[Deathpenalty] death penalty news----CALIF., PENN., MO., N.C.
rhalperi at mail.smu.edu
Fri Apr 13 07:23:46 UTC 2007
Court rules on death penalty, retardation----Even if a defendants total IQ
is normal, a deficiency in a particular area may be enough to bar
execution, California justices say.
A defendant may be spared the death penalty because he is mentally
deficient in one area, even if his IQ score falls in the normal range, the
California Supreme Court decided Thursday.
The state high court's unanimous ruling rejected an appeals court decision
that "full scale" IQ scores composites of tests of various mental
faculties are the best measure of intelligence. The justices said courts
may give greater weight to one measurement of IQ over another and that the
best way to measure intellectual functioning may vary from case to case.
The decision gives judges broader discretion to spare defendants from
execution for reasons of mental impairment and clarifies a 2005 ruling
that allowed death row inmates to challenge their sentences on the grounds
of mental retardation. That decision was triggered by a 2002 U.S. Supreme
Court ruling that barred execution of mentally retarded inmates.
Because the legal definition of mental retardation does not rely on a
fixed IQ score, trial courts may give greater weight to certain kinds of
evidence than others, the court said.
"The question of how best to measure intellectual functioning in a given
case is thus one of fact to be resolved in each case on the evidence, not
by appellate promulgation of a new legal rule," Justice Kathryn Mickle
John Philipsborn, who represented an association of criminal defense
lawyers in the case, said the ruling will affect at least 28 death row
prisoners and at least eight defendants who are claiming mental
retardation prior to trial.
"It is going to allow greater flexibility in presenting evidence,"
The decision was a victory for Jorge Junior Vidal, one of several men
charged with the murder, torture and sodomy of Eric Jones, 17, near Delano
on Jan. 24, 2001.
Vidal and the others reportedly lured Jones into a garage; bound his hands
and feet with an extension cord; beat, shocked and sodomized him; and then
shot him several times, according to published reports. One of the
defendants said Vidal blamed Jones for trying to steal his car and had
even proposed cutting off Jones' ear with a saw.
Vidal's full scale scores on standard IQ tests have generally been above
what is considered mental retardation. A trial judge found that Vidal was
mentally retarded because his verbal IQ, indicating verbal problem
solving, comprehension and judgment, showed "subaverage general
Vidal's full scale IQ was above the mental retardation range because he
scored substantially higher in a part of the test that measured visual
perceptions and spatial dimensions, or what an expert called "skills of
putting things together in a functional way."
"In other words," the defense expert had testified, "putting puzzles
together and doing so quickly appears to be a functional skill.
Understanding why one would do that or necessarily following verbal
command to do that, however, would not be available in this case."
The defense experts said large differentials between the two subsets of IQ
were unusual and a full scale IQ assessment, produced by a mathematical
process from the subsets, was not a reliable measure of general
But a psychologist testifying for the prosecution said the full scale
score was the best indicator of intelligence.
The trial judge decided to place more weight on the verbal score,
determining that it was more relevant to such issues as premeditation,
deliberation and an ability to distinguish right from wrong.
In ruling for Vidal, the state high court said the law should not dictate
how to measure intellectual functioning. Prosecutors may appeal a judge's
finding of mental retardation, but the reviewing court should simply
consider whether the judge's finding was supported by substantial
evidence, the court said.
Tulare County Deputy Public Defender William Mueting, who represented
Vidal, said the ruling provided direction both to judges and to lawyers.
Tulare County Deputy Dist. Atty. Barbara J. Greaver, who argued the case
for the prosecution, could not be reached for comment.
(source: Los Angeles Times)
Giving families a say in penalty sought is fitting
The decision of whether to seek the death penalty in the deaths of 5
firefighters killed in the flames of the Esperanza Fire will be left up to
the victims' families in a peculiarly fitting twist on justice.
Riverside County District Attorney Rod Pacheco will personally meet with
each family member to poll their wishes. Then, a panel of prosecutors will
decide whether to opt for capital punishment.
The man accused of starting the lethal blaze, Raymond Lee Oyler, pleaded
not guilty Monday in Riverside Superior Court to the 5 murder charges, as
well as other counts in connection with 23 wildfires he is believed to
have set in the San Gorgonio Pass area from May to October.
And though one would think that whether or not to seek the ultimate
penalty should be decided based on the law itself, and rest solely on the
facts of a conviction in the murders of 5 valiant men, the truth of mercy
is a quirky, individual thing in itself.
Why not let the bereft families have a say in resolving the tragedy that
befell them? They, as much as anyone, should be allowed an opportunity to
"This conveys to the family members we think their thoughts are important,
and we want their voices to be heard," said Ingrid Wyatt, spokeswoman for
the Riverside County District Attorney's Office. It is the least that can
be done to mitigate the families' sorrow. In this small way, relatives of
the 5 heroes who perished that awful day may at least get some choice in
what happens next. It is fitting that they help to decide the fate of the
person accused of causing their terrible loss.
(source: Daily Bulletin)
Last Monday, Harold Wilson, the 6th exonerated prisoner to be released
from Pennsylvanias death row, spoke to a crowd of about 50 Swarthmore
students in the Science Center. Wilson told his story: After being
convicted of a triple murder in 1988 and being given a date for his
execution on three different occasions, Wilson was freed in 2005 because
of DNA evidence that didn't exist at the time of his conviction.
Immediately following his release, Wilson has worked as an advocate for
the abolishment of the death penalty, speaking to public audiences and
even returning to prison facilities to work for the freedom of other
prisoners in the Pennsylvania system. The story of Wilson's incarceration
encourages a reflection on the state of the penal system in Pennsylvania.
The facts are ugly. In Pennsylvania, 90 % of death row inmates are too
poor to afford a lawyer, and the state that does not fund lawyers for
appeals. There are more than 230 inmates currently languishing on death
row, the 4th-highest number in the country; 70 % of these inmates are
minorities. That is one of the highest rate of minorities on a state's
death row, 2nd only to Texas. Worse still is the Philadelphia penal
system: Half of the state's death row inmates come from Philadelphia,
though the city only comprises 14 % of the state's population. The
district attorney of Philadelphia, even following the dismissal of the
notorious Jack McMahon, calls for the death penalty in every case that
allows it; on the other hand, the Harrisburg DA calls for the death
penalty only 1 out of 4 instances that it is possible.
Further, these facts are no secret: In 2003, the Pennsylvania state
Supreme Court Committee on Racial and Gender Bias in the Justice System
released a report detailing, among other problems, unfairness in jury
selection and a disproportionate number of blacks in the penal system. The
report ultimately recommended that the governor and the legislature put a
moratorium on the death penalty; 4 years later, Governor Rendell, who
supports the death penalty, has failed to heed the recommendation, saying
that he sees no evidence for an immediate need to fix the system. It is
one thing for the governor to support the death penalty, but to ignore the
facts and thus refuse to even attempt to reform the ailing system is
13 states have abolished the death penalty; it is time that Pennsylvania
follows their lead. That was Harold Wilsons main message, but the facts of
his experience also spoke to the urgent need for reform until the ultimate
goal is realized. The treatment of prisoners on death row is beyond any of
our comprehension; in a striking insight into the system, Wilson told the
audience that 2 of the guards that had tended to him were later implicated
in the crimes at Abu Ghraib. It is almost a comedy that prisoners like
Wilson are assigned absolutely incompetent lawyers by the state, only to
have multiple mistrials declared on the grounds of inadequate
representation. Reform isn't a radical cause: 72 % of Pennsylvanians
believe that a moratorium should be put on the death penalty until
questions of fairness are considered. The governor should heed their
wishes. The rest of us are left to ponder what Wilson called our country's
"rage for punishment."
(source: This editorial reflects the views of the majority but not a
consensus of The Phoenixs editorial board; Swarthmore College)
Organizer, Pennsylvania Death Penalty Moratorium Coalition
Former Bexar County (Texas) District Attorney Sam Millsap used to support
the death penalty, but in the past few years, he has toured the country
speaking to audiences about why he now believes in the complete abolition
of capital punishment. Though Millsap says this conversion came over a
series of years, he credits a specific case as the catalyst to turning him
into an outspoken opponent of the death penalty.
Ruben Cantu was convicted and executed in 1993 based on compelling
eyewitness testimony while Millsap was D.A. But 12 years later, an
eyewitness recanted and, though Millsap says there is no way of deciding
what version of the truth to believe, the very nature of human error makes
it impossible for the system to protect the innocent completely. Millsap,
along with Barry Scheck from The Innocence Project and 20 former convicts
who spent time on death row before being acquitted of all crimes, will be
in Philadelphia Friday to announce the launch of the Pennsylvania Death
Penalty Moratorium Coalition.
City Paper: What are the strongest arguments against the death penalty?
Sam Millsap: The two arguments that I respond to and those that I advance
when I speak are instrumental arguments. The first is that the system is
not perfect; it's driven by human beings who make mistakes even on their
best days. The second instrumental argument that I think is really
important and is becoming more and more important as we get deeper into
experimenting with the death penalty is that the cost of taking the
defendant through trial and through execution is substantially greater
than the cost of incarcerating that defendant for life.
CP: Do you think that morality should be taken into consideration?
SM: I'm not a person who opposes the death penalty on moral grounds though
I respect those who do and certainly recognize the moral argument.
CP: If there was a foolproof way to determine someone's guilt, would you
believe in capital punishment?
SM: There is no foolproof way to determine guilt. The system we have is a
wonderful system for all kinds of cases, but it's driven by human beings
and they're not perfect even when they're doing their very best. That's
why I say that we have to abolish the death penalty; an execution can't be
CP: Do you think that Philadelphia in particular should be addressed
because of accusations of discrimination against the poor and people of
color in death-sentence practices?
That's true all over the country. The fact that the death penalty is
carried out in an arbitrary way is true everywhere and not unique to
Philadelphia. There aren't any rich people on death row anywhere in the
CP: How do you see your message getting out around the country?
SM: It's like any other political issue. What has to happen is members of
the legislature have to hear from people and have to be moved by
something. What we're seeing in a number of states is a very encouraging
movement toward abolition.
CP: What do you think the future of capital punishment will be in the
SM: I believe that the death penalty will be abolished in the U.S. but it
will be a slow process and a state-by-state process. I think it's only a
matter of time before these things happen; the tide is running out on the
death penalty in the United States.
The coalition's launch event, which is open to the public, will take place
at 2 p.m. Friday on the lawn adjacent to the Independence Visitor Center,
north of Market Street between Fifth and Sixth.
(source: Philadelphia City Paper)
The Justice Game, the Alford Plea and death row----The Release of Dennis
On October 18, 2006, Dennis Counterman walked away from the Lehigh County
Courthouse in Allentown, Pennsylvania. He had served 18 years in prison, 5
of them on death row, and had endured a death warrant, signed by
then-Governor Tom Ridge. Since 2001, he had been sitting in Lehigh County
Prison, waiting for a new trial as James Martin, the Lehigh County
District Attorney, thrashed through the Pennsylvania Appeals Courts with
hopeless attempts to introduce tainted evidence at trial. (See "The
Prosecution of Dennis Counterman", 2/18-2/19, 2006 CountePpunch).
He did not leave prison a free man. In return for his release from prison,
the Lehigh County justice system demanded that he plead guilty to 3 counts
of 3rd degree murder. He was sentenced by Judge Lawrence Brenner to 18
years in prison and 5 years probation. Since he had already served his 18
years, he was released to probation.
Dennis was convicted of setting a fire that killed his 3 children and
severely injured his wife, in a trial that was voided in 2001 due to
prosecutorial misconduct. He has always maintained his innocence, and
refused to admit guilt on the day of his sentencing. He was allowed by the
Court to take an "Alford Plea", by which he is allowed to profess his
innocence, while the Court is allowed to treat him as guilty of the
His statement to the press on the day of his sentencing was: "I'm more
frustrated than angry. I spent all this time for something I didn't even
The Alford plea originated from a 1963 North Carolina prosecution of Henry
Alford, for the murder of Nathaniel Young in a dispute at a "drink house"
(so described by the Winston-Salem Journal), where Henry, a black man, was
visiting a white prostitute. Henry was facing the death penalty, and his
attorney, Fred Crumpler, advised him to plead guilty to avoid death. Henry
maintained his innocence before Judge Walter Johnston, stating, in court,
to his lawyer, "You told me to plead guilty, right? I'm not guilty, but I
plead guilty." The Judge allowed Henry to plead guilty to 2nd-degree
murder and sentenced him to 30 years in prison.
Henry appealed the case on the basis that his plea was coerced by the
threat of the death penalty. The Fourth Circuit Court of Appeals agreed
and overturned the verdict. The Supreme Court in 1970 overruled the 4th
Judge Byron White wrote for the majority in the 5-3 decision. He stated
that a defendant could plead guilty while professing innocence. Here is
some language from the decision, North Carolina v. Alford, 400 U.S. 25
(1970); "the Constitution does not bar imposition of a prison sentence
upon an accused who is unwilling expressly to admit his guilt but who,
faced with grim alternatives, is willing to waive his trial and accept the
sentence" and "Confronted with the choice between a trial for 1st-degree
murder, on the one hand, and a plea of guilty to 2nd-degree murder, on the
other, Alford quite reasonably chose the latter and thereby limited the
maximum penalty to a 30-year term."
The Supreme Court based much of their decision on the facts of the case,
which the trial court investigated. Hence, the validity of Mr. Alford's
plea was based on a non-jury determination of his guilt, despite his
protestations of innocence and his statements to the court that he was
accepting the sentence only to avoid the death penalty. As Justice White
wrote, "In view of the strong factual basis for the plea demonstrated by
the State and Alford's clearly expressed desire to enter it despite his
professed belief in his innocence, we hold that the trial judge did not
commit constitutional error in accepting it."
Since this determination, the Alford plea has become common at all levels
of the criminal justice system. It has become a tool for prosecutors to
avoid a trial with defendants who believe themselves innocent, and can be
offered immediate freedom in exchange for this contradictory plea. The
Death Penalty Information Center lists numerous death row inmates who have
agreed to such terms, including one, Kerry Max Cook, who subsequently was
found innocent through DNA evidence.
I met with Dennis Counterman recently in his Allentown home. He is living
with his niece Melissa Borrero, and her family, which includes her 3
children, Andrew, 15 months, Cesario, 6 years, and Aixa, 10 years. Melissa
is a stauch supporter of Dennis, has known him all her life, and testified
during his 1988 trial when she was 12 years old. Their friendship and
connection were evident as we sat in the living room and talked about his
prison time, trial and life after release. Andrew watched and listened
calmly from his crib.
I asked about his Alford plea. He said, "I am not guilty, but I could not
take a chance, I don't know how long I have left. It took 18 years to get
this far, and who knows what could happen in a new trial. I have nieces
and nephews I want to see. When I heard the guilty verdict (in 1988), I
was just shocked, I couldn't take a chance again."
Melissa talked about the closeness of the family before the fire that took
Dennis' three children and 18 years of Dennis' life. "Dennis' house was
like a refuge. I was always over there, looking after his kids. We were a
close family, we would have problems like any other family, but on
Sundays, we would all get together and play baseball, even my grandmother
(Dennis' mother). We could fight with each other, but don't let anyone get
between us. Dennis' conviction really tore us up."
Dennis said, "I just wish my mother could have seen this, seen me get out.
It really took a lot out of my mother. It seemed like it drained her soul.
How's a mother supposed to feel with a son on death row for something he
didn't do? She lost weight, got skinny, had health problems." His mother
died in 2006, before his release. He could not bear to attend her funeral,
"It would have broke me up too much, I really broke up at my sister's
(funeral), and I just couldn't stand my mother's"
Life after release has been good for Dennis, living in a house with
family, but it has not been easy. Since Dennis is on probation, he was
required as a matter of routine to pay for weekly drug testing. A letter
from the local Amnesty International chapter to the presiding Judge,
Lawrence Brenner, brought relief from the drug tests. However, the Judge
said Dennis is still required to pay court costs of $1900. He has been
unable to get his identification papers from the authorities. As he
stated, "I can't get my ID's, my social security card, or anything. I have
my birth certificate, but no ID. It's like I have to prove I'm alive, you
Melissa interjected, "It's like that old joke about the man who was
reported to be dead, and he showed up at a government office, told them he
was alive, and they demanded ID to prove it."
Dennis said, "That's been the toughest thing, to get my ID."
The payment of the fine has been put on a $45 a month schedule, not a
small expense for this family of working people. Dennis said the Lehigh
County collections official told him, "'If you miss a payment, we'll bring
you to Court'", then he went on, "I even tried to get it less, you know
what I mean, but they set a certain price, and that was it."
Key prosecution players in the first trial were richly rewarded. The First
Assistant District Attorney who prosecuted Dennis in 1988, Richard Tomsho,
who whited out evidence and committed serious misconduct, is today a staff
attorney in the Pennsylvania State Attorney General's office. The District
Attorney in 1988, William Platt, became the President Judge of Lehigh
Dennis came within weeks of a lethal injection.
This system is described by Mumia Abu Jamal (who sits today in a death row
cell near the cell that once housed Dennis) as follows, "Once upon a time,
a politician promised jobs and benefits, like a chicken in every pot, to
get elected. It was a sure-fire vote getter. No longer. Today, the lowest
level politico up to the President uses another sure-fire gimmick to
guarantee victory. Death. Promise death, and the election is yours.
Guaranteed, frame on! A vote for hell in the land of liberty with its over
one million prisoners is the ticket to victory." (From "A Bright, Shining
Hell", on "Banned - Radio Commentaries by Mumia Abu Jamal")
Dennis has been released from prison, but he is not free. He has been
forced to make choices while "faced with grim alternatives". For Henry
Alford, it was looking at a North Carolina trial in 1963 in which a guilty
verdict meant death. For Dennis Counterman, it was a Lehigh County,
Pennsylvania trial in which he would face another prosecution that would
demonize him. Witnesses would be coached. The current Lehigh County
Prosecutor, James Martin, and First Assistant Maria Dantos would have used
all the power of the State to keep him in prison till they could put him
Dennis is out of prison, which is a relief for him, for his family and
supporters. We are all a long way from justice.
(source: CounterPunch (Joe DeRaymond lives in Freemason, PA.)
Missouri House backs death penalty for police killers
The Missouri House passed a bill Thursday making the death penalty
mandatory for criminals who kill law enforcement officers -- unless they
can prove that their lives should be spared.
Supporters hope that caveat would allow Missouri to circumvent a 1976 U.S.
Supreme Court ruling that mandatory death penalty laws are
The Missouri legislation falls just short of being a mandate, requiring
the death penalty for such crimes unless a court finds other factors
"which are sufficient to justify" a life sentence without parole.
Mitigating factors include having no prior criminal record and the
"People we're talking about are the last line of defense for the people of
this state," said Rep. Michael Parson, a Republican. "There needs to be a
The legislation would cover the slaying of a police officer, judge,
prosecutor, jailer, prison worker or parole officer, as long as the
killing was connected to that person's job. The House passed the measure,
voting 109-35, and sent it to the Senate for consideration.
Legal experts have raised questions about whether such a law would hold
up, saying the Missouri bill might go against the judicial principle that
the government, not the defendant, must prove its case for a conviction or
Killing a law enforcement officer already is one of 17 aggravating factors
a Missouri jury can consider in deciding whether to impose the death
penalty on someone convicted of 1st-degree murder.
(source: Associated Press)
'Open file' law gives defense a tool to force out evidence----Prosecutors
withheld evidence in Alan Gell's murder case
Early this year, a handwritten letter from the Bertie-Martin Regional Jail
arrived at The News & Observer.
The writer was Alan Gell, a former death row inmate jailed last year on
charges of having sex with his underage girlfriend.
"What do you think about the Duke case?" Gell wrote. "I feel like each
player needs to send me a thank-you card for making the discovery law!!"
(He drew a smiley face.)
One of the biggest factors in the implosion of the Duke lacrosse case was
a state law passed in the wake of the prosecution of Gell, who was
convicted of murder and sent to death row after prosecutors withheld
evidence pointing to his innocence. After the evidence was found, Gell won
a new trial and was acquitted. Soon after, North Carolina adopted an "open
file discovery law" that forces prosecutors to share their entire file
with defendants before trial.
Defense lawyers in the lacrosse case used the new law as a crowbar to pry
open Durham District Attorney Mike Nifong's files from the moment charges
were filed; witness statements, phone records, police reports and DNA
evidence emerged. The evidence backed the players' contention that no
sexual assault had occurred.
Under the old law, Nifong would not have had to hand over witness
statements until after the witness testified. Under the old law, the
accuser, Crystal Mangum, would have finished testifying under direct
examination before Nifong was required to hand her statements to the
defense to use in cross-examining her.
"It's been huge," said Mary Ann Tally, a defense lawyer who was part of a
group of prosecutors and defense lawyers who drafted the bill. "It has
moved us from trial by ambush, which we've had for years in North
The open file discovery law actually traces its roots back to the
mid-1990s, when the North Carolina General Assembly was rewriting the
death penalty laws in an effort to speed up appeals and streamline the
Given the pressure from prosecutors, victim rights groups and
then-Attorney General Mike Easley, the law's passage was inevitable, said
Ken Rose, who was the director of the Center for Death Penalty Litigation
at the time. Rose and other death penalty opponents turned to then-state
Sen. Wib Gulley of Durham for help. Gulley inserted a clause that gave
death row inmates the right to all police and prosecution files to help
with their appeals.
Easley's office vehemently opposed Gulley's move, but Gulley managed to
shepherd the clause into law. Easley's office fought it in the courts
until the N.C. Supreme Court upheld it in a 1998 decision.
The U.S. Supreme Court has long required prosecutors to give favorable
evidence to defendants, but prosecutors had the power to determine which
evidence was or was not helpful. Once Gulley's law took effect, evidence
emerged that prosecutors sometimes ran afoul of their obligations. Over
the next few years, several death row inmates discovered that prosecutors
had withheld favorable evidence. The most publicized case was that of
Gell, who was convicted in 1998 of killing a retired truck driver in
Mary Pollard, then a civil litigator with the law firm Womble Carlyle in
Raleigh, was shocked at what she found in files she received in the Gell
case from the Attorney General's Office and the State Bureau of
"Someone charged with murder gets less evidence than someone who slipped
on a grape at a Food Lion," Pollard said.
Pollard found that prosecutors had withheld witness statements showing
that Gell was in jail on theft charges when the man was slain. The
prosecutors also withheld a tape recording of the state's star witness
saying she had to "make up a story" for police.
The withheld evidence won Gell a new trial; a jury quickly acquitted him
in February 2004.
That summer, state Sen. Tony Rand gave an ultimatum to the organizations
representing prosecutors and defense attorneys: Work out an open file
discovery bill or the legislature would pass its own.
The courtroom adversaries hammered out a deal. The new law applies to
every felony case in North Carolina. While it has been used thousands of
times, the Duke case has put a spotlight on the behavior of prosecutors.
In the past, allegations of prosecutorial misconduct surfaced years after
the fact. In the Duke case, the allegations came in real time.
Defense lawyers for the players filed motions demanding police notes,
witness statements and medical reports. They combed through the documents,
made lists of what they still hadn't received, and went to court to demand
more documents. Eventually, one of Gell's former lawyers, Brad Bannon of
Raleigh, used the discovery law to prove that Nifong had withheld DNA
evidence favorable to the players.
Gulley said the effect of his 1996 amendment has surprised him.
"It's proven to be much more powerful and critical than I would have
thought," he said. "It's like the snowball rolling down the hill."
(source: News & Observer)
N.C. medical board disciplining more doctors
The number of doctors disciplined by the state medical board rose 30
percent last year compared to 2005, and has tripled since 2002.
The rise is an indication the board is doing its job, despite criticism it
has been too lax in punishing some errant physicians, said David
Henderson, executive director of N.C. Medical Board.
"It reflects an ongoing commitment by the medical board to effectively do
its job," Henderson said. "I think it's impressive, particularly at a time
when people have suggested the board is not doing enough."
Fewer than 1/2 of the 171 physicians disciplined actually practiced in the
state. Most of the doctors had already been punished by medical boards in
other states where they practiced.
In North Carolina, a disciplined doctor's punishment could include a
reprimand letter expressing concerns, limits placed on a practice or
revocation of a physician's license.
The board was criticized over its decisions in a pair of cases 2 years
ago. It has since increased the number of staff members who investigate
claims against doctors and raised license fees from $50 to $175 to help
pay for the extra staff.
More than 20,000 doctors are licensed in the state, and their ranks
increased about 3 % in 2006.
The medical board gained national attention when it declared in January
that any doctor who participates in an execution violates medical ethics
and could face sanction.
The threat effectively shut down the death penalty in North Carolina as
the conflict between state attorneys and the medical board is litigated,
with a Wake County judge placing 5 scheduled executions on hold.
(source: Associated Press)
More information about the DeathPenalty