[Deathpenalty] death penalty news----ALA., PENN., MISS., CALIF.

[Rick Halperin]

Jan. 21



ALABAMA:

A matter of life or death


THE ISSUE: A judge disregarded a jury's decision and sentenced Brandon
Deon Mitchell to death - exercising a power the judge himself half-wished
he did not have.

Maybe Brandon Deon Mitchell deserves to die. He was convicted of killing 3
people in a Thanksgiving Day robbery at the Airport Inn in 2005, a crime
that devastated families of the victims and even stunned a city that's
grown numb to murder.

But the jury that heard all the evidence in the case - including all the
reasons to execute Mitchell and all the reasons to spare his life -
decided a death sentence was not appropriate.

In most states, that would be the end of the story. In Alabama, judges
have the power to rewrite the ending after a jury rules. And so it
happened with Mitchell.

Jefferson County Circuit Judge Bill Cole sentenced Mitchell to death,
despite the jury's 10-2 recommendation that the killer be sentenced to
life in prison with no chance for parole.

"Everything tells me the jury did not make the right decision," Cole said.

The victims' families applauded Cole's decision, and that's
understandable. But the fact Cole has such singlehanded power of life or
death is not something we as a state should applaud or even tolerate.

Judges like Cole must run for re-election if they want to keep their jobs.
Even if Cole and most judges strive to make death penalty decisions
without regard to politics, they can't entirely separate themselves from
it. They are under pressure to be tough on crime.

They should not be able to disregard a jury's feelings in capital cases.

Alabama is one of few states that allow judges the power to impose death
sentences in such a manner and the only state where the power is used so
routinely. About 1/5 of the inmates on Alabama's death row are there even
though a jury voted for a life sentence.

That's wrong.

Even Cole acknowledged some reservations about exercising this power,
saying he never saw himself "as someone who would override a jury's
decision, especially a 10-2 decision."

"Maybe," he added, "the courts will do away with overrides. If they do, it
won't hurt my feelings at all."

Our hope is the Legislature will do away with this indefensible practice
and give juries the final say on whether a person is sentenced to death or
to life imprisonment.

Are juries perfect? Of course not.

But they are in a better position than popularly elected judges to make
the most serious call our court system is asked to make: whether to take
the life of a fellow human.

(source: Opinion, Birmingham News)






PENNSYLVANIA:

Hundreds wait, few executed in Pa.


Many are condemned. Few die.

Since Pennsylvania reinstituted capital punishment in the mid-1970s,
governors have signed 330 death warrants. But the commonwealth has
executed only 3 prisoners -- 2 in 1995, both of whom waived their rights
to appeal, and one 4 years later.

Some inmates have died of old age or natural causes. Some sentences have
been commuted to life without parole, an option in Pennsylvania capital
cases. 6 men have been exonerated.

Most have waited, many for more than a decade, while their appeals work
their way through state and federal courts. That process, legal experts
say, leads to the state's backlog.

"It's not delay for delay's sake," said Thomas Place, who teaches criminal
law at Dickinson School of Law. "It's because we have a system of multiple
reviews."

Currently, 217 men and five women are confined on death row -- the
4th-largest population among the 38 states with capital punishment.
They're held at the State Correctional Institution at Greene, SCI
Graterford and, for the women, SCI Muncy. Executions by lethal injection,
which replaced the electric chair in 1990, take place at the State
Correctional Institution at Rockview.

Pennsylvania's record isn't unique, noted Richard Deiter, executive
director of the Death Penalty Information Center, a Washington-based,
nonprofit research organization.

California, which leads the country with 657 death-row inmates, has
executed 13 prisoners since 1976, including three in the past two years,
according to the DPIC. At the other end of the scale with 11 on death row,
New Jersey has not executed anyone in 31 years.

Deiter said appeals from Pennsylvania's large death-row population form a
"bottleneck" at the state Supreme Court. State and federal judges these
days are also taking high-profile exonerations -- many from DNA testing --
into account during reviews, Deiter said.

"That, I think, causes the whole system to slow down, to make sure these
mistakes aren't affecting other cases, so there's more scrutiny from the
state and federal courts," Deiter said.

Nationally, death sentences have decreased by about 60 percent since 1999,
with only 6 states carrying out more than one execution last year, and
none more than five, according to the DPIC.

In contrast, Texas put to death 19 in 2005 and 24 last year. It has 392
death-row inmates, and since 1976, has had 381 executions -- tops in the
country.

Like their Texan counterparts, Pennsylvania governors have signed death
warrants. Gov. Ed Rendell has inked 63, 2nd only to Tom Ridge's 220 during
the late 1990s. But one difference comes down to timing, Deiter said.

Texas sets a date for execution once the federal appeals process is
exhausted, Deiter said. Pennsylvania, on the other hand, proceeds when
state appeals conclude,leading to stays of executionto allow for further
review up to the U.S. Supreme Court.

Issues such as racial bias -- minorities make up a large majority of
Pennsylvania death-row inmates but only about a seventh of the state's
population -- and inadequate representation may concern Pennsylvania
judges more than Texas judges, Deiter said. That may lead to longer
deliberations or more cases being returned to trial courts, he said.

"All of that helps slow the process down," he said. "If you have a place
like Texas, everybody seems to say it's fine."

>From the start, Pennsylvania's capital punishment law generated
controversy. The high court, in 1972, ruled that death sentencing under
the state's 59-year-old capital punishment statute was unconstitutional.

After the General Assembly resurrected the law with amendments in 1974,
over the veto of Gov. Milton Shapp, the court again struck it down 3 years
later. The next year, with another veto from Shapp, lawmakers passed the
current statute.

In general, Place said, it must be remembered that appeals of all kinds
swamp courts.

"We want our courts to look carefully at every 1 of these cases, and we
don't have a special court for death-penalty cases," he said.

Rendell spokeswoman Kate Philips said capital case appeals are "a very
thorough process, and rightfully so."

"Does it take a long time? It certainly does," she said. "It should.
Everyone should have the right to DNA testing and every avenue of the
courts available."

But William DiMascio, executive director of the Philadelphia Prison
Society, a social justice organization that opposes the death penalty,
sees a change down the road.

"I think once the appeals have run their course, the state will pretty
well have to carry out those executions," he said. "I suspect we'll hit
the point where we're doing them all at once. I think that's yet to come."

(source: Centre Daily Times)






MISSISSIPPI:

Mississippi inmate inspired this series


Ronnie Lee Conner inspired this set of stories.

Psychotic and delusional, he sits on Mississippi's death row, fouling his
cell with his own feces and urine, his demented screams and shouts keeping
other prisoners awake at night.

Conner has been acting out in bizarre ways for years. But his jury never
heard about his mental impairments.

His lawyers failed to prepare or present any evidence of his problems
during his trial for slashing the throat of an elderly woman in Meridian,
near the Alabama border.

Conner's case prompted a simple question: How frequently are prisoners
condemned to death without juries knowing such starkly pertinent
information?

McClatchy Newspapers set out in 2004 to answer that question in a way that
goes beyond anecdotes and other singular examples.

McClatchy reviewed 80 recent death-penalty cases from Mississippi,
Alabama, Georgia and Virginia, examining what lawyers in those cases did
to defend their clients' lives. Trial transcripts and appeal records were
reviewed; lawyers and experts were interviewed.

The states were chosen based on 2 criteria: They don't have statewide
systems for providing adequate lawyers in capital cases, and they're all
states in which prosecutors regularly seek death and authorities have
shown a willingness to execute prisoners.

The cases were chosen from among all the death sentences given in those
states from 1997 through 2004. In each state, the survey started with the
most recent conviction and went backward until 20 cases had been
researched.

All the cases that McClatchy reviewed were in some stage of appeal and
available at each state's supreme court. McClatchy's cases don't include
all the most recent ones in a given state because not all the case files
or trial transcripts were available.

In Mississippi and Virginia, the research yielded a majority of the death
sentences imposed in those states from 1997 through 2004. Georgia's cases
represented a third of all death sentences in that period. In Alabama,
whose Death Row is much larger and whose appeals move much more slowly,
the available cases were clustered almost entirely from 1997 through 1999.

In Georgia, Alabama and Mississippi, case files initially were researched
by Jeff Skelton, an Atlanta-based paralegal hired through New Frontiers
International, Ltd.

(source: McClatchy Newspapers; the series' author, Stephen Henderson, is
McClatchy's Supreme Court correspondent.)

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

5th Coast jailer pleads guilty in inmate-abuse case


Another Harrison County jailer has pleaded guilty to federal charges
related to the abuse of inmates at the local jail, officials said.

William Jeffery Priest, 34, joined 4 former jailers who have accepted plea
bargains in an ongoing federal investigation into the Feb. 4, 2006,
beating of inmate Jessie Lee Williams Jr.

Williams, 40, died after a beating in the jail booking room.

Priest wasn't involved in the Williams' incident, said Assistant U.S.
Attorney John Richmond. However, Richmond said Priest conspired to
"injure, threaten, oppress and intimidate" other inmates to conceal the
abuse, from Aug. 1, 2004 until Jan. 28, 2006.

Priest, who joined the sheriff's department that August, also observed
others at the jail use unnecessary and excessive force and heard others
brag about their exploits, Richmond said.

Priest's attorney, Doyle Coats, said it was "a crying shame that a 6-year
Marine Corps veteran with a clean record must suffer the consequences of
doing what he was told to do in what apparently has been going on at the
jail since" at least 2001.

Priest will be sentenced April 19. He faces a maximum penalty of 10 years
in prison and a $250,000 fine.

Priest's guilty plea came as defense attorneys for Ryan Teel, a former
officer in charge of the jail booking room, prepare for a "mini-trial"
before the U.S. attorney general's death penalty panel in Washington. The
panel will decide if the case merits a possible death penalty.

Teel's trial is May 28. The government has until Feb. 16 to decide whether
it will seek the death penalty for Teel.

(source: Associated Press)






CALIFORNIA:

Did 9th Circuit Judges Go AWOL From Oral Argument?----One way 'death is
different' in the 9th Circuit


Henry Weinstein, who covers the 9th Circuit for The Los Angeles Times,
reported last week that when a 3-judge 9th Circuit panel recently
conducted another oral argument on death row inmate Kevin Cooper's
challenge to his conviction and sentence, none of the 3 appellate judges
was physically present in San Francisco where the oral argument was taking
place.

According to the article, two of the judges -- M. Margaret McKeown of San
Diego and Ronald M. Gould of Seattle -- participated in the oral argument
via videoconferencing, while the most senior judge on the panel, Pamela
Ann Rymer of Pasadena, participated via telephone because her
videoconferencing connection was not functioning.

The article quotes the 9th Circuit's chief judge, Mary M. Schroeder, as
saying that she was "very surprised and concerned when I learned all 3
judges were on video" for the oral argument. Schroeder went on to say,
"That was a first. Several other judges are concerned as well, and we are
going to have a full discussion as soon as we can. I don't think this is
going to happen again."

I have previously expressed in this space that I prefer to have judges
physically present for oral argument instead of participating remotely,
via video or telephone hook-up, and I have never argued a case where more
than one of the appellate judges was participating in the oral argument
from a remote location. Nevertheless, I do not believe that the 9th
Circuit has any reason to feel ashamed that none of the 3 judges assigned
to decide Cooper's latest appeal was physically present for the oral
argument.

As best as I can tell, the argument came before a panel that was not
otherwise hearing oral arguments together during the week that the case
was argued in San Francisco. I presume that Judge Rymer could have
presided in person had the argument been scheduled in Pasadena, where the
9th Circuit regularly hears oral arguments, but perhaps doing so would
have been far less convenient for the attorneys arguing the case.

Had these three judges traveled to San Francisco, they would have incurred
transportation and hotel costs, and each easily consumed a good portion of
a day in transit for a single oral argument that took just an hour to
complete remotely, rather than devoting that time to this and other cases,
including other death penalty cases that are presumably pending before
them.

I've listened to the 9th Circuit's audio recording of this death penalty
oral argument, which can be freely accessed online (in Windows Media
format), and the 3 judges who heard oral argument of Cooper's latest death
penalty appeal all actively participated by asking questions of counsel.
Indeed, from listening to the recording, it's hard to tell that the 2
judges who participated via videoconference weren't in San Francisco for
the oral argument. The audiotape allows a listener to notice that one
judge took part by phone, but she, too, participated actively in the oral
argument.

Although I don't fault the three judges for deciding that their time would
be better spent working from their home chambers, Weinstein's Los Angeles
Times article contained at least one bit of troubling news. According to
the article, "in recent months, an increasing number of 9th Circuit judges
have invoked their privilege of appearing via video, even when they did
not have a compelling reason. ... 2 judges on the court took particular
umbrage at a colleague who they said had recently informed the court that
it would be inconvenient to attend arguments because they would conflict
with a child's basketball games."

Now I enjoy attending sporting events in which my child is participating
as much as the next parent, and when my work takes me out of town on a day
when my child has a game, I'm saddened to be unable to attend. Yet,
serving as a judge on the 9th Circuit, which covers a huge geographical
expanse, will by definition require a judge to engage in a great deal of
travel to participate in oral arguments.

Presumably this public shaming of the unidentified judge, who values being
at childhood sporting events more than being physically present for
appellate oral arguments, will cause that judge to rethink some
priorities. At a minimum, one hopes the judge favors splitting the 9th
Circuit into two or more smaller circuits, given the reduction in out of
town travel that's likely to result from such a scenario.

Holding a federal appellate oral argument at which none of the judges are
physically present is very unusual, and in a death penalty appeal it may
understandably strike some people as astounding. But federal appellate
judges have an overarching duty to try to do what will best serve the
interests of justice in all the cases pending before them, rather than in
merely one single case. For this reason, I cannot fault the 9th Circuit
judges who decided to remain in their home chambers instead of traveling
to San Francisco merely to hear one hour of oral argument in a single
case. There's no lack of reasons for criticizing the 9th Circuit, but this
isn't one of them.

Howard J. Bashman operates his own appellate litigation boutique in Willow
Grove, Pa., a suburb of Philadelphia. You can access his appellate Web log
at http://howappealing.law.com/.

Law.com's ongoing LEGAL MINDS article series highlights opinion and
analysis from our site's contributors and writers across the ALM network
of publications.

(source: Law.com)