had sued her school district, asserting
that a teacher had forced her to have sex with him. The brief conceded
that the suit itself was proper under a federal antidiscrimination law.
But, the brief continued, the student was not entitled to recover money
damages. "The existence of a cause of action," the brief said, "by no
means assures a right to an unlimited array of remedies."

The Supreme Court unanimously rejected that position.

It is unclear whether the documents sought by the Democratic senators
would contain Judge Roberts's personal views on these or the other 12
cases. Administration officials have said that disclosure of the documents
could chill discussions in the solicitor general's office, which
represents the federal government in the Supreme Court. From 1989 to 1993,
Judge Roberts was the principal deputy solicitor general, a position
sometimes referred to as the political deputy. His boss was the solicitor
general, Kenneth W. Starr.

"We can only wonder," Senator Edward M. Kennedy, Democrat of
Massachusetts, said at the confirmation hearing on Monday, "what they
don't want us to know."

In a letter on Monday, 17 Democratic senators, including three members of
the bipartisan group of 14 senators who had pledged not to filibuster
judges except in "extraordinary circumstances, " called for President Bush
to release the documents, saying they were needed to determine "the whole
truth about the nominee. " The signers included Senators Ken Salazar of
Colorado, Mark Pryor of Arkansas and Joseph I. Lieberman of Connecticut.

The White House has released tens of thousands of pages of documents from
Judge Roberts's days as a young lawyer at the Justice Department, where he
was special assistant to Attorney General William French Smith, and the
White House, where he was associate counsel to President Ronald Reagan.

At the solicitor general's office, the briefs Judge Roberts contributed to
were notable in 2 ways. They took consistently conservative positions on
social issues, including abortion, the separation of church and state,
school desegregation, environmental protection and affirmative action.
They were also aggressive in proposing hurdles for plaintiffs to overcome
before courts could hear their cases on the merit.

In an environmental case, for instance, a brief that Judge Roberts signed
took a narrow view of both standing, meaning the requirement that
plaintiffs show that they have a direct interest in a case, and of
Congressional power.

He presented oral arguments in the case, Lujan v. National Wildlife
Federation, saying that Congress was powerless to confer standing in some
settings and that the plaintiffs there had failed to satisfy the ordinary
standing requirements.

The Supreme Court, in a 5-to-4 decision in 1990, ruled in his favor. 3
years later, Judge Roberts made similar points, now in his own voice, in a
Duke Law Journal article.

Judge Roberts signed 2 briefs in school desegregation cases. He argued
that the school systems in question, both of which had once been found to
be segregated by race, should be freed from court supervision. The Supreme
Court ruled in his favor in both cases.

A brief signed by Judge Roberts argued in favor of allowing "ceremonial
acknowledgments" of religion at high school graduations. The brief urged
the Supreme Court to abandon the standards it has generally used since
1971 to decide whether a given practice violates the establishment clause
of the First Amendment and to replace it with a more relaxed one. The
court rejected his arguments.

The briefs contain little of the acerbic wit found in Judge Roberts's
early papers. But there are flashes, though it is not known whether he
wrote them.

A program to give preferences to minority broadcasters, a brief signed by
Judge Roberts said, failed to overcome a "fundamental hurdle - the
prerequisite of coherence." It was, the brief said, "a policy in search of
a purpose."

(source: The New York Times)

**********************

Death penalty system should be adjusted

In Bob Myers' letter, "Don't ignore injustice of death penalty" (Aug. 12),
he responded to an Associated Press story in which I was quoted on the
death penalty. Unfortunately, the truncated nature of the quotation has
caused many people to misunderstand my position on this issue.

There has been much in the news about cases in which persons convicted of
murder and sentenced to death have subsequently been exonerated. I was
asked if the existence of a few cases where erroneous verdicts were
rendered at trial and corrected on appeal indicated that the system was
"broken" such that we should abolish capital punishment. My answer was,
and is, no.

Of course it is unjust that even one innocent person spends even one day
in prison. But abolishing capital punishment would do nothing toward
correcting those injustices.

On the other hand, abolishing capital punishment would take a heavy toll
in the loss of innocent lives. We see study after another confirming that
capital punishment does have a deterrent effect and saves innocent people
when it is enforced.

We can, and should, further improve our criminal justice system by
focusing on the reliability of the guilty verdict and not spending so much
time and resources litigating repeatedly the issues that have nothing to
do with guilt.

As each capital case comes up for execution, the governor should examine
the case with care and commute the death sentence if any genuine doubt
exists about the identity of the perpetrator.

Gov. Mitch Daniels action in the Baird case, although not related to
guilt, demonstrates that he takes this responsibility seriously.

The system is not broken, but it does need adjustments that fix existing
problems without causing greater ones.

KENT SCHEIDEGGER----Legal director Criminal Justice Legal Foundation
Sacramento, Calif.

(source: Letter to the Editor, Fort Wayne Journal Gazette)

*************************

Flood victims and death penalty: there's a link


There is no obvious connection between our government's disgraceful
response to the devastation in New Orleans and the Gulf Coast communities
and our state's repeated failure to declare a moratorium on executions
until we can examine the fairness of the death penalty. Except this: both
reflect the callous indifference of officials to the hidden injustice and
unfairness that daily shackle the poor and racial minorities in our
country and in North Carolina.

During his last campaign for re-election, Gov. Mike Easley suggested that
groups calling for a moratorium on executions and review of the death
penalty should have spent the time conducting a review themselves.
Indifference.

In fact, they have conducted such reviews, but the governor and others
have just ignored them. For example in 2001, UNC professors Jack Boger and
Isaac Unah issued a study in which they found that the odds that a person
will receive the death penalty are 3.5 times greater if he kills a white
person than if he kills a racial minority. Boger and Unah sent their study
to the General Assembly, where it was officially ignored. The governor had
nothing to say about it in his campaign. Indifference.

And the public officials who did comment generally were dismissive or
questioned the study's methodology. More indifference.

For example, the director of the N.C. Conference of District Attorneys was
quoted in a news report as saying that she had not seen the study but that
it sounded mainly like a tool for fighting the death penalty. More and
more indifference.

Perhaps the problem has been that these officials just didn't understand
what the study's findings meant.

Maybe the images of poor people in New Orleans and Mississippi suffering
alone in the aftermath of the hurricane and flood will change that. Those
images demonstrate the same point made by the race study: this country
does not value the lives of poor black people, whether they are the
victims of natural disasters or the victims of murder.

We don't prepare to evacuate them in the face of a catastrophic hurricane
and flood; we are more concerned about protecting the private property of
the rich from looters than providing food and water to poor black children
trapped by the flood; and we are less moved by the tragic death of a black
person than we are by the tragic death of a white person.

It is said that the United States began to address the problem of racism
in the 1960s only after photographs of police dogs and fire hoses being
used against defenseless black people were flashed around the world. If
that is true, then the photographs of poor children languishing in the
squalor of the Superdome and New Orleans Convention Center, without food
and water, and the bloated corpses of poor people floating in the streets
or leaned against buildings while the president reminisced fondly about
his days in New Orleans should be the call to action for this generation
of officials.

Maybe even the governor and attorney general (both of whom take for
granted the votes of poor black people) and leaders of the General
Assembly will finally agree to determine the facts about race and the
death penalty and not wait for the inevitable photograph of an innocent
black man wrongly executed for killing a white person. History shows that
by the time the photographs of injustice are circulated, it already is too
late for many.

(source: James Coleman is a law professor at Duke chairs the American Bar
Association's Death Penalty Moratorium implementation Project; opinion,
News & Observer)






ILLINOIS:

Hill brothers won't face death penalty -- Men accused of killing 2,
leaving bodies near Alhambra

Nathaniel and Clinton Hill will not face the death penalty if a jury finds
them guilty of murdering Vincent Rollins and Derek Pitts.

Madison County Assistant State's Attorney Don Weber, in a filing this
month, notified the court that he will not seek the death penalty for the
brothers whom authorities have accused of killing Rollins and Pitts at a
house on Aldrup Lane in Edwardsville and dumping their bodies in a ditch
near Alhambra.

Weber was not available for comment Monday.

On April 28, Nathaniel Hill, 31, and Clinton Hill, 28, were both charged
with 1st-degree murder and each faces a Sept. 19 trial at the Criminal
Justice Center. In addition, Kelly J. Matlock, 34, of Edwardsville, has
been charged with helping the brothers hide the bodies. She faced a trial
date on Monday but Circuit Judge Charles Romani agreed to continue the
case.

The 3 have also been indicted by a Madison County grand jury.

A week before Weber's filing, Kevin McClain, a private investigator with
the Capital Litigation Fund, met with Nathaniel Hill's attorney, assistant
public defender Billy Hahs. Hahs also met with Nancy Leefers, representing
the Illinois Appellate Defender's office.

The Capital Litigation Fund is used to pay for prosecution and defense of
capital cases; legislators expanded the bill recently to include appeals
of death convictions. The Appellate Defender's office provides trial
assistance in death penalty cases in which the defendant is indigent.

Autopsy results showed that Pitts had been shot in the face with a shotgun
blast and Rollins died of blunt trauma to the head.

The brothers are being held at the Madison County Jail in lieu of $1
million bail.

Prosecutors allege that the killings happened in the basement of 419
Aldrup Lane in Edwardsville following a violent confrontation. Police
obtained a search warrant for the house but authorities have not released
details of what was found.

Executions in Illinois have been suspended since Jan. 31, 2000, when
then-Gov. George Ryan's declared the state's criminal justice system to be
"fraught with error."

(source: Edwardsville Intellligencer)






FLORIDA:

Ferger trial graphic, says state attorney----After years of delays, jury
selection started Monday. Citing pretrial publicity, the defense asks the
judge to move the trial to Pinellas County.


In Dade City, potential jurors in the trial of Gary Steven Cannon were
warned right away Monday about what they will face if chosen to decide his
guilt or innocence.

"This is a charge of 1st-degree murder," prosecutor Bruce Bartlett said.
"It involves the death of a 9-year-old girl. The evidence will be graphic.

"It will not be a nice thing."

Sharra Ferger was found half-naked, stabbed dozens of times, sexually
assaulted, with a brutal bite mark on her left shoulder.

Her body was discovered Oct. 3, 1997, face down in a field near her
Blanton home, authorities say, hours after she was lured out into the dark
by someone familiar to her.

Four years later, 2 were indicted in connection with the killing: Cannon,
25, a family acquaintance, and Gary Elishi Cochran, Sharra's 39-year-old
uncle. 8 years later, after countless legal delays, Cannon is the 1st to
be tried in her slaying.

Lawyers for Cannon, facing a life sentence if convicted, would not say
whether they planned to put their client on the witness stand.

"That remains to be seen," attorney Bjorn Brunvand said after court
Monday. "I can't tell you one way or the other at this stage.

During the trial's 1st phase, jury selection, Cannon's lawyers stressed
their client's constitutional protection from self-incrimination to
prospective jurors.

"The defense does not have to present any witnesses," attorney Danny
Hernandez told them, "and the defendant doesn't have to testify."

Jurors are barred from knowledge of Cannon's adult and juvenile crimes -
unless he testifies. Then the state is free to bring up his felony
convictions - but not the charges, or details of the crimes.

Which is why his defense team was especially concerned about pretrial
publicity surrounding one of Pasco's most high-profile murder cases.
Stories in the St. Petersburg Times and Tampa Tribune printed Sunday and
Monday discussed the allegations and evidence against Cannon, his
substance abuse problem and criminal record.

That led to a defense motion to move the trial to Pinellas County. "My
concern is that it would be very difficult to find a fair and impartial
jury in Pasco County," Brunvand said.

A handful of potential jurors had read articles and seen televised news
reports about the case. A few more remembered when Sharra's body was found
in 1997. But Circuit Judge Lynn Tepper said it was too early to move the
trial: "You do realize I can't consider that request until we can't pick a
jury."

A jury wasn't picked Monday. Selection will continue today.

Cannon sat silently throughout the proceedings, his hair closely cropped,
dressed in a tan dress shirt, slacks and sweater. To stay warm in the
frigid courtroom he pulled the sweater sleeves over his hands. He spent
most of the day making eye contact with his mother, Edna Jenkins.

Jury selection provided a few light moments. Even Cannon chuckled from
time to time. Like when one woman said she'd already tried one case, and
hoped to avoid more jury duty.

"I thought I could sneak away with it when I turned 70," she said. "But
you caught up with me."

Mostly, though, it was a somber affair as some grappled with the nature of
the allegations.

One juror said 5 of her relatives had been sexually abused.

"So being fair and impartial would be an issue for you?" the judge asked.

"It is an issue," the juror said.

Another juror said her daughter had been raped and the attacker convicted.
Still another juror said the March kidnapping and killing of 9-year-old
Jessica Lunsford in Citrus County gave her a "flashback" to the Ferger
case.

The judge prodded her to reveal more. The juror said a childhood friend
had been raped and killed.

"It was years ago," the juror said. "I try to bury it."

One juror was so emotional she couldn't tell her story in public. In a
private bench conference, the judge gave her a tissue, then excused her
from the courtroom.

At day's end, the judge did grant one defense request: to get Cannon out
of the county jail's psychiatric ward where he was being kept away from
other inmates during trial. His lawyers said it was too noisy for him to
sleep.

Instead, he'll switch places with another inmate: Cochran, his alleged
accomplice.

"Mr. Cochran won't be getting a good night's sleep," the judge said. "Mr.
Cannon will."

(source: St. Petersburg Times)