[Deathpenalty] death penalty news-----NEB., N.Y., OHIO

[Rick Halperin]

April 16



NEBRASKA:

Death row penalty debated


10 inmates remain on Nebaraska's death row after state legislators vote
against a measure that would have made it harder to sentence people to
death.

Earlier this week, senators discussed the death penalty again after an
attempt to repeal the death penalty failed.

Under the bill, juries would have had to find out if the individuals would
pose a risk to others while in jail.

They were 2 votes short from passing the bill.

Now the 1st inmate execution in 10 years remains set for May 8th.

Carey Dean Moore will be executed in May for killing 2 Omaha cab drivers
in 1979.,P> The Governor says Moore's case in an example of their biggest
challenge, which he says is the length of time it takes to perform the
execution from the time the crime was committed.

(source: KHAS TV News)






NEW YORK:

Kill the death penalty ---- Life without parole is better plan, says
Unabomber's brother


Attorney General Andrew Cuomo's decision not to intervene in New York's
last death penalty case is the latest sign to the state's highest court
that our failed 10-year experiment with capital punishment is - or should
be - over.

Cuomo, an opponent of the death penalty, did not base his decision on his
personal views. He noted correctly that the Court of Appeals in 2004
"dismantled" the state's capital punishment law by requiring the state
Legislature to affirmatively fix fatal flaws in the 1995 law before it
could be reinstated.

The state Assembly wisely refused to do so after a groundbreaking series
of five public hearings that allowed lawmakers to comprehensively examine
New York's troubled capital punishment statute. Legislators heard from a
broad cross-section of scholars, religious leaders, criminal justice
professionals, activists, victims' family members and exonerated inmates.

The Assembly members learned what the people of New York have learned, as
measured in public opinion polls: unfairness in how the death penalty is
sought and applied, the exorbitant costs attached to continued appeals,
its failure to act as any kind of deterrent and the shocking epidemic of
wrongful convictions all argue in favor of life without parole as the
maximum sentence.

Brown, who says he is personally opposed to the death penalty,
acknowledges that capital punishment - with its decades of appeals and
legal maneuvering - offers little promise of closure to victims' families.

That matches the finding this year by the New Jersey Death Penalty Study
Commission, which highlighted the negative impact that the death penalty
has on victims' families. More than a dozen victims' families and
advocates testified that the death penalty process compounded their pain
by putting them through a long, extended process of trials, reversals and
retrials, and that life without parole would have been a more merciful
sentence for them.

The bottom line is that New Yorkers have realized that they can live
without capital punishment. Life without parole is the better option
because it represents swift, sure and effective punishment; but above all,
because it avoids the very real risk that an innocent person will be
executed.

If Brown wins his argument in the Court of Appeals, Taylor will have
decades of taxpayer-funded appeals before (or rather if) he is put to
death. Across the state, the creaky legal machinery of capital punishment
will fire up once again. Some of Brown's top prosecutors will spend
countless hours refining yet more subtle legal arguments to keep the legal
game going indefinitely. As a result, other criminals will go free because
of a lack of available resources to prosecute them.

The more attention Brown devotes to Taylor (who will die in prison
regardless), the less time, energy and money he has left to keep the
public safe.

Brown's quirky crusade to restore New York's death penalty benefits no
one. Cuomo is exercising wise judgment by opting to keep the "People" out
of it.

(source: Opinion, New York News; Daivd Kaczynski, whose brother was known
as the Unabomber, is the executive director of New Yorkers Against the
Death Penalty.






OHIO:

Plays about Lucasville riot, Clarence Darrow spotlight death penalty


What?" responded one Ohio University student in disbelief after finding
out that Ohio still enforces the death penalty. She was shaken to hear
that, since 2004, Ohio has been the 2nd-highest execution state in the
country, following Texas. Most of the 195 death-row inmates are now housed
at the supermax prison in Youngstown. A day before the execution,
prisoners are transported to the "death house" at Southern Ohio
Correctional Facility in Lucasville.

Ohio places most of its death-row inmates in a fancy high-tech prison. The
Ohio State Penitentiary, in Youngstown, was constructed in response to the
1993 Lucasville prison rebellion, for a cost of $85 million.

Aiming to lift the veil between the condemned and the outside world, an
Ohio civil rights lawyer and a California theater director have joined
forces, to bring two gripping plays about the death penalty to Ohio.
"Lucasville: The Untold Story of a Prison Uprising" comes to Athens on
Sunday, April 22 (7:30 p.m., Mitchell Auditorium, Seigfred Hall). The
exclusive debut will tour with the nationally acclaimed one-man piece,
"Clarence Darrow: The Search for Justice" (2 p.m., same location).

The American Civil Liberties Union of Ohio and the OU Department of
Sociology and Anthropology are co-sponsoring the double feature.

The "Lucasville" play is based on Staughton Lynd's definitive history of
the prison rebellion. In April 1993, prisoners took over a cellblock in
the Southern Ohio Correctional Facility. During the riot, nine prisoners
and one correctional officer were murdered. About 2,000 law-enforcement
officers surrounded the prison in a stand-off that was covered by national
media outlets.

In retrospect, The Columbia Journalism Review wrote that, "Glaring
mistakes were reported as fact and never corrected. Reporters vied for
atrocity stories. They ran scary tales - totally false, it was later found
- that spread panic and paranoia throughout the region." Based on Lynd's
book documenting the true events of the rebellion, the Lucasville play
aims to set the record straight.

The play acts out the trial for the murder of correctional officer
Vallandingham, focusing on the predicament of the five prisoners who were
accused of being responsible for this crime. George Skatzes, Siddique
Abdullah Hasan, Jason Robb, James Were and Keith Lamar are all currently
on death row and pursuing appeals. The conviction of these five was based
on the snitch testimonies of other prisoners involved in the riot, and
made without any physical or DNA evidence. Were the right men convicted?
The play challenges the audience to decide.

Called a "Saint of the American Left" by Democracy Now's Amy Goodman, the
civil rights attorney and historian Staughton Lynd has made it his fight
to regulate Ohio's prisons and abolish the death penalty. He and his wife,
Alice, live in a small bungalow in Niles, near Youngstown. In the 1960s,
Lynd was the director of the Mississippi Freedom Schools and taught
history alongside Howard Zinn at Spellman College. In the late 1970s and
early 1980s, when the steel mills closed, Lynd represented the workers,
and then turned to the prison-industrial complex that had risen in the
steel industry's wake.

Recognizing the importance of Lynd's work, Gary L. Anderson, who manages
American Legends Theatre in Redding, Calif., decided to join forces with
the civil-rights attorney. He had artistically dealt with the
controversial issue of the death penalty before the Lucasville play, in
the nationally touring one-man show, "Clarence Darrow: The Search for
Justice." The native Ohio lawyer, Clarence Darrow (1857-1938), is most
famous for his work in the Scopes "Monkey" Trial. Fighting against social
injustice and racism, over the course of his career Darrow managed to save
102 men from execution. Despite the serious nature of the subject matter
of these two plays, Anderson emphasized that both offer plenty of
opportunity for a good laugh.

STURM: What inspired you to direct "Lucasville: The Untold Story of a
Prison Uprising"?

ANDERSON: On the 4th of July, I was in San Francisco with my fiancee,
watching this wonderful fireworks display. She's having a beer, we're
sitting on the grass, and I am reading Staughton Lynd's book by the light
of the fireworks. I couldn't put it down! With that boast of the
celebration of American freedom and American justice system, that we hold
out as an ideal for the world, I was suddenly shaken by the fact that
there was truly some injustice done to these men. It was that moment under
the firework that it kind of clicked in my head that I should call
Staughton the very next day.

STURM: There were three big prison rebellions between 1970 and 1995, where
prisoners killed one another: Attica in 1971, Santa Fe in 1980, and then
finally Lucasville. What separates Lucasville?

ANDERSON: For one thing, I don't think anyone has ever written a play
that's toured nationally, the way this one will, about either Attica or
Santa Fe. But what separates Lucasville from the other 2 rebellions is
that these five men were in prison for very good reasons to begin with.
This is not like an innocence project, where someone is innocent from the
very beginning, or mentally ill, and the police decide to frame them.
These folks were already in jail, and four of them for good reason. That's
why the Innocence Project, or similar projects around America, won't touch
these men. Even though they are innocent of the crimes that bumped them
from being just "bad," up to death row, no one is helping them.

STURM: Can you describe people's reactions?

ANDERSON: I talk to people at Kinko's, or at lunch. I say, "Hey, have you
guys heard of the Lucasville thing?" "Yes, we have." "Do you remember what
caused the riot?" "No, we don't." "Do you remember what happened to the
guys at trial?" "Well, they probably deserved it, even though they didn't
do this or that, because they were already in prison. So we're not going
to worry about them getting executed." They're willing to lock them up and
throw them away. It's a very harsh judgment that we're getting from the
general public.

STURM: What about the charge that the state attained death sentences for
four men convicted of the murder of correctional officer Vallandingham
almost entirely on the basis of inmate informant testimonies?

ANDERSON: Yes, there was a snitch academy set up. And we intend to expose
that scandal here in the state by talking about it in the play, by mocking
it, by giving excerpts of how these men were pressured to give testimony
against these so-called leaders of the rebellion. And in actuality, of
course, these 5 men were just in the circumstances of doing the best they
could to stop the killing and to get their negotiated ends out there. But
the snitches were coached. They were taken away for a period of months, so
each would corroborate each other.

STURM: What themes of the Lucasville riot do you cover in the play?

ANDERSON: The themes that go through the entire production are
uncorroborated snitch testimony, death-qualified jury, which is when
prosecutors stack the deck and make sure that there are not only people
that are open to voting for the death penalty, but are rabidly for it. So
we illustrate that. And of course, we're looking for a moratorium at least
for these 5 men and a reconsideration of what happened to the other men
who are serving long sentences in the "supermax." Those are the three
themes that resonate outside of Ohio.

STURM: Immediately after the rebellion, a new category of prisoners was
created: "high maximum security." And there's some evidence that the $85
million prison was built for the Lucasville Five, correct?

ANDERSON: They were the first occupants of it. That's how they got the
funding. We believe that Warden Arthur Tate always wanted to build some
kind of supermax security unit. But they told him there was no
justification for it. There had been no escalation of violence. Well,
bingo! What happens? On April 11, 407 prisoners are left guarded by 15
guards. I mean, gee! It's like an invitation to do something wrong.

STURM: Did you actually meet with the real life Lucasville Five?

ANDERSON: I met with Jason Robb. He's a captain in the Aryan brotherhood.
And I met with Siddique Abdullah Hasan, also known as Carlos Sanders. He
was an Imam and leader of the Muslims during the prison rebellion. I'm
meeting with Keith LaMar. And then I met with George Skatzes. He was
transferred out of the supermax and is in Mansfield. He developed a great
depression from being in the supermax cell. It's only the size of a
compact car. During our presentation, we form living walls with 16 actors
that represent the height, width and depth of an actual supermax cell.
Then we put one of the men in it, George Skatzes, to talk about what
living in a cell this size is like. The audience has to see it. Drawing a
diagram on the floor is not good enough. We do a portion of the play
inside the supermax film.

STURM: What do the "Lucasville Five" think about the play? Do they like
it?

ANDERSON: Oh, yes. This was the one thing that I was worried about, that
it would give them some hope. And it would put them back in to the
headlines again, and might make a difference, if the issue is taken up by
every state. Can you imagine how the state of Ohio may react if this thing
is touring the country? And for once they not only get the pressure coming
from inside the state, but have 49 other states starting to call them up
and say, "What the hell is going on there in Ohio?" We just want to bring
it to the public's attention.

STURM: Maryland, New Jersey, Connecticut, Illinois, New Mexico and North
Carolina are all likely to ban executions. And your own state of
California has ordered an investigation of the death-penalty system.
What's your take on the situation in Ohio?

ANDERSON: Yesterday, on my way out of a store, I tested the waters. It was
the day after the execution of Kenneth Biros was halted. I said to this
fellow, "What do you think about this whole death-penalty thing?" And then
he said, "I hope that bastard suffers. God wants him to suffer for what he
did to this girl's family. This is God's work!" And I just looked at him
with my mouth open. I didn't expect such a vehement opinion. I asked, "God
does? Do you know the mind of God?" The guy was just taken aback, and
said: "Maybe I went too far, but this is a bad guy. I don't want to hear
all this bleeding-heart stuff. The death penalty is a good thing; it kills
and animals and scum like that." And he got back in his car. People have
deep opinions about this, and about abortion and about gay rights. There
are certain hot-button issues that Americans citizens are just crazy
about!

STURM: Do you think your play can make a difference in terms of changing
people's minds about the death penalty?

ANDERSON: Here's the way I feel about theater. I've done musicals and
comedy for too many years in my life when I don't think we've done
anything but help people get to sleep better. I think theater should
engage and enrage. And if it causes controversy, so be it. I think this is
what's going to happen with this play.

STURM: "Lucasville" and "Clarence Darrow: The Search for Justice" are
presented as a double feature. 4 hours of deadly serious subject matter -
couldn't this be too much for an audience to bear?

ANDERSON: You should make no mistake. I love to laugh. The humor in
Lucasville comes from the tenseness of the situation. There are natural
things that occur. For instance, in the discussion between the state and
the inmate negotiators. After 15 or 20 hours of negotiation, people are
tired. They let their sense of humor come into it. They let their
compassion slip. And they laugh with each other. It's almost like breaking
bread. If you can laugh together, you found some common ground. Humor is
peppered throughout the play.

But I also have included in "Lucasville" a device that's called the stage
manager. In Lucasville he weaves himself in and out the entire production,
keeping the action moving on. He comments in a very funny way, and he even
mocks various things that he doesn't agree with. "Ladies and gentlemen,
introducing the negotiator for the Department of Rehabilitation and
Correction, and backed up by 2,000 armed troops outside the wall, we have
David Burchett." We have the actors applauding. "And on in the other
corner we have George Skatzes, currently a guest of the state, and backed
up by the wall."

I'm no dummy. I know how to get laughs. "Lucasville" offers a mixture of
laugh and tears, and of course sadness. It should touch you on many
levels.

STURM: You have been portraying Clarence Darrow, the famous lawyer who
saved 102 men from execution, for 3 years now. If Darrow were alive, would
he defend the Lucasville Five?

ANDERSON: Absolutely. Darrow never had a client executed. That's unheard
of in the world of legal history. He was a staunch opponent of the death
penalty. He would do it, whether he made money or not. He was a terrible
businessman. He worked pro bono for most of the cases during his life.
Even when he was promised $1 million in the Leopold and Loeb case, he
wound up with $10,000.

STURM: What would he have to say about the judicial system that prosecuted
the Lucasville prisoners?

ANDERSON: Darrow would say that it was unfair. It needs a revision. It
needs to be examined. I don't think he would agree with Gov. Strickland
saying that the justice system in Ohio is "fair and impartial," for a
moment.

STURM: What are your plans to take "Lucasville" on a national tour?

ANDERSON: I want people tripping over productions of "Lucasville" just
like they would 7 Eleven, Walgreens, Rite Aid, Starbucks. Every time a
community turns around, I want them saying, "What is this play? It's
everywhere!" This is not just a regional play. I have 3 cities in Florida
that want to do Lucasville, and I have some groups in Idaho that want this
play. Oklahoma and California are interested, too. We're going to assault
this nation with the way that these men have been framed. We're going to
really call everyone's sense of justice into play. Now do we tell the
audience what to do at the end of this play? Absolutely not. Why should
we? Theater is meant to inspire, intrigue and engage, and get people to
come to these things on their own. That's the best kind of truth. The
truth that comes from within. That's what urges you.

For reservations, call the ACLU at: (216) 472-2209

(source: The Athens News)





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

Death penalty appeals studied----Party of president who appointed judges
affects outcome, paper reports


The fate of death penalty defendants before a federal appeals court often
depends on the political party of the president who appointed the judges,
a newspaper study published Sunday found.

Judges on the 6th U.S. Circuit Court of Appeals appointed by Republican
presidents voted to deny the appeals 85 percent of the time, while those
appointed by Democrats voted to support at least part of the appeals 75
percent of the time, the Cincinnati Enquirer reported.

The newspaper examined the 85 death penalty cases considered between
January 2000 and April 7, 2007. The court decides death penalty appeals
from Ohio, Kentucky and Tennessee.

The 1st stop for an inmate at the 6th Circuit is before a randomly
selected 3-judge panel. If the inmate loses that round, he or she can ask
the full Circuit to consider the ruling. The court has 14 active judges
and 2 semi-retired senior judges.

The full court rarely disagrees with the 3-judge panels and the U.S.
Supreme Court hears few death penalty cases.

9 of the judges were appointed by Republican presidents and seven were
appointed by Democrats.

Appointees of Democrat Jimmy Carter vote, at least in part, in the
inmate's favor 89 % of the time; Republican Ronald Reagan's appointees
voted in favor in 25 % of cases; Republican George H.W. Bush's appointees,
7 percent; Democrat Bill Clinton's appointees, 70 %; and appointees of
Republican President Bush 13 %, the Enquirer found.

"That is very stark,'' said Richard Dieter, executive director of the
Death Penalty Information Center, a nonprofit group that's critical of the
death penalty. "It makes blind justice look like part of the political
system.''

The study found that a 3-judge panel with a liberal majority gives an
inmate a much greater chance of avoiding an execution than going before
one with a conservative majority.

"When I look at a lineup of a panel in this kind of case, you can almost
go to the bank on what the result is going to be,'' said Nathaniel Jones,
a retired 6th Circuit member appointed by Carter.

Lawyers and court-watchers blame the ideological split on the nominating
process, in which the president's pick often goes through a grilling by
the Senate Judiciary Committee on hot-button issues such as the death
penalty and abortion, then faces a confirmation vote by the full Senate.

"The most important factor is the president who appoints federal judges,''
said Hamilton County Prosecutor Joe Deters, a Republican. "That's why,
when there is a Supreme Court nominee, there is blood in the streets of
Washington.''

The 6th Circuit's Danny Boggs, a Reagan appointee, once said the court's
liberal judges would delay an execution "based on a hot dog menu.''
Liberal judges have complained the court's conservative wing at times acts
as a cabal.

"It is, at the end of the day, a political issue and a social issue,''
said Richard Chesley, a lawyer who has argued before the court. "They
can't separate their own pathos, their political views. While justice is
supposed to be blind, it's not."

(source: Associated Press)

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

Report: Politics a factor in death penalty appeals


The fate of death penalty defendants before a federal appeals court often
depends on the political party of the president who appointed the judges,
a newspaper study published Sunday found.

Judges on the 6th U.S. Circuit Court of Appeals appointed by Republican
presidents voted to deny the appeals 85 % of the time, while those
appointed by Democrats voted to support at least part of the appeals 75 %
of the time, The Cincinnati Enquirer reported.

The newspaper examined the 85 death penalty cases considered between
January 2000 and April 7, 2007. The court decides death penalty appeals
from Ohio, Kentucky and Tennessee.

The 1st stop for an inmate at the 6th Circuit is before a randomly
selected 3-judge panel. If the inmate loses that round, he or she can ask
the full Circuit to consider the ruling. The court has 14 active judges
and 2 semi-retired senior judges.

The full court rarely disagrees with the 3-judge panels and the U.S.
Supreme Court hears few death penalty cases.

9 of the judges were appointed by Republican presidents and 7 were
appointed by Democrats.

Appointees of Democrat Jimmy Carter vote, at least in part, in the
inmate's favor 89 % of the time; Republican Ronald Reagan's appointees
voted in favor in 25 % of cases; Republican George H.W. Bushs appointees,
7 %; Democrat Bill Clinton's appointees, 70 %; and appointees of
Republican President Bush 13 %, the Enquirer found.

"That is very stark," said Richard Dieter, executive director of the Death
Penalty Information Center, a nonprofit group thats critical of the death
penalty. "It makes blind justice look like part of the political system."

The study found that a 3-judge panel with a liberal majority gives an
inmate a much greater chance of avoiding an execution than going before
one with a conservative majority.

"When I look at a lineup of a panel in this kind of case, you can almost
go to the bank on what the result is going to be," said Nathaniel Jones, a
retired 6th Circuit member appointed by Carter. Lawyers and court-watchers
blame the ideological split on the nominating process, in which the
presidents pick often goes through a grilling by the Senate Judiciary
Committee on hot-button issues such as the death penalty and abortion,
then faces a confirmation vote by the full Senate.

"The most important factor is the president who appoints federal judges,"
Hamilton County Prosecutor Joe Deters, a Republican, said. "Thats why,
when there is a Supreme Court nominee, there is blood in the streets of
Washington."

(source: Associated Press)

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

Cline arraigned on death penalty murder charge


Family members of a teenage girl who was killed last month cried as
Magistrate Dave Mallett explained rights to the man accused of slaying
her.

John G. Cline, 25, of Newark, appeared without an attorney this morning in
the Licking County Justice Center courtroom for a bond hearing.

Cline was indicted Friday on aggravated murder charges with a death
penalty specification. He is accused of raping and giving marijuana to
16-year-old Bethany Broseus before killing her March 29.

Her body was discovered March 30 near Staddens Bridge Road.

Mallett set Cline's bond at $1 million, the same amount Judge David
Branstool set after Cline's arrest.

Cline also was indicted on an unclassified felony murder charge, a
1st-degree felony count of rape, a 3rd-degree felony count of tampering
with evidence and a 4th-degree felony count of corrupting another with
drugs.

Jerry Broseus, her father, wore a shirt with his daughter's name written
in a heart.

He declined to comment.

(source: Newark Advocate)

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

Lawyer mistakes overturn sentence----When death sentences are overturned,
it's usually because the accused killer's lawyer made them


More death sentences are overturned in Ohio because of mistakes by defense
lawyers than for any other reason.

An Enquirer analysis found that 15 death row inmates, including five from
Hamilton County, won federal appeals during the past seven years based
entirely or in part on the poor performance of their lawyers.

Some lawyers never spoke to their clients. Some hired unqualified experts
or none at all. Others neglected to read key documents, do basic
investigations or interview their own witnesses.

1 attorney failed to notice when prosecutors admitted they couldn't prove
who shot the victim. 2 others broke out in laughter during arguments
before the Ohio Supreme Court.

The problems so frustrated one federal judge last year he suggested the
best way to avoid execution was to hire an incompetent lawyer.

"If counsel provides ineffective assistance," wrote Judge Danny Boggs,
"then the prisoner is likely to be spared, certainly for many years, and
frequently forever."

Boggs is chief judge of the U.S. 6th Circuit Court of Appeals in
Cincinnati, the powerful court that decides every federal death penalty
appeal from Ohio, Kentucky and Tennessee.

The Enquirer's analysis of the court's decisions since 2000 found:

The court ruled in favor of 19 death row inmates who claimed they were
harmed by "ineffective assistance of counsel." 15 of those were from Ohio,
3 from Tennessee and one from Kentucky.

The court overturned death sentences in most of those cases, but ordered
new trials for 4 inmates. 1 is awaiting trial, 1 pleaded guilty to avoid a
death sentence, 1 died in prison and another's conviction was reinstated
by the U.S. Supreme Court.

Ineffective assistance cases accounted for 54 % of all appeals won by
death row inmates in the 6th Circuit.

"It's a big, big problem," said Judge Gilbert Merritt, a semiretired
senior judge on the 6th Circuit court.

"The lawyers don't have the wherewithal to put on a 1st-class defense."

Some say that's because defense lawyers lack training, are underpaid or
are simply overmatched by law enforcement's resources. Prosecutors say the
real problem is federal judges who put too much emphasis on defense
mistakes.

They say those mistakes don't always add up to an unfair trial, especially
when there is strong evidence of guilt.

"You can second guess and be a Monday morning quarterback all day long,"
said Hamilton County Prosecutor Joe Deters. "If you want to find a
problem, you can find it."

Regardless of where they stand on the merits of the claims, lawyers and
judges generally agree ineffective assistance touches everyone involved in
capital cases.

Inmates must wait years to learn their fates, taxpayers are stuck with
tens of thousands of dollars in legal bills and families on both sides
struggle with the stress and frustrations of the long appeals process.

"It rips your heart out having to talk to these families," Deters said.

LAUGHTER IN COURT

Deters had one of those conversations last year when the 6th Circuit
ordered a new trial for George Franklin, the man convicted of bludgeoning
to death Gerald Strauss during a burglary of his Cincinnati home in 1988.

"It's wrong," Deters said of the decision. "I would like the judges to
explain to Gerald Strauss' family this ingenious bit of reasoning."

But Franklin's lawyers and relatives say the decision was long overdue.
They say Franklin's case was tainted by mistakes during his trial and by
his lawyers' failure to cite those mistakes on appeal.

The 6th Circuit ruled that Franklin's former lawyers, Candace Greenham and
Roxann Dieffenbach, mishandled his appeal when they failed to mention the
most important reason for a new trial: One juror showed bias against him
but remained on the jury.

The judges also said the lawyers seemed unfamiliar with the evidence, had
not viewed a crucial videotape and laughed inappropriately five times
during arguments before the Ohio Supreme Court.

At one point, Greenham described a graphic crime scene photo as
"overkill," then apologized.

"Excuse the pun," she said, laughing.

Boggs, a conservative judge who rarely rules for inmates, wrote the
opinion ordering a new trial. "Franklin suffered a total lack of
meaningful advocacy," he said.

Dieffenbach declined comment and Greenham could not be reached.

Franklin pleaded guilty to murder charges April 5, just two months before
his new trial was to begin. In a plea deal, he avoided the death penalty
and was sentenced instead to 50 years to life in prison.

Prosecutors, who linked Franklin to the crime by a partial fingerprint,
feared they could not win another conviction because of old evidence, hazy
memories and missing witnesses. Defense attorneys said Franklin was
remorseful and grateful to plead guilty if it meant leaving death row.

"I want to thank everybody for giving me another chance to be an asset,
not a liability," Franklin said after he was sentenced. "I'll try to make
this right."

'A TERRIBLE PROBLEM'

No matter what the outcome, nobody wins when mistakes result in a new
sentence or trial in death penalty cases.

Either the condemned inmate is an innocent man who has spent years on
death row, or he is a guilty man who now could go free because prosecutors
are unable to get a conviction after so much time.

"It's frustrating," said Joe Wilhelm, the public defender who argued for
Franklin in the 6th Circuit. "But we need to have the process as reliable
as it can be when we're dealing with life and death."

The heart of that process is the appeals courts, where judges must
consider two major questions in every case: Did a mistake occur and, if
so, was it so serious that it compromises the conviction or the death
sentence?

Federal judges frequently differ on the answer, with judges appointed by
Democratic presidents far more likely to find fault with a lawyer's
performance than those appointed by Republicans.

"The kind of lawyers they get is very spotty," said Merritt, who was
appointed by President Carter. "I think it's getting a little bit better,
but for years it's been a terrible problem."

Where Merritt and some other judges see serious flaws, conservative judges
see lawyers doing the best they can for guilty clients.

Those judges often find that "mistakes" were actually strategic decisions,
and that other problems were so minor they do not warrant overturning a
jury verdict.

"The Constitution guarantees competent counsel and a fair trial, not
perfection," Judge Alice Batchelder, an appointee of the first President
Bush, wrote in a decision denying a 2000 appeal.

Prosecutors make the same argument. They say errors occur in every trial
and should only lead to reversals in the most egregious cases.

"The question is not whether they made a mistake. The question is, but for
that mistake, would the outcome likely have been different?" said Jim
Canepa, chief of the capital crimes section for Ohio Attorney General Marc
Dann.

"If you have video of him committing the offense ... and the lawyer makes
a mistake, does it matter?"

Some judges say yes.

A case in point is Ronald Dean Combs, a Cincinnati man convicted in 1988
of shooting his former girlfriend, Marguerite "Peggy" Schoonover, and her
mother, Joan Schoonover.

Combs stalked the women, chased them in his car, cornered them in a
parking lot and killed them with shotgun blasts. Witnesses saw him do it
and he admitted firing the shots.

The 6th Circuit, however, ruled in 2000 that Combs deserved a new trial
because his lawyer, Chuck Stidham, "rendered ineffective assistance so
egregious as to make us doubt whether Combs' trial produced a just
result."

The judges concluded that Stidham, who later gave up his law license,
repeatedly made serious mistakes. They said he called a witness who was
more help to prosecutors than to his client and he failed to tell the jury
about Combs' alcohol and drug use on the day of the shootings.

"There was a wealth of evidence out there that wasn't presented," said
Richard Chesley, the attorney who handled Combs' appeal. "None of it
excuses the conduct, but it should have been presented."

Canepa, though, argued that Stidham's errors were not prejudicial or
serious enough to cast doubt on Combs' guilt.

"He levels a shotgun and kills two people in broad daylight in front of
witnesses, and yet the 6th Circuit found the error to be prejudicial,"
Canepa said. "That's one that makes you scratch your head as a
prosecutor."

The victims' relatives were just as frustrated.

"I think the justice system stinks," John Schoonover, Joan's husband, said
after the decision.

Combs received a 63-year sentence after pleading guilty to the murders
before his 2nd trial. He died in prison in 2004.

ON THE FIRING LINE

Pete Pandilidis, who has defended about 20 accused killers, said appeals
court judges don't appreciate the difficult, split-second decisions
defense lawyers must make in the heat of a trial.

"The question that always comes up in my mind is how many death penalty
cases the appellate judges have had," Pandilidis said. "How often have
they been on the firing line?"

The 6th Circuit took Pandilidis and another lawyer, Dominic Perrino, to
task last year for their handling of Dewaine Poindexter's murder trial in
Cincinnati in 1985.

A jury convicted Poindexter of murdering his ex-girlfriend's new
boyfriend, but the 6th Circuit threw out his death sentence. The judges
said the lawyers failed to hire experts, interview relatives or request
records that could have helped their client.

"Counsel failed to conduct virtually any investigation," the judges said.

The court found all of the problems occurred during the penalty, or
sentencing, phase of the trial, when lawyers plead for their convicted
client's life on the basis of his difficult upbringing, mental problems or
other mitigating factors.

It often is the most important part of a death penalty trial, especially
when evidence of guilt is as strong as it was in Poindexter's case.

Poindexter is awaiting a new sentencing hearing.

Pandilidis said he and Perrino did the best they could with the limited
time and resources they had as court-appointed attorneys.

"The prosecution has a cast of thousands to help them out," Pandilidis
said. "Regardless of what you see in the movies, we don't have
investigators and 10 people behind us."

PAY, TRAINING ARE ISSUES

Lack of resources is a common complaint among defenders.

"There are people going on death row who probably wouldn't be there if
there had been better resources," said Bill Gallagher, a defense lawyer
who teaches a capital punishment course at the University of Cincinnati.

Hamilton County pays court-appointed lawyers $45 an hour in capital cases
and caps the total payout at $25,000, or about 550 hours of work. That's
up from $35 an hour and a $10,000 cap just a few years ago.

The pay is significantly less than the $100 to $500 an hour that lawyers
typically make from clients who pay their own bills.

Many lawyers decide the pay is not worth the headache of the trial, the
appeals and the almost inevitable accusation of ineffective assistance.

"Let's be honest," Wilhelm said. "Money matters, and sometimes you get
what you pay for."

But Hamilton County Public Defender Lou Strigari said the lawyers he
appoints do good work. He said ineffective assistance claims are common
because they are easy claims to make - not because the lawyers do a poor
job.

"It's a cover-your-butt kind of thing," Strigari said of the claims.
"Mistakes happen, but overall I think we do a pretty good job."

He said death penalty lawyers are better paid and better trained than
ever. He cites standards adopted in the late 1980s that require at least 5
years experience in criminal cases and 20 hours of specialized training
every 2 years.

Judges and lawyers say such efforts have improved the situation, but more
progress is needed.

They say too many mistakes still are being made.

"It remains a problem," said Judge Boyce Martin, who was appointed to the
6th Circuit by President Carter almost 30 years ago. "If the lawyers were
superb, our job would be easier."

(source: Cincinnati Enquirer)

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


URGENT ACTION APPEAL---- From Amnesty International USA


16 April 2007----UA 89/07 Death penalty / Legal concern

USA (Ohio) James J. Filiaggi (m), aged 41

James Filiaggi, white, is scheduled to be executed in Ohio on 24 April. He
was sentenced to death in 1995 for the murder of his former wife, Lisa
Huff Filiaggi, who was shot on 24 January 1994.

James Filiaggi pleaded not guilty by reason of insanity for his trial in
1995. While he was being transported from the jail to the court for the
start of the proceedings on the morning of 11 July 1995, James Filiaggi
was made to wear an electro-shock stun belt. On the way to the courthouse,
the stun belt was activated, apparently by accident. The trial was
suspended until later the same day. When it resumed, James Filiaggi waived
his right to a trial by jury, meaning that under Ohio law he would be
tried by a three-judge panel instead.

On the following day, at the request of the defense lawyers, the court
ordered an evaluation of James Filiaggi's competence to stand trial, to
determine if he understood the proceedings against him, and was able to
consult with his lawyers and assist in his defense. At a hearing on 13
July 1995, Dr Thomas Haglund, a forensic psychologist, testified that he
believed Filiaggi was competent to stand trial, but also testified that
shortly after his examination of Filiaggi the previous afternoon, he had
told the defense lawyers that he believed their client was not competent.
Dr Haglund testified that his uncertainty about the defendant's competence
warranted further evaluation. However, the court rejected this
recommendation, and denied a request by the defense lawyers, who were
having difficulty communicating with their client, that Filiaggi receive a
psychiatric evaluation. Over the course of the trial, the defense lawyers,
one of whom was a doctor, repeatedly requested this further examination.
Their requests were rejected, along with their motion for mistrial. With
this latter motion, the defense lawyers filed an affidavit from a
psychiatrist who had examined James Filiaggi on 15 July 1995. He stated
his ''unequivocal opinion'' that Filiaggi had been incapable of
participating in his own defense for ''at least two days'' after the
incident. He described Filiaggi as ''aggressive, confused, disoriented and
often non-responsive to simple verbal questions''.

At the trial, the defense presented testimony from three psychiatrists and
a psychologist to support the insanity plea. All four testified that in
their opinion, James Filiaggi suffered from bipolar disorder, and
intermittent explosive disorder (an impulse control disorder). For the
state, a forensic psychiatrist testified that on the day of the crime, the
defendant was not suffering from any mental disorder that would meet the
legal test for insanity under Ohio law. He concluded that while Filiaggi
had been contemplating suicide at the time, he had decided to kill his
former wife instead. The judges rejected the insanity defense, finding
that the defendant ''knew of the wrongfulness of his acts in this case'',
and sentenced James Filiaggi to death.

In April 2006, a three-judge panel of the US Court of Appeals for the
Sixth Circuit upheld the conviction and death sentence, by two votes to
one. The dissenting judge called into question the trial court's repeated
denial of defense motions for further evaluation of their client. He
stated: ''The court's predominant rationale was that Filiaggi was
malingering, evidenced by the court's observation of Filiaggi and the
statements of several guards. This conclusion is surprising, given that
the aforementioned psychologist [Dr Haglund] who evaluated Filiaggi, and
whose evaluation formed the basis for the court's determination of
competence, testified specifically that Filiaggi was not malingering. The
psychologist credited Filiaggi's belief, for instance, that he was being
shocked by electricity even after the belt had been removed.''

The dissenting judge noted that while there was some evidence that James
Filiaggi was competent, such evidence does not absolve a trial court of
its constitutional obligation to hold a competency hearing in response to
evidence coming to light during the proceedings. The judge argued that, in
a case such as this where two lawyers, a medical doctor (the other
lawyer), and a court-appointed forensic psychologist ''all agree that a
further competency evaluation is in order, and when such an evaluation is
requested again and again on very specific bases, a trial court judge is
not free to focus exclusively upon whatever evidence suggests competence
and otherwise turn a deaf ear. Such conduct directly contradicts
[constitutional law], and denies a fundamental tenet of due process to a
defendant facing the severest sanction known to the civilized world''.

James Filiaggi has given up further appeals against his death sentence. He
had a clemency hearing in early 2007 before the Ohio Parole Board, as
every condemned Ohio inmate receives such a hearing whether or not they
request one. James Filiaggi did not submit a clemency petition, and
instructed his counsel not to say anything on his behalf at the hearing.
The Board rejected clemency.

BACKGROUND INFORMATION

The stun belt, as worn by James Filiaggi at his 1995 trial, is a remote
controlled device that on activation delivers a 50,000 volt, three to four
milliampere shock, lasting eight seconds. This high-pulsed current enters
the wearer's body at the site of the electrodes, near the kidneys, and
passes through the body, causing a rapid electric shock. The shock causes
incapacitation in the first few seconds and severe pain rising during the
eight seconds. Amnesty International has called for the stun belt to be
banned (USA: Cruelty in control?, June 1999,

http://web.amnesty.org/library/index/engamr510541999). In its findings in
2000 on the USA's compliance with the Convention against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment, the UN Committee
against Torture also called on the USA to abolish this device.

Amnesty International opposes the death penalty in all cases,
unconditionally. Today, 128 countries are abolitionist in law or practice.
In contrast, there have been 1,070 executions in the USA since it resumed
judicial killing in 1977, 24 of which have been carried out in Ohio. If
this execution goes ahead, it would be the first in Ohio under the
governorship of Governor Ted Strickland.

RECOMMENDED ACTION: Please send appeals to arrive as quickly as possible,
in your own words:

- expressing sympathy for the family and friends of Lisa Filiaggi,
explaining that you are not seeking to condone the manner of her death or
to downplay the suffering caused;

- opposing the execution of James Filiaggi, and the death penalty in
general;

- expressing concern at the use of the electro-shock stun belt in this
case and evidence of its contribution to doubts about the defendant's
competency to stand trial;

- calling on Governor Strickland to stop this execution, and to support a
moratorium on executions in Ohio.

APPEALS TO:

Governor Ted Strickland

Governor's Office, Riffe Center, 30th Floor

77 South High Street

Columbus, OH 43215-6108

Fax: 1 614 466 9354

Email via:

http://www.governor.ohio.gov/Default.aspx?tabid=101.

Salutation: Dear Governor

PLEASE SEND APPEALS IMMEDIATELY.

Amnesty International is a worldwide grassroots movement that promotes and
defends human rights.

This Urgent Action may be reposted if kept intact, including contact
information and stop action date (if applicable). Thank you for your help
with this appeal.

Urgent Action Network

Amnesty International USA

600 Pennsylvania Ave SE 5th fl

Washington DC 20003

Email: uan at aiusa.org

http://www.amnestyusa.org/urgent/

Phone: 202.544.0200

Fax: 202.675.8566

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END OF URGENT ACTION APPEAL

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