death penalty news----TEXAS, OHIO, N.C., KY., USA (fwd)
rhalperi at mail.smu.edu
Wed Mar 8 17:16:01 CST 2006
Rail killer running out of options----As execution date nears, his
ex-lawyer misses appeal deadline
Serial killer Angel Maturino Resendiz's chances of eluding a May 10
execution appear remote after his former attorney failed to file an appeal
on time, causing the Mexican government to step in and request the case be
"I missed the deadline without justification," said Leslie Ribnik,
Maturino Resendiz's former court-appointed attorney.
Ribnik did not file on time an appeal of a federal judge's ruling denying
a writ of habeas corpus. Ribnik filed an affidavit last fall stating that
he botched the case, but he argued that his failure should not affect his
former client's appeal. The decision on whether to let the appeal proceed
rests with the 5th U.S. Circuit Court of Appeals.
Such deadline errors are not without precedent, and they can be
insurmountable, said David Dow, a University of Houston law professor and
founder of the Texas Innocence Network.
"Whenever a death row inmate's case is in the posture Resendiz's is in,
it's very difficult to have the merits of any issues addressed by either a
state or federal court," Dow said. "I think the prospects are not great."
Assistant District Attorney Roe Wilson was more blunt.
"He's through with the courts," Wilson said.
Other 'urgent matters'
Maturino Resendiz was convicted of capital murder six years ago for the
Dec. 17, 1998, bludgeoning of Dr. Claudia Benton in her West University
Place home. Fingerprints, DNA and stolen items recovered from Maturino
Resendiz's home in Mexico tied him to the slaying. He pleaded not guilty
by reason of insanity.
The killer, who has been linked through confessions and other evidence to
the deaths of 12 other people across the country, was captured in the
summer of 1999 after a nationwide manhunt.
Last Sept. 7, U.S. District Judge Lee Rosenthal denied the writ. But
Ribnik made no move because he was "working on several other urgent
matters at the time," he stated in his affidavit.
Ribnik did nothing until a Mexican Consulate official in Houston contacted
him Nov. 1 about Rosenthal's ruling. The Mexican government takes a keen
interest in death-row cases involving its nationals and because its legal
system does not practice capital punishment.
Maturino Resendiz and 15 other Mexicans sit on death row in Livingston,
according to the Texas Department of Criminal Justice's Web site.
On Nov. 10, Ribnik visited Maturino Resendiz at the Polunsky Unit to tell
him of the judge's ruling, issued two months before. Ribnik filed an
appeal five days later requesting the case be reopened.
"I do not wish my actions in this case to affect in any way Mr. Maturino
Resendiz's ability to appeal the denial of habeas corpus relief," Ribnik
stated in the court document.
Appalled by misstep
The Mexican government hired Houston attorney Jack Zimmermann and Rob Owen
of Austin to take up the appeal.
"Quite frankly, my government is appalled that Mr. Ribnik failed to notify
his client of the court's decision, and failed to file the single document
necessary to preserve his rights to appeal," wrote Carlos Gonzalez
Magallon, Mexico's consul general in Houston, in a letter submitted to
Magallon, through a spokesman, declined to comment for this article.
Zimmermann said he has not filed a subsequent writ and continues to review
the case. He declined to address Ribnik's work.
In his appeal, Ribnik raised only one claim, about how jurors in capital
cases determine a death sentence is more appropriate than life. Ribnik
argued that the prosecution should bear the burden to disprove beyond a
reasonable doubt that "mitigating circumstances" presented by the defense
do not merit leniency. Rosenthal, in her opinion, said the argument was an
illogical extension of federal law.
Ribnik said he did not pursue the issue of Maturino Resendiz's mental
illness because it was raised during the trial.
'Half angel, half man'
Maturino Resendiz confessed to killing Benton and eight others in a crime
spree across the country while traveling aboard freight trains. In 2000,
he also gave investigators in Florida information that led to the recovery
of 2 bodies. He has been linked to at least two other homicides as well.
During his trial, Maturino Resendiz's defense presented evidence that he
is a paranoid schizophrenic who suffered delusions he was "half angel,
half man," forced to kill his victims through "God's will." He suffered
head injuries, and had a history of drug abuse and mental illness in his
family. Prosecutors presented testimony that he still was able to discern
right from wrong.
If Zimmermann discovers there are remaining legal issues he may not have
the chance to appeal them. The law precludes mention of those issues not
raised in initial appeals. Zimmermann said that after his review of the
case he may agree with Ribnik's decision to appeal only one issue.
If Maturino Resendiz is denied further appellate review and executed May
10, Ribnik said he will be left with sadness and regret.
"There's no getting around the fact that I screwed up, and I need to take
my lumps on that. These are life-and-death matters," Ribnik said. "It
reminds me of the seriousness of my work."
Dow said Maturino Resendiz's notoriety may ultimately doom further review
of his case.
"Judges are elected, and death-penalty issues are recurrent issues in
campaigns," Dow said.
"For a judge or group of judges to grant relief, even if it is absolutely
appropriate under the Constitution, to a murderer is a politically risky
(source: Houston Chronicle)
Baird, Shepperd win Democratic primary races -- Shepperd faces no
Republican opponent in November general elections
Former state appeals judge Charlie Baird and Assistant County Attorney
Eric Shepperd prevailed Tuesday night in the Democratic primaries for two
judgeships based in Travis County.
Baird defeated Assistant District Attorney Buddy Meyer and will face
Republican Madeleine Conner, 43, in the November election to succeed
retiring state District Judge Jon Wisser in the 299th District Court,
which handles felony cases.
Baird earned 7,248 votes to Meyer's 5,011.
"I look forward to public service for the people of Travis County," Baird
said. "The people . . . are concerned about the high rate of incarceration
for nonviolent, low-level drug offenses and similar offenses, and I plan
to do something about that."
During the campaign, both Baird and Meyer said they would support lenient
sentences - mainly probation - for 1st-time, non-violent felony offenders.
Shepperd, running for judge of Travis County Court-at-Law 2, which handles
civil cases, will not face a Republican opponent in November. The
incumbent, Orlinda Naranjo, is running for a state district judgeship.
Shepperd won in one of the tightest margins of the night - 9,354 votes to
Elena Diaz's 9,198 votes.
"I'll take 156; it's 155 more than I needed," Shepperd said. "I had lot of
dedicated people and some really good consultants helping me."
Baird, 50, graduated from the South Texas College of Law and was a Texas
Court of Criminal Appeals judge in the 1990s. He currently splits time
between Austin, where he sometimes works as a visiting judge, and Lubbock,
where he is an adjunct professor at Texas Tech University.
Meyer, 53, graduated from the University of Houston law school and is a
longtime deputy to Travis County District Attorney Ronnie Earle.
Meyer called the campaign "a positive experience" and said he is looking
"forward to what the future may hold."
Baird, who has advocated for death-penalty reform in recent years, said
his experience checking the work of trial judges at the highest criminal
appeals court in Texas has prepared him to make the tough legal decisions
that trial judges face. During his campaign, he pledged to administer
quick justice by holding more jury trials. Doing so, he said, would cause
defendants to enter plea bargains more quickly and ease the crowded Travis
Meyer said he would hold lawyers to strict deadlines to keep cases moving
and ease jail crowding. He said for years he has done some of the work of
a judge in the district attorney's office, where he said he has been
charged with ensuring that justice is done.
Shepperd, 46, is a University of Texas law school graduate who has worked
as director of civil litigation in the Travis County attorney's office
since 1992. Before that, he worked in the enforcement division of the
Texas Attorney General's office.
During the campaign, Shepperd ran advertisements touting his work in the
early 1990s against the East Austin gasoline tank farms, where he said he
helped get leaking tanks closed at a site owned by oil companies near
Springdale Road and Airport Boulevard. He and another Austin lawyer also
spearheaded the renaming of the Travis County courthouse after civil
rights pioneer Heman Sweatt last year.
Diaz, 50, graduated from UT's law school and is the justice of the peace
for Travis County's Precinct 4.
During the campaign, she said she didn't feel she should have had to face
competition in the primary because she had "earned the opportunity to sit
on this bench and to replace a sitting Hispanic female judge."
(source: Austin American-Statesman)
OHIO----new execution date
Execution planned for Lucas County man
The Ohio Supreme Court today set an execution date for death row inmate
Joseph Clark for the 1984 shooting death of a gas station employee on
Clark, 57, will be put to death by lethal injection on May 2. He would
become the 1st person from Lucas County to be executed since Ohio
reinstated the death penalty in 1981.
Clark gunned down David Manning during the Jan. 13, 1984 hold-up at the
Clark Station on Airport near Byrne Road. Mr. Manning was shot once in the
Clark fatally shot an employee a day earlier during the robbery of a
convenience store on Hill Road and Wenz Road. Donald Harris, an employee
at the former Lawsons, was shot in the back of the head when he unlocked a
safe for Clark.
He admitted to the robbery of the Clark Station and shooting of Mr.
Manning after he was arrested for robbing a bank.
(source: Toledo Blade)
1998 murder conviction upheld
The state Court of Appeals on Tuesday upheld the 1st-degree murder
conviction of Donald John Scanlon, who was convicted of suffocating a
retired Durham schoolteacher after she befriended him and gave him odd
In doing so, the appellate court rejected contentions that Scanlon was
cheated because two Durham lawyers failed to properly explore suicide or
poor health as possible causes for the 1996 death of victim Claudine
The 64-year-old woman was found dead in her bed with a large plastic bag
over her head.
Tuesday's ruling was the latest in a long string of legal convolutions
that kept Scanlon's fate in limbo for several years.
Scanlon originally was sentenced to die. However, the death penalty later
was set aside and he was granted a new punishment hearing because of what
was described as sloppy work on the part of his original attorneys.
Then, rather than investing the time and money that a 2nd sentencing
procedure would have consumed, prosecutors in August 2004 allowed Scanlon
to plead guilty to 1st-degree murder in exchange for a life prison term.
But even after that, Scanlon still had to wait for the Court of Appeals
decision that finally came down Tuesday.
His unsuccessful appeal contended, among numerous other points, that he
deserved an entirely new trial because lawyers Brian Aus and Lee Castle
gave him "ineffective assistance of counsel" during the original
proceedings in 1998.
For example, the 2 attorneys failed to present sufficient evidence about
Harris' lifestyle, alleged cocaine use and poor health, and also about
severe depression that might have led her to commit suicide, according to
In fact, one expert witness testified in a post-trial hearing that Harris
likely did commit suicide, while another classified the cause of death as
The hearing also included evidence that Harris had suffered from a serious
heart condition for some 20 years. She underwent coronary bypass surgery
in 1991 and was at a hospital with chest pains not long before she died,
Had jurors known all this, they might have concluded that Harris killed
herself or died of natural causes, Scanlon's appeal argued.
But the Court of Appeals said Tuesday that even if Aus and Castle were
"objectively unreasonable" in their work for Scanlon, the suspect was not
harmed by their "use or non-use" of Harris' medical records in the 1998
Appellate judges also rejected various other arguments in the appeal,
including an assertion that Durham prosecutors improperly withheld
evidence that might have helped Scanlon.
There was one small win for Scanlon on Tuesday, however. The Court of
Appeals set aside convictions he received for stealing Harris' car and
credit cards -- an action that has no bearing on his life prison sentence
(source: The Herald Sun)
Attorneys Ask Easley To Save Death Row Inmate's Life
FAIRNESS?: Defense attorneys say a man set to be executed next week should
be spared because of questions about his mental capacity and the lighter
sentence given to his girlfriend for the 1994 killing of her husband. They
asked Gov. Mike Easley during a clemency hearing Tuesday to commute
Patrick Moody's sentence to life in prison.
APPEALS: Moody's attorneys have also filed an appeal in federal court
arguing the state uses an inhumane method of lethal injection. The U.S.
Supreme Court has refused to consider in a Florida case if the drugs used
during injection executions resulted in unconstitutionally cruel
FUTURE: A favorable decision from Easley or the courts could block the
execution scheduled for 2 a.m. on March 17 at Central Prison in Raleigh.
(source: Associated Press)
Review requested in DNA case----Attorney general says the order for new
trial could set precedent
The N.C. Attorney General's Office has filed a motion asking the N.C.
Supreme Court to review a judge's order for a new trial for Rex Penland,
who spent 11 years on death row after he was convicted of killing a
Winston-Salem prostitute in Stokes County.
In its filing on March 3, the state said that the order needs review
because it could set a precedent for cases in which new DNA testing could
be seen as favorable to a defendant.
The state said that Judge John O. Craig of Stokes Superior Court, who
ordered the new trial, didn't take into account the entire case against
Penland to make his ruling.
Penland, 45, was convicted in 1994 of kidnapping, raping and stabbing
Vernice Alford to death on Nov. 30, 1992, on a logging road in southern
Penland's twin nephews, Gary Sapp and Larry Sapp Jr., testified at his
trial that they were with Penland when he picked up Alford and drove to
Stokes County. They testified that he raped Alford and had them tie her to
a tree.They said that Penland then stabbed her to death with a hunting
knife. Investigators later seized a blood-stained knife from Penland.
To explain the blood on his knife, Penland testified that he had cut
himself while hunting deer. Penland said he was drunk and passed out in a
pickup and did not take part in the rape and murder.
DNA testing last year showed that the blood on the knife was not the
A "limited profile" from the DNA was consistent with the blood being
Penland's, and no one else's blood was on the knife, according to the lab
report cited in the state's filing.
DNA testing also showed that the semen evidence collected in the crime was
not Penland's and that it did not come from either of the Sapp brothers.
Defense attorneys have said they believe that the brothers, who were
charged with 1st-degree murder and rape, lied after prosecutors promised
them favorable treatment. The Sapps each pleaded guilty to lesser charges
and each served less than 5 years in prison.
After reviewing the new DNA evidence, Craig vacated Penland's sentences in
August and ordered a new trial.
Craig said that a 2001 state law allowing cases to be reopened based on
new DNA testing left him no choice, even though he did not believe that
the evidence was enough to clear Penland.
The law says that a judge must enter a ruling that serves the interests of
justice when DNA results are favorable to the defendant.
The state said in its filing that Craig's interpretation could "lead to
absurd, windfall results" when DNA is favorable to a defendant, even if
there is other evidence in the case that would lead to a conviction.
Ken Rose, an attorney for Penland, said that the state was trying to make
it appear that there are many cases similar to Penland's, when there are
Rose said that when the DNA testing was requested, a judge had to rule
that the evidence could have led to a different outcome had it been used
in a trial.
The state did not oppose the request for testing but now is contesting
Craig's order because it does not like the results, he said.
Rose said he would file to have the state's motion dismissed because it is
late. He said that the state had 60 days to file after getting a
transcript of the hearing before Craig, but the state took about 70
The state disagrees, said Noelle Talley, a spokeswoman for Attorney
General Roy Cooper.
"We do disagree that it was filed late, but we really can't comment
further since the matter is pending litigation," she said.
(source: Winston-Salem Journal)
Judge orders mental evaluation for Ky. man facing death penalty
In Ironton, defense lawyers filed a motion Tuesday asking for a mental
examination of a 20-year-old Hitchens, Ky., man facing the death penalty.
Lawrence County Common Pleas Judge W. Richard Walton ordered the Shawnee
Forensic Center in Portsmouth to determine if John David Anderson is
competent to stand trial on charges of aggravated murder, aggravated
burglary and two counts of aggravated robbery. The charges carry the
possibility of a death sentence if there is a conviction.
Anderson is charged with murdering 71-year-old Arthur Boyer, who lived in
the Deering area. The house also was set on fire and Boyer's car, some
weapons and other items were stolen, according to Mack Anderson, an
assistant county prosecutor. The car and some other items were recovered
after the arrest, Anderson said. The Andersons aren't related.
Walton ordered Shawnee Forensic Center to examine John David Anderson to
determine his mental condition at the time of the commission of the
offenses with which he is charged. The exam will be done at the Lawrence
County Jail in Ironton where Anderson is being held on a $1 million bond.
It also could be done at the Shawnee Forensic Center in Portsmouth.
The examiner then will submit a written report of the examination to the
court within 30 days. The report requires the examiner to give an opinion
on whether Anderson is capable of understanding the nature and objective
of the proceedings and is capable of assisting in his defense.
The case is scheduled to go to trial April 10.
The competency evaluation, however, will probably lead to a continuance in
the case, Lawrence County Prosecutor J.B. Collier Jr. said Tuesday. The
defense motion "doesn't come as a surprise. There are serious consequences
in these types of cases," he said.
Defense lawyers Charles H. Knight of Pomeroy and William N. Eachus of
Gallipolis entered a plea of not guilty by reason of insanity in addition
to a former plea of innocent on behalf of Anderson.
The motion requires the court to order the evaluation of Anderson prior to
Collier said earlier that Boyer had pleaded for his life before he was
killed. Authorities said Anderson earlier admitted to setting the fire to
cover up the murder, robbery and burglary.
(source: The Herald-Dispatch)
The Death Knell of Residual Doubt: The Supreme Court Underestimates the
Relevance of Innocence
2 weeks ago, in Oregon v. Guzek, the United States Supreme Court held
unanimously that a capital defendant does not have the right to present
evidence of innocence for the first time at his sentencing hearing.
In an opinion by Justice Breyer, a majority ruled that the trial court had
not denied the rights of a condemned man, Randy Lee Guzek, when it refused
to allow the man's mother to provide alibi testimony at her son's
Though the Court avoided addressing the issue head-on, it strongly implied
that the Eighth Amendment right to present "mitigating evidence" to a
capital sentencing jury does not contemplate "residual doubt evidence." (A
defendant offers "residual doubt" evidence to show that although the jury
has found guilt beyond a reasonable doubt, enough doubt remains to caution
against a death sentence.)
The Court's judgment, though unanimous, was wrong.
The Right to Present Mitigating Evidence
In a group of cases that includes Lockett v. Ohio and Eddings v. Oklahoma,
the Supreme Court has read the Eighth Amendment to protect a capital
defendant's right to present mitigating evidence prior to being sentenced.
A defendant must be allowed to make a case to the jury that despite his
conviction, he or she does not deserve to die.
Accordingly, the Court held in Penry v. Lynaugh that Texas violated the
rights of mentally retarded defendants by failing to provide an avenue
through which they could offer evidence of developmental disability as a
basis for refraining from imposing the ultimate sentence. (The Supreme
Court has since held, in Atkins v. Virginia, that mentally retarded people
may not be executed at all.)
Was Guzek's Evidence "Mitigating"?
Was the alibi evidence that Guzek wanted to present at his sentencing
hearing "mitigating" evidence?
The Court correctly observed in Guzek that mitigating evidence offered
during the sentencing phase of a capital trial ordinarily goes to the
question of how, rather than whether, the defendant committed the offense
On the "how" question, the defendant - conceding his guilt -- might
present the jury with evidence suggesting that he played a less
significant role in the crime than an accomplice, that he is otherwise a
good person, or that he experienced a deprived childhood or suffered abuse
that made it hard for him to develop into a law-abiding adult.
Some defendants, instead or in addition to such mitigation, raise the
issue of innocence, on which they lost at trial. They do so to try to
create "residual doubt" - which, once again, is doubt that remains even
after a conviction and that cautions against imposing the irreversible
penalty of death.
Randy Lee Guzek had hoped to introduce such evidence by calling his mother
to provide previously unheard alibi evidence indicating that Guzek had
been with her during a significant portion of the time during which he had
allegedly been committing murder. If the jurors had found her testimony on
this point at all credible, then they might - despite their conclusion
that he did commit murder - select imprisonment over execution, just to be
on the safe side.
Such evidence goes to the question of "whether" rather than "how" (or why)
the defendant committed his crimes.
The Court Should Have Deemed Innocence Evidence "Mitigating"
Though there surely are differences between "how" and "whether" evidence,
the differences do not militate against the characterization of either one
Jurors' decision to impose a death sentence emerges from a sense of
confidence that the individual before them truly deserves to die. To
present mitigating evidence is to attempt to undermine that confidence.
For a juror who believes that the death penalty is sometimes justified,
any convicted murderer could potentially qualify for execution. The
details of the murder could be "aggravating" factors, in that they help
make the case for execution: the victim was especially vulnerable, or the
defendant's motive extremely ugly (greed or racial hatred, for instance),
or the murder one involving the infliction of excruciating pain.
Conversely, the details of the murder could mitigate culpability: the
victim cruelly taunted or otherwise provoked the murderer (though not
sufficiently to reduce the charge to manslaughter), the victim abused the
murderer in the past, or the killing was deliberately carried out in a
manner that would minimize the victim's suffering. Such details could
persuade jurors that the defendant deserves a "2nd chance" (to the extent
that life imprisonment can be so characterized) and is not beyond
Evidence of Innocence May Be the Most Mitigating Of All
Though such details about the commission of a crime might influence the
jury to take mercy on a guilty defendant, nothing could more effectively
shatter its confidence in the rightness of death than doubt about the
predicate fact of guilt.
No matter how heinous and cruel a murder, no juror wants to play a role in
sending the wrong person to die for it. And conversely, as terrible as a
life sentence may be, the jury that harbors some remaining doubts about
guilt (and therefore sentences a defendant to life) can comfort itself
with the knowledge that if facts demonstrating innocence emerge, the
wrongly convicted man will gain his freedom. To sentence a person to death
is to despair of any such possibility.
If we ask people who oppose the death penalty what drove them to their
position, their answers can illuminate the meaning of relevant mitigating
Some people oppose capital punishment because they believe that no one is
completely beyond redemption. While a supporter of the ultimate penalty
might disagree with the absolute nature of such a sentiment, he or she
could nonetheless use the "beyond redemption" criterion to separate those
who deserve death from those who do not.
Famously - with the emergence of "innocence projects," which investigate
and expose wrongful convictions - we now know that juries sometimes find
innocent people guilty of crime and occasionally sentence those people to
die. Many opponents of the death penalty cite as an explanation for their
stance the risk (and over time, the certainty) that the State will
unwittingly take the lives of innocent people in its quest to execute the
most heinous criminals among us.
Likewise, a group of jurors otherwise comfortable with the imposition of
the death penalty might well hesitate to impose the punishment on a
particular convicted defendant in the face of evidence that casts doubt -
even a small amount of doubt - on the correctness of the guilty verdict.
The Majority's Punt
The majority opinion punts on the ultimate question. It says that it does
not need to decide whether the Eighth Amendment ever requires the
admission of residual doubt evidence, because the State of Oregon's law
permits the defendant to offer such evidence as long as he already
introduced it at trial.
In a concurring opinion, Justice Scalia makes plain his irritation with
the Court's dodge of the real question. And Justice Scalia has a fair
point: the Court's logic throughout the opinion suggests that innocence
evidence is not mitigating at sentencing, only to surprise the reader at
the end by refusing to say so categorically. Unfortunately, asserts
Justice Scalia, such equivocation can only result in confusion among the
lower courts on the question of how much innocence evidence must be
admitted at the sentencing phase of a capital trial to satisfy the Supreme
Court's possible, but unlikely, requirement of residual doubt mitigation.
Most disturbing, however, is not the Court's cowardice in punting on this
question, but the lack of a single dissenting voice in the crowd. One
might have hoped that an opinion whose logic leads inexorably to the
exclusion of residual doubt evidence at capital sentencing would have
provoked, at the very least, a concurrence suggesting that a State that
refused to permit innocence evidence at the sentencing phase of a capital
trial would be acting in violation of the Eighth and Fourteenth
Amendments. In so hoping, of course, one would have been very
Is Residual Doubt Evidence Consistent with a Guilty Verdict?
Justice Scalia and a majority of the Court argue that evidence of
innocence is inconsistent with a verdict of guilt in the underlying crime.
They contend that the defendant has already litigated the matter of guilt
and has no right to turn the sentencing hearing into a referendum on the
This sounds reasonable enough, particularly when the jury adjudicating
guilt is the same one determining the sentence. But it ultimately is not
as reasonable as it sounds.
The earlier Court decisions requiring the consideration of mitigating
evidence stood precisely for the following proposition: Knowing that the
evidence proves a defendant guilty of murder beyond a reasonable doubt
cannot automatically lead to a death sentence. A jury must have the
opportunity to examine evidence suggesting that the guilty verdict (and
the evidence supporting that verdict) provide an incomplete picture of the
facts relevant to sentencing.
One way to fill in the gaps is to argue that the defendant suffered a
terrible childhood or otherwise failed to thrive in a way that might have
led to a different sort of life. Another approach is to argue that the
defendant has done a great deal of good in his life and, on the whole,
should therefore be spared in honor of that good.
And yet another, equally valid, way to paint a fuller picture of the
convict is to suggest that, even though he is extremely likely to have
committed the crime in question - likely enough to justify a sentence of
life imprisonment without the possibility of parole - the evidence
supports a small quantum of doubt - something less than "reasonable doubt"
-- that should lead the jury to hesitate in its imposition of the most
For the Court to refuse to provide space for such hesitation expresses a
confidence in the rightness of verdicts and executions, a confidence that
many jurors - and many judges who might have become Justices in place of
those who currently sit - might well not share.
(source: FindLaw (Sherry F. Colb, a FindLaw columnist, is Professor and
Frederick B. Lacey Scholar at Rutgers Law School in Newark)
Treaties shouldn't trump U.S. law----The Supreme Court must deny extra
rights for criminals who are foreigners.
POLICE OFFICERS across the country may soon have to add a new question to
the list of constitutionally required Miranda rights. In addition to the
right to remain silent and the right to an attorney, officers soon may be
required to ask every arrestee whether he is a foreign national who wishes
to contact his consular officials. If the officers fail to ask this
question, any defendant who is a foreign national may then have a right to
suppress evidence against him or to seek a new trial.
The sole basis for creating this sweeping new right for millions of
criminal defendants is a single provision in the Vienna Convention on
Consular Relations, a treaty ratified by the United States in 1969. In 2
upcoming cases, Sanchez-Llamas vs. Oregon and Bustillo vs. Virginia, the
Supreme Court is being asked to adopt a treaty interpretation that has
been rejected by every U.S. administration, the lower appellate courts and
every foreign court that has interpreted the treaty, as well as the high
court's own prior decisions.
Such an aggressive interpretation would threaten the constitutionally
protected right of the states to manage their own criminal justice
systems. It also would give anti-internationalists in the Senate a
powerful argument against joining new international human rights treaties,
rightly claiming that activist judges could adopt radical interpretations
far beyond the text or intentions of the treaty makers.
Moises Sanchez-Llamas, who is from Mexico, and Mario Bustillo, from
Honduras, were convicted of attempted murder and murder, respectively.
Both Sanchez-Llamas and Bustillo admit that they received the full panoply
of rights guaranteed by the U.S. Constitution, including their Miranda
rights to remain silent and to contact a lawyer. They nonetheless argue
that the failure of police to notify them of their consular treaty rights
entitles them to a new trial or the suppression of evidence against them.
While a number of leading attorneys, legal scholars and former diplomats
have filed briefs in support of Sanchez-Llamas and Bustillo, there are
serious flaws in their interpretation of the treaty. First, because
treaties typically involve relations between governments, there is a
standard presumption against finding an individual right in a treaty
unless that right is explicitly spelled out. The Vienna Convention speaks
of the rights of consular officers to be notified of the arrest, rather
than a right of the foreign national who is being arrested.
Moreover, because most foreign countries do not require their police to
notify arrested individuals of their constitutional rights or to suppress
illegally obtained evidence, it is inconceivable that the Vienna
Convention requires suppression of evidence seized in violation of the
Against this mountain of domestic and foreign precedent, the petitioners
can cite only one legal authority: the International Court of Justice in
The Hague. In two recent decisions, that court found that the treaty
creates an individual right for foreign nationals and also requires host
countries to allow review and reconsideration of treaty violations in
cases where foreign nationals have been sentenced to death.
Even if these decisions support the petitioners' interpretation (which
they may not), the Supreme Court has no legal obligation to follow or give
deference to International Court of Justice rulings - especially when the
interpretation would threaten U.S. constitutional precedents. For
instance, it is well settled that principles of federalism prevent
Congress from requiring state courts to suppress evidence obtained in
violation of a federal statute. Adopting Sanchez-Llamas' and Bustillo's
interpretation would allow a treaty to regulate state courts in a way that
no federal statute ever could.
Treaties are often unfairly viewed with suspicion because of fears that
future courts will expand them far beyond the intentions of those who
created the treaty. In many cases, such fears undermine the ability of the
U.S. to join treaties that advance important national interests such as
the advancement of human rights. The Supreme Court could go a long way
toward calming those fears by rejecting this latest invitation to engage
in judicial treaty activism.
(source: Opinion, By Julian Ku, who is an associate professor of law at
Hofstra University School of Law in New York. He and nine other law
professors filed an amicus brief in support of the respondents in the
The Death Penalty and the Gospel of Life----[By Bishop Paul S. Loverde]
The following homily was given by Arlington Bishop Paul S. Loverde at the
Respect Life Mass at Queen of Apostles Parish in Alexandria on March 4.
Todays Gospel scene is relived every day. Jesus comes to sinners and heals
them by forgiving their sins and drawing them to His Sacred Heart. What
enables them to be forgiven is their honesty, that is, their admission
that they have indeed sinned and are in need of Gods divine mercy. Seeing
that, Jesus says to them: "Those who are healthy do not need a physician,
but the sick do. I have not come to call the righteous to repentance but
Are we in this company of sinners? Can we admit our need for forgiveness?
Do we honestly confess our sins and ask the Divine Physician for
forgiveness and healing? In other words, can we - will we - admit that we
are truly sinners and, therefore, allow Jesus to come to us and save us?
Now, acknowledging our own sinful condition enables us to be compassionate
toward those who likewise sin - in thought, word and deed, and by
omissions. Rather than be harsh and condemning in the face of their
sinfulness, whatever its specific format, we are compassionate and see for
them what we desire for ourselves: God's divine mercy, which means His
forgiveness, healing and reconciliation.
Today marks our monthly coming together to pray for a greater respect for
life and for an end to everything which threatens and, indeed, destroys
life. Surely, our first thought turns to abortion - that unjust attack on
the life of an innocent, defenseless pre-born human being. And we must
never cease to uphold the right to life of the unborn child and seek to
eliminate whatever threatens and destroys such innocent life.
Even as we remain resolute in our resolve to uphold life at its beginning
at conception, we are equally aware that innocent life is also unjustly
taken at later stages. So, the murder of innocent people is likewise a
heinous crime. In the past, the death penalty was used to avenge those
crimes against life.
However, in recent times, the teaching of the Catholic Church has
challenged all of us to rethink our response to the heinous crime of
murder. Permit me to quote from a recent statement by the Catholic Bishops
of the United States. "While complex, the teaching of the Universal Church
is clear. It has developed over time and has been taught most powerfully
in the word and witness of Pope John Paul II... Catholic teaching the
state has the resource to impose the death penalty upon criminals
convicted of heinous crimes if this ultimate sanction is the only
available means to protect society from a grave threat to human life.
However, this right should not be exercised when other ways are available
to punish criminals and to protect society that are more respectful of
life..." (A Culture of Life and the Penalty of Death, II, 2005).
In fact, Pope John Paul II was extremely clear in opposing the death
penalty in 1999 when he spoke to us in St. Louis. "A sign of hope is the
increasing recognition that the dignity of human life must never be taken
away, even in the case of someone who has done great evil. Modern society
has the means of protecting itself, without definitively denying criminals
the chance to reform. I renew the appeal - for a consensus to end the
death penalty, which is both cruel and unnecessary."
Now, let me be the first to admit that assenting to this approach is
initially not easy for many among us. I have asked myself: what would be
my reaction, for example, to the murder of my parents? I honestly must
acknowledge that my first spontaneous reaction would be revenge. However,
if I am truly sincere about wanting to be Christs disciple, I must move
beyond this initial reaction to forgiveness and to hope. Of course, I
could not do this on my own, but with Gods divine grace transforming me. I
must seek the murderers salvation and forgiveness. Yes, the heinous crime
must be punished and society protected. But, in todays society, this can
be achieved by life imprisonment without parole. This is indeed the
position of our late Holy Father and of Catholic bishops around the world,
including our own United States bishops. "No matter how heinous the crime,
if society can protect itself without ending a human life, it should do
so" (A Culture of Life and the Penalty of Death, U.S. Conference of
Catholics Bishops (2005)).
This stance is truly a pro-life stance and all of us who seek to be
unconditionally pro-life must ask the Lord for the grace to be converted
in mind and heart to make this stance our own. Last June, Bishop Francis
X. DiLorenzo of Richmond and I wrote to Gov. Mark R. Warner advocating
precisely this pro-life stance. "In challenging the appropriateness of
capital punishment, we readily acknowledge the need for our criminal
justice system to ensure that one who has been convicted of a heinous
crime be rendered incapable of repeating it. With the availability in
Virginia of a life-without-parole sentence, however, that need is
routinely met without terminating more lives. The life-sentence
alternative, we believe, is unique in its ability to securely protect
state residents and at the same time uphold the dignity belonging to every
person, even to one convicted of a brutal crime...We are firmly convinced
that a society adequately protected without the death penalty is a much
better one without it" (Virginia Catholic Bishops, June 2005 Letter to
Again, I readily recognize that this approach is not easily heard,
understood and accepted at first. However, if we profess to be disciples
of Christ and obedient members of the Church, we must carefully listen to
the voice of our shepherds, the bishops and the Holy Father. We must
seriously and prayerfully reflect on their teachings and seek from the
Lord the grace of conversion.
Yes, being pro-life does include our approach to how we deal with those
who unjustly attack the life of innocent people, not only the unborn, but
also those after birth. I conclude our reflection in this homily by
quoting our United States Bishops. "For the Catholic community, this issue
- like all life issues - is more that public policy. It involves our faith
and the central principle that human life is sacred. Church teaching on
the life and dignity of every human person should guide all our decisions
about life, including the use of the death penalty. We are called to
reflect on what the Lords command, "You shall not kill" (Ex 20:13) means
for us today". In his encyclical 'The Gospel of Life,' Pope John Paul II
told us that we have an 'inescapable responsibility of choosing to be
Our witness to respect for life shines most brightly when we demand
respect for each and every human life, including the lives of those who
fail to show that respect for others. The antidote to violence is love,
not more violence" (Ibid). Yes, "Teach me your way, O Lord, that I may
walk in your truth" (Refrain to Psalm 86). Amen!
(source: The Catholic Herald)
More information about the DeathPenalty