[Deathpenalty]death penalty news----PENN., MASS., CALIF., OHIO
rhalperi at mail.smu.edu
Mon Jan 2 00:05:37 CST 2006
Jan. 1, 2006
Welsh S. White | Former Phila. Prosecutor
Welsh S. White, 65, a former Philadelphia prosecutor and longtime
University of Pittsburgh law professor who emerged as a prominent critic
of the death penalty, died yesterday.
The cause of death was lung cancer, university spokeswoman Maddy Ross said
Mr. White was the author of a 10-year study of police interrogations and
wrote several books on capital punishment, including the forthcoming
Litigating in the Shadow of Death: Defense Attorneys in Capital Cases.
"His carefully crafted scholarly work helped change views of the death
penalty and the way that it is administered," Chancellor Mark Nordenberg
Mr. White joined Pitt's law faculty in 1968, following service as an
assistant district attorney in Philadelphia and a lawyer for the
Philadelphia firm of White and Williams, founded by his grandfather,
Thomas Raeburn White. He graduated from Harvard University in 1962 and
Penn Law School in 1965.
Mr. White is survived by his wife, Linda Timmons White; 2 sons, Henry
White and Ryan White; two daughters, Robin White and Kathryn Hawkins; and
2 brothers, William White and Alexander White.
Services are private.
(source: Philadelphia Inquirer)
Death Wish----Its been almost 60 years since our last execution. We went
to Texas to see what we could learn from a land that embraces capital
On October 6, it was Ronald Ray Howard's turn. Hed spent his last days
reading, sleeping, cleaning his cell, and receiving visitors. Hed
requested no last meal. At 6 in the evening, guards at the prison compound
in Huntsville, Texas, escorted him from a holding cell to the execution
chamber, a small, stark box of a room with brick walls painted turquoise,
empty but for a gurney covered by a thin mattress and a hospital pillow.
Members of the "tie-down team" fastened the gurney's leather straps around
Howard and secured his arms to the narrow boards that winged out to either
side of the mattress. They covered his lower body with a white sheet. They
stuck both his arms with IVs.
Attendants to the execution filed into 3 separate compartments: one small
viewing room for witnesses who had been close to the murder victim, one
for Howards witnesses, and another room from which an anonymous technician
would administer the poison. As a reporter, I was admitted to one of the
witness rooms - the victim's room, as it happened - where I stood behind
the widow and daughter and former colleagues of Bill Davidson, the man
Howard had killed 13 years earlier. From the back of the room, I found
myself in the odd position of straining to get a better view of something
I didn't want to see: Ronald Howard's execution.
"It's painfully surreal," a defense lawyer who had been to 2 executions
had warned me. "The idea that you go into a room where somebody's alive
and you're not going to come out until they're dead. . . . It haunts me."
Through the spaces between the bodies in front of me, I could make out the
warden stationed by Howard's head, the chaplain at his feet. A microphone
descended from the ceiling over the gurney, so that he could give his last
Howard was a big handsome 32-year-old black man from Houston who had shot
and killed Davidson, a white state trooper, when Howard was 18. He lifted
his head from the pillow and faced the barred window that separated him
from our room. "To the victim's family," he said softly, "I hope this
helps a little. I don't know how, but I hope it does.
"And to y'all," he added, turning to the other window, behind which his
younger brother and 2 friends were watching, "I love y'all. You know I
love you." He thanked them for locating several of his children and
repeated that he loved them. At 6:12, the lethal dose began flowing. "I
love you. I love you," he whispered before lying back down. One of the
drugs administered, pancuronium bromide, collapses the lungs; another,
potassium chloride, stops the heart from beating. Howard's last breath was
a sharp intake followed by a sigh.
Linda Sue Davidson and Kimberly Karl, Bill Davidson's widow and daughter,
waited before the window, just a few feet from Howard, their arms around
each other. They were substantial women in heavy makeup; the widow wore a
mans wedding band on a chain around her neck. After Howard closed his
eyes, they turned to face each other and whispered, "I love you." Then
they kissed lightly. At 6:24 Howard was pronounced dead by a doctor in a
dark suit and rubber gloves.
This is the way it goes in Texas, which has executed more people than any
other state and carried out more than 1/3 of the executions in the United
States since 1976. Howard was the 14th person to be executed here in 2005,
the 350th since Texas reinstituted the death penalty 30 years ago. More
than 2/3 of Texans support the death penalty, though it's not as if they
clamor for it: The machinery of capital punishment has been grinding away
steadily for so many years that another execution barely draws notice,
much less outspoken approval. Although Howard's crime was notorious at the
time it went to trial, most people had long forgotten about it by the time
of his execution.
In truth, lately there's been more discussion of the death penalty in
Massachusetts than in Texas. The last 3 Massachusetts governors have all
supported capital punishment. In 2003, the death sentence handed down to
Gary Lee Sampson - convicted under a federal death penalty statute after
murdering 2 people in Massachusetts during carjackings - reignited debate
within the state. Then last April, Governor Mitt Romney introduced a bill
that would have reinstated capital punishment, only to see state
representatives reject it in November. "We knew it was an uphill battle,
but it's still disappointing as I hoped the Legislature would take a
second look at the protections built into my bill," he says. "My hope is
that over time the members of the Massachusetts Legislature will come to
believe, as I do, that there are some crimes that deserve the ultimate
penalty and that just as science can free the innocent, it can also
identify the guilty." Last month, in announcing he won't seek re-election,
Romney said getting his death penalty bill passed with a
Democratic-controlled Legislature was impossible.
The governor's critics scorned his proposal as a mere political gesture,
one that would endear him to conservative voters were he to run for
president. Even so, Romney's attempt to bring a "state of the art" death
penalty system to Massachusetts illustrates the enduring support for
capital punishment - in a 2005 State House News Service poll, 2/3 of the
state's residents favored his proposal - while pointing to the same
questions raised in my mind by Ronald Howards execution: How does the
death penalty help? What purpose has it served? And given the egregious
flaws in existing death penalty systems, could the death penalty ever be
Between the time of Howard's initial conviction in 1993 and the present,
the death penalty has come under greater scrutiny around the country, in
large part because of the number of exonerations from death row - 122
people have been released since 1973, 54 of them since 1997. DNA testing
of evidence has accounted for some of those cases, but only a fraction.
Almost 90 % of exonerations have resulted from other developments, such as
the recanting of witness testimony or refinements of forensic techniques,
according to the Death Penalty Information Center. These cases highlight
not only the risk of convicting and killing an innocent person (an act
that has almost certainly happened) but also the broader flaws and
inequities of the process. Still, the executions continue. Since 1977, an
average of 1 person every 10 days has been put to death in the United
States - more than 1,000 total - and another 3,400 sit on death row in the
38 states that have capital punishment.
The flaws in death penalty systems have convinced many to support state
moratoriums, most prominently George Ryan in 2000, when he was governor of
Illinois. Before Romney sent his bill to the Legislature, he both
acknowledged the widespread criticism of existing systems and challenged
the assumption that they couldnt be fixed by convening a commission to
come up with a better system for Massachusetts. The state needs a death
penalty, he says. Although there's little research evidence that the death
penalty serves as a deterrent to crime, in an interview with me shortly
before his bill was voted down, he insisted that it would. "Studies can
show whatever you want them to show," he says. "Punishment has an impact
on action, and the idea that a more severe punishment would have an impact
on action is obvious to even a schoolchild. There's absolutely no question
but that the death penalty would reduce a certain number of heinous
In December 1923, after Texas legislators voted to replace locally
administered hangings with state electrocutions, an electric chair (soon
to be known as "Old Sparky") was installed in the Huntsville prison.
Captain R.F. Coleman quit his job as the Huntsville warden a month later.
"It just couldn't be done, boys," he told reporters. "A warden can't be a
warden and a killer, too. The penitentiary is a place to reform a man, not
to kill him."
The record of Texas's capital punishment system, likened to a lottery by
Texas Monthly magazine after a 2002 investigation, suggests how difficult
it is to impose a death sentence justly. The Texas system's shortcomings -
among them court-appointed defense lawyers napping during a trial and
inept crime labs - have been widely publicized.
It is indigent defendants who end up with narcoleptic legal representation
- and who end up on death row. "Most of the people that are sentenced to
death are the underprivileged and the poor," says James Marquart, a
professor of criminology at the University of Texas at Dallas and coauthor
of a history of the state's capital punishment. "We define them as being
different from the rest of us, and when somebody is defined as different,
you can treat them in some pretty harsh ways."
Back in 1972, in part because of evidence that the death penalty was meted
out disproportionately to poor and minority defendants, the Supreme Court
ruled that capital punishment as it had been practiced was
unconstitutional. To resume executions, state legislatures had to draw up
stricter sentencing guidelines for juries to follow. In Texas, that meant
making only certain kinds of murders eligible for capital punishment and
requiring that juries find the defendant to be a continuing threat to
society. Since the change in the law, the racial bias in death sentencing
has been reduced in Texas, but black defendants still make up the highest
percentage of the states death row.
Take Ronald Howard, who grew up in Houston's South Park ghetto and started
stealing cars and dealing drugs as a teenager. The DA who prosecuted him
portrayed him as a ruthless gang member; his own attorney maintained that
gangsta rap had prompted him to kill Davidson. No one disputed that on the
night of April 11, 1992, Howard was driving a stolen GMC Jimmy down a
highway in Jackson County south of Houston when Davidson pulled him over
for a broken headlight. As the officer approached, Howard grabbed a 9mm
pistol his mother had bought at a pawnshop. He rolled down the window,
took one shot, then drove off. Other officers took up the chase, and
Howard slammed the car into a house before being caught. Davidson died a
few days later.
Murder of a law enforcement officer is a capital crime in Texas; whether
to seek the death penalty in a capital case is up to the district
attorney. "We get all the information we can and find out about mitigating
and aggravating factors," explains Lyn McClellan, a prosecutor for the
Harris County district attorneys office. "Is this a first offender? Does
he have mental disabilities? Does he have drug problems? This is all taken
into consideration on whether or not we'll seek death or try it as a
Texas death penalty trials are divided into 2 phases: the guilt-innocence
phase and the punishment phase. It's this 2nd phase that charges 12
ordinary people with weighing another person's worth. They consider
whether the offender is likely to pose a future threat to society and
whether any mitigating factors might merit sparing him or her. Thus the
decision about death depends a great deal on the temperament of the jury
and the quality of the storytelling in the punishment phase of the trial.
Jurors who have just found someone guilty of a brutal murder are not
typically disposed toward lenience, but the defense attorney's job is to
try to explain "what were the influences that went into making this person
who they are, be they societal problems or issues, mental health issues,
family issues," says John Niland, director of the Texas Defender Services
Capital Trial Project.
In Howard's case, tried a year after the crime, the Jackson County DA,
Robert E. Bell, sought the death penalty. Since Howard admitted guilt, the
only question at issue was whether he would live or die. Trying to
persuade the jury to let him live, defense lawyer Allen Tanner explained
that Howard had lived all his years in a neighborhood where relations
between residents and police were poor and in a city where 2 people had
been killed in confrontations with law enforcement officers in recent
years. He said that Howard felt Davidson had pulled him over just because
he was black. He said that Howard had been to jail before and hadn't
wanted to go again and that Howard thought by wounding Davidson he might
get away. Tanner said Howard hadn't intended to kill Davidson and didn't
pose a risk to society. And he said that Howard had been listening to
albums that advocated violence against cops, like Tupac Shakurs 2Pacalypse
Now. He even played rap recordings for the jury. (One wonders whether this
helped or hurt Howard's cause.) Bell, on the other hand, characterized the
murder as "a coldblooded execution" of a husband and father just doing his
job. After 6 days of deliberation, during which 2 of the jurors held out
for life, the jury agreed with the prosecution and voted unanimously for
In the view of prosecutors like McClellan, death sentences result from the
horrible facts of the crime itself, not the quality of the lawyers.
"People think, 'These Texas juries, theyll kill you,'" McClellan says.
"Well, these Texas juries are about 60 % people from up north. I defy you
to find one thats not. People think everybody here was born and raised
Texan with a 6-shooter on their side, and that's just not the way it
But without belittling the seriousness of Howard's crime, even a death
penalty supporter might question whether the 18-year-old should be
sentenced to die for it. Or whether we ought to execute those who murder
impulsively in the course of a robbery. Are they "the worst of the worst"?
Marquart, a capital punishment supporter, maintains that the death
sentence has undergone something like mission creep. When legislators
designed the new law in the 1970s, he says, "you had to be a continuing
threat to society, with a sustained history of violence and pathology in
your background. It was Ted Bundys and people like that - thats what they
wanted in the beginning. To me, the death penalty has just been overused
for crimes that I don't think meet that kind of criteria."
So what would a "better" death penalty system look like? Enter Mitt
Romney, who pledged during his 2002 campaign for governor that he would
attempt to reintroduce capital punishment in Massachusetts. In 2003, he
appointed an 11-member commission to develop recommendations for "a new
kind of death penalty," one that would be narrowly applied and require the
highest possible standard of evidence. The Massachusetts Governor's
Council on Capital Punishment, which included scholars, lawyers, and
forensics experts, did not consider whether capital punishment should be
reinstated - only how a better law might be written - and its members
pledged to set aside their opinions about the morality and desirability of
the death penalty.
"I actually deliberated for months before accepting the appointment, in
part because I work at a hospital, where our mission is to alleviate pain
and suffering," says Frederick Bieber, a forensic DNA expert and associate
professor of pathology at Harvard Medical School who served as cochairman
of the council. "And I wondered, quite frankly, whether it might be an
inherent conflict to have any role in a discussion of taking a life." But
in the end, he accepted "with enthusiasm," he says, "because 38 states and
the federal government and the US military all have legislation allowing
the death sentence, and many are beginning to reevaluate their existing
laws, and I felt if we did a good job, we could have a positive influence
on other groups."
In contrast to the reform commission called for by then-governor Ryan in
Illinois, the Massachusetts group was not constrained by a death penalty
law already on the books, with its associated institutions and vested
political interests. The commission operated free of practical concerns.
What a capital punishment system would cost and how it would be
implemented were outside its purview, a great advantage, according to
Joseph Hoffmann, an Indiana University law school professor and a
cochairman of the commission. "The governor said, Give us the gold
standard; tell us the best we can do,' and that's the reason I got
involved," Hoffmann says. "It was an opportunity to go places nobody had
gone before and put together something better than anything that exists
The commissioners limited death-eligible crimes to a short list of highly
aggravated murders: murder committed as political terrorism or to obstruct
justice; murder following prolonged torture; multiple murders; or murder
committed by someone who had already been convicted of 1st-degree murder.
Some of the commission's other recommendations, incorporated into Romney's
bill, required the use of scientific evidence and a "no-doubt" standard of
guilt to avoid false convictions, established a system of
capital-case-qualified defense lawyers to represent the accused, and
incorporated multiple layers of review that would detect bad cases or
wrongful convictions. To have a fairer death penalty, Hoffmann says, the
state would have to implement all of the proposals, not pick and choose.
"These are not in isolation, and one of the real dangers is to think that
if we just do 1, 5, and 7, we'll be all right," he says. Like Bieber,
Hoffman hopes the commission's work will influence reform in other states,
even if a death penalty bill never passes in Massachusetts.
Problems with capital punishment elsewhere, however, are directly linked
to a state's unwillingness to pay the high price of strong capital
defense. "How many on death row get executed because of a failure of their
lawyer?" asks David Dow, director of the Texas Innocence Network at the
University of Houston Law Center. "Almost everybody. Getting death is only
distantly related to what he did. Proximately, it's that he had a bad
lawyer, a corrupt prosecutor, corrupt police - that is what lands people
on death row. We still have lawyers abandon their clients at various
stages of the legal proceedings." Ronald Howards lawyer, Dow contends,
failed to file a final appeal with the US Supreme Court. And while the
state can require that death penalty cases go to more experienced lawyers,
as Texas did in 2001, "what you can't guarantee is an adequate defense,
because the state is not willing to pay the lawyers enough," Dow says.
That's not a problem only in Texas. Massachusetts lately has had trouble
assigning lawyers to poor defendants in criminal cases because of the low
fees paid by the state. Last year, Romney denounced lawyers' refusal to
take such cases and, initially at least, resisted calls for raising the
pay scale. But Romney brushed away questions about the cost of his
proposal. "This is not a measure based on cost. This a measure based on
life, the preservation of life through the deterrent of the death
penalty," he told me. "In my view, those people who oppose the death
penalty on moral grounds have an understandable and fair posture, but
those who try to manufacture other reasons are ducking."
The last time Massachusetts came close to passing a death penalty law was
in 1997, after Jeffrey Curley, a 10-year-old Cambridge boy, was abducted,
sodomized, and murdered by 2 men. The crime received heavy media coverage,
and in the Legislature, the 10-vote margin opposing passage of a death
penalty bill dissolved overnight. The Senate adopted one version, and the
House voted 81-79 to pass another, and only in a 2nd House vote did the
bill fail, because 1 legislator changed his mind. Since then, the state's
Republican governors have continued to support the death penalty while the
margins against it have widened in the House and Senate (the House vote on
Romney's bill was not even close, 99-53, and the Senate has no plans to
even consider it). Most anti-death-penalty activists feel fairly secure
that Massachusetts will not reinstate capital punishment. "We've had
leadership in the Legislature who are opposed to the death penalty, which
means that no one's pushing it from within," says Norma Shapiro of the
Massachusetts ACLU. Still, the activists admit, another crime as gruesome
as the Curley murder could tip the balance back the other way.
2 weeks before his execution, Ronald Howard granted me an interview. We
spoke by prison phone, seated on opposite sides of a window in the
visiting room at the Polunsky Unit, where Texas death row is housed. He'd
been saying his goodbyes, preparing for his "date," but at the same time
he was trying not to worry too much about it. He was soft-spoken and
reflective. "To be real, I feel like if somebody did something to your
little one, your loved one, you want revenge," he said. "I want to say no,
because I feel like all people can change, but I find myself being
conflicted when I think about my own loved ones.
All in all, if I was to have to say, a punishment of life probably would
be fine. That's more of a punishment anyway. Who wants to grow old in
Speaking of his own case, he continued, "I'm in trouble for having killed
a police officer. That one instance labels me for the rest of my life. Is
that fair? It's not a process that you really get the worst of the worst,
there's no way to ever do that. On Texas death row, you have a lot of
people who were between 18 and 22 years old when they got into trouble. 10
years later, are they the same person? Some of them may still be, but a
lot of us grew up. A lot of us did things we weren't proud of when we were
kids. Do we need to be killed now?"
For McClellan, the Harris County prosecutor, the death penalty is
"society's right of self-defense." Though, unlike Romney, he doubts that
it has a deterrent effect, he likens the death penalty to someone's
shooting his attacker. "When you do an unpardonable act that can never
ever be changed, you have to face the consequences," he says.
But what consequences? The risk of convicting and killing an innocent
person is itself one argument against the death penalty, but even the
sentencing of murderers who are certainly guilty raises a difficult
question: Is there a systematic way of determining who "deserves" to die?
Last year, at an Indiana Law School conference convened to analyze the
Massachusetts Governors Council report, one scholar noted that requiring
the prosecution to meet a "no doubt" standard of guilt would leave some of
the most heinous crimes ineligible for the death penalty.
I asked Howard what he thought of the jurors whod condemned him. "I wish
they could have had a chance to really know me instead of just
sensationalism," he said. "I wasn't the person I was portrayed to be. I
would never try to tell you that I was an angel, but I wasn't that
horrible, the worst of people. No, that wasn't me."
The state of Massachusetts last executed a man in 1947, when convicted
murderers Philip Bellino and Edward Gertson were put to death in the
electric chair at Charlestown State Prison. In the 1950s and '60s, the
death penalty was legal in Massachusetts, but a series of
anti-deathpenalty governors refused to sign the death warrants of the
convicted. And in 1957, Governor Foster Furcolo appointed a commission to
study abolishing the death penalty. The majority on the commission
concluded that the death penalty did not offer the community more
protection than did life imprisonment and recommended that it be
The Supreme Judicial Court declared the death penalty unconstitutional in
1975 and again in 1984, but the issue of capital punishment nevertheless
keeps rearing its head in political campaigns. "We're still living with
the fear that rising crime instilled in people," says Boston College
professor Alan Rogers, who is writing a history of the death penalty in
Massachusetts. "Anyone who has aspirations of running for governor or
higher political office does have to say something about the death
penalty, and usually what they have to say is that they are in favor of
Because Romney didn't assign anyone to study the necessity, cost, or
practical implementation of a death penalty statute, critics believe his
proposal was never serious. "It's solely symbolic," says Franklin Zimring,
a law professor at the University of California at Berkeley. "What
happened in Massachusetts is the governor said: 'Look, I want to have a
death penalty. Go find out for what I should have it.' And they come back
and say, 'Practically nothing, but it'll be pretty safe.'"
So perhaps Romney did invent the perfect death penalty, one that would
never send the wrong man to the execution chamber - a death penalty that's
only the idea of the death penalty, never turned into law and therefore
never liable to any of the error and injustice that actual death penalties
(source: Karen Olsson is a contributing editor for Texas Monthly and the
author of a new novel, Waterloo; Boston Globe)
Death penalty backlog to stay?
The execution of Crips gang co-founder Stanley Tookie Williams at San
Quentin State Prison and the looming lethal injections of 2 more men early
next year have revived a long-running discussion over whether executions
will accelerate on the nation's largest death row.
Scholars and attorneys have been projecting a revolving door into
California's death chamber, but despite three executions likely in 3
months, California isn't about to turn into an execution mill.
"I've said often we don't want to churn them out like they do in other
states," California Supreme Court Chief Justice Ronald George said
Since 1977, when the death penalty was reinstated, California has executed
only 12 inmates, while 646 inmates now wait their turn at San Quentin. It
took 24 years to put Williams to death Dec. 13 for 4 1979 shotgun murders
in Los Angeles County.
By comparison, Texas, the nation's most frequent executioner, has carried
out 355 killings since 1982.
Death row's growth in California was fueled in part by tough-on-crime
prosecutors eager to please voters - 68 % supported the death penalty in a
poll last year - and an overloaded court system careful not to kill the
More than 100 of the condemned haven't been appointed an attorney for
their mandatory first appeal to the California Supreme Court, in part
because lawyers aren't willing to undertake the extensive training
required or accept the $125 hourly rate paid by the state, which is low by
Even when lawyers are appointed, it takes years to exhaust all appeals.
The most recent killer who reached that stage is Clarence Allen, who is
scheduled to die Jan. 17 for ordering the murders of 3 people in 1980.
At 75, he is the oldest on death row and is blind, deaf and uses a
wheelchair after having a heart attack.
Only 1 other condemned man, Michael Morales, has been cleared for
execution by all courts. Morales, 46, was sentenced to die for the 1981
rape and murder of 17-year-old Terri Lynn Winchell in Lodi and is expected
to be headed for the death chamber in February.
"This constant wait has kept the nightmare of her murder constantly before
our eyes, waiting for justice to be served," said Winchell's mother,
The next condemned inmate in line, Mitchell Sims, 45, likely won't be
executed until late next year, if at all, for killing a Glendale pizza
deliveryman in 1985. His final appeal rests with the U.S. Supreme Court.
On appeal, inmates usually allege evidence was wrongly admitted at trial
and that jurors were biased, and typically blame their attorneys for poor
After a direct appeal to the state's high court, they often appeal again
to the same justices with new complaints.
As many as 162 condemned inmates haven't been provided an attorney for
their 2nd state appeals.
Challenges also languish in the federal system, where about 170 capital
appeals are waiting their turn in district courts. Nearly 3 dozen cases
are before the 9th U.S. Circuit Court of Appeals in San Francisco, which
has reversed more death sentences than it has approved since California
lawmakers reinstated the capital punishment.
"Most people understand, when we're talking about the state taking
somebody's life, you want to make sure everything is done by the book,"
said Judge Alex Kozinski, a President Reagan appointee on the 9th U.S.
Circuit Court of Appeals.
The backlog has prompted the graying of death row where inmates idle for
decades. 4 times as many inmates have died of natural causes, suicide or
murder than the dozen inmates put to death since 1977.
Congressional legislation in 1996 was meant to speed the appellate
process, and by all accounts it is beginning to limit federal appeals,
which experts say will eventually shorten the time from conviction to
"If things keep going the way they are going, we are going to have
multiple executions each year, which will eventually be monthly and beyond
that," said Santa Barbara capital defense attorney Robert Sanger.
"Mathematically, it's just a matter of time."
California lawmakers hold no illusion that the country's biggest death row
will begin shrinking anytime soon. Despite proposals at the Capitol for a
moratorium on the death penalty, legislators have approved $223 million to
build a new death row at San Quentin.
At more than $300,000 per cell, the new death row is projected to have 768
cells, and prison officials said they could begin double bunking when
Assemblyman Joe Nation, D-San Rafael, opposes the prison expansion. It's
in his district and he wants the aging facility dismantled.
"By the time this is constructed, death row will have at least 1 inmate
per cell," Nation speculated. "My prediction is the Department of
Corrections will then come back to the Legislature and ask for more money
for yet another death row expansion."
(source: Associated Press)
State expects number of executions to rise
California's capital punishment debate -- ignited by the execution of
Stanley "Tookie" Williams -- will likely intensify as the state prepares
to carry out death sentences at a pace unseen in more than a generation.
Williams, the quadruple murderer and co-founder of the Crips whose tale of
redemption failed to spare his life last month, was the 12th inmate
executed in California since voters reinstated capital punishment nearly 3
In 2006, 4 inmates could enter the execution chamber, including the
state's oldest death row resident, 75-year-old Clarence Ray Allen,
according to the state attorney general's office.
Who is next
This month, Allen is scheduled to die by lethal injection for
masterminding a 1980 triple homicide in Fresno. He has been on death row
at San Quentin State Prison for 23 years.
Also facing likely executions in 2006, according to the attorney general's
- Michael Angelo Morales, who arrived on death row in 1983 for the rape
and murder of a teenage girl in Lodi. A judge is set Tuesday to schedule
an execution date that could be in February or March.
- Mitchell Carlton Sims, who was convicted 20 years ago of murdering a Los
Angeles-area pizza deliveryman. Sims will soon file a petition in the U.S.
- Stevie Lamar Fields, convicted in 1979 of the kidnap, rape and murder of
a University of Southern California student librarian. A federal appeals
court ruled against him this month, but that court may not be done with
27 years after Californians voted to reinstate capital punishment, large
numbers of death-row inmates are approaching the end of the decades-long
appeals process. Since the practice resumed in 1992, only 3 times has the
state executed more than 1 inmate in a single year.
More than 640 on row Dane Gillette, capital case coordinator for the state
attorney general's office, said he expects to see more executions
beginning next year.
"2 to 3 years from now, it's possible to have a considerable number of
cases," he said.
With more than 640 inmates sentenced to execution, California has the
largest death row in the nation. About 120 inmates' appeals are pending in
federal district court.
Californians have overwhelmingly embraced the idea of justice through
capital punishment for the state's most violent criminals.
More than 70 % of voters approved reinstatement of the death penalty in
1978. And last year, 68 % of California voters voiced their support of the
death penalty, according to the nonpartisan Field Poll.
That number, though significant, was actually down from the 83 % of
Californians who supported capital punishment in 1986.
Another survey, by the nonpartisan Public Policy Institute of California,
found that 57 % of residents polled last year believed in the death
penalty. But support dropped to 38 % when life without parole was offered
as an alternative sentence for a 1st-degree murderer.
The 2004 polling numbers also show that more than 1/3 of voters do not
agree that the death penalty has been imposed fairly or free of error.
The doubters and DNA
Among the doubters is Donald Heller, the Sacramento attorney and former
federal prosecutor who drafted the state's 1978 death penalty initiative.
Heller, now a defense attorney, said he has grown disturbed over the years
at how the law has been applied.
He says the proposition he wrote has been enforced in a way he believes is
unfair and discriminates against the poor and people of color.
At least 6 California inmates sentenced to death were later acquitted of
murder charges or had charges overturned and not reinstated, according to
San Francisco-based Death Penalty Focus, a grass-roots group seeking to
abolish capital punishment.
The introduction of DNA evidence and accounts of innocent inmates on death
row -- including the death sentence commutations in Illinois by then-Gov.
George Ryan 2 years ago -- have inevitably influenced attitudes in
California, Heller said.
Appeals don't begin to move until the California Supreme Court appoints
defense lawyers. But with willing and qualified defenders in short supply,
that takes about 3 years on average, and new lawyers usually must be
appointed as cases progress from one phase to the next.
Once a defendant is sentenced to death, an automatic appeal process begins
in the California Supreme Court. In addition to the appeal, a condemned
inmate also has 3 years to file a new case with the same court, making
claims based on new evidence and asserted constitutional violations before
or during the trial.
If the state Supreme Court denies all relief, as it almost always does,
both cases move to the federal system.
The appeal goes to the U.S. Supreme Court with a request for review.
The constitutional case, known as "habeas corpus," goes to federal
district court, then the 9th U.S. Circuit Court of Appeals, before making
its way to the U.S. Supreme Court. New cases may be filed as investigators
continue to dig for new evidence.
Appeals limit sought
Rep. Dan Lungren, R-Gold River, is backing new legislation to limit
federal review of inmate appeals. He said "interminable delays" in the
appeals process have allowed cases to pile up over the years, delaying
justice for victims' families and the courts that imposed the sentences.
The bill has encountered unexpected resistance, however, from the chief
justices of the 50 states, who have voted unanimously to oppose it.
"We are concerned with speed and efficiency, but we're also concerned with
fairness," said California Chief Justice Ronald George, a former death
penalty prosecutor who has done much to expedite death penalty cases in
the state court system.
(source: Sacramento Bee)
Do Not Execute Clarence Ray Allen!
Take action at
Clarence Ray Allen
Jan. 17, 2006
Clarence Ray Allen, a white man, faces execution in California on Jan. 17,
2005 for 3 counts of murder and conspiracy in Fresno County. Allen is said
to have masterminded a number of robberies and murders in Fresno County,
including the murders of potential witnesses against him while he was in
Reviewing Allen's case, the U.S. Ninth Circuit Court of Appeals in 2005
found that Allen's trial counsel had been inadequate. Allen's sentence was
not reversed and no retrial was called for because the court also believed
that the evidence in the case was overwhelming. Unfortunately the
supposedly overwhelming evidence mostly consisted of the testimony of
Allen's several accomplices. Allen's accomplices paint Allen as the
mastermind who forced them by threats and scare tactics to commit
robberies and murders.
Considering the admittedly inadequate representation that Allen received
at trial and the sources of much of the evidence against him, clearly the
appropriateness of Allen's sentence is questionable.
Furthermore, in a dissenting opinion, California Supreme Court Justice
Broussard discusses the unconstitutional instruction of Allen's trial
jury. According to Broussard's dissent, language used, particularly by the
prosecution, to instruct the jury may have led them to believe that they
had no option but to return a death sentence at the penalty phase of
Allen's trial. The prosecutor told the jury that "if you conclude that
aggravating evidence outweighs the mitigating evidence, you shall return a
death sentence." According to previous court opinions the law does not
require a death sentence in such a situation. Instead the jury is always
expected to make a normative decision. According to Broussard "[s]hall,
not may, not might, not maybe...is very explicit... [t]here is nothing
equivocal in this language, and no freedom for the jury to make [a]
normative decision." Clearly the jury instruction in Allen's penalty phase
may have prejudiced his sentence.
Allen's execution date is the day after his 76th birthday. 75-year-old
Allen uses a wheelchair to get around. His advance case of diabetes has
left him blind. Also, Allen suffered a heart attack on Sept. 2.
Considering his age and health in addition to his inadequate trial
representation and prejudiced jury, it is unacceptable for Clarence Ray
Allen to be executed.
Recorded in front of a captive audience, At Folsom Prison is the album
that made Johnny Cash. How did he end up playing behind bars? Over to Gene
'We've been invited to go to Folsom Prison with Johnny Cash," Dan said. It
was early January 1968. Dan Poush and I were a team, working for the
Star-Free Press in Ventura, California. He was the photographer; I was the
"Who invited us?" I asked.
"A minister I met at a New Year's Eve party." In that era such an
invitation sounded dubious, especially when he added: "He's one of Cash's
The Reverend Floyd Gressett, the pastor of the Avenue Community Church, in
Ventura, called me a few days later. "John and June (Carter, his wife) are
coming into town the day before the concert," he said. In those days,
before the At Folsom Prison album changed his life, our newspaper tended
to write negative stories about Cash, like the time neighbours complained
about him playing loud Christmas music from the rooftop speakers on his
Johnny Cash's Folsom Prison concert had its beginnings many years before.
Gressett ministered to inmates in the California State Prison system. He
had been visiting Earl C Green in the county jail. After Green was
convicted, Gressett went to see him on death row at San Quentin, where he
was scheduled for execution.
"After 18 months on 'the row'," Gressett told me, "he received a reduced
term to life imprisonment and was transferred to Folsom Prison. I
continued to visit him at Folsom and he became the "Voice of Folsom
Prison" on its radio station."
Green was a country music fan who especially loved Johnny Cash's records.
"One time when I visited Green," Gressett said, "he asked me what the
possibility was of Johnny visiting the inmates." Gressett told him he
would see what he could do.
It took 2 years to schedule a day for the appearance. That 1st,
unpublicised concert was held in November 1966. It was such a success that
whenever Gressett visited the prison again, the inmates and officials
asked when Cash could return. It occurred on January 13, 1968.
As we stepped off the plane, she looked at the beautiful California
weather and in her southern belle style, proclaimed: "It's a
We arrived at the El Rancho Motel and checked in. While waiting for the
others, we all met in one of our rooms. Gressett said he had a favour to
ask of John.
"Johnny, I want you to hear a song written by Glen Sherley, an inmate in
Folsom, serving life for armed robbery. I thought if you could mention
tomorrow that you've heard the tape, it would please that ol boy who wrote
"Does anyone have a tape recorder?" Cash asked.
"I do," I replied, and went to get the reel-to-reel Sony recorder that I
had brought to record the concert for research purposes.
"All right, this is a take on 'Greystone Chapel'" a deep voice, similar to
Cash's own voice, said on the tape. Then the singing began: "Inside the
walls of prison, my body may be, but the Lord has set my soul free..." As
the lyrics filled the room, accompanied by a bass beat from the prisoners
guitar, Cash's usual straight-faced, deep-creased cheeks began changing to
a smile, with his eyes glowing, radiating enthusiasm.
The next day we left the motel in black limousines and arrived at the
California State Prison at Folsom just after 8 a.m. The huge gates of
Folsom opened to allow us inside. A 2nd set had to be opened after the 1st
was shut behind us. Once we were inside some of the prisoners hollered
welcomes and praise as Cash walked across the yard's concrete path to a
temporary dressing room. "How you doin'?" Cash asked individual prisoners.
Just before 11 a.m., DJ Hugh Cherry from Los Angeles introduced Carl
Perkins, who began warming up the crowd with hits such as "Blue Suede
Shoes". Then the Statler Brothers sang. Finally, the one they were all
waiting for came out, sat on his stool centre stage and said in that deep,
godlike voice: "Hello... I'm Johnny Cash." Johnston was right. The
applause was deafening.
I was sitting in the audience with Cashs father, Ray, and looked around at
the prisoners with some trepidation. I had never been in a prison before.
Johnny started right in: "I hear the train a-comin', it's rollin' around
the bend /And I ain't seen the sunshine since I dont know when.../ I'm
stuck in Folsom Prison and time keeps draggin on..."
A middle-aged black man in the audience, sitting close to the front rows,
began to grin, showing his missing upper teeth. Another man, who looked
like he might be a mechanic with a wife and 3 children in your own
neighbourhood, stroked his thinning, red hair with his right hand and
waved the other in the air as he whistled.
That number finished, the prisoners cheered and screamed again. 2 guards
in the wire cage high up over the stage looked nervous, staring out into
the faces of a thousand convicts.
Cash ran through songs including "Dark as a Dungeon", "I Still Miss
Someone" and 19 others, backed by the Statler Brothers, the Tennessee
Three and June Carter joining in on songs such as "Jackson". The highlight
came when Cash announced he was going to sing Glen Sherley's "Greystone
Chapel". Sherley jumped out of his front-row chair with a smile I will
"I hope I do your song justice," Cash told Sherley. The prisoners roared,
screaming and stomping their feet, while the guards on the catwalks
clutched their rifles.
We ate at the prison and returned for a second show. It was close to 10pm
when it all ended with "The Orange Blossom Special", and sweat was rolling
down Cash's face as he played the final notes on his harmonica.
As we left the prison, June said: "You know why the prisoners like Johnny
so much? They know he's been in trouble before and looks as mean as they
do. They identify with him." When we got back to the motel in Sacramento,
Johnston got a call from Chuck Gregory, Columbia's PR man. "How did it
Johnston replied. "It's going to be a great album." Carl Perkins added
that it was an example of Cash's ingenuity: "He takes a $1.98 tape into
Folsom Prison and comes out with an album."
(source: The Statesman (India) - Originally published in the Virginia
Quarterly Review, Winter 2005. Walk the Line opens on 3 February)
Do Not Execute John Spirko!
Take action at
January 19, 2006
The state of Ohio is set to execute John Spirko, a 59-year-old Caucasian
man, on Jan. 31, 2005 for the 1982 kidnapping and murder of Betty
Mottinger in Van Wert County.
Mottinger was the postmistress in Elgin, Ohio when she disappeared on Aug.
9, 1982. Her body was found several weeks later in a field; she had been
stabbed multiple times. At the time of the crime, John Spirko had already
developed a criminal record. He was incarcerated in Kentucky for murder in
1970. After his release in 1980, he was incarcerated again for parole
violations and faced a longer sentence after an attempted escape from jail
in October of 1982. Facing a potential transfer to Kentucky's penal system
to continue his life sentence for which he had originally received parole,
Spirko decided to take advantage of everything he had read about the
Mottinger case. He knew that police were anxious to find the killer, and
he thought he might be able to lessen his punishment by providing
information, even if the information he would provide was false.
In interviews with police, Spirko implicated a few men in the kidnapping
and murder of Mottinger. Although all of the leads he provided to police
turned out to be false, authorities were not able to locate one suspect,
Delaney Gibson. Gibson and Spirko met in prison in Kentucky, and during
the few months Spirko underwent interviews with police about the Mottinger
murder, Gibson was hiding as a fugitive and was not questioned. When
Gibson was eventually arrested in late 1982, police found that he had an
alibi for the time period directly before the crime. He was in North
Carolina, more than 500 miles away just hours before the crime was
committed. Gibson admitted that he was friends with Spirko but denied any
involvement in the murder of Mottinger. Gibson escaped from jail again
before trial, but after a grand jury indicted both Spirko and Gibson.
The case presented against John Spirko was fraught with evidence of
prosecutorial misconduct. Nearly all of the evidence presented by the
prosecution rested on the purported collaboration between Spirko and
Delaney Gibson, his friend and so-called accomplice. One prosecution
witness testified that she was "100 percent sure" that Gibson was at the
post office on the day of the kidnapping. Another eyewitness, giving
testimony under hypnosis, stated that he was about 70 % sure that Spirko
was at the post office as well. The prosecution repeatedly stressed to the
jury that Spirko and Gibson were close friends, probably hoping that this
would sway jurors to believe that they would have been and were together
at the post office on the day of Mottinger's disappearance. However, the
prosecution did not present Gibson's alibi to the jury nor to the defense
attorneys, something the prosecuting attorneys should have done under the
law.During the appeals process, the Sixth Circuit Court argued that even
though the prosecution withheld the information about Gibson's whereabouts
prior to the crime, a reasonable jury would still have convicted Spirko
based on his knowledge of nonpublic information. This is factually
incorrect. The prosecution highlighted several facts that Spirko knew
about the crime, including the number of times the victim was stabbed and
the location of the wounds. Actually, this information was made public
through newspaper articles prior to Spirko's comments about the crime to
police. Only two pieces of information that Spirko supposedly provided
have still been upheld as nonpublic. This case demonstrates the snags in
our justice system. Eyewitness testimony is consistently unreliable. In
this instance, the eyewitness who placed Gibson at the scene of the crime
insisted that he was clean shaven although pictures of Gibson at times
before and after the crime showed him having a full beard. Delaney Gibson
was never charged for the murder of Mottinger. He was arrested several
more times in the 1980s, yet Ohio prosecutors never sought to try him for
the murder of Mottinger, even after they so ardently argued his
involvement during Spirko's trial. Gibson was paroled in Kentucky in 1998.
Finally, in 2004 charges were dropped against Gibson. Van Wert County
Prosecutor Charles Kennedy acknowledged that it was a circumstantial case
in the 1980s and that too much time had passed to try Gibson. In fact,
there is no statute of limitations for murder. The state's unwillingness
to try Gibson only adds to the argument that their case against him was
weak at best. Without the state's confidence that Gibson was truly
involved in the crime, how can it possibly defend the conviction of Spirko
knowing that there was no forensic evidence linking Spirko to the crime,
nor is there a written or recorded confession of his involvement?
In an Amicus Curiae brief presented to the Supreme Court, four former
prosecutors and judges note that the prosecutors urged the jury to look at
the bits and pieces of evidence they presented in a sense of the "whole
package." Over time, they note that the "whole cloth has unraveled down to
the thread of 2 possibly nonpublic facts an investigator asserted John
Spirko told him- and that investigator was demonstrably wrong in his
assertion that the other facts were nonpublic." In the words of the
brief's authors, "A man's life should not dangle by so thin a thread when
there exists opportunity for further inquiry." The truth is, the state of
Ohio should not be defending the conviction of John Spirko, and it most
definitely should not uphold his execution date. Please write to Governor
Taft in support of clemency.
State execution rate declines in 2005 ---- But number of death sentences
increases, against U.S. trend
The number of executions and people on Ohio's death row shrank last year,
but the state bucked a national trend with more death sentences.
Ohio executed 4 killers last year, a drop from 7 in 2004 and far behind
the nation-leading 19 in Texas.
The number of killers on Ohio's death row - moved late in the year from
the Mansfield Correctional Institution to the Ohio Penitentiary at
Youngstown - dropped from 205 to 194 after peaking at 212 in 2003. The
decline was partially attributed to a suicide, an overturned murder case
and deaths from natural causes.
Nationally, the number of inmates on death row dropped for the 5th
At the same time, Ohio had seven death sentences handed down in 2005 -
including Roland Davis, of Licking County. He was convicted of robbing and
fatally stabbing Elizabeth Sheeler, an 86-year-old widow from Newark, in
4 death sentences were meted out statewide in 2004.
The Death Penalty Information Center in Washington reported that fewer
than 100 death sentences were handed down nationally last year, a decrease
from 125 in 2004 and the lowest number since capital punishment was
reinstated in 1976. The number of death sentences averaged 300 annually in
the 1990s, the center found.
While the number of murders remained about the same nationally in recent
years, juries increasingly have looked at other options.
"The year 2005 may be remembered as the year that life without parole
became an acceptable alternative to the death penalty in the U.S.," said
Richard Dieter, executive director of the Death Penalty Information
Center. "More states are adopting this alternative as deathpenalty
problems persist." Ohio's 1st execution of 2006 might be further delayed,
officials with Attorney General Jim Petro's office said. John G. Spirko
Jr. is scheduled to die Jan. 19, once Gov. Bob Taft's reprieve expires.
The state is doing DNA testing on several items connected with the 1982
slaying of Betty Jane Mottinger, a northwestern Ohio postmistress.
However, another execution is likely to take place. Glenn Benner, 43, of
Summit County, is to die Feb. 7 at the Southern Ohio Correctional Facility
near Lucasville. He was convicted and sentenced to death for the 1985
kidnapping, rape and murder of 26-year-old Cynthia Sedgwick at Akron's
Blossom Music Center.
Benner, who has no legal appeals remaining, also was convicted of
murdering Trina Bowser, 21, in January 1986.
Joseph Wilhelm, chief counsel of the death penalty section for the Ohio
Public Defender, said life without parole is having an impact.
Between 1990 and 1995, there were 81 death sentences in Ohio, an average
of 13.5 per year, Wilhelm said. After a law allowing the sentence of life
without parole was adopted in 1996, the numbers shifted. Between 2000 and
2005, death sentences were cut nearly in 1/2 - a total of 42, or 7 per
"The trend is a reduced number of death sentences," he said. "As some of
the older cases wind their way through, there'll be occasional
Likewise, James V. Canepa, deputy chief attorney general for criminal
justice, predicts a "steady, if not consistent, number of executions for a
number of years to come.
"Overall, systemwide, you could see a decrease."
In both capital and other felony cases, advances in DNA testing are
playing an increasingly important role.
A non-death penalty case from Summit County - Clarence Elkins, who just
before Christmas was cleared by DNA evidence of murdering his
mother-in-law and raping his niece - gave Petro the platform he needed to
push for renewal of an expired DNA testing law.
The law, which expired in October, allowed inmates serving time for a
felony with at least a year remaining on their sentence to request DNA
testing. Canepa said Petro is seeking a legislative sponsor for a bill
renewing the DNA law.
While the attorney general is "quite confident" that death row convictions
are sound, Canepa said noncapital matters such as the Elkins case aren't
scrutinized and might need further examination.
"It doesn't shake the confidence," Canepa said of Elkins' exoneration by
DNA evidence. "What it does is underscore the need for a better
understanding of DNA science at the county level and state level."
(source: Columbus Dispatch)
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