[Deathpenalty] death penalty news---N.C., USA, OHIO, PENN., N.J.

[Rick Halperin]

April 7


NORTH CAROLINA:

N.C. legislature on sidelines of execution lawsuit----Ethics battle
between medical board, AG's office hampers action


House Speaker Joe Hackney sounded hesitant Thursday to consider
legislation that tries to resolve an impasse over the role of doctors
during executions, saying that Gov. Mike Easleys office has told him that
any change could prolong the legal fight.

Several Republicans have filed bills that would take away the N.C. Medical
Boards authority to punish doctors involved in capital punishments.

The medical board declared in January that any doctor who participates in
an execution violates medical ethics and could face sanction.

That threat has effectively shut down the death penalty in the state as
the conflict between state attorneys and the medical board is litigated.
The legal morass has led to an unofficial moratorium on executions with a
Wake County judge putting 5 scheduled executions on hold.

Hackney, D-Orange, suggested that the state might have to let the current
lawsuit with the medical board "play itself out so that we know what the
rules are" for executions.

"The folks at the governor's office seem to think that passing a bill
similar to what has been proposed would simply prolong and provoke further
litigation," he said. "I don't believe they see that as a solution to the
legal impasse that we are currently in."

State law requires that a doctor only be present when an inmate is put to
death, but a federal judge allowed an execution to proceed last year only
after the state promised that a doctor would monitor the inmate to prevent
suffering.

After the medical board questioned the ethics of doctors participating in
executions, the N.C. Attorney General's Office sued the board on behalf of
prison officials, who have been unable to find a doctor willing to risk
the board's potential wrath.

Easley said after a public appearance in Raleigh this week that the courts
need to resolve their differences before legislators can act.

"The legislature's not going to be able to move in any direction really
until they get some final resolution from the federal and the state
courts," Easley said Tuesday.

Rep. Paul Stam, R-Wake, the House minority leader, said Thursday that he
disagreed with Easley and Hackney, saying that a bill he co-sponsored
would satisfy the federal courts by having a doctor on site at executions
and keeping the medical board from punishing doctors.

Stam emphasized that Attorney General Roy Cooper and the group
representing North Carolina's district attorneys have said they support
the legislature getting involved in the issue.

"I'm just sort of flabbergasted by the governor," Stam said. "I don't
understand why he thinks that."

(source: Associated Press)






USA:

Resistance to death penalty growing----Questions about justice, expense
undermining political support for capital punishment


About once a week, a convicted murderer is put to death in a state
penitentiary, most often in Texas, where all but one of this year's 12
executions have occurred.

But around the U.S., capital punishment is under siege. Since the first of
the year, individual states have acted on long-festering questions about
the equity of capital punishment and made bold moves aimed at repealing
the death penalty, slowing the practice or temporarily halting it because
of rising costs.


The Nebraska Legislature last month came within 1 vote of repealing its
death penalty law. The new governor of Maryland called for the outright
repeal of capital punishment. Most of Georgia's 72 capital cases have been
stopped because the state's public defender system has run out of money.
New Jersey lawmakers are drafting a bill to repeal that state's death
penalty. And last month the governor of Virginia, a state whose 96
executions since 1976 are exceeded only by those in Texas, vetoed 5 bills
that would have expanded the use of capital punishment.

"I do not believe that further expansion of the death penalty is necessary
to protect human life or provide for public safety needs," said Democratic
Gov. Tim Kaine, an opponent of capital punishment.

Skepticism toward and resistance to the death penalty have been building
since the late 1990s, after investigations uncovered a troubling number of
wrongful convictions. That and existing moral objections to capital
punishment prompted some states, led in 2000 by Illinois and then-Gov.
George Ryan, to place a moratorium on executions, which have dropped from
a yearly high of 98 nationwide in 1999 to 53 in 2006.

Recent developments in states have been influenced by pragmatism, with
much of it rooted in concerns over the costs of lengthy appeals, which in
some cases exceed 2 decades.

6 pending appeals of death penalty cases in Ohio, for instance, where 191
people are on death row, include cases that go back to 1984.

Pointing to multimillion-dollar costs from appeals, Frank Zimring, a
professor at the University of California, Berkeley's Boalt Hall School of
Law, said: "People are starting to talk about cost and notice the
marginality of the death penalty."

$22.4 million in litigation

Maryland Gov. Martin O'Malley noted that 56 people have been sentenced to
death in his state since 1978, and taxpayers have spent about $22.4
million beyond the cost of imprisonment on appeals litigation.

O'Malley, a Democrat, said in February that if the state were to replace
the death penalty with life without parole, "that $22.4 million could pay
for 500 additional police officers or provide drug treatment for 10,000 of
our addicted neighbors. Unlike the death penalty, these are investments
that save lives and prevent violent crime."

There are about 3,350 convicts on Death Row, and more than one-third of
them1,450reside in penal institutions in California (660), Florida (397)
and Texas (393).

The legal system's delivery of death sentences has dramatically slowed.
During the 1990s U.S. courts would customarily issue about 300 death
sentences annually.

Those numbers have plummeted in the last seven years, to 128 in 2005 and
102 last year, according to the Death Penalty Information Center, a
Washington, D.C.-based advocacy group that lobbies against capital
punishment.

It's not the end

Efforts to repeal or otherwise rethink the death penalty do not suggest
that the days of capital punishment in the U.S. are necessarily numbered.
(37 states have the death penalty; 12 do not, and New York's was declared
unconstitutional in 2004.)

While the Montana Senate approved the abolition of the death penalty this
year, a House committee defeated the measure. In New Mexico, the House
approved a repeal, but a Senate committee said no. In Maryland, a
legislative committee rejected O'Malley's plea to replace the death
penalty with life without parole.

Furthermore, public opinion polls consistently show majority support for
the death penalty. 56 % of Wisconsin voters last fall approved an advisory
referendum to reimpose the death penalty in the state, which recorded its
last execution more than 150 years ago.

"I don't think the country is about to get rid of the death penalty," said
Richard Dieter, executive director of the Death Penalty Information
Center. "But overall, the trend shows some rethinking and hesitance."

"Because of flaws in the system and economics, everything is now being
given a fresh look," Dieter said.

Support for life imprisonment without the prospect of parole has been
growing, polls show, and that, coupled with questions about the
application of capital punishment and concerns about mounting costs, has
undermined political support for the death penalty.

'Certain reservations'

Ohio Gov. Ted Strickland is an ordained minister and former prison
psychologist who worked on Ohio's death row. Strickland, a Democrat, has
long been an advocate of the death penalty but now defines himself as a
"supporter with certain reservations."

"I used to think before I worked in prisons that although innocent people
could be convicted that it was very highly unlikely that someone
[innocent] would be on death row," said Strickland, who delayed the
scheduled executions of three inmates shortly after taking office in
January.

"There is convincing evidence that individuals have been wrongly
convicted," he said.

One of Strickland's predecessors, Michael DiSalle, in office from 1959 to
1963, personally investigated the cases of inmates on Ohio's death row
while he was governor.

"The possibility of an irrevocable error was so vivid to me that on
several occasions I made last-minute visits to the grim, antiquated Ohio
State Penitentiary, not far from downtown Columbus, across the street from
the casket factory, for a final interview with the condemned man," DiSalle
wrote in his 1965 book "The Power of Life or Death."

Eleven states have placed moratoriums on executions because of questions
about the humanity of the lethal injection process, the most popular form
of execution. Nebraska, which is the only state to mandate the use of the
electric chair, may revisit the death penalty issue later this spring,
with consideration of a bill allowing for life imprisonment without
parole, providing the inmate can be imprisoned without endangering other
inmates.

"I don't know what's going to happen," said Nebraska state Sen. Ernie
Chambers, a longtime opponent of capital punishment. "But there's a lot
less fear on the part of senators to consider abolishing the death
penalty."

(source: Chicago Tribune)

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

May the Best Appellate Lawyer Win, Unless the Facts or Law Dictate
Otherwise


U.S. Supreme Court Justice Harry A. Blackmun famously graded the
performance of oral advocates arguing cases before the Court. Now those
grades, contained in the Blackmun papers at the Library of Congress, are
providing fodder for academics seeking to analyze how the quality of
advocacy at oral argument influences the result in cases the Supreme Court
decides on the merits.

As someone who regularly briefs and argues cases pending on appeal, I have
long preached the advantage of involving an experienced and effective
appellate advocate when a case heads to appeal.

Effective appellate advocacy is both an art and a science, and therefore a
litigant whose case has reached the appellate level can only be helped by
having an experienced appellate lawyer on the team.

However, a persuasive and well-written appellate brief along with a
compelling oral argument do not guarantee victory on appeal. This is
because the facts of the case and the law applicable to the case are
capable of thwarting even the most effective appellate presentation
imaginable.

Assume for a moment that two equally highly effective appellate advocates
are working on opposing sides of the same case. In such a case, the
parties' appellate briefs will both be of the highest quality. And the
oral arguments that these appellate advocates offer to the judges are also
of equally high quality. In this hypothetical case, as in most every case,
one party will win and another will lose, based on what the law applicable
to the case and the facts of the case require.

Now let's assume the party that would win if the opposing appellate
advocates were of equally high quality instead engaged a slightly less
talented lawyer to handle the case on appeal. Presumably, if the law and
the facts dictated a certain result when the advocates were of comparably
excellent quality, that same result should nevertheless be obtained even
if the party that ought to prevail had hired an appellate lawyer who was
slightly less effective.

Indeed, it is my view that judges are supposed to decide appeals based on
the merits of the issues being raised, the facts of the case and the
applicable law, rather than based on the quality of the briefs and the
oral arguments. And I believe that every appellate judge would agree that,
although effective appellate briefs and oral arguments are surely
desirable, cases on appeal must be decided as the facts and the law
compel, even if the less talented advocate wins as a result.

One of the most important ways that an experienced appellate lawyer can be
of help, even before anyone stands up in court to argue the appeal, is by
identifying the strongest issues that can be raised on appeal, by setting
forth the facts in a manner that is faithful to the record but also
helpful to the client, and by marshalling the applicable law in a way that
most persuasively supports the result being sought on appeal.

Having highly qualified lawyers at every stage of a litigated case can
make a world of difference, because it helps ensure that viable issues are
preserved, that necessary objections are raised in a timely manner, and
that the record contains the facts and legal arguments necessary to
prevail on appeal. Although having a highly qualified appellate lawyer has
never caused anyone to lose an appeal, it also does not guarantee victory,
because in the final analysis the facts and law must control the result.

A paper analyzing the effect of oral advocate talent based on the grades
assigned by Justice Blackmun reveals that he gave average grades to the
oral advocacy of three current U.S. Supreme Court justices: John G.
Roberts Jr., Ruth Bader Ginsburg and Samuel A. Alito Jr. Those three
justices appear to have managed to overcome Blackmun's view of their oral
advocacy skills. And, in fairness, we will never know what grades they
would have assigned to Blackmun had he ever orally argued a case before
them.

(source: Law.com; Howard J. Bashman operates his own appellate litigation
boutique in Willow Grove, Pa., a suburb of Philadelphia.)

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

Kill death penalty


Congratulations to the Tribune for dissing the death penalty (Editorial,
March 25)!

The only way we can avoid killing wrongfully convicted people is to kill
the death penalty.

We know that our system of justice cannot be made perfect because it is
operated by fallible humans. We want a system with "zero tolerance" for
error. Any lesser goal is evil.

Killing the death penalty is the only way to go ...

The bottom line is: Those who favor the death penalty favor killing
innocent people.

Frank K. Hoover----Evanston

(source: Letter to the Editor, Chicago Tribune)






OHIO----female to face death penalty

Judge OKs death penalty in Moonda case


Federal prosecutors received clearance Friday to seek the death penalty in
the case against a woman charged with arranging the murder of her
millionaire doctor-husband along the Ohio Turnpike in 2005.

U.S. District Judge David D. Dowd Jr., who will preside at the trial of
Donna Moonda, 47, of Hermitage, Pa., in June, rejected a defense challenge
to the federal death penalty law.

Moonda has been charged with murder for hire and other counts in the death
of her husband, Dr. Gulam Moonda, 69, who was shot May 13, 2005, when the
couple pulled off the Ohio Turnpike south of Cleveland.

Damian Bradford, 25, of Beaver County, Pa., pleaded guilty in July to
interstate stalking and a gun charge and has acknowledged that Moonda
hired him to kill her husband and promised to split any inheritance with
him. Bradford and Moonda met in drug rehab and were lovers at the time Dr.
Moonda was killed, authorities said. Moonda has maintained her innocence.

(source: The Plain Dealer)

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

Canton man on death row reaches last appeal stage


A Canton man convicted of a double killing in 1985 could face execution
this year if his latest, and possibly last, attempt to have his conviction
thrown out fails.

On March 5, the U.S. Supreme Court refused to hear the case of John Grant
Gillard of Canton, but Gillards attorney, Edmund W. Searby of Chagrin
Falls, asked the court March 29 to reconsider its decision. The court is
expected to review that request April 20.

Depending on the outcome, it could be the end of Gillard's case. The Ohio
Attorney General's office lists Gillard and 5 other death row inmates as
having exhausted or nearly exhausted their appeals and are "nearest
execution." None have had execution dates set. Once the appeals for
Gillard end, the Stark County prosecutors office will request the Ohio
Supreme Court to set a date.

Prosecutor John D. Ferrero said the paperwork is ready once the U.S.
Supreme Court rules.

Amy Borrer, a spokeswoman for the Ohio public defender's office, said
Gillard is reaching the end of his appeals process. She would not comment
further about the case.

Gillard, who has maintained his innocence, was convicted in the
execution-style murders of Denise Maxwell and Leroy Ensign after a New
Years Eve party in the 200 block of Kennet Ct. NW. The 2 victims and a
3rd, Ronnie Postlethwait, spent the night at the home where the party was
held. Postlethwait was shot in the head but survived and later identified
Gillard as the shooter.

During the party, witnesses said, William Gillard, John's brother, fought
with Ensign. After the fight broke up, William Gillard returned and was
seen firing a gun into the air outside the home. Shortly after that, the
back door burst open, then Ensign, Maxwell and Postlethwait were shot.
After also being charged with the murders, William Gillard eventually
pleaded no contest to firing a gun in the city.

The 8-week trial of John Gillard, at the time one of the longest in Stark
County history, was one of the 1st cases for then Prosecutor Robert
Horowitz, who is deceased. Gillard's original attorney, Louis Martinez,
also is deceased. Martinez represented both Gillards, and Searby contended
in his appeal of John Gillards conviction that the dual representation was
a conflict of interest. He also said Martinez didn't present certain
evidence that would have helped John Gillard and he didn't argue
effectively on his behalf.

Searby could not be reach for comment Friday.

Jennifer Brindisi, press secretary for Ohio Attorney General Marc Dann,
said it would be rare for the U.S. Supreme Court to reverse its decision
to deny Gillard a hearing.

Ferrero said his office also is preparing for a clemency hearing should
Gillard request one. Ferrero said his office has notified Postlethwait and
family members of Maxwell and Ensign that they may be needed at the
hearing.

Gillard has been on death row for 7,961 days. 4 other inmates on death row
are scheduled for execution this year.

(source: The Times-Reporter)






PENNSYLVANIA:

Pa. coroners operate with no oversight


In many Pennsylvania counties, coroners do their work almost completely
free of any accountability to the public or to other county government
officials.

The reason is twofold: although state law requires coroners to make many
of their records public, some -- perhaps a majority -- of coroners simply
ignore the law, and no one in county or state government seems to care.

Penalties for coroners who do not follow the law also appear to be either
weak or non-existent.

Pennsylvania's Coroner's Act is the only state law governing how coroners
handle their records and outlining how the public can gain access to those
records.

One section in that act says:

"Every coroner, within thirty (30) days after the end of each year, shall
deposit all of his official records and papers for the preceding year in
the office of the prothonotary for the inspection of all persons
interested therein. 1955, Aug. 9, P.L. 323, Sec. 1251"

Yet only one of the 12 coroners or prothonotaries polled by Public Opinion
abide by that requirement, including the coroners in Franklin County and
all of its neighboring counties.

Most claim that their prothonotary's offices don't have room for their
records, and the Pennsylvania Coroners Association and its attorney have
come up with a way to keep the public from seeing those records, no matter
where they are stored.

"Our determination from our solicitor is that (the Coroners Act) means
that a person must have an interest above those of the general public in
order to see our records," Cumberland County Coroner Mike Norris, who sits
on the association's board, said last month.

He and Crawford County Coroner Patrick McHenry said the association
interprets the Coroners Act as meaning only people with special interest
in a case can access the coroner's records. They define that as immediate
family of the deceased, insurance companies and police investigators.

Both men define "official" records as the final report in a case that
contains the name of the deceased, the date of death, manner and cause of
death. McHenry adds a "criminality" statement to his definition, which
includes whether or not the death was due to criminal neglect, negligence
or a crime.

Pennsylvania Newspaper Association media law counsel Melissa Melewsky
agrees with McHenry's definition of "official" records, but disputes the
Coroner's Association definition of who may access to those records.

She said her association also has concerns that coroners are skirting the
requirement that they deposit those records annually in their
prothonotary's office, keeping them instead in their own offices.

"The coroner does not determine which of his official records are public,
the Coroner's Act and interpreting case law do," she said. "There is some
conflict between the courts on whether autopsies are part of the 'official
records' of the coroner but it is clear that reports listing the time,
place and manner of death are official records of the coroner and should
be accessible at the Prothonotary's office."

She said the act does not give a coroner the power to deposit his official
records anywhere other than the office of the prothonotary, and if there
isn't enough space or staff to handle the records in the prothonotary's
office, that needs to be addressed with the county's board of
commissioners.

"The coroner, the prothonotary and the commissioners cannot ignore or
re-write the law for the purposes of convenience," she said.

Two of Franklin County's three commissioners have said, however, that they
have no control or oversight over either the prothonotary's or coroner's
office.

In many cases, there seems to be no uniform procedure by county coroners
on handling of records, other than keeping them in their offices which may
be at their homes.

Dauphin County Coroner Graham Hetrick is one of the few who follows the
requirements of the Coroners Act to deposit records annually at the
prothonotary's office.

His records, which a secretary in his office defines as his finished case
report containing the name, date of death, cause of death and lab results,
are on file and copies are also kept at his office.

Those records are available for public inspection, according to a
spokeswoman at the Dauphin County Prothonotary's office.

That isn't the case in Franklin, Fulton, Cumberland, Perry and Adams
counties, or in many other counties, including larger counties such as
York, Berks and Crawford counties.

"Historically, coroners' records have not necessarily been (kept) in the
court house," McHenry said, acknowledging that by law those records are
supposed to be filed annually in the prothonotary's office, but claiming
that the Coroners Act also gives a prothonotary the right to allow a
coroner to keep the records in his or her office.

He cites Section 405 or the act, which reads:

"a) The commissioners, auditors, controller, treasurer, sheriff, recorder
of deeds, prothonotary, clerk of courts of quarter sessions and oyer and
terminer, clerk of orphans' court, register of wills, recorder or deeds,
and district attorney shall keep their respective offices, and all public
records and papers belonging thereto, at the county seat and in such
buildings as may be erected or appropriated for such purpose. The county
commissioners shall have the power to keep and maintain records and to
contract with persons, for storage, retrieval..."

That section of the act also sets out a fine of "not exceeding $500" for
non-compliance with the act, as well as imprisonment until provisions of
that section are met, but since coroners are not specifically mentioned in
the section, it is unclear whether they or the prothonotary would be held
responsible for failure to follow the letter of the law under the act.

McHenry acknowledges that there is sometimes conflict not only about the
storage of the records and public access, but also about the exact
definition of coroners' "official" records.

"The Coroners Association is working to get legislation written that will
clarify the law," he said, including defining what constitutes an official
record and exactly who should have access to that record.

He concedes that his definition keeps information in those records
sketchy.

"There is more information in an obituary than in a coroner's official
report," he said.

Access to coroners' records is important to citizens, according to Public
Opinion Editor Becky Bennett.

"Residents of many counties, including Franklin, have no way of knowing
how competently the coroner is doing his job, whether he is doing it
legally and properly, whether he keeps adequate records, and whether those
records -- which belong to the public -- are safe and secure," she said.

She said coroners who refuse to comply with the Coroners Act, or take
steps to skirt the law, could become almost a law unto themselves, with no
accountability to the people who put them in a position of power - the
electorate.

By way of comparison, other county officials -- prothonotary and other row
officers, sheriff, commissioners, judges and even the district attorney --
must work in public buildings, with offices open to the public and records
available for public access.

"Of course, coroners face election every four years, but voters must make
their choice without any knowledge of an incumbent coroner's actual job
performance," she said.

Melewsky said she finds it disturbing that an elected official would
refuse to allow public access to official records.

"Inspection of official records is necessary for proper oversight of any
government agency," she said, talking about Conner's and other coroners
who refuse public access to their records.

"Through his actions and refusal to comply with the Coroner's Act, Mr.
Conner is depriving the public of a significant right, one which is
secured not only in the common law traditions of democratic government,
but also guaranteed by PA statute," she said.

----------

Coroner-reported death statistics

- Adams County: 20 traffic fatalities, 7 drug related, 2 homicides

- Cumberland County: 3 homicides, 17 drug related, 21 traffic fatalities

- Franklin County: ?

- Fulton County: 5 traffic fatalities, 4 drug related, 0 homicides

- Perry County: 17 traffic fatalities, 1 homicide, 2 drug overdoses

- York County: 9 homicides, 37 drug related, 58 traffic fatalities

(source: Chambersburg Public Opinion)






NEW JERSEY:

20 DEATH ROW SURVIVORS TO LAUNCH MORATORIUM CAMPAIGN DURING LIBERTY BELL
EVENT: Defense attorney Barry Scheck and former Texas DA join exonerated
death row prisoners


As the legislatively appointed Pennsylvania Innocence Commission begins
its study of wrongful convictions in the state, 20 innocent men who spent
a combined 150 years on death rows around the nation for crimes they did
not commit will join renowned criminal defense attorney Barry Scheck and
former Texas prosecutor Sam Millsap on Friday, April 13, to announce a
campaign that aims to halt executions in Pennsylvania. The news
conference, which will begin at 2 p.m. near the Liberty Bell, is organized
by Witness to Innocence, a national organization founded by Nobel Peace
Prize nominee Sister Helen Prejean, author of Dead Man Walking .

Witness to Innocence, spearheaded by exonerated ex-death row prisoners and
their families, is actively engaged in the struggle to end the death
penalty in the United States. During the event, the exonerated men will
stage a dramatic signing of their own "Declaration of Innocence" across
the street from Independence Hall.

Scheck, co-director of The Innocence Project at the Benjamin N. Cardozo
School of Law in New York City, will address the continuing wrongful
convictions crisis in America. Scheck and his colleagues at The Innocence
Project have worked to free more than 190 people in the United States,
including 14 who were at one time sentenced to death. Former San Antonio
District Attorney Sam Millsap, who once proclaimed himself a "lifelong
supporter of the death penalty," will discuss why he now opposes capital
punishment. Millsap says he now opposes the death penalty in large part
because of the case of Ruben Cantu - a man sentenced to death while
Millsap was D.A. - who is now widely believed to have been innocent. Cantu
was executed in 1993.

Pennsylvania has exonerated 7 death row prisoners since 1982, including 4
who were sentenced to death in Philadelphia. The city has exonerated more
death row prisoners than the state has executed since it reinstated the
death penalty in 1978. Pennsylvania has the 4th largest death row in the
nation, with more than 220 prisoners awaiting execution. Philadelphia has
been cited repeatedly for its profound discrimination against the poor and
people of color in its death sentencing practices.

WHO: 20 exonerated death row prisoners and their families Barry Scheck,
co-founder of The Innocence Project & Sam Millsap, former Texas prosecutor

WHAT: Launch of Pennsylvania Moratorium Coalition

WHEN: Friday, April 13, 2:00 p.m.

WHERE: Lawn adjacent to Independence Visitors Center (north of Market
Street between 5 th & 6th streets)

(source: Penn. Mor. Coalition)