[Deathpenalty]death penalty news----USA, S. DAK., ALA., TENN.
rhalperi at mail.smu.edu
Wed Sep 21 18:31:22 CDT 2005
Judicial Conference Supports Citing Unpublished Opinions Policy-making arm
of federal judiciary takes no position on splitting of 9th Circuit
The policy-making body of the federal judiciary on Tuesday endorsed a
sweeping rule change that will allow lawyers to cite unpublished opinions
in federal appeals courts nationwide beginning in 2007.
The Judicial Conference also voted not to take a position on the
controversial question of whether the sprawling 9th U.S. Circuit Court of
Appeals should be split in two. Members did, however, agree that they
would oppose any circuit-splitting bill that does not provide adequate
funding for the costs involved. The issue has been debated by Congress for
years without resolution.
The citation rule change, if ratified by the Supreme Court and untouched
by Congress, would end a practice that brought charges of a hidden,
unaccountable system of justice against some of the nation's largest and
most important appellate courts. The 2nd, 7th, 9th and federal circuits
ban citation of unpublished opinions outright, while 6 other circuits
Passage of the resolution by voice vote followed "a great deal of debate,"
said Judge Carolyn Dineen King, chair of the executive committee, at a
post-meeting news conference.
She said passage was eased by an amendment introduced at the meeting that
would make the change prospective only, meaning that lawyers will be able
to cite only those unpublished opinions issued after Jan. 1, 2007. King
also stressed that individual circuit courts will be able to set their own
rules about the precedential value unpublished opinions can be given.
The conference vote is something of a bouquet tossed to its likely next
chairman, chief justice nominee John Roberts Jr. As a private practitioner
and then as a judge on the U.S. Court of Appeals for the D.C. Circuit,
Roberts served on the advisory committee that recommended the new rule,
32.1. "A lawyer ought to be able to tell a court what it has done,"
Roberts said at the April 2004 meeting at which the advisory committee
first endorsed the rule.
At his Senate Judiciary Committee confirmation hearings last week, Roberts
said he was in line to chair the advisory committee in October -- now
unlikely, since as chief justice he would chair the entire Judicial
Conference. The conference's standing committee on rules of practice and
procedure approved the citation rule in June of this year.
"This is one of the things John Roberts took a personal interest in," said
Mark Levy, who heads the appellate advocacy group at Kilpatrick Stockton
and was another member of the advisory committee along with Roberts. "It
will be a terrific change that will make the process fairer and more
Michael Schmier of the California-based Committee for the Rule of Law
said: "We have worked for 10 years to see this day. We are gratified that
the mechanism by which the rule of law is imposed upon the judiciary is
restored." Schmier said that the federal rule change could have a ripple
effect on California and other states that have their own non-citation
The meeting of the Judicial Conference was presided over by Justice John
Paul Stevens in the wake of the death Sept. 3 of Chief Justice William
Stevens "did a fine job," King said. "He has a great deal of charm." The
conference -- composed of the chief judges of all 13 circuits as well as
one district judge from each circuit and the chief judge of the Court of
International Trade -- passed a resolution mourning the loss of Rehnquist,
who presided over the conference for nearly two decades. As many as 80 %
of all appeals court opinions are designated "unpublished," though most
are available on electronic databases or from the courts themselves. The
practice of issuing uncitable, unpublished opinions -- many of them brief
dispositions drafted by law clerks or staff attorneys -- developed over
the past 30 years as a time-saving device for overburdened appeals judges.
Critics say the practice produced a body of often conflicting opinions
that did not need to be harmonized and could not be cited or reversed.
A significant faction of appeals judges, led by 9th Circuit Judge Alex
Kozinski, resisted the rule change, complaining that it would
exponentially increase their workload by forcing them to polish and beef
up the unpublished opinions.
After Tuesday's vote, Kozinski said, "I don't have any comment. I think
it's a bad idea, but that's what it is. Maybe the Supreme Court will
Kozinski, who encouraged other 9th Circuit judges and practitioners to
write letters in opposition to the rule change, also asserted the change
would increase litigation costs by expanding the universe of cases lawyers
must search on behalf of clients. But a study by the Federal Judicial
Center, issued in April, found that in circuits that had decided in recent
years to allow unpublished opinions to be cited, neither problem had
materialized to a significant degree.
But another leading opponent of the rule change said that survey was
misleading because it takes a long time for lawyers and judges to change
their practices. "In years to come, you are going to see briefs loaded up
with this junk law," said Sanford Svetcov of Lerach Coughlin Stoia Geller
Rudman & Robbins in San Francisco, who voted against the move in the
advisory committee. But Svetcov acknowledged that the momentum was
strongly in favor of the rule change. "There was a freight train running
downhill, with only me and Judge Kozinski standing in the way."
Stephen Barnett, emeritus law professor at the University of California,
Berkeley, a leading proponent of the citation rule change, said that the
Judicial Conference deserved credit for "refusing to be swayed by an
elaborate letter-writing campaign from the 9th Circuit." The conference,
he added, "has followed an extensive process of deliberation, research,
and reason to a courageous and laudable result."
(source: Legal Times)
CaseCentral Becomes a Founding Sponsor of Pro Bono Net's Corporate
Mission to Provide Legal Assistance to Low-Income Individuals and Groups
Depends on Support from Entire Legal Community
CaseCentral, the leader in electronic discovery and litigation management
solutions for major law firms and corporations, today announced that it
has become a founding member of Pro Bono Net's Pro Bono Net Corporate
Sponsorship Program. The purpose of the new program is to work directly
with the legal community that supports lawyers and law firms to raise
funds to support Pro Bono Net's mission.
Pro Bono Net uses information technology and a unique collaboration among
the various parts of the public interest legal community to bring legal
assistance to those who cannot afford it. Pro Bono Net offers assistance
in areas such as asylum law, death penalty cases, health law, human
rights, and prisoners' rights, and is currently providing support for
partnering legal aid and pro bono groups in 28 states, including Alabama,
Florida, Louisiana, Mississippi, Georgia, and Texas.
"Pro Bono Net's mission is vital to many people and communities, and we
believe it is important for the entire legal community to support the
group's efforts," said Chris Kruse, CEO and co-founder of CaseCentral. "In
our role as a vendor interacting with many of the largest law firms in the
country, I believe we can provide a broader forum for spreading the Pro
Bono Net message.
We look forward to working with Pro Bono Net and the other corporate
sponsors to create an entity that supports the legal community."
"The unmet need for legal assistance is huge," said Mark O'Brien,
co-founder and executive director of Pro Bono Net. "CaseCentral's support
as a founding corporate sponsor will not only help raise awareness of Pro
Bono Net within the legal community, but also improve our ability to
recruit and properly match attorneys with worthy cases that deserve the
highest caliber counsel."
About Pro Bono Net
With offices in New York City and San Francisco, Pro Bono Net is a
national, nonprofit organization that works in close partnership with
nonprofit legal organizations across the country to increase access to
justice for poor and moderate-income people and other vulnerable
populations. It does so through (i) supporting the innovative and
effective use of technology by the nonprofit legal sector, (ii) increasing
participation by volunteers, and (iii) facilitating collaborations among
nonprofit legal organizations and advocates working on similar issues or
in the same region. For more information, please visit
CaseCentral is the market leader in electronic discovery and litigation
management solutions for major law firms and corporations. The company is
chosen to handle many of the largest, most complex litigation projects in
the nation. CaseCentral provides the most widely used online document
repository, which hosts massive document collections for review by legal
counsel, providing anytime, anywhere access for large, dispersed
litigation review teams. The company is also rapidly emerging as a
capacity leader in the electronic discovery services market with fast,
affordable, high-quality electronic file conversion services.
Headquartered in San Francisco, CaseCentral has worked with 81 of the
largest 100 US law firms (the American Lawyer Top 100) and the legal
departments of hundreds of leading corporations worldwide. Founded in
1994, the company is backed by leading venture investment firms including
Advanced Technology Ventures and Housatonic Partners. For further
information, call 800-714-2727 or visit http://www.casecentral.com.
(source: PR Newswire)
Death penalty is condemned
The death penalty should be abolished if Americans want to rise above the
acts of criminals, according to a former death-row inmate.
"Society is supposed to be better than the criminal element," Gary Gauger
said Monday at Utah Valley State College. "We revert to the criminal
Gauger, 53, received the death penalty for the murder of his parents in
1993. He spent 3 1/2 years on death row before his conviction was
overturned. His address, which was part of UVSC's Ethics Awareness Week,
was 1 of 3 about capital punishment.
Illinois Gov. George Ryan later pardoned him. 2 members of a motorcycle
gang now are serving time for the murders - but only after a separate
investigation by the Bureau of Alcohol, Tobacco and Firearms.
Gauger found his parents' bodies on the family farm about 65 miles outside
of Chicago. Police in McHenry County, Ill., questioned him without an
attorney. Gauger didn't think he needed an attorney because he had nothing
to hide. He was naive, he said.
Police interrogated him for 18 hours. He was sleep-deprived and shocked by
the deaths. "I was very vulnerable," Gauger said. "They took advantage of
Police told him they found blood in his bedroom. They asked Gauger, a
recovering alcoholic, if he hypothetically could have blacked out and
murdered his parents. Gauger then described how he would have murdered his
parents in such a situation.
The "confession" was used against him during the trial. It was not
recorded, and the jury had to question whether they believed Gauger's word
over the police. They convicted Gauger, and the judge sentenced him to
"We need the mechanism to keep the police and prosecution honest," Gauger
said, insisting that all police interrogations must be recorded.
Gauger and his family were out of money and turned to a law professor at
Northwestern University who had earned a reputation for helping overturn
wrongful convictions. Sixty law students prepared an appeal.
In 1996, an appellate court determined Gauger's confession should not have
been used as evidence in the murder trial and ordered a new trial.
Prosecutors in McHenry County, where he now lives with his wife, never
Meantime, Gauger learned ATF investigators planted an electronic bug at a
motorcycle gang's chapter headquarters. The bureau was investigating
motorcycle gang turf wars.
Federal investigators heard people talking about the murders.
Randall Miller is serving a sentence of life without parole for the
murders. James Snyder was sentenced to 45 years but could be released
sooner for cooperating with investigators, Gauger said.
Still, Gauger does not wish his parents' murderers on death row. People
can have remorse, he said.
"There is no place in society for us to say, 'Yes, this man is evil. He
needs to be killed,' " he said.
(source: Desert Morning News)
Prosecutor Considers Death Penalty In Webster Murder
The Day County state's attorney says capital punishment will be a major
decision in the case against John Trautman, a Webster man accused of
killing a 26-year-old mother last week.
Danny Smeins says he has not yet decided whether to seek the death penalty
in the death of Stacey Gaikowski. He says all the evidence needs to be
examined, and much of it is still in the hands of law enforcement.
Smeins says the 39-year-old Trautman had been under investigation for a
"prior matter." He says Trautman was an immediate suspect in the slaying
because of what had taken place with the earlier matter. The prosecutor
did not elaborate.
(source: Associated Press)
Court denies inmate's execution preference
The Alabama Supreme Court on Tuesday rejected a request to delay the
execution of a Talladega man, who said he wants to die by electrocution
and not by lethal injection.
John W. Peoples Jr., convicted of murdering a Pell City couple and their
10-year-old son before taking their vintage Chevrolet Corvette, had asked
the Alabama Supreme Court to delay his execution, set for Thursday at 6
p.m. CDT at Holman Prison near Atmore.
In court papers filed Monday, Peoples said death by lethal injection would
violate the death warrant issued against him and the 1984 court order
calling for his death by electrocution, the means of executing condemned
inmates in Alabama at the time.
Alabama changed its primary method of execution from electrocution to
lethal injection beginning July 1, 2002.
"I think they correctly denied his motion," said Alabama Assistant
Attorney General Beth Hughes. She said Peoples' recent arguments about the
method of execution were a delay tactic without merit.
Alabama law states inmates who were sentenced to death row prior to July
1, 2002 could have requested death by electrocution by July 31, 2002.
Peoples sent his first letters asking for the electric chair to the Holman
warden and Hughes this month.
Prosecutors argued that Peoples simply made his request too late. No other
death row inmate has requested death by electric chair since Alabama
changed its execution method, Hughes said.
"It was a surprise because (the defense) had the opportunity to do that
and they didn't," Hughes said.
William C. Cagney, Peoples' New Jersey-based attorney, did not immediately
return calls Tuesday from The Associated Press.
Peoples, now 48, was convicted in 1983 in the murders of Pell City
businessman Paul G. Franklin, and his wife, Judy Choron Franklin, both 34,
and Paul Franklin Jr., their 10-year-old son.
The boy and his mother were beaten to death with a rifle, and Peoples led
authorities to the spot where their bodies were dumped in a field. The
man's body was too decomposed by the time he was found for investigators
to determine a cause of death.
Prosecutors in Talladega contended that Peoples killed the three because
he wanted the Fanklins' 1968 red Corvette. Peoples was arrested in the
Corvette soon after the slayings.
In his request for a delay of execution, Peoples also argued that his
trial attorney failed to make arrangements to get him a life sentence for
directing authorities to the bodies.
"John's trial attorney abandoned him to a death sentence, told his jury
they had no 'options' but to execute him," Peoples' state Supreme Court
filing reads in part.
According to court records, Judy Franklin wrote Peoples' name inside a
clothes hamper with eye makeup before she and her son were abducted.
Peoples' cousin, Timothy Gooden, also testified for the prosecution under
a plea deal that allowed him to receive a life sentence with the
possibility of parole.
Gooden, who was with Peoples the night of the killings, later claimed
investigators pressured him into testifying falsely against Peoples.
Gooden was re-indicted for capital murder and, after pleading guilty,
sentenced to life without parole.
(source: Associated Press)
Prisoner asks to be electrocuted
An Alabama prisoner scheduled to die by lethal injection Thursday has
asked the state to electrocute him instead.
John W. Peoples, 48, asked the Alabama Supreme Court to stay, or delay,
his death, saying execution by lethal injection would violate the death
warrant and the court order calling for his death by electrocution, the
only method the state was using at the time of his conviction in 1983.
State authorities asked the court to refuse his request, saying it is a
delay tactic without merit.
"Peoples should not be rewarded for his transparent attempt to game the
system. He offers no legitimate reason for waiting until the last minute
to challenge the State's method of execution," Alabama Assistant Attorney
General Beth Hughes wrote in the state's response.
Peoples was convicted of the 1983 murders of Paul and Judy Franklin and
their 10-year-old son, Paul Jr. Authorities say the motive was Franklin's
red Corvette. Judy Franklin and Paul Jr. were beaten to death with a
rifle. Paul Sr.'s body was too decomposed to determine a cause of death.
Peoples also contends in his motion for a stay that he received bad
counsel from an attorney who told him to help law enforcement early on in
a high-profile missing-persons case "but failed to counsel appropriate
arrangements with law enforcement authorities to resolve the matter short
of a death sentence," his Sept. 16 motion reads.
Peoples led investigators to the bodies, but received nothing in exchange.
In papers filed Friday, Peoples claims that he must be re-sentenced in
Talladega County before his execution is legal.
Alabama lawmakers switched the state's method of execution from
electrocution to lethal injection in July 2002. The law gave death row
inmates 30 days to file requests to be electrocuted if they wanted to die
Peoples' argued that he never made that request nor waived his rights to
have his sentence handed down in the specific terms on the death warrant.
On Sept. 8, he sent a handwritten note requesting the electric chair to
Holman Prison Warden Grantt Culliver, who carries out executions.
In asking for a re-sentencing, Peoples raised the case of Clyde Bachelor,
who had been sentenced "to be hanged by the neck until he is dead," in
accordance with the state's practice at the time. Before he was hanged,
the state switched to electrocution. In 1927, the Alabama Supreme Court
sent his case back to the Circuit Court for resentencing to electrocution.
Hughes argued that Bachelor's case was different, in part because Bachelor
raised his claims early on - not days before execution.
Alabama's electric chair, known as "Yellow Mama," remains in good working
order, said Alabama prisons spokesman Brian Corbett.
All 9 people executed since the law was changed have died by lethal
(source: The Birmingham News)
Jury hears doomed woman's futile pleas -- 911 tape captures children's
struggle with father, gunshots
The audiotape began with a frantic Freda Elliott telling a 911 operator
that her ex-husband, Parker Ray Elliott, had broken into her house with
violence on his mind.
The call ended 8, excruciatingly long minutes later with the woman's shout
for mercy: "Parker, please don't! Don't hurt my babies!"
Followed by deafening silence.
The 911 tape was the final piece of the state's proof in the first-degree
murder trial of Parker Ray Elliott, 43, who is charged with killing his
ex-wife, Freda, 42, and the couple's daughter, Rachel, 18.
Previously in testimony, the jury heard from Seth Elliott, 16, the only
survivor of the June 24, 2004, attack at the family's home near Culleoka.
They also had seen a police-made video of the crime scene, including an
image of Rachel's lifeless body lying on her mother's bed and close-up
images of .22-caliber cartridges littering the carpet. Rachel and her
mother were shot multiple times in the head.
But it was the 911 tape that had a decided effect on the jury of seven men
and five women. One member of the panel wiped away tears once, twice,
three times. A bailiff offered facial tissues to one alternate juror, who
also cried. The remainder of the jury, brought in from Wayne County to
hear the trial, listened with pained expressions.
Before the introduction of the audiotape, Circuit Judge Stella Hargrove,
outside of the jury's hearing, warned the audience she would not tolerate
emotional outbursts while the tape was played. With about 16 of Freda
Elliott's family in the courtroom, Hargrove asked spectators to seriously
consider whether they wanted to hear the disturbing tape. Most of the
woman's family left the room, including Seth.
The defense, knowing the tape probably would have a detrimental effect on
its case, had tried to stop its introduction. Assistant Public Defender
Shipp Weems argued that Freda Elliott was hiding in a closet in her
bedroom at the time of making the 911 call and did not witness what was
happening elsewhere in the house.
Weems said this lack of "personal knowledge" had been cause in another
case to exclude similar evidence from a jury. The defense, having already
admitted that Parker Ray Elliot was the shooter, is seeking a decision
based on diminished capacity, in other words, that the man lacked the
mental clarity at the time of the shootings to commit first-degree murder.
If found guilty, the defendant could receive the death penalty.
But District Attorney General Mike Bottoms noted that near the end of the
recorded emergency call, Freda Elliott identified her attacker, her former
husband, by name.
Hargrove agreed with the prosecution.
Jurors leaned forward when the "play" button was pushed. Members of the
prosecution and defense teams eyed papers on their desks for the most
part. Sheriff's investigators in the case, who no doubt had heard the tape
many times, leaned over in their seats, elbows dug into knees, hands on
What the jury heard for eight minutes was a woman frantic for help to save
her children from harm as Seth, armed with a Louisville Slugger baseball
bat, and Rachel, trying without success to push her father back into the
living room, struggled with their father.
At times, the mother's voice was just above a frightened whisper.
"He's going to kill them, hurry."
As the confrontation escalated, as the struggle grew closer to her
bedroom, Freda was inconsolable in her panic and fatalistic dread, only
made worse when shots reverberated through the small house.
"He's coming. He just shot the gun again. Please! Please!"
Finally, about 7 minutes into the recording, it is obvious that the
shooter is in the bedroom and knows the frightened woman is in the closet.
There is a commotion of a door being broken and shots being fired and
Freda's voice shouting her final words.
"Parker, please don't! Don't hurt my babies!"
The defendant, dressed in a blue, long-sleeved dress shirt, his back to
the gallery, showed no emotion as the incriminating tape played out. He
sat with elbows on the table, his fingers woven together and pressed so
tightly against his mouth his knuckles were often white. As the tape
neared its grisly conclusion, defendant Elliott's shoulders slowly listed
to the left.
"The state closes its case," Bottoms told Hargrove after the "stop" button
The defense team, led by Public Defender Claudia Jack, begins its case
today. She announced the first witness will be an expert, most likely a
mental health practitioner. She also told the court that Parker Ray
Elliott will not testify in his own defense.
Initially the trial was expected to last at least 10 days, but now is
expected to go to the jury before the weekend.
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