[Deathpenalty] death penalty news----ALA., OHIO, LA., ARIZ., S.C.

[Rick Halperin]

Feb. 21



ALABAMA:

A legal defense that makes sense


THE ISSUE: An effort to improve the legal representation for poor
defendants in federal court is a step in the right direction - and a step
the state desperately needs to copy.

The idea of ensuring better-quality legal services for poor federal
defendants in north Alabama is so good, we wish the state of Alabama would
steal it.

Not that the federal courts in Alabama's Northern District, which includes
Jefferson and Shelby counties, have settled on the perfect plan to ensure
decent legal representation for people who can't afford lawyers. But at
least they are moving in the right direction.

Now, the only requirement for lawyers to be appointed to federal
defendants here is that they are licensed, in good standing with the bar
and sworn-in members of the Northern District. Under a plan that will soon
go into effect, lawyers will go through an application process that
factors in experience. More experienced lawyers will mentor those who are
less seasoned.

This isn't the only way - or necessarily the best way, in our view - to
solve the riddle of indigent defense.

Almost every federal district in the country, including both of the other
Alabama districts, has a public defender's office. These offices represent
poor people and assist lawyers who are appointed to handle cases the
defender's office cannot. They typically work well and attract qualified
people who develop real expertise in federal defense. For whatever reason,
the judges in the Northern District have chosen not to go this route.

Among those who believe a federal defender's office is the preferable
option is John Lentine, a defense lawyer who worked on the improvements in
the court-appointed system.

"In the long run, it's the best course," he said. "The rest of the country
can't be wrong."

He believes, though, that the coming improvements are a first step toward
establishing a federal defender's office in the Northern District. "We are
on the road to that destination," Lentine said.

Which is more than you can say about the state courts in Alabama, where
indigent defense is an even bigger issue than it is in federal courts.

At the state level, indigent defense is provided in a system that lacks
oversight and is haphazard, inconsistent and expensive. Even those charged
with death-penalty offenses aren't assured a decent defense. An effort to
raise the bar - or, God forbid, to establish a real indigent defense
system in the state - would require a broad legislative effort that so far
isn't happening.

And you should care, because ...?

Because improved lawyering on the front end would save taxpayers the costs
of unnecessary retrials. Because the rights of the accused must be
protected. Because our Constitution says every defendant is entitled to a
lawyer who is up to the job.

In the Northern District, 90 % of federal defendants are too poor to hire
their own lawyer.

Thanks to a plan that will be in force in July, they should have a better
shot at getting a lawyer who has the necessary experience to do a good
job.

The state of Alabama should at least give defendants in its courts that
much.

(source: Opinion, The Birmingham News)






OHIO:

Judges followed law in Franklin case


I am writing to correct the misimpressions that may have resulted from
Peter Bronson's incomplete account of the prosecution of George Franklin,
in his column of Feb. 11 ("A killer may walk so one judge can block the
death penalty").

Certainly, whoever committed the brutal murder of Gerald Strauss must be
brought to justice. The state court trial and conviction of Franklin for
that crime is entitled to respect, as is the hard work of the judge,
jurors and lawyers in that case. Under our system of law, that trial was
not the last word, as the convicted defendant is entitled to appeal the
verdict in state, and federal, courts.

After all of the state proceedings were completed, the federal judges in
this case were applying the habeas corpus statute, first passed by
Congress in 1789. Granting the delay caused by habeas corpus, Congress'
directive to federal judges is to examine state criminal trials for
possible violations of federal constitutional rights, given the importance
of those rights.

Federal judges give considerable deference to the result of state court
proceedings. Even with this deference, the federal judges in this case
decided that a juror in the state trial misunderstood the law she was
required to apply, to such a degree that a new trial was necessary.

Bronson's account, unfortunately, misstates or omits many things about
this process. He argues that U.S. District Judge Walter Rice "sat" on the
case for eight years. This is false. A review of the docket sheet in the
case reveals that Rice "sat" on the case for just over 100 days, from the
time the report and recommendation on the habeas petition, filed by U.S.
Magistrate Judge Michael Merz, became ready for consideration.

Then, Bronson complains that Rice ordered a new trial take place in 180
days. That is true, but Bronson fails to note that the 180-day period to
retry cases in these circumstances is explicitly required by precedent
from the U.S. Court of Appeals from the Sixth Circuit.

He also complains that the case may be difficult to retry, given the
passage of time. That is quite true, and is a cost of the existence of
federal habeas law that should be carefully weighed against its benefits.
Bronson should take his complaints to the Sixth Circuit or Congress, not
to jurists who are faithfully following the commands of the legislature or
a higher court.

Bronson fails to mention the subsequent history of the case. Rice issued
the writ of habeas corpus March 31, 2003. The prosecutor is entitled to
disagree with that decision and to appeal it, as he did, but he was on
notice, almost four years ago, that a retrial was possible. The appeal to
the Sixth Circuit was decided Jan. 9, 2006, affirming Rice's decision. The
state filed an appeal to the U.S. Supreme Court, which without recorded
dissent refused to hear the case last month. I invite the reader to read
the Sixth Circuit decision, published at 434 Federal Reporter 3d 412, for
a full and fair summary of the facts.

Bronson claims that Rice is a "well-known opponent of the death penalty."
He provides no evidence to support this claim. So far as I know, Rice has
not made a public statement on his personal views of the death penalty,
whatever they may be. (If he had publicly opposed it, he would join in
that regard Pope John Paul II and the Catholic bishops.) Nor has he
expressed opposition in his decision in this case, or any other case. Nor
should he, as his personal views of the law, whatever they are, are
irrelevant to his impartially applying it.

If anyone seriously believes, like Bronson, that Rice is biased against
the death penalty, then they would and should file a motion to ask the
judge to disqualify himself for that reason. (A denial of such a motion is
appealable.) No motion to disqualify has been filed in this case.

Finally, Bronson mentions, without further explanation, that Rice is an
appointee of President Carter. It is not clear why that should be
relevant. If it is, then it is worth mentioning that Judge Danny Boggs,
the author of the Sixth Circuit decision affirming Rice, is an appointee
of President Reagan, and well-known as a smart and conservative jurist.
Only four votes are needed on the Supreme Court to review a case, so at
least one (and perhaps more) of Chief Justice John Roberts, and Justices
Samuel Alito, Antonin Scalia and Clarence Thomas, decided to leave the
decisions of Judges Rice and Boggs intact.

Bronson is right about one thing. Judges should impartially follow the law
in all cases, no matter what their personal or political views might be.
We are fortunate that occurred for the especially difficult issues raised
by the Franklin case.

(source: Michael E. Solimine is a professor at the University of
Cincinnati College of Law. He served as a law clerk to Judge Walter Rice
from 1981 to 1984; Cincinnati Enquirer)






LOUISIANA:

Is This Justice?----Kind of a Big Deal


The tide is turning in the fight to abolish the death penalty in the
United States. The total number of executions dropped to 53 in 2006, a
nearly 50 percent drop since the 90's. The number of death sentences
imposed by juries also decreased, to the lowest number since the death
penalty was reinstituted in 1976. But these statistics tell only half the
story.

The death penalty is being reconsidered as a means of punishment across
America. A moratorium has already been imposed in a number of states
following concerns about implementation, specifically with regard to
lethal injection.

37 of the 38 states with the death penalty employ lethal injection, seeing
it as a clean and humane way to end a life. However, new information
reveals that lethal injection may constitute  as journalist Alan Maas
describes it  "little more than state-sanctioned torture." Studies have
shown that doses of the lethal cocktail administered are not high enough
to keep the prisoner from feeling undue pain.

As the public learns more, doctors and anesthesiologists are refusing to
take part in the process. As a result, states with the largest and
3rd-largest death rows  California and Florida, respectively  have stayed
death sentences following bungled executions. A host of others  including
Tennessee, Maryland, Illinois and Kansas  are also reconsidering their
death-penalty laws.

Though nothing is certain, there is hope that abolition of the death
penalty is on the horizon. As significant as that would be, however, the
prison-justice movement must address concerns beyond the death penalty. As
most know, prisoners who are spared the death penalty usually have their
sentences commuted to life in prison without the possibility of parole.

Can we honestly call this justice?

For prisoner Gary Tyler, the answer is no. Sentenced to die at age 17 in
1975 for 1st-degree murder, Gary was once the youngest person on death
row. Although his sentence was later commuted to life, Gary has spent 32
of his 48 years on this planet in jail for a crime he didn't commit.

Gary was a teenager when, more than a decade after Brown v. Board of
Education, states began desegregating public schools. In most counties,
this meant busing black students like Gary to all-white schools, where
they often met racist hostility. Gary's home of Destrehan, La., was no
exception. In October 1974, several people were stabbed in a fight between
black and white students at the local high school. The principal closed
the high school and evacuated the black students. Gary boarded Bus 91 with
65 of his classmates while a white mob threw bottles at the bus. One of
the black students noticed that one of the white boys was carrying a gun,
and within seconds a gunshot downed another white student, Timothy Weber,
who later died of his wounds.

Police at the scene immediately stormed the bus, ordering all the black
students off. They meticulously searched the bus and the black students,
finding no sign of a weapon. Gary, however, was arrested for "disturbing
the peace" after standing up to the police when they harassed his cousin.

The police were determined to make someone pay for the shooting, and Gary
was a convenient target. When he refused to "confess," the police beat him
savagely. Though he maintained his innocence, the police coerced testimony
from two fellow students, both of whom later recanted their statements.
Police then "found" a gun in Gary's seat, despite having found nothing
during their initial three-hour search. Testing was done connecting the
gloves Gary was wearing to that gun, but the tester resigned in 1976 after
being accused of lying about the results; independent testing was never
done on the gun or the bullet. In effect, the police had created all the
evidence they needed.

The presiding judge at Garys trial was Ruche Marino, identified as a
former member of the White Citizens Council of Louisiana  "a suit and tie
version of the Ku Klux Klan," according to journalist Joe Allen. After a
5-day trial, Garys fate was put in the hands of an all-white jury.
Predictably, they found him guilty of 1st-degree murder, which then meant
an automatic death sentence.

A national campaign took on Gary's case, and his lawyers won a stay of
execution. In July 1976, petitioners gathered more than 92,000 signatures
demanding his release. With appeals still pending, the Supreme Court ruled
the Louisiana death penalty unconstitutional. While this saved Gary from
imminent death, his appeals hit a dead end. Since the late 80s, Gary has
repeatedly applied for parole and has been denied each time.

For 30 years, Gary has been imprisoned at Louisiana State Penitentiary in
Angola. The 18,000-acre compound, built on a former slave plantation,
houses 5,000 men, 75 % of whom are black. According to Allen, "the life of
prisoners inside Angola is little better than slavery," with 85 % of those
imprisoned expected to die there. During his time there, Gary was expected
to pick cotton at 3 cents per hour; when he refused, he was put in
solitary confinement. Day in and day out, Gary remains confined, despite
public figures like Rosa Parks and Rubin "Hurricane" Carter speaking out
on his behalf and having Amnesty International declare him a political
prisoner.

To this day, Gary and his family have not stopped fighting for his
release. In his own words, "I emphatically and unequivocally maintain my
innocence as I did in 1974 and hope that one day justice will eventually
prevail in this matter." As the fight for abolition of the death penalty
moves forward, we also cannot forget those who have been left in prison to
die. We must fight to free Gary Tyler and all those who have been
imprisoned by a system that has not done them justice.

(source: Laura Taylor is a senior in the School of Industrial and Labor
Relations; Cornell Daily Sun)

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

Where Is the Justice - Really!


Miss Taylor, in her editorial piece, "Is This Justice", conveniently
ignores many of the realities about violent crime. Personally, I don't
favor the death penalty. My reasons are simple. I don't think it makes
sense to kill someone for killing someone else. The executioners are
simply lowering themselves to the level of those being executed and our
society hardly needs more members like that.

By the same token, I am tired of the continuous rantings and ravings of
those who fight against the death penalty on the grounds of "social
injustice". Perhaps I would feel better about them if they did more to
help the victims of the crimes of inmates on death row but that never
seems to make their agenda. They endlessly cite the "pain" experienced by
those being executed and then pick out one case of an individual on death
row who MAY not have belonged there and expect us to believe that is true
for all inmates facing the death penalty. How absurd!

Miss Taylor would now take the argument one step further by extending it
to an argument against life sentences. What has happened to our society?
We now live in a world where it's far too popular to suggest that really
"bad people" are really "good" and "good people" are really bad. While
their sympathy for those on death row has no bounds, sympathy for violent
crime victims has no place because it interferes with their empathy for
those who committed the crimes. That's an upside down world!

We have an imperfect system of justice. Criminals get away with crime all
the time because we have tried, so diligently, to be fair beyond reason.
Unfortunately, we seem to have succeeded in being much more fair to those
who commit crime than to those who are it's vicims. Miss Taylor would do
well to stop to consider the trauma experienced by a victim of a brutal
rape or the family attending a funeral knowing that they will never see
their loved one (who committed no crime) again. A few moments of pain for
a murderer hardly seem out-of-line for the pain they willfully caused in
committing their crime - and putting those individuals back on the street
to commit more crimes (as is usually the case) makes even less sense.

Our system is far from perfect - but far too often, it's imperfections
damage the lives of victims to protect those who create victims

(source: Craig Cochran "71" ---- The Cornell Daily Sun)



ARIZONA:

The impractical penalty ---- A sentence of death is incompatible with
swift justice


On some important matters, Maricopa County Attorney Andrew Thomas is right
in his squabble with the defense Bar over the death penalty.

However, the nature of the dispute, and the fact that Thomas is destined
to lose it, illustrate that death has become an impractical punishment in
today's society.

It currently takes 3 years to get a capital murder trial started in
Maricopa County. It takes an average of 19 years to get a convicted
murderer executed.

Thomas says this is too long and constitutes a denial of justice to the
families of victims, who were given a state constitutional right to speedy
justice by voters in 1990.

He's right in his critique.

As a partial solution, Thomas has asked a judge to require that capital
murder cases go to trial within 18 months. He has also asked the
Legislature to pass a law requiring it.

The problem is that the defense Bar is saying that there are too few
experienced capital murder defense attorneys available to handle the
volume of cases Thomas wants to take to trial.

Thomas's response: Work harder.

Thomas makes much of the fact that defense lawyers have about a fourth to
a half of the caseload managed by the prosecutors who try capital murder
cases. The defense Bar points out that prosecutors are given the case
already developed and investigated by the police. The defense has to start
from scratch.

It's difficult for a lay observer to evaluate which side has the better
argument regarding caseloads.

It doesn't matter, however. The courts aren't going to allow capital
murder cases to go forward with inexperienced defense lawyers or
experienced lawyers who say they aren't adequately prepared.

The courts have long been squeamish about the death penalty. In the 1970s,
the U.S. Supreme Court rendered moot the death penalty in all 50 states
and appeared poised to declare it unconstitutional per se.

The court backed off that, but has been changing and fiddling with the
rules for death-penalty cases ever since. Changing court rules have made
it impossible to have a consistent application of the death penalty ever
since.

In the meantime, DNA evidence has shown that a very disturbing number of
individuals have been sentenced to death who were in fact innocent,
including one in Arizona.

Public opinion supports the death penalty in the abstract. And in the
abstract, some murders are so heinous and depraved that only death seems
to be sufficient punishment.

However, as a practical matter, the criminal justice system is too fraught
with human frailty and misjudgment to be entrusted with the ultimate
penalty.

In general, the assumption is that the criminal justice system works. The
guilty are so found, the innocent get off.

However, police, prosecutors and judges are sometimes mistaken,
inconsistent, inept or even corrupt. Defense lawyers can be incompetent.
Trials are as much a legal game as a search for truth.

In fact, one prevailing theme in death penalties that have been overturned
has been the incompetence of defense counsel. That's why the courts stress
the need for experienced, prepared defense attorneys in capital murder
cases.

By seeking a statutory requirement that capital murder cases go to trial
in 18 months, Thomas appears to be seeking a constitutional confrontation
between the legislative and judicial branches.

In this case, the courts will, and should, prevail.

The Legislature is supreme in establishing the basic framework of the
criminal justice system: deciding which behaviors are to be prohibited and
determining the appropriate punishments.

However, in deciding to apply the law in an individual case, the courts
are supreme. That's a separation of powers that is fundamental to the
protection of liberty. Politicians don't get to decide if we go to jail or
are put to death.

In the modern era, the courts simply aren't going to allow capital murder
trials to go forward without experienced defense lawyers who believe they
are prepared. And there will always be a limited number of such lawyers,
since experience in capital murder trials is hard to come by.

As a practical matter, speedy justice for the families of victims requires
forgoing death as a penalty.

(source: Opinion, The Arizona Republic)






SOUTH CAROLINA:

Court reverses death sentence because of 'overly zealous' closing argument


In Columbia, the state's top court Tuesday reversed the death sentence of
a Lexington County man convicted of murdering his infant daughter in 2001,
ruling the prosecutor's closing argument was "overly zealous."

The S.C. Supreme Court in a 4-1 vote said C. Robert Northcutt should be
resentenced because the unanimous jury verdict in November 2003 was
"imposed under the influence of passion and prejudice" by 11th Circuit
Solicitor Donnie Myers' closing argument.

The majority of justices noted they couldn't uphold the death sentence
even though then-23-year-old Northcutt, in a rare move, directly asked the
jury to sentence him to die.

The ruling was at least the 5th time a death sentence has been reversed in
whole or part because of improper arguments by Myers, according to court
papers.

Myers, the solicitor for Lexington, Edgefield, Saluda and McCormick
counties since 1976, has won more death penalty cases than any other
active solicitor, though his critics say he's been reversed more often as
well.

Contacted Tuesday, Myers denied his closing argument was so inflammatory
it violated Northcutt's constitutional rights. But he acknowledged he
tries to connect with jurors, noting, "I'm emotional in court. I've always
been; I always will be.

"You don't go into court to square dance."

Myers said he couldn't understand Tuesday's ruling, given Northcutt's
request for the death sentence, which he pointed out was a first in his
career.

"He (Northcutt) agreed with me, but I guess what I said was wrong, and
what he said they (the justices) disregarded."

A new sentencing hearing likely won't be held until next year at the
earliest, Myers said, noting he has "four or five" death penalty cases
this year, including one scheduled for next week.

Northcutt's lawyer, David Bruck, declined comment Tuesday, saying the case
was still pending. Bruck, a professor at Washington and Lee School of Law
in Virginia, is best known for his defense of Susan Smith, the Union
County woman convicted in 1995 of drowning her 2 young sons in a lake.

In that case, Bruck convinced jurors to spare her life.

Northcutt was convicted of killing his 4-month-old daughter, Breanna, the
afternoon of Jan. 7, 2001, at their Platt Springs Road mobile home.
Tuesday's ruling upheld the conviction.

Northcutt was accused of slapping, punching, squeezing, shaking, choking
and biting the 12-pound baby before breaking her back on the rail of her
crib, and then fleeing without helping her.

During closing arguments in the sentencing phase of Northcutt's November
2003 trial, Myers used a baby doll to show how the girl's back was broken,
bending the doll over the crib rail until its head and feet met.

He then draped a black blanket -- which belonged to Myers' late son,
Chris, 29, who died earlier in 2003 -- over the crib with the doll in it
and slowly wheeled it out of the courtroom past jurors, several of whom
were fighting back tears.

The majority of justices in Tuesday's ruling described the demonstration
as a "staged funeral procession."

Myers made 2 other reversible errors in his closing argument, the court
said. His statement declaring an "open season on babies in Lexington
County" if the death penalty wasn't given was intended to "inflame the
jury," the majority said.

Myers also repeatedly told the jury he "expects" the death penalty, which
the majority noted "ignored our precedent which rebukes such an imposition
of the solicitor's personal belief."

"Any one of these 3 miscues requires reversal of (Northcutt's) sentence,"
Associate Justice E.C. Burnett of Spartanburg wrote for the majority.

In her dissent, Chief Justice Jean Toal said the statements in question
each took up only a line in 35 pages of the transcript of Myers' closing
argument.

"When viewed in the context of the entire record, I do not believe that
the solicitor's comments so infected (Northcutt's) sentencing proceeding
with unfairness as to result in a denial of due process," Toal said.

(source: Rock Hill Herald)